Too Controversial for the Subway? ACLU Suing the Washington Metropolitan Area Transit Authority Over Banned Ads
The ACLU recently filed a lawsuit in the United States District Court for the District of Columbia against The Washington Metropolitan Area Transit Authority (“WMATA”).[1] The ACLU claims the WMATA violated the First Amendment by restricting advertisements from being displayed on the transit for being too politically controversial.[2]
This case was filed “on behalf of the ACLU; women’s health care collective Carafem, specializing in family planning and abortion care; Milo Worldwide LLC, the company of conservative commentator and writer Milo Yiannopoulos; and animal rights non-profit People for the Ethical Treatment of Animals.”[3]
The WMATA’s guidelines prohibit advertisements “intended to influence members of the public regarding an issue on which there are varying opinions,” advertisements that “support or oppose an industry position or industry goal without any direct commercial benefit to the advertiser,” and advertisements “intended to influence public policy.”[4] Based on these policies, the WMATA rejected the advertisements from the aforementioned groups.[5]
Previously, the Supreme Court in Police Dep’t of Chi. v. Mosley had determined that the government may not regulate speech based on content. Specifically, the government may not participate in viewpoint regulation – allowing one spectrum of political speech over another – and subject matter regulation – allowing political ads over commercial ads.[6] Since Mosley, the court has carved out a number of exceptions to this rule, allowing the government to regulate certain categories of speech.[7] The exceptions include speech that incites violence [8], fighting words [9], obscenity [10] and libel[11]
When the government opens a space for speech it may fall into one of several categories, subject to varying degrees of government restrictions; the traditional public forum, the designated public forum, and the limited public forum.[12]
The traditional public forum is “a piece of physical property owned or controlled by the government that has ‘by long tradition or by government fiat’ been ‘devoted to assembly and debate,’” such as a public street or a public park.[13] In the traditional public forum, the Mosley rules apply with exceptions carved out by the Court.[14]
A designated public forum “consists of public property which the state has opened for use by the public as a place for expressive activity,” such as a municipal auditorium.[15] The designated public forum is subject to the same freedoms and restrictions as the traditional public forum.[16]
The final and most complicated forum is the limited public forum. The limited public forum “may be created for a limited purpose such as use by certain groups . . . or for the discussion of certain subjects.”[17] The Court in Perry determined that the limited public forum is subject to speech restrictions.[18]
Regarding advertisements on transit, the Supreme Court Case, Lehman v. Shaker Heights determined that government owned transit is a limited public forum.[19] The plurality determined that no First Amendment forum existed on public transit, and, therefore, the City “had reasonable legislative objectives” in banning political advertisement.[20] The objectives included minimizing “chances of abuse, the appearance of favoritism, and the risk of imposing upon a captive audience.”[21] In a limited public forum, the government’s restriction of speech “must be reasonable and viewpoint neutral.”[22]
In his dissent, Justice Brennan argues that the city’s transit system is a designated public forum, rather than a limited public forum.[23] According to Brennan, the city created a designated public forum “for the dissemination of information and expression of ideas when it accepted and displayed commercial and public service advertisements on its rapid transit vehicles.”[24] Once the city began accepting advertisements on the transit, it became a designated public forum, and “once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say.”[25]
The lower courts are split as to whether transit is a limited public forum or a designated public forum.[26] The split in the lower court gives rise to the possibility the D.C. Circuit court will rule that public transit is a designated public forum, and therefore find the advertisements’ rejection unconstitutional.
Footnotes
