On August 9, 2017, the American Civil Liberties Union (ACLU) sued the Washington Metropolitan Area Transit Authority (WMATA) after four advertisements were rejected as impermissible under the transit authority’s advertising guidelines. Three of the advertisements respectively promoted Milo Yiannopoulos’ book, vegan eating habits, and abortion medication. The fourth ad, sponsored by the ACLU, featured the text of the First Amendment in three languages. The suit seeks approval by WMATA for the advertisements as well as financial relief for Yiannopoulos.
Arthur Spitzer, the legal director of the ACLU’s Washington, DC, office, serves as lead counsel in this case. A graduate of Yale Law School, Spitzer said “This case highlights the consequences of the government’s attempt to suppress all controversial speech on public transit property,” according to a press release from the ACLU. “The First Amendment protects the speech of everyone from discriminatory government censorship, whether you agree with the message or not.” Additionally, Spitzer told The New York Times that, “It’s ironic that a government agency, which is bound by the First Amendment, wouldn’t put up the First Amendment.”
Milo Yiannopoulos is a controversial national figure and a leader within the alt-right movement. His speaking engagements have faced protests on college campuses, most notably at the University of California, Berkeley. Yiannopoulos’ book, titled “Dangerous,” was released on July 4, 2017. The memoir sparked controversy after publisher Simon & Schuster signed a $250,000 book deal with Yiannopoulos in December 2016, Newsweek reports. Two months later, the publisher backed out of the agreement after objectionable comments by Yiannopoulos regarding children and sexuality surfaced. Yiannopoulos self-published the book and sued Simon & Schuster for $10 million, according to Newsweek. Regarding his case against WMATA, Yiannopoulos said, “…It is not for the government to chase so-called ‘controversial’ content out of the public square.” He added, “By the way, my ads weren’t even controversial. They were literally just pictures of my face.”
In November 2015, WMATA revised its policies regarding which advertisements are permitted on subways, buses, and other Metro facilities. The new guidelines prohibit “advertisements intended to influence members of the public regarding an issue on which there are varying opinions…” Also prohibited are advertisements “intended to influence public policy…” These restrictions were adopted after anti-Muslim advertisements inspired outrage in 2015, according to the The Washington Post. In March 2017, U.S. District Court for the District of Columbia ruled on the rejection of these advertisements, finding the restriction on “issue-oriented advertising” to be constitutional.
Operating under these guidelines, WMATA rejected several advertisements in 2017. These included an advertisement from People for the Ethical Treatment of Animals (PETA) urging consumers to “Go Vegan,” and an advertisement for abortion medication from Carafem, a nonprofit health care network that specializes in providing women access to birth control and medical abortion. WMATA had previously accepted advertisements from Carafem, but rejected an advertisement for a “10-Week-After Pill” on the grounds that it was “issue-oriented” and “controversial,” according to the ACLU. Additionally, an advertisement from the ACLU displaying the text of the First Amendment in English, Spanish, and Arabic was rejected. Finally, WMATA removed an advertisement promoting Milo Yiannopoulos’ book after receiving complaints from riders. The advertisement displayed Yiannopoulos’ face alongside quotes from journalists, but it was rejected for being too controversial, the ACLU said.
Joining with the three other entities whose advertisements were affected, the ACLU filed suit against WMATA in U.S. District Court for the District of Columbia, alleging that the restrictions placed on advertising violated the First Amendment. The ACLU claims that WMATA’s ban on controversial ads is inconsistently applied, noting that while WMATA “rejected PETA’s ad for a vegan diet, it accepted an ad from a restaurant showing a tasty dish and labeled ‘PORKADISE FOUND.’ At the same time it tore down ads for Yiannopoulos’ book, it was running ads for a movie that showed four women ogling a male stripper.”
“In its zeal to avoid hosting offensive and hateful speech, the government has eliminated speech that makes us think, including the text of the First Amendment itself,” said senior staff attorney Lee Rowland in an ACLU press release. She continued, “The ACLU could not more strongly disagree with the values that Milo Yiannopoulos espouses, but we can’t allow the government to pick and choose which viewpoints are acceptable.”
Specifically, the lawsuit asks the Court to compel WMATA to accept the advertisements of the four plaintiffs. It also posits that four sections of WMATA’s advertising guidelines are “unconstitutional because they violate free speech rights, are arbitrarily enforced, and are unconstitutionally vague.” Finally, ACLU filed a motion seeking monetary relief on behalf of Yiannopoulos to replace revenue from book sales that he claims he lost from the prohibition of the advertisements.
WMATA, however, defends its advertising guidelines as “reasonable and view-point neutral,” according to a statement provided to the Times. Since becoming a “nonpublic forum” in 2015, WMATA has enforced certain commercial advertising guidelines that prohibit political content.
However, some of the affected organizations reject the notion that their ads were political in nature. “We’re not trying to sway people,” Carafem’s chief operating officer told the Times. “We were trying to let people who wanted our services know where they can get it.”
“These types of First Amendment cases make strange bedfellows,” the manager of legislative affairs for PETA told the Times. “The government cannot pick and choose who gets to speak based on their viewpoint, no matter how controversial.”
Similarly, Yiannopoulos noted the unusual alliance formed by the four plaintiffs. “I think PETA is deranged and I have been dismayed, to put it lightly, by positions the ACLU has taken in the past,” he told the Times regarding the case against WMATA. “But on this issue we are all united…,” he continued
The ACLU received sharp criticism for including Yiannopoulos as a plaintiff in the case. Chase Strangio, a staff attorney at the ACLU, tweeted that he did not support the organization’s decision to represent Yiannopoulos, writing, “Milo’s actions may not meet the legal definition of incitement but he acts in a world in which people already feel authorized to demean, attack and dispose of the bodies and lives of so many people… He is vile. And I am sorry for any platform and validation that he receives.” The ACLU permits employees to speak freely about their personal opinions, so long as they make clear that they are not speaking on behalf of the organization, reports The Washington Post.
Many former supporters of the ACLU used Twitter to criticize the organization’s representation of Yiannopoulos, according to the Post. One Democratic congressional candidate in Massachusetts tweeted, “I understand the ACLU has to protect the worst speech, but the day they work for Milo is the day I decide to never give them another dime.” She later deleted the tweet, the Post noted.
Spitzer responded to the criticism by saying, “We did expect some unhappiness,” according to the Post. “We always get some when we defend unpopular people. When we recently supported the Redskins’ right to keep their registered trademarks, we got similar reactions, internally and externally. When I went to court on behalf of the KKK in 1990 … we got plenty.” Spitzer’s reference to the Washington Redskins, a team in the National Football League, involves the legal battle over whether its copyright registrations should be nullified on the grounds that its name is allegedly offensive to Native Americans. In March 2015, the ACLU filed an amicus brief defending the Redskins’ right to use the name under the First Amendment.
The Post’s editorial board published an editorial partially supporting the ACLU, but drawing a distinction between advertisements that promote ideas and those that promote products. The Post contends that while WMATA may prohibit advertisements that promote ideas, “it should approve advertisements for all products and services that meet WMATA’s other guidelines, no matter how controversial the views behind those products may be.” The editorial is sympathetic to the cases of Yiannopoulos and Carafem, alleging that WMATA’s actions may constitute viewpoint discrimination.
Prepared by Will Haskell ’18
September 18, 2017