III. Background of the Use Regulation
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.
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).
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).
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 property at issue." Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37, 44, 74 L. Ed. 2d 794, 103 S. Ct. 948 (1983).
In traditional public fora, the government may not prohibit all communicative activity.
"For the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end." Carey v. Brown, 447 U.S. 455, 461, [65 L. Ed. 2d 263, 100 S. Ct. 2286] (1980). The State may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication."