• by Thom Forbes , August 10, 2017

The American Civil Liberties Union is taking the Washington D.C. Metro to court over its refusal to display four very disparate advertisements — including one by the ACLU itself that cites the First Amendment’s guarantee of free speech. 

“Can the government ban the text of the First Amendment itself on municipal transit ads because free speech is too ‘political’ for public display?,” asks the lede of a blog post Wednesday by three senior ACLU staff attorneys.

“If this sounds like some ridiculous brain teaser, it should. But unfortunately it’s not. It’s a core claim in a lawsuit we filed today challenging the Washington Metropolitan Area Transit Authority’s (WMATA) restrictions on controversial advertising,” it continues.

The suit was filed in U.S. District Court in D.C. yesterday; WMATA says it will “vigorously” defend itself.

“In 2015, WMATA’s Board of Directors changed its advertising forum to a nonpublic forum and adopted commercial advertising guidelines that prohibit issue-oriented ads, including political, religious and advocacy ads,” reads a widely published statement issued by a WMATA spokesperson. “WMATA intends to vigorously defend its commercial advertising guidelines, which are reasonable and viewpoint neutral.”

As the ACLU tweeted, “the four plaintiffs in our case span the political spectrum, illustrating the indivisibility of the First Amendment.”

“The ACLU and the local ACLU chapters from Virginia and the District of Columbia were joining to represent a diverse group of plaintiffs: Carafem, a health care network specializing in birth control and medication abortion; People for the Ethical Treatment of Animals; Milo Worldwide, LLC, the corporate entity for English political commentator and provocateur Milo Yiannopolous and the ACLU itself,” reports Doug Stangli for USA Today. 

“These types of First Amendment cases make strange bedfellows,” Gabe Walters, counsel and manager of legislative affairs for the PETA Foundation, tells the New York Times’ Jacey Fortin and Emily Cochrane. “The government cannot pick and choose who gets to speak based on their viewpoint, no matter how controversial.”

“On that last point, Mr. Yiannopoulos agreed,” Fortin and Cochrane write, citing a statement emailed to them by a spokesman: “I think PETA is deranged and I have been dismayed, to put it lightly, by positions the ACLU has taken in the past. But on this issue we are all united: it is not for the government to chase so-called ‘controversial’ content out of the public square.

“By the way, my ads weren’t even controversial,” he added. “They were literally just pictures of my face.”

WMATA initially approved the ads for Yiannopoulos’s book “but withdrew them after passengers complained,” Harriet Sinclair reports for Newsweek. “The lawyers have also filed a motion for Milo Worldwide LLC that seeks immediate relief from the court for what it said was the ongoing loss of revenue from book sales as a result of the ads being taken down.”  

Carafem, which dispenses the abortion pill, has itself joined the ACLU lawsuit. When it first opened in the D.C. area in 2015, it wanted to announce its services with self-described “eye-catching, hot pink ads stating ‘Abortion, Yeah We Do That,’” it says in a news release.

“The abortion pill is, of course, both FDA-approved and accepted by the American Medical Association. We are a healthcare provider, not an advocacy group. Metro’s ban of our ads claimed that they were ‘issue-oriented’ and ‘provided a medical statement which can only be accepted from a government health association.’ This is obviously inaccurate — we’re publicizing our services like any other health care provider,” says COO Melissa Grant.

The PETA ad shows a pig saying, “I’m ME, Not MEAT. See the Individual. Go Vegan.” 

Arthur Spicer, ACLU of DC legal director and lead counsel in the case, “says Metro's advertising policy is unconstitutional and unfair because, he notes, while a PETA ad discouraging pork consumption was not allowed, a Chipotle ad promoting a pork dish was allowed,” reports Mike Carter-Conneen for WJLA, the ABC affiliate in D.C. 

“And of course that does send a message,” says Spicer. “It sends the message it's good to eat pork.” 

The ACLU’s message, says Spicer, is one of the inclusive right for people to freely state what’s on their mind. “We're not just trying to get some particular viewpoint displayed on Metro here but all viewpoints including people who disagree with each other about lots of things. But that's the whole point of the First Amendment; it protects everybody's speech,” he says.