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American Civil Liberties Union Foundation v. Washington Metropolitan Area Transit Authority

United States District Court, District of Columbia

March 31, 2018




         Defendant Washington Metropolitan Area Transit Authority (“WMATA”) prohibits certain kinds of advertisements in the metro system. Plaintiffs American Civil Liberties Union (“ACLU”), Femhealth USA, Inc., d/b/a Carafem (“Carafem”), MILO Worldwide LLC (“Milo Worldwide”), and People for the Ethical Treatment of Animals, Inc. (“PETA”), filed a joint complaint alleging that WMATA's refusal to post their advertisements violated their First and Fifth Amendment rights. Plaintiff Milo Worldwide also filed the instant motion for a preliminary injunction. For the reasons below, the court finds that Milo Worldwide's request for a preliminary injunction is insufficiently supported by a showing of both likelihood of success on the merits and irreparable harm, and therefore the motion is DENIED.

         I. BACKGROUND

         Until May 2015, WMATA permitted a wide variety of commercial and non-commercial advertisements to be displayed throughout the metro system. On May 28, 2015, WMATA changed that approach and “closed its advertising space to ‘all issue-oriented advertising . . . until the end of the calendar year, '” Am. Ans. 4, ECF No. 20, defining “issue-oriented advertising” as “including but not limited to, political, religious and advocacy advertising.” Chair of Board of Directors Mot. 1, May 28, 2015, ECF No. 21-2.

         WMATA claims that it decided to close the advertising space after a policy review process that began in 2010, and that the impetus for closure stemmed from controversies associated with issue-oriented advertisements. Opp. to Mot. for Prelim. Inj. at 3-4, ECF No. 21; Decl. of Lynn M. Bowersox, Assistant General Manager for Customer Service, Communications, and Marketing, at ¶¶5, 7-8, ECF No. 21-1. In particular, WMATA maintains that the costs of such advertisements-in terms of (1) community and employee opposition, (2) security risks resulting from potential incitement to violence, (3) encouragement of vandalism and defacement of trains and buses, and (4) administrative burdens of reviewing potentially controversial advertisements and addressing community reaction-outweighed the economic benefits associated with displaying them. Id. at 4; Bowersox Decl. ¶¶ 9-14. In November 2015, WMATA formally adopted an amended set of fourteen Guidelines Governing Commercial Advertising (“Guidelines”) as part of its ban on issue-oriented advertising. Compl. ¶15; Am. Answer 3-4; Bowersox Decl. ¶16; WMATA Guidelines, ECF No. 21-3. Of particular importance here, Guideline 9 provides that “[a]dvertisements intended to influence members of the public regarding an issue on which there are varying opinions are prohibited, ” while Guideline 14 provides that “[a]dvertisements that are intended to influence public policy are prohibited.” (WMATA Guidelines 9, 14). When it revised its Guidelines, WMATA also created a review panel-consisting of three attorneys and the director of marketing-to evaluate proposed advertisements. Bowersox Decl. ¶¶16, 21. Although WMATA contracts with an outside entity, OUTFRONT Media (“OUTFRONT”), to coordinate the logistical and financial aspects of submission and placement of proposed advertisements, OUTFRONT is required to submit any potentially issue-oriented advertisements to WMATA for panel review. Bowersox Decl. ¶¶ 20, 21. Thus, although OUTFRONT is empowered to accept or reject advertisements that it deems compliant or noncompliant with the Guidelines, id., WMATA has the final say over whether a proposed advertisement is appropriate under the Guidelines. Id. ¶21.

         Plaintiff Milo Worldwide is a corporation through which Milo Yiannopoulos-“a public figure who is known for his iconoclastic opinions about contemporary issues”-conducts business relating to his roles as an author, public speaker, and journalist. Mot. Prelim. Inj. 2, ECF No. 2; Decl. of Alexander Macris, Chief Executive Officer of Milo Worldwide, LLC ¶2, ECF No. 2-2. Milo Worldwide published Yiannopoulos's latest book, Dangerous. Macris Decl. ¶2. As part of a planned 28-day advertising campaign, Milo Worldwide contracted with OUTFRONT and submitted four advertisements in June 2017. Mot. 4. The advertisements consisted of Yiannopoulos's face, the book's title, and one of four quotations from different book reviews, which appeared on metro facilities in the following form:

         (IMAGE OMITTED)

         Mot. 4; Compl. Ex. L, ECF No. 1-4; Macris Decl. ¶3. OUTFRONT initially accepted the advertisements, placing them in the metro system on June 26, 2017. Mot. 4. WMATA then received a number of complaints about the advertisements (ECF No. 24-1), prompting customer relations staff to issue responses, at least one of which read in part:

“The display of this ad is consistent with Metro's policy of remaining content-neutral when accepting advertising. Although Metro understands that feelings and perceptions will vary among individuals within the community, we cannot reject advertising because some find it inappropriate or offensive.” Compl. ¶56; Am. Answer 8. WMATA maintains that an employee sent the above communication in error, using an outdated form response that had been drafted when WMATA maintained its advertising space as a designated public forum. Opp. to Mot. Prelim. Inj. 7; Bowersox Decl. ¶¶28-29.[1] WMATA further asserts that employees sent only one erroneous response, Opp. to Mot. Prelim. Inj. 7-8, that the error was corrected, and that it responded to all other complaints with the following message:

         Dear Customer Name:

Thank you for your recent correspondence regarding “xxxx” advertisement on the Metro System. WMATA reviewed the advertisement and determined that it is prohibited by the Commercial Advertising Guidelines which may be found on our website at:
Thanks again for your inquiry.

Bowersox Decl. ¶29.

         WMATA eventually removed the advertisements between July 6 and July 8, 2017, and sought to refund the sum Milo Worldwide paid to post them. Opp. to Mot. Prelim. Inj. 7.[2] The reasons for removal are in dispute. Milo Worldwide suggests that WMATA removed the advertisements due to intense customer disapproval, expressed formally and informally. Mot. 4- 5, 12-13. WMATA responds that it removed the advertisements pursuant to established regulations and in accordance with administrative review procedures-not because of their unpopularity. See Opp. to Mot. Prelim. Inj. 14-15. According to WMATA, OUTFRONT neglected to submit the proposed advertisements for initial WMATA approval before publication, and when WMATA discovered the advertisements-as a result of customer complaints-it submitted them for panel review. Opp. to Mot. Prelim. Inj. 7; Bowersox Decl. ¶¶23-26. The panel found that the advertisements violated Guidelines 9 and 14, and WMATA ordered them removed. Opp. to Mot. Prelim. Inj. 7.


         A preliminary injunction is an “extraordinary remedy” that requires a “‘clear showing' that four factors, taken together, warrant relief: likely success on the merits, likely irreparable harm in the absence of preliminary relief, a balance of the equities in its favor, and accord with the public interest.” Pursuing America's Greatness v. Fed. Election Comm'n, 831 F.3d 500, 505 (D.C. Cir. 2016); accord League of Women Voters v. Newby, 838 F.3d 1, 6 (D.C. Cir. 2016). While the precise issue of how much weight should be accorded to each of the factors-i.e., whether the “sliding scale approach, ” pursuant to which an unusually strong showing on one factor can justify applying a lower standard to another, remains valid-has not been definitively resolved in this Circuit, see Aamer v. Obama, 742 F.3d 1023, 1043 (D.C. Cir. 2014); Sherley v. Sebelius, 644 F.3d 388, 392-93 (D.C. Cir. 2011), the D.C. Circuit has observed that likelihood of success on the merits “will often be the determinative factor in the preliminary injunction analysis.” Pursuing America's Greatness, 831 F.3d at 511; see also Arkansas Dairy Co-op Ass'n, Inc. v. U.S. Dep't of Agric., 573 F.3d 815, 832 (D.C. Cir. 2009) (treating failure to adequately demonstrate likelihood of success on the merits as dispositive, and declining to address the remaining preliminary injunction factors). Moreover, “the standard for obtaining an injunction is significantly heightened when a plaintiff requests affirmative injunctive relief.” Texas Children's Hosp. v. Burwell, 76 F.Supp.3d 224, 247 (D.D.C. 2014).


         A. Likelihood of ...

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