749 F.2d 893 (D.C. Cir. 1984), 84-5189, Lebron v. Washington Metropolitan Area Transit Authority

Docket Nº:84-5189.
Citation:749 F.2d 893
Case Date:December 14, 1984
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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749 F.2d 893 (D.C. Cir. 1984)

Michael A. LEBRON, Appellant,



No. 84-5189.

United States Court of Appeals, District of Columbia Circuit

December 14, 1984

Argued May 29, 1984.

Donald Weightman, Washington, D.C., with whom Alan J. Roth, Washington, D.C., was on brief, for appellant. Nancy E.

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Wiegers, Washington, D.C., also entered an appearance for appellant.

Thomas Fortune Fay, Olney, Md., with whom John C. Swanson, Washington, D.C., was on brief, for appellee.

Arthur B. Spitzer, Washington, D.C., was on brief for amicus curiae, American Civil Liberties Union of the Nat. Capital Area, urging reversal.

Before BORK, SCALIA, and STARR, Circuit Judges.

Opinion for the Court filed by Circuit Judge BORK.

BORK, Circuit Judge.

This case arose when the Washington Metropolitan Area Transit Authority ("WMATA" or "Authority") refused to lease display space in its subway stations to Michael A. Lebron, who sought to display a poster critical of the Reagan administration. WMATA refused because in its judgment Mr. Lebron's poster is "deceptive." Mr. Lebron then sued to enjoin WMATA from violating the rights guaranteed him by the first and fourteenth amendments to the Constitution and to compel the Authority to let him display his poster. He also sought damages. The district court denied Mr. Lebron relief, agreeing with WMATA that the poster is "deceptive and distorted" and therefore not protected by the first amendment. A motions panel of this Court ordered WMATA to show the poster pending this appeal. We reverse the judgment for WMATA.


WMATA was established through a congressionally approved interstate compact to improve public transportation in the Washington, D.C. metropolitan area. One way in which the Authority raises revenue is by leasing the free-standing dioramas inside subway stations for use as advertising space. WMATA accepts both public service and commercial advertisements, although there is a fee difference based upon the type of advertisement. 1 Submitted advertisements are evaluated by WMATA's Director of Marketing, John E. Warrington, based upon guidelines set by the Authority's Board of Directors. Guideline No. 2 states, in part, that "[a]ll copy and artwork should avoid conveying derisive, exaggerated, distorted, deceptive or offensive impressions." Plaintiff's Exh. 3, included in Record Excerpts ("R.E."), as Exhibit A. WMATA has in the past rented display space to groups seeking to convey messages of public interest and about candidates for local political office. 2 Lebron v. Washington Metropolitan Area Transit Authority, 585 F.Supp. 1461 at 1465 (D.D.C.1984) ("Mem. op.").

In October of 1983, Mr. Lebron, an artist from New York City, asked to rent diorama space to display a political poster. The poster contains text transposed over and below a photomontage. The left side of the photomontage depicts President Reagan and a number of administration officials seated at a table laden with food and drink. All the men are smiling or laughing and President Reagan is pointing to the right side of the poster. Standing on the right side, looking towards the President with expressions of hostility or sullenness, are a number of casually dressed men and women, some of whom are members of racial minorities. Were the photomontage taken to be a single photograph, the President and his men would appear to be laughing at those on the opposite side of the

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poster. At the top of the poster, emblazoned in yellow (in contrast to the black and white of the photomontage), is the caption "Tired of the JELLYBEAN REPUBLIC?" The bottom of the poster presents text critical of the Reagan administration's policies. The poster is plainly political and was "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." Mem. op. at 1463. Mr. Lebron offered to place on the poster the following disclaimer:

The photographic montage appearing here is a composite, and does not represent an actual encounter between or among the persons depicted. The views expressed are solely those of the author and artist, Michael Lebron, and are not to be attributed to any of the persons depicted hereon, Metro, its employees, TDI, or its employees.

Complaint p 24. He proposed to place this disclaimer in small print in the lower right hand corner of the photomontage.

The preproduction version of the poster Mr. Lebron sent to WMATA's subcontractor for marketing, TDI-Winston Network, Inc., 3 was forwarded to Mr. Warrington, who rejected the poster on the ground that it did not satisfy WMATA's guidelines. R.E. at Exh. A. Mr. Lebron's counsel requested reconsideration and, after consultation with WMATA's counsel, Mr. Warrington reversed his earlier decision and approved the advertisement. 4

Concerned about his change of position, Mr. Warrington told WMATA's General Manager about the poster. The General Manager convened a meeting of selected WMATA personnel to discuss the issue, and this group unanimously found the picture deceptive. After this meeting Mr. Warrington informed Mr. Lebron's counsel that "a broader representative group" had determined that the poster "so clearly violate[s] the guidelines ... that the request must be turned down." Letter from John E. Warrington to Donald Weightman (Jan. 3, 1984); R.E. at Exh. E. This decision, according to the trial court, was not based upon the poster's political message but on the group's judgment that the photomontage was distorted and deceptive. Mem. op. at 1464, 1465.

Mr. Lebron sought preliminary relief on the grounds that WMATA's actions violated 42 U.S.C. Sec. 1983 (1982) and the first amendment. The district court denied a temporary restraining order on the following day, finding no irreparable injury. The parties agreed to consolidate the motion for a preliminary injunction with trial on the merits. Mem. op. at 1462.

After trial the court held that Mr. Lebron's constitutional rights had not been violated and that the regulation was valid. Specifically, the court found that WMATA had not evaluated the content of the photomontage and rejected it because of its political message. Rather, "WMATA permissibly concluded that the photomontage is deceptive and distorted since it depicts an apparent event which actually did not occur." Mem. op. at 1464 (footnote omitted). 5

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The district court also upheld the guideline that prohibited deceptive advertising as a reasonable time, place and manner regulation. Mem. op. at 1467. The court found that WMATA's interest in preventing purposeful deception and its proprietary interest in raising revenue from its advertising space justified the imposition of the restraint.


There is no doubt that the poster at issue here conveys a political message; nor is there a question that WMATA has converted its subway stations into public fora by accepting other political advertising. Mem. op. at 1465; see Gay Activists Alliance v. WMATA, 5 Media L.Rep. (BNA) 1404, 1406-09 (D.D.C.1979). See also Perry Education Ass'n v. Perry Local Educator's Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983). 6 Because WMATA, a government agency, tried to prevent Mr. Lebron from exhibiting his poster "in advance of actual expression," Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 553, 95 S.Ct. 1239, 1243, 43 L.Ed.2d 448 (1975), WMATA's action can be characterized as a "prior restraint," id., which comes before us bearing a presumption of unconstitutionality. E.g., Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963) (citing cases). Subject to a limited number of exceptions--most notably, reasonable time, place and manner regulations--political speech may not constitutionally be restricted in a public forum. This case does not come within those exceptions and accordingly we reverse the district court and hold that WMATA violated the plaintiff's first amendment right of free speech.


WMATA's refusal to accept this poster for display because of its content is a clearcut prior restraint. Here, WMATA has by official action prevented Mr. Lebron from using a public forum to say what he wants to say. Southeastern Promotions, 420 U.S. at 553, 95 S.Ct. at 1243. As such, WMATA "carries a heavy burden of showing justification for the imposition of such a restraint." Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1577, 29 L.Ed.2d 1 (1971). See New York Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 2141, 29 L.Ed.2d 822 (1971) (per curiam). We impose this burden on public officials because of "[o]ur distaste for censorship--reflecting the natural distaste of a free people--[which] is deep-written in our law." Southeastern Promotions, 420 U.S. at 553, 95 S.Ct. at 1243. As Chief Justice Burger has recently reminded us, however, "to say the [guideline] presents a First Amendment issue is not necessarily to say that it constitutes a First Amendment violation." Metromedia, Inc. v. San Diego, 453 U.S. 490, 561, 101 S.Ct. 2882, 2920, 69 L.Ed.2d 800 (1981) (Burger, C.J., dissenting). All prior restraints are not per se unconstitutional, Southeastern Promotions, 420 U.S. at 558, 95 S.Ct. at 1246, for "[i]t has been clear since [the Supreme] Court's earliest decisions concerning the freedom of speech that the state may sometimes curtail speech when necessary to advance a significant and legitimate state interest." Members of the City Council of Los Angeles v. Taxpayers for Vincent, --- U.S. ----, 104 S.Ct. 2118, 2128, 80 L.Ed.2d 772 (1984) (citation omitted).

The asserted governmental interests served by Guideline No. 2 are "WMATA's responsibility to the public in preventing purposeful deceptions" and its "proprietary

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