The four plaintiffs in a lawsuit against the Washington Metropolitan Area Transit Authority are from across the political spectrum: the American Civil Liberties Union, a health care group called Carafem that provides abortions, People for the Ethical Treatment of Animals and conservative provocateur Milo Yiannopoulos.
What they have in common is that the transit agency known as WMATA has rejected their advertisements, saying the ads ran counter to its guidelines. They have now banded together, saying the guidelines introduced in 2015 violate their First Amendment right to free speech.
In fact, the ACLU’s rejected advertisement displays the text of the First Amendment in English, Arabic and Spanish, with the ACLU’s logo and the slogan “We the People.”
WMATA did not explain in writing why it rejected the ACLU’s ad, according to the complaint. Outfront Media, which manages the system’s advertising, initially told the ACLU that it was rejected because it “does not take any issue oriented advertising.” Outfront later stated that “you’ll need to dramatically change your creative in order to resubmit,” the complaint says.
“In its zeal to avoid hosting offensive and hateful speech, the government has eliminated speech that makes us think, including the text of the First Amendment itself,” said ACLU senior staff attorney Lee Rowland. “The ACLU could not more strongly disagree with the values that Milo Yiannopoulos espouses, but we can’t allow the government to pick and choose which viewpoints are acceptable.”
The D.C. metro system changed its advertising policy in 2015. According to the ACLU, it happened “following controversy surrounding a set of anti-Muslim advertisement.” The ACLU, Carafem and PETA had previously advertised with Metro.
The guidelines on commercial advertising, which are published on WMATA’s website, say medical messages are allowed “only from government health organizations, or if the substance of the message is currently accepted by the American Medical Associated and/or the Food and Drug Administration.”
It also blocks ads “intended to influence members of the public regarding an issue on which there are varying opinions,” those “that support or oppose an industry position or industry goal without any commercial benefit to the advertiser” and those “that are intended to influence public policy.”
In a statement about the lawsuit to NPR, WMATA pointed to its change in policy and said it “intends to vigorously defend its commercial advertising guidelines, which are reasonable and viewpoint neutral.”
The Carafem advertisement says it sells the FDA-approved mifeprex/misoprostol regimen used to end pregnancy at up to 10 weeks. The “10-week-after pill,” it reads, “for abortion up to 10 weeks.”
WMATA rejected multiple PETA ads, including one saying “I’m ME, not MEAT. See the Individual. Go Vegan,” next to a photo of a pig. The plaintiffs argue that “WMATA has accepted and displayed many advertisements that are intended to influence riders to buy, do and believe things that are at odds with PETA’s viewpoint on humans’ proper relationship with animals.”
WMATA initially accepted advertisements for a book by conservative commentator Milo Yiannopoulos but took them down after receiving complaints, saying they violate the guidelines, according to the complaint.
The lawsuit claims that WMATA’s rejection of the ads from the ACLU, Carafem and Milo Yiannopoulos was not because the ads themselves violated the guidelines. Instead, it says the ads were rejected for reasons outside of their content — “such as the identity of the advertiser, the advertiser’s known or presumed viewpoints, or the advertiser’s line of business.”