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WASHINGTON POST CO. v. TURNER

March 15, 1989

THE WASHINGTON POST COMPANY, Plaintiff,
v.
CARMEN E. TURNER, Defendant


Oliver Gasch, United States District Judge.


The opinion of the court was delivered by: GASCH

OLIVER GASCH, UNITED STATES DISTRICT JUDGE

 This matter is before the Court on the motion of plaintiff The Washington Post Company ("the Post") for a preliminary injunction. The Post seeks injunctive relief that would prohibit defendant, the General Manager of the Washington Metropolitan Area Transit Authority ("WMATA") from enforcing a regulation which bans the sale of newspapers by human vendors on WMATA property and that would require defendant to permit human vending of newspapers on terms at least as permissive as those applicable to "free speech activities" under the regulations.

 BACKGROUND

 I. The Parties

 The Post publishes The Washington Post (" The Post ") newspaper, which is distributed and sold to the general public throughout the greater Washington, D.C. metropolitan area. Total average, paid circulation of The Post is approximately 770,000 for weekday editions, 724,000 for Saturday editions, and 1.1 million for Sunday editions. The vast majority of The Post's circulation is by direct delivery to subscribers. Approximately 19-25% of the paper's circulation is through single copy distribution; some of these sales are accomplished through individual vendors or "hawkers" who station themselves in public places and make sales to passersby.

 WMATA was created by an Interstate Compact entered into by Maryland, Virginia, and the District of Columbia and approved by Congress. WMATA operates the mass transit system for the District of Columbia and the suburbs in Maryland and Virginia. WMATA has operated the Metrorail System since March 29, 1976. The Metrorail System currently extends approximately 70 miles and includes 64 stations. WMATA transports an average of approximately one-half million persons per day.

 II. Sale of Newspapers Prior to Use Regulation

 Defendant asserts and plaintiff does not dispute that when Metrorail began operations in 1976, publishers of The Post and The Washington Star sought to circulate their newspapers through the use of hawkers and vending machines on WMATA property. WMATA took action through its Transit Police to stop the sales because these papers had not received permission from WMATA to sell newspapers. During the ensuing years, a series of meetings was held between representatives of The Post, The Washington Star, other members of the Washington Publishers Association and WMATA. See Affidavit of John E. Warrington (Auditor General of WMATA; formerly Director of WMATA's Office of Marketing), at paras. 3-5.

 At some point in March, 1977, negotiations became stalled over the issue of approval by the District of Columbia Fire Marshal of the installation of newspaper vending machines within WMATA stations. Warrington Affidavit at para. 6. The Fire Marshal became concerned that newspaper vending machines would introduce a combustible element into the system. See Exhibit I to Defendant's Memorandum of Points and Authorities in Opposition to Plaintiff's Motion for Preliminary Injunction ("Opposition Memorandum") (letter from John P. Breen, District of Columbia Fire Marshal to Theodore C. Lutz, General Manager, WMATA). Fire tests were subsequently conducted on two K-500 Sho-Rack vending machines. Thereafter, the Fire Marshal submitted a letter authorizing temporary placement of this type of vending machine for 120 days and prescribing conditions for permanent installation of the machines. See Exhibit J to Opposition Memorandum (recommendations of Fire Marshal Breen). The recommendations set forth in the letter were adopted by the Fire Chief's Committee of the Council of Governments in June, 1977. See Exhibit D to Opposition Memorandum.

 According to WMATA's account, an agreement was reached pursuant to which WMATA relinquished its right to charge newspapers for placement of the racks in exchange for the publisher's agreement not to use hawkers once permanent vending racks were installed. See Warrington Affidavit at para. 7. The vending machines were subsequently installed in Metro station mezzanines in approved metal enclosures. The publishers paid for the fabrication and installation of the vendors and the manufacturers were not charged any rental. Warrington Affidavit at paras. 7-8. To date, WMATA has permitted the installation of over 1500 newspaper vending machines representing approximately 60 different publications. See Affidavit of Ronald R. Rydstrom at para. 9.

 Prior to 1980, WMATA's policy was not to permit "free speech" activities on its property. On March 27, 1980, the WMATA Board of Directors passed Resolution No. 80-19, the predecessor of the present Use Regulation. Resolution 80-19 for the first time permitted leafletting on WMATA property. The resolution contained several restrictions similar to those in the current Use Regulation, including the requirement to obtain a permit before engaging in free speech activities.

 In response to increasing numbers of requests from groups seeking access to its facilities, a new regulation was proposed in 1986. After a public hearing in October, 1986, at which five witnesses testified, the proposed Use Regulation was modified and subsequently adopted. One of the five witnesses who testified at that hearing was Mr. Jake Terrell on behalf of The Washington Post. Neither Mr. Terrell nor any other witness offered any opposition to the prohibition on human vendors contained in the draft regulation. See Exhibit F to Opposition Memorandum.

 The current Use Regulation, which expressly prohibits the sale of newspapers by human vendors, was adopted by WMATA's Board of Directors on January 15, 1987. Section 100.11(a) of the Use Regulation provides in part: "Because of safety and fire considerations, human vendors and the chaining of any newspaper vending machines to Authority property is prohibited." The Use Regulation essentially codified WMATA's longstanding policy regarding human vending of newspapers.

 The Use Regulation also makes provisions for "free speech activity" subject to certain conditions. *fn1" The "free speech" activities permitted by the Use Regulation contain several significant limitations. The Regulation requires that all persons seeking to engage in free speech activity first obtain a permit from the Office of the General Counsel. See Exhibit G to Opposition Memorandum. WMATA retains the right to limit the number of persons permitted to engage in free speech activity on a station-by-station basis. Free speech activities are limited to the "above ground" areas in Metro stations. Such activities are also required to take place more than 15 feet from any escalator, stairwell, faregate, mezzanine, gate, kiosk, or farecard machine. Section 100.10(d).

 DISCUSSION

 To determine whether the Post is entitled to a preliminary injunction, the Court must consider the four factors set forth in Virginia Petroleum Jobbers Association v. FPC, 104 U.S. App. D.C. 106, 259 F.2d 921 (D.C.Cir. 1958): (1) the plaintiff's likelihood of success on the merits; (2) whether plaintiff will incur irreparable injury in the absence of injunctive relief; (3) whether defendant will be injured by the issuance of a preliminary injunction; and (4) the public interest. Id. at 925.

 I. Success on the Merits

 The Post advances two major theories as to why the Court should issue a preliminary injunction. First, the Post contends that WMATA's Use Regulation violates the Post's First Amendment rights. Second, the Post argues that the Use Regulation violates the Equal Protection Clause because it permits some forms of free speech, such as leafletting, but totally bans other forms of expression, such as the sale of newspapers by hawkers. Defendant, on the other hand, contends that the Use Regulation is a reasonable and content-neutral time, place, and manner restriction, which violates neither the First Amendment nor the Equal Protection Clause. Defendant also asserts the equitable defenses of estoppel and laches.

 A. First Amendment Challenge

 The Post argues that the absolute ban on newspaper hawking in WMATA's Use Regulation violates its First Amendment rights to freedoms of speech and press. The analysis of plaintiff's claim must proceed in three steps. First, the Court must inquire whether the regulated activity is protected by the First Amendment. If the activity is protected, the Court must then consider what type of forum is being regulated. Finally, the Court must consider whether the scope and proffered justification for the regulation satisfy the constitutional standards that are applicable to the type of forum. See Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 797, 87 L. Ed. 2d 567, 105 S. Ct. 3439 (1985).

 1. Protected Activity

 The Post claims that newspaper hawking is a protected First Amendment activity. The Court finds, however, that the Post defines the interest at issue here too narrowly. The interest implicated is that of circulating and distributing newspapers. "Hawking" is one of many manners in which a publisher can circulate and distribute its newspapers.

 The Supreme Court has clearly held that circulation of newspapers is "constitutionally protected." City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 108 S. Ct. 2138, 2149-50, 100 L. Ed. 2d 771 (1988). *fn2" Therefore, because WMATA's Use Regulation restricts in some degree the Post's ability to circulate and distribute newspapers, First Amendment concerns are implicated.

 2. Type of Forum

 The second inquiry, the type of forum involved, is highly controverted by the parties. The Supreme Court has recognized three types of fora: (1) the traditional public forum, such as a public street; (2) the public forum created by government designation; and (3) the nonpublic forum. Frisby v. Schultz, 487 U.S. 474, 108 S. Ct. 2495, 2499, 101 L. Ed. 2d 420 (1988). The resolution of this question is important because "the standard[s] by which limitations upon . . . a [First Amendment] right must be evaluated differ depending on the character of the ...


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