WASHINGTON (CN) — A federal judge ruled Tuesday in favor of a Christian nonprofit in a First Amendment suit against Washington’s transit authority, blocking a policy that prohibited the group’s ad campaign.
The suit, brought by Texas-based nonprofit WallBuilders in December 2023, challenged a decision by the Washington Metropolitan Area Transit Authority to reject an advertising campaign seeking to promote the founders’ Christian faith.
WallBuilders claimed two of the transit authority’s policies, Guidelines 9 and 12, violated its First Amendment rights.
U.S. District Judge Beryl Howell, a Barack Obama appointee, found the most issue with Guideline 9, specifically its vague language and the transit authority’s seeming lack of consistency in applying it.
Guideline 9 prohibits advertisements intended to influence people on an issue where there are “varying opinions.” Guideline 12 prohibits advertisements that promote or oppose any religion, practice or belief.
Howell pointed to three examples of approved ads cited by WallBuilders: an Instacart ad promoting the Plan B contraceptive pill; a public service ad from D.C. Health promoting Covid-19 vaccines; and a Power to the Patients ad advocating for lower and more transparent hospital pricing.
She found that each example related to an issue with “varying opinions,” yet were still approved by the transit authority.
While buses, trains and Metro stations count as a nonpublic forum — a standard that provides the most flexibility for government regulations of speech compared to traditional and designated public forums — the group argued the restrictions are not viewpoint-neutral and are unreasonable.
“To be clear, WMATA is permitted to retain considerable discretion in evaluating the intent and purpose of an ad, but this discretion must be coupled with objective, workable standards,” Howell wrote in her opinion.
The guideline's “utterly undefined” references to issues with varying opinions and the lack of official guidance from the transit authority, Howell said, makes Guideline 9 a clearly unreasonable restriction on speech.
WallBuilders sought to place two advertisements throughout the transit system: Henry Bruekner’s painting of George Washington kneeling to pray in Valley Forge and Howard Chandler Christy’s painting of the Founders signing the Constitution at Independence Hall. Text superimposed over the either image read, “Christian? To find out about the faith of our Founders, go to wallbuilders.com."
A review panel, made up of the transit authority’s marketing director and two attorneys, evaluated the proposed ads and concluded they — and the group’s website a QR code on the ad linked to — contained “clear advocacy” with statements urging visitors to learn about the “nation’s Godly heritage” and its “biblical foundation.”
Following the panel’s denial, WallBuilders requested guidance to comply with the guidelines but received no response. The group then tried resubmitting the ads without the text, only the images and “Visit wallbuilders.com,” but they were again rejected.
The group then asked Outfront, the advertising agency that administers the ads on behalf of the transit authority, which explained the issue was more about the content of viewpoints on the group’s website and suggested the QR code and website address be removed. WallBuilders declined, arguing it would negate any promotional and educational benefits that spurred the ad campaign, opting instead to sue December 2023.
On the issue of Guideline 12, Howell noted that WallBuilders has standing to challenge its constitutionality, but she was bound by D.C. Circuit precedent set in Archdiocese of Washington v. WMATA to foreclose any claims.
In that case, the appellate court held that Guideline 12 was viewpoint-neutral and reasonable, in light of security concerns that arose from controversial ads and the transit authority’s “compelling interest” in providing a safe and reliable service to a multicultural, multiethnic and religiously diverse ridership.
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