Written by Don Byrd
Affirming a trial court ruling, the D.C. Circuit Court of Appeals has rejected a bid to force the Washington Region Transit System to display religious ads. The Metro’s ban on issue-based ads including religious messages does not violate religious freedom rights under either the First Amendment or RFRA, the court ruled.
In 2015, the transit system instituted the ban to combat numerous problems caused by advertisements that featured divisive political, religious, and other issue-based messages. The Archdiocese of Washington filed suit, claiming the ban amounted to religious discrimination and seeking an injunction to halt the rule. Specifically, the Archdiocese pointed to “Guideline 12” of the rule which bars “[a]dvertisements that promote or oppose any religion, religious practice or belief.”
The appeals court’s ruling emphasized that ad space on public transit is not a traditional “public forum” in which all are entitled to make their voices heard. Because the ban regulates speech in a limited, non-public forum, the court found the ban to likely withstand scrutiny under both the Constitution and RFRA. Here is an excerpt from the court’s opinion:
WMATA’s decision in Guideline 12 was consonant with recognition by the Supreme Court that the government has wide latitude to restrict subject matters… in a nonpublic forum as long as it maintains viewpoint neutrality and acts reasonably. Far from undermining First Amendment values, the Court has understood the latitude afforded the government in regulating a non-public forum to promote these values.
In addition to preserving speech, the non-public forum doctrine… preserves the government’s ability to manage potentially sensitive non-public forums while cabining its discretion to censor messages it finds more or less objectionable. This constraint is especially important in the context of religious speech, given our cultural and constitutional commitment to religious liberty and the historic role of religiously motivated dissent from government orthodoxy in the development of free-speech rights. Because Guideline 12 prohibits religious and anti-religious ads in clear, broad categories, bureaucrats are not called upon to decide whether the ad criticizing the Catholic Church’s position on condom usage, or the anti-Islam Muhammad ad, or the Find a Perfect Gift campaign ad is the more “offensive,” or otherwise censor religious messages. WMATA’s subject-based prohibition abides by the Supreme Court’s recognition that “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.”
The Washington Post’s coverage of the transit system case indicates the archdiocese is considering an appeal.