Archdiocese of Wash. v. Wash. Metro. Area Transit Auth.
897 F.3d 314 (2018)
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Rule of Law:
A government entity that has established a non-public forum may prohibit advertisements on an entire subject matter, including religion, so long as the restriction is reasonable and viewpoint-neutral.
Facts:
- For years, the Washington Metropolitan Transit Authority (WMATA) sold commercial advertising space and accepted ads on a wide range of subjects.
- Beginning around 2010, WMATA received frequent complaints from riders, employees, and officials about issue-oriented ads, including those concerning religion and other controversial topics.
- These complaints led to safety concerns, including fears of violence related to an anti-Islam ad, as well as vandalism and significant administrative burdens.
- In November 2015, WMATA's Board of Directors formally closed its advertising space to all issue-oriented ads, including political, religious, and advocacy ads.
- As part of this change, WMATA adopted Guideline 12, which states: 'Advertisements that promote or oppose any religion, religious practice or belief are prohibited.'
- The Archdiocese of Washington created an advertisement for its 'Find the Perfect Gift' campaign, which depicted a religious scene of shepherds and a shining star, and was intended as part of its evangelization efforts during Advent.
- The Archdiocese sought to place this ad on the exterior of WMATA's buses.
- WMATA rejected the ad, citing Guideline 12 on the grounds that it depicted a religious scene and sought to promote religion.
Procedural Posture:
- The Archdiocese of Washington filed a complaint against WMATA in the U.S. District Court for the District of Columbia.
- The complaint sought declaratory and injunctive relief, alleging violations of the First Amendment, the Fifth Amendment, and the Religious Freedom Restoration Act (RFRA).
- The Archdiocese filed a motion for a temporary restraining order (TRO) and a preliminary injunction to compel WMATA to run its advertisement.
- The district court (the court of first instance) denied the Archdiocese's motion for a TRO and preliminary injunction.
- The Archdiocese, as appellant, appealed the denial to the U.S. Court of Appeals for the D.C. Circuit.
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Issue:
Does a public transit authority's policy prohibiting advertisements that promote or oppose any religion, religious practice, or belief violate the First Amendment's Free Speech Clause when applied in a non-public forum?
Opinions:
Majority - Rogers, Circuit Judge
No, the policy does not violate the First Amendment. In a non-public forum, the government may restrict advertising access as long as the restrictions are reasonable and viewpoint-neutral. WMATA's bus advertising space is a non-public forum, consistent with Supreme Court precedent in Lehman v. City of Shaker Heights. Guideline 12 is a permissible subject-matter restriction, not impermissible viewpoint discrimination, because it prohibits the entire topic of religion, both pro- and anti-religious messages. This distinguishes the case from precedents like Rosenberger, where religious viewpoints on otherwise permissible subjects were excluded. The court rejected the argument that by allowing commercial Christmas ads, WMATA permitted a 'secular' viewpoint on the holiday; such ads merely sell products and do not invite debate on the meaning of Christmas. The restriction is also reasonable, as it was adopted to address legitimate concerns about safety, vandalism, and avoiding controversy, which align with WMATA's core mission of providing safe and reliable transportation.
Concurring - Wilkins, Circuit Judge
The policy is constitutional. The distinction between a permissible subject-matter restriction and an impermissible viewpoint-based restriction is a 'load-bearing wall in the First Amendment's structure.' Guideline 12 is a classic, neutral subject-matter restriction because it prohibits ads that 'promote or oppose' religion, thus not taking sides on the topic. The Archdiocese's argument, if accepted, would collapse this crucial distinction by allowing any speaker to retroactively redefine the 'subject matter' to claim viewpoint discrimination. This would force the government into an untenable all-or-nothing choice: either open non-public forums to all speech or close them entirely, which would ultimately be detrimental to First Amendment values.
Analysis:
This decision reinforces the government's authority to regulate speech in non-public forums by drawing a clear line between subject-matter and viewpoint discrimination. It provides government entities, particularly transit authorities, with a clear legal basis to avoid controversy by closing their ad spaces to entire categories of divisive speech, like religion and politics. By affirming that a complete ban on a topic is not viewpoint discrimination, the ruling solidifies the framework from Lehman and Cornelius, ensuring that government property does not have to become a battleground for public debate. Future cases will likely use this analysis to determine whether a challenged regulation truly targets a viewpoint or permissibly excludes an entire subject.
