My legal team, the country’s leading First Amendment law firm, the American Freedom Law Center, filed the following reply brief in our case. We will await an oral argument date.

WMATA’s disdain for Plaintiffs and their speech is evident from the record below, and it is on full display in its brief filed in this Court.

WMATA’s lack of regard for Plaintiffs and their message is second only to its lack of regard for the First Amendment and its prohibition on government censorship of speech, particularly when the government is seeking to silence a speaker wishing to express a controversial viewpoint in Washington, D.C.—“the seat of the federal government.” (R-20-3; JA-79[Bowersox Dep. at 30:3-11]). And Plaintiffs are not the only parties recognizing this. See Am. Civil Liberties Union Found. v. Wash. Metro. Area Transit Auth., Case No. 1:17-cv-01598 (D.D.C. filed Aug. 9, 2017) (challenging, inter alia, WMATA’s advertising guidelines under the First and Fourteenth Amendments as “explicitly or implicitly” viewpoint based).

Make no mistake, what WMATA is attempting to do here is to cleanse its advertising space (a forum for speech) from any message that WMATA’s government censors deem offensive. However, “[g]iving offense is a viewpoint.” Matal v. Tam, 137 S. Ct. 1744, 1763 (2017) (plurality opinion).2 And the First

1 WMATA’s disdain for Plaintiffs is evident by its irrelevant reference to Plaintiffs’ prior ads and its citation to a district court’s impertinent and erroneous reference to Plaintiffs’ speech as “hate speech”—a category of speech that any serious student of the First Amendment knows does not exist. (See WMATA Br. at 10 & n.2).

2 WMATA makes the bizarre claim that this Court should simply disregard this recent and exceedingly important First Amendment decision, incorrectly stating, “AFDI’s frolic and detour through Matal v. Tam, 137 S. Ct. 1744 (2017), sheds no Amendment prohibits viewpoint discrimination regardless of the nature of the forum. Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 394 (1993) (“[T]he First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.”) (internal quotations and citation omitted).

In sum, this Court should reverse the District Court and enter judgment in Plaintiffs’ favor.

SUMMARY OF THE ARGUMENT

WMATA’s restriction on Plaintiffs’ speech is inherently viewpoint based, rendering unnecessary any extended treatment of other questions raised by the parties. Closely related to the viewpoint-based nature of WMATA’s restriction on Plaintiffs’ speech is the fact that its restrictions are unconstitutional due to their lack of objective criteria by which WMATA officials are permitted to censor speech.

Additionally, pursuant to Cornelius v. NAACP Legal Defense and Educational Fund, 473 U.S. 788 (1985), WMATA’s advertising space is a public forum for Plaintiffs’ speech. Consequently, WMATA’s content-based restrictions cannot survive strict scrutiny nor can WMATA meet is heavy burden of justifying its prior restraint on Plaintiffs’ speech.

Assuming, arguendo, that WMATA’s advertising space is a nonpublic forum, in light of the characteristic nature and function of the forum, WMATA’s restriction on “issue-oriented” advertising is nonetheless unreasonable. A public transit system is one of the few government-owned spaces where many persons have extensive contact with other members of the public and thus there is unique suitability for the speech that WMATA seeks to censor here. And this is particularly true because Washington, D.C., as the seat of the federal government, is a market that is distinct in the amount of issue oriented advertising.

Moreover, the government’s ability to “close” a forum for protected speech is not without constitutional limits. Here, there is ample evidence to infer that WMATA sought to close its forum based on its animus toward Plaintiffs’ speech.

Finally, WMATA cannot escape liability in this case based on a claim of immunity. WMATA has waived any such claim. The leasing of its advertising space, and thus WMATA’s refusal to permit Plaintiffs to advertise within this space, is a proprietary (as opposed to governmental) function.