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Earlier this week, Judge Beryl A. Howell of the U.S. District Court for the District of Columbia ordered the Washington Metropolitan Area Transit Authority (“WMATA”) to accept and run four advertisements that it had unconstitutionally rejected. The court ruled that WMATA’s ban on issue ads violates the First Amendment’s requirement that restrictions on speech be reasonable.

The Court issued a preliminary injunction today in WallBuilders v. WMATA. The lawsuit, filed on December 12, 2023 by the American Civil Liberties Union, the ACLU of the District of Columbia, First Liberty Institute, and the law firm of Steptoe, LLP on behalf of WallBuilder Presentations (“WallBuilders”), challenges WMATA advertising restrictions as violations of the First Amendment.

WallBuilders is a Texas-based non-profit organization that seeks to educate the public about the role that the Founders’ Christian faith played in the creation of the nation and the drafting of the Constitution. It sought to place its advertisements on the side of WMATA Metro buses. WMATA rejected the ads on the grounds that they violated its advertising guidelines, which prohibit advertising “intended to influence members of the public regarding an issue on which there are varying public opinions.” The lawsuit argues that these ad guidelines violate the First Amendment, which prohibits government agencies from discriminating against private speech based on its viewpoint or from imposing unreasonable restrictions on speech.

The Court ruled that Guideline 9, which prohibits “[a]dvertisements intended to influence members of the public regarding an issue on which there are varying opinions,” is “not a reasonable restriction on speech.” Calling the guidelines “vague,” Judge Howell wrote that the guideline fails to provide “objective, workable standards” that could be reasonably applied, a requirement under the First Amendment.

This is the second free speech lawsuit filed by the ACLU challenging WMATA’s advertising guidelines. A 2017 lawsuit, ACLU v. WMATA, documents how WMATA has discriminated against a variety of viewpoints. Both lawsuits showcase how WMATA’s enforcement of Guideline 9 has been inconsistent. For instance, WMATA has allowed an Instacart ad promoting “Plan B,” an over-the-counter contraceptive. However, in the 2017 case, WMATA rejected an ad for an abortion pill from the ACLU’s client Carafem, a women’s health care collective. Additionally, an ACLU ad displaying the text of the First Amendment in multiple languages was also rejected. ACLU v. WMATA is also pending, and information on the lawsuit may be found here.

“We are pleased that this ruling moves us one step closer to ending WMATA’s arbitrary censorship of speech about public issues,” said Arthur Spitzer, Senior Counsel at the ACLU-D.C. “In a democracy, the government has no right to pick and choose which viewpoints are acceptable. This case is about expanding everyone’s freedom to express their views without unreasonable government interference.”

“The First Amendment grants all Americans the right to express their point of view, religious or secular,” said First Liberty Senior Counsel Jeremy Dys. “Rejecting a faith-based advertising banner by labeling it an ‘issue ad,’ while accepting other ads such as those promoting a ‘Social Justice School’ and ‘Earth Day’ is clearly hypocritical, discriminatory, and illegal. We are grateful that the court recognized that WMATA unconstitutionally rejected WallBuilders ads and look forward to continuing to fight for complete victory.”

Today’s order and memo in WallBuilders v. WMATA may be found here.

The unlawfully rejected ads can be viewed here.


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