In
American Freedom Defense Initiative v. Washington Metropolitan Area Transit Authority, (DC Cir., Aug. 17, 2018), the D.C. Circuit Court of Appeals remanded for further development of an argument based on a intervening Supreme Court decision a challenge to WMATA's guidelines on advertising that may be displayed on buses and in rail stations. At issue is the constitutionality of a ban on "advertisements intended to influence members of the public regarding an issue on which there are varying opinions." AFDI wanted to rent space to display ads that
make the point that the First Amendment will not yield to Sharia adherent Islamists who want to enforce so-called blasphemy laws here in the United States, whether through threats of violence or through the actions of complicit government officials.
In a 2-1 decision, the majority held that WMATA did not engage in viewpoint discrimination in rejecting the ad. However, the U.S. Supreme Court's June 2018 decision in
Minnesota Voters Alliance v. Mansky , according to the majority, raised an additional issue that the parties should have the opportunity to brief:
whether the discretion vested in a government official to permit or prohibit speech is “guided by objective, workable standards.” Mansky, 138 S. Ct. at 1891.... We must determine whether Guideline 9 is so broad as to provide WMATA with no meaningful constraint upon its exercise of the power to squelch.....
The parties’ briefs predate the decision in Mansky. Yet Mansky invites arguments about whether Guideline 9 is capable of reasoned application.
Judge Henderson dissented, arguing that the suit should be dismissed on mootness grounds.
WTOP reports on the decision.
