Act Now to Stop War v. District of Columbia, 08-7098.

• Citation: 589 F.3d 433
• Decision Date: 15 December 2009
• Docket Number: No. 08-7098.,08-7098.
• Parties: ACT NOW TO STOP WAR AND END RACISM COALITION and Muslim American Society Freedom Foundation, Appellants v. DISTRICT OF COLUMBIA, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

589 F.3d 433

ACT NOW TO STOP WAR AND END RACISM COALITION and Muslim American Society Freedom Foundation, Appellants v. DISTRICT OF COLUMBIA, Appellee.

No. 08-7098.

United States Court of Appeals, District of Columbia Circuit.

Argued November 10, 2009.

Decided December 15, 2009.

Appeal from the United States District Court for the District of Columbia (No. 1:07-cv-01495).

Carl Messineo argued the cause for appellants. With him on the briefs was Mara Verheyden-Hilliard.

David A. Hyden, Assistant Attorney General, Office of the Attorney General for

the District of Columbia, argued the cause for appellee. With him on the brief were Peter J. Nickles, Attorney General, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General.

Before: GARLAND, Circuit Judge, and WILLIAMS and RANDOLPH, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge WILLIAMS.

WILLIAMS, Senior Circuit Judge:

Plaintiff-appellants Act Now to Stop War and End Racism Coalition ("ANSWER") and Muslim American Society Freedom Foundation brought this action claiming that certain regulations of the District of Columbia Department of Transportation, governing the placement of posters in the District, violated the First Amendment and the Due Process Clause (presumably that of the Fifth Amendment, though plaintiffs do not say). The district court dismissed the suit, finding that the Foundation lacked standing to challenge the regulations because its alleged injury amounted at most to "subjective `chill.'" Act Now to Stop War & End Racism Coal. v. District of Columbia, 570 F.Supp.2d 72, 77-78 (D.D.C.2008) (quoting Laird v. Tatum, 408 U.S. 1, 13-14, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972)). As to ANSWER, the district court abstained under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), because the District has brought charges against ANSWER— now pending before the District of Columbia Office of Administrative Hearings—for violating aspects of the postering regulations it seeks to challenge in this suit. 570 F.Supp.2d at 74-75. We hold that the Foundation's allegations are adequate to support standing. The Younger issue is more complex, but in the end we conclude that a remand of ANSWER's claim is also in order.

The challenged regulations impose various limitations on individuals or groups that wish to affix noncommercial posters on public lampposts in the District. They provide that no more than three versions of each poster may be affixed on one side of a street block, D.C. Mun. Regs. tit. 24, § 108.10; that copies of posters and the name, address, and telephone number of the originator must be filed with the District shortly after posting, id. § 108.11; and that posters cannot be affixed by means that prevent their complete removal or that damage the fixture, id. § 108.9, which we'll call the "adhesive rule."

When ANSWER and the Foundation filed this suit, the regulations also required that most signs be removed within 60 days of posting, but imposed no time limit on "[s]igns designed to aid in neighborhood protection from crime"; the regulations also allowed political candidates seeking public office in the District to post signs at any time before the election as long as they removed signs within 30 days following the general election. Id. §§ 108.5, 108.6. Signs had to bear the date of posting, id. § 108.7, presumably to aid enforcement of these time limits. Shortly before this appeal was argued, the District's Department of Transportation issued an emergency rulemaking repealing the exemptions for political candidates and signs relating to "neighborhood protection from crime." Under rules substituted on an interim basis, all signs on public lampposts must be removed after 60 days, unless they are "related to a specific event," in which case they may be affixed any time prior to the event but must be removed within 30 days following the event. Notice of Emergency and Proposed Rulemaking, 56 D.C.Reg. 8759, 8759 (Nov. 6, 2009). The notice of rulemaking said that the purpose of the amendments was to remove the time limit distinction between political and non-political advertising "that has raised First Amendment concerns." Id.

Plaintiffs' principal claim before the district court was that the time limits in the original postering regulations impermissibly discriminated on the basis of content, by imposing shorter time limits for speech not related to political campaigns or crime prevention. They also claimed that the size of the penalties (fines of up to $2000 per violation, see D.C. Mun. Regs. tit. 24, § 1380.1; id. § 1312.1(a)), and what they characterize as the regulations' "strict liability" nature, chilled constitutionally protected speech; that liability for failure to print the date on which the sign was posted served no legitimate governmental interest; and that the regulations were vague and overbroad, and invited arbitrary application. They sought a declaration that the regulations were unconstitutional, an injunction against their enforcement, and attorneys' fees.

The district court found that the Foundation lacked standing to challenge the regulations because it did "not allege that it has planned to undertake any action which may violate the District's postering regulations." 570 F.Supp.2d at 78. But the Foundation had submitted an affidavit from its executive director stating that the Foundation "seeks to engage in postering . . . to the same extent as is afforded others, including those favored within the existing District of Columbia municipal regulation system," and moreover that it "must currently refrain from posting materials on public lampposts . . . in the same manner and with the same freedom as is allowed those whose speech pertains to neighborhood crime or whose speech supports a candidacy for elected office." We read this affidavit as plainly indicating an intent to engage in conduct violating the 60-day limit—but for the existence of the regulations.

While "subjective `chill' alone will not suffice to confer standing on a litigant bringing a pre-enforcement facial challenge to a statute allegedly infringing on the freedom of speech," Am. Library Ass'n v. Barr, 956 F.2d 1178, 1194 (D.C.Cir.1992), imminent threats commonly suffice. We implied in Seegars v. Gonzales, 396 F.3d 1248 (D.C.Cir.2005), that standing to challenge laws burdening expressive rights requires only "a credible statement by the plaintiff of intent to commit violative acts and a conventional background expectation that the government will enforce the law." Id. at 1253. Allowance of standing in such a case appeared essential to reconcile our decision in Navegar, Inc. v. United States, 103 F.3d 994 (D.C.Cir.1997), on the one hand, with Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979), and many like standing cases, on the other. Seegars, 396 F.3d at 1251-54; see also Ord v. District of Columbia, No. 08-7094, 2009 WL 4408200, at *13 (D.C.Cir. Dec. 4, 2009) (noting that Navegar imposes a more demanding standard than United Farm Workers). As in Navegar, the Seegars plaintiffs posed a "preenforcement challenge[] to a criminal statute not burdening expressive rights and not in the form of appeal from an agency decision," 396 F.3d at 1253 (emphasis added), so Navegar's more demanding rule applied, id. at 1253-54.

But here we are confronted with a challenge to a state regulation that is claimed to burden expressive freedom, a credible statement of intent to engage in violative conduct, and somewhat more than the "conventional background expectation that the government will enforce the law." 396 F.3d at 1253. The District has in fact brought an enforcement action against ANSWER for violations of the postering rules. And the affidavit by the Foundation's executive director plainly qualifies, at the stage of a motion to dismiss, as "a credible statement . . . of intent to commit violative acts." Seegars, 396 F.3d at 1253; cf. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ("[E]ach element [of standing] must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation."). We therefore must remand the Foundation's claims for further consideration.

With respect to ANSWER, the district court reasoned that Younger abstention was appropriate because of ANSWER's involvement in administrative hearings before the District, in which it can raise its federal constitutional claims as defenses. 570 F.Supp.2d at 75. Younger abstention is appropriate only when several requirements are met: "[F]irst, a federal court may dismiss a federal claim only when there are ongoing state proceedings that are judicial in nature;...