What is it about the first amendment and government that special interests don't understand?: transit advertising edition

Astrid Riecken/FOR THE WASHINGTON POST. Controversial posters on the Israel-Palestinian conflict are up at the Georgia Avenue Metro stop and three other Metro stations after a court battle.

With regard to the Post article "Faith groups demand Metro donate ad proceeds to charity," apparently many people don't understand the Constitution of the United States governs the relationship between the "people" and "government."  So the Bill of Rights (and all the amendments to the Constitution) applies to the relationship between the government and the people, not between people and say, where they work (i.e., you don't have freedom of speech in the workplace, usually, unless you work for government, and even then...).


Anyway, as units of local or state government (and taking funds from the federal government), transit authorities like WMATA are bound by the law, starting with the Constitution, and including the First Amendment.

This means that if the agency allows paid advertising on trains, buses, bus shelters, and in subway stations, it can't make decisions to bar advertising because it is political or distasteful, unless it reaches the point of being inflammatory to the point that it incites "imminent lawless action" Brandenburg v. Ohio (1969).  The choice is either to take all advertising (subject to other relevant laws or policies, such as the barring of categories such as tobacco) or none.  They can't choose.

Although WMATA did make the argument, unsuccessfully, that the ad could be inciteful to the point of lawless action (see "Federal Court Hearing Scheduled in AFLC’s Challenge to D.C. Transit Authority’s Refusal to Run Anti-Jihad Advertisement" from the American Freedom Law Center).

And despite such calls from opposing groups, the agency has no obligation to provide free counter-advertising to organizations that have opposing positions to those stated in particular advertisements placed in the transit system, or to donate the money it received for the ads to other groups.

Groups with opposing positions can buy advertising, just like any other organization.  And they are.  See "New Metro Ads Protest 'Hate Speech'" from NBC4.