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Act Now to Stop War and End Racism Coalition v. District of Columbia

United States District Court, District of Columbia

November 29, 2012

ACT NOW TO STOP WAR AND END RACISM COALITION, et al., Plaintiffs,
v.
The DISTRICT OF COLUMBIA, Defendant.

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Carl L. Messineo, Mara E. Verheyden-Hilliard, Partnership for Civil Justice Fund, Washington, DC, for Plaintiffs.

Andrew J. Saindon, D.C. Office of Attorney General, Washington, DC, for Defendant.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, Chief Judge.

The Court considers whether the fourth iteration of the District of Columbia's law regulating the posting of signs on lampposts passes First Amendment muster. The law's most recent version treats signs relating to an " event" differently from " non-event" signs when determining how long the signs may remain posted. The District has amended the law twice since this Court's last substantive opinion. While these amendments bring the law closer to constitutionality, the District has not properly explained the event/non-event distinction, and has added a definition of " event" that explicitly delegates broad administrative discretion to enforcement officers. Therefore the plaintiff is entitled to summary judgment.

I. BACKGROUND

A. Early History of the Case

From 1980 until the filing of this suit in 2007, the rules for posting on the District's lampposts exempted campaign and public safety signs from the generally-applicable durational limits, and required that campaign posters be removed within thirty days after the general election. At the time, the law stated:

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 for individuals seeking political office in the District ...; and

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(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 down 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 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.

24 D.C. CODE MUN. REGS. § 108 (1980).

In the summer of 2007, Act Now to Stop War and End Racism Coalition (" 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 Ex. 1 to Def.'s First Mot. Dismiss, Feb. 6, 2008, ECF No. 8-1 (reproducing four Notices of Violation, all referencing § 108.9). ANSWER contested the tickets before the District's Office of Administrative Hearings (" OAH" ).

In addition to its claims before the OAH, ANSWER challenged the District's postering regulations in this Court. Compl., Aug. 21, 2007, ECF No. 1. Unlike in the administrative proceeding, ANSWER sued in federal court with a co-plaintiff, Muslim American Society Freedom Foundation (" 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 their complaint, the plaintiffs alleged that the 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 and overbroad, 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. 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 1-2; ANSWER Affidavit 1-2.

The District moved to dismiss the complaint. Def.'s First Mot. Dismiss, Feb. 6, 2008, ECF No. 8. The District argued, among other theories, that MASF lacked

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standing because it 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, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), because ANSWER could present its constitutional claims through the administrative proceedings at the OAH. Def.'s First Mot. Dismiss 4-8. The Court agreed with both arguments and granted the District's motion to dismiss. Act Now to Stop Racism and End War 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 United States Court of Appeals for the District of Columbia Circuit heard oral arguments— the District's Department of Transportation (" Department" ) issued a Notice of Emergency and Proposed Rulemaking revising the poster rules. D.C. MUN. REGS. tit. 56, §§ 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 revised provisions, which became final on January 8, 2010, D.C. MUN. REGS. tit. 57, § 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 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. CODE MUN. REGS. §§ 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 MASF'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. Act Now to Stop Racism and End War Coal. v. Dist. of Columbia ( ANSWER II ), 589 F.3d 433, 435 (D.C.Cir.2009) (quoting Seegars v. Gonzales, 396 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

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is facing in the District's administrative proceedings." Id.

With the case back before the Court, plaintiffs updated their complaint to account for the revised regulations. Suppl. Pleading, May 5, 2010, ECF No. 22-1. They maintained the claims that they had previously asserted, 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.

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. Id. ¶¶ 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 omitted).[1]

B. The Court's July 2011 Ruling on Defendant's Motion to Dismiss

The District again moved to dismiss all of plaintiffs' claims. Def.'s Second Mot. Dismiss, June 2, 2010, ECF No. 26. Thereafter, ANSWER voluntarily dismissed its prospective claims under Counts One and Two, leaving MASF to pursue those facial constitutional challenges alone. Stipulation of Dismissal, Oct. 25, 2010, ECF No. 35. On July 21, 2011, this Court granted in part and denied in part the District's motion. Act Now to Stop Racism and End War Coal. v. Dist. of Columbia ( ANSWER III ), 798 F.Supp.2d 134 (D.D.C.2011). This Court ruled that MASF had standing to bring its facial challenge, but both plaintiffs lacked standing for their new " as applied" claims. Id. at 143. The Court then considered the merits of MASF's First Amendment challenges. When determining whether the claims could survive a motion to dismiss, the Court " must accept as true all of the factual allegations contained in the complaint," Atherton v. Dist. of Columbia, 567 F.3d 672, 681 (D.C.Cir.2009), and grant plaintiffs " the benefit of all inferences that can be derived from the facts alleged." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994).

The Court found that the signs were " a form of expression protected by the Free Speech Clause." Id. at 144 (quoting City of Ladue v. Gilleo, 512 U.S. 43, 48, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994)). Next, the Court found that the lampposts are " a textbook example of a limited or designated public forum, in which public property has been ‘ opened for use by the public as a place for expressive activity.’ " Id. at 145

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(quoting Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 46, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983)).

The Court then considered whether the law could meet the standards for a designated public forum, which permits content-neutral regulations which are narrowly tailored to serve a significant public interest, and leave open ample alternatives for communication.[2] Id. (citing Burson v. Freeman, 504 U.S. 191, 197, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992)). While the law was viewpoint-neutral— applying equally to anti-war and pro-war posters— it was not necessarily content-neutral. " The guidelines provide substantially different treatment to two posters that are identical in every respect except that one contains content related to an event while the other does not." Id. at 146.

The Court also rejected the District's arguments that " the regulations are content-neutral because they do not totally prohibit a type of expression or a specific message but rather merely regulate the manner in which the message may be conveyed" and " that the regulations should be judged content-neutral even if [they] have some incidental effect on speech because they promote a content-neutral purpose— reducing litter and blight." Id. at 146-47 (citations omitted). The Court explained that restrictions that impose differential burdens on speech must still reviewed for content neutrality, id. at 146 (citing Turner Broad. Sys. v. F.C.C., 512 U.S. 622, 642, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994)), and that the regulations at issue did not clearly accomplish a content-neutral purpose in a content-neutral manner, id. at 147.

The Court summarized its main concerns with the District's regulations as follows:

Viewed on its own, § 108.5, which limits posters " not related to a specific event" to a hanging time of sixty days, is unproblematic. An across-the-board durational restriction would limit litter by requiring posters of all types to be taken down after a certain number of days. Likewise, the provision of § 108.6 requiring posters related to events to be " removed no later than thirty (30) days following the event" is straightforward. A poster for an event that has already occurred is more likely to constitute litter and blight than a poster for a future event or a general political message. This Court's concern arises from the other half of § 108.6, which allows posters related to a specific event to be " affixed any time prior to the event." It is not clear how allowing posters to hang for an indefinite period of time before an event advances the District's interest in reducing litter....
In the absence of an explanation for how this distinction between event and non-event signs advances the District's objective of litter prevention, the differential burdens imposed by §§ 108.5-108.6 present serious First Amendment concerns. City of Ladue, 512 U.S. at 52, 114 S.Ct. 2038 (" Exemptions from an otherwise legitimate regulation of a medium of speech may ... diminish the credibility of the government's rationale for restricting speech in the first place." ). In particular, given that the District has announced that elections qualify as " events" under the new regulations, Pl.'s Notice, this distinction

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could be seen as a way of resurrecting the old rules that prioritized election-related speech— including the political communications of the government officials who make and enforce the rules— over general issue advocacy and political expression.

Id. at 148. After considering whether the law could be narrowly tailored and leave alternative channels of communication open, the Court denied the District's motion to dismiss Count One of the complaint. Id. at 149-50. The Court suggested that " an across-the-board durational restriction that applies without exceptions based on the content of the signs would address the constitutional concern while preserving the District's interest in preventing litter." Id. at 149.

The Court also refused to dismiss MASF's claim that that the law is unconstitutionally vague and overbroad. MASF contends that the law does not adequately define which posters " relate to an event," does not give adequate notice to potential speakers, and allows for arbitrary enforcement. Id. at 150-51. While " some of plaintiff's ... scenarios str[uck] the Court as a bit far-fetched," the Court found " practical uncertainties ... raise[d] the possibility that the law ‘ fail[s] to provide the kind of notice that will enable ordinary people to understand which conduct it prohibits.’ " Id. at 151 (quoting City of Chicago v. Morales, 527 U.S. 41, 56, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999)).

The Court dismissed plaintiffs' claims that the registration requirement " represents an unconstitutional restraint on their right to anonymous speech," and " that the District imposed a system of ‘ strict liability’ enforcement in violation of the Due Process Clause." Id. at 152-53. The Court found these claims legally meritless. Id. The Court also dismissed ANSWER's § 1983 claim that the " District harassed it with a series of bogus and false notices of violation." Id. at 153 (citations omitted). While ANSWER alleged a violation of its constitutional rights, it could not meet its " ‘ burden of pleading the existence of a municipal custom or practice that abridges [its] federal constitutional or statutory rights.’ " Id. at 154 (quoting Bonaccorsy v. Dist. of Columbia, 685 F.Supp.2d 18, 27 (D.D.C.2010)). The Court dismissed all of ANSWER's active claims, leaving only MASF's facial constitutional challenges. The Court ordered the case to proceed to discovery to give the District " an opportunity to clarify the questions remaining about the meaning of the term ‘ event’ and the relation of [the] event/non-event distinction in §§ 108.5-108.6 to the anti-littering interest it asserts." Id. at 155.

C. Current Regulations

Following ANSWER III, the District twice amended its postering regulations. On August 26, 2011, the Department of Transportation amended the disputed regulations to read:

108.5: A sign, advertisement, or poster shall be affixed for no more than one hundred eighty (180) days.
108.6: A sign, advertisement, or poster related to a specific event shall be removed no later than thirty (30) days following the event to which it is related. This subsection is not intended to extend the durational restriction in subsection 108.5.

D.C. MUN. REGS. tit. 58, § 7688 (Aug. 26, 2011). The following month, the District further amended the regulations. D.C. MUN. REGS. tit. 58, § 8410 (Sept. 30, 2011). First, the District required the person posting the sign, in their filing with the District, to designate the date of the event for event-related signs:

108.11: Within twenty-four hours of posting each sign, advertisement, or poster, two (2) copies of the material

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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, and if the sign is for an event, the date of the event.

Id. (new text in italics). Furthermore, the amendment added a subsection defining " event" :

108.13: For purposes of this section, the term ‘ event’ refers to an occurrence, happening, activity or series of activities, specific to an identifiable time and place, if referenced on the poster itself or reasonably determined from all circumstances by the inspector.

24 D.C. CODE MUN. REGS. § 108.13 (2012) (providing current 108.13 definition of " event" ). These regulations are currently in effect. D.C. MUN. REGS. tit. 59, § 273 (Jan. 20, 2012).

On June 22, 2012, MASF and the District filed cross-motions for summary judgment. Pl.'s Mot. Summ. J, ECF No. 60; Def.'s Mot. Summ. J., ECF No. 59. The Court now considers these motions and will grant in part MASF's motion, and deny in toto defendant's motion.

II. LEGAL STANDARD

A. Summary Judgment

" The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The mere existence of any factual dispute will not defeat summary judgment; " the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505 (emphasis in original). A fact is material if, under the applicable law, it could affect the outcome of the case. Id. A dispute is genuine if the " evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. Because " [c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge," the " evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than " the existence of a scintilla of evidence" in support of its position. Id. at 252, 106 S.Ct. 2505. The inferences drawn from the evidence " must be reasonably probable and based on more than mere speculation." Rogers Corp. v. E.P.A., 275 F.3d 1096, 1103 (D.C.Cir.2002) (citations omitted). In addition, the nonmoving party may not rely solely on allegations or conclusory statements. See Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999). The nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Id. If the evidence presented is " merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505.

The filing of a cross-motion for summary judgment does not " concede the factual allegations of the opposing motion." CEI Washington Bureau, Inc. v. Dep't of Justice, 469 F.3d 126, 129 (D.C.Cir.2006). Cross-motions for summary judgment are treated separately. See Sherwood v. Washington Post, 871 F.2d 1144, 1147 n. 4 (D.C.Cir.1989) (" [I]t does not matter that the District Court was faced with cross-motions for summary judgment. ‘ The rule governing cross-motions for summary judgment ... is that neither party waives the right to a full trial on the merits by filing its own motion; each side concedes

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that no material facts are at issue only for the purposes of its own motion.’ " ) (quoting McKenzie v. Sawyer, 684 F.2d 62, 68 n. 3 (D.C.Cir.1982)). The court may— despite the parties' stipulations that there are no disputed facts— find that material facts are in dispute, deny both motions, and proceed to trial. Id. at 1147 n. 4.

B. Public Forum Doctrine

The First Amendment provides that " Congress shall make no law ... abridging the freedom of speech." U.S. CONST., amend. I. The Supreme Court has long held that this restriction applies not only to Congress, but also to state and municipal governments. Lovell v. Griffin, 303 U.S. 444, 450, 58 S.Ct. 666, 82 L.Ed. 949 (1938). While the First Amendment " reflects ‘ a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,’ " Snyder v. Phelps, __U.S. __, 131 S.Ct. 1207, 1215, 179 L.Ed.2d 172 (2011) (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)), a municipal government " may sometimes curtail speech when necessary to advance a significant and legitimate state interest," Members of the City Council of City of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 804, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984).

Courts in this Circuit generally follow three steps in assessing a First Amendment challenge: " first, determining whether the First Amendment protects the speech at issue, then identifying the nature of the forum, and finally assessing whether the ... justifications for restricting ... speech ‘ satisfy the requisite standard.’ " Mahoney v. Doe, 642 F.3d 1112, 1116 (D.C.Cir.2011) (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985)). The first step here is undisputed. " [S]igns are a form of expression protected by the Free Speech Clause[.]" City of Ladue, 512 U.S. at 48, 114 S.Ct. 2038. The Court will focus on the second and third steps: identifying the nature of the forum and determining the requisite standard.

1. Identifying the Nature of the Forum

The second step is to determine the nature of the forum in which the protected speech occurs. Public forum doctrine " divides government property into three categories for purposes of First Amendment analysis." Oberwetter v. Hilliard, 639 F.3d 545, 551 (D.C.Cir.2011). One category is the traditional public forum, which encompasses public areas that have " by long tradition or by government fiat ... been devoted to assembly and debate." Perry, 460 U.S. at 45, 103 S.Ct. 948. A second category is the limited public forum or designated public forum, which comprises " public property which the State has opened for use by the public as a place for expressive activity." Id. The final category is the nonpublic forum, which consists of government property that is " not by tradition or designation a forum for public communication." Id. at 46, 103 S.Ct. 948. In ...


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