ACLU Sues DC Metro For Banning 'First Amendment' (Literally) And Other Controversial Content

from the strange-bedfellows dept

Thu, Aug 10th 2017 10:37am — Mike Masnick

Free speech can make for some strange bedfellows at times, and the ACLU certainly has a history of defending the free speech rights of people from across the political spectrum (and out to the extremes). The ACLU's willingness to defend just about anyone's free speech rights sometimes confuses people who incorrectly think that free speech should only be protected for people you agree with. The most famous example of the ACLU's willingness to protect the free speech rights of those that they themselves likely disagree with is the famous case in which it defended the right of the KKK to march in Skokie, Illinois. But the ACLU may have just filed a new case that people can point to -- as they seem to have collected plaintiffs from different extremes of the political spectrum, all suing over the DC Metro's refusal to accept their controversial ads. In this case, the ACLU is representing "I just want to seem so controversial" Milo Yiannopoulos's company Milo Worldwide, as well as PETA (you know who they are) and Carafem (a healthcare organization that helps women get birth control and abortions). Oh, and themselves.

The defendant is the Washington Metropolitan Area Transit Authority (WMATA), the organization that runs the Metro. The issue is that all four organizations sought to purchase "controversial" ads for the Metro, and all were rejected. Let's start with the ACLU's own ad, because this one is the most ridiculous of all. The ACLU tried to buy an ad that was just... the First Amendment. Really. No joke.

Doesn't seem very controversial, right? Well, according to the ACLU, this ad was rejected for trying to "influence public policy."

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.”

Quoting the Constitution might influence public policy? I mean, sure, but wouldn't it influence it in a way that is, well, Constitutional?

The other three ads were all more "traditionally" controversial, even if they might be controversial to very different groups of people. Carafem's ad was rejected because it mentioned abortion. PETA's ad was rejected because it told people to "go vegan." And Milo's ad was rejected after people complained about it (yes, they were originally put up, but then pulled).

As the ACLU summarizes:

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.

As for the actual lawsuit, there are a series of First Amendment claims about why the activity is unconstitutional (viewpoint discrimination, unfettered discretion, unreasonable application) and a Fifth Amendment due process claim for vagueness in the policy. The exhibits also contrast the rejected ads with ads that were allowed -- including ones for joining the military, drinking beer, other medical procedures, hookup apps and (of course) edible meats. All in all a pretty solid case.

And we've already seen some people bitching about the ACLU representing any of these folks -- and you can count me among those who isn't a fan of PETA (have you seen what I've written about those guys?) and who hates giving Milo any attention at all, since that's basically all he wants (see what I put myself through to get you stories?). I don't know anything about Carefem, but I'm sure some people hate them too because "abortion." But I appreciate the fact that there's an ACLU that will stand up for all of their free speech rights (and its own).

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Filed Under: advertising, dc metro, first amendment, free speech, metro, milo
Companies: aclu, carafem, peta, wmata

46 Comments

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reader50 (profile), 10 Aug 2017 @ 10:48am

I hadn't thought about it until now, but my opinion of the ACLU has been going up every time I read news about them. For at least the last two years. Bravo.
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Anonymous Coward, 10 Aug 2017 @ 10:49am

Well, according to the ACLU, this ad was rejected for trying to "influence public policy."

Well, that's usually the point of a country's Constitution!!! In fact, it goes a bit beyond "influencing public policy!
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afn29129 (profile), 10 Aug 2017 @ 10:56am

Faceless agency
Washington Metropolitan Area Transit Authority (WMATA).. A faceless agency. It's a shame that bloggers/newspapers/etc can't name the people behind the agencies when they write their blog/article. These agencies are populated by by humans, be they twits, idiots, or fools, but it's important to give them names so the public can know just who they are.
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Anonymous Coward, 10 Aug 2017 @ 11:01am

To me, this also raises the question of whether public transit authorities should be in the business of selling advertising at all.

I know they like the revenue and all, but I struggle to see how there's a wholly constitutional way to do it. It's unlikely they could realistically stock the system with ads without some kind of content restrictions - certainly no private physical advertising network functions as a total free-for-all - but doing so puts them in the position of being a government entity picking and choosing permitted speech, which is never pretty.

(Plus, isn't it arguably also a problem that the government operates and maintains a forum for speech that is solely accessible to people with large amounts of money to spend on ad buys?)
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orbitalinsertion (profile), 10 Aug 2017 @ 11:04am

Re: Faceless agency
You realize they embedded the actual filing, yes? General Manager's name is right there. But how is one to discover immediately who all wrote the policies, and which individuals were applying them to specific ads, and who, if anyone, had to approve the process for a particular ad?

Sure, there are humans involved, but they aren't always useful. (It may be arguable that particular people identified more often become scapegoats when there is an institutional policy and/or culture to blame.) And again, how is one to know which actual ones made a decision at this stage?
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Anonymous Coward, 10 Aug 2017 @ 11:06am

You're confusing me. So NOW a corporation IS subject to Constitution / common law, doesn't have absolute "Right" to be arbitrary?
Let's nail down that Washington Metropolitan Area Transit Authority (WMATA), the organization that runs the Metro IS a corporation, not part of government.

Looks as though pinkos at ACLU regard businesses as different from "natural" persons, even subject to the Constitution!

Not me! I stand with Techdirt and Popehat Ken White that corporations have absolute Rights and can discriminate however choose! "Natural" persons or even other corporations have no recourse at all!
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Anonymous Coward, 10 Aug 2017 @ 11:27am

Re: You're confusing me. So NOW a corporation IS subject to Constitution / common law, doesn't have absolute "Right" to be arbitrary?
No, it's quasi-governmental, both corporation and government at once, however best advantages at any given time.

It's outside the Constitution, but local government can use it however want. Convenient, huh?

The Reich never died you see, just moved to New York and DC. (Hey, that rhymes!)
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Anonymous Coward, 10 Aug 2017 @ 11:38am

Re: You're confusing me. So NOW a corporation IS subject to Constitution / common law, doesn't have absolute "Right" to be arbitrary?
You have no idea what you're talking about, as usual.
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Anon, 10 Aug 2017 @ 11:41am

Maybe...
Maybe they should have included the text of the second amendment... Want to get people riled up about censorship? There's a whole 'nother constituency ready to complain if that were rejected.
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Anonymous Coward, 10 Aug 2017 @ 11:50am

The WMTA was created by Congress.

The leadership is comprised of DC, the Federal Government, Maryland and Virginia.

DC reps are appointed by the Council of DC, which is political (or government.) The Fed Gov's rep is appointed by the Secretary of Transportation, which is the government. Marylands 2 reps are appointed by the Washington Suburban Transit Corporation, another govt. entity as is Virginia's reps.

Seems pretty government to me and not a private corporation.

And how do you think that corporations are not subject to the Constitution? Can companies have slaves? Corporations are subject to the Constitution. The Constitution states (as in the article) "Congress shall make no law abridging the freedom of speech"

The 1st Amendment is also applicable to state and local governments under the incorporation doctrine. It also applies to private individuals and companies acting on behalf of the government.
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Gwiz (profile), 10 Aug 2017 @ 11:52am

Re:

Let's nail down that Washington Metropolitan Area Transit Authority (WMATA), the organization that runs the Metro IS a corporation, not part of government.

Your "hammer" missed it's mark Blue. You didn't "nail down" anything at all:

The Washington Metropolitan Area Transit Authority, commonly referred to as Metro, is a tri-jurisdictional government agency that operates transit service in the Washington metropolitan area. Source

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Anonymous Coward, 10 Aug 2017 @ 12:02pm

Re: You're confusing me. So NOW a corporation IS subject to Constitution / common law, doesn't have absolute "Right" to be arbitrary?
I love how you SovCits are such experts on the government, and the Constitution, but can't manage to tell the difference between the actual government and a business.
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stderric (profile), 10 Aug 2017 @ 12:08pm

Re:
it goes a bit beyond 'influencing public policy!'

Hell, it goes all the way to 'displaying public policy'.
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Anonymous Coward, 10 Aug 2017 @ 12:33pm

Re:
Sell/rent the Space to clear channel and give them the headache of selecting adds.
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Anonymous Coward, 10 Aug 2017 @ 12:48pm

Re: You're confusing me. So NOW a corporation IS subject to Constitution / common law, doesn't have absolute "Right" to be arbitrary?
A corporation may be a state actor for purposes of the First Amendment by virtue of delegated power granted by statute or custom.

So it doesn't matter whether WMAT is called a corporation, it's still subject to the First Amendment like Amtrak (Lebron v. National R.R. Passenger Corp., 513 U.S. 374 (1995)).
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Anonymous Coward, 10 Aug 2017 @ 1:11pm

Re: Re: You're confusing me. So NOW a corporation IS subject to Constitution / common law, doesn't have absolute "Right" to be arbitrary?
You are either a troll or un-American.

How can you be against the Constitution? If you don't like our Constitution, you are free to leave the country.
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Anonymous Coward, 10 Aug 2017 @ 1:34pm

I guess DC Metro never posts there rates on the walls, cause I'm sure they offend most everyone.
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Anonymous Coward, 10 Aug 2017 @ 1:42pm

Re: Re: Re: You're confusing me. So NOW a corporation IS subject to Constitution / common law, doesn't have absolute "Right" to be arbitrary?
Protip; it helps if you read AND understand what is being said before you reply.
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Anonymous Coward, 10 Aug 2017 @ 2:14pm

Re:
Say what you want about it, but it is a hell of a lot better than NYC subways.
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Anonymous Coward, 10 Aug 2017 @ 2:23pm

CaraFem, PETA, & the ACLU would be far more likely to have their displays accepted if they just went with the simple "OBEY" or "CONSUME" ads that everyone should be reminded of.
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Anonymous Coward, 10 Aug 2017 @ 2:44pm

Re:
It is also corporate propaganda, to keep the wheels of industry turning, to keep us consuming more and more junk destined for landfill, while our populations grow far beyond sustainable levels, and we continue to destroy our own habitat. Government was sold to corporations long ago. It's no suprise that they don't like to see competing narratives out there.
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Anonymous Coward, 10 Aug 2017 @ 2:56pm

Re: Re:
Waaa Waaaa Waaaa. What a wanker.
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Anonymous Coward, 10 Aug 2017 @ 2:58pm

Re: Faceless agency
Yeah, because bloggers/newspapers/etc can't figure out how to Google the WMTA. That would be way too difficult. They couldn't check Wikipedia where the leadership is listed. No, that isn't possible.

God, how lazy are you? Maybe a better question is how stupid are you?
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Larry, 10 Aug 2017 @ 2:58pm

Re: You're confusing me. So NOW a corporation IS subject to Constitution / common law, doesn't have absolute "Right" to be arbitrary?
Metro is a governmental agency created by the U.S. Congress.
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@b, 10 Aug 2017 @ 3:28pm

Policies are not laws?
"WMATA’s advertising policies"

The real drama behind when the Gov't agencies outsources this function to the lowest bidder.

cf. My local train operator has been privatised. And train ticketing is somebody else's problem. Who owns this station's walls?
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Anonymous Coward, 10 Aug 2017 @ 3:31pm

Re: Policies are not laws?
We the people? Graffiti artists? Some rich jerk?
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Anonymous Coward, 10 Aug 2017 @ 4:02pm

Let me get this straight
First Amendment: controversial content

Advertising murder robots: A-OK

http://www.huffingtonpost.com/2013/09/06/drone-ads-dc-metro_n_3880026.html
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Advocate (profile), 10 Aug 2017 @ 7:20pm

Re:
You mean like how i'd have to be not broke to promote your comment?
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orbitalinsertion (profile), 10 Aug 2017 @ 8:50pm

Re: Re:
Don't anyone tell him that the bulk of towns and cities in this country are incorporated.
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orbitalinsertion (profile), 10 Aug 2017 @ 9:00pm

Re: Let me get this straight
If "advertising" is an adjective rather than a verb, that is somehow scarier to me.
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tom (profile), 11 Aug 2017 @ 3:29am

The WMATA claims they ban advertisements “intended to influence members of the public regarding an issue on which there are varying opinions”.

Isn't the WHOLE point of advertising to influence public opinion on issues where there are varying opinions? Do I buy Cheer or Tide? Bran flakes or Count Chocula? Ford F150 or Tesla Model 3?

If they fully implemented their own policy, they would ban all ads.
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Coyne Tibbets (profile), 11 Aug 2017 @ 4:24am

All ads forbidden, sounds good to me
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.”

With that policy how could WMATA run any ad? For example, I might hate McDonald's, someone else might love it.That means there's a difference of opinion on McDonald's, and they are intended to influence the public, so MacDonald's ads are forbidden, right?
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Coyne Tibbets (profile), 11 Aug 2017 @ 4:38am

Re: All ads forbidden, sounds good to me
It occurred to me after I wrote this that maybe we should start a campaign to get all ads banned at WMATA. It would be like a game: find two people who disagree about the subject of an ad, then file a complaint that it violates WMATA policy. (The part of the rules about public influence applies to any ad.)
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Bergman (profile), 11 Aug 2017 @ 8:26am

Re:
If posting the actual laws of the nation is an attempt to influence public policy and thus forbidden, then wouldn't it follow that posting the rules for using the train station and/or riding the train also be against their rules?
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Anonymous Coward, 11 Aug 2017 @ 8:27am

Re: Re:
Techdirt != WMATA
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Huhh, 11 Aug 2017 @ 12:04pm

Gee....how about the default DC license plate slogan: TAXATION WITHOUT REPRESENTATION.

Note of potential conflict of interest: my law school professor for Political and Civil Rights was David Goldberger, the (Jewish) ACLU attorney who represented the neo NAZIs at Skokie.
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TWWREN, 11 Aug 2017 @ 12:15pm

WMATA Ads
This isn't complicated. WMATA does not have to accept ANY advertising. But once they do, they can't practice viewpoint discrimination.
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Atkray (profile), 11 Aug 2017 @ 4:18pm

Faulty assumption?
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.”

What if the ad was rejected because it is an issue on which there are varying opinions?

Seems there are at least 535 people in the immediate neighborhood who have the opinion that this should be discarded.
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Anonymous Coward, 10 Sep 2017 @ 9:15pm

Desar Mike, you're fantastic. I should pay you to write. If I had a billion dollars, you'd never have to work again. Wrong sentiment. Sorry. Well, you get the point. The first amendment is fine, but how can you get people to say what you want? You're doing a great job of that . Enough said. Till next time. -A supporter.
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Anonymous Coward, 10 Sep 2017 @ 9:19pm

Re:
A form of humblebrag, but one that resonates with us all.
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Anonymous Coward, 10 Sep 2017 @ 9:21pm

Re: Maybe...
This is an action item.
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Anonymous Coward, 10 Sep 2017 @ 9:26pm

Re: You're confusing me. So NOW a corporation IS subject to Constitution / common law, doesn't have absolute "Right" to be arbitrary?
Wow, you're performing surgery with a ballpoint pen.
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Anonymous Coward, 10 Sep 2017 @ 9:34pm

Re: Re:
Certainly, defending their own speech policy would violate it.
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Anonymous Coward, 10 Sep 2017 @ 9:37pm

Re:
Maybe they're returning to their honorable missing of defending pure speech and moving away from the arguably laudable but in my view distracting issue-leftism they were getting into over the last 15 years.

Techdirt should do an in-depth story on this.
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patrickmoran (profile), 20 Jun 2020 @ 8:24am

A CHALLENGE to a book is an attempt to delete or restrict that book, based on a person or group's objections. A BAN happens when the book is challenged successfully, and so the book is removed. proofreading and editing services
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lavern walter, 10 Jul 2020 @ 2:17am

You're all that I believe in
run 3 So as long as I live I love you
Will have and hold you
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