The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
[1.] When the government opens up its own property to certain kinds of private speech or speakers, the law treats this program as a so-called "limited public forum," or sometimes a "nonpublic forum." One classic example is when a university provides funds to a wide range of student newspapers, see Rosenberger v. Rector (1995). Another is when a city sells advertising on city buses, see Lehman v. City of Shaker Heights (1974). In either a limited public forum or a nonpublic forum, the government may restrict the content of speech (something it generally can't do when it doesn't have this property-owner role), but the restrictions must be reasonable and viewpoint-neutral.
Defining viewpoint-neutrality has proved difficult. In Lehman, for instance (and in later cases that fit Lehman into the modern forum framework), the Court viewed a rule that only commercial advertising was accepted as constitutional. But in Rosenberger, the Court held unconstitutional an exclusion of student speech that
primarily promotes or manifests a particular belie[f] in or about a deity or an ultimate reality.
The majority acknowledged that the ban extended to rival religions, as well as to atheistic speech as well as religious speech (since opposition to religious beliefs is itself a belief about a deity or an ultimate reality). But it concluded that the rule was nonetheless unconstitutionally viewpoint-based, because it excluded religious views on subjects for which secular views were permitted:
If the topic of debate is, for example, racism, then exclusion of several views on that problem is just as offensive to the First Amendment as exclusion of only one. It is as objectionable to exclude both a theistic and an atheistic perspective on the debate as it is to exclude one, the other, or yet another political, economic, or social viewpoint.
The four-Justice dissent disagreed, arguing that the exclusion was a permissible subject-matter exclusion rather than forbidden viewpoint discrimination. But the majority view carried the day.
[2.] Yet a D.C. district court has upheld a Washington Metropolitan Area Transit Authority exclusion that was nearly identical to the one struck down in Rosenberger. And just today, the D.C. Circuit (in Archdiocese of Washington v. WMATA, not to be confused with Christmas v. WMATA) refused to issue an injunction pending appeal blocking the decision, seemingly because it agreed with the decision. I find this hard to reconcile with the Supreme Court's ruling in Rosenberger.
The WMATA rule forbids advertisements that
promote or oppose any religion, religious practice or belief.
This is virtually identical to the Rosenberger exclusion; as I noted, the Rosenberger court correctly treated the university rule as applying to speech that opposes religious beliefs. It would thus be just as viewpoint-based as the rule struck down in Rosenberger.
The D.C. Circuit panel rejected the analogy, arguing,
Appellant identifies no basis for concluding that the defendant WMATA applied any [test allowing ads that deal with the "secular half" of Christmas but not the "religious half" of Christmas] in denying Appellant's proposed advertisement, or that WMATA has actually made Christmas or the holiday season a permissible subject of advertising. Cf. Grossbaum v. Indianapolis-Marion County Building Auth., 63 F.3d 581, 588 (7th Cir. 1995) (where City had "recogniz[ed] the 'holiday season' as a topic of discussion" in a forum, religious perspectives on that allowed topic could not be excluded).
With respect to Appellant's facial challenge to WMATA's decision to exclude religion as an advertising subject, the Supreme Court has acknowledged that the government may impose reasonable limitations on the subjects for discussion in a limited public forum, so no substantial likelihood of success in demonstrating WMATA's unreasonableness has yet been shown at this procedural stage. See Rosenberger v. Rector and Visitors of Univ. of Virginia, 515 U.S. 819, 831 (1995) (noting that the University policy "does not exclude religion as a subject matter," but instead unconstitutionally foreclosed religious perspectives on permitted subjects).
But I don't see how this is right. Rosenberger did stress that the University policy doesn't exclude religion as a subject matter—but the WMATA policy is, as I've argued, on its face no different from the University policy. (The facial challenge to the WMATA policy does argue that the policy is viewpoint-based as well as unreasonable.) If the University policy goes beyond excluding religion as a subject matter and actually excludes religious viewpoints, so does the WMATA policy.
[3.] Moreover, the WMATA policy does in fact bar the expression of some viewpoints on a subject—what gifts to get for the holidays—while allowing others. Whatever the limited record might be (there wasn't much time for discovery in the dispute over this preliminary injunction), surely WMATA allows ads for various holiday sales (whether or not they mention Christmas). Those ads convey the message, "for the holidays, buy these gifts." The Archdiocese is trying to convey a different message: for the holidays, don't think about tangible gifts, but think about Jesus (FindThePerfectGift.org says "Jesus is the perfect gift / find the gift of God's love this Christmas").
Those are indeed two views on the same subject, just as Rosenberger noted that the university policy barred religious views about racism (or pregnancy or stress or whatever else) but allowed secular views. And, more broadly, a prohibition on statements that "promote or oppose any religion, religious practice or belief" is on its face a prohibition of viewpoints—when we say that speech promotes or opposes a religion, practice, or belief, we mean that the speech expresses a viewpoint supportive or critical of the religion, practice, or belief.
Now I recognize that even the commercial-advertising-only policy upheld in Lehman (which was a splintered 4-1-4 decision, but has since been endorsed by majority opinions) might be faulted as being viewpoint-based in a way: "Eat at McDonald's" ads would be allowed, but "Become a vegetarian" ads wouldn't be. But even if there is some tension between Lehman and Rosenberger, the policy in Rosenberger is so close to the policy in this case that it's hard for me to see how this could be constitutional. I understand the city's desire to keep away from potential religious controversies—but Rosenberger shows that this desire can't justify an exclusion of speech that promotes or opposes religion.
[4.] Some might defend WMATA's policy on the grounds that the prohibition on religious material is just part of a broader prohibition on noncommercial material, and thus closer to Lehman. But the courts and WMATA haven't made that argument, perhaps because the broader prohibition is itself so suspect:
Advertisements intended to influence members of the public regarding an issue on which there are varying opinions are prohibited.
For what issues are there (1) no varying opinions, and yet (2) someone wants to spend money advertising a position? Even "don't use meth" and "don't join a gang" are obviously issues on which there is difference of opinion, or else there wouldn't be meth and gang problems. Obviously this rule purports to draw a line, but it's hard to see where the line is—which makes the rule unconstitutionally vague, and an open invitation to viewpoint discrimination.
[5.] The appeal in this case is proceeding, and in principle the final decision from the D.C. Circuit panel might differ from this decision about the injunction pending appeal. (Much depends on whether the case will be considered by the same panel; if it will be, then it seems unlikely that the panel will change its views.) And if the merits panel continues to uphold the policy, I expect a petition for Supreme Court review—the Archdiocese's lawyer is Paul Clement, former Solicitor General and one of the top Supreme Court advocates in the nation. If so, I think there would be quite a good chance that the Court will indeed consider the case, and reaffirm that Rosenberger invalidates this sort of policy.