The rejected advertisements from the four plaintiffs of the ACLU of D.C.’s case. (Image courtesy of the ACLU of D.C.)

The American Civil Liberties Union of D.C. is suing the Metro system over its advertising guidelines, with plaintiffs that run the ideological gamut, but they have one thing in common: the transit agency has rejected their ads.

“Everyone’s points of view ought to have equal access,” says Arthur Spitzer, the legal director of the ACLU of D.C. and the lead counsel on the case. The suit argues that Metro’s ban of “issue-oriented” ads is a violation of the First Amendment and is applied inconsistently. “Metro doesn’t recognize that commercial ads also present a viewpoint and deal with things to which people disagree.”

The four plaintiffs in the case are women’s clinic Carafem, alt-right provocateur Milo Yiannopoulos, People for the Ethical Treatment of Animals, and the ACLU itself. All of them have had advertisements rejected outright or taken down by Metro, which cited its advertising guidelines. The ACLU’s rejected ad, ironically enough, featured the First Amendment.

“WMATA intends to vigorously defend its commercial advertising guidelines, which are reasonable and view-point neutral,” Metro said in a statement.

The guidelines prohibit advertisements “intended to influence members of the public regarding an issue on which there are varying opinions,” among other limitations.

They were implemented back in 2015, after anti-Muslim activist Pamela Geller submitted a controversial ad to WMATA that would have depicted the prophet Muhammed (most Muslims say images of the prophet are forbidden). The agency previously rejected an advertisement equating Muslims with savages, a decision that did not hold up in court. When Metro did run those ads, it did so with a disclaimer.

Spitzer is fine with the disclaimer, but says the ads should have run in the first place. “They express a point of view about a political issue and that’s what free speech is about.” he says.

Metro makes about $20 million annually through its ad revenue. A third-party vendor called OutFront Media manages the sales and flags ads it thinks will violate the guidelines. But ultimately, Metro makes the final decision through a committee made up of the agency’s general council and marketing team.

That’s the problem, says Spitzer. “When we’re talking about the First Amendment, and someone says ‘Eeeh that looks okay to me,’ or ‘That doesn’t look okay to me,’ that’s called viewpoint discrimination.”

As an example, the lawsuit brings up the rejection of PETA ads that show a pig and say, “I’m me, not meat.” Metro has run advertisements for pork products, though. “That’s sending a message to eat pork,” Spitzer says.

The animal rights organization says that it’s not just food advertisements that make Metro’s stance hypocritical. “WMATA won’t run PETA ads but it has no problem running ads for fast food, fur coats, circuses, and other corporations that abuse and kill millions of animals every year,” says Gabe Walters, counsel and manager of legislative affairs for the PETA Foundation.

Spitzer says that the ACLU of D.C. has “basically been thinking since the time that the policy changed, maybe we should do something about it.” Then, they observed as one by one, the plaintiffs had their ads rejected due to the guidelines. “With those four examples, it seemed to us we had an interesting range of different viewpoints and different clients—enough to make the case effectively that what Metro is doing here is not sensible or Constitutional.”

The lawsuit calls for Metro to declare its guidelines unconstitutional and agree to accept and run the advertisements from the four plaintiffs. Yiannopoulos also seeks monetary relief over lost book sale revenue.

“The ACLU could not more strongly disagree with the values that Milo Yiannopoulos espouses, but we can’t allow the government to pick and choose which viewpoints are acceptable,” said ACLU senior staff attorney Lee Rowland.

Yiannopoulos dinged the organization right back. “The ACLU has backed plenty of bad causes in the past, but they are also often in the right, such as today,” he wrote in an email. “I’m joined in this lawsuit by fellow plaintiffs including pharmaceutical villains and vitamin-deficient vegans, but I’m no stranger to odd bedfellows. Free speech isn’t about only supporting speech you agree with, it is about supporting all speech—especially the words of your enemies.”

Yiannopoulos’ ad, a picture of his face with the words “The Most Hated Man On The Internet” and the title of his self-published book, immediately drew condemnation from riders when it went up in July.

“[Milo] can say what he wants, but he’s not entitled to a platform and, advertising revenue be damned, WMATA does not have to advertise hate speech,” one Metro rider told DCist before the ads were taken down the next day.

Spitzer says that principle is flawed. “People get upset from all kinds of things. This was just a photograph of his face,” he says. “You look at the front page of The Washington Post and you may see the face of someone you don’t like. We can’t operate our society on the principle that no one should be exposed to something that makes them uncomfortable.”

Walters, of PETA, says that First Amendment cases often make strange bedfellows. Indeed, the animal rights group is partnering with a man who bathed in pigs’ blood for an art show in New York City. “We don’t have to agree w the co-plaintiffs about everything,” Walters says. “That’s not what this case is about.”

Melissa Grant, the vice president of Carafem, a clinic that provides abortion pills in Northwest D.C., says that, while it’s surprising to be on the same side of an issue as Yiannopoulos, it will make their case stronger.

“We at Carafem are not a political organization. We’re a healthcare organization. We fall on one side of [the abortion] issue and are viewed as controversial in many circumstances and we are constantly fighting that battle,” she says. “The idea that people in this country who disagree can come together for certain ideals, like free speech, gives me hope.”

After Metro denied Carafem’s $23,520 advertising campaign, the clinic spent the money on a billboard truck driving around D.C. for a few days in January with the rejected ad and the words “Banned By Metro! See the abortion pill ad Carafem wasn’t allowed to run.”

But Grant says that, if their case is successful, the clinic will figure out how to pay for the ad campaign. “If we’re allowed the opportunity for advertising, we will find a way to take it,” she says. “Metro reaches millions of people and we lost that chance at the beginning of the year.”

ACLU et al. v. Washington Area Metropolitan Transit Authority by Rachel Kurzius on Scribd

Previously:
Metro Takes Down Its Milo Yiannopoulos Ads
Metro Admits Faith-Based Adoption Ads On Buses Violate Policy
After Metro Rejected Its Ads, Women’s Clinic Parked Billboard Outside WMATA Headquarters
Pamela Geller Isn’t Thrilled After Metro Board Bans Issue-Oriented Ads
Cost to Metro of Resisting Anti-Muslim Ads: $35,000

This post has been updated.