The material facts are the existence of the WMATA Regulation and the applicability of that Regulation. See, Plaintiffs Rule 108(h) Statement of Material Facts Not in Dispute.
The first issue which I must address is whether or not the WMATA Regulation constitutes an unconstitutional prior restraint on the exercise of First Amendment rights. I must do so bearing in mind that any regulation having the power of law that imposes a prior restraint on the exercise of First Amendment rights comes before a court "bearing a heavy presumption against its constitutional validity." Vance v. Universal Amusement Co., 445 U.S. 308, 317, 63 L. Ed. 2d 413, 100 S. Ct. 1156 (1980) quoting Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S. Ct. 631, 9 L. Ed. 2d 584 (1963)).
In evaluating the facial validity of regulations which restrict constitutionally protected free speech on publicly owned government property, it must be determined by the reviewing court whether the proposed forum is a "public forum." If the area in question is deemed to be a "public forum," the reviewing court must decide whether the interests of the State in limiting protected speech are sufficiently strong to outweigh the strong societal interest in protecting freedom of expression. To pass Constitutional muster the regulation must be narrowly tailored to further a substantial government interest. See United States v. Grace, 461 U.S. 171, 75 L. Ed. 2d 736, 103 S. Ct. 1702 (1983).
The parties in the instant case dispute whether WMATA property constitutes public forum status and subject to the above high standard of review. Defendants argue that WMATA Metrorail stations, while public properties, are subject to a lesser standard of scrutiny because, among other things, these areas are not traditional public platforms. Defendant reasons that "Unlike streets and parks, this area has not traditionally served as a place for free public assembly and communication of thoughts by private citizens." (Defendant's Memorandum of Points and Authorities in Opposition to Plaintiffs' Motion for Summary Judgment at 7).
In determining whether or not WMATA properly is a public forum, I believe it is necessary to differentiate between the underground areas of WMATA property and the above-ground free area. The above ground free area includes the street-level sidewalk areas owned by WMATA. The Supreme Court in Grace found the public sidewalk to constitute public forum property because it is an area that traditionally has been held open to the public for expressive activity. See Grace, 461 U.S. at 179.
This court recognizes that the right of access to public property and the standards for permissible limitations upon such rights are determined according to the character of the property at issue. See Perry Education Association v. Perry Local Education Association, 460 U.S. 37, 74 L. Ed. 2d 794, 103 S. Ct. 948 (1983). I must therefore determine WMATA's right as a property owner to control its own property. WMATA as a government-created agency clearly possesses this right, but the scope of this right is not unlimited. In seeking to control public access to its facilities for free speech activity, WMATA must tailor its restrictions only to the extent necessary to comply with its stated mission, which is to provide for the safe, efficient operation of its transit system while protecting the safety of Metro patrons and employees. (See WMATA Regulations § 100.1). In order to achieve this stated goal, however, I find the permit requirement to be an unreasonable prior restraint on the exercise of free expression.
It is clear that all advance permit requirements controlling free speech activity are not unconstitutional per se. For a permit system lawfully to exist, the issuing authority must make permits available to applicants in a prompt, unobtrusive manner so as not to frustrate or restrict the exercise of their fundamental rights.
The provisions of the WMATA regulation provide that permits may be obtained only at WMATA's business office either in person or by mail during normal business hours (WMATA Regulation § 100.2(a)). These restrictions impose too great a burden on an individual seeking spontaneously or otherwise to express his or her First Amendment rights. I concur with plaintiffs' argument that the above limitations on the times and locations at which free speech may be exercised create a "built-in delay mechanism that prevents the timely exercise of First Amendment rights." (Plaintiffs' Statement of Points and Authority in Support of their Motion for Partial Summary Judgment at 17).
Clearly, whether an individual can exercise unfettered his freedom of expression in a timely manner is an integral aspect in determining whether a regulation imposes an impermissible prior restraint on free speech. An individual desiring to effectively protest a particular policy or news event, wants to reach the maximum number of people while the issue is most freshly embedded in the public's mind.
The "built-in delay mechanism" inherent in the WMATA permit regulation serves to deter and may even preclude expression necessary to provide an immediate response to late-breaking events. Plaintiffs correctly note that the permit restrictions "impose particularly severe burdens on elderly, handicapped, or working people, or on suburban residents who may find it difficult or impossible to travel to WMATA headquarters to obtain a permit." (Plaintiffs' Statement of Points and Authorities in Opposition to Defendant's Motion for Summary Judgment at 10).
The WMATA Regulation defines "free speech" as the "organized exercise of rights and privileges which deal with political, religious, or social matters and are non-commercial." (WMATA Regulation § 100.7(h)).
This language in effect includes all expressive activity including peaceful leafletting, praying and speaking on WMATA property. The problem with the regulation's blanket permit requirement is that it does not differentiate between the size of the prospective gathering, the possibility of disruption, or the exact type or value of the expression.
At the criminal hearing on February 2, 1988, brought against plaintiff Snyder and other CCRV members for alleged violations of the WMATA Regulation, District of Columbia Superior Court Judge Eugene N. Hamilton in dismissing all charges, observed:
. . . it applies to all individuals and all activities, all First Amendment activities on all WMATA property without distinguishing between individuals, activities, and that specific property you are talking about . . .
United States v. Kochol, Criminal Action No. M-13602-87 (Transcript of Hearing at 54-55, Feb. 2, 1988 (D.C. Super Ct.) (Hamilton, J.). I agree with Judge Hamilton's finding and accordingly find the WMATA Regulation's absolute and complete prohibition of free speech activities without a permit to be unnecessarily overreaching in its attempt to achieve these goals.
I therefore find the WMATA Regulation to be facially violative of the First Amendment in that through its overbroad language and applicability it creates an impermissible prior restraint on free speech. Because I find this regulation to be repugnant to the First Amendment and therefore void, I need not address the Fifth and Fourteenth Amendment challenges to the regulations.
Therefore, Plaintiffs' Motion for Partial Summary Judgment is hereby GRANTED.
ORDER - May 17, 1989, Filed
On this date, the Court issued its opinion in the above titled action. Based on the reasons set forth in that opinion and the entire record in this case, it is
ORDERED that plaintiff's motion for partial summary judgment shall be and hereby is granted; it is further
ORDERED that "Regulation Concerning The Use By Others Of Washington Metropolitan Area Transit Authority Property" (the "WMATA Regulation") be and it hereby is declared unconstitutional in violation of the First Amendment to the Constitution of the United States; it is further
ORDERED that defendant Turner be, and she hereby is, permanently enjoined from enforcing the WMATA Regulation or from causing or permitting the enforcement of the WMATA Regulation; and it is further
ORDERED that this court shall retain jurisdiction to order such other and further relief as may be appropriate.
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