Archdiocese of Washington v. WMATA, et al., No. 17-7171 (July 31, 2018) Briefing for petition for rehearing en banc concluded as of September 28, 2018.

The Archdiocese of Washington and the Washington Metropolitan Area Transit Authority (WMATA) are in a pitched battle over WMATA’s rejection for advertisement on buses the Archdiocese’s perennial “Find the Perfect Gift” Christmas message.   

WMATA has successfully argued in both the U.S. District Court for the District of Columbia and the U.S. Court of Appeals for the District of Columbia Circuit that buses are non-public spaces. Under ‘forum analysis’ principles which permit distinctions in regulatory intrusions depending on whether a space is a traditional public forum, a forum opened for a particular purpose, or, as here, a non-public forum.  Non-public forum classification permits the government to categorically exclude subject matters such as religion. Speech in non-public forums may be subject to government regulation provided that the government does not engage in viewpoint discrimination.  

The Archdiocese insists that categorical exclusion of religion as a subject matter cannot be other than in violation of the First Amendment.  

Rehearing en banc has been sought and briefing concerning rehearing en banc has concluded.  Whether or not rehearing en banc will be granted,  it is likely that Supreme Court review will be sought:  this case ties together all of the rough edges of current “forum analysis” in which entire subject matters may be excluded from public discussion provided that preemptive exclusion does not involve viewpoint discrimination.  It is the “conflation” of the two concepts “without principled limits” that the appellate panel found objectionable in the Archdiocese’s arguments.

ADW v. WMATA 17-7171 2018 07 31 (D.C. Cir.)

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