[00:00:00] Speaker 05:
Case number 17, that's 71-71, Archdiocese of Washington, Cardinal World, a Roman Catholic Archbishop of Washington, a Corporation Sole Appellant versus Washington Metropolitan Area Transit Authority.

[00:00:16] Speaker 05:
Mr. Clement for the Appellant, Mr. Verrilli for the Appellees.

[00:00:21] Speaker 00:
Good morning.

[00:00:24] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:00:26] Speaker 01:
Paul Clement for the Archdiocese.

[00:00:28] Speaker 01:
I will endeavor to save a few minutes for rebuttal.

[00:00:31] Speaker 01:
The district court erred in denying a preliminary injunction here.

[00:00:35] Speaker 01:
Although there are a number of issues on this appeal, too, suffice to make clear that the district court erred, namely that WMATA's Guideline 12 is both viewpoint discriminatory and a straightforward violation of the free exercise clause.

[00:00:49] Speaker 01:
Guideline 12 straightforwardly bans advertisements that promote or oppose any religion, religious practice, or belief.

[00:00:57] Speaker 01:
Thus, while WMATA allows advertisements on a broad variety of subjects, including operating hours, tourist attractions, charitable giving, and Christmas, it excludes advertisements that address those topics from a religious perspective.

[00:01:12] Speaker 04:
But how does WMATA define the subjects?

[00:01:18] Speaker 04:
defining the subjects is like including Christmas, but I think what's operative is what the guideline defines the subjects as.

[00:01:28] Speaker 01:
Well, two things, Judge Wilkins.

[00:01:30] Speaker 01:
First of all, I think that at some level I agree with you that the fact that Guideline 12 expressly discriminates against religious speech is ultimately what matters.

[00:01:42] Speaker 01:
But in terms of figuring out what is the topic for analysis, the Supreme Court cases teach us directly

[00:01:50] Speaker 01:
that for those purposes, what matters is the topic the speaker has selected to address and not the topic that the school or the WMATA seeks to allow or prohibit.

[00:02:02] Speaker 01:
And so let me use Lamb's Chapel as an example, because I think that's the best example.

[00:02:08] Speaker 01:
In Lamb's Chapel, the Supreme Court said the relevant topic was child rearing.

[00:02:12] Speaker 01:
Now, why did it come up with child rearing?

[00:02:14] Speaker 01:
My friends at WMATA and the district court seem to think it's because the school district in Lambs Chapel had a specific policy saying child rearing can be addressed.

[00:02:23] Speaker 01:
But that's absolutely wrong.

[00:02:24] Speaker 01:
If you look at the opinion, what the school district did is it broadly said you can address social, civic, and recreational groups can come in and talk.

[00:02:34] Speaker 01:
But then there was a specific policy, Rule 7,

[00:02:37] Speaker 01:
that said you cannot address, you can't be engaged in religious activities.

[00:02:42] Speaker 04:
And that is what... But what the case, what the court said is that, quoting, I think it was rule 10, is that the property could be used for social, civic, and recreational purposes, right?

[00:02:56] Speaker 01:
Absolutely.

[00:02:57] Speaker 01:
And then it specifically focused on child rearing as a topic that would otherwise be addressable in the forum, but it couldn't be addressed because of the operation of Rule 7, which came in and said, nope, that's religious, you can't do it.

[00:03:11] Speaker 01:
So you can, analogously here, you can say this ad that we're trying to run or the other ones in the record, like Walk with Francis or the Franciscan Monastery, they could be run on WMATA, but for the operation of Guideline 12.

[00:03:27] Speaker 04:
Well, then under, if that's the way we're supposed to

[00:03:32] Speaker 04:
analyze this in guideline 11 that says advertisements that support or oppose any political party or candidate are prohibited, that's viewpoint discrimination too.

[00:03:44] Speaker 01:
I'm not sure that it is because I think, I mean, you know, I think my friends at the ACLU in another case may be arguing that.

[00:03:50] Speaker 04:
But what's the difference between 11 and 12 other than it says political party instead of religion or religious practice or belief?

[00:03:57] Speaker 01:
Three big differences, Your Honor, Lambs Chapel, Rosenberger, and Good News Club.

[00:04:02] Speaker 01:
We don't have any analogous cases from the Supreme Court addressing something like the political parties.

[00:04:08] Speaker 01:
So that's a harder question.

[00:04:11] Speaker 01:
It's a question for another case.

[00:04:12] Speaker 01:
As I said, I think my friends at the ACLU are litigating it.

[00:04:16] Speaker 01:
But what makes this case remarkably straightforward for purposes of giving us a preliminary injunction while the litigation proceeds

[00:04:22] Speaker 01:
is there are three on-point Supreme Court cases that address things that are directly analogous to Guideline 12.

[00:04:29] Speaker 04:
And doesn't Rosenberger explicitly say that you can have religion as a prohibited subject matter, that you could have, in effect, content discrimination but not viewpoint discrimination with respect to religion?

[00:04:48] Speaker 01:
But Judge Wilkins, I think it's important to understand what the holding of Rosenberger is and what that dictum means.

[00:04:53] Speaker 01:
And I'm happy to address that dictum, because I think it's an important dictum.

[00:04:56] Speaker 01:
But the holding of Rosenberger is a guideline.

[00:04:59] Speaker 01:
There it was a guideline, too, that specifically said that otherwise permissible speech by wide awake, as the student publication there, was ineligible for funding reimbursement because it addressed a religious topic or did it from a religious perspective.

[00:05:14] Speaker 01:
So that's what you can't do, and that's what guideline 12 does.

[00:05:18] Speaker 01:
Now, what Rosenberger in dictum says is OK is that a government can construct the rules for the forum in a way that renders the topic of religion non-germane.

[00:05:31] Speaker 01:
So for example, if what Rosenberger had done, if what the UVA had done there is said, we're going to have a specific forum to discuss UVA sports.

[00:05:40] Speaker 01:
Well, if Wide Awake then tried to get reimbursement, it could not get reimbursement because the subject of religion was non-germane to the forum.

[00:05:50] Speaker 01:
But what you can't do, and what all three of these cases say is, look, we're going to have other rules for the forum, and then we're going to superimpose a rule that says religious speech or religious groups are subject for disfavored treatment.

[00:06:02] Speaker 00:
But we have to read the holding in Rosenberger, don't we, in terms of the fact that the university had placed no limitation and the student organization had otherwise qualified.

[00:06:18] Speaker 00:
I thought that was a key aspect of Rosenberger.

[00:06:21] Speaker 01:
But so too here, Judge Rogers, but for Guideline 12.

[00:06:25] Speaker 01:
There is no question in this case, as it comes to this Court, that we can run our ad.

[00:06:30] Speaker 01:
So it is only Guideline 12 that takes it out of the forum.

[00:06:32] Speaker 00:
I know.

[00:06:33] Speaker 00:
And there was no Guideline 12 in Rosenberger.

[00:06:37] Speaker 01:
Well, absolutely there was, Judge Rogers.

[00:06:38] Speaker 00:
What was it?

[00:06:39] Speaker 01:
There was.

[00:06:40] Speaker 01:
I mean, there wasn't.

[00:06:41] Speaker 01:
It was a guideline.

[00:06:41] Speaker 01:
They specifically referred to the guideline.

[00:06:43] Speaker 01:
The guideline in Rosenberger specifically says that it prohibits the funding of, quote, religious activity, end quote.

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And the organization that was seeking

[00:06:54] Speaker 00:
the funding was not designated, if I can put it that way, in any way different than the other organizations that were seeking funding.

[00:07:05] Speaker 00:
You don't view that as a significant aspect of Rosenberger?

[00:07:11] Speaker 01:
I guess, with all due respect, I'm not sure I fully understand.

[00:07:15] Speaker 01:
I think it's an important aspect of Rosenberger that the wide-awake publication, but for the guideline that prohibited the reimbursement of religious activities, could otherwise run in the forum.

[00:07:25] Speaker 01:
But that's directly parallel to this case.

[00:07:28] Speaker 01:
other than Guideline 12, this ad can run.

[00:07:31] Speaker 01:
It is only because Guideline 12 comes in and says no religion that this ad can't run.

[00:07:37] Speaker 00:
And that is... Are you going as far as the dissent then in the case involving the political ad that started this distinction between commercial speech and barring subject matter?

[00:07:54] Speaker 01:
I'm not going there, Your Honor, for multiple reasons, not the least of which is I don't have to.

[00:08:01] Speaker 01:
Because as this case comes to you, this ad is – I mean, we know why this ad was prohibited.

[00:08:07] Speaker 01:
It was not prohibited because it was an issue ad or because it wasn't sufficiently commercial.

[00:08:13] Speaker 01:
If you actually look at the guidelines, the guidelines don't distinguish between commercial and noncommercial speech.

[00:08:18] Speaker 01:
This ad was prohibited for a single reason, Guideline 12, that expressly discriminates against religion.

[00:08:24] Speaker 03:
What are the topics or subject matters on which you want to speak?

[00:08:30] Speaker 01:
Well, I would say that in this particular ad, there are three subject matters we'd like to speak on.

[00:08:35] Speaker 01:
One is charitable giving, two is operating hours, and three is Christmas.

[00:08:41] Speaker 01:
And those are the three things that we think this ad addressed.

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We think those are three things that unambiguously another organization could address from a non-religious perspective.

[00:08:51] Speaker 04:
The easiest thing... We have to look at what the record says, and the record says that the primary purpose of the ad was evangelism, right?

[00:09:02] Speaker 01:
That may be the reason we were motivated to address those topics.

[00:09:07] Speaker 01:
But I take the question to be different.

[00:09:10] Speaker 01:
If you think of Lamb's Chapel as being addressed to the topic of child rearing, what topics are our ads addressed to?

[00:09:17] Speaker 01:
I think it's clear if you look at Lamb's Chapel.

[00:09:20] Speaker 01:
I mean, I don't think there's any doubt why that group, Lamb's Chapel, wanted to show Dr. Dobson's film series.

[00:09:29] Speaker 01:
They probably wanted to do it for a religious or evangelical purpose.

[00:09:33] Speaker 01:
In the same way, I'm not here to deny that the archdiocese of all people even ever.

[00:09:37] Speaker 04:
Well, evangelism is a subject.

[00:09:40] Speaker 04:
I mean, it's not just a motivation.

[00:09:42] Speaker 01:
But here we weren't addressing just evangelization, and that certainly wasn't why we were refused.

[00:09:48] Speaker 01:
We were refused based on Guideline 12.

[00:09:50] Speaker 01:
I think the right way to look at this consistently with Lambs Chapel, Rosenberger, and Good News Club is the subjects are Christmas,

[00:09:59] Speaker 01:
charitable giving and operating hours or hours for events.

[00:10:04] Speaker 01:
And again, I think if you look at this case, it's particularly clear on charitable giving because the Salvation Army is allowed to run an ad with the Red Kettle.

[00:10:15] Speaker 01:
But we are not allowed to run an ad that directs you to a website where one of the three things is give and it shows you ways you can give through Catholic charities and other charitable giving.

[00:10:26] Speaker 01:
Do you think speech about religion

[00:10:30] Speaker 03:
can be distinguished from speech about other subject matters from a religious viewpoint.

[00:10:39] Speaker 01:
I think that's a difficult distinction to draw.

[00:10:41] Speaker 01:
What I'm most confident of, Judge Kavanaugh, is that the government cannot simply say that a religious viewpoint or even a religious topic on otherwise allowable subjects is prohibited.

[00:10:55] Speaker 01:
I think if you look at the court's cases, there are three cases that deal with something like Guideline 12, a provision that comes in and says, whatever else you can do, you can't do religion.

[00:11:05] Speaker 01:
All three of those cases strike it down as viewpoint discrimination.

[00:11:08] Speaker 03:
Under a general policy that allows a form to be used for a variety of things, you come in and say this is the subject matter on which we want to speak.

[00:11:21] Speaker 03:
Is that permissible to talk about that subject matter?

[00:11:25] Speaker 03:
within the forum.

[00:11:26] Speaker 03:
And if yes, then you're allowed to communicate about that from a religious perspective.

[00:11:31] Speaker 03:
That's right.

[00:11:32] Speaker 01:
And you can build up your rules about the forum and say, this is just about transportation.

[00:11:38] Speaker 01:
This is about UVA sports.

[00:11:40] Speaker 01:
But you can't have a provision like Rule 7 in Lambs Chapel, like Guideline 12 here.

[00:11:46] Speaker 03:
I'm sorry to interrupt.

[00:11:46] Speaker 03:
What about the original motivation for this, which was the Prophet Muhammad ad?

[00:11:52] Speaker 03:
How would that fare under your?

[00:11:55] Speaker 03:
under your position here?

[00:11:56] Speaker 01:
Well, I don't necessarily think that ad would be protected by our position here, because as I understand that ad, I don't even think it was really being put in there for a religious reason.

[00:12:07] Speaker 01:
I think that ad was being put in there for a political reason.

[00:12:10] Speaker 01:
Our challenge here doesn't go to guidelines 9 and 14 that address issue advocacy and take that out.

[00:12:18] Speaker 01:
We're focused on Guideline 12 for the obvious reason is that was the reason we were told that we couldn't run this ad.

[00:12:25] Speaker 01:
And Guideline 12, with all due respect, is blatantly viewpoint discriminatory within the meaning of those three Supreme Court cases.

[00:12:33] Speaker 01:
And there are no Supreme Court cases that are to the contrary.

[00:12:35] Speaker 04:
But the Supreme Court has consistently said that content discrimination or subject matter restrictions and viewpoint discrimination are two different things.

[00:12:46] Speaker 04:
That viewpoint discrimination is a particular type of content discrimination, but that not all content discrimination is viewpoint discrimination.

[00:13:00] Speaker 04:
So are you saying that to decide this case,

[00:13:04] Speaker 04:
we can still maintain that distinction?

[00:13:07] Speaker 01:
Oh, absolutely.

[00:13:08] Speaker 01:
How?

[00:13:10] Speaker 01:
Just by citing Rosenberger, Lamb's Chapel, and Good News Club and saying, look, if WMATA wanted to come in and develop neutral rules for what goes in this formula that don't discriminate on the basis of religious subject matter or religious viewpoint, they can do it.

[00:13:26] Speaker 01:
But what they can't do is say, here are the other rules of the forum.

[00:13:31] Speaker 01:
This adds otherwise in but for guideline 12.

[00:13:34] Speaker 04:
So if I had at my last Thanksgiving dinner, everybody, you know, the meal was spoiled because of arguments about the election.

[00:13:45] Speaker 04:
And I said, OK, this Thanksgiving, no one can discuss politics at all at the dinner table.

[00:13:53] Speaker 04:
Is that viewpoint discrimination?

[00:13:55] Speaker 01:
I don't know that it is.

[00:13:57] Speaker 01:
And I think that's a harder case because you don't have three Supreme Court cases that are on point.

[00:14:02] Speaker 04:
So if I have the same rule and I said, you know, the Christians and the atheists spoiled Thanksgiving dinner last year, so this year there's no discussion at my table of religion.

[00:14:16] Speaker 01:
that's viewpoint discrimination uh... i think it is within the meaning of rosenberger and i think the way you reconcile and it obviously rosenberger itself says drawn this line is tough and it one blurs into the other but the way i you know the way you get around that at your thanksgiving dinner table next year if i may offer some advice is to say hey look this year let's keep it simple let's talk about sports

[00:14:38] Speaker 01:
Let's talk about the family.

[00:14:40] Speaker 01:
Now, if somebody wants to talk about sports and say their favorite team is the Fighting Irish because they love Touchdown Jesus, they can do that because they're still talking about sports.

[00:14:48] Speaker 01:
The fact that they sort of add a religious reference or even a religious viewpoint is fine.

[00:14:53] Speaker 01:
But to say, look, I don't want to hear any talk about religion, and that means you can't even talk about sports with a reference to touchdown Jesus, I think that's viewpoint discrimination.

[00:15:02] Speaker 00:
I thought, though, the point was here.

[00:15:05] Speaker 00:
There's to be no ad about promoting religion, for example.

[00:15:11] Speaker 00:
There's nothing here in this record to say that your client couldn't run an ad or wouldn't be allowed to run an ad saying charitable giving.

[00:15:23] Speaker 01:
Well, I do think there's something in this record that suggests that, which is this ad that was directed at charitable giving.

[00:15:29] Speaker 01:
We weren't allowed to run it.

[00:15:30] Speaker 00:
Well, it was part and parcel of an ad that was a religious ad promoting religion.

[00:15:38] Speaker 01:
Well, I think that to say, I mean, you know, if you want to look at other ads in the record as well, I mean, Joint Appendix 212.

[00:15:45] Speaker 00:
Just looking at this one.

[00:15:47] Speaker 01:
Well, okay.

[00:15:47] Speaker 01:
But, I mean, this ad was prohibited because of Guideline 12.

[00:15:52] Speaker 00:
Because we're not talking.

[00:15:54] Speaker 00:
I'm just trying to get you to focus on the promotion.

[00:15:56] Speaker 00:
In other words, the text of the guideline isn't as broad, I suggest, as you're arguing.

[00:16:02] Speaker 00:
You can talk about football, and if you want to talk about a team that has a religious, I don't see that.

[00:16:08] Speaker 00:
This is evangelism which, at least in the record below, was viewed as promoting religion.

[00:16:15] Speaker 01:
With all due respect, Judge Rogers, I think that would only make it more clear that this is viewpoint discrimination and not subject matter.

[00:16:22] Speaker 01:
Because if it were the subject matter of religion, that's actually, as my colloquy with Judge Wilkins indicated, I think in this context, this kind of external prohibition is still going to be viewpoint discrimination within the meaning of Rosenberger.

[00:16:36] Speaker 01:
But I think if you want to say, no, no, the reason this was excluded is not because it

[00:16:41] Speaker 01:
addressed the subject matter of religion, but because you've crossed the line into promoting religion, with all due respect, I think you're making my job easier, because then it's crystal clear it's viewpoint discrimination.

[00:16:51] Speaker 01:
And if there's one other thing that Rosenberger is crystal clear about is that you don't avoid viewpoint discrimination by saying promote or oppose.

[00:16:59] Speaker 00:
So I could give an endless list of subjects on which there could be speech, but I can't just say I'm not going to spend the whole hour listening to all these subjects.

[00:17:12] Speaker 00:
I'm just going to tell you, you can't speak about promoting religion.

[00:17:15] Speaker 00:
That would not be permitted.

[00:17:17] Speaker 01:
That would absolutely not be permitted.

[00:17:19] Speaker 00:
And is it because religion is in a special category here as far as the First Amendment is concerned?

[00:17:25] Speaker 01:
Well, I think it actually ultimately is because the First Amendment includes not just the free speech clause, but the free exercise clause.

[00:17:32] Speaker 01:
And the other reason, I think, with all due respect, it's a special category is because these three cases make this case easier than the hypothetical about no political speech, which I think is a much harder case.

[00:17:45] Speaker 01:
And again, I do think if you think the reason this ad was excluded was because not just that it addressed the subject matter, but that it promoted, then that makes it more obvious it's viewpoint discrimination.

[00:17:56] Speaker 01:
And the fact that it says promote or oppose

[00:17:59] Speaker 01:
is the one thing Rosenberger says doesn't save it from being viewpoint discriminatory.

[00:18:03] Speaker 04:
The district court found that the Salvation Army ad did not promote or oppose religion, whereas your client's proposed ad did.

[00:18:17] Speaker 04:
What standard of review do we apply to that finding?

[00:18:21] Speaker 01:
You know, I think it's a mixed question of fact and law.

[00:18:24] Speaker 01:
But, you know, I think on this record, I mean, you know, I think the one thing I will say is, even if it's clearly erroneous, one thing the district court said is you don't see the Salvation Army mission statement, which references Jesus, until you do a couple of clicks.

[00:18:38] Speaker 01:
And that's just clearly erroneous.

[00:18:40] Speaker 01:
I mean, you can do it for yourself.

[00:18:41] Speaker 01:
Right there on your landing page, there's the mission statement that refers to Jesus.

[00:18:46] Speaker 01:
And obviously, there's a reference to Jesus on the landing page of the FindThePerfectGift.org website.

[00:18:53] Speaker 01:
I think, you know, our reference to Jesus is a little more prominent, I suppose.

[00:18:57] Speaker 03:
I mean, you know, and – That just goes to arbitrary enforcement.

[00:19:00] Speaker 03:
If it's treated as a secular

[00:19:05] Speaker 03:
ad, the Salvation Army one, that supports your point that they're allowing secular ads but not allowing religious ads on the same topic.

[00:19:13] Speaker 01:
That's exactly right, and I think that's why the United States in its amicus brief focused so much on the differential treatment between the Salvation Army and the findaperfectgift.org advertisement, because I think it's a nice, specific application that illustrates the differential treatment.

[00:19:30] Speaker 01:
I do think, however, that, you know, I mean, you know,

[00:19:33] Speaker 01:
Although I think that does illustrate the problem, I do think the problem is with Guideline 12.

[00:19:38] Speaker 01:
It is rotten to its core.

[00:19:40] Speaker 01:
It would be our position.

[00:19:41] Speaker 01:
It is invalid on its face.

[00:19:43] Speaker 01:
There's plenty of ways for them to deal with the problem they're dealing with.

[00:19:46] Speaker 01:
Any time the government tries to limit speech because they don't like the reaction to speech, they're getting into difficult territory.

[00:19:52] Speaker 01:
But I think the one lesson from the case is you can't take the easy way out and say, none of this promoting or opposing religion.

[00:19:59] Speaker 03:
Can I ask you about the other prong of the test, which is in a limited public forum, it has to be reasonable, not just viewpoint neutral?

[00:20:08] Speaker 03:
How do we analyze the reasonableness prong, and is that distinct from equal protection and free exercise in any meaningful way?

[00:20:17] Speaker 01:
Well, I think it can be distinct from that in other ways.

[00:20:21] Speaker 01:
Let me say a couple of things about that, if I may.

[00:20:24] Speaker 01:
One is, we don't concede that this isn't a public forum.

[00:20:27] Speaker 01:
I know there's some back and forth about that.

[00:20:28] Speaker 01:
About that, too, but let's get to the reasonableness first.

[00:20:32] Speaker 01:
Okay.

[00:20:32] Speaker 01:
I just don't want to say a word about forum without saying we didn't concede it.

[00:20:35] Speaker 01:
I'll give you time on public forum.

[00:20:37] Speaker 04:
Okay.

[00:20:37] Speaker 04:
If you want a district court judge, you're swimming way upstream with that.

[00:20:41] Speaker 01:
Can I talk about reasonableness since I had the question on reasonableness?

[00:20:44] Speaker 01:
I understand, which is maybe why I didn't start with it, Your Honor.

[00:20:48] Speaker 01:
But in all events, as to if we assume for a second

[00:20:53] Speaker 01:
that this is not a public forum and that it is a limited public forum, as I think I'm using that term correctly, though these terms are difficult.

[00:21:02] Speaker 01:
Limited public forum.

[00:21:03] Speaker 01:
Right.

[00:21:03] Speaker 01:
Then as your question suggests, you have to both avoid viewpoint discrimination and you can't have unreasonable restrictions on the forum.

[00:21:12] Speaker 01:
So I would say, you know, there are ways in which the unreasonableness of these restrictions, which we very much think they are unreasonable, map onto principles of free exercise clause and the like, which is, you know, I think the easiest way to say this, and this is really what, say, Justice Scalia said in his concurrence in the Good News Club case, is given the free exercise clause

[00:21:34] Speaker 01:
to simply say the one thing we're not going to allow in this forum, although we'll allow a bunch of stuff, we're not going to allow any religion, that's unreasonable in a constitution governed by the free exercise clause.

[00:21:46] Speaker 03:
It never can be reasonable to say we're excluding religious speech or religious speakers because of religion.

[00:21:51] Speaker 01:
No, I don't think that will ever be reasonable.

[00:21:54] Speaker 01:
But I also think there are independent reasons why there's a reasonableness problem here.

[00:21:59] Speaker 01:
And I would just focus on two.

[00:22:01] Speaker 01:
One is, you know, the test for reasonableness is supposed to be based on the purposes of the forum.

[00:22:06] Speaker 01:
The purposes of this forum, as I understand it, are to raise money.

[00:22:09] Speaker 01:
And in that context, to prohibit every religious speech, I mean, that doesn't seem particularly reasonable.

[00:22:15] Speaker 01:
Then the second argument along those lines is that on that they're concerned about

[00:22:21] Speaker 03:
Ryder reaction.

[00:22:23] Speaker 03:
I guess the original genesis of this was the Prophet Muhammad ad and then surveys where Ryder said, we don't want to be bombarded with religious ads and other ads that we don't like.

[00:22:36] Speaker 03:
Does that make it more reasonable?

[00:22:38] Speaker 03:
Is that something we should take account of, or how do we factor that in?

[00:22:42] Speaker 01:
Well, that segues into my second sort of case-specific reason why I don't think this restriction is reasonable, which is those rider surveys they relied on did not say a word about religious ads.

[00:22:52] Speaker 01:
They talked about issue ads.

[00:22:53] Speaker 01:
People didn't like issue ads.

[00:22:55] Speaker 01:
So what did WMATA do?

[00:22:56] Speaker 01:
They went out and they banned issue ads and religious ads.

[00:23:00] Speaker 01:
And it's that second part that there's really no evidentiary justification for.

[00:23:05] Speaker 01:
And when we're dealing with both free speech and religion, with all due respect, I don't think that's good enough for government work.

[00:23:11] Speaker 01:
I think in this context, if you were going to take that step, you would need to have evidence that went specifically to the idea that religious ads, all religious ads, were so offensive to viewers that it reduced ridership or it otherwise hurt revenue.

[00:23:27] Speaker 01:
And there's no record for that.

[00:23:28] Speaker 01:
But I do think, to be clear,

[00:23:30] Speaker 01:
that even independent of that, as Justice Scalia suggested in his Good News Club concurrence, there's like a more fundamental problem with having a restriction that just says no religious speech.

[00:23:42] Speaker 01:
That's just per se not reasonable under the Constitution would be our position.

[00:23:46] Speaker 03:
But it would be reasonable if this were government speech.

[00:23:50] Speaker 03:
Right?

[00:23:50] Speaker 03:
So I mean, one of the fundamental divides here, or confusions, is if this were government speech, the government can express viewpoints and can remove religious symbols, say, from the town square if it wants.

[00:24:02] Speaker 03:
But once it becomes private speech and there's a forum, the government can't say no religion into the square.

[00:24:11] Speaker ?:
Right?

[00:24:11] Speaker 01:
That's absolutely right.

[00:24:13] Speaker 03:
But you acknowledged if this were the government, if it were Metro itself running its own promotions, it wouldn't have to include religion.

[00:24:21] Speaker 01:
Absolutely not.

[00:24:22] Speaker 01:
And WMATA guards against concerns about mistaken endorsement and that by making clear that the ads have to be clear that this is private speech, not government speech.

[00:24:31] Speaker 01:
So we're far, far removed from the government speech context here.

[00:24:35] Speaker 01:
But I absolutely agree that once you're in the government speech context, then the government has a much freer hand.

[00:24:42] Speaker 01:
And, you know, that's why, for example, we continue to rely on the Byrne decision from the Second Circuit as having a helpful analysis of what's viewpoint discriminatory.

[00:24:52] Speaker 01:
But that decision, although it's analysis on viewpoint discriminatory, remains good law.

[00:24:56] Speaker 01:
The bottom line conclusion there

[00:24:58] Speaker 01:
is probably no longer good law because license plates, thanks to the confederates, the sons of the confederacy case, are now considered government speech.

[00:25:05] Speaker 01:
But I don't think there's, you know, I can't predict what Mr. Verrilli will say about a lot of things, but I can predict he's not going to get up here and say this is government speech.

[00:25:13] Speaker 03:
Right.

[00:25:14] Speaker 03:
It's just, if you look at the record, one of the sources of confusion Metro seems to have is they were concerned about

[00:25:21] Speaker 03:
audience reaction in attributing this private speech to Metro.

[00:25:25] Speaker 03:
But that's not government speech, so it's not that bucket of the analysis.

[00:25:31] Speaker 01:
And nor would this be a reasonable response to that problem.

[00:25:34] Speaker 01:
I mean, if that's the problem, then more prominent disclaimers or perhaps a brief educational session on the nature of government speech and non-governmental speech.

[00:25:43] Speaker 00:
Well, it sounds very much like the dissent in Lehman that once WMATA decides to have this commercial activity,

[00:25:51] Speaker 00:
all comers have to be accepted.

[00:25:53] Speaker 01:
Well, a couple of things about laymen, Judge Rogers.

[00:25:56] Speaker 01:
I mean, the first thing is, laymen is certainly not good authority for the idea that government can have something like guideline 12 that discriminates against religious speech.

[00:26:05] Speaker 01:
Because if you look at laymen, they allowed, even on the inside of the streetcars, they allowed churches to.

[00:26:11] Speaker 01:
That was one of the allowed uses.

[00:26:12] Speaker 01:
It was only political speech that they kept out.

[00:26:15] Speaker 01:
And that's another reason why the prohibition on political speech is a harder

[00:26:19] Speaker 01:
issue, but there's just nothing in the Supreme Court cases that supports the idea that a government can have something like Guideline 12.

[00:26:26] Speaker 01:
And certainly, Lehman does not support that proposition.

[00:26:29] Speaker 01:
Lehman's obviously also a plurality opinion.

[00:26:32] Speaker 01:
If we're going to go to the realm of plurality opinions, I would sort of, you know, see your Lehman and raise you Metro Media, which says there are actually problems with a clear distinction between commercial and noncommercial speech.

[00:26:44] Speaker 01:
But of course, that's not the policy WMATA's adopted.

[00:26:46] Speaker 01:
And that, too, would be a harder case.

[00:26:49] Speaker 01:
If they came up here and said, you know, all right, we've seen the light, we're going to get rid of Guideline 12, but what we're going to do is going forward, we're only going to allow commercial speech and not non-commercial speech.

[00:27:00] Speaker 01:
And if that were the basis in some future policy that they excluded this ad, I will be back here, but I'll have a harder case.

[00:27:08] Speaker 01:
But this case is so much easier than that, because Guideline 12 is the direct analog of Rule 7 in Lambs Chapel, the guideline in Rosenberger, and the same rule in Good News Club, because Good News Club comes out of New York.

[00:27:21] Speaker 01:
So it's the same policy as in Lambs Chapel.

[00:27:29] Speaker 03:
You argue that this should not be considered in the alternative.

[00:27:33] Speaker 03:
You argue that this should not be considered just a limited public forum, but a public forum.

[00:27:37] Speaker 03:
So Raymond's about the interior of the bus.

[00:27:42] Speaker 03:
How does the exterior of the bus differ for purposes of public forum analysis?

[00:27:46] Speaker 01:
I think there's two principal differences.

[00:27:47] Speaker 01:
One is you don't have the same captive audience problem.

[00:27:50] Speaker 01:
And two, it's visible from quintessential public fora.

[00:27:55] Speaker 01:
And so the inside of a bus, I don't think anybody thinks is a quintessential public forum, but the streets and public sidewalks are a quintessential public forum.

[00:28:04] Speaker 01:
So I think this case actually poses a relatively difficult.

[00:28:07] Speaker 03:
If that position were correct, then political ads would, of course, then have to run on the sides of the buses, the exterior.

[00:28:14] Speaker 01:
That is absolutely right.

[00:28:16] Speaker 01:
And so there is a difference, and that's why below we urged the Court that it didn't need to decide this issue.

[00:28:23] Speaker 01:
And we don't think you need to decide this issue.

[00:28:25] Speaker 01:
I do think, though, you know, and we put this in a footnote in our opening brief.

[00:28:29] Speaker 01:
I mean, I think the analogy here is the right analogy, and I think it's quite a difficult issue, which is if you had a billboard in a public park,

[00:28:38] Speaker 01:
that the government purported to restrict?

[00:28:40] Speaker 01:
Is that a traditional public forum because it's visible from the public park, or is it a limited public forum because the government has said, we don't want any political speech on that billboard?

[00:28:50] Speaker 01:
It's a really hard question.

[00:28:51] Speaker 01:
I think it's the analogous question here.

[00:28:53] Speaker 01:
I think, fortunately, you don't have to decide it, because this is viewpoint discrimination under the clear teaching of three Supreme Court cases.

[00:29:02] Speaker 01:
Thank you, Your Honors.

[00:29:08] Speaker 00:
Good morning.

[00:29:13] Speaker 02:
Good morning and may it please the Court, Don Verrilli for WMATA.

[00:29:17] Speaker 02:
Since we raised mootness, let me just take one second on that and then I'll get to the merits.

[00:29:21] Speaker 02:
We raised it because we thought the Shalala case required us to raise it, but now our friends on the other side have said that they specifically intend to ask to run this exact ad in the next

[00:29:33] Speaker 02:
advent season, and therefore we think this is a case capable of repetition yet evading review and therefore not moot.

[00:29:39] Speaker 02:
And so now turning to the merits, let me go right to the heart of the matter on viewpoint discrimination.

[00:29:46] Speaker 02:
The key consideration under viewpoint discrimination analysis is the baseline that is set by the lines that government draws when it creates its forum.

[00:29:57] Speaker 02:
Now, in the cases that my friend Mr. Clement relies on, Lance Chappell, Rosenberger, Good News,

[00:30:03] Speaker 02:
the government deliberately chose in each of those cases to create an open forum for discussion of matters of policy, ideology, and public welfare.

[00:30:14] Speaker 02:
And if you look, for example, at page 825 of the Rosenberger decision,

[00:30:18] Speaker 02:
The court says specifically that what the University of Virginia was trying to do was encourage the expression of ideological views, including those that are controversial and not widely accepted.

[00:30:30] Speaker 00:
But you heard counsel's pushback when I tried to focus on the context of the holding.

[00:30:37] Speaker 00:
He's reading the case simply.

[00:30:42] Speaker 00:
on the holding, ignoring whatever else was around.

[00:30:45] Speaker 02:
Well, I think even with respect to the holding, Your Honor, I think with respect to each of those cases, the situation was and the context was critical and the holding, of course, is embedded in that context.

[00:30:56] Speaker 02:
In each of those situations, the forum was widely open for discussion of a huge range of topics.

[00:31:02] Speaker 02:
And if that's the baseline,

[00:31:05] Speaker 02:
a decision to exclude.

[00:31:06] Speaker 03:
But then the party that wanted to speak came in and said, here are the specific topics we want to talk about.

[00:31:14] Speaker 03:
Those weren't listed in the general policy.

[00:31:17] Speaker 03:
So child rearing in Lamb's Chapel, character and morals in Good News.

[00:31:23] Speaker 03:
And then said, we want to speak about that topic.

[00:31:25] Speaker 03:
Is that topic permissible to discuss within that forum?

[00:31:29] Speaker 03:
Answer, yes.

[00:31:30] Speaker 03:
OK, then we want to speak about it from a religious perspective.

[00:31:33] Speaker 03:
So too here, they want to speak about charitable giving and Christmas.

[00:31:38] Speaker 03:
And so I'll ask you, are those topics generally permissible to discuss in this forum?

[00:31:43] Speaker 02:
I'll answer Your Honor's question directly, but if you'd permit me to make a more general point first.

[00:31:47] Speaker 02:
Sure.

[00:31:48] Speaker 02:
Because I think actually the key to this case

[00:31:50] Speaker 02:
is that the forum here is basically the opposite of the forum.

[00:31:54] Speaker 02:
The choice that Wemata made is basically the opposite of the choice that the government made in Rosenberger and Good News.

[00:32:01] Speaker 03:
Well, it doesn't really matter how broad or how narrow.

[00:32:03] Speaker 03:
The question is the subject matters they want to speak about.

[00:32:06] Speaker 03:
Right.

[00:32:06] Speaker 03:
Are those subject matters permitted to be discussed in this forum?

[00:32:11] Speaker 03:
So is charitable giving and Christmas permissible to discuss in this forum?

[00:32:15] Speaker 02:
So Christmas is not a subject that's permissible to discuss in the forum in the sense that whether the speech was religious.

[00:32:21] Speaker 03:
Do Christmas ads in this forum?

[00:32:22] Speaker 02:
You can do ads for commercial products in this forum.

[00:32:25] Speaker 02:
That referenced Christmas.

[00:32:27] Speaker 02:
I think that referenced the holiday season or Christmas.

[00:32:29] Speaker 03:
Did you say find the perfect gift?

[00:32:31] Speaker 02:
I think you could if you then clicked, if you then went to the URL and what you saw was a photograph of a toaster or an espresso machine, yes.

[00:32:42] Speaker 02:
Right.

[00:32:43] Speaker 02:
But that's not viewpoint discrimination.

[00:32:45] Speaker 02:
And I think the key.

[00:32:46] Speaker 03:
Well, a secular Christmas ad and not a religious Christmas ad is not viewpoint discrimination?

[00:32:51] Speaker 02:
Because the secular ad is a commercial ad to promote a product.

[00:32:57] Speaker 02:
The FindPerfectGift.org ad is an invitation

[00:33:01] Speaker 02:
to worship.

[00:33:02] Speaker 02:
The Archdiocese itself describes it as proselytization.

[00:33:05] Speaker 03:
It is not within the – this is – That's the exact argument that was in Good News and Lance Chapel and Rosenberger, that there was a distinction between religion as a subject matter or religious worship on the one hand.

[00:33:19] Speaker 03:
and religious viewpoints about other topics on the other.

[00:33:22] Speaker 03:
And what Rosenberger said was you can't divide those two things, that religion, sure, it's a subject matter of inquiry, but it also provides a perspective, a standpoint, a specific premise from which a variety of subjects may be discussed and considered.

[00:33:41] Speaker 03:
And that's why you have to look at what is the subject they want to discuss.

[00:33:45] Speaker 02:
And again, I think the key difference in Rosenberger was that in Rosenberger, the forum was open so that there could be debate by student organizations about birth control and abortion and gay rights and a whole range of topics.

[00:34:00] Speaker 02:
You just couldn't discuss those topics that were otherwise open to the forum from a religious

[00:34:04] Speaker 03:
So to here, you have charitable giving that's allowed from a secular charitable giving perspective, but not a religious.

[00:34:13] Speaker 03:
Ads that reference Christmas from a secular perspective, but not a religious.

[00:34:18] Speaker 02:
Let's break those down.

[00:34:19] Speaker 02:
Charitable giving?

[00:34:20] Speaker 02:
I don't think that's right, Your Honor.

[00:34:23] Speaker 02:
I think the Salvation Army ad proves that that's not right.

[00:34:26] Speaker 02:
If the archdiocese wanted to come in and run an ad that said,

[00:34:31] Speaker 02:
please give to Catholic charities.

[00:34:34] Speaker 02:
That would be like the Salvation Army ad.

[00:34:37] Speaker 02:
The fact that it was a religious speaker would not exclude it from the form.

[00:34:40] Speaker 02:
It would be included in the form for the same reason.

[00:34:43] Speaker 02:
But that's not what this ad does.

[00:34:44] Speaker 02:
So, yes, it has charitable giving.

[00:34:46] Speaker 02:
That ad would be allowed?

[00:34:47] Speaker 02:
Yes, it would be allowed.

[00:34:49] Speaker 02:
But and that would and that's one and as Judge Rogers indicated.

[00:34:52] Speaker 03:
How is that different from find the perfect gift?

[00:34:55] Speaker 02:
Well, because find the perfect gift when you follow the link, you go to the URL, what you find is an invitation to worship, an invitation to embrace Catholic principles, and included in it is a charitable giving request.

[00:35:12] Speaker 02:
But it's embedded in a context in which when you click on it, that's the message you get, and it's the message they intend, and it's the message everyone understands.

[00:35:19] Speaker 02:
And we think that's a fundamental difference.

[00:35:20] Speaker 02:
Now, with respect to the subject of Christmas, if somebody wanted to run an ad saying,

[00:35:25] Speaker 02:
look, there's a war on Christmas.

[00:35:28] Speaker 02:
We would reject that ad.

[00:35:29] Speaker 02:
If somebody wanted to run an ad saying the war on Christmas is overblown, we would reject that ad.

[00:35:34] Speaker 02:
If somebody wanted to run an ad saying Christmas has become too material, we'd reject that ad.

[00:35:39] Speaker 02:
If somebody wanted to run an ad saying celebrate Kwanzaa instead of Christmas, we reject that ad.

[00:35:43] Speaker 02:
And the reason for that, Your Honor, is because

[00:35:45] Speaker 02:
If you look at our policy, I think, I think that... That wouldn't be on Guideline 12.

[00:35:49] Speaker 02:
Well, the key, yes, but the key thing is... Am I right?

[00:35:52] Speaker 02:
That would not be on Guideline 12.

[00:35:53] Speaker 02:
Well, I think probably the last one would be.

[00:35:55] Speaker 02:
Of my examples, the others probably wouldn't be.

[00:35:57] Speaker 02:
But I think the key thing here is that you have to look at the policy as a whole because the baseline matters.

[00:36:04] Speaker 02:
And if you look at JA206, you'll see the policy is that unlike, and I think just in distinct contradistinction to the forums at issue in Rosenberger and Good News and Lamb's Chapel, what WMATA did here, based on its experience, was make a judgment that it was going to close the forum to all issue-oriented advertising

[00:36:26] Speaker 03:
I think that's a bit of a distraction, but correct me if I'm wrong, and here's why I think it's a bit of a distraction.

[00:36:34] Speaker 03:
You have all these other guidelines that may exclude a particular ad.

[00:36:38] Speaker 03:
But if a proposed ad makes it through all the other guidelines, then you get to Guideline 12.

[00:36:44] Speaker 03:
And Guideline 12 is going to say you're in

[00:36:47] Speaker 03:
if you're not religious and you're out if you're religious.

[00:36:51] Speaker 03:
And so guideline 12 is doing all the work for that subset of ads that make it through the other guidelines.

[00:36:56] Speaker 02:
You're in if you're promoting or opposing religious belief or practice.

[00:37:02] Speaker 02:
And that is one of the – and that is in the bucket of ads that the WMATA has decided that as a categorical matter give rise to the kinds of contention and divisiveness that it is trying to

[00:37:17] Speaker 02:
avoid having occur.

[00:37:19] Speaker 03:
Suppose, suppose, and I know how you're going to answer this hypothetical, but I want to use it to explore your position.

[00:37:25] Speaker 03:
So a policy that says no advertisements that promote or oppose Judaism, any Jewish practice or any Jewish belief, constitutional or unconstitutional?

[00:37:37] Speaker 02:
I think that that would be unconstitutional.

[00:37:39] Speaker 03:
Why is that different from religious religion, any religious practice or any religious belief?

[00:37:45] Speaker 02:
Well, because in that situation, I think it goes back to the baseline.

[00:37:47] Speaker 02:
In that situation, discussions promoting or opposing Christianity or Islam or any other religion would be in the forum.

[00:37:55] Speaker 02:
Right.

[00:37:55] Speaker 02:
And so.

[00:37:56] Speaker 03:
Okay.

[00:37:56] Speaker 03:
And here's the problem, which I see at the heart of this, one of the two problems at the heart of this, which is it is

[00:38:05] Speaker 03:
believed that discriminating against all religions is OK, discriminating against individual religions not OK.

[00:38:14] Speaker 03:
But the Supreme Court has said that's wrong, that to discriminate against Catholicism, Protestantism, Mormonism, Islam, Judaism as a class is discrimination against religion.

[00:38:28] Speaker 03:
And that, in the words of the Chief Justice last year for six justices, is odious to our Constitution.

[00:38:34] Speaker 02:
But I think the right way to think about this, Your Honor, is that we understand, we acknowledge, these topics are important topics for discussion in our society.

[00:38:47] Speaker 02:
We understand that.

[00:38:49] Speaker 02:
But WMATA is running a transit system.

[00:38:53] Speaker 02:
its goal, its mission here is not the mission of the committee.

[00:38:56] Speaker 03:
No, it's running a public forum.

[00:38:59] Speaker 03:
You can't get out of this by saying, oh, we're just a bus company.

[00:39:02] Speaker 03:
Once you open it for private speech, not your speech, Metro could do whatever it wants as its own speech.

[00:39:10] Speaker 03:
But once you open a forum for private speakers,

[00:39:13] Speaker 03:
As the Chief Justice again said last year, the idea that you can say no churches need apply is odious to our Constitution.

[00:39:20] Speaker 03:
Well, we don't say that, of course, if a church wants to... No church that wants to do religious speech or promote its belief.

[00:39:27] Speaker 03:
No church that wants to promote its belief

[00:39:30] Speaker 03:
can get a spot.

[00:39:32] Speaker 03:
They're excluded because of their religion.

[00:39:34] Speaker 02:
So I do think, Your Honor, that the starting place for the analysis here is that this is a, whether you call it a limited public forum, non-public forum, whatever the nomenclature is, that's what it is.

[00:39:44] Speaker 02:
That means, by definition, that the government is entitled to make content-based categorical judgments.

[00:39:52] Speaker 02:
And the content-based categorical judgment that the government made here was that it was going to exclude all issue-oriented advertising.

[00:40:01] Speaker 03:
That's different.

[00:40:02] Speaker 03:
The issue ads are different from Guideline 12.

[00:40:04] Speaker 03:
You could ban issue ads and the ACLU is going to be litigating that in the other cases.

[00:40:09] Speaker 03:
That's fine.

[00:40:09] Speaker 03:
But then on top of that, you have the ban on religious ads.

[00:40:13] Speaker 03:
So I know why you keep folding it back into the issue ads, and I would do the same thing, but I just don't think that gets you.

[00:40:18] Speaker 02:
So I do think because they hold the potential just like

[00:40:22] Speaker 02:
ads about politics or just like ads about social issues like abortion or gay rights, they hold to the potential to create the kind of divisiveness and disruption that WMATA is trying to avoid, because that is incompatible with it carrying out its mission of running an effective transit system.

[00:40:42] Speaker 02:
And that is true whether the ads are religious or not.

[00:40:46] Speaker 03:
But what would happen on an effective transit system if you ran a religious ad

[00:40:51] Speaker 03:
The buses aren't effective anymore?

[00:40:53] Speaker 02:
I don't get that.

[00:40:56] Speaker 02:
So this is obviously a benign ad, but we have to make categorical judgments about categories in order to avoid claims of viewpoint discrimination, and the avoidance of viewpoint discrimination is high bar.

[00:41:09] Speaker 02:
with respect to this ad, fine.

[00:41:11] Speaker 02:
But if you look, for example, at J.A.

[00:41:13] Speaker 02:
268, you'll look at an ad that once ran when Mamata was an open public forum, which was an ad very critical of the Catholic bishops.

[00:41:22] Speaker 02:
That was a highly contentious ad.

[00:41:24] Speaker 02:
And the way in which it affected adversely the operation of the transit system is

[00:41:29] Speaker 02:
It's damaging to the morale.

[00:41:31] Speaker 02:
It's damaging to the morale, for example, of Catholic employees who may be driving the police.

[00:41:35] Speaker 03:
That's a reason to close the forum.

[00:41:37] Speaker 03:
This is the problem.

[00:41:38] Speaker 03:
Once government opens a forum, it's going to, for public speech, guess what?

[00:41:44] Speaker 03:
There's going to be some offensive speech in there.

[00:41:46] Speaker 02:
Respectfully, Your Honor.

[00:41:47] Speaker 03:
That's what the Supreme Court has said in the Matal case last year.

[00:41:50] Speaker 03:
It said giving offense is a viewpoint.

[00:41:52] Speaker 02:
Of course, Matal was not a forum case.

[00:41:55] Speaker 03:
But it talked a lot about viewpoint discrimination, made clear that giving offense is itself a viewpoint, made clear in very strong terms in both four justice opinions that the government can never say

[00:42:09] Speaker 03:
Oh, because something is deemed offensive by society, we can remove that from the public square, that private speech from the public square.

[00:42:19] Speaker 02:
Well, I think, Your Honor, that that was exactly the basis on which the policy at issue, the transit policy at issue in Lehman was upheld.

[00:42:26] Speaker 02:
And the language now admittedly is a plurality opinion, but I do think Justice Douglas agreed in all respects with this aspect of the opinion.

[00:42:34] Speaker 02:
So it carried five votes, and courts of appeals for 40 years have been applying it as though it were

[00:42:39] Speaker 02:
the law.

[00:42:40] Speaker 02:
It was specifically what the court said in that opinion was that the transit authority does have the discretion to limit its forum to innocuous and non-controversial commercial and service-oriented advertising.

[00:42:55] Speaker 03:
They allowed religious speech.

[00:42:57] Speaker 03:
They allowed church ads.

[00:42:59] Speaker 02:
But I do want to, if I might, just digress for a second, and I'll come back to you.

[00:43:05] Speaker 02:
Just to go back to a question that you asked, Judge Wilkins, about the political ad.

[00:43:10] Speaker 02:
layman answers that layman was a political act and the court held that that advertising could be categorically excluded and certainly that the certainly religious speech is of very great value under the first amendment but it's not of greater value than core political speech on the on the

[00:43:29] Speaker 02:
on the subject of who should be elected to office, and the Court held in Lehman that that core political speech could be excluded.

[00:43:36] Speaker 03:
And so— And I think on the case law, what I understand that to be is you can wall off politics as a subject matter.

[00:43:45] Speaker 03:
And your point would be—

[00:43:46] Speaker 03:
we can wall off religion as a subject matter.

[00:43:49] Speaker 03:
And the problem I have with that are the cases, the three cases that say you can't really distinguish religion as a subject matter from a religious viewpoint once you identify another subject matter.

[00:44:02] Speaker 03:
So I'm going to read from good news.

[00:44:03] Speaker 03:
We disagree that something that is quintessentially religious or decidedly religious in nature cannot also be characterized properly as the teaching of morals and character development from a particular viewpoint.

[00:44:16] Speaker 03:
And then it quotes Judge Jacobs, when the subject matter is morals and character, it is quixotic to attempt a distinction between religious viewpoints and religious subject matters.

[00:44:28] Speaker 03:
What do you think we should make of that language in the Supreme Court's opinion?

[00:44:32] Speaker 02:
I think the critical point there, and what I think the Court is saying, is that once the government has made a choice to open the non-public forum,

[00:44:45] Speaker 02:
to speech on the topic of child rearing and morality, it cannot then say, but you can't address that topic from a religious perspective.

[00:44:56] Speaker 02:
And that's the fundamental difference here.

[00:44:58] Speaker 02:
This is essentially a forum that is open for advertising for commercial products and services and service-oriented acts.

[00:45:05] Speaker 03:
That is not correct.

[00:45:06] Speaker 03:
It is not just commercial.

[00:45:08] Speaker 02:
It's not just commercial.

[00:45:09] Speaker 02:
And service-oriented.

[00:45:12] Speaker 02:
public service ads, but the line is, you look at 206 and the guidelines, including Guideline 12, implement the policy judgment that's there at JA206, that it's taking off the table all issue-oriented advertising because the potential for division and contention is incompatible with the effective operation of the transit system.

[00:45:34] Speaker 02:
That's the judgment they made.

[00:45:36] Speaker 02:
That's the judgment that they are allowed to make under the law.

[00:45:39] Speaker 02:
And that's why the baseline is so critical.

[00:45:41] Speaker 03:
If you open— I think the key is whether you can identify a topic that is permissible within the forum.

[00:45:47] Speaker 03:
Do you agree or disagree with that?

[00:45:49] Speaker 02:
I think yes, but the question is how.

[00:45:53] Speaker 02:
And I think what you do is start with the lines the government had drawn.

[00:45:57] Speaker 02:
After all, Rosenberger, quoting Cornelius, said that the key here is that the government has to respect the lines that it itself has drawn.

[00:46:06] Speaker 02:
And so what you've got to do is start with the lines the government has drawn.

[00:46:10] Speaker 02:
And the line the government drew here excludes all issue-oriented advertising with religious advertising as a subset.

[00:46:18] Speaker 02:
And the key difference in all of those cases is that the lines the government drew created a forum designed to encourage wide open robust and uninhibited debate on public issues and issues of importance.

[00:46:32] Speaker 02:
The forum here is designed to do exactly the opposite because that kind of wide open robust debate that we think on the side of a bus or in the metro cars is detrimental to our ability to operate effectively.

[00:46:46] Speaker 02:
You know, I understand that my friends on the other side want to cabin this to religion, but several things about that.

[00:46:53] Speaker 02:
I think it's important to understand that there just is no limit to the argument my friends on the other side are advocating.

[00:47:01] Speaker 02:
With religion itself, if we run this ad, if we run the Find the Perfect Gift ad, it seems to me there is no argument available to us that we could foreclose

[00:47:11] Speaker 02:
running the ad, which you can see at page 268 of the Joint Appendix, criticizing the Catholic bishops.

[00:47:17] Speaker 02:
If we run an ad promoting the Catholic faith, viewpoint discrimination, viewpoint neutrality would require us to run an ad criticizing the Catholic faith as well, which would then in turn require us to run an ad criticizing Islam or criticizing Judaism, and we would be in exactly the situation in which

[00:47:34] Speaker 02:
we are trying to avoid, and in which the Supreme Court in Lehman said we had the constitutional authority to avoid.

[00:47:39] Speaker 02:
And it isn't, you just can't limit that principle to religious speech.

[00:47:46] Speaker 02:
For example, if we run an ad for the Dodge Ram 1500, then somebody can come in and say, well, you know, you're encouraging low fuel economy, so the NRDC can come in and say, hey, climate change is a big problem.

[00:48:00] Speaker 02:
and you should not be – and we should be paying more attention to fuel economy.

[00:48:05] Speaker 02:
This isn't hypothetical, you know.

[00:48:06] Speaker 02:
We run ads for McDonald's, and we have been sued by PETA.

[00:48:10] Speaker 04:
Even if we were to accept that argument and say that, well, on its face, this isn't viewpoint discrimination,

[00:48:19] Speaker 04:
What about the contention that, well, as applied here, it's viewpoint discrimination because the Salvation Army ad was allowed to run and this one wasn't?

[00:48:37] Speaker 02:
So two answers to that.

[00:48:39] Speaker 02:
First, there is a fundamental difference between the Salvation Army ad and this ad in that, as we said,

[00:48:49] Speaker 02:
If the archdiocese wanted to run an ad that's essentially equivalent to the Salvation Army ad, we would run it.

[00:48:55] Speaker 02:
So we don't think that there's discriminatory application here.

[00:48:58] Speaker 02:
We don't think that the argument about the yoga ad is really a very serious argument with respect to discrimination.

[00:49:05] Speaker 02:
So I don't think you have a record on which you could find and impose a preliminary injunction that there's discriminatory enforcement here.

[00:49:10] Speaker 02:
But beyond that, I think the critical point is any time you're operating in a situation where there is a non-public forum,

[00:49:19] Speaker 02:
the government has the authority to make categorical content-based judgments.

[00:49:24] Speaker 02:
That means some things are going to be in and some things are going to be out.

[00:49:27] Speaker 02:
And that, in turn, means that some things are going to be close to the line.

[00:49:31] Speaker 02:
And it can't be right that the government has to bat a thousand in making those judgments about what's on what side of the line to avoid the claim that it's engaged in view.

[00:49:39] Speaker 04:
But on an as-applied attack, we don't care whether they bat a thousand generally.

[00:49:45] Speaker 04:
We care whether they got it wrong this time.

[00:49:48] Speaker 02:
Well, right.

[00:49:49] Speaker 02:
But I guess what I'm saying, Your Honor, is that even if you thought we got it, there's two ways of looking at it.

[00:49:56] Speaker 02:
One is that we got it wrong because we should have run this ad in addition to the Salvation Army ad.

[00:50:02] Speaker 02:
The other way would be, of course, that we got it wrong and that we shouldn't have run the Salvation Army ad either.

[00:50:10] Speaker 02:
But I – and I guess that's why I'm saying that even in an as-applied context, before you would decide that there was discriminatory enforcement, I would hope the Court would want a much more robust record that you have here.

[00:50:20] Speaker 02:
And I do think that's a serious problem both with the as-applied and also with respect to the general challenge here in that my friends on the other side are making an argument that

[00:50:30] Speaker 02:
you know, just look at this, all these ads would be in, but our ad would be out.

[00:50:36] Speaker 02:
But they were all, it's just one hypothetical after another after another.

[00:50:39] Speaker 03:
I mean, that's true, but on the general policy, that was the same point in good news that was raised at oral argument in good news, that we didn't know what the Boy Scouts really did at their meeting and the counsel argued that the record was underdeveloped, but it was accepted that you could discuss

[00:50:57] Speaker 03:
character and morals in the forum, and that was good enough for the Supreme Court.

[00:51:03] Speaker 03:
And here it's accepted, you've said, that you can have ads on charitable giving and that reference Christmas.

[00:51:09] Speaker 03:
And so the question really is whether that topic

[00:51:12] Speaker 03:
is something that can be referenced from a secular perspective and not a religious perspective.

[00:51:17] Speaker 03:
You might disagree with the phrasing, but there's no doubt, you're not disputing, let me just get this nailed down, you're not disputing that charitable giving ads are permitted on the buses.

[00:51:31] Speaker 02:
No, we're not.

[00:51:32] Speaker 03:
That's all I need on that.

[00:51:36] Speaker 03:
But you can add to it.

[00:51:37] Speaker 03:
But let me get the other one out, which is you're not disputing that ads promoting products and that also reference Christmas are permitted.

[00:51:46] Speaker 02:
That's correct.

[00:51:47] Speaker 02:
But with respect to charitable giving, I think

[00:51:51] Speaker 02:
it really would depend on the content of the advertisement.

[00:51:55] Speaker 02:
An advertisement just promoting charitable giving, certainly in.

[00:51:59] Speaker 02:
With respect to charity and with respect to products, it's in the category of commercial advertisements, which we accept.

[00:52:11] Speaker 02:
But an advertisement

[00:52:13] Speaker 02:
to come worship is just not in the category of commercial advertisements.

[00:52:17] Speaker 02:
It's not in the category we accept.

[00:52:19] Speaker 02:
And if we, you know, if we came back, you know, if the worship, I mean, that is Widmore.

[00:52:24] Speaker 03:
There are other cases which talk about worship.

[00:52:28] Speaker 03:
In Rosenberger, the Supreme Court, when talking about Widmore, this is an exact quote from Rosenberger.

[00:52:33] Speaker 03:
The dissent fails to establish that the distinction between religious speech and speech about religion has intelligible content.

[00:52:42] Speaker 03:
You're saying it does have intelligible content, but the Supreme Court in Rosenberg, quoting Woodmar, said no, it does not have intelligible content.

[00:52:50] Speaker 02:
No, I just think this is quite a different context.

[00:52:53] Speaker 02:
Here what you're talking about, the kinds of ads we accept are commercial ads and service-oriented advertising.

[00:53:03] Speaker 02:
That's what we accept.

[00:53:04] Speaker 02:
If we came back with a policy that just said didn't have the – basically one of the issues here is

[00:53:10] Speaker 02:
We're – this is a policy that defines out what can be said as opposed to defining in what can be said.

[00:53:17] Speaker 02:
And – but I think the key thing here, and this critical distinction from Rosenberger, Lambs Chapel, and Good News, is it defines out a huge range of

[00:53:30] Speaker 02:
What is defined in is a narrow range of expression.

[00:53:34] Speaker 02:
And so in that respect, it's really the polar opposite of those cases.

[00:53:38] Speaker 03:
And the other thing is that I think I'm going to be repeating myself, but just on that point.

[00:53:45] Speaker 03:
I'm not sure that matters, the broader narrowness of what's out.

[00:53:49] Speaker 03:
It might be a lot out.

[00:53:50] Speaker 03:
It might be very little out.

[00:53:52] Speaker 03:
What matters is what is in, whether that's small or large.

[00:53:56] Speaker 03:
And then you figure out within what is in, what topics are permissible.

[00:54:01] Speaker 03:
And you've said what you said about what topics are permissible.

[00:54:04] Speaker 03:
And then the question is, once you have those topics that are permissible, are you allowing a secular ad and not a religious ad, regardless of how much else is excluded, a lot or a little?

[00:54:15] Speaker 03:
So I'm not sure that – I think I'm saying what I said before, but I'm not sure the broad, narrow thing really gets us very far.

[00:54:21] Speaker 02:
I do think it gets – I do think it's important, because the question is whether when one of the subject matters that is excluded is the subject matter of religion, does that operate to create a viewpoint discrimination?

[00:54:36] Speaker 03:
And doesn't Rosenberger say yes, it does, because it is a subject matter, but it is also a perspective, a premise, a standpoint?

[00:54:45] Speaker 02:
It does if it operates to preclude speech from the religious perspective about subjects that are otherwise open for discussion in the forum.

[00:54:58] Speaker 03:
And that is about this case, the charitable giving and the ads.

[00:55:02] Speaker 02:
Well, with respect to charitable giving, no, because the charitable giving alone isn't.

[00:55:09] Speaker 02:
Charitable giving alone is in.

[00:55:11] Speaker 02:
Charitable giving as part of an overall message of proselytizing is not in because the message of proselytizing is there.

[00:55:21] Speaker 02:
And so – and that's the difference.

[00:55:22] Speaker 02:
And then with respect to Christmas, again, the subject matter of Christmas is not an available subject matter for this forum.

[00:55:30] Speaker 03:
There are all kinds of discussions about Christmas that can't take place.

[00:55:35] Speaker 02:
I mean, yeah, for commercial products.

[00:55:39] Speaker 02:
Right, for commercial products.

[00:55:42] Speaker 02:
And so, you know, I suppose if a religious organization wanted to sell a commercial product, if the Trappist monks wanted to sell a commercial

[00:55:50] Speaker 02:
chime ale, holiday brew ale, they would be able to do that.

[00:55:54] Speaker 02:
Because it's not based on whether the speaker's a religious organization.

[00:55:58] Speaker 02:
It's based on whether the subject matter's within the forum.

[00:56:02] Speaker 02:
But proselytizing is not within the forum.

[00:56:06] Speaker 02:
And I do think that that's the critical difference between

[00:56:11] Speaker 02:
Rosenberger and Lamp's Chapel on good news.

[00:56:13] Speaker 04:
Can I just get you to clarify something?

[00:56:16] Speaker 04:
The commercial guidelines that were amended that appear at JA-208 say they are guidelines governing commercial advertising.

[00:56:33] Speaker 04:
So do these guidelines apply to service-oriented ads as well?

[00:56:40] Speaker 02:
Yes, it's my understanding that these guidelines are comprehensive.

[00:56:43] Speaker 04:
So they apply to everything?

[00:56:45] Speaker 02:
Any ad that gets submitted, these guidelines would apply to it.

[00:56:49] Speaker 02:
And in fact, I realize I've overstayed my welcome.

[00:56:51] Speaker 02:
I have some more questions on the other topics we haven't covered.

[00:56:55] Speaker 02:
May I make one more point?

[00:56:56] Speaker 00:
I just want to go back, though, before you get to a new topic.

[00:57:00] Speaker 00:
What's your response to the notion that the Salvation Army ad says give?

[00:57:09] Speaker 00:
It doesn't say to what.

[00:57:13] Speaker 00:
Yet you, in response to a question, said it would be permissible under the policy to run an ad by the archdiocese saying give to Catholic charities.

[00:57:31] Speaker 00:
Why isn't that promoting?

[00:57:35] Speaker 00:
the Catholic religion or whatever religion.

[00:57:38] Speaker 02:
Because we don't think that it's an ad that promotes or opposes religion.

[00:57:45] Speaker 02:
It's an ad encouraging charitable giving in the same way that the Salvation Army ad is.

[00:57:50] Speaker 00:
But that doesn't have the limit of a service or a commercial product.

[00:57:57] Speaker 02:
Well, we think it's service-oriented in that sense, that it's trying to encourage charitable giving, which is a good thing irrespective of its religious or non-religious motivation.

[00:58:08] Speaker 00:
So is the assumption that the charitable giving to the Salvation Army will only go to Christian charities?

[00:58:16] Speaker 02:
Well, I don't know where it goes.

[00:58:18] Speaker 02:
It goes where it goes, but it's not it.

[00:58:20] Speaker 00:
I know, but I thought it was an interesting notion.

[00:58:23] Speaker 00:
And when you said Catholic charity giving would be permissible,

[00:58:27] Speaker 00:
Then it seems to me you're getting very close to what you and Judge Kavanaugh are discussing, aren't you?

[00:58:32] Speaker 02:
Yeah, I don't.

[00:58:33] Speaker 02:
You know, we don't see it that way.

[00:58:35] Speaker 02:
We see that as a neutral application of the guidelines because it doesn't cover anything.

[00:58:41] Speaker 02:
If I could just go for a minute to the question of whether this is a non-public forum.

[00:58:47] Speaker 03:
Can I, before you get to that, get to the reasonableness prong of the First Amendment test, which also blends, I think, into equal protection and free exercise.

[00:58:56] Speaker 03:
So putting aside the intricacies of viewpoint discrimination, why is it ever reasonable

[00:59:02] Speaker 03:
for the government to exclude a religious speaker or religious speech from a limited public forum because of religion.

[00:59:12] Speaker 03:
Why is that ever reasonable?

[00:59:14] Speaker 02:
Well, if the government makes a judgment that, as it did here, that categories of speech that contain the potential for divisive, contentious dialogue and debate is inconsistent with the purpose of the forum,

[00:59:32] Speaker 03:
Then is all religious speech of that nature?

[00:59:36] Speaker 02:
No, but we have to make.

[00:59:38] Speaker 03:
Couldn't you have separate categories that prohibited incitement?

[00:59:41] Speaker 03:
And if the religious speech qualified as incitement, it could be prohibited.

[00:59:45] Speaker 03:
But here, you're prohibiting all religious speech because it's religious.

[00:59:50] Speaker 03:
Because it's religious.

[00:59:53] Speaker 03:
And the Supreme Court has such a long line of cases, McDaniel, and Smith, and Lakumi, and Trinity Lutheran.

[01:00:01] Speaker 03:
The exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified solely because it is a church is odious to our Constitution.

[01:00:11] Speaker 03:
That's six justices last year.

[01:00:14] Speaker 03:
Singling out of imposing special disabilities on the basis of religious views or religious status.

[01:00:22] Speaker 03:
You can't do that.

[01:00:23] Speaker 03:
That's Smith.

[01:00:25] Speaker 03:
a benefit solely because of his status, denying a benefit solely because of his status as a minister.

[01:00:30] Speaker 03:
That's McDaniel.

[01:00:32] Speaker 03:
May not discriminate against some or all religious beliefs.

[01:00:36] Speaker 03:
That's Lakumi.

[01:00:38] Speaker 03:
I am not aware of any case where the Supreme Court has said you can discriminate against someone, religious speech or religious speaker, because of religion.

[01:00:47] Speaker 03:
No case.

[01:00:48] Speaker 03:
No case has said that.

[01:00:49] Speaker 03:
And all of these cases were more difficult because you had an establishment clause issue at the back end with the schools and the funding.

[01:00:57] Speaker 03:
There's no establishment clause issue at the back end here.

[01:00:59] Speaker 03:
This is just pure discrimination without the back end establishment clause defense.

[01:01:06] Speaker 03:
And I just don't know

[01:01:07] Speaker 03:
I'm stating my view on this, but I don't know how you read those cases and say, here, it's because of religion.

[01:01:15] Speaker 03:
And you rightly go to the incitement.

[01:01:16] Speaker 03:
I understand that.

[01:01:17] Speaker 03:
But you have separate guidelines that can do that.

[01:01:19] Speaker 03:
Guideline 12 is because it's religious.

[01:01:22] Speaker 03:
Because it's religious, we're going to exclude it.

[01:01:24] Speaker 03:
I've never seen anything like that in any Supreme Court case outside the setting where there's an establishment close issue.

[01:01:32] Speaker 02:
I appreciate your Honor's point.

[01:01:34] Speaker 02:
But I disagree with it in numerous respects.

[01:01:38] Speaker 02:
First, that this is not discrimination against anyone because of their status as a religious organization.

[01:01:47] Speaker 02:
Because of their religious speech.

[01:01:49] Speaker 02:
Certainly not because of their status.

[01:01:51] Speaker 03:
Said religious speech or religious speaker each time I said it.

[01:01:53] Speaker 03:
So one of the two.

[01:01:55] Speaker 02:
It certainly isn't status.

[01:01:56] Speaker 02:
It applies to everybody.

[01:01:58] Speaker 02:
And it applies whether you want to promote or oppose religion.

[01:02:01] Speaker 02:
So there isn't that kind of status-based judgment here.

[01:02:04] Speaker 02:
And with respect to the speech, I think

[01:02:07] Speaker 02:
This speech is, as you repeated yourself before, I guess I'm going to do it again.

[01:02:12] Speaker 02:
It is a subcategory of issue-oriented advertising.

[01:02:17] Speaker 02:
And that is the kind of judgment that if this is a non-public forum, which it is, that WMATA has the authority to make.

[01:02:28] Speaker 02:
Certainly we could have adopted an incitement standard, but there's two things about that.

[01:02:34] Speaker 02:
One is that the incitement, you know, incitement is a very high bar under the First Amendment.

[01:02:39] Speaker 02:
It wouldn't exclude, for example, the ad that's at page 268, which we think causes the kinds of problems that are inconsistent with our ability to operate effectively.

[01:02:48] Speaker 02:
It's the ad attacking the Catholic bishops.

[01:02:51] Speaker 02:
And so it wouldn't exclude ads like that, so it doesn't accomplish the objectives that we're trying to accomplish here of creating a space that – and I think the Thanksgiving dinner table is a good analogy.

[01:03:02] Speaker 02:
We're trying to create a space in which the kind of divisive, potentially divisive, robust debates that ought to occur in other places don't occur in this forum because we have learned through hard experience

[01:03:16] Speaker 02:
that allowing those kinds of debates to occur in this forum are inconsistent with our ability to operate effectively.

[01:03:22] Speaker 02:
And that's – and I think that's a judgment we are entitled to make.

[01:03:25] Speaker 02:
That is not discrimination against religion.

[01:03:28] Speaker 02:
That is a judgment about what kind of speech we want to have in this forum that is very, very limited.

[01:03:34] Speaker 02:
It's a very limited category of speech in the forum.

[01:03:38] Speaker 02:
And religious speakers, if they are speaking about those permitted categories, can speak.

[01:03:43] Speaker 03:
On the divisiveness, I mean, Mattal last year, Justice Kennedy said, the government may not insulate a law from charges of viewpoint discrimination by tying censorship to the reaction of the speaker's audience.

[01:03:59] Speaker 03:
So why does the reaction of the speaker's audience matter?

[01:04:02] Speaker 02:
Well, because that wasn't in a public forum context, Your Honor, and in a public forum context, the government does get to make these kinds of judgments.

[01:04:09] Speaker 02:
That is precisely, with all due respect, what the Supreme Court held in Lehman.

[01:04:14] Speaker 02:
that the government could make the judgment to avoid the kind of giving offense that the political ad might do on the bus.

[01:04:22] Speaker 03:
But on the Matal's not a public forum case.

[01:04:25] Speaker 03:
He's talking more generally about First Amendment principles there and says, the court's cases have long prohibited the government from justifying a First Amendment burden by pointing to the offensiveness of the speech to be suppressed.

[01:04:36] Speaker 02:
So another place I think that is a public forum context that shows that that principle has – is more limited than I think Your Honor's question suggests is Cornelius, of course, which is really the foundational case in this area.

[01:04:48] Speaker 02:
The very argument that was made against excluding the charitable solicitations in Cornelius by

[01:04:55] Speaker 02:
by advocacy organizations like the NAACP was that inclusion of those kinds of organizations in the charitable giving under the combined federal campaign was going to create controversy.

[01:05:07] Speaker 02:
Some people would be offended by that.

[01:05:09] Speaker 02:
It would diminish the overall effectiveness of the program.

[01:05:12] Speaker 02:
That was the very reason that was given for drawing a line that was drawn between charitable organizations that provide direct services to people versus charitable organizations that engage in advocacy.

[01:05:24] Speaker 02:
The court said that was fine as a categorical matter, even though it was about controversy and about giving offense.

[01:05:32] Speaker 02:
And that is because when you're talking about a non-public forum, you are operating under a different set of principles than apply.

[01:05:39] Speaker 02:
If this was a park, a traditional public forum, of course that principle would apply.

[01:05:44] Speaker 02:
Of course it would apply.

[01:05:45] Speaker 03:
So on the public forum, why is the exterior of the bus not different?

[01:05:49] Speaker 03:
So I'm switching to that.

[01:05:51] Speaker 03:
The public forum, why is the exterior of the bus not different from the interior of the bus?

[01:05:55] Speaker 03:
And Justice Douglas's opinion, which was the deciding vote, seemed to rely, although it's murky, on the captive audience point.

[01:06:04] Speaker 02:
So may I make a preliminary point and then I'll come back to it?

[01:06:07] Speaker 02:
I do think if the Court looks at JA 420, you will see in black and white that my friends on the other side

[01:06:14] Speaker 02:
concede that this was a limited public forum.

[01:06:18] Speaker 02:
This is a limited public forum.

[01:06:19] Speaker 02:
It's not a general public forum.

[01:06:21] Speaker 03:
That's the answer.

[01:06:23] Speaker 03:
We'll look at that.

[01:06:24] Speaker 03:
But they preserved it, I thought, at each stage.

[01:06:26] Speaker 03:
But in any event, we'll figure that out ourselves.

[01:06:28] Speaker 03:
On the question of the exterior of the bus, why is that not different from the interior of the bus?

[01:06:36] Speaker 03:
for purposes of Justice Douglas's deciding vote in layman.

[01:06:40] Speaker 02:
So I think with respect to, let's look at the plurality first.

[01:06:45] Speaker 02:
The plurality relied on an old Supreme Court case, Packer, which was about billboards.

[01:06:51] Speaker 02:
So it obviously was including, it was obviously including in its analysis speech that could be seen out in the public generally.

[01:07:01] Speaker 02:
So I don't think you can

[01:07:03] Speaker 02:
get that distinction.

[01:07:04] Speaker 02:
I agree.

[01:07:04] Speaker 03:
That's a good point for you.

[01:07:06] Speaker 03:
But I do think Justice Douglas's point seemed to rest, and it's unclear ultimately, and the plurality on rest might be too strong.

[01:07:15] Speaker 03:
But it seemed to note the captive audience point.

[01:07:18] Speaker 02:
Sure.

[01:07:18] Speaker 02:
And that's one of the considerations.

[01:07:20] Speaker 02:
But I do think you've got to measure the reasonableness of the – I think in thinking about the right way to think about this, whether it's a traditional public forum or a non-public forum,

[01:07:31] Speaker 02:
We're going to think about the government's interests here.

[01:07:35] Speaker 02:
And our interests, the interests in the ridership satisfaction and the employee morale and the administrative burdens and the vandalism and the safety risks, all of the justifications for adopting this set of restrictions to close the forum in the way that we did, all of those apply equally.

[01:07:55] Speaker 02:
the ads on the outside of the bus or on the inside of the bus.

[01:07:59] Speaker 03:
Well, part of the argument, there was a comparison to loudspeakers in the bus.

[01:08:05] Speaker 03:
And Justice Douglas made that comparison and said, you can't avoid seeing the ads in the bus just like you couldn't avoid a loudspeaker.

[01:08:14] Speaker 03:
Now the dissent, Justice Brennan's dissent for four justices just took that apart, but put that aside.

[01:08:20] Speaker 03:
When you're on the exterior of the bus,

[01:08:22] Speaker 03:
you're not forced to look at it.

[01:08:25] Speaker 03:
It's more like a picket walking down, one could say, and tell me why it's not correct.

[01:08:30] Speaker 03:
One could say it's more like a picket, someone walking down the sidewalk with a sign is the same as the bus moving down the road with your sign.

[01:08:38] Speaker 03:
How are those two things different?

[01:08:40] Speaker 02:
Well, they're different because they're different in numerous respects.

[01:08:47] Speaker 02:
The ad on the outside of the bus can have the same adverse effect

[01:08:52] Speaker 02:
on employee morale is the ad on the inside of the bus.

[01:08:55] Speaker 02:
The ad on the outside of the bus can create the same serious administrative headaches as the ad on the inside of the bus.

[01:09:00] Speaker 02:
We're going to get the calls from the Archbishop and from the members of Congress and from the leadership of the city government here when we run an ad like the ad on page JA268 on the outside of the bus or whether we run it on the inside of the bus.

[01:09:16] Speaker 03:
That's because you think those ads will be attributed to you.

[01:09:19] Speaker 02:
No, because whether they're attributed to us or not, they're on the bus.

[01:09:22] Speaker 02:
And that makes a lot of people unhappy.

[01:09:24] Speaker 02:
And I do think that gets to the fundamental point here, which is that that, at the end of the day, is what layman is all about.

[01:09:32] Speaker 02:
Basically, if the court were to conclude that advertising on a bus is a designated public forum, such that we could not have any content-based

[01:09:45] Speaker 02:
restrictions on what is accepted, or even if it were to adopt what we think is a view of viewpoint discrimination that has no limits and effectively turns every non-public forum into a designated public forum, then basically you're putting the transit authorities to exactly the choice that Lehman said the Constitution doesn't put them to, that what Lehman said is

[01:10:12] Speaker 02:
You don't have to decide that in order to avoid the harms that you perceive from running every kind of ad without making these categorical judgments.

[01:10:23] Speaker 02:
You don't have to decide either I'm going to endure those harms in order to gain the revenue to offset the cost of running the transit system, or I'm going to shut down the forum entirely because those harms are too great to bear.

[01:10:33] Speaker 02:
But I respectfully suggest that is what viewing this as a designated public forum would bring about.

[01:10:38] Speaker 02:
That is what accepting my friend's understanding of what viewpoint discrimination would bring about.

[01:10:44] Speaker 02:
And I just don't think that the court can do that consistent with Lehman.

[01:10:47] Speaker 00:
Thank you.

[01:10:48] Speaker 02:
Thank you.

[01:10:52] Speaker 00:
The counsel for appellant will give you some time, given the time your colleague had.

[01:10:58] Speaker 01:
Thank you, Your Honor.

[01:10:58] Speaker 01:
I'll try to be brief with a few points in rebuttal.

[01:11:01] Speaker 01:
First of all, I do think in considering the specific issue before the Court, whether to issue a preliminary injunction while the rest of this litigation proceeds, it is important to recognize that my friend on the other side quite correctly conceded this is a benign ad.

[01:11:15] Speaker 01:
So you can allow this benign ad to run while the rest of this litigation proceeds and, you know, we have gotten through this whole hour and we haven't even talked about whether RFRA applies to WMATA.

[01:11:26] Speaker 01:
There's lots of issues for the lower court to wade through.

[01:11:29] Speaker 01:
The question here is what's going to be the status quo while the litigation proceeds?

[01:11:34] Speaker 01:
Pro-First Amendment

[01:11:35] Speaker 01:
anti-First Amendment, and I would submit the fact that this is a conceitedly benign ad goes a long way to saying the status quo of a litigation proceeds is let the benign ad run next Advent season, Advent season 2018.

[01:11:49] Speaker 01:
The only reason they can say this is not a benign ad is because if you run this, they submit, then you have to run the ad on JA268.

[01:11:58] Speaker 01:
They're wrong about that.

[01:11:59] Speaker 01:
The ad on JA268 is an issue ad.

[01:12:03] Speaker 01:
They don't need guideline 12 to ban that ad.

[01:12:06] Speaker 01:
And that's the difference.

[01:12:07] Speaker 01:
They needed guideline 12 to ban this ad.

[01:12:10] Speaker 01:
They needed guideline 12 to ban Walk with Frances.

[01:12:13] Speaker 01:
Those are not issue ads.

[01:12:15] Speaker 01:
The only reason they banned them is because of guideline 12.

[01:12:19] Speaker 01:
Another point just to keep in mind, my friend on the other side raises the Cornelius case.

[01:12:24] Speaker 01:
Cornelius is another example where the government treated political speech differently from religious speech.

[01:12:30] Speaker 01:
You can go to the

[01:12:31] Speaker 01:
campaign for federal giving, and you can find all sorts of religious charities.

[01:12:35] Speaker 01:
But politics is different.

[01:12:37] Speaker 01:
That's why there's just no case they have that says the government can do what guideline 12 does.

[01:12:44] Speaker 01:
Lehman didn't do it.

[01:12:45] Speaker 01:
They allowed church ads.

[01:12:46] Speaker 01:
Cornelius didn't do it.

[01:12:48] Speaker 01:
They allowed religious charities.

[01:12:50] Speaker 01:
Nobody did it.

[01:12:51] Speaker 01:
But there are three cases that deal with something directly analogous to guideline 12.

[01:12:56] Speaker 01:
There are Lamb's Chapel, Good News, and Rosenberg.

[01:12:58] Speaker 01:
And in each one of those,

[01:12:59] Speaker 01:
It's the speech that the person chose that defined the topic, and if it was otherwise within the forum, then if it was excluded only because of something like guideline 12, it was unconstitutional.

[01:13:12] Speaker 01:
There's no question.

[01:13:13] Speaker 01:
I mean, if you say that guideline 12 is unconstitutional, then they can decide what else is in the forum by administering the other 13 guidelines.

[01:13:21] Speaker 01:
They don't need guideline 12, and the Constitution doesn't permit them to have it.

[01:13:25] Speaker 01:
Thank you, Your Honor.

[01:13:26] Speaker 00:
Thank you.

[01:13:26] Speaker 00:
We'll take the case under advisement.

[01:13:33] Speaker ?:
Oh, yeah.