PETA Sues for Its Free Speech Rights, Again

The Lower Eastern Shore of Maryland won't let the animal rights group advertise on public buses.

People for the Ethical Treatment of Animals (PETA) is known for some wacky campaigns—from suggesting swapping "bring home the bacon" for "bring home the bagels," to condemning former New Jersey Gov. Chris Christie (R–N.J.) for swatting a spider, and even asking Ben & Jerry's to use human breast milk in place of cow's milk. But the ad campaign that PETA wasn't allowed to run on a Maryland bus system was tamer than all of those, and a federal judge ruled last week that PETA can continue its legal fight over the ad rejection.  

On January 18, the U.S. District Court for the District of Maryland rejected a motion to dismiss a lawsuit filed by PETA against public transit provider Shore Transit. Filed on August 17, the lawsuit contends that the Tri-County Council for the Lower Eastern Shore of Maryland, Shore Transit, and their director Brad Bellacicco violated PETA's First and 14th Amendment rights by denying two ads. 

In May 2020, PETA attempted to run ads on the interior of Shore Transit's buses (see below). The phrase, "No One Needs to Kill to Eat. Close the slaughterhouses: Save the workers, their families, and the animals," is paired with images that are not overtly graphic. However, PETA's application was denied by Shore Transit, which claimed the ads were "too offensive for [its] market and political in nature."

The transit company's policy prohibits "political," "offensive," and "controversial" ads, but PETA argues that their advertising doesn't fall into any of those restricted categories. They view "animal slaughter as offensive, controversial, objectionable, and in poor taste." To PETA, "No one needs to kill to eat" is a fact. 

The Court denied the motion to dismiss the case last week, saying, "While the Court is certainly sympathetic that Defendants may have an interest in limiting graphic or gory imagery on its buses, the manner in which Defendants allegedly have done so appears to be neither viewpoint neutral nor reasonable." 

PETA—represented by Brian Hauss of the American Civil Liberties Union and Robin Cockey of Cockey, Brennan & Maloney—argues that buses should be considered a "designated public forum or, in the alternative, a limited public forum," and therefore, prohibiting the ads is violating the Free Speech Clause of the First Amendment.

"The policy's sweeping prohibitions afford enforcement officials unfettered discretion," the lawsuit reads. PETA contends that the policy is "also incapable of reasoned application, content and viewpoint discriminatory, substantially overbroad, and unconstitutionally vague."

PETA also argues that Shore Transit's restrictions are "impermissibly vague," which violates the Due Process Clause under the 14th Amendment. PETA contends that they should be provided, "adequate notice about what speech is prohibited and invite arbitrary or selective enforcement."  

Asher Smith, Director of Litigation for PETA, is heartened by the court's recent decision to move forward with the case. He says, "By green-lighting PETA's lawsuit, the court struck a blow to Shore Transit's policy that gives officials unconstrained power to censor what the public sees and furthered the rule of free speech."

This is not the activism group's first day in court. Their advertising has been banned from Washington, D.C., and Los Angeles transit systems, as well as Texas A&M's transit system—a policy which Texas A&M later admitted violated PETA's rights. 

In 2017, David Post covered the Washington, D.C., lawsuit for The Volokh Conspiracy in which the ACLU represented PETA, Milo Yiannopoulos, abortion provider Carafem, and their own organization—all of which had ads rejected by WMATA. The PETA ads in question urged readers to "Go Vegan" and "De-Calf your coffee." Ironically, the rejected ACLU ad contained nothing but the text of the First Amendment.

Post pointed to the precedent set in Lehman v. City of Shaker Heights, in which the Supreme Court upheld a ban on political advertising and rejected the idea that bus cars are "a public forum protected by the First Amendment." But, Post points out how the ACLU's most recent complaint on behalf of PETA introduces a new wrinkle not seen in the Lehman case: viewpoint discrimination. 

Post poses an interesting question, "Why should PETA's non-commercial message ('Don't eat meat') be prohibited while Burger King's commercial message ('Eat more meat') is allowed?"

He concludes, "To my eye, these certainly do look like the kind of 'arbitrary, capricious, or invidious' decisions that, even under a generous reading of Lehman, WMATA, a state actor, has to steer clear of." In March 2018, the United States District Court for D.C. ruled against a preliminary injunction—requested by Yiannopoulos—on WMATA's ban, stating that the case "failed to demonstrate a likelihood of success on the merits of any of its claims."

Asher Smith is hopeful the upcoming legal battle will set precedent that drives PETA's mission of "protecting animals, workers, workers' families, and the entire community by keeping animals off our plates" home.