The American Freedom Defense Initiative hosted a contest in May 2015 that would award $10,000 for the best cartoon depicting the Prophet Muhammad. For most Muslims, any depiction of Muhammad, even if positive, is regarded as an insult to Islam.
Two gunmen opened fire on the event. Both were killed. After the event, Pamela Geller, the founder of the initiative, sought ad space with the Washington Metropolitan Area Transit Authority for the winning cartoon. She had previously paid for controversial ads in the New York subway that read: “In any war between the civilized man and the savage, support the civilized man.” In smaller letters, it added: “Support Israel. Defeat Jihad.”
In response to Geller’s ad request, WMATA amended its guidelines for commercial advertising to include Guideline 9, an issue-oriented advertising ban that prohibits “advertisements intended to influence members of the public regarding an issue on which there are varying opinions,” and Guideline 12, which prohibits “advertisements that promote or oppose any religion, religious practice or belief.” There are no regulations for the interpretation of these guidelines nor is there any published advertiser guidance.
Nine years later, all this is suddenly topical again. People are divided on the question of support for Israel — pro-Hamas sympathies find favor in our nation’s elite universities and even within the halls of Congress. At the same time, an unlikely alliance has formed to challenge WMATA’s advertising guidelines.
First Liberty, a Christian religious freedom advocacy organization, and the ACLU, firmly liberal in its sympathies, are jointly representing WallBuilders, a Texas-based nonprofit organization whose mission is “educating the nation concerning the Godly foundation of our country.”
Last year WallBuilders submitted posters meant for Metro buses. Its initial posters displayed the word “Christian?” imposed over paintings of America’s Founding Fathers. Beneath the header, it read, “To find out about the faith of our founders, go to wallbuilders.com” along with a QR code. WMATA rejected the group, citing its guidelines. WallBuilders then removed all the text except “visit wallbuilders.com” and resubmitted. Those redesigned ads were also rejected.
First Liberty and the ACLU argue that Guidelines 9 and 12 violate the First Amendment. Last week, Judge Beryl A. Howell, an Obama appointee, partially granted their request for a preliminary injunction, barring WMATA from enforcing Guideline 9 against WallBuilders. Howell, noting that WMATA has the flexibility to craft rules limiting the sort of speech that appears on its buses or stops, concluded that Guideline 9 is unreasonable and could not withstand scrutiny.
This isn’t the first time that WMATA’s ad guidelines have been challenged in court. In 2018, the Catholic Archdiocese of Washington sued the transit authority after it refused to run its “Find the Perfect Gift” ad on the outside of buses. The ad depicted a starry night and the silhouettes of three shepherds and sheep on a hill facing a bright shining star high in the sky. It also listed a website where visitors could find information such as Mass times at parishes across the District of Columbia and volunteer opportunities with Catholic Charities of DC.
As I wrote at the time, “Metro would allow any kind of Christmas-themed advertising, as long as it did not originate from the religious faith that gave us Christmas in the first place.”
Two judges on the U.S. Court of Appeals for the D.C. Circuit upheld WMATA’s ban on religious messages on buses and trains and in stations. During oral arguments, the third judge assigned to the panel, Brett Kavanaugh, saw things differently. He called Metro’s ban “pure discrimination,” but he was nominated to the Supreme Court before the decision was reached. That also meant he had to recuse himself from considering the archdiocese’s petition for review to the Supreme Court.
Although the court declined the archdiocese’s petition for review, it was over the strong objections of Justices Neil Gorsuch and Clarence Thomas. In addition to lamenting that “the full Court is unable to hear this case,” Gorsuch emphasized a key point: “The First Amendment requires governments to protect religious viewpoints, not single them out for silencing.”
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Apparently, the ACLU agrees. When it filed the WallBuilders lawsuit, ACLU Senior Counsel Arthur Spitzer explained, “We don’t understand why there should be a ban on religious advertisements. Religion is, after all, a point of view about the world.” In other words, at a time when our country seems almost incurably divided, foundational principles of freedom are still bringing people together.
Perhaps the ads that appear on public transportation don’t seem all that important. But stalwart advocates of civil rights know that, in such little things, basic freedoms are either safeguarded or lost.
Andrea Picciotti-Bayer is the director of the Conscience Project.