ACLU Sues DC Metro For Banning 'First Amendment' (Literally) And Other Controversial Content

from the strange-bedfellows dept

Free speech can make for some strange bedfellows at times, and the ACLU certainly has a history of defending the free speech rights of people from across the political spectrum (and out to the extremes). The ACLU’s willingness to defend just about anyone’s free speech rights sometimes confuses people who incorrectly think that free speech should only be protected for people you agree with. The most famous example of the ACLU’s willingness to protect the free speech rights of those that they themselves likely disagree with is the famous case in which it defended the right of the KKK to march in Skokie, Illinois. But the ACLU may have just filed a new case that people can point to — as they seem to have collected plaintiffs from different extremes of the political spectrum, all suing over the DC Metro’s refusal to accept their controversial ads. In this case, the ACLU is representing “I just want to seem so controversial” Milo Yiannopoulos’s company Milo Worldwide, as well as PETA (you know who they are) and Carafem (a healthcare organization that helps women get birth control and abortions). Oh, and themselves.

The defendant is the Washington Metropolitan Area Transit Authority (WMATA), the organization that runs the Metro. The issue is that all four organizations sought to purchase “controversial” ads for the Metro, and all were rejected. Let’s start with the ACLU’s own ad, because this one is the most ridiculous of all. The ACLU tried to buy an ad that was just… the First Amendment. Really. No joke.

Doesn’t seem very controversial, right? Well, according to the ACLU, this ad was rejected for trying to “influence public policy.”

The ACLU inquired about placing our ads with WMATA, envisioning an inspirational reminder of our founding texts, with a trilingual twist, in the transit system of the nation?s capital. But it was not to be: Our ad was rejected because WMATA?s advertising policies forbid, among many other things, advertisements ?intended to influence members of the public regarding an issue on which there are varying opinions? or ?intended to influence public policy.?

Quoting the Constitution might influence public policy? I mean, sure, but wouldn’t it influence it in a way that is, well, Constitutional?

The other three ads were all more “traditionally” controversial, even if they might be controversial to very different groups of people. Carafem’s ad was rejected because it mentioned abortion. PETA’s ad was rejected because it told people to “go vegan.” And Milo’s ad was rejected after people complained about it (yes, they were originally put up, but then pulled).



As the ACLU summarizes:

The ideas espoused by each of these four plaintiffs are anathema to someone ? as is pretty much every human idea. By rejecting these ads and accepting ads from gambling casinos, military contractors, and internet sex apps, WMATA showed just how subjective its ban is. Even more frightening, however, WMATA?s policy is an attempt to silence anyone who tries to make you think. Any one of these advertisements, had it passed WMATA?s censor, would have been the subject of someone?s outraged call to WMATA.

So, to anyone who?d be outraged to see Mr. Yiannopoulos? advertisement ? please recognize that if he comes down, so do we all. The First Amendment doesn?t, and shouldn?t, tolerate that kind of impoverishment of our public conversation. Not even in the subway.

At the end of the day, it?s a real shame that WMATA didn?t accept the ACLU?s advertisement ? the agency could really have used that refresher on the First Amendment.

As for the actual lawsuit, there are a series of First Amendment claims about why the activity is unconstitutional (viewpoint discrimination, unfettered discretion, unreasonable application) and a Fifth Amendment due process claim for vagueness in the policy. The exhibits also contrast the rejected ads with ads that were allowed — including ones for joining the military, drinking beer, other medical procedures, hookup apps and (of course) edible meats. All in all a pretty solid case.

And we’ve already seen some people bitching about the ACLU representing any of these folks — and you can count me among those who isn’t a fan of PETA (have you seen what I’ve written about those guys?) and who hates giving Milo any attention at all, since that’s basically all he wants (see what I put myself through to get you stories?). I don’t know anything about Carefem, but I’m sure some people hate them too because “abortion.” But I appreciate the fact that there’s an ACLU that will stand up for all of their free speech rights (and its own).

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Companies: aclu, carafem, peta, wmata

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Comments on “ACLU Sues DC Metro For Banning 'First Amendment' (Literally) And Other Controversial Content”

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46 Comments
Atkray (profile) says:

Re: Faulty assumption?

Our ad was rejected because WMATA’s advertising policies forbid, among many other things, advertisements “intended to influence members of the public regarding an issue on which there are varying opinions” or “intended to influence public policy.”

What if the ad was rejected because it is an issue on which there are varying opinions?

Seems there are at least 535 people in the immediate neighborhood who have the opinion that this should be discarded.

afn29129 (profile) says:

Faceless agency

Washington Metropolitan Area Transit Authority (WMATA).. A faceless agency. It’s a shame that bloggers/newspapers/etc can’t name the people behind the agencies when they write their blog/article. These agencies are populated by by humans, be they twits, idiots, or fools, but it’s important to give them names so the public can know just who they are.

orbitalinsertion (profile) says:

Re: Faceless agency

You realize they embedded the actual filing, yes? General Manager’s name is right there. But how is one to discover immediately who all wrote the policies, and which individuals were applying them to specific ads, and who, if anyone, had to approve the process for a particular ad?

Sure, there are humans involved, but they aren’t always useful. (It may be arguable that particular people identified more often become scapegoats when there is an institutional policy and/or culture to blame.) And again, how is one to know which actual ones made a decision at this stage?

Anonymous Coward says:

To me, this also raises the question of whether public transit authorities should be in the business of selling advertising at all.

I know they like the revenue and all, but I struggle to see how there’s a wholly constitutional way to do it. It’s unlikely they could realistically stock the system with ads without some kind of content restrictions – certainly no private physical advertising network functions as a total free-for-all – but doing so puts them in the position of being a government entity picking and choosing permitted speech, which is never pretty.

(Plus, isn’t it arguably also a problem that the government operates and maintains a forum for speech that is solely accessible to people with large amounts of money to spend on ad buys?)

Anonymous Coward says:

Re: Re:

It is also corporate propaganda, to keep the wheels of industry turning, to keep us consuming more and more junk destined for landfill, while our populations grow far beyond sustainable levels, and we continue to destroy our own habitat. Government was sold to corporations long ago. It’s no suprise that they don’t like to see competing narratives out there.

Anonymous Coward says:

You're confusing me. So NOW a corporation IS subject to Constitution / common law, doesn't have absolute "Right" to be arbitrary?

Let’s nail down that Washington Metropolitan Area Transit Authority (WMATA), the organization that runs the Metro IS a corporation, not part of government.

Looks as though pinkos at ACLU regard businesses as different from “natural” persons, even subject to the Constitution!

Not me! I stand with Techdirt and Popehat Ken White that corporations have absolute Rights and can discriminate however choose! “Natural” persons or even other corporations have no recourse at all!

Anonymous Coward says:

Re: You're confusing me. So NOW a corporation IS subject to Constitution / common law, doesn't have absolute "Right" to be arbitrary?

No, it’s quasi-governmental, both corporation and government at once, however best advantages at any given time.

It’s outside the Constitution, but local government can use it however want. Convenient, huh?

The Reich never died you see, just moved to New York and DC. (Hey, that rhymes!)

Gwiz (profile) says:

Re: Re:

Let’s nail down that Washington Metropolitan Area Transit Authority (WMATA), the organization that runs the Metro IS a corporation, not part of government.

 

Your "hammer" missed it’s mark Blue. You didn’t "nail down" anything at all:

The Washington Metropolitan Area Transit Authority, commonly referred to as Metro, is a tri-jurisdictional government agency that operates transit service in the Washington metropolitan area. Source

Anonymous Coward says:

Re: You're confusing me. So NOW a corporation IS subject to Constitution / common law, doesn't have absolute "Right" to be arbitrary?

I love how you SovCits are such experts on the government, and the Constitution, but can’t manage to tell the difference between the actual government and a business.

Anonymous Coward says:

Re: You're confusing me. So NOW a corporation IS subject to Constitution / common law, doesn't have absolute "Right" to be arbitrary?

A corporation may be a state actor for purposes of the First Amendment by virtue of delegated power granted by statute or custom.

So it doesn’t matter whether WMAT is called a corporation, it’s still subject to the First Amendment like Amtrak (Lebron v. National R.R. Passenger Corp., 513 U.S. 374 (1995)).

Anonymous Coward says:

The WMTA was created by Congress.

The leadership is comprised of DC, the Federal Government, Maryland and Virginia.

DC reps are appointed by the Council of DC, which is political (or government.) The Fed Gov’s rep is appointed by the Secretary of Transportation, which is the government. Marylands 2 reps are appointed by the Washington Suburban Transit Corporation, another govt. entity as is Virginia’s reps.

Seems pretty government to me and not a private corporation.

And how do you think that corporations are not subject to the Constitution? Can companies have slaves? Corporations are subject to the Constitution. The Constitution states (as in the article) “Congress shall make no law abridging the freedom of speech”

The 1st Amendment is also applicable to state and local governments under the incorporation doctrine. It also applies to private individuals and companies acting on behalf of the government.

tom (profile) says:

The WMATA claims they ban advertisements “intended to influence members of the public regarding an issue on which there are varying opinions”.

Isn’t the WHOLE point of advertising to influence public opinion on issues where there are varying opinions? Do I buy Cheer or Tide? Bran flakes or Count Chocula? Ford F150 or Tesla Model 3?

If they fully implemented their own policy, they would ban all ads.

Coyne Tibbets (profile) says:

All ads forbidden, sounds good to me

WMATA’s advertising policies forbid, among many other things, advertisements “intended to influence members of the public regarding an issue on which there are varying opinions” or “intended to influence public policy.”

With that policy how could WMATA run any ad? For example, I might hate McDonald’s, someone else might love it.That means there’s a difference of opinion on McDonald’s, and they are intended to influence the public, so MacDonald’s ads are forbidden, right?

Coyne Tibbets (profile) says:

Re: All ads forbidden, sounds good to me

It occurred to me after I wrote this that maybe we should start a campaign to get all ads banned at WMATA. It would be like a game: find two people who disagree about the subject of an ad, then file a complaint that it violates WMATA policy. (The part of the rules about public influence applies to any ad.)

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