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As the Supreme Court has ruled repeatedly, WMATA didn’t have to accept political and religious advertisements, but once it did, it couldn’t then allow it for some organizations and not others, including WallBuilders.
First Liberty Institute filed suit this week against the Washington Metro Area Transit Authority (WMATA) on behalf of Wallbuilders, alleging that the WMATA engaged in viewpoint discrimination when it denied the Christian non-profit’s advertising requests.
WallBuilders, based in Aledo, Texas, says it is “dedicated to presenting America’s forgotten history and heroes, with an emphasis on the moral, religious, and constitutional foundation on which America was built.”
The organization created advertisements it hoped to run beginning in August 2023 on WMATA buses. The first advertisements featured two famous paintings: one was Henry Brueckner’s painting of George Washington praying at Valley Forge and the other was Howard Chandler Christy’s painting of the signing of the U.S. Constitution. As part of the advertising campaign, over the paintings were the words, “CHRISTIAN? TO FIND OUT ABOUT THE FAITH OF OUR FOUNDERS, GO TO WALLBUILDERS.COM.”
The suit claims that on June 12, 2023, WMATA emailed WallBuilders, wherein it stated that it had denied the non-profit’s advertisements for violating its Commercial Advertising Guideline 9, which bars advertisements “intended to influence members of the public regarding an issue on which there are varying opinions.” WallBuilders requested clarification of the guideline but claims to have received no response.
It then created a new advertising campaign featuring the paintings but without the text, instead only placing “VISIT WALLBUILDERS.COM” in the corner of the painting. WMATA also rejected this proposal under Guideline 9 with no further explanation.
WallBuilders’ suit alleges that WMATA’s guidelines are vague and it applies them in an “inconsistent, arbitrary, and unreasonable manner.” It claims that the guidelines themselves violate WallBuilder’s right to speak on such issues, particularly Guideline 9, as well as Guideline 12, which says that advertisements “that promote or oppose any religion, religious practice or belief are prohibited.”
The suit also claims that WMATA has not applied its guidelines equally, allowing many other viewpoints and even religious content to be displayed while subjectively denying WallBuilders’ advertisements.
The suit provides numerous examples of this double standard, including a 2017 advertisement for the musical “The Book of Mormon,” which not only disrespects Mormonism but religion in general.
Another example of an advertisement that was allowed was for The Catholic University of America, which included a link to the university’s website and statements about God.
Other advertisements featured controversial political views, such as one for the Social Justice School, a middle school that seeks to teach children to be political activists, and one for the University of Maryland, which read, “INCLUSION IS THE SOLUTION”.
In its subway stations, WMATA has been running advertisements for the abortion pill Plan B.
The suit also includes numerous examples of political statements and advertisements for political organizations that have been accepted by WMATA.
First Liberty Senior Counsel Jeremy Dys stated,
“Rejecting a faith-based advertising banner by labeling it an ‘issue ad,’ while accepting other ads such as those promoting a ‘Social Justice School,’ ‘Earth Day,’ and the highly controversial idea of term limits for Supreme Court Justices, is clearly hypocritical, discriminatory, and illegal. WMATA must support the freedoms provided in the First Amendment rather than silence Americans through censorship.”
First Liberty is joined in the suit by the American Civil Liberties Union (ACLU) and the Steptoe law firm. Arthur Spitzer, senior counsel at ACLU D.C., said in a statement,
“The case against WMATA is a critical reminder of what’s at stake when government entities exercise selective censorship. The First Amendment doesn’t play favorites; it ensures that all voices, regardless of their message, have the right to be heard.”
If the allegations are true, then this is a clear example of viewpoint and content discrimination. WMATA has allowed numerous advertisements expressing political views and religious viewpoints. Its denial of WallBuilders’ request, even after it modified its advertisement, shows that it simply opposes WallBuilders and its mission.
This case is an exact mirror of Harold Shurtleff v. City of Boston, wherein the city of Boston allowed flags to be flown outside City Hall such as LGBT pride flags and the Turkish flag featuring Islamic imagery but denied a Christian group’s request to fly the Christian flag.
In a 9-0 decision, the Supreme Court ruled that the city had discriminated based on viewpoint, with former Justice Stephen Breyer writing,
“Boston concedes that it denied Shurtleff’s request solely because the Christian flag he asked to raise ‘promot[ed] a specific religion.’ …Under our precedents, and in view of our government-speech holding here, that refusal discriminated based on religious viewpoint and violated the Free Speech Clause.”
Other cases that have resulted in similar opinions in favor of religious liberty include Carson v. Makin, Trinity Lutheran Church of Columbia, Inc. v. Comer, and Espinoza v. Montana Department of Revenue. In each of those, the Supreme Court ruled that the government cannot discriminate against religious groups in denying them a public benefit because of their religious viewpoint. For example in Espinoza the Court wrote, “State need not subsidize private education [b]ut once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
WMATA wasn’t required to allow political or religious speech to be displayed or advertised on its buses, but it did. And once it decided to grant that benefit to some organizations, it could not then deny the same opportunity to others, including WallBuilders. A federal judge will no doubt make that constitutional principle very clear to WMATA officials — if their legal counsel doesn’t do so first.
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