Animal Law Podcast #103: The Case of the Ad on the Bus

Mariann Sullivan: Is it third? I think it's possible that it's fourth. I don't know. You were on recently, but actually you were on also previously in a case very related to what we're talking about today, which we will talk about again. And I felt like it wasn't that long ago and then I looked it up. It was 6 years ago.

Oh, my God, like the time, the time. So it was 6 years ago. We were in the middle of the Trump administration. So, you know, things were fraught and we discussed the White Coat Waste Project and this case about them trying to get bus ads up. And I have recently just become more and more interested in this issue because I mentioned to you that I have interviewed, the interview hasn't gone live yet, but I've interviewed some women who on a grassroots project were trying to get billboards up.

I think it's a great forum for grassroots activism. I mean, it's not free to do this kind of thing, but it's not just animal rights organizations that want to do this. It's putting animals and their plight and information about them out there in the zeitgeist in these kind of weird areas, and what we're going to be talking about today mostly, I think, are bus ads, not billboards.

But I think it's really interesting. You mentioned before we started that this wasn't one of your interesting cases, and I was like, oh, great, thanks. But I guess it's because, you know, it's not like saving animals directly or anything. But to me, legal issues and actually the possibilities for activism here are really amazing.

So, that was on episode 30 and that was a while ago, six years. And the case that we talked about was in its very early stages. And since then, there have been a lot of developments in this area, and I just listened to that interview again, and I think I said at the end of it, we need to catch up with you in, like, a year to see what's going on.

So here it is, six years later, and we're going to catch up with you to see what's going on with bus ads, because a lot has happened since then. So let's just start there for those who either didn't listen to that interview or don't have memory of each interview so well that they remember them from 6 years ago.

Can you just tell us a little bit about that case and where you were with it back then?

Matthew Strugar: Certainly. So for any listeners who aren't familiar with the White Coat Waste Project, it's kind of a libertarian taxpayer organization. They actually don't even call themselves an animal rights organization, but they come at the issue through seeking to stop government funding of animal testing.

Whereas that's where a whole lot of, especially for medical industry, that's where a whole lot of the money for animal testing comes from. So they're trying to sort of cut the spigot off from kind of a taxpayer perspective, which is an interesting way to do it. And they've had some great success there.

So the White Coat Waste Project sought to run an ad in Richmond, Virginia, my hometown, on the Greater Richmond Transit Authority, which is the bus operator there, criticizing government funding of these invasive spinal experiments on dogs at the McGuire Veterans Hospital, so the VA, in Richmond. Where vivisectors were slicing the spines of beagles for medical experiments, supposedly to try to help veterans.

And the bus company said, no, you can't run this ad, we have a prohibition on what's so called political ads. Any ad that is political. And so our challenge said, well, you know, what does that mean? That sounds both unreasonable and viewpoint discriminatory. Let me back up, because the bus operator is a government actor, it's run by the county there and the city there in Richmond, government actors have to follow the First Amendment when they open up a government forum.

So people think of government forums like a park or the streets or the sidewalks. Those are so called traditional public forums where different rules apply. But usually these advertising spaces are what are known as limited public forums, and in a limited public forum, you can have restrictions on content, but you can't have restrictions on viewpoint.

We can talk a little bit about what those distinctions are and whether those are real distinctions. But even outside of sort of those two distinctions, they also have to be reasonable. So we said both that they were unreasonable and that they were, viewpoint discriminatory.

And I think that's where we left it last time.

Mariann Sullivan: Yeah, it was very early stages and all we knew about it was what you were arguing, but a lot has happened since then. Can you just fill us in? We'll go through the issues more gradually. Like, I'm not asking for a 2 hour answer to this question, but, uh, but fill us in on what's happened procedurally and where it ended up.

Matthew Strugar: Yeah, it took a long, long time. I mean, I think the court sat on a motion to dismiss for a year and then sat on a motion for summary judgment for another year and then there was a year of discovery in between. But basically, while we were litigating this issue, the sort of underlying legal framework changed a lot.

The case called Minnesota voters Alliance versus Mansky and the Supreme Court, where Minnesota had a prohibition on political apparel in polling places, a lot of alliteration there, but nobody really knew what political meant in that circumstance. Obviously like speech for or against a candidate or a ballot measure would qualify.

But what about, something a lot mushier? And so the Supreme Court said basically it's just too vague for it to even be reasonable, for it to be enforceable. The Supreme Court is asking, you know, what about if somebody wore their Boy Scouts uniform? Or wore a Ben Jerry's pin?

You know, Ben Jerry's is associated with some pretty liberal causes. Or, the AARP, all these groups are known for their political stances. And, what would it mean to just come in there and say, Oh, you can't have a political message. So the Supreme Court struck that down as unreasonable.

So we sort of said, okay, this suffers from the same problem. In Richmond, they had The Richmond Bus Company had just run an ad a few months before White Coat sought to run its ad that was an anti dogfighting organization, or it was a dog rescue and anti dogfighting organization, and they had an ad that said, you know, fight animal cruelty, but for some reason that wasn't political because it had to do with dogfighting, whereas saying stop animal cruelty when it involved objecting to invasive spinal procedures on dogs was political.

So anyway, fast forward, you know, given that ruling, the court sided with us that it was unreasonable, but found it was only unreasonable as applied to White Coat, s Ad. So we attacked the policy on its face and as applied to White Coat.

The district court said Facially constitutional, but unconstitutional as applied to White Coats ad. Both sides appealed. We went up to the fourth circuit and the fourth circuit said unconstitutional as to White Coats ad and unconstitutional on its face Total victory for White Coat.

Mariann Sullivan: So that was a huge victory there and we're going to go into some of the issues in more detail, but I know there have been other cases since then, on related subjects. This has become somewhat of an area of expertise for you and I think you're litigating one right now, which is also now in early stages again for the White Coat Waste Project.

And maybe we can go over some of the issues that have arisen and been resolved in all of those cases, more kind of a global approach. But first of all, remind us, how do you get into court on this type of case? Are they all 42 USC 1983. Is that the route? And if so, could you explain that?

Matthew Strugar: Absolutely. So, 42 USC 1983 gives you a cause of action for violations of the constitution. It's part of the reconstruction period, allowing people to bring cases against government actors, for violations of their constitutional rights, and that's typically how most civil rights cases against government entities, Police departments, police officers, those kinds of things are brought by civil rights litigators.

That was my background before I got into animal law, or at least animal law as much as I do it now. And so these cases are all filed on behalf of the organization, against the government entity, through 42 USC section 1983, for violations of the First Amendment.

Mariann Sullivan: So one of the issues that also comes up a lot in these cases, which I guess it depends totally on the facts. So maybe we can go into what facts go where, but just kind of looking at these cases globally is whether the bus company, assuming we're all talking about bus ads here, I guess there are other entities too, but bus companies, I guess there would be more factual questions about whether they are a state actor.

And, obviously First Amendment applies to state actors. It doesn't apply to everybody. I can't remember which of the cases it came up in, but can you just go into some of the factors that indicate that a particular company isn't just a private bus company and is actually part of the government?

Matthew Strugar: Yeah, this hasn't been an issue in any of my cases except the Richmond case

Mariann Sullivan: That's the one that it was. Yeah. And they went into it in quite a bit of detail, didn't they?

Matthew Strugar: Yeah, it really was the defense that the bus company there really tried to lean on. It's very specific to Richmond, but basically what happened was there was a private transit operator in the 1960s or 70s that was about to go bankrupt. So the city decided to come in and say, like every other city, we're going to have a municipal bus operator.

But here was the problem was that the Federal Transportation Administration gives lots of money to local bus companies, but the federal government at the time, and still today, would only give money to bus companies that allowed their workers to unionize. Whether they were unionized or not, different story, but it had to respect collective bargaining rights.

And Virginia prohibited at the time, Public sector employees from unionizing. So they said, how can we keep our hatred of public sector unions and tap this, you know, federal wellspring of funds that only allow for workers who unionize.

So, what they decided to do is they had the city and the county, Chesterfield County, which is right outside of Richmond shares the bus route. So they went into it together. They set up a private company between the two of them that they each owned five shares in.

Where they appoint the board, they have to run all new routes or all fare increases through the city council. They are represented by the Richmond government. They tap federal funds from municipal bus organizations. They're subject to Virginia's Freedom of Information Law. Basically, they just have this entity to sort of fit a square peg in a round hole, and still get that money.

But then GRTC got up and said, well, we're not subject to the First Amendment at all, we're a totally private company. And I said, that just doesn't pass the smell test. We said, if that's the case, that they could run segregated buses, you know, they could do all kinds of things without violating at least the 14th amendment, might violate some title 7 or whatever the one that applies the transport is. But basically the court went into it in detail because GRTC really was hanging its defense on it, but in the end the fourth circuit said listen, it walks like a duck, it talks like a duck, it's a duck. This is a municipal bus company.

Mariann Sullivan: I guess I thought that issue was more important than it is if it's really sui generis to Richmond, but you never know what's going to come up.

Matthew Strugar: We really didn't expect that defense. We were kind of floored by it and hadn't quite done all the research we needed to about the nature of GRTC. We just assumed it was a government actor, but it turned out to be a big, both factual and legal issue for us.

Mariann Sullivan: I don't think you've ever done a billboard case, but one of the reasons I'm asking is that I'm curious to know whether there's any argument about billboards. They usually are private companies, I think, but obviously there are a lot of rules and regulations around them, about what they can put up and where they can put it up.

Have you given any thought to how that would apply to billboards?

Matthew Strugar: It almost certainly wouldn't. I mean, private companies, even those that are subject to mass regulation, don't have the Constitution apply to them because it only applies to government. There was a case in the Supreme Court just a few years back about a public access channel and whether that was a government entity because there's so many rules around public access and so much like sort of government entanglement.

And the Supreme Court says no, still like too private and you kind of get into issues of like Twitter and Facebook and those kinds of things and courts are really sort of... well, used to be kind of reluctant to want to apply the constitution to private business. The sort of politics of that are shifting a little bit where the right wing that used to really respect sort of private property rights there is now kind of being like, well, maybe we need to rein in these woke social media companies and that kind of thing.

But for the most part, you have to have a government space, but there's probably more government space than people realize. So sometimes bus benches or bus shelters have advertising. A lot of times that's run by government. Sometimes that's run by private entities. There's obviously buses and subways.

There's most airports. Actually the first case I did on this issue was about the San Diego airport that runs tons of SeaWorld advertising. So PETA tried to come in with some anti SeaWorld advertising. They said, no way, you know, and we sued saying it has to be discrimination based on viewpoint if you allow, go to SeaWorld, but you don't allow don't go to SeaWorld.

But there are a lot of spaces, but just like a straight up billboard on the side of the highway, probably on private property, probably a private operator, probably no constitutional protections there.

Mariann Sullivan: All right, but, that's not a good reason not to do it.

Matthew Strugar: Absolutely.

Mariann Sullivan: It's good to think about what other issues may arise for people in trying to get those out there. But getting back to these cases where we do have state actors. There's kind of a question, which you had mentioned, I think about whether it's a designated public forum or a non public forum, is that the right term? And can you just go into a little bit more detail about what the difference is and how the difference applies specifically to bus ads and where the courts are now on this as opposed to where you were when you first filed that case six years ago?

Matthew Strugar: Yeah, traditional public forums are things like parks and sidewalks that the court says, you know, sort of since time immemorial have been held out as areas for there to be public debate and in traditional public forums, you can't even have restrictions based on content. So viewpoints distinctions are prohibited, but so are content prohibitions.

There have been some cases where there have just been absolutely no rules about who can run a bus ad, and basically they reject almost no one. And in those cases, some courts, especially back in the 90s, found that those areas were traditional public forums, like a park, where there was almost no regulation that the city could or did put on it.

That's almost universally changed. Almost everybody has regulations. Almost every court finds these spaces to be, use the term non public forum. There's different terminology, some call it limited public forum, some call it non public forum. They're basically the same thing. In the Ninth Circuit, at least they're exactly the same thing.

But the real distinction comes down to, is this a content or a viewpoint distinction? I don't really buy the, those are different things all the time, but I can sort of tell you what the courts say. The courts say a content restriction restricts all speech about a particular sort of thing.

So you could say, no speech about abortion. That's viewpoint neutral because it prohibits both pro life and pro choice speech in the same way. It just sort of cuts out an entire area of debate. That would be, supposedly, content based, but viewpoint neutral.

A viewpoint based distinction would say, you know, no pro choice speech, but you can have pro life speech. I think those distinctions kind of break down a little bit in these cases. We're often dealing with prohibitions on so called non commercial speech, where the court says, you know, you can put out a commercial message, but you can't put out a non commercial message, and a lot of courts have found that those are content, not viewpoint based distinctions. I think that's just gets it totally wrong.

Going back to the San Diego airport that I just mentioned, you know, there SeaWorld's a commercial actor, so SeaWorld can just paper the entire airport in go to SeaWorld ads. And then PETA can't come in and say, don't go to SeaWorld because what, PETA's not selling something?

I mean, certainly, the prohibition hinges on PETA's viewpoint on the issue or whatever speaker's viewpoint on the issue. I mean, anybody else could come in and say, like, go to SeaWorld because it's commercial. But, you just can't say, don't go to SeaWorld because that's don't spend money, not spend money.

So, a lot of the fight in these cases is trying to get courts to see that sort of distinction between content and viewpoint sort of gets lost when it comes to non-commercial versus commercial advertising.

Mariann Sullivan: Yeah, do you think that the way those two terms, commercial and non-commercial kind of don't make sense in this context is particularly strong in the animal context?

Matthew Strugar: Yes and no. A lot of social or cultural issues don't involve Commercial actors, they're sort of strictly political. So like going back to abortion context, you're not really going after a commercial entity necessarily. Now, there's plenty of commercial entities that are involved, you know, big drug manufacturers, medical Practitioners, etc, etc.

But you know at its heart, it's not a commercial versus non-commercial thing. Whereas in animal rights, it absolutely is. I did a case here in LA against the L. A. County Metro Transit Authority, our bus and subway operator here. And they were running all these ads for Jack in the Box popcorn chicken specials that they were having at the time.

Now, PETA started to run an ad with a picture of a cute living chicken and text that just said, I'm a living being. I’m not popcorn chicken. And they said, no, you can't do that because it's non-commercial. But, that sort of shows that, in our movement, a lot of times, we are going after people that are making money exploiting animals or killing animals. And it's just not the same when it comes to a lot of other hot-button social issues.

Mariann Sullivan: Yeah, it does really highlight what an incredibly radical movement this is in so many ways, even when people think of it as just a bunch of sentimentality or whatever, it really is trying to change the way everybody does business, and because it's not business...

Let's talk more about that LA case, though, because that was a really interesting case and you had a good result in that case. The way you've talked about it so far sounds sad, but actually, you had a good outcome, right?

Matthew Strugar: Yeah, we've won on every one of these cases so far, which is nice. I think I'm at about six. So the L. A. case had both that sort of what we call a counter ad to the Jack in the Box ad, the I'm a living being, I'm not popcorn chicken, and PETA also proposed an ad that just had a very cute picture of a sheep looking up at a camera, and it said I want you to change, wear vegan, basically an anti wool ad.

And Metro, like a lot of these other places, had a prohibition on non commercial advertising, but it also had an exception to that prohibition. So the exception was that a non profit organization that sought to run a non commercial ad could do so if it partnered with a government entity.

And for these purposes, government entity meant any agency in L. A. County, any agency at the California state level, or any federal agency. And if that government entity sort of jointly co sponsored the message and the ad with the non profit. think they designed that to sort of tamp down on potential controversial speech from non profit organizations.

But really it set up a system where if the government approved your message, you got to speak. And if the government didn't approve your message, you didn't get to speak.

Mariann Sullivan: Who wrote that?

Matthew Strugar: That's not a great look for, you know... if anything that's a stricter censorship regime than if the government agrees you get to comment if it doesn't, you don't.

But in actuality, Metro didn't even follow that policy very well. They let in hundreds of ads that were non commercial that didn't even have a government co sponsor. Some from nonprofits, like the United Way was running dozens of ads a year about homelessness issues, but also from commercial entities expressing non commercial messaging.

So Google telling people to get the COVID vaccine. McDonald's thanking first responders, that didn't say anything about... it had the McDonald's logo, but just said thank you first responders. Also, a bunch of these ads from, I don't know if anybody outside of L. A. sees these everywhere, but we have these ads from The Foundation for a Better Life that are these completely like anodyne ads that say pass it on.

So they'll have like, I don't know, William Shatner, and they'll just say, go boldly. And it's like, okay. Or they'll have like Gandhi or Malala or Dolly Parton or just like Muhammad Ali, just like sort of inspirational figures with a really like anodyne, inspirational quote. And it's really just like a money laundering thing for a right wing billionaire, Phil Almshultz, who runs AEG, but anyway, they'll run all these other ads that have absolutely no commercial message, basically because they're non controversial and nobody could disagree with them, but it just showed that they weren't following their own policy.

Mariann Sullivan: So, even though you were successful in that case, the issue of commercialism wasn't really put to bed there, was it? And whether it's commercial or not, and that's still an open issue in these cases. Is that right?

Matthew Strugar: Yeah, in the end, the federal court found the exemption allowing for, you know, the sort of government approved speech was both unreasonable and viewpoint discriminatory.

Mariann Sullivan: Well, thank God for that.

Matthew Strugar: Yeah, and the court found that the ban on non commercial speech was facially, at least facially viewpoint neutral. And it also found that whether or not it was viewpoint discriminatory as applied to PETA's ad, so basically was it viewpoint discriminatory to let in the jack in the box ad but not let in the PETA ad, that it wasn't appropriate for summary judgment because there were disputed facts there. But none of that mattered because the court went on to find that the general ban on non commercial speech was facially unreasonable, basically because they had let in so many of these United Way ads, Foundation for a Better Life and everything else.

So we had two theories or three theories. We knocked it down on one. We didn't need to win on the other two. So we still got a complete victory. Facially invalidated both of those prohibitions.

Mariann Sullivan: I understand that the victory was complete in that case. I'm just curious to know whether you feel like the issue is kind of been put to bed or this is going to be... not that a Los Angeles case would necessarily put an issue to bed for the whole country anyway, but, whether there's clear law on there, because it just seems like such a crucial point for the animal movement, this commercial versus non commercial and understanding that the entire meat industry is politically opposed to our message, and we are politically opposed to theirs.

And, in my mind, that's so clearly how it should be seen, as you've made the point.

Matthew Strugar: Yeah, unfortunately in the Ninth Circuit, there's old binding precedent on a case in which retired Supreme Court Justice Byron White was sitting on a panel after he retired. It's out of Arizona. It's called Children of the Rosary vs. City of Phoenix. And there the ACLU represented a Catholic organization that wanted to run an ad and they said, no, it's not commercial.

So the ACLU proposed its own ad and they said, no, it's not commercial. Then the ACLU proposed its own ad with the same message, but on an ACLU tote bag. And it said, buy the tote. And they still said, no, it's not commercial, even though ACLU was selling the tote. And, Justice White basically says, they're just trying to be cute. No, this is a content, not a viewpoint based, restriction and that's kind of the state of the law in the Ninth Circuit. But the case we're filing right now in D. C. sort of seeks to take that on in the D. C. Circuit where there's also pretty bad law, but the restrictions in D. C. have been... I've had some pretty prominent challenges so far and the Supreme Court's expressed interest in the issue to some extent. So we're trying to sort of bring the fight where we think we might be able to have a lot more success.

Mariann Sullivan: And I wanna go into more detail on that, but I just wanted to get to another... 'cause you mentioned before that a lot of the restrictions are on political speech, and that kind of involves a similar issue, right? What is political versus nonpolitical? So has there been any progress made in resolving that issue?

Matthew Strugar: Yes, I think this Minnesota Voters Alliance vs. Mansky is really going to put to bed every sort of broad, amorphous, this is political speech kind of thing. Bus companies have tried to say, Oh, Mansky was about polling places, it's very different. And every court, you know, other than the cases I've litigated, the ACLU's litigated a bunch of these cases as have others, have said, no, political just kind of means mushy, whatever the censor at the time thinks is political or whatever is sort of controversial, those are all getting kind of knocked down.

Sometimes there's more narrowly tailored definitions of what is political and that's fine. I mean, like in the polling context, you can have a prohibition on supporting candidates or ballot measures. And that's fine because you know what that means. It's just when political is so sort of unmoored. We had a case for Physician's Committee for Responsible Medicine in San Francisco Bay area against BART, criticizing Elon Musk's company Neuralink, where they were removing parts of primate's skulls and putting electrodes into primate's brains in the hopes of controlling them like robots. PCRM wanted to run an ad criticizing Elon Musk, and they were asking Elon Musk to release the videos of the test. And they said, Elon Musk release the videos, what are you hiding?

And BART had a pretty narrowly drawn prohibition. It was rejected for a quote referring to one or more living political or judicial figures. And so we sued and we said, we didn't challenge that on its face because I think facially that's probably fine. It's definite enough. But we just said, Elon Musk isn't a political or judicial figure unless you take this broad view of what political is.

But basically he hasn't been elected to any office. He's not a judge, he's just a jerk who's a billionaire, and a lot of people hate him. So we sued, and BART just kind of settled with us pretty quickly after that, because I think they knew they weren't going to win on defending applying that prohibition to that ad.

Mariann Sullivan: Yeah, and why would anyone want to go to court defending all of that? So you think it's possible for them to draw up a sensible policy. I mean, from what you're saying, it's not like it's impossible to pin this down. It's just that they haven't. Why do you think these policies are all so mushy?

Matthew Strugar: I think a lot of these were drafted before 2018, when Mansky came down. And a lot of them kind of came in a wave between like, I don't know, maybe 2004 to 2012 when there was this group, the American Freedom Defense Initiative, which is this virulently Islamophobic organization was seeking to run a bunch of advertisements of like, Drawings of the Prophet Muhammad or something like that.

Just trying to really, you know, sort of push some buttons. And so a lot of these prohibitions came out in that period because they were seeking like a nationwide campaign to run those kinds of ads. But before the guidance from the Supreme Court and I really just think it's that they haven't really thought about it.

They haven't really updated their policies. They don't really think about it until they get sued and then, if they're smart, they'll revise the policies and settle the case or moot the case, but a lot of them just sort of want to go to the mat and fight it to see if they can win because if they lose, they can still always just revise the policies in response to the loss.

Mariann Sullivan: Yeah, they can still get paid. What about vis a vis the commercial issue, do you think things might shift to some extent now that there are so many more commercial forces within the animal rights movement? Like, could Beyond Burger say, buy Beyond Burgers because it's kinder to animals?

Matthew Strugar: You know what? I think even under the existing schemes, most of these operators would allow that. I sort of try to put up a bunch of hypotheticals to these censors and deposition saying, you know, like Nike had a prominent campaign with Colin Kaepernick when he was like, one of the leading sort of anti-police brutality advocates in the country.

And, it said, Challenge everything, even if you risk losing everything, or something like that. And they said, you know, yeah, this is still trying to sell shoes. Ben & Jerry's, when they have their world peace, or change the world flavors, and again, again, Kaepernick was involved in that too... they say, yeah, that's still a commercial speech so that still comes in. I don't think the commercial nature of the animal rights movement is necessarily going to change, but I think the political nature of corporations today is going to change.

There's this DC case that says basically, you know, you can't say that just allowing in a McDonald's ad allows anybody to criticize eating beef because the judge's idea there is that corporations are just trying to make money. They’re not trying to, like, take a position. I think that's kind of an old-fashioned view. I don't think that happens anymore. I mean, you had basically every large multinational saying they'll pay for reproductive care for their employees who have to leave the state after the Supreme Court stripped the right to an abortion.

You have a pillow company that's kind of synonymous with an attempt to overthrow the government. There's just all kinds of corporations take stands on things, from both the right and the left. You know, boycott this corporation, don't advertise on Twitter, you know, corporations are all enmeshed in these political fights, Disney around the Don't Say Gay Bill, for instance.

So, I think, more what's going to shift it is sort of destroying this idea that corporations are just out here to make money and they don't have any stances. I just think that's not reflective of the reality today.

Mariann Sullivan: So you think that the law is going to change in some way just because the entity that is paying for the ad has positions, even though the ad itself is based solely on, you know, buy hamburgers, they're delicious.

Matthew Strugar: I think if the judges are being honest, you kind of have to come out that way. And it's not necessarily that the law is going to change. It’s just kind of the idea underpinning the distinction that basically non-commercial speech, advocacy speech has an axe to grind, commercial speech is just trying to sell you something and they don't care what you believe, just isn't really right anymore. And the more the corporations become sort of political actors, the more there's not really a good basis to distinguish between them and an advocacy organization.

Mariann Sullivan: That's interesting. Well, that'll be something interesting to keep an eye on. This is totally kind of an aside, but we were talking about the L. A. case, and I noticed that they argued standing in that case. Like, do they just see the word animal and say, oh, standing? Does that come up a lot?

I mean, it seems obvious that there would be standing here, in any of these cases. Am I right?

Matthew Strugar: Sort of like the government actor issue was sui generous in the Richmond case. The standing issue was sui generous and bizarre, frankly, in the metro case. In Metro, they said, we've never rejected PETA's ads, so this case is not yet ripe. It was more of a ripeness than a standing issue.

They said, there's no ripeness yet because we haven't rejected the ad three years after you've submitted it. We're simply waiting for you to obtain a government sponsor. Well, you know, if we don't have a government sponsor three years in, I think you can basically say we've been denied access to the forum, and the court sort of shooed that argument away pretty quickly.

But yeah, you know, in any case, when the law's not really on your side, you sort of look for those kinds of, like, well, you know, the law doesn't apply to me kind of arguments. Like, not a government actor or no standing, but the standing in these cases is, unlike a lot of animal cases, it's pretty clear.

Somebody sought access to a forum and was denied.

Mariann Sullivan: Yeah, no, that's why I said, like, if they see the word animal because usually there are pretty good standing arguments, not as many as there used to be. I think the law has grown in favor of animals, but here I was like, how could they not have standing? It was their ad!

Tell us about this latest case. You mentioned it, and you mentioned a little bit about what's going on there, but can you tell us a little bit about the ads that White Coat Waste Project, which I have a lot of trouble saying, is running and the policy? I'm surprised that D. C. has such a regressive policy, but tell us about it.

Matthew Strugar: Sure, so these are ads again by White Coat Waste Project seeking to criticize government funding of animal testing, and here these ads were criticizing National Institute of Health funding cocaine tests on beagles and some funding for experiments where they were making either gerbils or guinea pigs fight each other to the death.

Mariann Sullivan: Oh, my God.

Matthew Strugar: Oh, yeah, I mean, animal testing, right? So, the Washington Metropolitan Area Transit Authority, sometimes called WMATA, which is itself a bit of a mouthful but less of a mouthful than the full name, denied their ads under three different prohibitions. So those prohibitions are advertising intended to influence members of the public regarding an issue on which there are varying opinions.

Put that one to the side for a second. Second, advertisements that support or oppose an industry position or industry goal without any direct commercial benefit to the advertiser. Something of a non-commercial/ commercial distinction there, but also something kind of different. And the third advertisements that are intended to influence public policy.

So, we claim that those are unreasonable and viewpoint-based. I mean, the first one, advertising intended to influence the public on issues in which there are varying opinions. That's every ad if you ask me. I mean, there's no reason to advertise unless you're trying to influence the public regarding an issue on which there are varying opinions.

If there's not varying opinions, you don't need to advertise. If you're not intending to influence anybody, what's your ad doing? So that one's just, I think, out there. You know, support or oppose an industry position or industry goal that seems to be skidding at something that's a non-commercial or commercial distinction, but it's more narrowly tailored than that.

And you know, we say we're not criticizing industry in this. We’re criticizing government and government and industry are different things.

Mariann Sullivan: Yeah, that's a better... I mean, I thought the whole thing sounded outrageous, and you would make a more global argument, but that is such a good, like small argument.

Matthew Strugar: Yeah, I mean, we are challenging it

Mariann Sullivan: it says industry!

Matthew Strugar: But we're also saying it just doesn't apply to us. We're not opposing industry. We’re opposing government. And they say, well, you know, government funding of animal research is very tied to industry. Okay, well, that's not what your prohibition says.

And then there's advertising that are intended to influence public policy. You know, also we think unreasonable and viewpoint based. I mean, they run ads for all kinds of things, including F-35 fighter jets that Boeing makes. And, the public couldn't buy an F-30 fighter jet. Those ads are there to influence public policy because only the government can buy those.

Only the Defense Department can buy those. So, you know, why advertise those unless you're intending to influence public policy? But I guess they think weapons of war are uncontroversial. Whereas criticizing cocaine tests on beagles is too far. So, there have been a lot of interesting litigation against these advertising guidelines up until now.

I mean, these advertising guidelines came into effect because that anti-Muslim group wanted to run an ad with a drawing of the Prophet Muhammad, and they enacted these policies to stop them. And then, AFDI continued to sue. WMATA defended its policy, saying it was just trying to restrict political speech.

But then, while that case was going on, the Supreme Court decided Mansky, and the appeals court says, well, you know, that defense isn't really available to you anymore. So I'm going to send this back down to the district court. We're going to remand because the law's really changed here and then on remand, the group dismissed because they were actually afraid of discovery, which is weird.

But anyway, the DC Circuit Court of Appeal said this is an open issue, and it still hasn't been decided. And then, there was a second case involving a different prohibition. There's a prohibition on all religious speech. The Catholic Church wanted to run a Christmas ad.

WMATA denied it, you know, not celebrating Christmas. And the case kind of came down to whether a prohibition was a viewpoint restriction or a content restriction with the church saying, you know, you let Macy's and everybody else run all these Christmas sales. Why can't we run an ad that just says, support Christmas?

Kavanaugh was on that panel as a D. C. Circuit Judge but got elevated to the Supreme Court while it was sort of pending. And then the two-judge panel upheld the restriction and they sort of said, commercial retailers are just advertising Christmas, they aren't taking a position on anything, commercial advertisers don't take positions.

And they even went so far as to have that example I gave earlier about, you know, if we let McDonald's run an ad, that doesn't mean we have to allow an ad that criticizes beef, which is interesting because then in the fourth circuit, just to explain the concept of viewpoint discrimination, they say, for instance, it would be viewpoint discrimination to allow an ad that says eat at McDonald's, but not allow an ad that says don't eat at McDonald's.

So you have two circuit courts saying the exact same ads are viewpoint discriminatory or viewpoint neutral.

Mariann Sullivan: But you can say, well, according to that court, you can say don't eat at McDonald's, but you can't. necessarily say don't eat meat.

Matthew Strugar: Well, yeah, maybe, that's, I think, where it gets fuzzy about whether it's...

Mariann Sullivan: It's all fuzzy, Matthew!

Matthew Strugar: It's all very fuzzy!

Mariann Sullivan: If anybody out there is having trouble following all of this, it's not Matthew's fault for sure. But I sympathize because it's all very fuzzy. It feels like they write these policies in kind of an ad hoc reaction to some problem and don't think about them in a global way.

Matthew Strugar: I think that's right. And just to kind of close the loop on that, that church's cases, it was interesting, you know, they lost in front of the two-judge panel. They sought re hearing en banc. It was denied, but two judges dissented from denial of rehearing, saying this is obviously like a viewpoint they're discriminating against because it's religious, you know, anybody who's seeking to sell something could run the same ad.

And then they petitioned for cert, and it was Paul Clement, a former Solicitor General, representing the church, and Don Verrilli, another former Solicitor General representing WMATA. And the cert petition was pending for, I don't know, like eight months. It was forever. They ultimately denied cert, but Gorsuch and Thomas wrote separately and said we should have taken this case, but for the fact that Kavanaugh was on the panel below.

So it would risk the court splitting 4-4 because, at the time, it was sort of a 5-4, you know, Barrett wasn't on the court yet. So Gorsuch and Thomas said we would have voted to grant CERT if there wasn't a risk of splitting 4-4. And then went on to say why the court got it wrong below.

And so the D. C. Circuit precedent still is what it is, but it's pretty shaky. The Supreme Court, two justices have criticized it. The Court of Appeal, two judges dissented from the denial of rehearing en banc, saying the precedent was shaky. We're obviously not challenging the religious prohibition here, but I think a lot of the arguments still run in the same direction.

We're kind of gunning for that precedent in this case.

Mariann Sullivan: Yeah, it's really interesting. And I'm somewhat horrified. Maybe they say those kind of things all the time now, but that they said like, we would have granted CERT, only I don't have the votes, so I don't want to grant cert.

Matthew Strugar: You know, a 4-4 split just affirms the Court below, you know, if the Supreme Court split 4-4, if they don't have an odd number of justices and they split evenly. So I think they were just saying, like, listen, there's a risk here that this is all gonna be for naught if we take cert.

And I think they're probably right. This is kind of ideological, and weirdly, the right-wing justices are more on the side of protecting speech in these cases a lot of the time. Especially when it comes to something like the Catholic Church wanting to speak, so anyway, I think it kind of made sense that they said, we'll wait for the next case. We're trying to be that next case.

Mariann Sullivan: Well, I hope that the subject matter of your case doesn't skew them as opposed to the subject matter of defending the Catholic Church.

Matthew Strugar: Always the risk, but

Mariann Sullivan: Because they're very enthusiastic about the Catholic Church up there.

Matthew Strugar: Yes.

Mariann Sullivan: So, you're still in early days on this case. Has there even been an answer yet?

Matthew Strugar: Not an answer. We've litigated a motion to dismiss, and also there's been a challenge involving the ACLU, PETA, a pro-choice organization, and Milo Yiannopoulos if you remember him.

Mariann Sullivan: What? Yeah.

Matthew Strugar: All four of those plaintiffs together in a different case challenging these prohibitions. And WMATA is also trying to consolidate us with that case. That case was filed in 2016, and it still hasn't started discovery.

Why that is, I don't know. I guess there was a fire at WMATA where they lost a bunch of records. There was also COVID, but seven years before starting Discovery is outrageous. And we're just kind of saying, please don't consolidate us with that case. It'll stall us out forever. And we want to move fast.

Mariann Sullivan: And it's on the exact same grounds? Same causes of action?

Matthew Strugar: Same causes of action.

They're challenging a few more prohibitions than we're challenging. They have some different defendants than we have and obviously different ads. So we're saying the commonality between the two cases isn't so great that it warrants consolidating them.

Mariann Sullivan: What are your causes of action? Anything we wouldn't expect?

Matthew Strugar: Nope, just we have the First Amendment, you know, unreasonableness and viewpoint. I think we also challenge the industry position or industry goal as vague, which is query whether that's a Fifth, 14th, or First Amendment cause of action. Different courts say different things, but just saying like, well, if anything that is related to industry qualifies as an industry position or goal, then it swallows everything, and nobody knows what it means.

Mariann Sullivan: So, are you hoping to pin down what a model policy would be? Has anybody ever written a model policy so state and local governments could stop making all of these mistakes?

Matthew Strugar: You know, to be honest, I wouldn't want to have to be the one to have to write that. But in litigating these, I think BART and San Francisco were acting as a pretty good policy. You know, the definitions are pretty clear. And the problem there was that they just tried to apply a definition that clearly didn't apply to the ad PCRM sought to run.

But, if I was advising a municipal transit operator or an airport or a government advertising forum, I'd say, you know, look to BART's policy. It's pretty well designed and not so mushy that it could swallow everything, like this prohibition against ads intending to influence the public on issues where there are varying opinions, which, you know, is everything.

Mariann Sullivan: Yeah, we started off by saying that I think this is an exciting area, and I am all for grassroots activism. I like projects that people can take on on their own. Because, you know, a lot of people don't feel that any of the organizations represent them. And also, we just need as many people as possible out there spreading the word and getting the word out.

So I'm very moved by this kind of thing. And these seem like a really good grassroots campaign. It's a specific project. It has a beginning and an end. And though it's certainly not free, actually, I know billboards cost a fortune but do bus ads cost a fortune?

Matthew Strugar: You know what? I've been surprised. I can't tell you right now off the top of my head how much they cost, but I remember in doing these cases, I've been surprised at how affordable they are, which I think is why you see a lot of maybe smaller advertisers, at least here in LA, we have a lot of small attorneys and things like that, personal injury attorneys, criminal defense attorneys, kinds of people who couldn't get access to... well, they get access, the bigger ones get access to billboards, but the smaller ones who can't afford billboards are on a lot of bus ads because it's cheap.

And, you know, these ads reach a lot of people. I mean, depends what the market is. A lot of times, it's a lot of lower class and people of color, the kind of people who take the bus. You know, people see them rush by, but it's mostly getting the people who are actually taking the bus.

But that's millions and millions of people in some of these bigger cities.

Mariann Sullivan: I totally agree. It's why people use They're a really good way to reach people, and, though, as you make the point, the people you're going to reach with bus ads aren't going to be that well-heeled, probably. That's not the point of the animal rights movement. I mean, it might be the point of commercial advertisers.

So you're not up against as many commercial advertisers because it's not their audience, but it's our audience.

So, what would be your advice? I mean, if somebody wants to, uh... I guess one of your pieces of advice would be to try to find something that's constitutionally protected.

Matthew Strugar: I think if anybody's looking in the animal rights movement is looking to run an ad with a municipal advertiser or an airport or something like that, first things first is get the policy and look at the policy and see if there's any way you can propose an ad that seems to be on all fours with the policy.

I mean, sometimes there is space within these, depending on how they're drafted. Even if they're trying to keep out your ad, they wouldn't really. And if you could do that, that's probably the best. If not, just propose your ad and see what they deny it under, if anything.

I mean, sometimes they won't even deny it. And sometimes we've had cases where we thought we'd probably have to litigate, and they proposed the ad, and the company's just accepted it, despite the prohibition seeming to apply. So, you know, just try, and if you get that denial, see where the weak points might be.

Would they allow in a commercial advertiser who's saying, you know, kind of the opposite message? Would they let in an advocacy ad that's sort of saying the opposite message? Keep an eye out for ads on that bus line to see sort of, you know, that's not really a commercial message. What is that?

You know, take a picture. Feel free to give me a call, but that's sort of my advice is first try to comply with the ad, and if you can't comply with the ad, sort of see what they deny you under and look for the pressure points.

Mariann Sullivan: I think also, one of the things that's really a benefit here is, a lot of the things that run into trouble, and certainly the White Coat Waste Project takes a very vigorous approach in their ads. And, as I was saying, these people I interviewed, whose interview will go up next month, their ad pretty much said, pigs like sunshine, too.

I mean, it's true. They have a cute little picture of a pig. And of course, they're in eastern North Carolina, so they don't have to talk about factory farming. Everybody in eastern North Carolina knows there's factory farming. And the whole movement is kind of at that point, I think, where we don't have to be as aggressive in the ads because a lot of people really know there's something wrong. So it's just a matter of really some ads that can start them thinking. Do you think those are more likely to pass legal muster as people get more sophisticated about what's allowed and what's not?

Matthew Strugar: Yeah, and my answer in two parts, both legal and practical, start with practical. I think practically, you know, the Kinder and gentler your ad is, the less friction it's going to cause because it's kinder and gentler.

Mariann Sullivan: I don't think they were thinking of legal problems at all. They thought that was good messaging, and I don't disagree with them.

Matthew Strugar: Yeah, okay, so I guess there's three things. There's, you know, whether it's effective, which is always the most important, but then just how you get it done. The less friction you can cause, everyone who's doing these things, whether they're keeping the legal principles in mind or not, are human beings, so they're going to get their hackles up a little bit less with a cute pig ad than versus like a slaughtered pig ad.

As far as the legal issues are concerned, I think a gruesome ad is entitled to as much protection as a warm fuzzy ad. But, if I'm litigating, I'm in front of a judge, you're always going to want the less friction ad to get in there.

Mariann Sullivan: Yeah, of course. That's not the only thing you should think of, but we have to be practical. Especially people for whom this would be out of their own pocket, or trying to raise the money on their own to do it. You mentioned that people could call you. What about the ACLU? Do you think The ACLU, I mean, I've been doing this for so long that sometimes my attitudes are back in the 90s or something, and they wouldn't help anybody with any animal issue whatsoever.

But they've gotten better, right? Will they ever take on these cases?

Assuming you're not available.

Matthew Strugar: Sure. sure. sure. It absolutely depends on the local. In my experience, there are ACLU affiliates who probably gave you your impression from the nineties that they won't touch any of these issues involving animal rights at all. And then some affiliates are, you know, we've worked with ACLU, Iowa, and Idaho, and I'm trying to think who else on ag-gag stuff, they're our co-counsel.

The ACLUs are litigating a lot of these cases, can't think of any they've done for animal rights organizations other than the case with ACLU and Milo and the pro-choice group in, D. C. But for all sorts of organizations, including pro-choice organizations, sort of atheist organizations.

So ACLU affiliates have litigated a bunch of these in Seattle, throughout the Third Circuit, so New Jersey, Pennsylvania. You've really just got to find the affiliate where somebody is kind of interested in this issue. That's maybe like a dirty secret of the ACLU is the affiliates get a lot of autonomy.

So it really depends on sort of what city or state you're talking about.

Mariann Sullivan: It's kind of a sad commentary on the ACLU. They will take on any of the most heinous causes and be proud of it, but you know, animals, uh,

Matthew Strugar: Again, again, I think it really depends on who you get there.

Mariann Sullivan: And it has shifted a lot. And I have seen them do very, especially on the ag gag stuff, but on other things as well. I have seen their names pop up. So it's certainly not universal, but it is a little ironic.

Matthew Strugar: I hear you.

Mariann Sullivan: This has been great, Matthew. Thank you so much, it's really been a lot.

I'm going to have to listen to it again to take in everything you said, because it was really compelling and I have to learn more about all these cases because I love this stuff. And, you know, I figure the more messages we have out there, the better we are because everybody actually agrees with us.

They just don't know they're allowed to.

Matthew Strugar: Yeah, it is a little legally complex, and the law is also shifting at the same time that we're litigating all these, so I apologize for all the sort of viewpoint content distinctions, but that's where it all is. It's the Animal Law Podcast, so…

Mariann Sullivan: That's what we're here for. We love it.

Thanks so much.

Matthew Strugar: Thank you