The opinion of the court was delivered by: JOYCE HENS GREEN
Plaintiffs Rollen F. Stewart, Steven D. Francis, and Edwin Thate, Jr. initiated this action this date against the District of Columbia Armory Board, Sharon Pratt Kelly,
Major General Calvin G. Franklin, Stuart J. Long, and James A. Dalrymple, seeking to enjoin defendants from preventing plaintiffs from displaying religious signs at RFK Stadium. Presently pending is plaintiffs' motion for a temporary restraining order ("TRO") and/or a preliminary injunction ("PI").
Having reviewed plaintiffs' pleadings and having considered the arguments advanced by counsel for both sides at an oral hearing held today, plaintiffs' motion for a TRO and PI is granted.
On June 22, 1990, the Armory Board adopted a new regulation regarding signs and banners at RFK Stadium. The regulation
permits, inter alia, the exhibition of signs and banners if the following conditions are met:
(1) The banner shall pertain to the event;
(2) The banner shall not be commercial, vulgar or derogatory; and
(3) The dimensions of the banner shall not exceed 4' x 6'.
On January 4, 1992, plaintiff Thate placed a scripture sign with the reference "John 3:3" at the 20 yard line of RFK Stadium for view during the Washington Redskins post-season football game. Thate noticed, however, that the sign was removed during half-time. He placed another sign with the message "Mark 8:36" in the end zone and later noticed that that sign had also been torn. Francis, who watched the January 4, 1992 game on television, observed that a variety of signs -- "Hi to Kathy and Don," "Capitol Punishment," "National Defense," and "2 Legit 2 Quit" -- remained undisturbed throughout the game. Thate, who attended the game, also noticed that other signs and banners were not removed.
At the hearing, counsel for plaintiffs indicated that although plaintiffs had displayed similar signs on at least one other occasion between June, 1990 and January 4, 1992, the signs had never before been removed. In addition, defense counsel stated that with the exception of those that exceeded the size limitation, to his knowledge, the only signs that have been removed pursuant to the regulation's "content" restriction belong to plaintiff. Finally, counsel for defendants indicated that plaintiffs' signs were removed by defendants' employees at the direction of the National Football League ("NFL").
Officials of the NFL did not request that any other signs be removed from the Stadium.
A temporary restraining order may be granted only when the plaintiff demonstrates (1) a substantial likelihood of success on the merits; (2) that irreparable injury will result in the absence of the requested relief; (3) that no other parties will be harmed if temporary relief is granted; and (4) that the public interest favors entry of a temporary restraining order. Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 182 App. D.C. 220, 559 F.2d 841, 843 (D.C. Cir. 1977); accord, Virginia Petroleum Jobbers Ass'n v. Federal Power Commission, 259 F.2d 921, 925 (D.C. Cir. 1958). This test is not a wooden one, for as our court of appeals has noted, belief may be granted "with either a high probability of success and some injury, or vice versa." Cuomo v. United States Nuclear Regulatory Commission, 772 F.2d 972, 974 (D.C. Cir. 1985) (per curiam) (emphasis in original). See also Holiday Tours, 559 F.2d at 843.
A. Likelihood of Success on the Merits
Under either the public forum doctrine or overbreadth/vagueness analyses, it appears, based on the present record, that plaintiffs have a substantial likelihood of success on the merits.