The opinion of the court was delivered by: Signed by Royce C. Lamberth, Chief Judge
This case concerns the constitutional right to hang political posters on lampposts in the nation's capital. The District of Columbia permits anyone to post a sign expressing a general political message for sixty days. Signs related to a specific event must be removed within thirty days of its occurrence, but they may hang for an indefinite period before the event.
The Act Now to Stop War and End Racism Coalition ("ANSWER") and Muslim American Society Freedom Foundation ("MASF") allege that these regulations violate the First Amendment. They further claim that the District's enforcement mechanism contravenes the Due Process Clause, and ANSWER alleges that the District subjected it to retaliatory enforcement for exercising its First Amendment rights, thus violating 42 U.S.C. § 1983. In 2008, the District moved to dismiss, and this Court granted its motion on standing and abstention grounds.*fn1 The Court of Appeals reversed and remanded the case for further consideration. In the opinion below, this Court will clarify the posture of the case and address plaintiffs' claims.
From 1980 until after the filing of this lawsuit in 2007, the rules for posting on the District's lampposts were outlined by Title 24: Public Space and Safety, Chapter 1: Occupation and Use of Public Space, Section 108: Signs, Posters, and Placards of the District of Columbia Municipal Regulations. 24 D.C.M.R. § 108. The relevant provisions provided as follows:
108.5: A sign, advertisement, or poster shall not be affixed for more than sixty (60) days, except the following:
(a) Signs, advertisements, and posters of individuals seeking political office in the District who have met the requirements of § 210 of the D.C. Campaign Finance Reform and Conflict of Interest Act (D.C. Code § 1-1420 (1981)); and (b) Signs designed to aid in neighborhood protection from crime shall be exempt from the sixty (60) day time period. 108.6: Political campaign literature shall be removed no less than thirty
(30) days following the general election. 108.7: Each sign, advertisement, or poster shall contain the date upon which it was initially affixed to a lamppost. 108.8: Each sign, advertisement, or poster shall be affixed securely to avoid being torn or disengaged by normal weather conditions. 108.9: Signs, advertisements, and posters shall not be affixed by adhesives that prevent their complete removal from the fixture, or that do damage to the fixture. 108.10:No more than three (3) versions or copies of each sign, advertisement, or poster shall be affixed on one (1) side of a street within one (1) block. 108.11:Within twenty-four (24) hours of posting each sign, advertisement, or poster, two (2) copies of the material shall be filed with an agent of the District of Columbia so designated by the Mayor. The filing shall include the name, address, and telephone number of the originator of the sign, advertisement, or poster.
In the summer of 2007, ANSWER-a "grassroots civil rights organization which seeks to engage the public in communications opposing war and racism, among other issues," Affidavit of Brian Becker 1--2, Mar. 14, 2008, ECF No 11-1 ["ANSWER Affidavit"]-posted signs advertising its September 15th "March to Stop the War" on public lampposts and electrical boxes throughout the city. The District cited ANSWER for numerous violations of § 108.9, the provision regarding the use of adhesives. See Def.'s Mot. Dismiss, Ex. 1, Feb. 6, 2008, ECF No. 8-1 (reproducing four Notices of Violation, all referencing § 108.9) ["Def.'s First Mot. Dismiss"]. ANSWER contested the tickets before the District's Office of Administrative Hearings ("OAH"). That adjudicatory process continues. See Notice Regarding Activity Before The Office of Administrative Hearings, Oct. 25, 2010, ECF No. 34 ["OAH Notice"].
In addition to its claims before the OAH, ANSWER challenged the District's postering regulations as unconstitutional in this Court. Compl., Aug. 21, 2007, ECF No. 1. Unlike in the administrative proceeding, ANSWER sued in federal court with a co-plaintiff, MASF, which "focuses on empowering the Muslim-American community through civic education, participation, community outreach, and coalition building including First Amendment assemblies in opposition to war and in support of civil rights." Affidavit of Imam Mahdi Bray, Mar. 14, 2008, ECF No 11-2 ["MASF Affidavit"].
In a complaint that the Court of Appeals later characterized as having "rather a blunderbuss quality," ANSWER Coal. v. Dist. of Columbia (ANSWER II), 589 F.3d 433, 437 (D.C. Cir. 2009), plaintiffs alleged that the postering regulations were facially unconstitutional because they contained improper content-based distinctions in violation of the First Amendment, First Am. Compl. ¶¶ 7--8, Dec. 18, 2007, ECF No. 3.; were unconstitutionally vague, id. ¶¶ 42--44; violated plaintiffs' right to anonymous speech, id. ¶ 39; and imposed a strict liability regime that violated plaintiffs' due process rights, id. ¶¶ 25--34. Plaintiffs focused most of their attention on the content-based discrimination claim, charging that the divergent regulations governing general, electoral, and anti-crime messages "created a hierarchy of speech" that represented a "classic, unconstitutional regulatory scheme." Id. at 2. Both plaintiffs submitted affidavits explaining that they had refrained from posting signs on public lampposts in the manner they would prefer because of the regulations, and that they were suing on behalf of themselves and "all others engaged in civil rights advocacy" whose speech had been similarly "chilled." MASF Affidavit, at 1--2; ANSWER Affidavit, at 1--2.
The District moved to dismiss the complaint. Def.'s First Mot. Dismiss. The District argued, among other theories, that MASF lacked standing because it had suffered no injury from the regulations, id. at 14--20, and that the Court should abstain from adjudicating ANSWER's claims under the doctrine of Younger v. Harris, 401 U.S. 37 (1971), because ANSWER would have an opportunity to present its constitutional claims through the administrative proceedings at the OAH. Def.'s First Mot. Dismiss 4--8. This Court agreed with both arguments and granted the District's motion to dismiss. ANSWER Coal. v. Dist. of Columbia (ANSWER I), 570 F. Supp. 2d 72 (D.D.C. 2008). Plaintiffs appealed.
On November 2, 2009-shortly before the Court of Appeals heard oral arguments-the District's Department of Transportation issued a Notice of Emergency and Proposed Rulemaking revising the poster rules. 56 D.C. Reg. 8759--60 (Nov. 6, 2009). The new rules allowed: all signs that are not lewd, indecent, or vulgar, or do not pictorially represent the commission of or the attempt to commit any crime to be posted on a structure in public space for sixty (60) days, and a sign, advertisement, or poster related to a specific event may be affixed any time prior to an event but shall be removed no later than thirty (30) days following the event for which it is advertising or publicizing.
Id. at 8759. The Department explained that the emergency rulemaking was "necessitated by the immediate need to address the continuing threat to the public welfare posed by an unequal treatment of non-commercial advertising in the public space." Id. The Department characterized the new regulations as "a technical amendment" that "removes a time limit distinction that exists between political and non-political advertising that has raised First Amendment concerns." Id. The new provisions, which became final on January 8, 2010, 57 D.C. Reg. 528 (Jan. 8, 2010), read as follows:
108.5: A sign, advertisement, or poster not related to a specific event shall be affixed for no more than sixty (60) days.
108.6: A sign, advertisement, or poster related to a specific event may be affixed any time prior to the event but shall be removed no later than thirty (30) days following the event to which it is related.
24 D.C.M.R. §§ 108.5--108.6 (2011).
The Court of Appeals decided the case on grounds that did not require consideration of these new rules. The Court first reversed on the issue of MASF's standing. Judge Williams explained that the Foundation's affidavit "plainly indicat[ed] an intent to engage in conduct violating the 60-day limit" and that this qualified as the "credible statement by the plaintiff of intent to commit a violative act" that the D.C. Circuit had previously held to constitute standing in a First Amendment facial challenge. ANSWER II, 589 F.3d at 435 (quoting Seegars v. Gonzales, 386 F.3d 1248, 1253 (D.C. Cir. 2005)).
The Court of Appeals also remanded on some of the claims by ANSWER that this Court had initially declined to consider under the Younger abstention doctrine. Judge Williams explained that "the district court appropriately abstained" on the claims related to § 108.9, the adhesive provision, which ANSWER had directly challenged in the OAH. Id. But on the other claims, the Court of Appeals held that "consistent with Younger, ANSWER may raise constitutional challenges in federal district court that are completely independent of and severable from the violations it is facing in the District's administrative proceedings." Id.
With the case back before this Court, plaintiffs updated their complaint to account for the revised regulations. Supplemental Pleading, May 5, 2010, ECF No. 22-1 ["Suppl. Pldg."]. They maintained all the claims that they had asserted previously, including their principal allegation that the regulations draw an unconstitutional, content-based distinction between signs carrying a general political message and signs related to political campaigns. Id. ¶ 4. While the new regulations replaced the explicit exception for signs posted in support of "individuals seeking political office" with a more general category for signs "related to a specific event," plaintiffs argued that the District had "simply substituted a new set of unconstitutional content-based distinctions for the prior set of unconstitutional content-based distinctions." Id. Their basis for this argument is their allegation "on information and belief" that the District would interpret political campaigns as "events," thus allowing them to continue to be treated differently from general political messages. Id. ¶¶ 9--10. Several months later, plaintiffs removed the "on information and belief" designation after the D.C. Board of Elections and Ethics noted on its website that "the new rules allow campaign posters to remain up 30 days after the general election . . . ." Notice to the Court That Complaint Allegations Are No Longer "On Information and Belief," Sept. 16, 2010, ECF No. 32 (quoting www.dcboee.org/candidate_info/ general_info/campaign_posters.asp) ["Pl.'s Notice"].
Plaintiffs added two new counts in their supplemental pleading. First, in addition to facially challenging §§ 108.5--108.6 of the new regulations, they added an "as applied" challenge alleging that the provisions are improperly content-based and undefined. Suppl. Pldg. ¶¶ 102-- 04. Second, ANSWER added a claim that the District had violated 42 U.S.C. § 1983 by issuing "baseless" citations "in retaliation for the ANSWER Coalition's exercise of its lawful rights to free speech through lawful postering activities." Id. ¶¶ 105--06. ANSWER based this claim on ninety-nine citations it received from the District in March and April 2010, which it alleges were issued "notwithstanding the fact that the Coalition had fully complied with the [amended] regulations." Id. ¶ 44 (emphasis in original).
The District again moved to dismiss all of plaintiffs' claims. Def.'s Mot. Dismiss, June 2, 2010, ECF No. 26 ["Def.'s Mot."]. After plaintiffs had filed their opposition and the District had replied, the OAH issued an order announcing that proceedings would be scheduled in ANSWER's challenge to the tickets it received in 2007. OAH Notice. ANSWER then voluntarily dismissed its claims for prospective relief related to its constitutional challenges to the regulations in this Court. Stipulation of Dismissal, Oct. 25, 2010, ECF No. 35. Plaintiffs and the District stipulated that the dismissal would "eliminate the legal issues pertaining to abstention" while preserving MASF's challenges to the regulations and ANSWER's § 1983 claim. Id. at 1. Those are the claims the District now seeks to dismiss.
While this case is more than four years old, it remains at the motion to dismiss stage of the proceedings. A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). To satisfy this test, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint," Atherton v. Dist. of Columbia, 567 F.3d 672, ...