This matter originally came before the Court on plaintiffs' motion for a preliminary injunction. That motion is now moot and has been replaced by a request for a permanent injunction in connection with plaintiffs' motion for summary judgment. The defendants also have filed a motion for summary judgment. Upon consideration of plaintiffs' motion for summary judgment, defendants' opposition, defendants' motion for summary judgment, plaintiffs' opposition, defendants' reply and the joint stipulation of material facts agreed to by the parties, the Court concludes that plaintiffs' motion for summary judgment should be granted and defendants' motion for summary judgment should be denied. A permanent injunction will issue.
On or about January 23, 2004, President Bush signed into law the Consolidated Appropriations Act of 2004, Pub. L. No. 108-199, 118 Stat. 3. Title II of Division F of the Act governs appropriations for the Department of Transportation, including mass transit systems.
Section 177 of Division F ("Section 177") prohibits making any of the appropriated funds for mass transit available to "any Federal transit grantee after February 1, 2004, involved directly or indirectly in any activity that promotes the legalization or medical use of any substance listed in schedule I of section 202 of the Controlled Substances Act (21 U.S.C. 812 et seq.)." See Stipulated Statement of Material Facts ("Stip.") at ¶ 9. The Washington Metropolitan Transit Authority ("WMATA") is a federal transit grantee pursuant to 49 U.S.C. Chapter 53, and is eligible to receive federal funds under the Consolidated Appropriations Act of 2004. See id. at ¶ 3.
Plaintiffs – the American Civil Liberties Union, Change the Climate, Inc., the Drug Policy Alliance, and the Marijuana Policy Project – are nonprofit organizations that seek to participate in public debate on issues relating to marijuana laws and policy. See Stip. at ¶ 4. Some plaintiffs place advertising relating to marijuana laws and policy to advocate their positions. See id. at ¶ 5. Plaintiff Change the Climate submitted several advertisements to WMATA in the fall of 2003 – prior to the effective date of the Act – which were displayed on and in buses and in Metrorail stations. See id. at ¶ 6. At least one of these advertisements had the subheading "Legalize and Tax Marijuana." See id. WMATA also has displayed Office of National Drug Control Policy anti-drug advertisements. See id. at ¶ 7.
On or about January 24, 2004, plaintiffs sought to purchase advertising space on the WMATA system for a specific advertisement entitled "Marijuana Laws Waste Billions of Taxpayer Dollars to Lock up Non-Violent Americans." See Stip. at ¶ 10; Motion of Plaintiffs for Preliminary Injunction ("Pl. Mot."), Exh. B. On or about February 5, 2004, WMATA informed plaintiffs that it had rejected plaintiffs' advertisement. See Stip. at ¶ 11. The parties agree that WMATA rejected the advertisement because of its concern about jeopardizing its federal funding. See id.
Plaintiffs maintain that Section 177 violates their constitutional rights in multiple, independent ways:
(1) It imposes impermissible content- and viewpoint-based restrictions on speech in a public forum in an effort to silence one side's message in a serious political debate;
(2) it imposes restrictions that are unconstitutionally vague and overbroad; and
(3) it is an unlawful exercise of Congress' spending power because it violates an independent constitutional prohibition on the conditional grant of federal funds.
See Motion of Plaintiffs for Preliminary Injunction at 2. Plaintiffs seek an injunction that prohibits defendants Secretary of Transportation Norman Mineta and the United States from enforcing Section 177. See id. at 3.
A. Construing Section 177 to Allow Advertisement
An Act of Congress ought not to be construed as violating the Constitution if any other possible construction remains available. See, e.g., Rust v. Sullivan, 500 U.S. 173, 190 (1991). In light of this principle of constitutional avoidance, courts are required to construe congressional legislation, whenever possible, in a manner that avoids constitutional infirmities. Turner v. District of Columbia Board of Elections and Ethics, 354 F.3d 890, 893 (D.C. Cir. 2004); see also Rust v. Sullivan, 500 U.S. at 190-91. The language of the statute at issue in this case, however, is quite clear. A federal transit grantee that directly or indirectly promotes the legalization of a controlled substance sacrifices its federal funding under the Act. The constitutional questions raised by plaintiffs cannot be avoided because there is no way to construe Section 177 to allow mass transit grantees to display advertisements promoting the legalization of a controlled substance while still receiving federal funds.
The Conference Report accompanying the Act explained that Section 177 "prohibits Federal transit grantees from obligating or expending funds that would otherwise be available in the Act, if the grantee is involved directly or indirectly with any activity, including displaying or permitting to be displayed advertisements on its land, equipment, or in its facilities, that promote the legalization or medical use of substances listed in schedule I of section 202 of the Controlled Substance Act." H.R. CONF. REP. NO. 108-401, at 982 (2003). WMATA's posting of a given advertisement is clearly an "indirect" promotion of the message it contains. Neither party has suggested an alternate construction that would avoid this conclusion. Even if the language of the statute were seen as ambiguous regarding the provision of advertising space to public policy groups, the legislative history of the statute makes clear that the congressional intent was specifically to eliminate the type of advertisements implicated by this case. The Conference Report noted "with displeasure that public service advertising space in Washington, DC's Metropolitan Area Transit Authority rail stations and buses has been used to advocate changing the nation's laws regarding marijuana usage." Id. at 982.
There does not appear to be a reasonable statutory construction that can be used to avoid the constitutional questions raised by plaintiffs. Section 177 must be analyzed to determine whether it is unconstitutional under the First Amendment.
B. Unconstitutionally Vague and Overly Broad
Plaintiffs first argue that Section 177 is unconstitutionally vague and overly broad. Under the First Amendment, "speakers are protected from arbitrary and discriminatory enforcement of vague standards." National Endowment for the Arts v. Finley, 524 U.S. 569, 588 (1998). Although Section 177 contains some vague terms – "promote" and "indirectly... involved" – the essence of the provision is quite clear. Section 177 will be triggered, and the federal funding lost, if the transit grantee in any way – including by displaying, or permitting the display of, advertisements – endorses, or otherwise engages in activities that advocate the legalization of a controlled substance. Although "the fertile legal imagination can conjure up hypothetical cases in which the meaning of [disputed] terms will be in nice question," the statute here is written in clear and understandable language. Terry v. Reno, 101 F.3d 1412, 1421 (D.C. Cir. 1996) (internal quotations and citations omitted).
The courts are concerned with vague statutes in criminal and regulatory contexts where speakers – because they do not understand what the statute proscribes – will feel "compelled to steer too far clear of any 'forbidden area.'" See National Endowment for the Arts v. Finley 524 U.S. at 588. A vague law "denies due process by imposing standards of conduct so indeterminate that it is impossible to ascertain just what will result in sanctions." Hastings v. Judicial Conference of the United States, 829 F.2d 91, 105 (D.C. Cir. 1987). In this case, by contrast, there is fair notice and fair warning; it is ...