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.
