The ACLU and the WMATA: Offensive speech is still free speech despite rider complaints

banned ads by the wmataThe four ads banned by the WMATA.

Reader’s note:  Each image comprising the leading image is copyright of the respective organizations that created them.

The First Amendment came with the Bill of Rights and each part of it has been incorporated to the states via the Fourteenth Amendment.  Between the recent ruling on trademarks, the continued challenges to unconstitutional free speech codes on college campuses, and now this newest issue involving advertising on the Washington Metropolitan Area Transit Authority (WMATA), one has to wonder whether their policymakers forgot that they’re bound by the First Amendment since they are owned wholly by the government.

Quoting from ACLU Nation’s press release are the plaintiffs:

The ACLU, ACLU of D.C., and ACLU of Virginia are teaming up to represent a diverse group of plaintiffs whose ads were all branded as too hot for transit: the ACLU itself; Carafem, a health care network that specializes in getting women access to birth control and medication abortion; People for the Ethical Treatment of Animals (PETA); and Milo Worldwide LLC — the corporate entity of provocateur Milo Yiannopoulos.

First Amendment case law has long held that speech, no matter how offensive, provocative, or controversial is the essence of why the amendment was written.  As we’ve learned in college campus cases, in addition to the recent trademark ruling, the government cannot discriminate on the grounds of viewpoint.

It’s tempting to want to oppose their lawsuit (as one person has done) because Milo Yiannopoulous’ brand is based on being blatantly offensive, Carafem provides a service that many Americans don’t support, PETA goes to some extreme lengths in their mission to get people not to eat meat, and one often wonders if the ACLU has ever read the Constitution with some of the cases they’ve taken over time.

The inability of government to suppress controversial or offensive material shouldn’t imply that the government is advocating or encouraging its existence within their spaces.  It should always be open to advertising from anyone that has money to spend with the goal of spreading a message.  Often there is an advertising policy that contains the language “must reflect the mission and values of X.”  Where government is the owner, encouraging free speech is part of the mission, and the values include “allowing speech that may cross the line.”

With this line of thought, people will ask:

Does this mean that government agencies must allow advertising within its territory from sources that seek to disparage or undermine it?

The answer is no, and the reasoning is fairly simple:  Just because the government is restrained by the Constitution doesn’t mean it can’t have missions of its own.  After all, judicial scrutiny tests the balance of the government’s interest in a specific mission or goal with the right of the plaintiff or petitioner who claims a constitutional violation.

Justice White clarifies this in Perry Education Association v. Perry Local Educators Association:

Public property which is not, by tradition or designation, a forum for public communication is governed by different standards. We have recognized that the “First Amendment does not guarantee access to property simply because it is owned or controlled by the government.” United States Postal Service v. Council of Greenburgh Civic Assns., supra, at 453 U. S. 129. In addition to time, place, and manner regulations, the State may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view. 453 U.S. at 453 U. S. 131, n. 7. As we have stated on several occasions, ““[t]he State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.”‘” Id. at 453 U. S. 129-130, quoting Greer v. Spock, 424 U. S. 828, 424 U. S. 836 (1976), in turn quoting Adderley v. Florida, 385 U. S. 39, 385 U. S. 47 (1966).

An example of the government having a compelling interest can be found in Greer v. Spock referenced with respect to the constitutional duty of military bases to prepare civilians for a life in the military:

One of the very purposes for which the Constitution was ordained and established was to “provide for the common defence,” 8 and this Court over the years has on countless occasions recognized the special constitutional function of the military in our national life, a function both explicit and indispensable. 9 In short, it [424 U.S. 828, 838]   is “the primary business of armies and navies to fight or be ready to fight wars should the occasion arise.” United States ex rel. Toth v. Quarles, 350 U.S. 11, 17 . And it is consequently the business of a military installation like Fort Dix to train soldiers, not to provide a public forum.

While there is a lengthy dissent in the ruling about how the petitioners wanted to distribute the literature in the section of the base that is open to civilians, not restricted by base policies, the majority opinion still discusses how the government has the power to designate areas for specific purposes, and regulate what content may appear in those areas.

As for the WMATA, its mission is to transport passengers along a designated route in the safest and most efficient way possible.  Prohibiting controversial or provocative advertisements is a form of unreasonable suppression that bears no impact on their mission.

What kinds of advertisements could the WMATA ban?

Anything whose content falls outside of First Amendment protections, antithetical to the mission of the WMATA, posing a threat to the safety of riders even if the message is protected speech, and anything involving illegal activity.  Assuming the ACLU prevails, everything else should be fair game.

What about the decorum of the WMATA?

It’s not the government’s job to ensure an environment of decorum palatable to everyone considering there’s no way to please everyone that would walk through.  Their job is to protect life, liberty, and property while enforcing contracts, protecting the public from fraud and those that wish to take advantage of others, and providing for our military and those who have previously served.

While he was referring to Paul Cohen’s vest, Justice Harland said it best in Cohen v. California,

“Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us.”

Everyone reading this article is offended by something, but that doesn’t mean that the public sphere needs to be accommodating except where required by law.

Since the central issue in the ACLU’s lawsuit is whether the WMATA can ban “ads or advertisers deemed controversial by agency officials,” I predict that the answer will be no, and that the policy will be struck down on the grounds of not passing the strict scrutiny test that all free speech cases are subject to.

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