Editor’s note: On Dec. 11, 2017, the federal district court denied the Archdiocese of Washington’s request for emergency relief that would have let the ads be placed on D.C. Metro buses. U.S. District Judge Amy Berman Jackson wrote that she did not think the archdiocese’s case would succeed on First Amendment grounds of religious freedom or freedom of speech.
The picture shows three shepherds in silhouette, with two sheep, against a star-sprinkled sky. The text says, “Find the perfect gift.” It’s the ad that the Catholic Archdiocese of Washington, D.C., wants to place on city buses run by the Washington Metropolitan Area Transit Authority.
The gift, as described at Find the Perfect Gift website, involves accepting God, going to church, and helping the poor. But Washington D.C.'s transit authority, known as Metro, said no, and the archdiocese has sued on First Amendment grounds.
“The rejected ad conveys a simple message of hope, and an invitation to participate in the Christmas season,” said archdiocese spokesman Ed McFadden in a news release. Added Kim Fiorentino, archdiocese general counsel, “We believe rejection of this ad to be a clear violation of fundamental free speech and a limitation on the exercise of our faith.”
Metro spokeswoman Sherri Ly told WTOP news that the transit authority’s ad policy, as amended in 2015, bars “issue-oriented advertising, including political, religious and advocacy advertising.”
The guidelines, Metro says, rule out “advertisements that promote or oppose any religion, religious practice, or belief.”
In August, the American Civil Liberties Union also filed suit against Metro for rejecting transit ads from other plaintiffs, including an abortion provider, the controversial writer Milo Yiannopoulos, and PETA, the animal-rights organization.
“Metro is a government agency subject to the First Amendment,” the ACLU’s D.C. legal director, Arthur Spitzer, told WTOP. Metro also rejected an ACLU ad consisting of the text of the First Amendment.
The church’s lawsuit says that “the First Amendment, with its guarantees of free speech and the free exercise of religion, prevents the government from denying speech on the unreasonable, arbitrary, and discriminatory grounds put forward by WMATA.”
The suit asks the court to force Metro to allow the church’s ads on buses throughout the Christmas season.
No doubt the D.C. transit authority is trying to avoid being embroiled – and blamed – in firestorms of controversy for allowing ads that inflame public passions.
But among the prohibitions in Metro’s guidelines are ads “intended to influence members of the public regarding an issue on which there are varying opinions.” One might well argue that the whole point of the First Amendment is precisely to allow robust debate to “influence members of the public.”
Another question before the district court may be whether Metro’s rejection of the church’s ad constitutes content-based discrimination or perhaps viewpoint discrimination, as claimed by the ACLU’s Spitzer.
As explained in an article in Middle Tennessee State University First Amendment Encyclopedia, “Content-based restrictions limit speech based on its subject matter, while viewpoint-based restrictions limit speech based on ideology and perspective. A law banning all political speeches in a public park would be content-based; a law banning only political speeches by members of the Socialist Party would be viewpoint-based.”
We’d be getting ahead of ourselves to ask what the U.S. Supreme Court might think of this case should it get that far, but the Content-Based article says the high court “is likely to strike down regulations that discriminate on the basis of what is said or expressed.”
However, in Lehman vs. City of Shaker Heights (1974), the justices held that “city-owned public transportation is not a public forum and that a rule prohibiting political advertisements in these spaces does not violate a candidate’s free speech or equal protection rights.”
So we’ll just have to wait for the district court to unwrap this particular gift of First Amendment jurisprudence.
Brian J. Buchanan is the former managing editor/online for the First Amendment Center in Nashville.