On December 2023 we filed this lawsuit on behalf of WallBuilder Presentations, a Texas-based nonprofit organization that describes itself as “dedicated to presenting America’s forgotten history and heroes, with an emphasis on the moral, religious, and constitutional foundation on which America was built.” They submitted two advertisements to the Washington Metropolitan Area Transit Authority for display on Metrobuses, but WMATA rejected the ads on the ground that they violated its prohibition on ads “intended to influence members of the public regarding an issue on which there are varying public opinions.” It is also likely that the ads violated the WMATA’s prohibition on advertisements “that promote or oppose any religion, religious practice or belief.” The rejected ads are reproduced in the complaint and in the preliminary injunction motion, linked below.
We argue that WMATA’s advertising guidelines violate the First Amendment, which prohibits government agencies from discriminating against private speech based on its viewpoint or from applying rules that so vague they can’t be applied consistently. The lawsuit provides many examples of ads about controversial issues that WMATA has accepted, such as recent ads urging people to get Covid vaccinations and ads demanding transparency in hospital prices. WMATA has also accepted ads with religious content, such as an ad for The Book of Mormon musical, which harshly lampoons the Mormon Church and religion in general. The lawsuit claims that WMATA’s guidelines inevitably lead to discrimination based on advertisers’ viewpoints and are necessarily applied in an arbitrary and unreasonable manner.
The lawsuit asks the court to declare unconstitutional the WMATA guidelines prohibiting “issue ads” and ads with religious content and to order WMATA to accept and run the WallBuilders advertisements it had rejected and others that would violate these guidelines.
We are co-counsel in this case with First Liberty, a conservative Texas nonprofit legal organization that represents clients claiming infringements of their religious rights. The ACLU is often on the other side of cases from First Liberty, but we share the view that speakers with religious opinions have the same free speech rights as other speakers.
On May 21, 2024, the court granted our motion for a preliminary injunction and ordered WMATA to accept and run the WallBuilders advertisements it had unconstitutionally rejected. “Put simply,” the court explained, “the utterly undefined use of the phrase ‘[a]dvertisements intended to influence . . . regarding an issue on which there are varying opinions,’ coupled with the lack of any definitions or official guidance and WMATA’s inconsistent application of Guideline 9, makes clear that Guideline 9 is not a reasonable restriction on speech.”
WMATA did not appeal the preliminary injunction and WallBuilders’ ads ran on the outside of Metro Buses for several months. In June 2024, we moved for summary judgment. In November 2024 WMATA opposed that motion and filed its own motion for summary judgment, attaching new set of “internal procedures and interpretive aids” for its advertising guidelines, which it relied on to argue that the guidelines could no longer be deemed vague. In response, we have asked the court to allow us to take discovery about the development and meaning of these new “interpretive aids.”
This case raises similar issues to our earlier case, ACLU v. WMATA, which challenged some of the same advertising guidelines on behalf of other clients. That case remains open. Details are here.
