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Federal court rules against Archdiocese in D.C.; Metro can ban religious ads

July 31, 2018

The Metro system can ban religious advertisements and other advocacy ads, a federal appeals court decided Tuesday, siding against the Archdiocese of Washington who wanted to put up pro-Christmas signs on buses.

The ads, which urged people to remember the Christian origins of the holiday, ran afoul of the Washington Metropolitan Area Transit Authority’s 2015 policy banning politics, religion or advocacy ads from the system’s bus shelters, bus sides and subway station billboards.

The Archdiocese of Washington sued, claiming a First Amendment right to run the ads.

A lower court rejected the claim and the appeals court agreed, saying WMATA’s advertising space isn’t a public forum, so messages can be restricted based on content, as long as the policy is applied fairly to all advertising.

“City buses, by contrast, enjoy no historical tradition like parks and sidewalks because transit was a private enterprise in most American cities until the second half of the twentieth century,” Judge Judith Rogers, a Clinton appointee, wrote in the opinion for the court.

Judge Robert Wilkins, an Obama appointee, concurred in the judgment, saying the Constitution permits the government control over expressive content in limited circumstances.

Judge Brett Kavanaugh, who President Trump nominated to the Supreme Court earlier this month, was part of the original three-judge panel during the oral arguments but did not participate in issuing Tuesday’s opinion.

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