Judge rules transit agency erred in rejecting Christian nationalist group’s ads
Judge rules transit agency erred in rejecting Christian nationalist group’s ads
Organization had support of both ACLU and conservative advocates
So much for the claim that the American Civil Liberties Union supports only left-wing causes.
The ACLU won a significant victory this week when U.S. Circuit Court Judge Beryl A. Howell ruled that the District of Columbia transit agency violated the rights of a Christian nationalist1 organization by rejecting ads directing readers to the organization’s website.
Howell was appointed to the court by President Obama. The case is WallBuilder Presentations v. Randy Clarke. Clarke is the general manager and chief executive officer of the Washington Metropolitan Area Transit Authority.
The ACLU had joined First Liberty, a conservative religious-liberties organization, and the international law firm Steptoe LLC in filing a lawsuit last year seeking to require WMATA to accept four ads prepared by WallBuilders. In their original form, the ads, submitted in May of last year, showed an image, such as George Washington in prayer, and words that stated, in prominent lettering, “Christian?” and, in smaller lettering, “To find out about the faith of our Founders, go to wallbuilders.com.”
After the ad was rejected, WallBuilders presented stripped-down alternatives, such as one featuring only an image and, in small letters, a request to visit the WallBuilders website.
WMATA based its rejection on what the court referred to as Guideline 9, which prohibits “[a]dvertisements intended to influence members of the public regarding an issue on which there are varying opinions” and Guideline 12, which prohibits “[a]dvertisements that promote or oppose any religion, religious practice or belief.”
Tuesday’s ruling does not end the dispute; WMATA has the options of appealing or of rewriting its guidelines to satisfy Howell’s ruling.
While Howell found that WMATA has some right to restrict the advertising that is placed on its buses, to do so it must provide clear guidelines. Although WMATA has discretion, “this discretion must be coupled with objective, workable standards,” she wrote.
Howell agreed with WallBuilders’ claims that WMATA has previously allowed ads dealing with controversial issues. She cited three ads that WMATA had allowed even though they promote views that are controversial:
An Instacart ad promoting Plan B, an over-the-counter oral contraceptive, which ad invites viewers to “[b]uy Plan B without ever stepping foot in a store” and instructs viewers to “[s]can [a corresponding QR code] to order now.”
A public-service ad from D.C. Health encouraging people to get covid vaccinations.
A Power to the Patients ad (in a bus station rather than on the side of a bus) advocating for lower and more transparent hospital pricing.
Attorney Jeremy Dys of First Liberty was delighted with the ruling: “The First Amendment grants all Americans the right to express their point of view, religious or secular,” he said in a press release. “Rejecting a faith-based advertising banner by labeling it an ‘issue ad,’ while accepting other ads such as those promoting a ‘Social Justice School’ and ‘Earth Day’ is clearly hypocritical, discriminatory, and illegal. We are grateful that the court recognized that WMATA unconstitutionally rejected WallBuilders ads and look forward to continuing to fight for complete victory.”
Similar thoughts were expressed by Arthur Spitzer, senior counsel for the ACLU’s Washington, D.C., chapter: “We are pleased that this ruling moves us one step closer to ending WMATA’s arbitrary censorship of speech about public issues,” he said. “In a democracy, the government has no right to pick and choose which viewpoints are acceptable. This case is about expanding everyone’s freedom to express their views without unreasonable government interference.”
The transit agency has yet to issue a formal response to the ruling.
For the purposes of this article, Christian nationalism is defined a belief that the Christian faith was instrumental in the divinely inspired founding of the United States, that the government should follow Biblical values, and that popular understandings about the separation of church and state are incorrect.