Nonprofit sues D.C. transit authority over ad rejection

The public transit authority in Washington, D.C., restricts free speech in advertising so much that attorneys from both sides of the political spectrum are working together to oppose it.

Last week, the nonprofit group WallBuilders sued the Washington Metropolitan Area Transit Authority (WMATA) for blocking an advertising campaign it tried to launch last summer.

WallBuilders aims to educate people on American history and the faith involved in it, said Tim Barton, president of WallBuilders. Barton’s father, David Barton, founded the group and teaches that America’s founding fathers intended to build an explicitly Christian nation. His 2012 book, The Jefferson Lies, sparked a debate among Christian professors and was ultimately pulled from circulation by its publisher.

WallBuilders wanted to purchase ads, designed for WMATA’s buses, to promote its new interactive website. The ads featured historical paintings of America’s founding fathers, Tim Barton said. Initially, the ads included the text, “Christian? To find out about the faith of our founders, go to WallBuilders.com.”

WMATA rejected the ads, saying they violated guidelines. WallBuilders then submitted a revised version with less text. They included only the picture and an invitation to visit the nonprofit’s website. Again, WMATA denied the ads, Barton said.

“It shouldn’t be this way. It shouldn’t matter that we are a faith-based educational nonprofit, it shouldn’t matter who we are,” said Barton. “Americans are supposed to have the freedom to speak. … We just felt like we were really targeted in having these ads rejected.”

WMATA claimed WallBuilders’ ads violated the ninth rule of the transit authority’s Guidelines Governing Commercial Advertising. This rule prohibits ads that “influence members of the public regarding an issue on which there are varying opinions.”

While WMATA cited only this rule as the cause of the rejection, WallBuilders’ ads broke another rule in the guidelines that prohibits ads that promote or oppose religion.

These two rules violate freedom of speech rights protected by the First Amendment, said Jeremy Dys, senior counsel at First Liberty Institute. The nonprofit religious-liberty law firm represents people of all religions and is best known for cases defending conservative Christians from government suppression. It filed the lawsuit jointly with the American Civil Liberties Union.

WMATA’s rules give the organization broad, unchallenged authority to deny or accept whatever ads they like, he said. This enables the organization to engage in viewpoint discrimination.

“Because they are given such broad authority under their own guidelines they can pick and choose which messages they want to have out there and which ones they find worthy of censorship,” Dys said.

Transit officials have previously allowed ads that arguably violate its own rules, Dys said. The transit authority has accepted ads that push for Supreme Court term limits and promote various alcohol brands and the morning-after pill, among others. Such ads promote topics for which there are a range of “varying opinions,” directly violating the WMATA’s ninth rule, he said.

Under the guidelines, the transit authority would be able to deny ads from churches or organizations like Samaritan’s Purse, Dys added.

Additionally, the guidelines are overly vague, said Arthur Spitzer, senior counsel at the ACLU of the District of Columbia.

“The regulations are so vague that they can’t be applied in a reasonable manner … because really there is no subject at all on which people don’t have differing views,” Spritzer said. “[WMATA] is making arbitrary choices in what ads to accept and what ads not to accept.”

Spritzer said WMATA established these guidelines after several organizations tried to put up advertisements with a cartoon drawing of Islam’s Muhammad on their buses roughly six or seven years ago. The ad request came after gunmen killed 12 people at a French satirical news magazine in Paris over cartoon images of the prophet. WMATA worried that if it allowed ads with depictions of Muhammad, which are forbidden in Islam, violence would occur on its buses, Spritzer said.

WMATA did not respond to WORLD’s request for comment on its guidelines in time for this report.

Since establishing its guidelines, WMATA has had other lawsuits filed against it claiming the rules violate freedom of speech. In 2017, the ACLU filed a lawsuit on behalf of four different organizations, including itself, who all similarly had ads rejected by the transit authority. A ruling on the case is still pending, Spritzer said.

Then in 2018, in another case, the U.S. Court of Appeals for the District of Columbia Circuit upheld WMATA’s rule prohibiting religious advertisements.

Spritzer said a circuit court split is forming across the country regarding free speech rights in transit advertisements. In 2019, the 9th U.S. Circuit Court of Appeals ruled against a similar policy from the Spokane Transit Authority in Washington state, saying its policy violated First Amendment rights.

Spritzer expects the issue will make its way to the U.S. Supreme Court. This case is vital for protecting the right to freedom of speech, Spritzer said, which is why the ACLU partnered with First Liberty on the case to better defend the issue.

While normally the legal groups are on opposing sides of courtrooms, Dys said their partnership here “demonstrates just how out of touch the [WMATA] actually is on this issue.”