Court Upholds Washington Metro’s Right to Restrict Ads

Munger, Tolles & Olson represented the Washington Metropolitan Area Transit Authority (WMATA) in winning a lawsuit brought by the Archdiocese of Washington challenging WMATA’s commercial advertising guidelines on July 31, 2018.

A two-judge panel of the U.S. District Court for the District of Columbia rejected the archdiocese’s arguments that WMATA’s rule violated the First Amendment and Religious Freedom Restoration Act. (D.C. Circuit Judge and Supreme Court nominee Brett Kavanaugh was a member of the panel at the time the case was argued but did not participate in this opinion.) WMATA successfully argued that it has the authority to prohibit religious and advocacy ads under the U.S. Supreme Court’s forum doctrine. The U.S. Department of Justice had supported the archdiocese as an amicus curiae.

“Following Rosenberger v. Rector & Visitors of the University of Virginia…WMATA may exclude religion as a subject matter from its advertising space. Notably, there is no principled limit to the archdiocese’s conflation of subject-matter restrictions with viewpoint-based restrictions as concerns religion,” Circuit Judge Judith W. Rogers wrote. “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.”

The attorney team representing WMATA includes Donald B. Verrilli, Jr., Chad Golder and Jonathan S. Meltzer.