In WallBuilder Presentations v. Clarke, (D DC, May 21, 2024), a D.C. federal district court granted a preliminary injunction barring enforcement of a Guideline of the Washington Metropolitan Transit Authority which bars bus ads that are "intended to influence members of the public regarding an issue on which there are varying opinions...." Plaintiffs submitted two ads that promoted the idea that the nation's founders were Christians. The court said in part:
... [N]othing in Guideline 9’s text answers basic questions about its reach, and the “indeterminate scope” of Guideline 9 is not “clarif[ied]” or “saved” by any official guidance..... Enforcement of Guideline 9 is thus left to individual reviewers to determine, on a....case-by-case basis, what constitutes an “[a]dvertisement intended to influence” and what constitutes “an issue on which there are varying opinions.” Such determinations “require[] a government decision-maker to maintain a mental index” of all the issues on which varying opinions exist—which, in turn, requires the decisionmaker to know not only the issues on which opinions differ, but also the precise degree to which opinions differ—an enterprise that the D.C. Circuit has said is “not reasonable.”....
This Court thus joins the many courts that have rejected similar phrases as constitutionally suspect.... Without objective, workable standards in Guideline 9’s text or accompanying official guidance, reviewers’ “own politics may shape [their] views on what counts” as “an issue on which there are varying opinions,” and the risk of “unfair or inconsistent enforcement,” and even “abuse” is “self-evident.” ....
However, relying on Circuit Court precedent, the court refused to enjoin enforcement of Guideline 12 that prohibits advertisements that promote or oppose any religion, religious practice or belief.
ACLU issued a press release announcing the decision.
