Filing 31

MEMORANDUM OPINION to the Order on the Motion and Cross-Motion for Summary Judgment. Signed by Judge Gladys Kessler on 3/28/17. (CL)

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Case 1:15-cv-01038-GK Document 31 Filed 03/28/17 Page 1 of 17 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AMERICAN FREEDOM DEFENSE INITIATIVE, et. al., Plaintiffs, Civil Action No. 15-1038 (GK) v. WMATA, et. al. , Defendants. MEMORANDUM OPINION Plaintiffs, Geller and "AFDI") , American Robert bring this Freedom Spencer, Initiative, (collectively, Pamela "Plaintiffs," or action against the Washington Metropolitan Area Transit Authority, et. al., "WMATA"), Defense alleging violations (collectively, "Defendants," or 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 "issueoriented" advertising. the new policy. restraint on WMATA then rejected Plaintiffs' ad under Plaintiffs claim that WMATA's denial is a prior Plaintiffs' speech Amendment rights. 1 in violation of their First Case 1:15-cv-01038-GK Document 31 Filed 03/28/17 Page 2 of 17 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. CJ[ 7 [ Dkt. Pamela Geller is the President of AFDI. Id. Spencer is the Vice President of AFDI. Id. 1] . Plaintiff 10. Plaintiff Robert CJ[ CJ[ No. 11. AFDI is dedicated to promoting and protecting the right to freedom of speech under the First Amendment. Plaintiffs' Statement of Material Facts 4 ( "Pls.' SMF") [ Dkt. No. 20-1] . CJICJI 3- 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. Pls.' SMF C)[CJI 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 2 compact to provide public Case 1:15-cv-01038-GK Document 31 Filed 03/28/17 Page 3 of 17 transportation in the Washington, D.C. metropolitan area. See D.C. Code § systems 9-1107.01(80). WMATA operates the Metrorail and Metrobus in the Washington, D. C. metropolitan area. Motion for Summary Judgment at 3 ("Mot.") WMATA leases advertising May 28, 2015, [Dkt. No. 19-1]. space on its standing dioramas in its subway stations. Defendants' buses Pls.' and on SMF err 9. freeBefore "WMATA had a policy of accepting a broad range of issue-oriented ads." Mot. at 5. WMATA leased advertising space for issue-oriented and policy. 29-30; Defendant's Reply to Plaintiff's Statement Id. errerr of Material Facts <[[<[[ political 29-30 advertisements under its (Defs.' Rep. to Pls.' SMF") earlier [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. Pls.' SMF <[[ 23. The proposed ads appear as follows: CH Id. err 24. 3 Case 1:15-cv-01038-GK Document 31 Filed 03/28/17 Page 4 of 17 .................... ,.,_ ....... . . . ............ .,_,,. _...,.._.... "Tillll!tl.•..-rllMlilllltf1•-......- .. ~..,.........,....~.,..~ Id. On 25. <JI May 22, Plaintiffs' the tlillt~-- 2015, WMATA' s advertising submission stating, transit authority. We agent responded to "The copy has been submitted to are also looking into available inventory. I will let you know about both as soon as I hear back." Id. 26-27. <JI On May 28, adopted a motion "WMATA's 2015, Board of Directors unanimously ("May 28 Moratorium" or "Restriction") advertising advertising, WMATA' s space to any and included but not limited to, all closing issue-oriented political, religious, and advocacy advertising until the end of the calendar year." Id. <JI<JI 44, 50. The motion also stated that the Board would "review what role such issue-oriented advertising has in WMATA's mission 4 Case 1:15-cv-01038-GK Document 31 Filed 03/28/17 Page 5 of 17 . and will consideration seek public before comment making a and final participation policy for its determination." Bowersox Deel., Ex. A [Dkt. No. 19-3]. WMATA rejected Plaintiffs' was enacted. Pls.' SMF ~~ ads after the May 28 Moratorium 59-60; Defs.' Rep. to Pls.' SMF ~~ 59- 60. On November 19, Resolution No. 2015, 2015-55 the WMATA Board of Directors adopted closing "WMATA' s Commercial· Advertising Space to issue-oriented ads, including political, advocacy ads. B. "Guidelines ." Id., Governing Ex. religious, and The Resolution included further Commercial Advertising," which specified that, 9. Advertisements intended to influence members of the public regarding an issue on which there are varying opinions are prohibited. .11. Advertisements that support or oppose any political party or candidate are prohibited. 12. Advertisements that support or oppose any religion, religious practice or belief are prohibited . . . [and] 13. Advertisements that support or oppose an industry position or industry goal without any direct commercial benefit to the advertisers are prohibited. Id. B. Procedural Background On July 1, 2015, Plaintiffs filed their Complaint. On August 5, 2016, Defendants filed their Motion for Summary Judgment. 5 On Case 1:15-cv-01038-GK Document 31 Filed 03/28/17 Page 6 of 17 September 5, 2016, Plaintiffs filed their Cross-Motion for Summary Judgment ("Cross-Mot.") [Dkt. No. 20]. On October 3, 2016, Defendants filed their Opposition to Plaintiffs' Cross-Motion for Summary Judgment and Reply (Defs.' Rep.") [Dkt. No. 25]. On October 31, ("Pls.' 2016, Plaintiffs filed their Reply Rep.") [Dkt. No. 2 9] • II. STANDARD OF REVIEW Summary judgment should be granted only if the moving party has shown that there is no genuine dispute of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. 317, Civ. 322 P. (1986); 56, see also Celotex Corp. v. Catrett, Johnson v. Perez, 823 F.3d 701, 705 477 U.S. (D.C. Cir. 2016). A dispute of material fact is "'genuine' . . . if the evidence is such that a reasonable jury could return a verdict nonmoving party." Anderson v. Liberty Lobby, 248 Inc., for the 477 U.S. 242, (1986). In a summary judgment motion, the moving party has the responsibility for "informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 6 477 Case 1:15-cv-01038-GK Document 31 Filed 03/28/17 Page 7 of 17 U.S. at 323 (internal quotation omitted). The court should view the evidence in favor of the nonmoving party and draw all reasonable inferences in favor of that party making Johnson, credibility determinations 823 F.3d at 705. "However, or weighing the evidence, the nonmoving party may not rely solely on allegations or conclusory statements. Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor." Krishnan v. Supp. 3d 496, 503 (D.D.C. 2016) Foxx, 177 F. (citing Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999)). III. ANALYSIS A. Forum Analysis The Parties do not dispute that Plaintiffs' ads are protected speech. Courts analyze restrictions on protected speech on government property for compliance with the First Amendment under the public forum doctrine. Postal Serv., 685 Initiative & Referendum Inst. v. U.S. F.3d 1066, 1070 (D.C. Cir. 2012). Under the public forum doctrine, government property is divided into three categories: forums, 1) and 3) traditional public forums, nonpublic forums. Government can control access Id. 2) designated public "[T]he extent to which the [to its property] depends on the nature of the relevant forum. Cornelius v. NAACP Legal Def. & Educ. 7 Case 1:15-cv-01038-GK Document 31 Filed 03/28/17 Page 8 of 17 Fund, Inc., 473 U.S. 788, 800 (1985). Traditional public forums, such as streets and parks, "have immemorially been held in trust for the use of the public, time out of mind, communicating have thoughts questions." Id. been between used for purposes citizens, of and, assembly, and discussing public (quoting Hague v. CIO, 307 U.S. 496, 515 (1939)) (internal quotation marks omitted) A designated public forum is government property "which the state has opened for use by the public as a place for expressive activity." Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983) "The Constitution forbids a state to enforce certain exclusions from a [designated public forum] even if it was not required to create the forum in the first place." Id. "[W]hen the Government has intentionally designated a place or means of communication as a public forum speakers cannot be excluded without a compelling governmental interest." Cornelius, 473 U.S. at 800. A nonpublic forum "is not by tradition or designation a forum for public communication," Perry, 4 60 U.S. at 4 6, and the First Amendment does not guarantee unlimited expression in this forum. Rather, the government "may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort 8 to suppress expression Case 1:15-cv-01038-GK Document 31 Filed 03/28/17 Page 9 of 17 merely because public officials oppose the speaker's view." Id. Access to a nonpublic forum can be restricted as long as the restrictions are viewpoint neutral and reasonable. Cornelius, 473 U.S. at 800. Plaintiffs contend that designated public forum at Cross-Mot. Defs.' WMATA's the time advertising space was they submitted their ads. at 13-20. WMATA does not dispute this assertion. Rep. at 3-4. Plaintiffs therefore analyze WMATA' s argue that this rejection of AFDI' s Court a See should ads by using the higher standard that applies to designated public forums. WMATA contends that its advertising space was a nonpublic forum when it rejected AFDI's ad, and therefore the rejection should be analyzed under the standard that applies to nonpublic forums. agrees with WMATA. WMATA's new viewpoint neutral and reasonable. guidelines must This Court therefore Pleasant Grove City v. be Summum, 555 U.S. 460, 470 (2009). 1. WMATA's Restriction is Viewpoint Neutral The parties do not dispute that the government has a right to convert a designated public forum into a nonpublic forum. See Mot. at 7-8; Cross-Mot. at 17-18; Pls.' Rep. at 10; Cornelius, 473 U.S. at 802 ("the government is not required to indefinitely retain the open character of [a] facility"). However, 9 Plaintiffs argue that Case 1:15-cv-01038-GK Document 31 Filed 03/28/17 Page 10 of 17 WMATA's decision to close its property to issue-oriented advertising was improper because the change specifically targeted Plaintiffs' ads. 1 See Pls.' Rep. at 10. Needless to say, it would be unconstitutional for WMATA to close its property to issue-oriented advertising "merely as a ruse for impermissible viewpoint discrimination." See Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 394 (1993) ("[T]the First Amendment forbids the government to regulate speech 1 To the extent that Plaintiff brings their claims under WMATA's pre-May 28, 2015 policy which permitted the publication of issueoriented ads on WMATA's property, WMATA's May 28 Moratorium mooted any such claim. See AFDI v. MTA, 815 F.3d 105 (2d. Cir. 2016). In AFDI, the same Plaintiffs sued the New York Metropolitan Transit Authority for refusing to publish a similarly political ad. Id. After the district court granted Plaintiffs' Motion for a preliminary injunction, the MTA changed its advertising standards to convert MTA' s property from a designated public forum to a nonpublic forum. Id. The district court held that the MTA's new policy mooted Plaintiffs' claims, and the Second Circuit affirmed. Id. The AFDI case is consistent with the law in our Circuit. See Initiative & Referendum Inst., 685 F.3d at 1074 ("[a] challenge to a superseded law is rendered moot unless there is evidence indicating that the challenged law likely will be reenacted"). Even considered in the light most favorable to Plaintiffs, they have not presented any facts suggesting that WMATA is likely to reverse its regulation. On the contrary, WMATA's May 28 Moratorium was made permanent on November 19, 2015 and has remained in effect ever since. Plaintiffs' argument that WMATA's financial difficulties will force it to redesignate its property as a designated public forum are nothing more than speculation. 10 Case 1:15-cv-01038-GK Document 31 Filed 03/28/17 Page 11 of 17 in ways that others") favor some viewpoints or ideas at the expense of (internal omitted) ; quotations Transp. Auth., 390 F.3d 65, 77 (1st Cir. 2004). WMATA argues that its reasons space to issue oriented ads _R_i_d_l_e_y.___v_._M_a_s_s_.__ B_a_y~ were for closing its advertising "that controversial ads were hurting WMATA's reputation with the community; ensuring employee morale, which was adversely affected by constant exposure to messages they might find offensive; minimizing vandalism directed at issue-oriented ads; and reducing the administrative burden on WMATA, its outside advertising management company, and its counsel, who were forced to review controversial ads to determine if they complied with the former advertising policy." Defs.' Rep. at 10 (citing Bowersox Depo at 41:6-48:13). Plaintiffs argue that the timing of WMATA's May 28 Moratorium shows that it was targeted at Plaintiffs' ads. Specifically, Plaintiffs allege that because their ad was pending when WMATA took what they characterize as an "unprecedented and hasty action of passing a 'moratorium' which created a sea change in the way WMATA had been doing business for decades," the new guidelines must have been "timed so as to prevent the display of Plaintiffs' advertisements." Pls.' Rep. at 10 (emphasis in original). However, Defendants cite many cases in which the government 11 Case 1:15-cv-01038-GK Document 31 Filed 03/28/17 Page 12 of 17 changed its guidelines during the pendency of a lawsuit and the court did not infer viewpoint discrimination from such timing. For example, in Ridley, a case which Plaintiffs cite as well, the defendant agreed to run an ad in April 2002, mooting a pending appeal over the refusal to publish the ad, rejected an additional ad in August 2002, Ridley, 390 guidelines, were and changed its guidelines in January 2003. F.3d at 74-75. Despite the timing of the changed the court found "no evidence that the 2003 changes adopted as a mere pretext to reject plaintiff's advertisements." Id. at 77. In Ridley, the court did find that one of the defendants had engaged in viewpoint discrimination based on statements by some of its officials. Id. at 87-88. Here, Plaintiffs rely on a statement by Defendants' that broke the representative that Plaintiffs' ad was the "straw camel's back" and pushed WMATA to change its guidelines. Even in the light most favorable to Plaintiffs, that statement does not support an inference that WMATA's guidelines were revised for the purpose of rejecting Plaintiffs' ads. Rather, the statement suggests that WMATA had previously been considering a policy change for other reasons and only saw Plaintiffs' ad as additional support for their previous thinking. 12 Case 1:15-cv-01038-GK Document 31 Filed 03/28/17 Page 13 of 17 Plaintiffs argue that because WMATA published issue-oriented ads in the past, the changes to its guidelines and subsequent rejection of Plaintiffs' ads can only be due to a preference for other controversial messages over Plaintiffs' message. Cross-Mot. at 25-26. However, having established that WMATA was permitted to change its guidelines, the relevant inquiry is not whether WMATA allowed other controversial messages before the May 28 Moratorium, but whether WMATA has consistently enforced the new guidelines since they were enacted. Plaintiffs have submitted no evidence that the new guidelines have been inconsistently enforced. 2 2. WMATA's Restriction is Reasonable "A regulation is reasonable if it is consistent with the government's legitimate interest in maintaining the property for its dedicated use." Initiative 1073 (citing Perry, & Referendum Inst., 685 F. 3d at 460 U.S. at 50-51). A restriction "need only be· reasonable; it need not be the most reasonable or the reasonable limitation." Cornelius, 473 U.S. at 808 only (emphasis in 2 Plaintiffs' argument that the government may not "discriminate" against non-commercial ads in favor of commercial ads, see Pls.' Rep. at 12, is unsupported by the case it cites, Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 514 (1981), and runs counter to the holdings of many of the other cases cited above upholding guidelines that prohibit political or issueoriented advertising. See e.g. SMART, 698 F.3d 885. 13 Case 1:15-cv-01038-GK Document 31 Filed 03/28/17 Page 14 of 17 original). narrowly There is tailored no or compelling," Cornelius, nonpublic forum is "requirement that the 473 U.S. "rarely that the restriction Government's at 809, interest be be especially because the []the only means of contact with a particular audience." Id. Plaintiffs respond that "it is unreasonable to argue that an ad displayed on the outside of a bus traveling through Washington, D.C.- a bustling city in which passengers and outside observers are besieged by a cacophony of expressive, and quite often political and controversial, media- would somehow interfere with t'he operation of WMATA' s bus system." Cross-Mot. at 28. Yet, Defendants explained how such ads have interfered with WMATA's operations. For example, WMATA stated that controversial ads had led to vandalism directed at issue-oriented ads and an administrative burden on WMATA's advertising agent and counsel who were forced to review them to determine if they complied with the former advertising restrictions on policy. Courts have issue-oriented consistently advertising held that public on transportation for reasons such as these are reasonable. This Court finds WMATA's restrictions to be reasonable as well. See Lehman v. City of Shaker Heights, 418 U.S. 298, 304 decision to limit car card space 14 to (1974) ("the managerial innocuous and less Case 1:15-cv-01038-GK Document 31 Filed 03/28/17 Page 15 of 17 controversial commercial and service oriented advertising does not rise to the dignity of a First Amendment violation"); SMART, 698 F.3d at 892-893. B. WMATA's Restriction Is not Unconstitutionally Vague Plaintiffs argue that the May 28 Moratorium and subsequent guidelines are "hopelessly vague," and therefore violate the First Amendment by giving "officials [] unbridled discretion over [the] forum's use." Cross-Mot. Conrad, 420 U.S. 546, at 16 553 (quoting Se. (1975)). Promotions, Ltd. v. A law or guideline limiting free speech must have "narrow, objective, and definite standards to guide the licensing authority." Shuttlesworth v. City of Birmingham, Ala., 394 U.S. 147, 151 (1969). WMATA's advertising guidelines include sufficiently definite standards regarding what guidelines specify that limited to, political, Bowersox Deel., Ex. constitutes the "issue-oriented ads." Restriction religious and is "including but advocacy The not advertising." B. The guidelines further elaborate each of the modifiers in that part of the Restriction. For example, the guidelines state that "[a]dvertisements that promote or oppose any political party or candidate are prohibited;" "[a]dvertisements that promote or oppose any religion, practice or belief are prohibited; 15 and that and that religious "[a] dvertisements Case 1:15-cv-01038-GK Document 31 Filed 03/28/17 Page 16 of 17 intended to influence members of the public regarding an issue on which there are varying opinions are prohibited," among other specifications. Id. Thus, WMATA's Restriction is clearly not unconstitutionally vague. See SMART, 698 F.3d 885 (held that a restriction on "political or political campaign advertising" was "not so vague or ambiguous that a person could not readily identify the applicable standard" and therefore upheld another transit authority's rejection of another one of plaintiffs' ads). Defendants' Motion for Summary Judgment is therefore granted and Plaintiffs' Cross-Motion for Summary Judgment is denied. 3 3 Plaintiffs seek nominal damages under 42 U.S.C. § 1983. Defendants argue that WMATA is immune from suit under Section 1983, and that Plaintiffs are therefore not entitled to nominal damages. Because this Court finds that Defendants are not liable, Plaintiffs are not entitled to nominal damages and the Court need not reach the issue of whether WMATA posseses sovereign immunity. 16 Case 1:15-cv-01038-GK Document 31 Filed 03/28/17 Page 17 of 17 IV. CONCLUSION For the Judgment foregoing shall be reasons, granted; and Defendants' Plaintiffs' Motion for Summary Cross-Motion for Summary Judgment shall be denied. An Order shall accompany this Memorandum Opinion. March 28, 2017 Gladys Kes United States District Judge Copies to: attorneys on record via ECF 17

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