Act Now to Stop War & End Racism Coal. v. District of Columbia, 07–cv–1495 (RCL).

• Decision Date: 29 November 2012
• Docket Number: No. 07–cv–1495 (RCL).,07–cv–1495 (RCL).
• Citation: 905 F.Supp.2d 317
• Parties: ACT NOW TO STOP WAR AND END RACISM COALITION, et al., Plaintiffs, v. The DISTRICT OF COLUMBIA, Defendant.
• Court: U.S. District Court — District of Columbia

905 F.Supp.2d 317

ACT NOW TO STOP WAR AND END RACISM COALITION, et al., Plaintiffs,

v.The DISTRICT OF COLUMBIA, Defendant.

No. 07–cv–1495 (RCL).

United States District Court,

District of Columbia.

Nov. 29, 2012.

Held Unconstitutional

D.C. Mun.Regs. tit. 24, §§ 108.6, 108.11, 108.13.

Carl L. Messineo, Mara E. Verheyden–Hilliard, Partnership for Civil Justice Fund, Washington, DC, for Plaintiffs.

Andrew J. Saindon, D.C. Office of Attorney General, Washington, DC, for Defendant.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, Chief Judge.

The Court considers whether the fourth iteration of the District of Columbia's law regulating the posting of signs on lampposts passes First Amendment muster. The law's most recent version treats signs relating to an “event” differently from “non-event” signs when determining how long the signs may remain posted. The District has amended the law twice since this Court's last substantive opinion. While these amendments bring the law closer to constitutionality, the District has not properly explained the event/non-event distinction, and has added a definition of “event” that explicitly delegates broad administrative discretion to enforcement officers. Therefore the plaintiff is entitled to summary judgment.

I. BACKGROUNDA. Early History of the Case

From 1980 until the filing of this suit in 2007, the rules for posting on the District's lampposts exempted campaign and public safety signs from the generally-applicable durational limits, and required that campaign posters be removed within thirty days after the general election. At the time, the law stated:

108.5: A sign, advertisement, or poster shall not be affixed for more than sixty (60) days, except the following:

(a) Signs, advertisements, and posters for individuals seeking political office in the District ...; and (b) Signs designed to aid in neighborhood protection from crime shall be exempt from the sixty (60) day time period.

108.6: Political campaign literature shall be removed no less than thirty (30) days following the general election.

108.7: Each sign, advertisement, or poster shall contain the date upon which it was initially affixed to a lamppost.

108.8: Each sign, advertisement, or poster shall be affixed securely to avoid being torn down or disengaged by normal weather conditions.

108.9: Signs, advertisements, and posters shall not be affixed by adhesives that prevent their complete removal from the fixture, or do damage to the fixture.

108.10: No more than three (3) versions or copies of each sign, advertisement, or poster shall be affixed on one (1) side of a street within one (1) block.

108.11: Within twenty-four (24) hours of posting each sign, advertisement, or poster, two (2) copies of the material shall be filed with an agent of the District of Columbia so designated by the Mayor. The filing shall include the name, address, and telephone number of the originator of the sign, advertisement, or poster.

24 D.C. Code Mun. Regs.§ 108 (1980).

In the summer of 2007, Act Now to Stop War and End Racism Coalition (“ANSWER”)—a “grassroots civil rights organization which seeks to engage the public in communications opposing war and racism, among other issues,” Affidavit of Brian Becker 1–2, Mar. 14, 2008, ECF No. 11–1 (“ANSWER Affidavit”)—posted signs advertising its September 15th “March to Stop the War” on public lampposts and electrical boxes throughout the city. The District cited ANSWER for numerous violations of § 108.9, the provision regarding the use of adhesives. See Ex. 1 to Def.'s First Mot. Dismiss, Feb. 6, 2008, ECF No. 8–1 (reproducing four Notices of Violation, all referencing § 108.9). ANSWER contested the tickets before the District's Office of Administrative Hearings (“OAH”).

In addition to its claims before the OAH, ANSWER challenged the District's postering regulations in this Court. Compl., Aug. 21, 2007, ECF No. 1. Unlike in the administrative proceeding, ANSWER sued in federal court with a co-plaintiff, Muslim American Society Freedom Foundation (“MASF”), which “focuses on empowering the Muslim–American community through civic education, participation, community outreach, and coalition building including First Amendment assemblies in opposition to war and in support of civil rights.” Affidavit of Imam Mahdi Bray, Mar. 14, 2008, ECF No 11–2 (“MASF Affidavit”).

In their complaint, the plaintiffs alleged that the regulations were facially unconstitutional because they contained improper content-based distinctions in violation of the First Amendment, First Am. Compl. ¶¶ 7–8, Dec. 18, 2007, ECF No. 3; were unconstitutionally vague and overbroad, id. ¶¶ 42–44; violated plaintiffs' right to anonymous speech, id. ¶ 39; and imposed a strict liability regime that violated plaintiffs' due process rights, id. ¶¶ 25–34. Both plaintiffs submitted affidavits explaining that they had refrained from posting signs on public lampposts in the manner they would prefer because of the regulations, and that they were suing on behalf of themselves and “all others engaged in civil rights advocacy” whose speech had been similarly “chilled.” MASF Affidavit 1–2; ANSWER Affidavit 1–2.

The District moved to dismiss the complaint. Def.'s First Mot. Dismiss, Feb. 6, 2008, ECF No. 8. The District argued, among other theories, that MASF lacked standing because it suffered no injury from the regulations, id. at 14–20, and that the Court should abstain from adjudicating ANSWER's claims under the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), because ANSWER could present its constitutional claims through the administrative proceedings at the OAH. Def.'s First Mot. Dismiss 4–8. The Court agreed with both arguments and granted the District's motion to dismiss. Act Now to Stop Racism and End War Coal. v. Dist. of Columbia ( ANSWER I ), 570 F.Supp.2d 72 (D.D.C.2008). Plaintiffs appealed.

On November 2, 2009—shortly before the United States Court of Appeals for the District of Columbia Circuit heard oral arguments—the District's Department of Transportation (“Department”) issued a Notice of Emergency and Proposed Rulemaking revising the poster rules. D.C. Mun. Regs. tit. 56, §§ 8759–60 (Nov. 6, 2009). The new rules allowed:

all signs that are not lewd, indecent, or vulgar, or do not pictorially represent the commission of or the attempt to commit any crime to be posted on a structure in public space for sixty (60) days, and a sign, advertisement, or poster related to a specific event may be affixed any time prior to an event but shall be removed no later than thirty (30) days following the event for which it is advertising or publicizing.

Id. at 8759. The Department explained that the emergency rulemaking was “necessitated by the immediate need to address the continuing threat to the public welfare posed by an unequal treatment of non-commercial advertising in the public space.” Id. The Department characterized the new regulations as “a technical amendment” that “removes a time limit distinction that exists between political and non-political advertising that has raised First Amendment concerns.” Id. The revised provisions, which became final on January 8, 2010, D.C. Mun. Regs. tit. 57, § 528 (Jan. 8, 2010), read as follows:

108.5: A sign, advertisement, or poster not related to a specific event shall be affixed for no more than sixty days.

108.6: A sign, advertisement, or poster related to a specific event may be affixed any time prior to the event but shall be removed no later than thirty (30) days following the event to which it is related.

24 D.C. Code Mun. Regs. §§ 108.5–108.6 (2011).

The Court of Appeals decided the case on grounds that did not require consideration of these new rules. The Court first reversed on the issue of MASF's standing. Judge Williams explained that MASF's affidavit “plainly indicat[ed] an intent to engage in conduct violating the 60–day limit” and that this qualified as the “credible statement by the plaintiff of intent to commit a violative act” that the D.C. Circuit had previously held to constitute standing in a First Amendment facial challenge. Act Now to Stop Racism and End War Coal. v. Dist. of Columbia ( ANSWER II ), 589 F.3d 433, 435 (D.C.Cir.2009) (quoting Seegars v. Gonzales, 396 F.3d 1248, 1253 (D.C.Cir.2005)).

The Court of Appeals also remanded on some of the claims by ANSWER that this Court had initially declined to consider under the Younger abstention doctrine. Judge Williams explained that “the district court appropriately abstained” on the claims related to § 108.9, the adhesive provision, which ANSWER had directly challenged in the OAH. Id. But on the other claims, the Court of Appeals held that “consistent with Younger, ANSWER may raise constitutional challenges in federal district court that are completely independent of and severable from the violations it is facing in the District's administrative proceedings.” Id.

With the case back before the Court, plaintiffs updated their complaint to account for the revised regulations. Suppl. Pleading, May 5, 2010, ECF No. 22–1. They maintained the claims that they had previously asserted, including their principal allegation that the regulations draw an unconstitutional, content-based distinction between signs carrying a general political message and signs related to political campaigns. Id. ¶ 4. While the new regulations replaced the explicit exception for signs posted in support of “individuals seeking political office” with a more general category for signs “related to a specific event,” plaintiffs argued that the District had “simply substituted a new set of unconstitutional content-based distinctions for the prior set of unconstitutional content-based distinctions.” Id.

Plaintiffs added two new counts in their supplemental pleading. First, in addition to facially challenging §§ 108.5–108.6 of the new regulations, they added an “as applied” challenge alleging that the provisions are improperly...