Free-speech “confusion-in-advertising” continues unabated.

Sparring over the guarantees and limits of free speech seems to be growing rather than abating.

How controversial? The advertising rejected by the Washington Metropolitan Area Transit Authority as being too political for public display.

The most recent indication of just how much confusion there is on the topic of free speech comes in the form of a recently filed lawsuit brought by the American Civil Liberties Union against the Washington Metropolitan Area Transit Authority (WMATA) – a public agency popularly known as the DC Metro.

The issue sparking the lawsuit related to a number of ads which the WMATA refused to display due to concerns over the advertising content being “too political for public display.”

Countering WMATA’s efforts to avoid “offending” its customers, the ACLU chose to sue on behalf of itself as well as three companies and organizations that includes:

  • Carafem – a healthcare network specializing in birth control and medication abortion
  • Milo Worldwide, LLC – the corporate entity behind the libertarian political advocate and “extreme commentator” Milo Yiannopolous
  • PETA Foundation (aka FSAP – Foundation to Support Animal Protection) – an animal rights/welfare organization

The lawsuit claims that WMATA refused to display advertising from these organizations for fear of offending some of the people who use its transportation services.

In announcing its intention to defend itself against the ACLU suit, a WMATA spokesperson stated:

“In 2015, WMATA’s board of directors changed its advertising forum to a nonpublic forum and adopted commercial advertising guidelines that prohibit issue-oriented ads, including political, religious and advocacy ads. WMATA intends to vigorously defend its commercial advertising guidelines, which are reasonable and viewpoint-neutral.”

On the point of whether the advertising in question is “issues-oriented,” there is sharp disagreement.

Gabe Walters, manager of legislative affairs for the PETA Foundation, emphasizes that “the government cannot pick and choose who gets to speak based on their viewpoint – no matter how controversial.”

A spokesperson for Milo Yiannopoulos echoed the PETA Foundation statement: “On this issue we are united:  It is not for the government to chase so-called ‘controversial’ content out of the public square.”

Considering the ads that were rejected, a case could be made that they’re hardly “controversial” on their face:

  • The Milo Worldwide ads featured a photo of Milo Yiannopoulos.
  • The Carafem ad copy stated simply “for abortion up to 10 weeks.”
  • The PETA ad showed a pig with the caption, “I’m ME, not MEAT. See the Individual. Go Vegan.”
  • The ACLU ad stated the First Amendment language verbatim.

The ACLU suit contends that none of the advertising in question negates any kind of fundamental right to free speech. Moreover, the abortion pill provided by Carafem is FDA-approved as well as accepted by the American Medical Association.

Even more problematic for the WMATA’s defense, at the same time the agency was rejecting the PETA ad, it approved one from Chipotle promoting a menu item made with pork.

The only difference between them according to the ACLU? The Chipotle ad sends the message that it’s good to eat pork, whereas the PETA ad says the opposite.

Looking at the contours of the lawsuit and the facts of the case, I think the WMATA defense is on pretty shaky ground, and for this reason, I’m pretty sure that the ACLU lawsuit is going to succeed.

Indeed, it’s somewhat distressing that such a suit had to be filed at all, because its point is the First Amendment and what it’s all about: protecting everyone’s speech.

That people are having to re-litigate the issue of free speech in 2017 speaks volumes about the level of confusion that has been introduced into the public sphere in decent years.

It’s time to clear the air.

One thought on “Free-speech “confusion-in-advertising” continues unabated.

  1. In the “land of the free,” even despicable speech is protected. It cannot be up to the masses, governmental agencies or the media to determine what is “acceptable.”

    A notable example is the Westboro Baptist Church members and their protests at the funerals of military personnel. Their message was repugnant, but they knew and obeyed the existing laws. They avoided the “captive audience” exception by keeping the legal distance from the funerals and not obstructing any access routes.

    Certainly, it was emotionally difficult to see them prevail in court, but it was important that a new “legal standard” was not applied to this group ex-post facto.

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