585 F.Supp. 1461 (D.D.C. 1984), Civ. A. 84-78, Lebron v. Washington Metropolitan Area Transit Authority

Docket Nº:Civ. A. 84-78
Citation:585 F.Supp. 1461
Party Name:Lebron v. Washington Metropolitan Area Transit Authority
Case Date:March 21, 1984
Court:United States District Courts, District of Columbia

Page 1461

585 F.Supp. 1461 (D.D.C. 1984)

Michael A. LEBRON, Plaintiff,



Civ. A. No. 84-78.

United States District Court, District of Columbia.

March 21, 1984

Page 1462

Donald Weightman, Washington, D.C., for plaintiff.

John Swanson, Washington, D.C., for defendant.


STANLEY S. HARRIS, District Judge.

Michael A. Lebron brought this action seeking declaratory and injunctive relief and damages against the Washington Metropolitan Area Transit Authority (WMATA). WMATA initially accepted, but later rejected, a political advertisement or poster which Mr. Lebron wishes to display in eight of WMATA's subway stations. (Plaintiff's Ex. 1.) This Court has jurisdiction of the complaint pursuant to 28 U.S.C. §§ 1331 and 1343 (Supp. III 1979) as Mr. Lebron alleges that the actions of WMATA violate his rights under the First and Fourteenth Amendments and under 42 U.S.C. § 1983 (Supp. III 1979). Mr. Lebron's common-law claims of breach of contract and tortious interference "with his prospective personal, professional and commercial interest in displaying his artistic and political advocacy advertising poster ..." are within this Court's jurisdiction under pendent jurisdiction. (Amended Complaint at 2.)

On January 11, 1984, the Court denied Mr. Lebron's motion for a temporary restraining order, finding no irreparable injury. The parties agreed to a consolidated hearing on the motion for a preliminary injunction and a trial on the merits pursuant to Fed.R.Civ.P. 65(a)(2).

The Court has considered the testimony of the witnesses, the exhibits, and the pleadings and arguments of counsel. The Court's findings of fact and conclusions of law follow.

I. Findings of Fact

1. WMATA was created in 1966 through a congressionally approved interstate compact. WMATA's purpose is improving

Page 1463

public transportation in the metropolitan area. District of Columbia Code § 1-2431 (1981).

2. WMATA leases advertising space for the interiors of its subway stations. These spaces are the free-standing dioramas on the passenger platforms.

3. Both public service and commercial advertisements are accepted for these dioramas, although there is a fee difference between the two types of advertisements. (Testimony of Mr. John Warrington, WMATA's Director of Marketing (Tr. Warrington), at 56-57.)

4. All submitted advertisements are evaluated using guidelines which have been adopted by the WMATA Board of Directors. (Defendant's Ex. 1; Tr. Warrington at 41.) The evaluation is made by Mr. Warrington applying these guidelines. (Tr. Warrington at 82.)

5. Mr. Lebron works as a mechanical artist in New York City. He also creates political and satirical works of commentary and art on his own time. His works have been displayed in art galleries and the New York City subway system. (Testimony of Mr. Lebron (Tr. Lebron) at 12, 15.)

6. The poster at issue expresses Mr. Lebron's political beliefs and is a political advertisement. Mr. Lebron wants to display it in an effort to have an impact on the upcoming Presidential election. (Tr. Lebron at 11-12, 32-33.)

7. The advertisement combines text and a photographic montage. The left side of the photomontage depicts President Reagan, certain members of his Cabinet, and other high government officials. They are seated at a table. They are laughing and the President is made to appear to be simultaneously pointing at a group of persons on the right side of the picture. It is not clear from either the record or the picture whether that group is a single photograph or itself a montage of separate pictures. The group on the right consists of men and women, some of whom are minorities, all of whom are somber in both dress and appearance, and who are characterized by the plaintiff as unemployed. 1 (Tr. Lebron at 22-23.) Some of the facial expressions of the people on the right side may be characterized as sullen or hostile.

8. Mr. Lebron testified that he thought it would be "funny" to juxtapose the pictures which he had seen separately into a single photo-montage. (Tr. Lebron at 22-23.)

9. Mr. Lebron was attempting to make a statement about what he perceives to be the President's alleged concern about the well-being of working people and the ability of businessmen to raise capital for making investments. The advertisement is intended to convey Mr. Lebron's belief about the manner in which certain segments of the American population have reacted to the effects of the Reagan Administration's policies on them. (Tr. Lebron at 22.)

10. This exact poster had been displayed sometime during late 1982 or early 1983 at a number of New York City galleries and the New York Book Fair, and in the New York City subway system. 2 (Tr. Lebron at 17, 19, 24.)

11. In October 1983, Mr. Lebron submitted his request to WMATA to rent diorama space for displaying his advertisement. (Tr. Lebron at 31.) Mr. Warrington rejected the advertisement in November 1983, finding that it did not meet WMATA Guideline No. 2, which states in part that "[a]ll copy and art should avoid conveying derisive, exaggerated, distorted, deceptive or offensive impressions." (Defendant's Ex. 1; Plaintiff's Ex. 3.) Mr. Warrington found the photomontage to be distorted

Page 1464

and deceptive, and rejected it on that basis. He did not reject the advertisement based upon the text of its copy. (Tr. Warrington at 43-44, 59.)

12. Counsel for Mr. Lebron wrote WMATA requesting reconsideration of this decision in November 1983. (Plaintiff's Ex. 4.)

13. Mr. Warrington then met with WMATA's General Counsel. Based on the latter's advice, which was predicated at least in part on WMATA's limited litigation resources, Mr. Warrington reversed his earlier decision and approved the advertisement in December 1983. (Plaintiff's Ex. 5; Tr. Warrington at 45-46.)

14. In October 1983, counsel for Mr. Lebron had offered to place a disclaimer on the poster. The disclaimer states in part that the photographic montage is a composite and does not represent an actual encounter between the persons depicted. (Amended Complaint ¶ 24 at 9; Plaintiff's Ex. 2.) However, the disclaimer would appear in small print at the bottom of the photomontage in the right-hand corner thereof. (Plaintiff's Ex. 1.)

15. Mr. Warrington was concerned about the reversal of positions on the advertisement's acceptability and decided to bring the issue to the attention of WMATA's General Manager. (Tr. Warrington at 46, 64.) The General Manager convened a meeting of selected WMATA personnel to discuss the advertisement. (Tr. Warrington at 46, 62, 64.) The group unanimously found the picture to be deceptive. (Tr. Warrington at 63, 66.)

16. Following that meeting, Mr. Warrington wrote to counsel for Mr. Lebron informing him about the meeting and advising him that Mr. Lebron could not rent the advertising space. (Plaintiff's Ex. 6; Tr. Warrington at 65.)

17. In the past, WMATA has rented subway advertising space for political and social commentary advertisements covering a broad spectrum of political views and ideas. (Defendant's Ex. 3; Tr. Warrington at 53-55.)

18. WMATA treated the entire advertisement as a single entity because the copy appearing on the bottom half and the artwork comprising the top half were submitted as such. (Tr. Warrington at 59.) The copy alone probably would have been accepted; it did not trouble WMATA. The advertisement was not rejected because of its political message. WMATA does not review the content of a political advertisement in deciding whether to accept or reject it. (Tr. Warrington at 47, 61-62.)

19. WMATA permissibly concluded that the photomontage is deceptive and distorted since it depicts an apparent event which actually did not occur. 3

20. The disclaimer would not effectively prevent passersby from being deceived into believing that the portrayed derisive confrontation actually did occur. 4 The disclaimer

Page 1465

could be read only if a subway passenger took the time to stop and study the entire advertisement at close range. (Tr. Warrington at 71.) The print size and placement of the disclaimer would not provide adequate notice that the event supposedly being depicted in fact had not occurred. 5

21. WMATA previously displayed an advertisement which was critical of the Reagan Administration's Central America policy. It pictured children behind a fence in an inset, and soldiers with rifles. WMATA would have rejected the advertisement as deceptive if the photographs had been arranged instead so that the soldiers (presumably American) were shown aiming their rifles at the children behind the fence. (Defendant's Ex. 2; Tr. Warrington at 50-51, 77.)

22. This is the first time WMATA has rejected an advertisement with a picture and/or text about politicians. (Tr. Warrington at 79.)

II. Conclusions of Law

It is undisputed by the parties that the subway stations constitute public fora for First Amendment purposes. They also agree that WMATA engages in state action when leasing the interior advertising spaces. Amended Complaint¶ 36 at 13; Opposition to Motion for Preliminary Injunction at 2; Gay Activists Alliance v. WMATA, 5 Med.L.Rptr. 1404, 1406-07 (D.D.C.1979); see also Lehman v. City of Shaker Heights, 418 U.S. 298, 303, 94 S.Ct. 2714, 2717, 41 L.Ed.2d 770 (1974) (leasing of advertising space on public buses constitutes state action although that commercial function is incidental to providing public transportation). The existence of state action means that "the policies and practices governing access to the transit system's advertising space must not be arbitrary, capricious, or invidious." Lehman, supra, at 303, 94 S.Ct. at 2717.

Access to the Advertising Space

A. WMATA's Decision Was Not Based on the Subject Matter or Content of the Advertisement

The Court readily agrees with Mr. Lebron's assertion that his political advertisement falls...

To continue reading