WMATA violated First Amendment by rejecting Metrobus ads, lawsuit says

A decision by D.C.’s transit agency to reject a company’s advertisements on its buses violated the First Amendment, the American Civil Liberties Union said in a lawsuit filed Monday.

The suit, filed on behalf of the company WallBuilder Presentations, argues that the Washington Metropolitan Area Transit Authority’s advertising guidelines are in violation of free speech.

The rejected Metrobus advertisements both show historic paintings, with a link to the company’s website and a QR code that would take people directly there, according to Arthur Spitzer, senior counsel at the ACLU-D.C.

One of the ads features George Washington kneeling in the snow, and the other has a scene from the Constitutional Convention assembled in Philadelphia, Spitzer said. The company wanted to send people to its website to learn about its views on the role of religion in the founding of the country, and the role it thinks religion should play in the country now, he said.

But the transit agency rejected the ads, Spitzer said, on the grounds that they violated its advertising guidelines, which bans advertising that has any connection to topics people may disagree with, he said.

It marks the second time the ACLU has filed a free speech lawsuit that challenges WMATA’s advertising rules. WTOP has contacted WMATA for comment on the suit.

“We think it’s wrong and unlawful for Metro to try to bar all advertising that has any connection to issues on which people disagree, because there really is nothing on which nobody disagrees,” Spitzer said. “If you ride Metro, you’ll see plenty of ads for things that don’t reflect unanimous consensus, but they’re quite selective in what (ads) they choose to take and not to take.”

The policy is subjective, Spitzer said, pointing to recent Metro ads about Supreme Court term limits or more transparency in hospital prices. The agency could create clear guidelines, Spitzer said, “so they’re not making the kinds of arbitrary choices they seem to be making now.”

Metro isn’t what is considered a traditional public forum, Spitzer said, so the constitution doesn’t require the agency to have any advertising. In such spaces, courts have said advertising can be limited by subject.

“One of the arguments our lawsuit makes is it’s impossible to distinguish between controversial and noncontroversial issues,” Spitzer said. “There is no issue on which everybody agrees.”

Spitzer characterized the rejection of the ads as a “futile effort by WMATA to try to allow ads on a variety of things, but not ads on which people have different viewpoints.”

Scott Gelman

Scott Gelman is a digital editor and writer for WTOP. A South Florida native, Scott graduated from the University of Maryland in 2019. During his time in College Park, he worked for The Diamondback, the school’s student newspaper.

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