The opinion of the court was delivered by: HARRIS
STANLEY S. HARRIS, District Judge.
Michael A. Lebron brought this action seeking declaratory and injunctive relief and damages against the Washington Metropolitan Area Transit Authority (WMATA). WMATA initially accepted, but later rejected, a political advertisement or poster which Mr. Lebron wishes to display in eight of WMATA's subway stations. (Plaintiff's Ex. 1.) This Court has jurisdiction of the complaint pursuant to 28 U.S.C. §§ 1331 and 1343 (Supp. III 1979) as Mr. Lebron alleges that the actions of WMATA violate his rights under the First and Fourteenth Amendments and under 42 U.S.C. § 1983 (Supp. III 1979). Mr. Lebron's common-law claims of breach of contract and tortious interference "with his prospective personal, professional and commercial interest in displaying his artistic and political advocacy advertising poster . . ." are within this Court's jurisdiction under pendent jurisdiction. (Amended Complaint at 2.)
On January 11, 1984, the Court denied Mr. Lebron's motion for a temporary restraining order, finding no irreparable injury. The parties agreed to a consolidated hearing on the motion for a preliminary injunction and a trial on the merits pursuant to Fed.R.Civ.P. 65(a)(2).
The Court has considered the testimony of the witnesses, the exhibits, and the pleadings and arguments of counsel. The Court's findings of fact and conclusions of law follow.
2. WMATA leases advertising space for the interiors of its subway stations. These spaces are the free-standing dioramas on the passenger platforms.
3. Both public service and commercial advertisements are accepted for these dioramas, although there is a fee difference between the two types of advertisements. (Testimony of Mr. John Warrington, WMATA's Director of Marketing (Tr. Warrington), at 56-57.)
4. All submitted advertisements are evaluated using guidelines which have been adopted by the WMATA Board of Directors. (Defendant's Ex. 1; Tr. Warrington at 41.) The evaluation is made by Mr. Warrington applying these guidelines. (Tr. Warrington at 82.)
5. Mr. Lebron works as a mechanical artist in New York City. He also creates political and satirical works of commentary and art on his own time. His works have been displayed in art galleries and the New York City subway system. (Testimony of Mr. Lebron (Tr. Lebron) at 12, 15.)
6. The poster at issue expresses Mr. Lebron's political beliefs and is a political advertisement. Mr. Lebron wants to display it in an effort to have an impact on the upcoming Presidential election. (Tr. Lebron at 11-12, 32-33.)
7. The advertisement combines text and a photographic montage. The left side of the photomontage depicts President Reagan, certain members of his Cabinet, and other high government officials. They are seated at a table. They are laughing and the President is made to appear to be simultaneously pointing at a group of persons on the right side of the picture. It is not clear from either the record or the picture whether that group is a single photograph or itself a montage of separate pictures. The group on the right consists of men and women, some of whom are minorities, all of whom are somber in both dress and appearance, and who are characterized by the plaintiff as unemployed.
(Tr. Lebron at 22-23.) Some of the facial expressions of the people on the right side may be characterized as sullen or hostile.
8. Mr. Lebron testified that he thought it would be "funny" to juxtapose the pictures which he had seen separately into a single photo-montage. (Tr. Lebron at 22-23.)
9. Mr. Lebron was attempting to make a statement about what he perceives to be the President's alleged concern about the well-being of working people and the ability of businessmen to raise capital for making investments. The advertisement is intended to convey Mr. Lebron's belief about the manner in which certain segments of the American population have ...