In October the Washington, D.C., transit system initiated a bag check policy that permitted specially trained Metro police to conduct random searches at any of 86 subway stations. The policy allowed riders to refuse a search as long as they then immediately exited the station. But Steven Silverman and Scott Morgan of Flex Your Rights, a nonprofit organization focused on protecting civilian rights during police encounters, noticed that news stories about the policy failed to explain just how to get out of a search. So the two, along with an army of volunteers, stood outside various Metro stations on October 29 and handed out flyers containing instructions for how to politely decline a bag check.
A month later, Silverman and Morgan convinced the Metro Riders Advisory Council to pass a resolution urging Metro to put the bag searching policy on hold. That was when Sonia A. Bacchus, chief counsel of the Washington Metro Area Transit Authority (WMATA), sent Silverman a letter threatening to sue Flex Your Rights for using Metro’s M logo, a registered trademark, on its flyers. Bacchus accused Silverman of “misappropriating the goodwill associated with WMATA…and illegally using it to promote your cause.” She demanded a letter of apology and the destruction of all the remaining flyers by January 5.
Silverman contacted Arthur B. Spitzer of the American Civil Liberties Union, who sent a letter to the transit authority. Spitzer explained that the flyers were protected both as fair use and as political speech, and he noted that it was “unseemly for a government agency in the United States to threaten its critics.” He encouraged the agency not to “burden its paying customers with the cost of an unsuccessful lawsuit.”
At press time, WMATA has not followed through on its legal threat. And for now, Flex Your Rights can claim a more substantial victory: The police have yet to start the searches.