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Archdiocese of Washington v. Washington Metropolitan Area Transit Authority

United States District Court, District of Columbia

December 8, 2017




         This case, brought by the Archdiocese of Washington, Donald Cardinal Wuerl, Roman Catholic Archbishop of Washington, involves the plaintiff's desire to publish an advertisement that conveys a religious message on government property: the exterior of a public bus.

         (Image Omitted)

         Plaintiff seeks to place the advertisement on buses operated by the Washington Metropolitan Transit Authority (“WMATA”) as part of the Archdiocese's “Find the Perfect Gift” Christmas campaign. As the Secretary for Pastoral Ministry and Social Concerns for the Archdiocese, Dr. Susan Timoney, explains in her declaration to the Court:

The Find the Perfect Gift campaign is an important part of the Archdiocese's evangelization efforts. . . . The campaign seeks to invite the public to consider the spiritual meaning of Christmas, to consider celebrating Advent/Christmas by going to Mass. at one of our parishes and/or joining in one of our many outreach programs that care for the most vulnerable and poor during Advent and beyond.[1]

         WMATA has rejected these ads on the basis that they are inconsistent with the agency's existing advertising Guidelines, in particular, the Guideline that prohibits “[a]dvertisements that promote or oppose any religion, religious practice or belief.”[2]

         The Archdiocese has filed a five count complaint that asks the Court to declare the Guideline to be unconstitutional, and because the advertising campaign is specifically tied to the liturgical season of Advent, which has already begun, it has moved for a temporary restraining order and preliminary injunction that would direct WMATA to immediately accept the advertisements. Emergency injunctive relief is an extraordinary remedy that may only be awarded based on a substantial showing that the plaintiff is likely to succeed on the merits of the claims in its lawsuit, so the Court must determine at this early stage whether plaintiff is likely to be able to prove that its constitutional or statutory rights are being violated.

         Plaintiff cannot carry that burden. The Court recognizes that plaintiff's pursuit of the advertising campaign is a manifestation of its faith, but the case does not turn upon whether the message has value, or whether the Court anticipates that it will be well-received or it will offend. The dispute must be decided in accordance with Supreme Court precedent and the binding decisions of the D.C. Circuit, and the applicable constitutional principles are quite clear.

         First, it is well-established that private religious speech is as fully protected under the Free Speech Clause as secular private expression. And when government property is fully open to the public as a place to express its views, the government may not discriminate among prospective speakers based upon the subject matter they wish to address or the viewpoint they intend to convey. But, when government property has not been designated or made available for broad public use for communicative purposes, different rules apply. Control over access to a nonpublic or limited forum may be based on the subject to be discussed as long as: the lines drawn are reasonable given the purpose of the forum involved, they do not favor one viewpoint over another, and they are consistently applied.

         It is also settled as a matter of law that the exterior of a bus is not a public forum open to anyone who wishes to address any topic. The Archdiocese conceded this at the hearing on the motion. WMATA determined two years ago, after polling the community, that it will not accept advertisements related to such potentially divisive topics as politics or religion. A government agency may restrict the use of its property based on the content of the message to be broadcast as long as the restriction is neutral and reasonable. This is not a high threshold to overcome. Since the restriction does not silence or restrict any particular viewpoint, and it grew out of well-founded concerns for the safety of the public and WMATA employees, as well as a desire to reduce vandalism and the administrative burdens involved with spending significant time reviewing proposed ads, the Guideline meets the test that it be neutral and reasonable.

         Plaintiff suggests that its understated campaign, “a simple message of hope, welcoming all to Christmas Mass. or in joining in public service, ”[3] is hardly objectionable, but divisive is in the eye of the beholder, and if WMATA were to make distinctions based on its own judgment about which religious statements were likely to offend, it would be making the very sort of determination that plaintiff insists that the Constitution forbids. Thus, WMATA's decision comports with the law that this Court is bound to follow in interpreting the Free Speech Clause of the First Amendment.

         Faced with this legal landscape, plaintiff attempts to reframe the issue by arguing that WMATA is not enforcing a neutral content-based prohibition at all, but that it is denying the Archdiocese the opportunity to express its particular religious viewpoint about a general topic that others are freely permitted to discuss on bus property: Christmas. Plaintiff does not point to any specific commercial advertisements that are currently appearing, but it posits that since WMATA would accept commercial advertising during the Christmas season, the agency has welcomed the expression of the secular “viewpoint” that the holiday should be commercialized, and therefore, it cannot exclude the opposing viewpoint that members of the public should connect with the spiritual origins of Christmas instead. While it is true that a governmental organization may not open its doors to the discussion of a certain subject and then exclude the expression of the religious perspective on that subject, that is not what is happening here, and WMATA's approach is, in fact, viewpoint-neutral.

         Plaintiff's description of both sides of this hypothetical conversation is not persuasive. Commercial advertisements do not by definition express a viewpoint or perspective about the true meaning of Christmas or how it should be observed; they suggest to potential shoppers - who fall at every point along the religious spectrum, and who may choose to purchase gifts in December for a multitude of faith-based or secular reasons - where to shop or what to buy.[4] And, the Archdiocese's proposed advertising campaign is not commentary about some other permissible topic - a topic other than religion - from a religious perspective; it is plainly a statement about religion from a religious perspective. Therefore, WMATA's decision did not violate the Archdiocese's First Amendment right to freedom of speech.

         With respect to the Archdiocese's claim that its religious rights are being violated, it is axiomatic that the government cannot favor one religion over another without running afoul of the Establishment Clause. The government cannot specifically target or selectively burden a practice because of its religious motivation without violating the Free Exercise Clause, and the Religious Freedom Restoration Act ensures that the federal government cannot compel religious adherents to take actions that would violate their sincerely held religious beliefs, even if the regulation being resisted is neutral in its intent and broadly applied.

         WMATA's policy does none of those things. Neither the Guideline nor its application in this case interferes with plaintiff's right to practice its religion in any way, and it does not compel the Archdiocese to take any action that burdens its sincere religious convictions. The Guideline does not establish any preference for or against one religion over another, and it is neutral and generally applicable, and therefore, WMATA's decision in this case does not violate either the Constitution or RFRA.

         Plaintiff acknowledges that its advertisement promotes religion and sends a religious message, and therefore, it falls squarely within the prohibition in the Guideline.[5] But plaintiff maintains that the Guideline has been discriminatorily and arbitrarily enforced, favoring other religious advertisements over those sponsored by the Catholic Archdiocese, and that therefore, it is invalid on its face and as applied. But the record does not support this contention. None of the advertisements plaintiff highlights to make that point - neither the ads heralding the opening of another CorePower Yoga fitness studio in Clarendon, Virginia (“Muscle Mantra”), nor the ads soliciting contributions to the Salvation Army's Red Kettle effort (“Give Hope. Change Lives”) “promote or oppose any religion.” While the Salvation Army is a Christian organization, and its charitable efforts, like those of the Archdiocese and other religious organizations, may be motivated in some measure by religious beliefs, the ads it chose to display on the buses do not promote or advance religion. Therefore, WMATA's policy is not likely to be found to violate the First Amendment or the Equal Protection Clause on the grounds that it has been inconsistently applied. And plaintiff does not argue at this stage of the litigation that the prohibition could violate the Due Process Clause in some other way if it satisfies the First Amendment.

         For all of these reasons, to be explained in more detail below, the Court finds that plaintiff is not likely to succeed on the merits of its claims, and it has not shown that it will be irreparably harmed by the violation of its rights, so the motion for injunctive relief will be denied.


         Defendant WMATA operates the Metrorail and Metrobus systems in the Washington, D.C. metropolitan area pursuant to an interstate compact between Maryland, Virginia, and the District of Columbia. Compl. [Dkt. # 1] ¶ 7. To fund its operations, WMATA sells advertising space on its buses and trains. Decl. of Lynn M. Bowersox, Assistant General Manager for Customer Service, Communications, and Marketing at WMATA, in Supp. of Defs.' Opp. to Mot. for TRO & Prelim. Inj. [Dkt. # 10-1] (“Bowersox Decl.”) ¶ 3. Prior to May 2015, WMATA accepted paid advertisements that were religious and political in nature in addition to purely commercial ones. Compl. ¶ 20; Defs.' Opp. to Mot. for TRO & Prelim. Inj. [Dkt. # 10] (“Defs.' Opp.”) at 5. On May 28, 2015, WMATA's Board of Directors adopted a motion by its Chair to temporarily suspend all issue-oriented advertising, including all “political, religious and advocacy advertising” until the end of that year while it conducted further review and solicited public comment. See Resolution, Ex. A to Defs.' Opp. [Dkt. # 10-3]. The complaint alleges that at the conclusion of that process, “WMATA staff recommended extending the ban because of concerns that issue-oriented advertising could provoke community discord, create concern about discriminatory statements, and generate potential threats to safety and security from those who [sought] to oppose the advertising messages.” Compl. ¶ 22; see also Bowersox Decl. ¶ 9 (“[WMATA's] review ultimately concluded that the economic benefits of such issue-oriented ads, including ads promoting religion, were outweighed by four considerations: community and employee opposition, security risks, vandalism, and administrative burdens.”). On November 19, 2015, WMATA's Board of Directors voted to make its prohibition on issue-oriented advertising permanent. Ex. B to Defs.' Opp. [Dkt. # 10-3]; Compl. ¶ 22.

         The Guidelines that have been in force since that time prohibit advertisements on a number of topics. Of particular relevance here, Guidelines 9 through 14 provide:

9. Advertisements intended to influence members of the public regarding an issue on which there are varying opinions are prohibited.
10. Advertisements of tobacco products are prohibited . . . .
11. Advertisements that support or oppose any political party or candidate are prohibited.
12. Advertisements that promote or oppose any religion, religious practice or belief are prohibited.
13. Advertisements that support or oppose an industry position or industry goal without any direct commercial benefit to the advertiser are prohibited.
14. Advertisements that are intended to influence public policy are prohibited.

See WMATA Guidelines.

         On October 23, 2017, the Archdiocese contacted WMATA's third-party vendor about buying advertising space on the taillights of public buses as part of its “Find the Perfect Gift” campaign. Compl. ¶ 16. According to the Archdiocese, “[t]he Find the Perfect Gift Campaign is an important part of the Archdiocese's evangelization efforts.” Timoney Decl. ¶ 4. “The advertisements . . . encourage individuals to return to church during Advent and to give charitably in their communities.” Pl.'s Mot. for TRO & Prelim. Inj. [Dkt. # 2] (“Pl.'s Mot.”) at 6. That message is delivered through a number of platforms, “includ[ing] advertisements and materials for distribution in parishes within the Archdiocese, advertisements for display in public places throughout the metropolitan area, ” including transit shelters not owned by WMATA, and an “integrated online campaign.” Decl. of Edward McFadden, Ex. 1 to Compl. [Dkt. # 1-1] (“McFadden Decl.”) ¶¶ 3, 6. On October 23, 2017, plaintiff submitted the following ad to WMATA's third-party vendor, which directs the public to the Find the Perfect Gift Campaign website and hashtag:

(Image Omitted)

McFadden Decl. ¶ 7; Ex. D to McFadden Decl.

         When one follows the link, the landing page of the website features a banner across the top of the page: “JESUS is the perfect gift. Find the perfect gift of God's love this Christmas.” The homepage then offers a choice of links to “FIND” (“The Perfect Gift”); “DISCOVER” (“Advent and Christmas Traditions”), and “GIVE” (“The Perfect Gift.”). See Find the Perfect Gift, https:// (last visited Dec. 8, 2017). The “FIND” page states:

God has prepared an amazing gift for you. A place of peace, joy, and community with God and others. In the frenzy of buying gifts for others, take time to receive God's love for you at Christmas Mass. Find Christmas Mass. times throughout the Archdiocese of Washington using the map below!

Id. The “DISCOVER” page describes ways to observe Christmas and Advent, and the “GIVE” page details many opportunities available through Catholic Charities in the Archdiocese of Washington to “[s]hare the joy of Christmas . . . by helping others.” Id.

         According to the plaintiff on October 24, 2017, WMATA's third-party vendor informed plaintiff that its proposed ad would not meet WMATA's Guidelines and could not run as submitted. McFadden Decl. ¶ 13; Ex. G to McFadden Decl. The Archdiocese responded that it did not “see a way to adjust the ad given its purpose and message” and asked whether there was a way to appeal the decision. Ex. G to McFadden Decl. The third-party vendor sent plaintiff's proposed ad to WMATA for further review, and upon review of the ad, WMATA concluded that the ad violated Guideline 12 and denied plaintiff's request on November 8, 2017. McFadden Decl. ¶ 15; Ex. G to McFadden Decl.[6] In response, plaintiff's counsel sent a letter to the general counsel of WMATA raising First Amendment concerns and urging the agency to reverse its decision quickly because the season of Advent was imminent. Compl. ¶ 18; Ex. H to McFadden Decl. On November 20, 2017, WMATA, through its counsel, again denied the request. Ex. I to McFadden Decl.

         A week later, on November 28, 2017, plaintiff filed a complaint with this Court. The complaint raises five constitutional and statutory claims:[7] Count I alleges that Guideline 12, on its face and as applied, violates plaintiff's right to freedom of expression under the Free Speech Clause of the First Amendment. Count II alleges that Guideline 12, on its face and as applied, violates the Free Exercise Clause of the First Amendment. Count III alleges that Guideline 12 substantially burdens plaintiff's right to exercise its religion in violation of the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb. Count IV alleges a violation of plaintiff's rights under the Equal Protection Clause of the Fifth Amendment, and Count V alleges a deprivation of life, liberty or property without due process in violation of the Due Process Clause. See Compl. ¶¶ 28-64. Based on these claims, plaintiff seeks the following relief:

1. A declaration that Guideline 12 “violates the rights of the Archdiocese under the Free Speech Clause of the First Amendment;”
2. A declaration that Guideline 12 “violates the rights of the Archdiocese under the Free Exercise Clause of the First Amendment;”
3. A declaration that Guideline 12 violates the Religious Freedom Restoration Act;
4. A declaration that Guideline 12 “violates the rights of the Archdiocese under the Equal Protection principles of the Fifth Amendment;”
5. A declaration that Guideline 12 “violates the rights of the Archdiocese under the Due Process Clause of the Fifth Amendment;”
6. An “injunction preventing Defendants from enforcing” Guideline 12 “to reject the Archdiocese's request to purchase advertising space for the ‘Find the Perfect Gift' campaign;”
7. An “award of attorney's fees and costs to the Archdiocese;” and
8. “[O]ther relief as the Court may deem just and proper”

Compl. at 16-17.

         At the time plaintiff filed its complaint, it also filed a motion for a temporary restraining order and preliminary injunction asking that the Court order WMATA to run its proposed ad “as soon as possible” since the beginning of Advent, December 3, 2017, was only a few days away. Defendants filed their opposition to plaintiff's motion on December 4, 2017 and plaintiff replied on December 5, 2017. Reply to Defs.' Opp. [Dkt. # 12] (“Pl.'s Reply”). On December 5, 2017, the Court held a hearing on the motion.[8]


         A preliminary injunction is an “extraordinary and drastic remedy” that is “never awarded as [a matter] of right.” Munaf v. Geren, 553 U.S. 674, 689-90 (2008) (citations omitted). A party seeking a preliminary injunction must establish the following: 1) it is likely to succeed on the merits; 2) it is likely to suffer irreparable harm in the absence of preliminary relief; 3) the balance of equities tips in its favor; and 4) an injunction serves the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

         The manner in which courts should weigh the four factors “remains an open question” in this Circuit. Aamer v. Obama, 742 F.3d 1023, 1043 (D.C. Cir. 2014). The Court of Appeals has long adhered to the “sliding scale” approach, where “a strong showing on one factor could make up for a weaker showing on another.” Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011). But because the Supreme Court's decision in Winter “seemed to treat the four factors as independent requirements, ” the Court of Appeals has more recently “read Winter at least to suggest if not to hold ‘that a likelihood of success is an independent, free-standing requirement for a preliminary injunction.'” Id. at 392-93, quoting Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1296 (D.C. Cir. 2009) (Kavanaugh, J., concurring). Although the D.C. Circuit has not yet announced whether the “‘sliding scale' approach remains valid after Winter, ” League of Women Voters v. Newby, 838 F.3d 1, 7 (D.C. Cir. 2016), the Court of Appeals has ruled that a failure to show a likelihood of success on the merits is sufficient to defeat a motion for a preliminary injunction. See Ark. Dairy Co-op Ass'n, Inc. v. U.S. Dep't of Agric., 573 F.3d 815, 832 (D.C. Cir. 2009); Apotex, Inc. v. FDA, 449 F.3d 1249, 1253-54 (D.C. Cir. 2006). As another court in this district has observed, “‘[i]t is particularly important for the movant to demonstrate a substantial likelihood of success on the merits, ' because ‘absent a substantial indication of likely success on the merits, there would be no justification for the Court's intrusion into the ordinary processes of administration and judicial review.'” Navistar, Inc. v. EPA, No. 11-cv-449, 2011 WL 3743732, at *3 (D.D.C. Aug. 25, 2011), quoting Hubbard v. United States, 496 F.Supp.2d 194, 198 (D.D.C. 2007) (internal edits omitted).

         Regardless of whether the sliding scale framework applies, it remains the law in this Circuit that a movant must demonstrate irreparable harm, which has “always” been “the basis of injunctive relief in the federal courts.” Sampson v. Murray, 415 U.S. 61, 88 (1974), quoting Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506 (1959) (internal edits omitted). A failure to show irreparable harm is grounds for the Court to refuse to issue a preliminary injunction, “even if the other three factors entering the calculus merit such relief.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006).


         I. Count One: The Freedom of Speech Clause of the First Amendment

         A. Advertising space on a WMATA Metrobus is a ...

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