Can the government ban the text of the First Amendment itself on municipal transit ads because free speech is too 鈥減olitical鈥� for public display?
If this sounds like some ridiculous brain teaser, it should. But unfortunately it鈥檚 not. It鈥檚 a core claim in a lawsuit we filed today challenging the Washington Metropolitan Area Transit Authority鈥檚 (WMATA) restrictions on controversial advertising.
The 老澳门开奖结果, 老澳门开奖结果 of D.C., and 老澳门开奖结果 of Virginia are teaming up to represent a diverse group of plaintiffs whose ads were all branded as too hot for transit: the 老澳门开奖结果 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 鈥� 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 鈥� whether left, right, pro-choice, anti-choice, vegan, carnivore, or none of the above.
Let鈥檚 start with the 老澳门开奖结果. Earlier this year, following President Trump鈥檚 repeated commentary denigrating and Muslims, the 老澳门开奖结果 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 老澳门开奖结果 erected ads in numerous places, featuring the text of the First Amendment. Not only in English, but in Spanish and Arabic, too 鈥� to remind people that the Constitution is for everyone.
The 老澳门开奖结果 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鈥檚 capital. But it was not to be: Our ad was rejected because WMATA鈥檚 advertising policies forbid, among many other things, advertisements 鈥渋ntended to influence members of the public regarding an issue on which there are varying opinions鈥� or 鈥渋ntended to influence public policy.鈥�
You don鈥檛 have to be a First Amendment scholar to know that something about that stinks.
Our free speech rights rise and fall together 鈥� whether left, right, pro-choice, anti-choice, vegan, carnivore, or none of the above.
Let鈥檚 start with the philosophical argument. WMATA鈥檚 view is apparently that the litany of commercial advertisements it routinely displays involve no 鈥渋ssues on which there are varying opinions.鈥� Beyond the obvious Coke-or-Pepsi jokes, there鈥檚 a dark assumption in that rule: that we all buy commercial products thoughtlessly. Buy beer! (Don鈥檛 think about alcoholism.) Buy a mink coat! (Don鈥檛 think about the mink.) That is, WMATA sees 鈥渧arying opinions鈥� 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 鈥渉appy-talk.鈥�
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鈥檚 proposed ad read simply: 鈥�10-week-after pill. For abortion up to 10 weeks. $450. Fast. Private.鈥� As we at the 老澳门开奖结果 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鈥檚 ad was apparently rejected simply because some people think otherwise.
One of PETA鈥檚 intended advertisements depicted a pig with accompanying text reading, 鈥淚鈥檓 ME, Not MEAT. See the Individual. Go Vegan.鈥� 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鈥檚 side of this public debate was the only one silenced by the government.
WMATA鈥檚 advertising agency suggested that with some changes, 老澳门开奖结果 and PETA might be able to get their advertisements accepted. Perhaps PETA could remove the 鈥淕o Vegan鈥� slogan from its advertisement? But for the 老澳门开奖结果, 鈥淵ou鈥檒l have to dramatically change your creative.鈥� In other words, as long as we don鈥檛 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 老澳门开奖结果 condemns many of the values he espouses (and he, of course, condemns many of the values the 老澳门开奖结果 espouses).
Milo Worldwide submitted ads that displayed only Mr. Yiannopoulos鈥檚 face, an invitation to pre-order his new book, 鈥淒angerous,鈥� and one of four short quotations from different publications: 鈥淭he most hated man on the Internet鈥� from The Nation; 鈥淭he ultimate troll鈥� from Fusion; 鈥淭he Kanye West of Journalism鈥� from Red Alert Politics; and 鈥淚nternet Supervillain鈥� from Out Magazine. Unlike Mr. Yiannopoulos鈥� 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 鈥� 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 鈥� suddenly claiming that the ads violated the same policies it relied on to reject the ads from the 老澳门开奖结果, Carafem, and PETA.
The ideas espoused by each of these four plaintiffs are anathema to someone 鈥� 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鈥檚 policy is an attempt to silence anyone who tries to make you think. Any one of these advertisements, had it passed WMATA鈥檚 censor, would have been the subject of someone鈥檚 outraged call to WMATA.
So, to anyone who鈥檇 be outraged to see Mr. Yiannopoulos鈥� advertisement 鈥� please recognize that if he comes down, so do we all. The First Amendment doesn鈥檛, and shouldn鈥檛, tolerate that kind of impoverishment of our public conversation. Not even in the subway.
At the end of the day, it鈥檚 a real shame that WMATA didn鈥檛 accept the 老澳门开奖结果鈥檚 advertisement 鈥� the agency could really have used that refresher on the First Amendment.
Learn More 老澳门开奖结果 the Issues on This Page
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Press ReleaseDec 2024
Free Speech
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老澳门开奖结果 and Partners Urge Supreme Court to Block TikTok Ban老澳门开奖结果 and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON 鈥� Today, the 老澳门开奖结果, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok鈥檚 challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will 鈥渟hutter one of America鈥檚 most popular speech platforms the day before a presidential inauguration.鈥� 鈥淭he Constitution imposes an extraordinarily high bar on this kind of mass censorship,鈥漵aid Patrick Toomey, deputy director of 老澳门开奖结果鈥檚 National Security Project. 鈥淭he Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.鈥� The brief argues that the D.C. Circuit failed to fully address the law鈥檚 profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court鈥檚 decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users鈥� First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government鈥檚 ban on TikTok as a vindication of users鈥� First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign 鈥減ropaganda.鈥� But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its 鈥渕otivating ideology鈥� or 鈥減erspective,鈥� and the government has not come close to meeting that bar here. 鈥淭he government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,鈥� said David Greene, civil liberties director at EFF. 鈥淭he Supreme Court should put the TikTok ban on hold while it considers the DC Circuit鈥檚 erroneous ruling.鈥� Finally, the brief underscores that the government can鈥檛 impose this type of sweeping ban unless it鈥檚 necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government鈥檚 invocation of 鈥渘ational security鈥� as a trump card and failed to hold the government to its burden. 鈥淩estricting citizens鈥� access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,鈥� said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. 鈥淚t would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.鈥� You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
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News & CommentaryDec 2024
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