Photo by Elvert Barnes
Photo by Elvert Barnes

The Archdiocese of Washington on Nov. 28 filed a legal action in federal court challenging the Washington Metropolitan Area Transit Authority’s (WMATA) advertising guidelines and seeking injunctive relief after WMATA rejected an advertisement promoting the archdiocese’s annual “Find the Perfect Gift” initiative for the Advent and Christmas seasons.

In its lawsuit filed in U.S. District Court for the District of Columbia, the archdiocese contends WMATA’s policy that “prohibits all non-commercial advertising, including any speech that purportedly promotes a religion, religious practice, or belief,” is a violation of the Free Speech Clause and Free Exercise (of religion) Clause of the First Amendment and a violation of the Due Process Clause of the Fifth Amendment.

The WMATA’s prohibition, the archdiocese contends, “violates the free speech rights of the Archdiocese because the prohibition creates an unreasonable and disproportionate burden on the exercise of the Archdiocese’s speech without any legitimate justification.”

“We believe rejection of this ad to be a clear violation of fundamental free speech and a limitation on the exercise of our faith,” said Kim Fiorentino, the Archdiocese of Washington’s chancellor and general counsel. “We look forward to presenting our case to affirm the right of all to express such viewpoints in the public square.”

The Archdiocese has in previous years advertised on WMATA’s public buses. Up until 2015, the archdiocese purchased WMATA advertisement space that, according to the lawsuit, “were explicitly religious in character. These advertisements included a campaign highlighting the importance of the Sacrament of Reconciliation during the liturgical  season of Lent. This campaign, ‘The Light Is On For You,’ was remarkably successful for the archdiocese (and lucrative for WMATA), with advertisements on the backs of 85 buses throughout the metropolitan area.”

The advertisements rejected by WMATA highlight the archdiocese’s annual “Find the Perfect Gift” campaign which refers views to the FindThePerfectGift.org website that includes Mass schedules, reflections on the meaning of Advent and Christmas, religious holiday traditions and opportunities for charitable service. The image is a silhouette of shepherds and sheep standing on a hill.

“The rejected ad conveys a simple message of hope, and an invitation to participate in the Christmas season. Yet citing its guidelines, WMATA’s legal counsel said the ad ‘depicts a religious scene and thus seeks to promote religion,’” said Ed McFadden, secretary for communications for the Archdiocese of Washington. “To borrow from a favorite Christmas story, under WMATA’s guidelines, if the ads are about packages, boxes or bags … if Christmas comes from a store … then it seems WMATA approves. But if Christmas means a little bit more, WMATA plays Grinch.”

Susan Timoney, secretary for pastoral ministry and social concerns for the archdiocese, noted that the rejected advertisement “was designed to be placed on Metro bus exteriors to reach the broadest audience and to invite everyone to experience the well-accepted joyful spirit of the season, or to share their many blessings with others less fortunate through service opportunities.”

She said the ads were to convey the message that “the Archdiocese wishes to encourage our society to help feed, clothe, and care for our most vulnerable neighbors, and to share our blessings, and welcome all who wish to hear the Good News.”

The lawsuit notes that because of WMATA’s “discriminatory and arbitrary” enforcement of its policy, “the Archdiocese has suffered and will suffer irreparable harm, including the loss of its constitutional rights.”

“WMATA’s rejection of the Archdiocese’s speech amounts to a violation of the First Amendment, plain and simple,” said Paul Clement of Kirkland & Ellis LLP, who is serving as counsel to the Archdiocese in the case. “We are bringing this complaint to vindicate the basic principle that the government may not allow a wide variety of speech in a forum and then turn around and deny the archdiocese access because of the religious nature of its speech.”