The First Amendment (Literally) Banned in DC

Can the government ban the text of the First Amendment itself on municipal transit ads because free speech is too “political” for public display?

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.

The ACLU, ACLU of D.C., and ACLU of Virginia are teaming up to represent a diverse group of plaintiffs whose ads were all branded as too hot for transit: the ACLU itself; Carafem, a health care network that specializes in getting women access to birth control and medication abortion; People for the Ethical Treatment of Animals (PETA); and Milo Worldwide LLC — the corporate entity of provocateur Milo Yiannopoulos.

To put it mildly, these plaintiffs have nothing in common politically. But together, they powerfully illustrate the indivisibility of the First Amendment. Our free speech rights rise and fall together — whether left, right, pro-choice, anti-choice, vegan, carnivore, or none of the above.

Let’s start with the ACLU. Earlier this year, following President Trump’s repeated commentary denigrating journalists and Muslims, the ACLU decided to remind everyone about that very first promise in the Bill of Rights: that Congress shall make no law interfering with our freedoms of speech and religion. As part of a broad advertising campaign, the ACLU erected ads in numerous places, featuring the text of the First Amendment. Not only in English, but in Spanish and Arabic, too — to remind people that the Constitution is for everyone.

The ACLU inquired about placing our ads with WMATA, envisioning an inspirational reminder of our founding texts, with a trilingual twist, in the transit system of the nation’s capital. But it was not to be: Our ad was rejected because WMATA’s advertising policies forbid, among many other things, advertisements “intended to influence members of the public regarding an issue on which there are varying opinions” or “intended to influence public policy.”

You don’t have to be a First Amendment scholar to know that something about that stinks.

Our free speech rights rise and fall together — whether left, right, pro-choice, anti-choice, vegan, carnivore, or none of the above.

Let’s start with the philosophical argument. WMATA’s view is apparently that the litany of commercial advertisements it routinely displays involve no “issues on which there are varying opinions.” Beyond the obvious Coke-or-Pepsi jokes, there’s a dark assumption in that rule: that we all buy commercial products thoughtlessly. Buy beer! (Don’t think about alcoholism.) Buy a mink coat! (Don’t think about the mink.) That is, WMATA sees “varying opinions” only when they relate to something it recognizes as controversial. And as the Supreme Court recently reminded us, the government violates the First Amendment when it allows only “happy-talk.”

And now to the practical. This is a policy so broad and vague that it permits WMATA to justify the ad hoc exclusion of just about anyone. And the broad set of plaintiffs in this case confirms that.

Despite the fact that Carafem provides only FDA-approved medications, its ad was deemed too controversial because it touched the third rail of abortion. Carafem’s proposed ad read simply: “10-week-after pill. For abortion up to 10 weeks. $450. Fast. Private.” As we at the ACLU know all too well, as states continue to erect draconian barriers to the right to choose, information about and access to abortion care is more critical than ever. Yet Carafem’s ad was apparently rejected simply because some people think otherwise.

One of PETA’s intended advertisements depicted a pig with accompanying text reading, “I’m ME, Not MEAT. See the Individual. Go Vegan.” Despite the fact that WMATA routinely displays advertisements that encourage riders to eat animal-based foods, wear clothing made from animals, and attend circus performances, PETA’s side of this public debate was the only one silenced by the government.

WMATA’s advertising agency suggested that with some changes, ACLU and PETA might be able to get their advertisements accepted. Perhaps PETA could remove the “Go Vegan” slogan from its advertisement? But for the ACLU, “You’ll have to dramatically change your creative.” In other words, as long as we don’t try to make anyone think, we might get the right to speak.

That brings us to our final client: Milo Worldwide LLC. Its founder, Milo Yiannopoulos, trades on outrage: He brands feminism a cancer, he believes that transgender individuals have psychological problems, and he has compared Black Lives Matter activists to the KKK. The ACLU condemns many of the values he espouses (and he, of course, condemns many of the values the ACLU espouses).

Milo Worldwide submitted ads that displayed only Mr. Yiannopoulos’s face, an invitation to pre-order his new book, “Dangerous,” and one of four short quotations from different publications: “The most hated man on the Internet” from The Nation; “The ultimate troll” from Fusion; “The Kanye West of Journalism” from Red Alert Politics; and “Internet Supervillain” from Out Magazine. Unlike Mr. Yiannopoulos’ stock-in-trade, the ads themselves were innocuous, and self-evidently not an attempt to influence any opinion other than which book to buy.

WMATA appeared to be okay with that. It accepted the ads and displayed them in Metro stations and subway cars — until riders began to complain about Mr. Yiannopoulos being allowed to advertise his book. Just 10 days after the ads went up, WMATA directed its agents to take them all down and issue a refund — suddenly claiming that the ads violated the same policies it relied on to reject the ads from the ACLU, Carafem, and PETA.

The ideas espoused by each of these four plaintiffs are anathema to someone — as is pretty much every human idea. By rejecting these ads and accepting ads from gambling casinos, military contractors, and internet sex apps, WMATA showed just how subjective its ban is. Even more frightening, however, WMATA’s policy is an attempt to silence anyone who tries to make you think. Any one of these advertisements, had it passed WMATA’s censor, would have been the subject of someone’s outraged call to WMATA.

So, to anyone who’d be outraged to see Mr. Yiannopoulos’ advertisement — please recognize that if he comes down, so do we all. The First Amendment doesn’t, and shouldn’t, tolerate that kind of impoverishment of our public conversation. Not even in the subway.

At the end of the day, it’s a real shame that WMATA didn’t accept the ACLU’s advertisement — the agency could really have used that refresher on the First Amendment.