A federal appeals court upheld the Washington, DC regional transit system’s ban on religious ads, rejecting free speech arguments from the Roman Catholic Archdiocese.
The ruling, issued July 31 by the US Court of Appeals for the District of Columbia, reflects broader points:
- Transit systems typically set limits on advertising, and those limits have been upheld in court.
- Transit systems are trying to balance security with their hunger for non-fare revenue. In that calculation, transit authorities are willing to forgo income from certain types of ads that can stir trouble.
In 2015, the Washington Area Metropolitan Transit Authority (WMATA) stopped taking issue-oriented ads and religious/political messages due to security concerns regarding anti-Muslim ads.
Late last year, the archdiocese sued the transit system because it rejected the archdiocese’s Christmas-themed ads which featured a link to a website that encouraged donations and attendance at Mass. A federal judge sided with the transit authority; the archdiocese appealed.
A three-judge appellate panel heard the case in March; Judge Brett M. Kavanaugh then called the transit ad ban “pure discrimination.” Kavanaugh did not participate in the July 31 appeals court ruling because President Trump has nominated him to the US Supreme Court.
The other two appellate judges sided with the transit authority.
Judge Judith W. Rogers: “Were the Archdiocese to prevail, WMATA (and other transit systems) would have to accept all types of advertisements to maintain viewpoint neutrality, including ads criticizing and disparaging religion and religious tenets or practices.”
Judge Robert L. Wilkins said the transit-ad restriction is acceptable because it “does not take sides; it restricts all speech on the topic equally, without discriminating within the defined category.”
(Note: Judge Wilkins wrote the 2016 opinion in Scenic America’s lawsuit against digital billboards. A three-judge appellate panel rejected Scenic’s challenge.)
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