White Coat Waste Project v. Greater Richmond Transit Company
Filing
39
MEMORANDUM OPINION. Signed by District Judge M. Hannah Lauck on 5/30/20. (khan, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
WHITE COAT WASTE PROJECT,
Plaintiff,
v.
Civil Action No. 3:17cv719
GREATER RICHMOND TRANSIT COMPANY,
Defendant.
MEMORANDUM OPINION
This First Amendment action arises out of Defendant Greater Richmond Transit
Company’s refusal to air what it deemed a political advertisement by Plaintiff White Coat Waste
Project concerning the treatment of test-animals at the Hunter Holmes McGuire VA Medical
Center in Richmond, Virginia. This matter comes before the Court on White Coat Waste
Project’s (“White Coat”) Motion for Summary Judgment, (ECF No. 25), and Greater Richmond
Transit Company’s (“GRTC”) Motion for Summary Judgment, (ECF No. 30). GRTC and White
Coat responded to the cross-motions for summary judgment. (ECF Nos. 34, 35.) Accordingly,
the matter is ripe for disposition.
The Court dispenses with oral argument because the materials before it adequately
present the facts and legal contentions, and argument would not aid the decisional process. The
Court exercises jurisdiction pursuant to 28 U.S.C. § 1331.1 For the reasons that follow, the Court
will grant in part and deny in part White Coat’s Motion for Summary Judgment, and will grant in
part and deny in part GRTC’s Motion for Summary Judgment.
1
“The district courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. The Complaint alleges
First Amendment and Fourteenth Amendment violations. (ECF No. 1.)
I. Factual and Procedural Background
White Coat brings this action against GRTC pursuant to 42 U.S.C. §§ 1983 and 1988,2
asserting that GRTC’s advertising policy (the “Advertising Policy”), which prohibits “political
ads,” offends the First and Fourteenth Amendments both facially and as applied to White Coat.3
(Compl. 12, ECF No. 1.) GRTC initially filed a Motion to Dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6)4 for failure to state a claim. (GRTC Mot. Dismiss, ECF No. 8). The
Court denied GRTC’s Motion to Dismiss, finding that White Coat had stated a viewpoint
discrimination claim and vagueness claim upon which relief could be granted. (Sept. 25, 2018
Mem. Op., ECF No. 15.) The Parties then filed cross-motions for summary judgment, and both
Parties filed responses in opposition. The Court sets forth below the undisputed facts taken from
the record.
2
Section 1983 provides a private right of action for a violation of constitutional rights by
persons acting under the color of state law. 42 U.S.C. § 1983. Section 1988, titled “Proceedings
in vindication of civil rights,” directs district courts to exercise jurisdiction over civil and
criminal matters alleging violations of civil rights “in conformity with the laws of the United
States” and allows for an award of attorney’s fees in such actions. 42 U.S.C. § 1988. White
Coat alleges that GRTC, as a state actor, violated its First and Fourteenth Amendment rights and
seeks injunctive relief, attorneys’ fees, and costs. (See generally Compl., ECF No. 1.)
3
The First Amendment states, in relevant part: “Congress shall make no law . . .
abridging the freedom of speech . . . .” U.S. CONST. amend. I. The Fourteenth Amendment
extended this prohibition to the states. See, e.g., Perry Educ. Ass’n v. Perry Local Educators’
Ass’n, 460 U.S. 37, 44 (1983). The Fourteenth Amendment provides, in relevant part: “No State
shall make or enforce any law which shall abridge the privileges or immunities of citizens of the
United States. . . .” U.S. CONST. amend. XIV.
4
Rule 12(b)(6) allows dismissal for “failure to state a claim upon which relief can be
granted.” Fed. R. Civ. P. 12(b)(6).
2
A.
Factual Background5
White Coat describes itself as a “bipartisan non-profit taxpayer watchdog organization”
that seeks to “unite animal-lovers and liberty-lovers to expose and end wasteful taxpayer-funded
animal experiments.” (Compl. ¶ 3.) In support of this mission, White Coat currently operates a
campaign “to end taxpayer funding for dog experiments at the Richmond Hunter Holmes
McGuire VA Medical Center,” the (“McGuire VA Center”). (Id. ¶ 8.)
In 1973, GRTC “was incorporated as a nonprofit corporation ‘for the purpose of
providing mass transportation [in Richmond and nearby environs] service as a public service
corporation.” (White Coat Mot. Summ. J., Strugar Decl., Ex. A, “GRTC Responses and
Objections to Plaintiff’s First Set of Interrogatories,” ECF No. 26-1.) GRTC’s Advertising
Policy, as developed, prohibits various types of advertisements, including “[a]ll political ads.”
(Strugar Decl., Ex. H, “GRTC Advertising Policy.”)
5
In recounting the factual history, the Court relates the undisputed facts as articulated in
the Complaint and the Parties’ briefing on both motions for summary judgment. In ruling on
each motion, the Court will view the undisputed facts and all reasonable inferences therefrom in
the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). In this section, however, the Court merely sets forth the undisputed facts.
3
1.
History and Ownership Structure of GRTC
In April 1973,6 the City of Richmond incorporated GRTC “as a nonprofit corporation ‘for
the purpose of providing mass transportation service as a public service corporation.’” (GRTC
Responses and Objections to Plaintiff’s First Set of Interrogatories, Resp. No. 1); (Mem. Supp.
GRTC Mot. Summ. J., Ex. G, “Deposition of Sheryl Adams,” 15–16, ECF No. 31–7.)7 GRTC
offers space on the interior and exterior of its buses to advertisers. (Mem. Supp. GRTC Mot.
Summ. J., Ex. H, “Deposition of Carrie Rose Pace,” 27, ECF No. 31–8). As is true for most
public transportation systems, GRTC provides its service to the public below cost. (Adams Dep.
26.)
At the time of GRTC’s founding, VTC’s employees were unionized, but federal law
mandated that federal funds could be made available only to transit operators which preserved
“already-existing collective bargaining rights.” (Hurd, Public Transportation 26); (Strugar
Decl., Ex. C, “GRTC’s Answers to Plaintiffs’ Second Set of Requests for Admissions,” Resp.
6
From 1944 to 1962, the Virginia Transit Company (“VTC”) and its holding company,
United Transit Company, owned and operated a public transportation services in Richmond and
other cities. (Strugar Decl., Ex. B, William B. Hurd, Public Transportation in Richmond 17
(1982).) This company did not weather wartime deprivations and the transition from streetcar to
bus transportation well. (Id. 20–21.) From 1962–1973, the Virginia Transit Company was still
privately held but it became evident, despite federal, state, and local intervention to stave off
losses, that the “Richmond system could no longer be expected to meet its expenses out of the
farebox, and that it would have to close down in the near future, at least as a private venture.”
(Id. 21–23, 23.)
As a result, in June 1972, VTC officials met with Richmond city officials to inform them
that transportation services would have to discontinue, at the latest, in two years. (Id. 23.) That
same day, “at the end of a scheduled City Council work session, the City Manager was instructed
to take steps necessary to preserve the city’s transit services.” (Id.)
7
Either party may submit as evidence “depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials” to support a factual
assertion made in a motion for summary judgment. Fed. R. Civ. P. 56(c)(1)(A). Both parties do
so here.
4
No. 17); (Adams Dep. 37–39.) Virginia law, however, “prohibit[ed] collective bargaining with
the representatives of public employees.” (Hurd, Public Transportation 26.) To resolve this
conflict, the Richmond City Attorney and Assistant City Attorney proposed that the “city form a
non-profit corporation under the general laws of Virginia, the voting stock of which would be
owned by the City of Richmond . . . [so that]8. . . the U.S. Department of Transportation would—
as it did—find that the wholly-owned corporation was an instrumentality of the city and was,
therefore, a ‘public body’ within the meaning of [federal law], eligible to apply for and receive
federal grants.” (Hurd, Public Transportation 26.) This public stock corporation structure
allowed the former VTC “employees to continue to collectively bargain while also retaining
eligibility for federal grant money.”9 (GRTC’s Answers to Plaintiffs’ Second Set of Requests for
Admissions, Resp. No. 17); (see also Adams Dep. 37–39.)
a. The Virginia General Assembly Amended the Richmond City
Charter in 1973 to Allow for the Creation of GRTC
On March 15, 1973, the General Assembly of the Commonwealth of Virginia “amended
the Richmond City Charter to provide that ‘the city shall have the power to acquire, operate,
8
GRTC does not concede that it is a “public body” under relevant federal law “solely
because it is an ‘instrumentality of the City,’” but does concede that it is a “public body” because
it is a “’public corporation . . .established under the law of any State.’” (Strugar Decl., Ex. A,
GRTC Responses to Plaintiff’s First Set of Interrogatories.) In passing resolutions regarding an
application for a federal grant in 1997, GRTC refers to itself as “THE PUBLIC BODY.” (Mem.
Supp. GRTC Mot. Summ. J., Ex. A, “RESOLUTION” 26, ECF No. 31-1.) GRTC’s limitation
on the use of this phrase is of no moment when considering the instant motions.
9
GRTC initially contended that the preservation of collective bargaining rights to retain
eligibility for federal transportation subsidies was “not the only purpose” for which the City of
Richmond established a public stock structure. (Strugar Decl., Ex. C, GRTC’s Answers to
Plaintiff’s Second Set of Req. For Admissions. Resp. No. 17). But GRTC never presented any
explanation or proof on the record about why the City of Richmond chose to operate GRTC as a
stock corporation rather than a public agency. (Id.) GRTC later suggests that the rationale for
creating GRTC in its initial and current structure is “for the most part irrelevant.” (GRTC Resp.
White Coat Mot. Summ. J. 3, ECF No. 34.) This Court agrees with White Coat, however, that
such evidence is partly relevant to evaluating whether GRTC is a public actor.
5
lease, or otherwise provide for the operation of a public transportation system . . . both within
and outside the City of Richmond’” (the “1973 Charter Amendment”). (White Coat Req.
Judicial Notice Ex. A “Acts and Joint Resolutions of the General Assembly of the
Commonwealth of Virginia, Session 1973, Chapter 348, sec. 2,” ECF No. 28.) In April 1973, in
accordance with the 1973 Charter Amendment, the City of Richmond created GRTC through the
State Corporation Commission under Virginia’s Stock Corporation Act.10 (Mem. Supp. GRTC
Mot. Summ. J., Ex. B, “GRTC Articles of Incorporation,” 23–24); (Adams Dep. 37.) Following
incorporation, the Richmond City Manager negotiated the sale of VTC’s physical assets to
GRTC, (Hurd, Public Transportation 24), and the Richmond City Council “appropriated
$2,134,000 in bond funds as a grant to [GRTC] for the purpose of enabling it to meet the local
share of the capital costs of acquiring and improving the transit system,” (id. 25.)
b.
The City of Richmond and Chesterfield County Own GRTC’s
Common Stock and Control Key Aspects of GRTC Operations
The City of Richmond originally owned all of GRTC’s stock. (Hurd, Public
Transportation 24.) Currently, ten shares of GRTC stock exist, with the City of Richmond and
Chesterfield County each owning five shares. (Adams Dep. 14–15.) No entity other than the
City of Richmond and Chesterfield County has at any time owned GRTC’s stock. (Id.)
A six-member Board of Directors (“the Board”) operates GRTC today.11 (Adams Dep.
15.) While Richmond initially appointed all board members, now the Richmond City Council
appoints three members of the Board and the Chesterfield County Board of Supervisors appoints
the other three. (Hurd, Public Transportation 24); (Adams Dep. 17–18.) Members of the GRTC
10
The Virginia Stock Corporation Act is presently codified in Virginia Code Title 13.1,
Chapter 9. See Va. Code § 13.1-601.
11
The inaugural Board consisted of nine members at the time of GRTC’s founding. (See
Hurd, Public Transportation 24–25.)
6
Board serve a one-year term and can be removed by the local government entity that appointed
them. (Adams Dep. 21.) Nothing in the Record provided to the Court suggests that limits exist
on who can be appointed or on how long renewal of terms may continue.
GRTC’s buses utilize “public use” license plates, and GRTC remains “subject to
[Virginia’s Freedom of Information Act] because it is a ‘public body’ under Virginia Code § 2.23701.” (GRTC’s Responses and Objections to Plaintiff’s First Set of Interrogatories, Resp. No.
14); (Adams Dep. 37.) The Richmond City Attorney’s office provides legal services to GRTC.
(Mem. Supp. White Coat Mot. Summ. J. 5, ECF No. 29); see Richmond City Code § 2-112(2)
(“[t]he City Attorney shall provide such legal services as may be necessary and appropriate as
requested by the following entities . . . [including] [t]he Greater Richmond Transit Company,
including representation for its officers and employees with respect to certain claims for
damages”).
As with its private predecessor VTC, the City of Richmond must authorize any fare
increases that GRTC wishes to institute within the city limits, and the City of Richmond’s
mayor’s office must be consulted regarding any proposed changes to any of GRTC’s routes
within the City. (Adams Dep. 17); (see Hurd, Public Transportation 23). The Chesterfield
Board of Supervisors must approve any rate increase for routes in its county. (Adams Dep. 20.)
Likewise, GRTC cannot decrease any rates without approval from the City of Richmond, the
Chesterfield Board of Supervisors, or any other governing body with GRTC routes in its
confines. (Id. 17, 20.)
Given that it operates at a loss, the GRTC Board approves an annual budget—accounting
for projected fare revenue, advertising revenue, as well as federal and state contributions—and
then makes a specific request to the City of Richmond and Chesterfield County (for their
7
respective routes) asking for the necessary funds to cover the shortfall in the budget. (Adams
Dep. 29–30.) Between 2010 and 2017, the City of Richmond provided eleven to fourteen
million dollars to GRTC per fiscal year. (Mem Supp. GRTC Mot. Summ. J., Ex. E, “GRTC
Operating Budget,” ECF No. 31-5); (Adams Dep. 29–30.) The City of Richmond typically
provides between 23%–30% of GRTC’s annual revenue, constituting the largest share of
government funding. (GRTC Operating Budget); (Adams Dep. 28.) Federal transportation
subsidies account for anywhere between 10%–19% of GRTC’s annual revenue, (GRTC
Operating Budget); (Adams Dep. 27), while the Commonwealth of Virginia provides another
17.5%–23% of GRTC’s annual revenue. (GRTC Operating Budget); (Adams Dep. 30–31.)
Advertising accounts for roughly one percent of GRTC annual revenue. (Adams Dep. 24.)
2.
GRTC’s Advertising Policy Prohibits All Political Advertising
On September 13, 1973, GRTC’s Board of Directors instituted a ban on all political
advertisements. (Mem. Supp. GRTC Mot. Summ. J., Ex. A, Sept. 27, “1973 GRTC Board
Minutes,” 4.) The minutes report only that the question of banning political advertisements was
raised and “discussed.” (Id.) The minutes do not report the nature of the discussion, or why the
question was raised. A board member “moved that no political advertising should be allowed,”
another member seconded the motion, and the provision against political advertising was
“adopted by voice vote.” (Id.) Nothing on the record suggests that the 1973 Board or GRTC
passed or adopted any specific or written policy. (Strugar Decl., Ex. J., “Deposition of Carrie
Rose Pace” 38–39, ECF No. 26-2.) Similarly, the May 18, 1987 Board Minutes state only that
“Mr. Bobb moved that we retain our present policy of not allowing political advertising on
buses.” (Mem. Supp. GRTC Mot. Summ. J., Ex. A, “May 18, 1987 Board Minutes,” 14.)
Again, the Board approved that motion “by voice vote.” (Id.) The May 18, 1987 Board Minutes
8
say nothing else about the advertising motion, nor did GRTC offer any elaboration on this
record. (Pace Dep. 39.)
In 2013, the GRTC Board adopted its first written advertising policy. The May 21, 2013
GRTC Board Minutes report that “GRTC has not had a policy for advertising on the buses.
GRTC has had practices but no policy in place.” (Mem. Supp. GRTC Mot. Summ. J., Ex. A,
“May 21, 2013 Board Minutes,” 48.) The GRTC Board then passed a written advertising policy.
(Strugar Decl., Ex. I, “2013 Advertising Policy”); (Mem. Supp. GRTC Mot. Summ. J, Ex. A,
“2013 Advertising Policy,” 50–51.)
On April 16, 2018, the GRTC Board of Directors approved the most recent Advertising
Policy, which changed the 2013 document only slightly to add a prohibition against content that
would violate exclusive sponsorship rights. (Mem. Supp. GRTC Mot. Summ. J., Ex. A, “April
16, 2018 GRTC Board Minutes,” 57); (Strugar Decl., Ex. H, “2018 GRTC Advertising Policy,”
1.) (“2018 Advertising Policy”). The prohibition on political advertisements remained the same
in both documents: GRTC prohibits “All political ads.”12 (Id.) GRTC did not issue any written
policies between the 2013 and 2018 documents. (Pace Dep. 11.)
Thus, the 2013 Advertising Policy was operative during the events in this case. (Id.) The
policies include an identical preamble which provides:
GRTC Transit System believes that advertising on bus vehicles is best performed
when guided by a standard set of established criteria. GRTC intends for this
Advertising Policy to articulate those criteria by a viewpoint neutral advertising
standard to be consistently applied and objectively enforced. Enactment of this
12
To be sure, the changes to the GRTC Advertising Policy in 2018 did not moot the
claims White Coat raises in its 2017 Complaint because GRTC did not alter its ban on political
advertising. Moreover, past violations of constitutional rights are not necessarily mooted when
an ordinance or policy changes during litigation. See, e.g., Covenant Media of S.C., LLC v. City
of N. Charleston, 493 F.3d 421, 429 n.4 (4th Cir. 2007) (holding that a plaintiff’s challenge to a
later-amended ordinance was not moot, because the plaintiff sought nominal and compensatory
damages).
9
Policy represents GRTC’s declared intent not allow any of its transit vehicles or
property to become a public forum for dissemination, debate, or discussion of
public issues.
(2013 Adver. Policy 1.)
GRTC states that any advertising is subject to approval by GRTC or its designated
representatives, and prohibits “[a]ll political ads,” and fourteen other categories of
advertisements, including those which are obscene, promote illegal activity, convey religious or
anti-religious messaging, or convey derogatory or defamatory messages. (2018 Advertising
Policy.) GRTC’s Advertising Policy also prohibits any advertisement that “[c]ontains internet
address(es) and/or telephone number(s) that direct(s) viewers to materials, images or information
that would violate this advertising policy if they were contained in advertising displayed or
posted on GRTC Transit System vehicles.” (2013 Adver. Policy 1.)
The policy also describes the overarching manner in which proposed advertisements
would be reviewed:
The Advertising Contractor shall review each advertisement submitted for display
on GRTC vehicles to determine whether the advertisement falls within, or may
fall within one or more of the [15] categories set forth above. If the advertising
Contractor determines that an advertisement falls within, or may fall within, one
or more of the categories set forth above, then the Advertising Contractor will
submit the advertisement, along with the name of the advertiser, size and number
of the advertisements, and the dates and locations of display to the GRTC
Marketing department for review of the advertisement by GRTC.
Upon determination of whether or not the advertisement falls into one of the
categories listed in this policy, the GRTC Marketing department will advise the
Advertising Contractor of the decision. GRTC reserves the right to reject or
remove any advertising when it deems not to be in compliance with these
guidelines.
(2013 Adver. Policy 1-2.) While describing the skeletal procedure GRTC uses to review a
proposed advertisement, the 2013 Advertising Policy says nothing about how the substantive
decision to allow or disallow a specific advertisement transpires. No written guidance defines
10
how a determination of whether or not an advertisement falls into one of the” categories
prohibited by the policy. During this litigation, however, the Parties explored the decisionmaking process by GRTC in depth.
3.
The GRTC Process for Accepting or Rejecting Advertisements
GRTC works with Media Transit, “a private company which is on contract with GRTC as
approved by our board of directors to manage both inside and outside bus advertising.” (Pace
Dep. 27.) If Media Transit “determines that an advertisement falls within, or may fall within,” a
category prohibited by the Advertising Policy, Media Transit then submits the advertisement to
GRTC “for review of the advertisement by GRTC.” (2013 Adver. Policy 1.) The 2013
Advertising Policy does not describe or define how Media Transit would decide whether an ad
may or may not fall within a category prohibited by the Advertising Policy.
The GRTC Marketing Department reviews any advertisement sent by Media Transit, and,
“[u]pon determination of whether or not the advertisement falls into one of the categories”
prohibited by the Advertising Policy, the GRTC notifies Media Transit of the decision. (2018
Adver. Policy 1-2); (see also Pace Dep. 32.) GRTC Director of Communications Carrie Rose
Pace evaluates proposed advertisements received from Media Transit. (Pace Dep. 16, 33.) Pace
testified about the process she undertakes in making that decision, but the 2013 Advertising
policy is silent as to the process she uses. The record contains no document describing the
process Pace uses, nor does such a document appear to exist.
In carrying out the Advertising Policy, Pace recounted that she consults with, or has
consulted with, a number of other actors at GRTC about potential advertisements, including: (1)
Sally Brazil of MediaTransit; (2) Tim Brazil of MediaTransit; (3) Sheryl Adams; (4) Jonathan
Owens of the GRTC Marketing Department; and, (5) Anthony T. Carter Jr., Director of Risk
11
Assessment at GRTC. (Pace Dep. 40–41.) Pace did not indicate in exactly what circumstances
she would consult with other actors, but testified that she sometimes sought a “second opinion”
(id. 107, 142, 147), to “make sure that [she] was applying the advertisement policy correctly”
(id. 146).
4.
During her Deposition, the GRTC Director of Communications Testified as
to Advertisements that GRTC had Accepted as a Public Service
Announcement or Rejected as Political under its Advertising Policy
As part of this litigation, White Coat deposed Pace, the GRTC Director of
Communications, pursuant to Federal Rule of Civil Procedure 30(b)(6)13 regarding the
Advertisement Policy and advertisements that have appeared on GRTC buses during her tenure.
(See Pace Dep.) When asked how she categorizes an advertisement as political, Pace explained
that the word “could indicate a political party, content that is deemed political, expressing a
viewpoint and only that viewpoint.” (Pace Dep. 34.) Pace elaborated that “anything that’s not
viewpoint neutral could be” deemed political under the Advertising Policy. (Id.) Pace defined a
“political action group” as any group that “engage[s] in a specific targeted policy advocacy that
would be related to their one side of the political issue,” (id. 37), or any group “tr[ies]to get
political action based on [an advertisement],” (id. 144).14 Pace explained that what GRTC
deemed a permissible “public service announcement” advertisement was one “meant to provide
13
Federal Rule of Civil Procedure 30(b)(6) allows a party to “name as the deponent a
public or private corporation, a partnership, an association, a governmental agency . . . , [which]
must designate one or more officers, directors, or managing agents, or designate other persons
who consent to testify on its behalf.” Fed. R. Civ. P. 30(b)(6).
14
As the Court will discuss later, GRTC’s definition of the term “political” has changed
several times over the course of the litigation. For example, in its pleadings on the Motion to
Dismiss, GRTC relied on the first definition of “political” in Webster’s New Collegiate
Dictionary but has apparently ceased relying on that definition on summary judgment. (GRTC
Mem. Supp. Mot. Dismiss 13, ECF No. 9.) The record does not show that a party submitting an
advertisement to GRTC has notice of these definitions.
12
public information that is intended for public good and use, without making you -- I think I will
just leave it at that, for public good and use.” (Id. 208:13–17.) The Advertising Policy does not
mention “public service announcement,” nor does any document describe a public service
announcement or how GRTC categorizes something as a public service announcement rather
than a political advertisement.
To enforce this restriction, Pace visits any external source, such as a website URL, to
determine whether language or images displayed on that external source violate the policy.
(Pace Dep. 85.) If an advertiser’s website contains “vulgar language . . . graffiti . . . or language
whose messages targets or bashes individuals,” then Pace rejects that advertisement. (Mem.
Supp. White Coat Mot. Summ. J. 6–7 (internal quotation marks omitted).) Even if the proposed
advertisement does not include a website, Pace “will find the proposed advertiser’s website if she
is not familiar with the product to learn more about the proposed advertiser in making her
determination as to whether the advertisement violates GRTC’s policy.” (Id. 7.) When visiting
external cites to certify compliance with the prohibition on political advertisements in the
Advertising Policy, Pace finds it “most useful . . . to go to the home page” and then “check the
‘About us,’ so that [she] can better understand whether or not the group is a political action
group.” (Pace Dep. 75.) The record lacks any indication that Pace’s review process is
memorialized as written guidelines, or in any other form.
During Pace’s deposition, White Coat asked Pace about specific advertisements offered
to GRTC and whether GRTC accepted or rejected those advertisements based on the terms of the
Advertising Policy. (See generally id.) Those advertisements are recounted briefly here.
13
a.
GRTC Approves an Advertisement for Gracie’s Guardians
In her deposition, Pace confirmed that she approved an advertisement from Gracie’s
Guardians, which subsequently ran on GRTC transit vehicles.
(Strugar Suppl. Decl., Ex. Z “Gracie’s Guardians Advertisement,” ECF No. 35-1.) Pace stated
that Gracie’s Guardians, to her recollection, “is a partnership with Richmond Animal League to
provide low cost spay and neuter options for public health of these animals.” (Pace Dep. 190.)
Pace determined that the Gracie’s Guardians advertisement did not violate the GRTC
Advertising Policy because “[i]t falls as a public service announcement regarding to [sic]
spaying and neutering.” (Id.) Pace believed the statement “Don’t stand for cruelty” on the
advertisement was not political because it was “in the context of and [sic] spay and neutering, in
the context of the ad as a public service announcement.” (Id.)
In contrast, Pace stated that GRTC’s Advertising Policy required her to reject White
Coat’s advertisement because White Coat is an “animal cruelty related nonprofit” and thus a
“political action group.” (Id. 36.) Pace differentiated Gracie’s Guardians because when she
reviewed their website, she did not see “political action group information on there.” (Id. 191.)
14
b.
Media Transit Approves an Advertisement for Chickpeas
that GRTC later Rejects____________________________
In January 2016, the Physicians Committee for Responsible Medicine ran the following
advertisement for chickpeas on GRTC transit vehicles. (Strugar Decl., Ex. D “White Coat
Notice of Rule 30(b)(6) Deposition to GRTC,” 41.)
(Strugar Decl., Ex. L “Chickpea Advertisement.”) Media Transit, without notifying GRTC’s
Communications Department, approved the advertisement and began running it inside buses.
(Pace Dep. 133.) After a reporter asked GRTC to comment, Pace went to the website for the
Physicians Committee for Responsible Medicine and determined that their “mission” qualified as
a “political action [mission].”15 (Id. 134–35.) Pace explained in her deposition that the
advertisement’s content “triggered the question” of whether the advertisement violated the
[Advertising] Policy, but the “website and the naming of the political action group” led her to
believe it was a political ad. (Id. 135.) Pace did not offer specific testimony as to how or why
she deemed this entity a political action group.
15
Pace could not recall if she visited the web browser referenced on the advertisement, or
the homepage of the Physicians Committee for Responsible Medicine. (Pace Dep. 134–35.)
15
c.
GRTC Approves an Advertisement for the 2016 Vice Presidential
Debate
In September 2016, GRTC ran an advertisement promoting the Vice Presidential Debate
at Longwood College in Farmville, Virginia. (White Coat Notice R. 30(b)(6) Dep. 41.) Pace
classified the advertisement as a permissible “public meeting notice.” (Id. 147.) Pace decided
that the advertisement did not violate the Policy, as it promoted a “public meeting for the benefit
of public information that’s neutral, meaning that all sides are invited to participate in a
moderated public discussion . . . exactly like a public meeting notice that we would have
advertised on our buses anyway.” (Id. 147–48.) When asked what the significance of “all
political parties” being invited to participate was, Pace responded:
[t]hat goes back to the viewpoint neutral, making sure that it is viewpoint neutral,
that you provide a forum that is not going to -- at least on our bus, not the forum
itself, but on our bus, that isn’t going to favor one political side or the other.
(Id. 151–52.) Pace could not recall whether William Weld, the Vice-Presidential candidate from
the Libertarian Party, was invited to participate in the Longwood debate when she approved the
advertisement. (Id. 152.) When asked whether electing a Vice President “is a political issue,”
Pace responded, that in her view, it “is a political action that an individual can choose to take or
not take, yes. But, that is not what the advertisement was about.” (Id. 153.)
16
d.
GRTC Rejects White Coat’s Advertisement About Animal Testing at
the McGuire VA Medical Center
_________________
In March 2017, as part of a campaign against McGuire VA Medical Center in
Richmond, Virginia conducting experiments using dogs, White Coat sought to run the
following advertisement with GRTC:
(White Coat Notice R. 30(b)(6) Dep. 41); (Strugar Decl., Ex. O “White Coat Advertisement.”)
GRTC rejected White Coat’s advertisement. (Pace Dep. 101–04.) Pace testified about her initial
review of the proposed advertisement, stating that she “was not familiar with the content of”
White Coat’s “ad at all.” (Id. 101.) She proceeded to the website for McGuire Veterans Center
to “try to understand what this [ad was] even referencing” and “Googled White Coat Wasted
[sic] Project to find their website.” (Id. 101–02.) Because White Coat appeared to be an “animal
cruelty related nonprofit,” Pace considered it “a political action group” and rejected White Coat’s
proposed advertisement. (Id. 102, 104.) Pace related that she did not “recall” having concerns
with rider safety in relation to White Coat’s advertisement. (Id. 109.)
After GRTC rejected White Coat’s advertisement, Justin Goodman, the Vice President of
Advocacy and Public Policy at White Coat, emailed Pace seeking explanation regarding the
decision to reject White Coat’s advertisement. (Goodman Decl. ¶ 8, ECF No. 27.) Goodman
stated that White Coat was a “bipartisan nonprofit pursuant to section 501(c)(3) of the Internal
Revenue Code” and sought “clarification on how GRTC interpreted ‘political ad.’” (Id.)
Goodman “ask[ed] if there was any aspect of the advertisement that [White Coat] could change
17
to comply with GRTC’s [Advertising] Policy.” (Id.) Pace sent Goodman a copy of the
Advertising Policy, (GRTC Resp. White Coat Mot. Summ. J. 8), but did not clarify at that time
how she or GRTC interpreted the word “political,” (Goodman Decl. ¶ 9). Pace suggested that if
White Coat “partnered with a Richmond Animal Care and Control to run the ad, GRTC might
run it as a public service advertisement.” (Id.)
e.
GRTC Approves an Advertisement for the Virginia Commonwealth
University’s Institute for Contemporary Art
Roughly four months after White Coat initiated the instant lawsuit, Virginia
Commonwealth University (“VCU”), located in Richmond, Virginia, ran the following
advertisement (the “VCU Advertisement”) promoting their Institute of Contemporary Art.
(Strugar Decl., Ex. N “the VCU Advertisement.”) GRTC’s deliberations over the VCU
advertisement are documented in emails, which White Coat submitted. (Strugar Decl., Ex. M
“Emails Regarding the VCU Advertisement.”) On February 27, 2018, at 1:02 p.m., Sally Brazil
of Media Transit forwarded the VCU Advertisement to Carrie Pace, saying “Art for
approval/VCU.” (Id. 224.) At 1:05 p.m., three minutes later, Pace forwarded the email to
Anthony Carter, GRTC’s Director of Risk Management, stating “[p]lease see the attached ad
awaiting approval. Normally, this ad would not trigger any concerns, but the top left copy does.
Please advise.” (Id. 223–24.) At 1:21 p.m., sixteen minutes after Pace’s email, Carter replied:
I do not have any issue with this. Free Speech and Free Expression is what VCU
is advertising for their Institute of Contemporary Art. I don’t think they are trying
18
influence anyone or change anyone’s mind about a specific social/political issue.
I would be concerned if this was a political/socially motivated add [sic] using or
referencing Freedom of Speech or Freedom of Expression to influence the public.
I look at this add [sic] as nothing more than an advertisement/awareness notice for
VCU’s Institute of Contemporary Art.
(Id. 223.) An hour later, Pace responded, thanking Carter and stating that “[t]he ad is approved.”
(Id.)
When asked to comment on GRTC’s approval of the VCU advertisement, Pace recalled
that she “wanted to make sure that [the advertisement] was not political” due to its seeming
endorsement of free speech and free expression. (Pace Dep. 155.) When asked whether she
concurred with Carter’s conclusion, Pace stated that “I trusted his conclusion. . . . I’m not well
versed in contemporary art, so I wanted somebody else’s opinion.” (Id. 156.) She further stated
that if the advertisement were actually advocating for free speech or free expression, then it
would “not be viewpoint neutral advertising.” (Id. 156–57.) No written document describes the
double-checking process Pace undertakes, or how she conducts it.
f.
The GRTC Director of Communications Considers Hypothetical
Advertisements During Her Deposition
In addition to the actual advertisements about which Pace testified, Pace considered
hypothetical advertisements during her deposition to explain how she would review them under
the terms of the Advertising Policy.16 (See, e.g., id. 62, 82.) She concluded that an
16
GRTC, in its Response to White Coat’s Motion for Summary Judgment, protests that
“[s]uch hypotheticals call for speculation and do little to aid the process . . . [because] Pace and
GRTC were not given a full opportunity to review them through the regular process.” (GRTC
Resp. White Coat Mot. Summ. J. 15.) GRTC contends that such advertisements would likely not
be admissible at trial under Federal Rule of Evidence 403. (See id.)
Under Rule 403, a court may “exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed. R. Evid. 403. GRTC does not specify on which grounds it objects to
19
advertisement for Election Day would constitute a public notice, even though it encouraged
others to vote, because “it’s legally their right.” (Id. 160–61.)
(Strugar Decl., Ex. T “Support Our Troops”).
White Coat’s deposition questions. Regardless, the Court finds the evidence admissible under
Rule 403.
The probative value of Pace’s responses to the hypothetical advertisements is apparent.
White Coat brings facial and as-applied First Amendment challenges. GRTC’s Advertising
Policy, as will be discussed later, must be reasonable and viewpoint neutral to survive White
Coat’s viewpoint discrimination claim. Similarly, GRTC’s Advertising Policy must provide a
person of ordinary intelligence a reasonably opportunity to understand what conduct it prohibits,
and it may not encourage arbitrary and discriminatory enforcement to survive White Coat’s
vagueness claim. Such hypotheticals aid the process by illustrating how GRTC classifies an
advertisement, and why certain advertisements with similar content may be treated differently.
Furthermore, the danger of unfair prejudice, confusing the issues, or misleading the jury
do not outweigh the probative value of this evidence. GRTC does not point to what part of its
“regular process” was excluded when Pace was asked to compare hypothetical advertisements.
(See GRTC Resp. White Coat Mot. Summ. J. 15.) Indeed, the record indicates that GRTC’s
process for classifying advertisements often lasted only a few minutes. (See generally Emails
Regarding the VCU Advert.) GRTC cannot claim unfair prejudice from the fact that opposing
counsel discussed each advertisement for a short period of time.
Moreover, because White Coat brings facial challenges to the Advertising Policy, the
Court may consider these hypotheticals when resolving whether the Advertising Policy violates
the Constitution on its face. Preston v. Leake, 660 F.3d 726, 738 (4th Cir. 2011) (“in the First
Amendment context, the fear of chilling expressive rights has led courts to entertain facial
challenges based merely on hypothetical applications of the law to nonparties”). Although courts
generally frown upon litigation by hypothetical, it is sometimes required in First Amendment
cases that involve facial challenges to speech restrictions. See, e.g., Broadrick v. Oklahoma, 413
U.S. 601, 612–13 (1973); Los Angeles Police Dep’t v. United Reporting Publ’g Corp., 528 U.S.
32, 38–39 (1999). In any event, the Court considers the spontaneous nature of these colloquies
when assigning weight to the evidence.
20
When asked whether an advertisement that directed viewers to “Support Our Troops”
would qualify as political, Pace observed that GRTC’s classification of the advertisement would
hinge on the identity of the speaker. (Id. 191–93.) Specifically, she stated:
[Pace]: I would need to know who [the support our troops advertisement] is from.
Q. Why?
[Pace]. Because I would need to determine if they are a political action group and
if it's a political statement.
Q. Is there any situation in which “Support our troops” would not be a political
statement?
[Pace]. I believe in war, there were ads sponsored by the United States
Government to this theme.
Q. Sure.
[Pace]. So, I believe in war, that’s my understanding.
Q. So, if the United States Government sought to run this ad, would it violate the
prohibition on political advertising?
….
[Pace]. Okay. So, it would fall as a PSA, a public service announcement, if they
are asking for the public in war time to contribute to the war effort. I’m thinking
specifically World War II, World War I, these are where I have seen these
examples from the government.
...
Q. What if it was just from the veterans organization?
[Pace]: Political action group, if they are, then they would fall under a political
ad.
(Id. 191–93 (emphasis added).)
Pace cited “the Virginia Department of Health . . . putting out a public service
announcement about testing for HIV” as another example of a public service announcement.
21
(Id. 206.) Pace relayed her conclusion that a “public service announcement is meant to provide
public information that is intended for public good and use, without making you -- I think I will
just leave it at that, for public good and use.” (Id. 208.)
Pace also compared a hypothetical advertisement from the United States Army and an
advertisement from an unidentified group. (Id. 161–62.)
(Strugar Decl., Ex. R “Go Army Advertisement”); (Strugar Decl., Ex. S “No Army
Advertisement.”) While Pace concluded that she would accept the “Go Army” advertisement,
she indicated that the “No Army” advertisement “seem[ed] to be political in nature, so I would
need to find out more from the advertiser.” (Pace Dep. 162–63.) Pace explained that she would
determine whether the group submitting the advertisement was a “political action group” or, if an
individual submitted the advertisement, a “political action individual.” (Id.) When asked
whether she would reject the advertisement if it came from a group who took positions opposing
war, Pace stated that “I believe so, based on what you have provided.” (Id. 163.)
Pace also discussed proposed commercial advertisements. When asked to consider an
advertisement from Walmart, Pace traveled to the “About us” section of the Walmart.com
website. (Id. 79.) At that time, Walmart’s website read:
At Walmart we are committed to using our size and scale for good, not just for
our customers, or even our associates, suppliers, and their families, but also for
22
the people in our communities and around the world that we will never meet. We
are proud to say that the work we do makes a real difference on the real issues
that matter to all of us and drives meaningful change in a way that no other
company can.
(Id. 79–80.) Pace stated that the global responsibility section was “vague” and that she “would
want to understand more” before approving an advertisement. (Id. 81–82.)
B.
White Coat Alleges Two Causes of Action
In the Complaint, White Coat brings two causes of action based on GRTC’s Advertising
Policy and GRTC’s refusal to run White Coat’s advertisement concerning the treatment of testanimals at McGuire VA Medical Center. In Count I (the “Viewpoint Discrimination Claim”),
White Coat alleges that “GRTC’s refusal to run [White Coat’s] advertisement amounts to
discrimination on the basis of content and/or viewpoint in violation of the First and Fourteenth
Amendments.”17 (Compl. ¶ 39.) In Count II (the “Vagueness Claim”), White Coat challenges
the Advertising Policy as unconstitutionally vague because the Policy “is not clearly defined
such that a person of ordinary intelligence can readily determine whether an advertisement is
allowable or prohibited.” (Id. ¶ 43.)
The original two claims also involve specific and limited grounds for relief. As relief,
White Coat asks the Court to make two declarations: (1) “[d]eclare that GRTC’s [Advertising]
Policy prohibiting ‘political ads’ is facially unconstitutional under the First and Fourteenth
Amendments;” and, (2) “[d]eclare that GRTC’s interpretation and implementation of its
[Advertising] Policy prohibiting ‘political ads’ is unconstitutional as applied under the First and
17
White Coat also alleges that GRTC “failed to follow its own regulations, in violation of
the ‘Accardi doctrine.’” (Compl. ¶ 40.) The Accardi doctrine requires “[a]n agency of the
government to scrupulously observe rules, regulations, or procedures that it has established.”
United States v. Morgan, 193 F.3d 252, 266 (4th Cir. 1999) (citing United States v. Heffner, 420
F.3d 809, 811 (4th Cir. 1969)). When it fails to do so, courts may strike down the agency’s
action. Id.. Because this Court will grant White Coat’s Motion for Summary Judgment as to the
as-applied claims, it need not reach the Accardi doctrine.
23
Fourteenth Amendments.” (Id. 12.) White Coat also seeks two types of injunctive relief:
(1) “ordering GRTC to accept and display [White Coat’s] proposed advertisement on terms no
less favorable than those given to other advertisers;” and, (2) “enjoining GRTC . . . from
continuing to enforce GRTC’s [Advertising] Policy prohibiting ‘political ads.’” (Id.) Finally,
White Coat seeks attorneys’ fees and costs. (Id. 13.)
II. Standard of Review: Rule 56
Summary judgment under Rule 56 is appropriate only when the Court, viewing the
record as a whole and in the light most favorable to the nonmoving party, determines that there
exists no genuine issue of material fact, and that the moving party is entitled to judgment as a
matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322–24 (1986); Liberty Lobby, 477
U.S. at 248–50.
“A fact is material if the existence or non-existence thereof could lead a [finder of fact] to
different resolutions of the case.” Thomas v. FTS USA, LLC, 193 F. Supp. 3d 623, 628 (E.D. Va.
2016) (citing Liberty Lobby, 477 U.S. at 248). Once a party has properly filed evidence
supporting its motion for summary judgment, the nonmoving party may not rest upon mere
allegations in the pleadings, but instead must set forth specific facts illustrating genuine issues
for trial. Celotex Corp., 477 U.S. at 322–24. The parties must present these in the form of
exhibits and sworn affidavits. Fed. R. Civ. P. 56(c).
A court views the evidence and reasonable inferences drawn therefrom in the light most
favorable to the nonmoving party. Liberty Lobby, 477 U.S. at 255. Whether an inference is
reasonable must be considered in conjunction with competing inferences to the contrary. Sylvia
Dev. Corp. v. Calvert Cty., 48 F.3d 810, 818 (4th Cir. 1995). Nonetheless, the nonmoving “party
is entitled ‘to have the credibility of his [or her] evidence as forecast assumed.’” Miller v.
24
Leathers, 913 F.2d 1085, 1087 (4th Cir. 1990) (en banc) (quoting Charbonnages de France v.
Smith, 597 F.2d 406, 414 (4th Cir. 1979)).
In the end, the non-moving party must do more than present a scintilla of evidence in its
favor.
Rather, the non-moving party must present sufficient evidence such that
reasonable jurors could find by a preponderance of the evidence for the nonmovant, for an apparent dispute is not genuine within contemplation of the
summary judgment rule unless the non-movant’s version is supported by
sufficient evidence to permit a reasonable [finder of fact] to find the facts in his
[or her] favor.
Sylvia Dev. Corp., 48 F.3d at 818 (internal quotations, citations, and alterations omitted). The
ultimate inquiry in examining a motion for summary judgment is whether there is “sufficient
evidence favoring the nonmoving party for a [finder of fact] to return a verdict for that party. If
the [nonmoving party’s] evidence is merely colorable, or is not significantly probative, summary
judgment may be granted.” Liberty Lobby, 477 U.S. at 249–50 (internal citations omitted).
Where the court is faced with cross-motions for summary judgment, as in the instant case, the
court must review each motion separately on its own merits. Rossignol v. Voorhaar, 316 F.3d
516, 523 (4th Cir. 2003).
III. Legal Standard: Section 1983 Claims
Section 1983 provides a private right of action for a violation of constitutional rights by
persons acting under the color of state law. See 42 U.S.C. § 1983. Section 1983 states, in
relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress . . . .
42 U.S.C. § 1983.
25
Section 1983 is not itself a source of substantive rights, but rather provides a vehicle
through which plaintiffs may challenge alleged deprivations of their constitutional rights. See
generally Carey v. Piphus, 435 U.S. 247, 253 (1978) (stating that § 1983 “was intended to
‘[create] a species of tort liability’ in favor of persons who are deprived of ‘rights, privileges, or
immunities secure[d]’ to them by the Constitution.” (quotation omitted)). In broad terms, to state
a claim under § 1983, “a plaintiff must establish three elements . . . : (1) the deprivation of a right
secured by the Constitution or a federal statute; (2) by a person; (3) acting under color of state
law.” Jenkins v. Medford, 119 F.3d 1156, 1159–60 (4th Cir. 1997); see also Brown v. Mitchell,
308 F. Supp. 2d 682, 692 (E.D. Va. 2004) (citations omitted) (“[A] plaintiff must show that the
defendant, acting under color of law, violated the plaintiff’s federal constitutional or statutory
rights, and thereby caused the complained of injury.”).
When a plaintiff brings a Section 1983 claim against a government entity such as a
municipality, liability attaches only if “an official policy or custom” caused the “unconstitutional
deprivation of the plaintiff’s rights.” Brown, 308 F. Supp. 2d. at 692 (citing Monell v. Dep’t of
Soc. Servs. of City of N.Y., 436 U.S. 658, 694 (1978)).
A policy or custom for which a municipality or government entity may be held
liable can arise in four ways: (1) through an express policy, such as a written
ordinance or regulation; (2) through the decisions of a person with final
policymaking authority; (3) through an omission, such as a failure to properly
train officers, that “manifest[s] deliberate indifference to the rights of citizens”;
or[,] (4) through a practice that is so “persistent and widespread” as to constitute a
“custom or usage with the force of law.”
Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003) (quoting Carter v. Morris, 164 F.3d 215, 217
(4th Cir. 1999)).
IV. Analysis: State Action For § 1983 Purposes
White Coat contends that the GRTC Advertising Policy violates the First Amendment
because it impermissibly restricts “political” advertisements. As a threshold issue, the Court
26
must determine whether GRTC represents a state actor before deciding whether GRTC’s
Advertising Policy violates the First Amendment. The Court finds that GRTC—by virtue of its
statutory origin, public function, and government ownership—constitutes a state actor for
Section 1983 purposes. The Court rests this finding on two grounds. First, under the
“entwinement” approach to state action, GRTC constitutes a government actor because the City
of Richmond and Chesterfield County are “entwined in . . . [GRTC’s] management or control.”
Evans v. Newton, 382 U.S. 296, 301 (1966). Second, under the United States Supreme Court’s
decision in Lebron v. National Railroad Passenger Corporation, GRTC is “by its very nature”
what the Constitution regards to be government. 513 U.S. 374, 392 (1995).
A.
Because the Governments of Richmond and Chesterfield County are
Entwined in the Management and Control of GRTC, GRTC is a State Actor
GRTC constitutes a government actor because the City of Richmond and Chesterfield
County are “entwined in . . . [its] management or control.” Evans, 382 U.S. at 301. Because of
this relationship, the actions of GRTC may fairly be treated as those of the state itself for § 1983
purposes.
1.
Legal Standard: Entwinement and State Action Under § 1983
Section 1983 provides a private right of action for a violation of constitutional rights by
persons or entities acting under the color of state law. See 42 U.S.C. § 1983. “The statutory
color-of-law prerequisite is synonymous with the more familiar state-action requirement–and the
analysis for each is identical.” Philips v. Pitt Cty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir.
2009) (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 929 (1982)).
The United States Court of Appeals for the Fourth Circuit has “observed that merely
private conduct, no matter how discriminatory or wrongful[,] fails to qualify as state action.” Id.
at 181 (citing Mentavlos v. Anderson, 249 F.3d 301, 301 (4th Cir. 2001)) (internal quotation
27
marks omitted). “This is so, in part, to preserve[ ] an area of individual freedom by limiting the
reach of federal law and avoid[ing] impos[ition] [up]on the State, its agencies or officials,
responsibility for conduct for which they cannot fairly be blamed.” Id. (citing Edmonson v.
Leesville Concrete Co., 500 U.S. 614, 619 (1991)) (internal quotation marks omitted). Thus,
“[p]rivate activity will generally not be deemed ‘state action’ unless the state has so dominated
such activity as to convert it to state action.” Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d
599, 616 (4th Cir. 2009) (quoting DeBauche v. Trani, 191 F.3d 499, 507 (4th Cir. 1999)).
On the other hand, “‘the deed of an ostensibly private organization or individual’ may at
times demand to be treated ‘as if a State has caused it to be performed.’” Mentavlos, 249 F.3d at
310 (quoting Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295
(2001)). In particular, “state action may be found if, though only if, there is such a close nexus
between the State and the challenged action that seemingly private behavior may be fairly treated
as that of the State itself.” Id. (citations and internal quotation marks omitted). In the end, “no
specific formula” guides the Court’s analysis in determining the existence of state action:
“‘What is fairly attributable [to the state] is a matter of normative judgment, and the criteria lack
rigid simplicity.’” Philips, 572 F.3d at 182 (alteration in original) (quoting Holly v. Scott, 434
F.3d 287, 292 (4th Cir. 2006)).
Relevant here, a nominally private entity may become a state actor when government “is
entwined in . . . [its] management or control.” Evan, 382 U.S. at 301. For instance, in
Brentwood, the Supreme Court determined that “a statewide association incorporated to regulate
interscholastic athletic competition” was a state actor where public schools comprised 84% of
the association’s membership, state board members served on the association’s board, and the
association’s employees were treated as state employees for retirement purposes. 531 U.S. at
28
288, 298, 300. Justice Souter, writing for the majority, stated that “[t]he nominally private
character of the Association is overborne by the pervasive entwinement of public institutions and
public officials in its composition and workings, and there is no substantial reason to claim
unfairness in applying constitutional standards to it.” Id. at 298.
2.
Richmond and Chesterfield County Are Entwined in the Management
and Control of GRTC_________________________________________
GRTC fits the “entwinement” criteria for at least eight reasons. First, the City of
Richmond and Chesterfield County own GRTC’s common shares, and GRTC has always been
one-hundred percent government owned. (Adams. Dep. 14–15.) Second, the City of Richmond
and Chesterfield County appoint the six-member Board of Directors, who serve one-year terms
and may be removed at will by the elected government body that appointed them. (Id. 16–19,
21.) Third, GRTC’s buses utilize “public use” license plates. (Adams Dep. 37.) Fourth, GRTC
remains subject to Virginia’s Freedom of Information Act. (GRTC’s Responses and Objections
to Plaintiff’s First Set of Interrogatories, Resp. No. 14.) Fifth, the Richmond City Attorney’s
Office provides legal services to GRTC, including in the instant lawsuit. See Richmond City
Code § 2-112(2). Sixth, the City of Richmond must authorize any fare increases that GRTC
wishes to institute. (Adams Dep. 17.) Seventh, the GRTC Board approves an annual budget,
taking into account projected fare revenue as well as federal and state contributions, and then
makes a specific request to the City of Richmond for the remainder. (GRTC Operating Budget);
(Adams Dep. 27–31.) Eighth, and finally, the Virginia General Assembly, through the 1973
Charter Amendment, authorized the City of Richmond to create GRTC. (Acts and Joint
Resolutions of the General Assembly of the Commonwealth of Virginia, Session 1973, Chapter
348, sec. 2.)
29
Taken together, these facts show that the “nominally private character of [GRTC] is
overborne by the pervasive entwinement of public institutions and public officials in its
composition and workings.” Brentwood, 531 U.S. at 298. In contrast to Brentwood, where
public schools comprised only 84% of an organization’s governing body, the entirety of GRTC’s
Board of Directors is appointed by government bodies, and those same government bodies own
GRTC’s ten shares of stock. Because of this “close nexus” between the local governing entities
and GRTC, which filters down into numerous aspects of GRTC’s budget, the composition of its
vehicles, its legal status, and operating procedures, GRTC’s actions “may be fairly treated as that
of the State itself.” Id. at 295 (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974)).
In the alternative, the Court finds that GRTC qualifies as a government actor under
another, more stringent test for state action. In a natural extension of the “entwinement” cases,
the Supreme Court has determined that “[g]overnment-created and -controlled corporations” may
be part of the government itself for First Amendment purposes. Lebron v. Nat’l R.R. Passenger
Corp., 513 U.S. 374, 397 (1995). The Lebron decision, analyzing the formation and structure of
Amtrak to determine whether the transit company amounted to a state actor, proves instructive
here.
B.
GRTC Qualifies as a State Actor Under the Supreme Court’s Decision in
Lebron v. National Railroad Passenger Corporation___________________
In Lebron, the Supreme Court determined that the National Railroad Passenger
Corporation, more commonly known as “Amtrak,” was “by its very nature, what the Constitution
regards as the Government” and thus a state actor. 513 U.S. at 392. Relying on many of the
same factors in the above entwinement analysis, the Supreme Court set forth a three-part test for
determining when a nominally private entity became “part of the Government” for First
Amendment purposes. Id. at 400. The Court will first briefly recount the Lebron decision before
30
finding that GRTC, like Amtrak, meets all three prongs of that test and should be viewed as “part
of the Government” for purposes of this case. Id.
1.
Lebron Identifies Three Prongs to Determine When Entwinement
Grows to Such Proportions that the Entity becomes “By its Very
Nature, what the Constitution Regards as the Government.”
In Lebron, the Supreme Court concluded that Amtrak—“established and organized under
federal law for the very purpose of pursuing federal governmental objectives under the direction
and control of federal governmental appointees”—was, by virtue of its nature, what the
Constitution regarded to be government. 513 U.S. at 398. In facts similar to those before the
Court, the plaintiff in Lebron sought to run an advertisement critiquing certain political causes,
but Amtrak rejected the advertisement. Id. at 377. The plaintiff contended that Amtrak’s
rejection of his advertisement constituted state action. Id. at 379–80.
Observing that “it is not for Congress to make the final determination of Amtrak’s status
as a Government entity for purposes of determining the constitutional rights of citizens,” the
Lebron Court looked to the “nature and history of Amtrak” to determine its governmental status.
Id. at 383, 392. The Lebron Court first noted that the Rail Passenger Service Act of 1970 (the
“RPSA”) authorized the creation of Amtrak “to avert the threatened extinction of passenger
trains” in the United States. Id. at 383–84. The RPSA, in addition to authorizing Amtrak’s
incorporation, “set forth its structure and powers” and “outline[d] procedures under which
Amtrak will relieve private railroads of their passenger-service obligations.” Id. at 384.
Next, the Lebron Court discussed how Amtrak was subsequently incorporated under the
District of Columbia Business Corporation Act.18 At the time, Amtrak’s Board of Directors
18
The District of Columbia Business Corporation statutes are presently codified in D.C.
Code Title 29, Chapter 3. See D.C. Code § 29-301.01.
31
(“Amtrak’s Board”) had nine members. Six Directors, (including the current Secretary of
Transportation), were appointed by the President; two Directors, (by virtue of the Federal
Government’s ownership of Amtrak’s preferred stock), were appointed by the Secretary of
Transportation; and the final Director, Amtrak’s President, was selected by the majority of
Amtrak’s Board. See id. at 385. The Directors were not “removable by the President for cause,
and [were] not impeachable by Congress.”19 Id. at 398.
Considering Amtrak’s history, structure, and the common law, the Lebron Court
determined that Amtrak was subject to constitutional constraints. The Federal Government was
not merely “entwined” with Amtrak’s governance: Amtrak was “by its very nature” what the
Constitution regarded to be government. Id. at 392. Lebron therefore established that a
corporation, like GRTC, is “part of the Government” for constitutional purposes when: “[(1)] the
Government creates [the] corporation by special law, [(2)] for the furtherance of governmental
19
In Lebron, the Supreme Court emphasized both government control, and its longevity:
Amtrak is not merely in the temporary control of the Government (as a private
corporation whose stock comes into federal ownership might be); it is established
and organized under federal law for the very purpose of pursuing federal
governmental objectives, under the direction and control of federal governmental
appointees. It is in that respect no different from the so-called independent
regulatory agencies such as the Federal Communications Commission or the
Securities Exchange Commission, which are run by Presidential appointees with
fixed terms.
Id. at 398. The Executive Branch’s authority to appoint Amtrak Directors meant that it exerted
its control not just as a creditor or owner, but as a “policymaker.” Id. at 399.
The Supreme Court stressed that this conclusion was borne not only from history and
law, but from common sense. If government were able to avoid constitutional obligations by
simply incorporating, a state would be able to resurrect “Plessy v. Ferguson . . . by the simple
device of having the State of Louisiana operate segregated trains through a state-owned Amtrak.”
Id. at 397. That Amtrak’s federal charter stated that it “shall be operated and managed as a for
profit corporation” did not compel a different result. Id. at 385 (citing 45 U.S.C. § 541 (1988 &
Supp. V)).
32
objectives, and [(3)] retains for itself permanent authority to appoint a majority of the directors of
that corporation.” Id. at 400; see also Kerpen v. Metro. Washington Airports Auth., 907 F.3d
152, 158 (4th Cir. 2018), cert. denied, 140 S. Ct. 132 (2019) (discussing Lebron prongs); Philips,
572 F.3d at 185–86 (recognizing three Lebron prongs).
2.
The History and Ownership Structure of GRTC Satisfy the Three
Lebron Prongs for Determining the Existence of State Action
The history and ownership structure of GRTC satisfy the three Lebron prongs, meaning
GRTC’s actions may be fairly treated as the actions of the government itself.20
a.
The First Lebron Prong: Creation by Special Law
The Court finds the first Lebron prong—whether the government creates the corporation
by special law—satisfied. The Court observes that the 1973 Charter Amendment led to GRTC’s
creation. Like the statute at issue in Amtrak, an enabling statute authorized the creation of
GRTC.
Although GRTC contends that GRTC was not created by special statute or law, this
argument fails for two reasons.21 First, the Virginia Generally Assembly created GRTC by a
20
As in the entwinement analysis set forth above, eight facts unique to GRTC’s
ownership structure that support this conclusion: (1) the City of Richmond and Chesterfield
County own GRTC’s common shares (and GRTC has always been one-hundred percent
government owned); (2) the City of Richmond and Chesterfield County appoint the six-member
Board of Directors, who serve one-year terms and may be removed at will; (3) GRTC’s buses
utilize “public use” license plates; (4) GRTC remains subject to Virginia’s Freedom of
Information Act; (5) the Richmond City Attorney’s Office provides legal services to GRTC,
including in the instant lawsuit; (6) the City of Richmond must authorize any fare increases that
GRTC wishes to institute; (7) the GRTC Board approves an annual budget, taking into account
projected fare revenue as well as federal and state contributions, and then makes a specific
request to the City of Richmond for the remainder; and, (8) the 1973 Charter Amendment
authorized the creation of GRTC.
21
Because Lebron focused only on whether Amtrak constituted a state actor, it did not
address whether the plaintiff brought facial or as-applied First Amendment challenges. See 513
U.S. at 376 (“In this case we consider whether actions of the National Railroad Passenger
33
“special law” in a substantially similar manner as Congress established Amtrak. Second, a
“special law” requirement as narrowly as GRTC seeks would undermine the reasoning of
Lebron, contravene binding Supreme Court precedent in Brentwood and Evans, and muddy state
action jurisprudence.22
Here, the 1973 Charter Amendment authorizing the creation of GRTC qualifies as a
special law. Virginia government authorized the City of Richmond “to acquire, operate, lease, or
otherwise provide for the operation of a public transportation system . . . both within and outside
the City of Richmond.” (See Act of Joint Resolutions of the General Assembly of the
Commonwealth of Virginia, Session 1973, Chapter 348, sec. 2.) The City of Richmond thus
acquired the ability to operate a particular transit system from a specific act of the legislature
having no applicability to the members of the general public, other corporations, or other transit
Corporation, commonly known as Amtrak, are subject to the constraints of the Constitution.”).
The Lebron Court made no findings as to whether Amtrak’s refusal to air plaintiff’s
advertisement violated the First Amendment. Rather, the Lebron court merely held that “where
. . . the Government creates a corporation by special law, for the furtherance of governmental
objectives, and retains for itself permanent authority to appoint a majority of the directors of that
corporation, the corporation is part of the Government for purposes of the First Amendment.”
Id. at 399.
GRTC, relying on Lehman v. City of Shaker Heights, contends that prohibitions on
political advertising on public transit systems are de facto reasonable. 418 U.S. 298 (1974).
Lehman, a plurality opinion issued more than two decades before Lebron, assumed state action
but did not address the analysis for determining when a transit system functions as a government
actor for Section 1983 purposes. Instead, the Lehman Court summarily stated that “state action
exists.” Lehman, 418 U.S. at 303 (“Because state action exists, however, the policies and
practices governing access to the transit system’s advertising space must not be arbitrary,
capricious, or invidious.”). Here, the Court similarly finds that government action exists, but
does so on a more expanded record.
22
Lebron does not detail how Amtrak’s authorizing statute was special or differed from a
normal law. The term “special law” appears only once in the opinion, and the Supreme Court
referred to a “special statute” in one other instance, stating that “Amtrak was created by a special
statute, explicitly for the furtherance of federal governmental goals.” 513 U.S. at 397, 400. The
Supreme Court simply explained that the First Amendment applied to Amtrak because it was
created by a special statute to advance a state interest and the President retained the power to
appoint directors for the corporation. Id. at 399–400.
34
systems in the state. Put another way, the General Assembly only delegated the City of
Richmond the authority to create a certain entity, not a general power. The City of Richmond
then exercised that authority, delegated by a special law of the legislature, to incorporate GRTC
and acquire VTC’s assets.
GRTC protests that the 1973 Charter Amendment merely delegated “broad transportation
authority” to the City of Richmond, which could have then chosen to operate a public or private
transit service. 23 (GRTC Resp. White Coat Mot. Summ. J. 10.) The fact that the
Commonwealth delegated broad transportation authority does not change the fact that GRTC’s
creation was explicitly authorized by a “special law” of the legislature. That the City of
Richmond possessed the authority to choose to operate the transit system through public or
nominally private means bears no relevance as to whether the law was “special.”24
23
The amount of detail in an authorizing statute, in and of itself, cannot be determinative
of whether the actions of an entity can be fairly treated as those of the state. Furthermore, the
nature of the state-local government relationship may explain the generality of the General
Assembly’s delegation of power. In Lebron, Congress delegated authority to a subordinate
agency to create Amtrak. Here, the General Assembly delegated authority to another elected
body, the Richmond City Council. While Congress might feel at ease proscribing more specific
rules to guide an agency’s discretion, the same dynamic does not hold true at the state and local
levels. The state might reasonably wish to give a political subdivision more power over an
institution that will operate locally and give fewer specific instructions to allow the local citizens
power over an institution that will affect their day-to-day life. The difference in detail in the
authorizing legislation, then, likely reflects less on the nature of GRTC as a government entity
and more on the relationship between the state and local governments. On a more fundamental
level, the amount of detail included in the authorization does not alter the fact that GRTC, as a
corporation, was formed by special law.
24
If anything, the fact that the City of Richmond possessed the authority to operate
GRTC as either a publicly held-stock corporation or an agency of the city government lends
credence to the conclusion that GRTC is a government actor. See City of Richmond v. Confrere
Club of Richmond, Va. Inc., 387 S.E.2d 471, 473 (Va. 1990) (explaining that Virginia’s Dillon
Rule “provides that municipal corporations possess and can exercise only those powers expressly
granted by the General Assembly, those necessarily or fairly implied therefrom, and those that
are essential and indispensable.”).
35
GRTC’s contention that GRTC was not created through the 1973 Charter Amendments
and thus not “created” by special law is similarly unavailing. The RPSA did not create Amtrak.
Congress, through the RPSA, authorized the creation of Amtrak, which was subsequently
incorporated by the Executive Branch under the District of Columbia Business Corporation Act.
Similarly, the 1973 Charter Amendment did not create GRTC. The Virginia General Assembly
authorized the creation of GRTC, which was incorporated by the City of Richmond under
Virginia’s Stock Corporation Act. In both cases, the legislature authorized the creation of the
stock corporation while another government actor created the corporation through existing
corporate formation statutes. The method of GRTC’s creation differs little, if at all, from that of
Amtrak’s. The Court concludes that GRTC was authorized and created pursuant to a “special
law” of the Virginia General Assembly.
b.
The Second Lebron Prong: Furtherance of Governmental
Objectives________________________________________
The Court finds that the second Lebron prong—the furtherance of governmental
objectives—also is met on the record before it. The Supreme Court recognized in Lebron that
the preservation of public transportation amounts to furtherance of a governmental objective.
Lebron, 513 U.S. at 399. The City of Richmond, a government body incorporated GRTC in the
early 1970s, for the purpose of “preserv[ing] the city’s transit services.” (Hurd, Public
Transportation 23.) The Court finds this second criterion met for determining the existence of
state action.
c.
The Third Lebron Prong: Government Retains Authority
Finally, the Court determines that the third Lebron prong—whether the government has
retained for itself permanent authority to appoint a majority of the directors of that corporation—
also is satisfied. The City of Richmond, and later Chesterfield County, has retained “for itself
36
permanent authority to appoint a majority of the directors” of GRTC. Lebron, 513 U.S. at 400.
Indeed, the City of Richmond and Chesterfield County’s control over the GRTC Board surpasses
the Federal Government’s control over Amtrak as described in Lebron. The City of Richmond
and Chesterfield County each appoint three members of the six-member GRTC Board. There
appear to be no limitations, statutory or otherwise, on who the governing bodies may appoint.
The local governing bodies enjoy complete discretion not only over appointments to the Board,
but also removals. According to GRTC, board members, even though they are appointed to only
one-year terms, are removable at-will by the bodies that appointed them.
These facts present a stronger case of government control than those examined in Lebron.
In Lebron, certain statutes limited the President’s discretion as to whom he or she could appoint
to the Amtrak Board by certain, objective criteria. Amtrak’s Board Members served longer
terms, and were not so easily removed. Six Amtrak Board members served either two or fouryear terms, and they were not removable—for ‘good cause’ or otherwise—by the President.
Furthermore, the structure of Amtrak at least allowed for the possibility of a private stake in
Amtrak. In its corporate history, Amtrak previously had private common stock shareholders
who possessed the power to appoint board members. Here, no such private control exists. Since
GRTC’s incorporation nearly four decades ago, no non-governmental entity has ever owned one
of its ten shares.25
25
The Court also notes that the City of Richmond and the Commonwealth of Virginia
provide between 40-53% of GRTC’s annual revenue, while the federal government provides an
additional 10-19%. The receipt of public funds does not, in and of itself, constitute sufficient
state action to satisfy § 1983. Rendell-Baker v. Kohn, 457 U.S. 830, 840 (1982) (“the school’s
receipt of public funds does not make the discharge decisions acts of the State.”) The receipt of
public funds is, however, relevant in determining state action, and may reflect further control of
the government over a nominally private corporation. See Horvath v. Westport Library Ass’n,
362 F.3d 147, 151–54 (2d Cir. 2004) (finding it “self-evident” that receipt of public funds by
library association supported a claim of state action under § 1983).
37
GRTC argues that White Coat “will be unable to present any evidence that any
governmental actor exercised or attempted to exercise any control over which advertisements to
run.” (GRTC Mem. Supp. Mot. Summ. J. 10–11.) GRTC misinterprets Lebron to include a
requirement that a government appointee or employee actually make the specific decision said to
violate the Constitution. The employees who rejected the proposed advertisement at issue in
Lebron were Amtrak employees, not federal government workers. Those Amtrak employees,
however, carried out a policy that was set or approved (either explicitly or implicitly) by
Amtrak’s Board, which was almost entirely composed of government appointees. Here too,
GRTC’s Board, appointed entirely by local governing bodies, adopted the initial ban on political
advertising in 1973 and have continued that policy. The ban has subsequently been carried out
by employees who serve at the pleasure of the Board, which the City of Richmond and
Chesterfield County appoints.26
26
GRTC’s argument that they cannot be deemed a state actor seems to echo Justice
O’Connor’s dissent in Lebron. In dissent, Justice O’Connor contended that “[a]lthough a
number of factors indicate the Government’s pervasive influence in Amtrak’s management and
operation, none suggest that the Government had any effect on Amtrak’s decision to turn down
[the plaintiff’s] proposal.” 513 U.S. at 412. But the Lebron majority concluded that there need
not be a showing that the influence or decisions of governmental appointees filtered down into
every conceivable decision for the government to exercise control as a “policymaker.” Id. at
399. In this case, it suffices that the government exerted command over the policy and practice
of GRTC through the control of its Board.
Common sense mandates this conclusion, especially on the facts of this case. In 1973,
GRTC’s Board, consisting entirely of government appointees, adopted by voice vote the political
advertising policy in question with little discussion of its contours. Today, GRTC’s Director of
Communications, Pace, typically has responsibility “for evaluating [a] proposed advertisement”
and “rejects the advertisement” if she finds that it violates the Advertising Policy. (Mem. Supp.
White Coat Mot. Summ. J. 6.) It cannot fairly be said that the government does not act as a
policy maker when it sets a policy and delegates authority to an ostensibly private employee to
enforce that policy. See Horvath, 362 F.3d at 147 (“[t]hat is, the State need not have coerced or
even encouraged the events at issue in the plaintiff’s complaint if ‘the relevant facts show
pervasive entwinement to the point of largely overlapping identity’ between the State and the
entity that the plaintiff contends is a state actor.”) (quoting Brentwood, 531 U.S. at 303).
38
Because GRTC’s nominal independence from the state “is overborne by the pervasive
entwinement of public institutions and public officials in its composition and workings,”
Brentwood Acad., 531 U.S. at 289, the Court concludes that GRTC constitutes a government
actor for § 1983 purposes. Compare, supra, Section IV(A)(2) (undergoing entwinement
analysis) with Section IV(B)(2)(a), (c) (evaluating Lebron factors one and three).
As a government entity, GRTC may be liable if “an official policy or custom” caused the
“unconstitutional deprivation of the plaintiff’s rights.” Brown, 308 F. Supp. 2d. at 692. White
Coat alleges that an official GRTC policy, the Advertising Policy, caused the constitutional
violation. As a result, the Court agrees that GRTC may be liable for constitutional violations
through § 1983. The Court turns next to the merits of White Coat’s facial and as-applied
Viewpoint Discrimination and Vagueness Claims.
V. Analysis: Viewpoint Discrimination and Vagueness Claims
White Coat contends that the Advertising Policy violates the First Amendment because it
allows GRTC to engage in impermissible viewpoint discrimination and is unconstitutionally
vague. Two counts stand before this Court: Viewpoint Discrimination and Vagueness Claims.
As a threshold matter, the Court recognizes that White Coat brings as-applied and facial
challenges under the First Amendment and that those claims determine the applicable burden of
proof and corresponding remedies.
A.
Facial and As-Applied First Amendment Challenges
The First Amendment provides that “Congress shall make no law . . . abridging the
freedom of speech.” U.S. CONST. amend. I. The Fourteenth Amendment makes this prohibition
applicable to the States. See Edwards v. City of Goldsboro, 178 F.3d 231, 245 n.10 (4th Cir.
39
1999). The GRTC Advertising Policy restricts certain types of speech, including advertisements
it deems political, which underlies this First Amendment action.
Two types of challenges to the validity of a statute on First Amendment grounds exist:
facial and as-applied. See generally Fisher v. King, 232 F.3d 391, 396–99 (4th Cir. 2000)
(discussing as-applied and facial First Amendment challenges). The Supreme Court has
explained that “the distinction between facial and as-applied challenges is not so well defined
that it has some automatic effect or that it must always control the pleadings and disposition in
every case involving a constitutional challenge.” Citizens United v. FEC, 558 U.S. 310, 331
(2010). But “[t]he distinction is both instructive and necessary, for it goes to the breadth of the
remedy employed by the Court, not what must be pleaded in a complaint.” Id.; see also United
States v. Nat’l Treasury Employees Union, 513 U.S. 454, 477–78 (1995) (contrasting “a facial
challenge” with “a narrower remedy” than an as-applied challenge). In other words, “classifying
a lawsuit as facial or as-applied affects the extent to which the invalidity of the challenged law
must be demonstrated and the corresponding ‘breadth of the remedy,’ but it does not speak at all
to the substantive rule of law necessary to establish a constitutional violation.” Bucklew v.
Precythe, 139 S. Ct. 1112, 1127 (2019) (quoting Citizens United, 558 U.S. at 331.)
White Coat brings both facial and as-applied First Amendment challenges to the
Advertising Policy. The substantive law for resolving White Coat’s Viewpoint Discrimination
Claim and Vagueness Claim remain the same for either a facial or an as-applied challenge, but
the burden of proof and remedy for each challenge differs.
1.
Facial First Amendment Challenges
In a facial challenge, “a plaintiff may sustain its burden in one of two ways.” Educ.
Media Co. at Va. Tech, Inc. v. Insley, 731 F.3d 291, 298 n.5 (4th Cir. 2013). First, a plaintiff
40
asserting a facial challenge “may demonstrate that no set of circumstances exists under which the
law would be valid, or that the law lacks any plainly legitimate sweep.” Greater Balt. Ctr. for
Pregnancy Concerns, Inc. v. Mayor & City Council of Balt., 721 F.3d 264, 282 (4th Cir. 2013)
(en banc) (internal quotation marks and alterations omitted). Second, a plaintiff asserting a facial
challenge may prevail if he or she “show[s] that the law is overbroad because a substantial
number of its applications are unconstitutional, judged in relation to the statute’s plainly
legitimate sweep.” Id. (internal quotation marks and alterations omitted).
Under either scenario, a court considering a facial challenge must assess the
constitutionality of the challenged law “without regard to its impact on the plaintiff asserting the
facial challenge.”27 Educ. Media Co. at Va. Tech, Inc. v. Swecker, 602 F.3d 583, 588 (4th Cir.
2010). Accordingly, when assessing the constitutionality of a government restriction on speech,
such as the Advertising Policy at issue here, courts may consider hypothetical situations if the
challenger brings a facial attack on the restriction. Preston v. Leake, 660 F.3d 726, 738 (4th Cir.
2011) (when addressing a facial First Amendment challenge, a court may consider hypothetical
applications of the speech restriction as to nonparties).
27
The Supreme Court of the United States has remarked that a “facial challenge to a
legislative Act is, of course, the most difficult challenge to mount successfully” and will succeed
only if a litigant can “establish that no set of circumstances exists under which the Act would be
valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). As this Court has explained:
Facial challenges are disfavored for several reasons. Among them, a ruling of
unconstitutionality frustrates the intent of the elected representatives of the
people. Facial challenges also run contrary to the fundamental principle of
judicial restraint that courts should neither anticipate a question of constitutional
law in advance of the necessity of deciding it nor formulate a rule of
constitutional law broader than is required by the precise facts to which it is to be
applied. Further, facial challenges raise the risk of premature interpretation of
statutes on the basis of factually barebones records.
Marcellus v. Va. State Bd. of Elections, 168 F. Supp. 3d 865, 872–73 (E.D. Va. 2016) (internal
citations, quotations, and alterations omitted), aff’d, 849 F.3d 169 (4th Cir. 2017).
41
When crafting a remedy for facial claims versus as-applied claims, the facial invalidation
of a government restriction on speech presents a broader remedy (declaratory relief) than an asapplied invalidation (injunctive relief). That is so because a facial claim contends that a
particular government restriction on speech can never be validly enforced and would be
unconstitutional in all, or virtually all, of its applications. Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 449 (2008). In contrast, an as-applied challenge concedes that
the statute may be constitutional in many of its applications but asserts that it is not so under the
particular circumstances of the case.
Because a facial challenge addresses whether a restriction on speech is “unconstitutional
in all of its applications,” id. (quoting Salerno, 481 U.S. at 745), assessing the constitutionality of
the restriction as applied to the plaintiff is a critical first step. Cf. Vill. of Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982) (examining specific conduct at issue
before reaching facial claim). If that analysis shows that the plaintiff’s own speech may lawfully
be prohibited, then the government restriction on speech is not facially unconstitutional.
2.
As-Applied First Amendment Challenges
To be sure, facial challenges and as-applied challenges conceptually overlap. See Doe v.
Reed, 561 U.S. 186 (2010) (acknowledging that plaintiffs’ claim “has characteristics of both” asapplied and facial challenge). But, in contrast to a facial challenge, the Court must assess an asapplied challenge “based on a developed factual record and the application of a statute to a
specific person.” Richmond Med. Ctr. for Women v. Herring, 570 F.3d 165, 172 (4th Cir. 2009)
(en banc). “In an as-applied challenge . . . the [government actor] must justify the challenged
regulation with regard to its impact on the plaintiffs.” Educ. Media Co. at Va. Tech v. Insley,
731 F.3d at 298.
42
In some cases, courts may find restrictions on speech facially constitutional but
unconstitutional as applied to plaintiffs. See, e.g., Educ. Media Co. at Va. Tech, Inc. v. Swecker,
602 F.3d 583, 591 (4th Cir. 2010) (upholding restriction on speech as facially constitutional);
Educ. Media Co. at Va. Tech, Inc. v. Insley, 731 F.3d 291, 302 (4th Cir. 2013) (on a second
appeal, concluding that the same challenged regulation at issue in Swecker violated the First
Amendment as applied to plaintiffs).28 With this framework in mind, the Court turns next to the
merits of White Coat’s Viewpoint Discrimination and Vagueness Claims.
B.
Viewpoint Discrimination Claim
In Count 1, White Coat contends that the Advertising Policy allows GRTC to engage in
viewpoint discrimination both facially and as applied to White Coat. Before reaching that issue,
the Court must decide the appropriate standard of review based on whether advertising space in
GRTC vehicles constitutes a public forum, a designated public forum, or a nonpublic forum.
1.
Legal Standard: The Government’s Power to Regulate Speech in
Different Forums_________________________________________
Although the First Amendment protects many forms of speech, “the government need not
permit all forms of speech on property that it owns and controls.” Int’l Soc’y for Krishna
Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992). The Supreme Court of the United States
long has recognized that states may regulate the “time, place, and manner of expression” without
running afoul of the First Amendment, subject to certain requirements. See, e.g., Perry, 460 U.S.
at 45. The requirements vary depending on the forum. Id.; see also Krishna, 505 U.S. at 678–
79. In a First Amendment analysis, “three types of government-controlled spaces [exist]:
28
That decision aligns with the Supreme Court’s long-standing instruction that “the
appropriate exercise of judicial power requires that important constitutional issues not be decided
unnecessarily where narrower grounds exist for according relief.” Communist Party of Ind. v.
Whitcomb, 414 U.S. 441, 451 n.1 (1974) (Powell, J., concurring) (opting to rest concurring vote
on narrow, rather than broad, constitutional issue).
43
traditional public forums, designated public forums, and nonpublic forums.” Minn. Voters
Alliance v. Mansky, 138 S. Ct. 1876, 1885 (2018).
First, government may only sparingly regulate speech on government property “that has
traditionally been available for public [use],” and such regulation “is subject to the highest
scrutiny.” Krishna, 505 U.S. at 678. The quintessential public forum includes “streets and parks
which ‘have immemorially been held in trust for the use of the public, and, time out of mind,
have been used for purposes of assembly, communicating thoughts between citizens, and
discussing public questions.” Perry, 460 U.S. at 45 (quoting Hague v. CIO, 307 U.S. 496, 515
(1939)). “Reasonable time, place, and manner restrictions are allowed [in public forums], but
any restriction based on the content of the speech must satisfy strict scrutiny, that is, the
restriction must be narrowly tailored to serve a compelling government interest, and restrictions
based on viewpoint are prohibited.” Pleasant Grove City v. Summum, 555 U.S. 460, 469 (2009)
(internal citations omitted).
Second, a government entity may create a designated public forum “if government
property that has not traditionally been regarded as a public forum is intentionally opened up for
that purpose.” Id. (citing Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802
(1985)); see also Child Evangelism Fellowship of Md., Inc. v. Montgomery Cty. Pub. Schs., 457
F.3d 376, 383 (4th Cir. 2006). Such forums can include “university meeting facilities generally
open for use by student groups, a school board meeting open to the public, and a municipal
auditorium and city-leased theater designed for and dedicated to expressive activities.” Goulart
v. Meadows, 345 F.3d 239, 249 (4th Cir. 2003) (citations omitted).
In a designated public forum, regulations on speech are subject to two different levels of
scrutiny. Child Evangelism, 457 F.3d at 383. Under the so-called “external” standard, which
44
places restrictions on the government’s ability to designate the class for whose benefit the forum
has been opened, the restriction need only be “‘viewpoint neutral and reasonable in light of the
objective purposes served by the forum.’” Goulart, 345 F.3d at 250 (internal citations and
quotations omitted). This is true because “the government ‘may be justified “in reserving [its
forum] for certain groups or for the discussion of certain topics.”’” Demmon v. Loudoun Cty.
Pub. Schs., 342 F. Supp. 2d 474, 481 (E.D. Va. 2004) (quoting Goulart, 345 F.3d at 249)).
However, the so-called “internal” standard, which applies where a government excludes a
speaker who falls within the class to whom the forum is opened, is “subject to strict scrutiny.”
Goulart, 345 F.3d at 250 (internal citations and quotations omitted).
“There is some confusion over the terminology use[d] to describe this [second] category,
as the Supreme Court and lower courts have also used the term ‘limited public forum’”
interchangeably to what is also called a designated public forum. Goulart, 345 F.3d at 249. The
Supreme Court has recognized public school facilities after hours and a student activity fund of a
public university as limited public forums. Id.; Child Evangelism, 457 F.3d at 382. The Fourth
Circuit has clarified that in a limited public forum, “the government creates a channel for a
specific or limited type of expression where one did not previously exist.” Child Evangelism,
457 F.3d at 382 (noting that a designated public forum, in contrast, is one where “the
government makes public property . . . generally accessible to all speakers.”). The speech
restriction imposed on a limited public forum is subject to just one level of scrutiny: “a
government entity may impose restrictions on speech that are reasonable and viewpoint neutral.”
Pleasant Grove City, 555 U.S. at 470 (citing Good News Club v. Milford Cent. Sch., 533 U.S. 98,
106–07 (2001)).
45
This level of scrutiny also applies to what courts have identified as the third type of
government-controlled space, the “nonpublic” forum. Mansky, 138 S. Ct. at 1885. The Fourth
Circuit has acknowledged that “the similarity between the external standard for speech
restrictions in a limited public forum and the standard for speech restrictions in a nonpublic
forum ‘in effect makes the limited public forum analytically indistinct from a nonpublic forum.’”
Goulart, 345 F.3d at 249 n.23 (quoting Warren v. Fairfax Cty., 196 F.3d 186, 194 n.8 (4th Cir.
1999) (en banc)). A nonpublic forum is “subject to the same two limitations [as a limited public
forum]: the policy must be reasonable and viewpoint neutral.” Child Evangelism, 457 F.3d at
383 (citing Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 680 (1998)).
2.
The Advertising Space on GRTC Buses Is a Nonpublic Forum
Because the Government Has Decided to Close It to Certain
Types of Speech
The advertising space on GRTC’s buses operate as a nonpublic forum. GRTC, as a state
actor, “retains the choice of whether to designate its property as a forum for specified classes of
speakers.” Ark. Educ, 523 U.S. at 680. When the government, such as GRTC, determines to
close a forum to certain types of speech, it becomes a nonpublic forum. See Archdiocese of
Wash. v. Wash. Metro. Area Transit Auth., 897 F.3d 314, 323 (D.C. Cir. 2018) (“Having plainly
evinced its intent in 2015 to close [the government transit system’s] advertising space to certain
subjects, the Board of Directors converted that space into a non-public forum.”). GRTC, by
substantially limiting speech and preserving public transportation as the primary goal of the
forum, has evinced an intent to create a nonpublic forum.
Nearly every court to consider this question has concluded that advertising space on
public transit systems is a nonpublic forum. See Lehman, 418 U.S. at 304 (recognizing city
buses lacked a traditional “First Amendment forum”); see also Archdiocese of Wash., 897 F.3d
46
at 322–23 (concluding transit system advertising space constituted a non-public forum); Am.
Freedom Def. Initiative v. Suburban Mobility Auth. for Reg’l Transp., 698 F.3d 885, 891 (6th
Cir. 2012); Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65, 82 (1st. Cir. 2004); Uptown Pawn &
Jewelry, Inc. v. City of Hollywood, 337 F.3d 1275, 1278–79 (11th Cir. 2003); Children of the
Rosary v. City of Phoenix, 154 F.3d 972, 977 (9th Cir. 1998). Even knowing these
advertisements appear both inside and outside GRTC vehicles,29 this Court similarly concludes
that the advertising space found on GRTC vehicles constitutes a nonpublic forum.
In any event, even were this Court to find that outside advertising somehow could
convert the nonpublic forum to a limited one, White Coat and GRTC properly recognize that
designating GRTC vehicles as a limited-public forum or a nonpublic forum is a distinction
without a difference: either way, the policy limiting speech “must be reasonable and viewpoint
neutral.” Child Evangelism, 457 F.3d at 383.
29
The Supreme Court has recognized the importance of a “captive audience” with regard
to interior advertising space when reviewing First Amendment claims in the public transit
context. See, e.g., Lehman, 418 U.S. at 302 (discussing how prior case law reasoned that
“viewers of billboards and streetcar signs had no choice or volition to observe such advertising
and had the message thrust upon them by all the arts and devices that skill can produce. . . . The
radio can be turned off, but not so the billboard or street car placard. . . [t]he streetcar audience is
a captive audience.”) (internal quotations marks and citations omitted). Lehman, which predates
the forum analysis, has been “retconned into that framework.” Ne. Pa. Freethought Soc’y v. Cty.
of Lackawanna Transit Sys., 938 F.3d 424, 440 n.3 (3d Cir. 2019) (Cowan, J. dissenting).
Many courts interpreting the 1974 Lehman decision have decided that the “captive
audience” aspect of the decision does not necessarily limit its application to interior advertising.
See, e.g. Archdiocese of Wash., 897 F.3d at 324 (“The Supreme Court [has] concluded that a city
does not ‘by selling advertising space . . .turn[] its buses into free speech forums.’” (quoting
Lehman, 418 U.S. at 305–06) (additional citations omitted)). And while Justice Douglass’s
concurrence in Lehman focused on the captive audience aspect of the interior advertisements, it
appears that the Lehman court had before it both interior and exterior advertisements. Lehman,
418 U.S. at 321 n.12. (Brennan, J. dissenting) (“The record reveals that the Shaker Heights
Rapid Transit System provides advertising space on the outside as well as the inside of its cars.”)
(citing record).
47
C.
Legal Standard: Viewpoint Discrimination Claims in Nonpublic Forums
The Court pauses to acknowledge that even beyond the entwinement and forum analyses,
First Amendment free speech jurisprudence does not bestow a linear formula or clear-cut system
for parties to follow or courts to apply. As is evident in the Court’s analysis below, claims can
raise overlapping concepts. The lines among cases, standards of review, and forms of relief
often blur. Goulart, 345 F.3d at 252 n.23 (“We acknowledge that by looking to the purpose of
the forum to determine whether two proposed uses are of a similar character, we are blurring the
lines between the ‘similar character’ inquiry and the ‘external standard’ for evaluating speech
restrictions in a limited public forum—both inquiries involve, roughly speaking, a determination
of whether the distinction drawn is relevant to the purpose of the forum.”).30
The Fourth Circuit has recognized that “some overlap in analysis [can be] unavoidable,”
but an overlap of standards does not necessarily provide a “sufficient reason for [courts] to reject
[the overlapping] approach.” Id. Certain free speech claims, including the ones raised here, can
implicate intersecting yet competing Supreme Court precedent. With these complications in
mind, the Court focuses on the precise claims that White Coat brought in its Complaint:
Viewpoint Discrimination and Vagueness.
1.
Viewpoint Neutrality
When the State creates a nonpublic forum, it need not allow persons to engage in every
type of speech. Good News Club., 533 U.S. at 106. The State’s power to restrict speech in a
30
Another intersecting concept can occur when a court evaluates free speech challenge as
either content-based or content-neutral. As one scholar has observed, “courts tasked with
determining whether a given law is content-neutral or content-based have had to choose between
two competing but incompatible lines of precedent. The result has been the creation of what
commentators have described as a confused, inconsistent, and highly malleable body of law.”
Genevieve Lakier, Reed v. Town of Gilbert, Arizona, and the Rise of the Anticlassificatory First
Amendment, 2016 Sup. Ct. Rev. 233, 234.
48
nonpublic forum, however, is not unlimited. Cornelius, 473 U.S. at 806. In a nonpublic forum,
ensuring viewpoint neutrality requires the government to do more than just “refrain from explicit
viewpoint discrimination.” Child Evangelism, 457 F.3d at 384. The government entity
regulating the speech must “provide adequate safeguards to protect against the improper
exclusion of viewpoints.” Id. (citing cases). And, in Child Evangelism, the Fourth Circuit noted
that unbridled discretion to apply a restriction risks viewpoint discrimination because “the
government [might succeed] in unconstitutionally suppressing particular protected speech by
hiding the suppression from public scrutiny.” Child Evangelism, 457 F.3d at 386. Accordingly,
in a nonpublic forum, like that of GRTC, government regulation or censorship of speech must be
both reasonable and viewpoint neutral. Id. at 383 (emphasis added).
Regarding viewpoint discrimination, a restriction on speech must not discriminate based
on the viewpoint of the speaker. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819,
829 (1995). “[T]he test for viewpoint discrimination is whether—within the relevant subject
category—the government has singled out a subset of messages for disfavor based on the views
expressed.” Matal v. Tam, 137 S. Ct. 1744, 1766 (2017). At base, viewpoint neutrality ensures
“that minority views are treated with the same respect as are majority views.” Bd. of Regents of
Univ. of Wi. Sys. v. Southworth, 529 U.S. 217, 235 (2000).
2.
Reasonableness
In a nonpublic forum, restrictions on speech need only be reasonable as “assessed in the
light of the purpose of the forum and all the surrounding circumstances.” Cornelius, 473 U.S. at
809. The reasonableness standard is more exacting than the rational basis inquiry, and the
government bears the burden of proof on it. NAACP v. City of Philadelphia, 834 F.3d 435, 441
(3d Cir. 2016). Still, “it need not be the most reasonable or the only reasonable limitation.”
49
Cornelius, 473 U.S. at 808. To allow a court to grasp the purpose to which the government actor
has devoted the forum, courts can rely on evidence from the record, and on commonsense.
NAACP, 834 F.3d at 441; see also Archdiocese of Wash., 897 F.3d at 340. “In other words,
consideration of a forum’s special attributes is relevant to the constitutionality of a regulation
since the significance of the governmental interest must be assessed in the light of the
characteristic nature and function of the particular forum involved.” Goulart, 345 F.3d at 255
(internal quotation marks and citation omitted).
Under this framework, the Court must first evaluate whether the exclusion of White
Coat’s advertisement amounted to impermissible viewpoint discrimination.
D.
The GRTC Advertising Policy As Applied to White Coat Does Not Satisfy
Viewpoint Neutrality
The record suggests that Pace and other members of GRTC’s Communications
Department are doing their level best to enforce the Advertising Policy in an evenhanded and
thoughtful manner. Indeed, GRTC’s Advertising Policy expressly aspires to articulate a
“standard set of criteria” which allows review of advertisements using a “viewpoint neutral”
standard that is “consistently applied” and “objectively enforced.” Nonetheless, the Court
concludes that GRTC engaged in unconstitutional viewpoint discrimination as-applied to White
Coat because GRTC rejected White Coat’s advertisement on political grounds while accepting
other political advertisements.
To prevail against White Coat’s as-applied Viewpoint Discrimination Claim, GRTC must
justify the challenged regulation with regard to its impact on White Coat. Educ. Media Co. at
Va. Tech v. Insley, 731 F.3d at 298. GRTC contends that its intent “is to not allow any of its
transit vehicles or property to become a public forum for dissemination, debate, or discussion of
public issues.” (Mem. Supp. GRTC Mot. Summ. J. 21, Ex. H “Pace Deposition” 35:4–18, ECF
50
No. 31–8.) GRTC allows public service announcements without identifying this within its
Advertising Policy or another document.31 GRTC avers that it has “consistently interpreted the
phrase ‘public issues’ to refer to political content that specifically expresses an identifiable
viewpoint.” (Id. (quoting Pace Dep. 35:13–18).) GRTC claims that it rejected White Coat’s
advertisement because it “was a political action group” that “advocate[s] specifically against
animal cruelty.” (Id. (quoting Pace Dep. 37:19–22).)
But when asked how the advertisement could be considered non-political, GRTC sent a
copy of the Policy to White Coat without offering an interpretation of “political.” (Goodman
Decl. ¶ 8). By email, Pace suggested (without identifying any other textual change) that a
government agency co-sponsor might allow the advertisement to be run as a public service
announcement. (Goodman Decl. ¶ 9). Nothing in this record gives notice to White Coat as to
how GRTC determines “what falls within, or may fall within” one of the prohibited categories
such as the ban on political advertising. (2013 Adver. Policy 1-2.)
Finally, in its response, GRTC recognizes that it erroneously ran the Chickpea
Advertisement (albeit without reviewing it) but “it is not required to be perfect.” (GRTC Resp.
White Coat Mot. Summ. J. 14.) GRTC also states that even if the advertisement for the Vice
Presidential debate violated the Advertising Policy, GRTC’s restriction on speech “need only be
reasonable.” (Id. 14–15.)
31
In her deposition, Pace, absent any GRTC written guidance, relayed her presumption
that a “public service announcement is meant to provide public information that is intended for
public good and use, without making you -- I think I will just leave it at that, for public good and
use.” (Pace Dep. 208:13–17.) As discussed in regard to White Coat’s as-applied Vagueness
Claim, such unpredictable application of the policy means a person of ordinary intelligence could
not reasonably understand what may be prohibited.
51
1.
The Record Shows GRTC Engaged in Impermissible Viewpoint
Discrimination As Applied to White Coat
First, while the record contains the policy that bans “all political ads,” it contains no
written description of how GRTC implements that policy. Nothing enunciates how GRTC
determined what fell within any of the listed prohibitions. Instead, two employees testified about
their experience applying it. As GRTC presents its process, unfortunately, even the best efforts
of these employees cannot surmount the absence of identifiable standards to apply the
Advertising Policy in a consistent way. GRTC has no written standards about how the Policy
should be applied or interpreted.32 In fact, the record before the Court shows a level of
inconsistency that renders the policy unconstitutional.
Here, the record shows that GRTC cannot justify its restriction on political
advertisements as applied to White Coat. At least three advertisements reviewed by GRTC
demonstrate why. First, the record shows GRTC permitted Gracie’s Guardians to advocate
against animal cruelty in the context of a “public service announcement,” but White Coat could
not advocate against animal cruelty in regard to the treatment of specific animals at a specific
location. In so doing, GRTC found a view uncontroversial when it attacked a practice at a
certain level of generality (“don’t be cruel to animals”) but the same message became
contentious and “political” when it advocated for a specific application of that view (“don’t be
cruel to these animals”). This inconsistency reveals how GRTC engaged in impermissible
viewpoint discrimination as applied to White Coat.
32
GRTC never placed an existing guidance document on the record. Nor does the record
suggest that, as often happens, GRTC created guidance because White Coat filed this lawsuit.
See, e.g., Mansky, 138 S. Ct. at 1884 (where county officials created “Election Day Policy”
providing guidance for political apparel ban within a polling place “[i]n response to the
lawsuit.”); Goulart, 345 F.3d at 242 n.2 (where county modified its written policy after litigation
was commenced in the case).
52
Second, GRTC accepted advertisements promoting the Vice Presidential Debate, despite
its overtly political nature, because it advertised “a public meeting for the benefit of public
information that’s neutral, meaning that all sides are invited to participate in a moderated public
discussion.” (Pace Dep. 147: 21–24.) Of course, GRTC’s statement that the debate would not
“favor one political side or the other” reveals a substantive underlying judgment: that there are
only two sides, or political parties, to be heard. (Id. 151–52.) Therefore, GRTC accepted overtly
political material which conveyed, on some level, a value choice on political ideologies because
of GRTC’s subjective determination that a majority viewpoint was not political.33 (Id. 148.) The
Advertising Policy allowed GRTC, through Pace, the discretion to determine that an
advertisement pertaining to a “political action that an individual can choose to take” was not
political only because she thought “that [was] not what the advertisement was about.” (Id.
153:22–24.) Pace’s unbridled discretion in applying this restriction shows viewpoint
discrimination because “the government [might succeed] in unconstitutionally suppressing
particular protected speech by hiding the suppression from public scrutiny.”34 Child Evangelism,
457 F.3d at 386.
33
To be sure, the law allows public entities to exclude candidates in some instances –
such as excluding a candidate from a televised debate based on his or her status as a candidate
with little support – but this record is bereft of any such deliberation. See Ark. Educ., 523 U.S. at
677.
34
Here, the Court confronts overlapping First Amendment doctrines. In its as-applied
viewpoint discrimination analysis, the Fourth Circuit disapproved of inappropriate “unbridled
discretion” to limit access to a forum without “sufficient criteria to prevent viewpoint
discrimination.” Child Evangelism, 457 F.3d at 386. As will be noted later, this standard
unmistakably echoes the two-part test for reasonableness and arbitrary enforcement in a facial
vagueness challenge. See Mansky, 138 S. Ct. at 1888 (citing Cornelius, 473 U.S. at 808–09) (the
state “must be able to articulate some sensible basis for distinguishing what may come in and
what must stay out”).
53
Third, the record also shows that in some circumstances GRTC’s Director of
Communications admitted that interpretation of the Policy varied based on her level of
familiarity with the content of the advertisement. For instance, VCU sought to run an
advertisement promoting its contemporary art institute that seemed to advocate for “Free
Speech” and “Free Expression.” Pace “was not well versed in contemporary art,” so she relied
on and adopted the perspective of her peer, Anthony Carter, who presumably had familiarity
with modern art. (Pace Dep. 156:7–19.) If either Pace or Carter determined that the
advertisement was actually advocating for free speech or free expression—as one reasonably
could considering those terms appeared in large font in the advertisement—then it would “not be
viewpoint neutral advertising” and would violate the Advertisement Policy. (Id. 157:3–4.) But
because Carter did not “think [VCU was] trying [to] influence anyone or change anyone’s mind
about a specific social/political issue” with the advertisement—and Pace trusted his judgment—
it was approved. (Strugar Decl., Ex. M “Emails Regarding the VCU Advertisement.”) GRTC
accepted the VCU Advertisement not because its content was firmly apolitical, but because a
GRTC official believed that VCU was not “trying [to] influence anyone.” (Id.)
Still, the record does not explain how GRTC, acting through Pace, determined that VCU
was not “trying to influence anyone” via their advertisement: surely, an advertisement for an art
museum touting the history of free expression might influence the political views of those who
attend. Even if GRTC could be confident in VCU’s intentions, their definition of “political”
changed while determining the propriety of the advertisement. It appears that GRTC’ test, at
least when it came to VCU, was whether an advertiser was attempting “to influence anyone”
with their message—not whether the advertisement expressed a “viewpoint” or supported one
political party or another. GRTC tends to view non-controversial statements of a political nature
54
as “public service announcements”35 while more controversial statements, or even the same
statement espoused by a more controversial speaker, are viewed as “political” in violation of the
Advertising Policy. The ad hoc application of the Advertising Policy results in the inclusion of
mainstream or uncontroversial views—as viewed by GRTC—while more controversial
statements are excluded.
The record also shows that Pace’s implementation of the Advertising Policy involved
seeking to learn more about the sponsoring organization before accepting or rejecting an
advertisement. Again, no written procedure required this. But even this admirable attempt to
self-educate resulted in a subjective determination of both a “political ad” or a “political action
group” led to inconsistent results. GRTC rejected the White Coat advertisement because Pace
considered the organization an “animal cruelty related nonprofit,” which was, in her opinion, “a
political action group.” (Id. 36:10–13.) However, GRTC allowed Gracie’s Guardians—a Pitbull
rights group fighting against animal cruelty—to run an advertisement specifically imploring the
community to not “stand for cruelty” because Pace did not “see . . . political action group
information on [their website]” and she considered their advocacy for “spaying and neutering” to
be a public service announcement. (Id. 19:5–6.) The Advertising Policy, as applied,
35
Pace’s oral description of a “public service announcement [as something] meant to
provide public information that is intended for public good and use, without making you -- I
think I will just leave it at that, for public good and use,” (Pace Dep. 208:13–17), only highlights
the lack systematic application of the Policy to White Coat’s advertisement. While certainly
undertaken in good faith, as the Rule 30(b)(6) designated official for GRTC, Pace’s seemingly
off-the-cuff definition underscores the lack of criteria followed when rejecting White Coat’s
proposed advertisement.
55
discriminates not just on the perceived political nature of the advertisement, but on GRTC’s
perceived political nature of the speaker.36
2.
Lehman Does Not Foreclose the As-Applied Viewpoint Discrimination
Claim White Coat Raises Here
GRTC argues that the factually analogous Lehman resolves the issues that White Coat
presents to this Court. Specifically, Lehman found constitutional a city’s ban on political
advertisements on their public transit system. 418 U.S. at 303–04. In Lehman, the Supreme
Court noted the “uncontradicted testimony at the trial [indicated] that during the 26 years of
public operation, the Shaker Heights system, pursuant to city council action, had not accepted or
permitted any political or public issue advertisement on its vehicles.” Id. at 300–01 (emphasis
added). The Supreme Court found that the policy did not violate the constitution because no
evidence showed arbitrary, capricious, or invidious enforcement. Id. at 304.
Although Lehman supports the notion that a city transit system’s prohibition on political
advertisements could survive facial First Amendment scrutiny, the Court must resolve the asapplied claim on the record before it. In contrast to Lehman, White Coat alleges discriminatory
enforcement as to its own advertisement in comparison to other political advertisements GRTC
has accepted. And, unlike in Lehman, White Coat shows that GRTC has accepted political
advertisements that it considers public service announcements based on a rather haphazard
interpretation of the Advertising Policy by one person whose viewpoint affects decisions. GRTC
36
This last point is underscored by GRTC’s response to White Coat’s request to identify
any aspect of the advertisement that White Coat could change to comply with the policy. GRTC
suggested no change to content, forwarded a copy of the Policy outlining the procedure to review
submissions without defining “political” and, without elaboration, suggested that a partnership
with a government agency – a change in the speaker -- might transform the submission into a
public service advertisement. (Goodman Decl. ¶ 9).
56
does not show that, like the transit system in Lehman, it has consistently applied its ban on
political advertisements for the past twenty-six years.
Despite the Advertising Policy’s invocation of the talismanic First Amendment standards
regarding viewpoint neutrality, objective and consistently applied criteria, and a manifest intent
not to allow its transit vehicles to become a public forum for debate, the Court must find that, asapplied to White Coat, GRTC’s Advertising Policy resulted in unconstitutional viewpoint
discrimination. The Court will grant White Coat’s Motion for Summary Judgment on the asapplied Viewpoint Discrimination Claim.37
The Court turns next to White Coat’s facial Viewpoint Discrimination challenge to the
Advertising Policy.
E.
The Advertising Policy Does Not Permit Viewpoint Discrimination On its
Face Because it Prohibits All Political Advertisements
White Coat also brings a facial Viewpoint Discrimination challenge to the Advertising
Policy’s prohibition on political advertisements. Although the Supreme Court’s recent Mansky
decision makes this facial Viewpoint Discrimination claim a close call, the Court will grant
GRTC’s motion for summary judgment on this issue in light of Lehman.
1.
Lehman Permits A Ban on Political Advertisements for Interior
Advertising Space on City Buses
The reasonableness of the Government’s restrictions in a nonpublic forum is “assessed in
the light of the purpose of the forum and all the surrounding circumstances.” Cornelius, 473
U.S. at 809. Still, “it need not be the most reasonable or the only reasonable limitation.”
Cornelius, 473 U.S. at 808. “In other words, consideration of a forum’s special attributes is
37
Because White Coat brings a Viewpoint Discrimination Claim, and the Court finds that
the Advertising Policy lacks viewpoint neutrality as applied to White Coat, the Court need not
analyze the Policy’s reasonableness.
57
relevant to the constitutionality of a regulation since the significance of the governmental interest
must be assessed in the light of the characteristic nature and function of the particular forum
involved.” Goulart, 345 F.3d at 255 (internal quotation marks and citation omitted). However,
“[t]he First Amendment does not forbid a viewpoint-neutral exclusion of speakers who would
disrupt a nonpublic forum and hinder its effectiveness for its intended purpose.” Cornelius, 473
U.S. at 811; see also Lehman, 418 U.S. at 304 (plurality opinion).
In Lehman, the Supreme Court upheld a prohibition on political advertisements in buses’
“car card” interior advertising spaces. 418 U.S. at 303–04 (plurality opinion). In doing so, the
Supreme Court recognized three justifications for the city’s prohibition on political ads. Id. at
304. First, short-term candidacy advertisements could prevent the transit system from securing
long-term commercial advertisements that would bring in more revenue by virtue of their longer
run-time. Id. Second, users could “be subjected to the blare of political propaganda.” Id.
Finally, the ban prevented any inference of favoritism “in parceling out the limited space to eager
politicians.” Id. In his concurrence in the judgment, Justice Douglas agreed—not because
political advertisements were especially objectionable, but because riders were a captive
audience. Id. at 307–08 (Douglas, J., concurring in the judgment).
Lehman predates modern public forum analysis, but the Supreme Court has incorporated
that decision into the modern fora framework. See Krishna, 505 U.S. at 678; Cornelius, 473
U.S. at 803–04. Although the Court recognizes that the Supreme Court issued a plurality opinion
in Lehman, the Court finds that Lehman remains valid and controls the facial viewpoint
58
discrimination outcome here.38 The D.C. Circuit, for instance, recently cited Lehman as
“Supreme Court precedent directly on point” in a case involving the Washington Metro Area
Transit Authority’s ban on “issue oriented advertising.” Am. Freedom Def. Initiative v. Wash.
Metro. Area Transit Auth., 901 F.3d 356, 368 (D.C. Cir. 2018) (rejecting facial viewpoint
discrimination claim because under Lehman “it is not facially viewpoint discrimination to ban
political advertising in a nonpublic forum”); Am. Freedom Def. Initiative, 698 F.3d at 888, 895
(upholding ban on “[p]olitical or political campaign advertising”); Children of the Rosary, 154
F.3d at 974, 980–81 (White, Retired Justice) (upholding advertising policy limiting acceptable
advertisements to “ speech which proposes a commercial transaction”); Lebron v. Nat’l R.R.
Passenger Corp., 69 F.3d 650, 654, 658 (2d. Cir. 1995) (upholding Amtrak’s unwritten policy of
not allowing political advertising on remand from the Supreme Court), opinion amended on
denial of reh’g en banc, 89 F.3d 39 (2d Cir. 1995)). At the very least, this long line of cases
provides a circumstance (or several given the multiple findings) “under which the law would be
valid.” Greater Balt. Ctr. for Pregnancy Concerns, Inc., 721 F.3d at 282 (alterations and citation
omitted). Because Lehman upheld a ban on political advertisements in “car card” interiors
(when evidence also covered exterior advertisements), the Court finds Lehman controlling.
2.
Mansky Does Not Control the Facial Viewpoint Discrimination Claim
Because it Considered a First Amendment Challenge Based on
Reasonableness in Light of the Purpose Served by a Different Type of
Nonpublic Forum: A Polling Place
White Coat contends that the Advertising Policy is facially unconstitutional as to
viewpoint because “[t]he Supreme Court’s recent decision in Mansky is directly on point and
38
The Supreme Court also favorably cited Lehman in support of the proposition that bus
advertisements are a nonpublic forum. See Mansky, 138 S. Ct. at 1885–86 (“[O]ur decisions
have long recognized that the government may impose some content-based restrictions on speech
in nonpublic forums, including restrictions that exclude political advocates and forms of political
advocacy.”)
59
consistent with a long line of cases striking down amorphous restrictions on speech on First
Amendment grounds.” (Mem. Supp. White Coat Mot. Summ J. 16–17.) White Coat argues that
these cases show that “GRTC’s political ad prohibition is unconstitutional because it fails to
‘articulate some sensible basis for distinguishing what may come in from what must stay out, and
is not capable of reasoned application.’” (Id. (quoting Mansky, 138 S Ct. 1888–89).) The Court
must reconcile Mansky and Lehman as to White Coat’s facial Viewpoint Discrimination claim.
The different forums at issue, evaluated under the applicable lenient reasonableness test,
countermands White Coat’s argument.
In Mansky, the Supreme Court considered whether Minnesota’s “political apparel ban”
preventing voters from wearing political insignia inside a polling place violated the Free Speech
Clause on reasonableness grounds. 138 S. Ct. at 1882–83. Because “the apparel ban ma[de] no
distinction based on the speaker’s political persuasion,” the only question was whether the ban
was facially “‘reasonable in light of the purpose served by the forum’: voting.” Id. at 1886
(quoting Cornelius, 473 U.S. at 806). By comparison, the purpose of the forum here is providing
mass transportation in the greater Richmond area as a public service corporation. (GRTC
Responses and Objections to Plaintiff’s First Set of Interrogatories.)
The Supreme Court concluded in Mansky that the law did not survive the reasonableness
test because of the “unmoored use of the term ‘political’ in the Minnesota law, combined with
haphazard interpretations the State has provided in official guidance and representations to this
Court.” 138 S. Ct. at 1888. Mansky did not consider a viewpoint discrimination claim, which
this Court confronts. Id. at 1886. Rather, Manksy considered whether a state’s ban on political
apparel at a polling pace was “reasonable in light of the purpose served by the forum: voting.”
Id. (internal quotation marks and citation omitted). The considerations for that nonpublic forum,
60
a polling place, differ from an evaluation of nature and characteristics of the nonpublic forum
here, a bus system. Because Mansky considered a First Amendment claim based on
reasonableness in a nonpublic forum that served a distinctly different purpose—voting versus
providing public transportation—the Court finds it distinguishable from the facial Viewpoint
Discrimination Claim White Coat raises here.
Given the recency of the Mansky decision, few courts have had the opportunity to apply
its reasoning to prohibitions on political advertisements. The findings conflict. The Courts of
Appeals for the District of Columbia and the Third Circuit, for instance, have considered Lehman
and Mansky in the public transit context and reach diverging conclusions. In American Freedom
Defense Initiative v. Washington Metropolitan Area Transit Authority, the Court of Appeals for
the District of Columbia rejected a facial viewpoint discrimination claim raised against a transit
system after the Supreme Court issued Mansky. 901 F.3d at 368. In a 2-1 decision, the D.C.
Circuit Court found that Lehman controlled the outcome of the plaintiff’s facial viewpoint
discrimination claim against a transit system. Although the D.C. Circuit Court remanded the
plaintiff’s reasonableness claim based on Mansky, the appellate court had “no trouble” rejecting
the facial viewpoint discrimination claim because “[t]here is Supreme Court precedent [Lehman]
almost directly on point.”39 Id.
White Coat’s argument that Mansky controls the outcome finds support in the United
States Court of the Appeals for the Third Circuit. (Notice Suppl. Authority, ECF No. 36.) In
Northeastern Pennsylvania Freethought Society v. County of Lackawanna Transit System, the
39
The dissent would have deemed the case non-justiciable because the plaintiffs in
American Freedom Defense Initiative did not amend their complaint based on the updated and
more specific guidelines and policy adopted after litigation commenced. 901 F.3d at 377–78.
Noting that the Mansky court observed that broad and indeterminate restrictions are more
difficult to uphold than “narrower, more ‘lucid’ restrictions,” the dissent counseled dismissal
over remand given the state of the record. Id. at 377.
61
plaintiff challenged a public transit system’s ban on religious and atheistic messages, which
applied to both interior and exterior advertisements. 938 F.3d 424, 428, 440 n.4 (3d Cir. 2019).
The Court of Appeals for the Third Circuit issued a 2-1 decision whose split reflects a reading
different from that of the D.C. Circuit. The majority cabined Lehman as “a narrow exception to
the general prohibition against subject-matter distinctions,” and remarked that, unlike in Lehman,
the captive audience concerns were not paramount because the court was considering exterior
advertisements. Id. at 440. The majority held that because the transit system’s “policy
discriminates based on viewpoint” it violated the First Amendment. Id. at 428. The dissent
disagreed, concluding that, applying Lehman and its progeny, the court should uphold the speech
restriction in the public transit context because the desire to avoid disruption on busses for
passenger safety provided an adequate connection between the forum’s purpose and the speech
limitation. Id. at 453 (Cowen, J., dissenting).
The split within and between these two appellate decisions demonstrates without question
that both sides of the Mansky and Lehman debate rest on persuasive arguments. As to the facial
viewpoint analysis, however, the Court concludes that Lehman controls the decision to ban
political advertisements in the public transit context. Here, GRTC “offers space on the interior
and exterior of its buses to advertisers.” (Mem. Supp. White Coat Mot. Summ. J. 1, ECF No.
29.) GRTC’s forum, particularly the interior advertising space (although subsequent courts have
included outside advertisements in the captive audience analysis), implicates the captive
audience concerns articulated in Lehman. GRTC also has a valid interest in its desire to avoid
potentially disruptive or controversial political advertisements from its vehicles. The Court
concludes that GRTC may lawfully consider the purpose of the nonpublic forum at issue here,
safe public transportation, when adopting its Advertising Policy.
62
In conducting its own analysis, the Court concludes that the difference between a polling
place and a transportation system commends application of Lehman rather than Mansky. The
Supreme Court has highlighted that the type of nonpublic forum at issue raises different
considerations. Transit systems, unlike spaces such as parks and sidewalks that have historically
been used for congregation and discussion, have a utilitarian purpose that governments are
entitled to maintain, at least where they have provided a non-speech-suppressive rationale for
regulation. Cornelius, 473 U.S. at 803–04, 806 (“A speaker may be excluded from a nonpublic
forum if he [or she] wishes to address a topic not encompassed within the purpose of the forum.”
(citing Lehman, 418 U.S. 298)). The Court of Appeals for the Ninth Circuit has recognized that
transit systems have legitimate safety concerns that may be considered when formulating an
advertising policy. See Seattle Mideast Awareness Campaign v. King Cty., 781 F.3d 489, 501
(9th Cir. 2015) (finding advertising restrictions constitutional where riders and drivers threatened
not to ride or drive, citing legitimate safety concerns generated by the negative reaction to
proposed advertisement). GRTC similarly contends that its intent in limiting political
advertisements on its transit system is to “not allow any of its transit vehicles or property to
become a public forum for dissemination, debate, or discussion of public issues.” (Mem. Supp.
GRTC Mot. Summ. J. 21, Ex. H Pace Dep. 35:4–18.) And GRTC asserts that its buses are
“moving billboards” and it possesses an interest in limiting “controversial and inflammatory
subject matter” that could endanger passengers. (Mem. Supp. GRTC Mot. Sum. J. 7.) While the
record evidence is not overwhelming, common sense suggests that these are cognizable and
valid, especially given the lenient reasonableness standard this Court must employ.40
40
The Court recognizes, as does White Coat, the substantial overlap between the
“reasonableness” standard and the “viewpoint discrimination” standard. For example, in Child
Evangelism, the Fourth Circuit determined that a state actor’s flyer policy violated the First
63
Mansky added more layers to First Amendment free speech jurisprudence, but absent
guidance from the Fourth Circuit, the Court agrees with the D.C. Circuit that, given the
analytical tie between the legal test and the forum to which it applies, Mansky did not change the
standard for facial viewpoint discrimination claims in the public transportation context. As the
Supreme Court of the United States has remarked, a “facial challenge . . . is, of course, the most
difficult challenge to mount successfully” and will succeed only if a litigant can “establish that
no set of circumstances exists under which the Act would be valid.” Salerno, 481 U.S. at 745.
While the Supreme Court recognized that legislative bodies “must be able to articulate some
sensible basis for distinguishing what may come in from what must stay out,” Mansky, 138 S. Ct.
at 1888, that does not render GRTC’s ban facially unconstitutional when it comes to viewpoint
discrimination.
As a result, the Court finds that Lehman and its progeny hold that public transit systems
do not engage in facial viewpoint discrimination when implementing a ban on political
advertising. The Court will grant GRTC’s Motion for Summary Judgment as to White Coat’s
facial Viewpoint Discrimination Claim. The Court turns next to White Coat’s Vagueness Claim.
F.
Vagueness Claim
White Coat contends that the Advertising Policy’s prohibition on political advertisements
is unconstitutionally vague both facially and as applied to White Coat. The Court first reviews
the specific analytical framework for vagueness claims.
Amendment on the basis of viewpoint discrimination because it did not “provide adequate
safeguards to protect against the improper exclusion of viewpoints.” 457 F.3d at 384 (emphasis
added). The failure to provide adequate safeguards against viewpoint discrimination also lay at
the heart of Mansky. 138 S. Ct. at 1891 (“Without [objective, workable standards] an election
judge’s own politics may shape his views on what counts as ‘political.’”)
64
1.
Legal Standard: First Amendment Vagueness Claims
“A statute can be impermissibly vague for either of two independent reasons. First, if it
fails to provide people of ordinary intelligence a reasonable opportunity to understand what
[speech] it prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory
enforcement.” Hill v. Colorado, 530 U.S. 703, 732 (2000) (citing City of Chicago v. Morales,
527 U.S. 41, 56–57 (1999)); see also Wag More Dogs Liab. Corp. v. Cozart, 680 F.3d 359, 370–
71 (4th Cir. 2012). An unconstitutionally vague statute or regulation “fails to give adequate
warning of what activities it proscribes or fails to set out ‘explicit standards’ for those who must
apply it.” Broadrick v. Oklahoma, 413 U.S. 601, 607 (1973) (quoting Grayned v. City of
Rockford, 408 U.S. 104, 108–14 (1972)). Thus, all First Amendment vagueness challenges—
whether facial or as applied—require the court to answer two questions: whether the restriction
gives a person reasonable opportunity to understand what it prohibits, and whether it creates a
threat of arbitrary enforcement.
The void for vagueness doctrine does not “hold legislators to an unattainable standard
when evaluating enactments in the face of vagueness challenges.” Wag More Dogs, 680 F.3d at
371. The Court “can never expect mathematical certainty from our language.” Id. (citing Hill,
530 U.S. at 733 (citation and internal quotations omitted in original)). The court instead “ask[s]
whether the government’s policy is ‘set out in terms that the ordinary person exercising ordinary
common sense can sufficiently understand and comply with.’” Id. (quoting Imaginary Images,
Inc. v. Evans, 612 F.3d 736, 749 (4th Cir. 2010)).
The limitations of language also mean that “[w]herever the law draws a line there will be
cases very near each other on opposite sides.” United States v. Wurzbach, 280 U.S. 396, 399
(1930). Imprecise language does not necessarily make a statute or regulation unconstitutionally
65
vague. “The precise course of the line may be uncertain, but no one can come near it without
knowing that he [or she] does so, if [that person] thinks.” Id. (citing Nash v. United States, 229
U. S. 373 (1913). “Dictionary definitions and old-fashioned common sense facilitate the
inquiry.” Wag More Dogs, 680 F.3d at 371 (citing Imaginary Images, 612 F.3d at 749; United
States v. Cullen, 499 F.3d 157, 163 (2d Cir. 2007)).
The void for vagueness doctrine applies to both criminal and civil regulations. See, e.g.,
City of Chicago, 527 U.S. 41 (overturning a criminal city ordinance as unconstitutionally vague);
see also, Broadrick, 413 U.S. 601 (considering a civil statute curtailing certain employees’ rights
to engage in political activity, ultimately finding it constitutional); Wag More Dogs, 680 F.3d
359 (city zoning laws); Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426 (4th Cir. 2013)
(school dress codes). The fact that a regulation requires interpretation does not make it vague.
Rose v. Locke, 423 U.S. 48, 49–50 (1975).
2.
The Advertising Policy is Unconstitutionally Vague As Applied to
White Coat Because the Record Shows Inconsistent and Arbitrary
Application
Despite the Advertising Policy’s avowal of consistent application and objective
enforcement, the Court finds the Advertising Policy unconstitutionally vague as applied because:
(1) the record shows a person of ordinary intelligence could not readily determine whether the
policy allows or prohibits advertisements similar to that proposed by White Coat; and, (2) the
record evinces arbitrary enforcement of the Advertising Policy as applied to White Coat.41
41
Mansky reviewed only a facial reasonableness claim (not an as-applied vagueness
challenge) because the parties agreed that the policy there was viewpoint neutral. 138 S. Ct. at
1886. As noted above, this two-part vagueness evaluation of objective reasonableness and
arbitrary enforcement mirrors the Fourth Circuit’s evaluation of unbridled discretion and
“sufficient criteria to prevent viewpoint discrimination.” Child Evangelism, 457 F.3d 376, 387;
see also Mansky, 138 S. Ct. at 1888 (citing Cornelius, 473 U.S. at 808–09) (the state “must be
66
The record demonstrates that a person of ordinary intelligence could not consistently
apply the ban on “political” advertisements when deciding to accept or reject White Coat’s
advertisement. Nor could one anticipate what is prohibited. No person of ordinarily intelligence
could know “what falls within, or may fall within” one of the prohibited categories such as the
ban on political advertising. (2013 Adver. Policy 1-2.)
At the outset, GRTC never defined the word “political” in the Advertising Policy, and
“there exist[s] no specific written guidance documents other than the Board minutes and the
policy itself.” (Mem. Supp. GRTC Mot. Sum. J. 7.) Additionally, GRTC’s definition of the
term “political” has changed several times over the course of the litigation. In its pleadings on
the Motion to Dismiss, GRTC relied on the first definition of “political” in Webster’s New
Collegiate Dictionary (the “Webster Definition): “of or relating to government, a government, or
the conduct of government.” (Mem. Supp. GRTC Mot. Dismiss 12–13, ECF No. 9 (quoting
Webster’s New Collegiate Dictionary 883 (1981)).) GRTC also mentioned additional
definitions: “concerned with the making as distinguished from the administration of
governmental policy” and “of, relating to, or involving politics and esp[ecially] party politics.”
(Id. at 12 n.3 (quoting Webster’s New Collegiate Dictionary 883 (1981)).) Yet the record shows
GRTC accepted advertisements that were expressly political in nature under the Webster
Definition. The advertisement for the Vice Presidential Debate is a “political” advertisement
because it is “of or relating to government . . . or the conduct of a government.” (Id. 12–13
(quoting Webster’s New Collegiate Dictionary 883 (1981)).) Moreover, the record clearly
able to articulate some sensible basis for distinguishing what may come in and why must stay
out”).
The overlap of tests again becomes apparent. A policy is less reasonable when the ban is
enforced on a haphazard or erratic basis. Mansky, 138 S. Ct. at 1888–90. And the attempt to
apply the policy on an evenhanded basis “must be guided by objective, workable standards.” Id.
at 1891.
67
demonstrates that a party submitting an advertisement to GRTC did not have notice of these
definitions.
During litigation, GRTC tried to clarify its definition. Perhaps recognizing that the
Supreme Court viewed the breadth of the Webster’s Definition of “political” with disfavor in
Mansky, GRTC abandons it on Summary Judgment. See 138 S. Ct. at 1888, 1890 (“Under a
literal reading of those definitions, a button or T-shirt merely imploring others to ‘Vote!’ could
qualify”). GRTC now defines political speech as that which “specifically expresses an
identifiable viewpoint” and only that viewpoint and defines a political action group as one that
engages in “‘specific targeted policy advocacy’ that is related to only one side of political issue.”
(Mem. Supp. GRTC Mot. Sum. J. 21) (quoting Pace Dep. 37:19–22)). In doing so, GRTC
appears to change its definition of “political” to “partisan,” where partisan reflects what GRTC
deems to be controversial.42 GRTC does not advance its case by putting forth these varying
definitions which point toward the Advertising Policy’s lack of clarity and authorization of
arbitrary enforcement as applied to White Coat. Nothing suggests that the inconsistent decisions
stemmed from anything other than an attempt to apply an elusive policy, but the Court notes, as
the Supreme Court did in Mansky, that even the best-intentioned judgments run the risk of
inconsistency where discretion runs unguided “by objective, workable standards.” 138 S. Ct.
at 1891.
Given the evolving definition of “political” even before this Court, GRTC’s application
of the Advertising Policy “turn[s] in significant part on the background knowledge and media
42
Partisan means a supporter of a party, cause, or person. See Merriam-Webster
Dictionary (2020) (partisan, noun, “a firm adherent to a party, faction, cause, or person”)
(partisan, adjective, “feeling, showing, or deriving from strong and sometimes blind adherence to
a particular party, faction, cause, or person: exhibiting characterized by, or resulting from
partisanship”).
68
consumption of the particular [official] applying it.” Id. at 1890. In some circumstances,
GRTC’s Director of Communications admitted that interpreting the Policy varied based on her
level of familiarity with the content of the advertisement. (Pace Dep. 155–57.) When VCU
sought to run an advertisement promoting its contemporary art institute that seemed to advocate
for “Free Speech” and “Free Expression,” Pace relied on and adopted the perspective of her peer,
Anthony Carter, who presumably had familiarity with modern art. (Id. 156:7–19.) If either Pace
or Carter had determined that the advertisement was advocating for free speech or free
expression, then it would “not be viewpoint neutral advertising” and would violate the
Advertisement Policy. (Id. 157:3–4.) Pace undertook her website review and internal
verification without written protocol, meaning that no advertiser could know those actions
contributed to a rejection. As a result, the policy, as applied, would not provide a person of
ordinary intelligence a reasonable opportunity to understand what speech it prohibits.
In addition to failing to inform a person of ordinary intelligence what speech is
prohibited, the record shows that the Advertising Policy allowed for arbitrary enforcement of the
ban on political advertisements as applied to White Coat. Here, GRTC rejected the White Coat
advertisement because Pace considered the organization an “animal cruelty related nonprofit,”
which was, in her opinion, “a political action group.” (Id. 36–37.) At nearly the same time,
GRTC allowed Gracie’s Guardians, a Pitbull rights group fighting against animal cruelty, to run
an advertisement specifically imploring the community to not “stand for cruelty” because Pace
did not “see . . . political action group information on [their website].” (Id. 191:5–6.) She
instead labeled Gracie Guardian’s advocacy for “spaying and neutering” to be a public service
announcement. Because the Advertising Policy requires GRTC officials to inquire into the past-
69
speech of anyone seeking to submit an advertisement, such investigations allowed arbitrary
application of the Policy.
Moreover, after GRTC rejected White Coat’s advertisement, White Coat sought
clarification from GRTC regarding its decision under the terms of the Advertising Policy.
GRTC did not offer White Coat any definition of “political,” but did suggest—without
explaining why—that the advertisement might run as a public service announcement if cosponsored by Richmond Animal Care and Control. This demonstrates not only arbitrary
enforcement, but also shows that White Coat was not on notice as to what was prohibited even
when they asked. Although Lehman supports GRTC’s argument that it may restrict certain
advertisements, that case also recognized that an advertising policy applied in an inconsistent and
arbitrary manner may violate the First Amendment. See 418 U.S. at 304 (“[T]he policies and
practices governing access to the transit system’s advertising space must not be arbitrary,
capricious, or invidious”).
Because the record shows that, as applied to the decision to reject White Coat’s
advertisement while accepting other advertisements that were political in nature, the Advertising
Policy resulted in arbitrary enforcement and did not allow a person of ordinary intelligence to
readily determine what the ban on political advertising prohibited. As a result, the Court will
grant White Coat’s Motion for Summary Judgment with regard to its as-applied Vagueness
Claim.
3.
The Advertising Policy is Facially Constitutional under a Vagueness Analysis
The complications created by the intersecting standards applicable to this First
Amendment analysis becomes most evident when evaluating facially unconstitutional vagueness
of the GRTC Advertising Policy. This is largely true because one way in which a plaintiff may
70
establish facial vagueness is by demonstrating that “no set of circumstances exists under which
the law would be valid, or that the law lacks any plainly legitimate sweep.” Greater Balt. Ctr.
for Pregnancy Concerns, Inc., 721 F.3d at 282 (alterations omitted). A “facial challenge . . . is
. . . the most difficult challenge to mount successfully” and will succeed only if a litigant can
“establish that no set of circumstances exists under which the Act would be valid.” Salerno, 481
U.S. at 745.
The consistent application of Lehman to First Amendment review of advertising in public
transportation systems—finding a ban on political advertising facially constitutional—delivers
an incontrovertible circumstance (or set of instances examined in a line of cases) under which
GRTC’s Advertising Policy “would be valid.” With Lehman and its progeny intact,43 the Court
cannot deem GRTC’s policy facially unconstitutional on vagueness grounds. Simply put, a
significant number of courts continue to interpret Lehman as allowing bans on political
advertisements in busses or mass transit forums. Such a ban, then, becomes facially valid under
the law.
4.
Courts are Trending Toward a Thoughtful Application of the Facial
Vagueness Test Rather than Lehman When Evaluating Whether an
Advertising Ban in a Transit System is Facially Unconstitutional
Despite this binding precedent, and especially in the absence of Fourth Circuit guidance,
the Court recognizes that Lehman’s unbending application to assessing the constitutionality of
43
See, e.g., Am. Freedom Def. Initiative, 901 F.3d at 368 (rejecting facial viewpoint
discrimination claim because under Lehman “it is not facially viewpoint discrimination to ban
political advertising in a nonpublic forum”); Am. Freedom Def. Initiative, 698 F.3d at 888, 895
(upholding ban on “[p]olitical or political campaign advertising”); Children of the Rosary, 154
F.3d at 974, 980–81 (White, Retired Justice) (upholding advertising policy limiting acceptable
advertisements to “ speech which proposes a commercial transaction”); Lebron v. Nat’l R.R.
Passenger Corp., 69 F.3d 650, 654, 658 (2d. Cir. 1995) (upholding Amtrak’s unwritten policy of
not allowing political advertising on remand from the Supreme Court), opinion amended on
denial of reh’g en banc, 89 F.3d 39 (2d Cir. 1995)).
71
advertising bans on political advertisements in transit systems has come under challenge in the
forty-six years since Lehman came down. The challenges are grounded in strong First
Amendment jurisprudence with some logical force. Any court retains its obligation to determine
whether a state actor’s restriction on speech “on a case-by-case basis in light of the facts and
circumstances of each particular forum.” NAACP, 834 F.3d at 448.
So while there can be no debate that the Lehman plurality upheld a restriction on political
advertising in the public transit context, some courts have begun to recognize that “the fact that
Lehman upheld a policy of excluding political advertisements in public buses hardly determines
the [constitutionality] of such a restriction for all time.” Air Line Pilots Ass’n, Intern v. Dep’t of
Aviation of City of Chicago, 45 F.3d 1144, 1159 (7th Cir. 1995); see also Freethought Soc’y, 938
F.3d at 439–440 (“Lehman is ‘properly . . . viewed as [a] narrow exception[] to the general
prohibition against subject-matter distinctions.’” (quoting Consol. Edison Co. of N.Y. v. Pub.
Serv. Comm’n of N.Y., 447 U.S. 530, 539 (1980)).
The Fourth Circuit has not made such a finding. The Fourth Circuit allows courts to
strike down regulations as impermissibly vague under the longstanding test that articulates just
either of two reasons: “[f]irst, a regulation can fail to provide people of ordinary intelligence a
reasonable opportunity to understand what conduct it prohibits. Second, a regulation can
authorize or even encourage arbitrary and discriminatory enforcement.” Wag More Dogs, 680
F.3d at 370–71 (4th Cir. 2012) (internal quotation marks and citations omitted). Generally
speaking, “[s]triking down ordinances (or exceptions to the same) as facially void for vagueness
is a disfavored judicial exercise.” Schleifer by Schieffer v. City of Charlottesville, 159 F.3d 843,
853 (4th Cir. 1998).
72
But recently, some courts suggest that a “third related inquiry” emanating from the
Supreme Court in its 2018 Mansky decision exists: whether the discretion vested in a
government official to permit or prohibit speech is “guided by objective, workable standards.”
Am. Freedom Def. Initiative, 901 F.3d at 372. The D.C. Circuit Court remanded for a
determination whether the guideline is capable of reasoned application. Id. at 373. This
reasonableness query seems grounded on legitimate concerns raised by many courts. Invoking
considerations raised by the Fourth Circuit and others, the D.C. Circuit Court asked the district
court to determinate whether the guideline is capable of reasoned application or provides “no
meaningful constraint upon its exercise of the power to squelch” amounting to “unbridled
discretion.”44 Id. at 372.
Here, should the test of whether the Advertising Policy failed “to provide people of
ordinary intelligence a reasonable opportunity to understand what conduct it prohibits,” the
policy would signal facially vague unconstitutionality. Even though Mansky considered a
facial First Amendment challenge on reasonableness grounds, the analysis underscoring
reasonableness conceptually overlaps with the elements of a First Amendment vagueness
challenge. Mansky, like the Policy at issue here, involved a ban of anything deemed
“political.” As the Supreme Court explained in Mansky, the term “political” encompasses a
wide variety of speech, making it practically incapable of definition. 138 S. Ct. at 1888
(observing that the term “political” can encompass anything of or relating to government, a
government, or the conduct of governmental affairs, or anything of, relating to, or dealing
44
Echoing earlier observations by the Fourth Circuit, the D.C. Circuit observed that “the
overlap in analysis between unbridled discretion and vagueness is clear; both doctrines require a
court to determine whether a decisionmaker’s exercise of discretion in allowing or disallowing
speech is based upon objective and clear standards.” Am. Freedom Def. Initiative, 901 F.3d at
372. These interrelated analyses complicate First Amendment jurisprudence but not, as the
Fourth Circuit has noted, necessarily enough to reject the approach.
73
with the structure or affairs of government, politics, or the state). Similarly, in the case at
bar, without further guidance or explanation for decisionmakers or potential advertisers
interpreting the Policy, the term “political” may encompass a wide variety of speech, as
shown through White Coat’s hypothetical advertisements and the record before the Court.
GRTC’s Advertising Policy offers an unmoored use of the word “political” without
definition, and it offers no guidance whatsoever as to what “political,” “political action
group,” or “public service announcement” could encompass. No person of ordinary
intelligence could understand what speech the Policy prohibits.
Similarly, the Policy could authorize arbitrary enforcement. For instance, to
determine what may be deemed political GRTC officials attempt to learn more about the
sponsoring organization before accepting or rejecting an advertisement. However, an
official’s unchecked subjective determination of both a “political ad” or a “political action
group” can result in arbitrary enforcement of the Policy. White Coat proffered hypothetical
advertisements to suggest what the Advertising Policy might preclude, such as whether “No
Army” or “Go Army” advertisements would be permissible, or whether a commercial
advertisement from Walmart.com might trigger “political” concerns. These hypothetical
advertisements reveal the unbridled discretion that decisionmakers for GRTC may exercise
when categorizing an advertisement as political or nonpolitical, without allowing an
ordinary person to understand what may be excluded. As a result, the Court sees this policy
as possibly unconstitutionally vague on its face.
And even Lehman upheld the city’s restriction on political advertisements while also
recognizing that the city must not limit advertisements in an arbitrary, capricious, or
invidious manner. 418 U.S. at 303–04. In so doing, the Supreme Court expressly recognized
74
that an advertising policy applied in an inconsistent and arbitrary manner might violate the First
Amendment. Id. at 304. This case, then, does not necessarily present the same question as
Lehman, but an application that the Lehman plurality foresaw but left open.
While the Court sees the lack of guidance on what advertisers or officials alike may deem
political, it is nonetheless bound to follow Lehman in finding that the Policy at bar is not facially
unconstitutional as vague. For these reasons, the Court will grant GRTC’s Motion for
Summary Judgment as to its facial Vagueness Claim.
VI. Injunctive Relief
Because the Court finds the Advertising Policy constitutional on its face, it will not
grant White Coat’s request for declaratory relief. Because the Court finds the Advertising
Policy unconstitutional as applied to White Coat, the Court will grant White Coat’s request
for injunctive relief.
Federal Rule of Civil Procedure 65(d)(1)(C) requires that every order granting an
injunction “describe in reasonable detail . . . the act or acts restrained or required.” Fed. R.
Civ. P. 65(d)(l )(C). “The rule expressly proscribes the issuance of an injunction which
describes the enjoined conduct by referring to another document. This is more than a
technical requirement; its purpose is to give notice of the acts prohibited.” Thomas v. Brock,
810 F.2d 448, 450 (4th Cir. 1987).
Consistent with this Memorandum Opinion, the Court will grant injunctive relief to
White Coat and enjoin GRTC from inconsistently accepting and rejecting advertisements, as
applied to White Coat, that may be considered political in contravention to the terms of its
Advertising Policy.
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