DC Archdiocese Sues After Metro Bans Its Christmas Ads

DC Archdiocese Sues After Metro Bans Its Christmas Ads

Several aspects of Metro’s policy against religious ads and its implementation leave it ripe for defeat solely on free speech grounds.
Margot Cleveland
By

Keep the cash in Christmas. That was the message the Catholic Archdiocese of Washington received from the D.C. Metropolitan Transit Authority when the archdiocese attempted to buy ad space on Metro buses for its “Find The Perfect Gift” campaign.

The archdiocese had previously placed ads for its Lenten “The Light Is On For You” campaign on the back of 85 Metro buses. But on October 24, 2017, when Edward McFadden, the archdiocese’s secretary for communications, attempted to secure space for the Christmas campaign scheduled to start with Advent in early December, he was told the proposed advertisement would violate Metro guidelines.

According to McFadden, Jack Costello, the representative for the third-party vendor responsible for Metro bus advertisements, “suggested the Archdiocese consider modifying its advertisement so that it might comply with [the Metro] guidelines.” One idea Costello floated: Adding a commercial purpose, such as selling goods or services, as that would increase the chances of the ad complying.

Religious Speech Is Too Offensive For Metro

Those guidelines were amended after the Metro Board of Directors approved a resolution barring “issue-oriented advertising,” which included political, advocacy, and religious advertising. Under the revised “Guidelines Concerning Commercial Advertising,” “[a]dvertisements that promote or oppose any religion, religious practice, or belief” were banned.

Excluding issue-oriented advertisement quickly took a toll on revenue: The Metro lost approximately $1.6 million between May 2015, when the board first approved the resolution, and November 2015, when “the Board voted to allow advertising of alcoholic beverages as a means of making up the advertising revenue shortfall.” Yes, spirits are allowed, just not the Holy Spirit!

Unable to put a commercial spin on their “Find The Perfect Gift” campaign—which encouraged individuals to seek spiritual gifts during the Christmas season and to highlight public service opportunities—McFadden asked whether Metro had a process for reviewing the denial of advertising space. There was none. The archdiocese’s attempts to meet with Metro’s attorneys went ignored.

Instead, on November 20, 2017, a law firm Metro hired sent the archdiocese a letter, denying it access to the bus advertising panels, stating that “the Archdiocese’s advertisement for “FindThePerfectGift.org” is prohibited by [Metro Advertising] Guideline 12 because it depicts a religious scene and thus seeks to promote religion.” Here’s a look at the offensive ad:

This Is Plain Ridiculous

After its attempts to meet with Metro officials proved unsuccessful, the archdiocese turned to the courts. On Tuesday, the archdiocese filed a five-count complaint against Metro in a federal district court in Washington DC. The lawsuit alleged violations of the archdiocese’s constitutional rights to free speech and free exercise of religion, as well as a denial of equal protection and due process. A final count charged Metro violated the federal Religious Freedom Restoration Act.

While it will be some time before a court rules, several aspects of Metro’s policy and its implementation leave it ripe for defeat solely on free speech grounds, for two main reasons.

First, Supreme Court precedent makes clear that a government regulation cannot confer “unfettered discretion” on decisionmakers because “the possibility is too great that this power will be exercised in order to suppress disfavored speech.” Instead, the government must adopt “narrow, objective, and definite standards” to avoid censorship.

Metro’s guidelines fail this test by creating a broad and subjective ban on “[a]dvertisements that promote or oppose any religion, religious practice, or belief.” As the archdiocese explained: “There are no formal regulations to direct the implementation or interpretation of this ban; nor is there any published guidance about what speech is forbidden according to this guideline.” Instead, Metro staff has the sole discretion to decide what ads “promote” religion.

In exercising that discretion, Metro officials denied the archdiocese’s “Find the Perfect Gift” advertisements, “which contain no explicit references to religion, religious practice, or belief,” while accepting “advertisements that promote yoga practices as a mechanism to ‘take you on an inner journey of self-discovery’ and to lead to the ‘acknowledgment of one soul to another.’”

This Is Viewpoint Discrimination

This disparity highlights the second fundamental flaw of Metro’s advertising policy: Metro engages in unconstitutional viewpoint discrimination. The Supreme Court has long held “that the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.” Yet Metro favors yoga’s “mechanism” of soul-enhancement, while disfavoring the Catholic Church’s.

Metro also regularly runs Christmas-themed advertisements that promote commercialism, while discriminating against the archdiocese’ viewpoint proclaimed in its proposed ad: The perfect gift doesn’t involve materialism.

Unfortunately, absent a quick settlement or prompt judicial intervention, the archdiocese’s four-week window to run its “Find The Perfect Gift” ad campaign will have closed. On the other hand, Metro’s ridiculous decision likely provided the archdiocese more free advertisement then the entire fleet of buses could, making Metro’s bottom line the only real loser.

Margot Cleveland is a senior contributor to The Federalist. Cleveland is a lawyer and a graduate of the Notre Dame Law School as well as a former full-time faculty member and current adjunct professor for the college of business at the University of Notre Dame. Email her: [email protected]

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