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American Freedom Defense Initiative v. WMATA

United States District Court, District of Columbia

March 28, 2017

AMERICAN FREEDOM DEFENSE INITIATIVE, et. al., Plaintiffs,
v.
WMATA, et. al., Defendants.

          MEMORANDUM OPINION

          Gladys Kessler United States District Judge

         Plaintiffs, 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.

         This 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.

         I. BACKGROUND

         A. Factual Background

         Plaintiff 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.

         WMATA 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].

         WMATA 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].

         On or 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:

(Image Omitted)

Id. ¶ 24.

(Image Omitted)

Id. ¶ 25.

         On May 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.

         On May 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].

         WMATA rejected Plaintiffs' ads after the May 28 Moratorium was enacted. Pis.' SMF ¶¶ 59-60; Defs.' Rep. to Pis.' SMF ¶¶ 59-60.

         On 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 ...


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