WMATA Keeps Christ out of Christmas

Suit: Dysfunctional transit agency rejects ad celebrating religious holiday because it is too religious

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November 28, 2017

The Washington, D.C., transit system rejected a Christmas ad for being too Christian, according to a lawsuit filed on Tuesday.

The Archdiocese of Washington, D.C., is suing the Washington Metropolitan Area Transit Authority (WMATA) over its restrictive advertising guidelines, which the Catholic Church sees as an infringement on its free speech and exercise. The ad features silhouettes of shepherds en route to visit the infant Christ with the message "Find the Perfect Gift," and was going to be placed on the exterior of city buses. Archdiocese spokesman Ed McFadden said the ad was designed to remind people that Christmas—the annual celebration of Christ's birth—is a religious holiday.

"Under WMATA's guidelines, if the ads are about packages, boxes, or bags—if Christmas comes from a store—then it seems WMATA approves. But if Christmas means a little bit more, WMATA plays Grinch," McFadden said in a statement.

The suit is the latest controversy for the embattled transit agency, which operates the second busiest subway system on the country. In 2016, the Federal Transit Administration threatened to shutter its rail lines if the agency did not take "urgent action" to address safety issues. The threat spurred a year-long update to the system that cost $133 million and disrupted commutes through 2016 and parts of 2017. An agency spokesman said in a statement that the rejection is in line with its advertising guidelines, which apply to all entities no matter their religion.

"WMATA changed its advertising policy to prohibit issue-oriented advertising, including political, religious and advocacy advertising," an agency spokeswoman said. "The ad in question was declined because it is prohibited by WMATA's current advertising guidelines."

Archdiocese attorney Paul Clement of Kirkland & Ellis LLP said the system's prohibition on advertising from religious entities represented a discriminatory litmus test. He said the government should not allow for robust speech on its advertising platforms while at the same time denying access to certain entities over their messaging. The suit seeks injunctive relief for the archdiocese to advertise in the system and challenges WMATA to revise its guidelines.

"WMATA's rejection of the Archdiocese's speech amounts to a violation of the First Amendment, plain and simple," Clement said in a statement. "We are bringing this complaint to vindicate the basic principle that the government may not allow a wide variety of speech in a forum and then turn around and deny the Archdiocese access because of the religious nature of its speech."

WMATA has grappled with religious or "issue-oriented" advertising in recent years. In 2015 its board voted on a temporary ban blocking such ads from running on the system—a ban which cost the cash-strapped system $1.6 million in revenue. It polled riders and found 58 percent objected to advertisements that might spark a strong reaction or vandalism from those who object. The agency, which operates rail and bus systems, singled out pro-life and religious advocacy in a report.

"Those opposed to running issues ads that cause strong reactions (such as religious extremism, right to life and political advertising) also find fewer issues acceptable than those that favor running such ads," WMATA said in a report.

The agency saw its prohibition on religious speech as a way to prevent discrimination.

"After considering input from riders and other stakeholders, WMATA staff recommend continuing the prohibition of issue-oriented and advocacy advertising indefinitely, as it may provoke community discord and create concern about discriminatory statements on the system," the report said.

Kim Fiorentino, general counsel to the archdiocese, said its guidelines have instead served to discriminate against religious groups.

"We believe rejection of this ad to be a clear violation of fundamental free speech and a limitation on the exercise of our faith," she said in a release.

The full suit can be found here.