United States District Court, District of Columbia
AMERICAN FREEDOM DEFENSE INITIATIVE, et. al., Plaintiffs,
WMATA, et. al., Defendants.
Kessler United States District Judge
American Freedom Defense Initiative, Pamela Geller and Robert
Spencer, (collectively, "Plaintiffs, " or
"AFDI"), bring this action against the Washington
Metropolitan Area Transit Authority, et. al.,
(collectively, "Defendants, " or
"WMATA"), alleging violations of their First
Amendment rights. This dispute arose when Plaintiffs
submitted an ad to WMATA to display on its property. After
Plaintiffs submitted the ad, WMATA changed its policy to
close its advertising space to all "issue-oriented"
advertising. WMATA then rejected Plaintiffs' ad under the
new policy. Plaintiffs claim that WMATA's denial is a
prior restraint on Plaintiffs' speech in violation of
their First; Amendment rights.
matter is before the Court on the Parties' Cross-Motions
for Summary Judgment [Dkt. Nos. 19, 20]. Upon consideration
of the Motions, Oppositions [Dkt. Nos. 20, 25], and Replies
[Dkt. Nos. 25, 29], and the entire record herein, and for the
reasons stated below, Defendants' Motion for Summary
Judgment is granted, and Plaintiffs' Motion for Summary
Judgment is denied.
AFDI is a nonprofit organization incorporated under the laws
of New Hampshire. Compl. ¶ 7 [Dkt. No. 1]. Plaintiff
Pamela Geller is the President of AFDI. Id. ¶
10. Plaintiff Robert Spencer is the Vice President of AFDI.
Id. ¶ 11. AFDI is dedicated to promoting and
protecting the right to freedom of speech under the First
Amendment. Plaintiffs' Statement of Material Facts
¶¶ 3-4 ("Pis.' SMF") [Dkt. No. 20-1].
Plaintiffs frequently purchase advertising space on transit
authority property in major cities throughout the United
States to run ads promoting its message on current events and
political issues. Pis.' SMF ¶¶ 5-6. Plaintiffs
have also frequently litigated transit authorities'
rejection of those ads.
is a government agency that was established through a
congressionally approved interstate compact to provide public
transportation in the Washington, D.C. metropolitan area.
See D.C. Code § 9-1107.01(80). WMATA operates
the Metrorail and Metrobus systems in the Washington, D.C.
metropolitan area. Defendants' Motion for Summary
Judgment at 3 ("Mot.") [Dkt. No. 19-1].
leases advertising space on its buses and on freestanding
dioramas in its subway stations. Pis.' SMF ¶ 9.
Before May 28, 2015, "WMATA had a policy of accepting a
broad range of issue-oriented ads." Mot. at 5. WMATA
leased advertising space for issue-oriented and political
advertisements under its earlier policy. Id.
¶¶ 29-30; Defendant's Reply to Plaintiff's
Statement of Material Facts ¶¶ 29-30 (Defs.'
Rep. to Pis.' SMF") [Dkt. No. 25-1].
about May 20, 2015, Plaintiffs submitted two proposed ads to
WMATA's advertising agent for display on WMATA's
buses and free-standing dioramas. Pis.' SMF ¶ 23.
The proposed ads appear as follows:
Id. ¶ 24.
Id. ¶ 25.
22, 2015, WMATA's advertising agent responded to
Plaintiffs' submission stating, "The copy has been
submitted to the transit authority. We are also looking into
available inventory. I will let you know about both as soon
as I hear back." Id. ¶ 26-27.
28, 2015, WMATA's Board of Directors unanimously adopted
a motion ("May 28 Moratorium" or
"Restriction") closing "WMATA's
advertising space to any and all issue-oriented advertising,
included but not limited to, political, religious, and
advocacy advertising until the end of the calendar
year." Id. ¶¶ 44, 50. The motion also
stated that the Board would "review what role such
issue-oriented advertising has in WMATA's mission .and
will seek public comment and participation for its
consideration before making a final policy
determination." Bowersox Decl., Ex. A [Dkt. No. 19-3].
rejected Plaintiffs' ads after the May 28 Moratorium was
enacted. Pis.' SMF ¶¶ 59-60; Defs.' Rep. to
Pis.' SMF ¶¶ 59-60.
November 19, 2015, the WMATA Board of Directors adopted
Resolution No. 2015-55 closing "WMATA's Commercial
Advertising Space to issue-oriented ads, including political,
religious, and advocacy ads. . ." Id., Ex. B.
The Resolution included further ...