The Catholic Church is asking the full D.C. Circuit to weigh in on the increasingly contentious transit ad wars.
A panel of the court ruled on July 31 in Archdiocese of Washington v. Washington Metropolitan Area Transit Authority that the D.C.-area transit agency did not violate the First Amendment rights of the archdiocese when it refused to run a Christmas-themed ad that directed people to a church website promoting charity. The reason the agency rejected the ad is a set of advertising policies, adopted in 2015, that prohibit political ads, issue-oriented ads, and ads that promote or oppose religion.
The church, represented by the elite appellate lawyer Paul Clement, filed papers on Friday (Aug. 31) seeking en banc review by the entire D.C. Circuit. Clement wrote that the panel’s ruling conflicts with Supreme Court precedent on the First Amendment. He also cited another recent decision of a D.C. Circuit panel involving a separate First Amendment challenge to WMATA’s advertising restrictions: American Freedom Defense Initiative v. WMATA.
In American Freedom, the agency rejected an anti-Muslim group’s request to run a satirical ad showing a cartoon version of the prophet Muhammad. On Aug. 17, a divided panel ruled of the D.C. Circuit ruled that the lawsuit could continue, ordering the case to be sent back to the district judge for further consideration of whether the transit agency’s policy is reasonable.
Clement argued in his petition for en banc rehearing that the full court should take up the issue in part to resolve what he called “the differing approaches” of the panel decisions in Archdiocese of Washington and American Freedom.
Here is the full petition:
