James v. Washington Metropolitan Area Trans. Auth., Civil No. PJM 08-2821.

• Decision Date: 11 August 2009
• Docket Number: Civil No. PJM 08-2821.
• Citation: 649 F.Supp.2d 424
• Parties: Peter JAMES, Plaintiff v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Defendant.
• Court: U.S. District Court — District of Maryland

Page 424

649 F.Supp.2d 424

Peter JAMES, Plaintiff v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Defendant.

Civil No. PJM 08-2821.

United States District Court, D. Maryland.

August 11, 2009.

Peter James, Germantown, MD, pro se.

Gerard J. Stief, Washington Metropolitan Area Transit Authority, Washington, DC, for Defendant.

AMENDED MEMORANDUM OPINION

PETER J. MESSITTE, District Judge.

Peter James brought this action against the Washington Metropolitan Area Transit Authority (WMATA), alleging violation of his rights of freedom of speech and association under the United States Constitution and the Maryland Bill of Rights.¹ See U.S. CONST. amend. I; MD. CONST. art. 40.

WMATA has filed a Motion to Dismiss, or, in the Alternative, Motion for Summary Judgment [Paper No. 13], asserting that James has failed to state a claim upon which relief can be granted. James contends, inter alia, that WMATA's regulation regarding free speech activities is unconstitutional on its face or as applied to him.

On October 24, 2008, the Court held a hearing on James' Motion for a Temporary Restraining Order, at which James testified, as did WMATA Police Sergeant James Holmes, a witness for WMATA and the only named WMATA employee with whom James had contact. The evidence offered at the hearing forms the basis for the Court's alternative grant of WMATA's Motion for Summary Judgment.

For the following reasons, WMATA's Motion to Dismiss is GRANTED. Alternatively, WMATA's Motion for Summary Judgment is GRANTED.

I.

James was a candidate for U.S. Congress in Maryland's Fourth District in the Fall of 2008. As part of his campaign, he sought to display campaign signs and distribute flyers in both the confined and open portions of WMATA (Metro) subway stations, as well as to speak about his candidacy to commuters entering and exiting the Metro stations. James alleges that, on at least five separate occasions, WMATA employees prevented him from campaigning effectively in and around Metro subway stations. Specifically, he contends that these employees used intimidation and threats of arrest to prevent him from hanging campaign signs, distributing fliers, displaying free-standing signs, and speaking to commuters.

WMATA admits to removing a large campaign banner that James had affixed to a railing adjacent to the sidewalk outside a Metro station, but disputes all the other conduct alleged. It claims that any actions taken by its employees were taken pursuant to the WMATA Use Regulation, which regulates free speech activity on WMATA property. The Use Regulation prohibits, among other activities, the display of signs larger than 18" x 18", the affixing of any material to WMATA property, and any free speech activities in the below-ground, paid areas of the station platforms.²

James initially sought a Temporary Restraining Order from the Court to enjoin WMATA from inhibiting his free speech activities prior to the election. After a hearing on October 24, 2008, the Court denied that request. James now seeks permanent injunctive relief against WMATA, as well as compensatory and punitive damages.

II.

A.

To survive a Fed.R.Civ.P. 12(b)(6) Motion to Dismiss, a complaint must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). In making its determination, the court must consider all well-pleaded allegations in a complaint to be true, and must construe all factual allegations in the light most favorable to the plaintiff. GE Inv. Private Placement Partners II v. Parker, 247 F.3d 543, 548 (4th Cir.2001). However, the court need not accept conclusory factual allegations devoid of any reference to actual events. E. Shore Markets, Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir.2000). A document filed pro se should be "liberally construed," and, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (internal quotation marks omitted); cf. Fed.R.Civ.P. 8(f) ("All pleadings shall be so construed as to do substantial justice.").

B.

A party is entitled to summary judgment if the evidence in the record "show[s] that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The court is obligated to view the facts, as well as inferences drawn from the facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Comp. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). However, "[a] mere scintilla of evidence is not enough to create a fact issue." Barwick v. Celotex Corp., 736 F.2d 946, 958-59 (4th Cir.1984) (quoting Seago v. N.C. Theatres, Inc., 42 F.R.D. 627, 640 (E.D.N.C.1966), aff'd, 388 F.2d 987 (4th Cir.1967)). There must be "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citations omitted).

III.

The Court agrees with WMATA that its Use Regulation is not unconstitutional on its face or as applied to James.

A.

To determine whether a restriction on free speech is facially unconstitutional, a court must first determine whether the forum being regulated is a public forum. See Lehman v. City of Shaker Heights, 418 U.S. 298, 303, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974). The court then applies the appropriate level of scrutiny depending on whether the forum is public or not. See id. at 303-04, 94 S.Ct. 2714.

To qualify as a public forum, a space must be one either dedicated to free speech activities or one to which the public has traditionally enjoyed a right of access. See Members of the City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 814, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). Merely permitting limited discourse, absent the intentional opening of a nontraditional forum for public discourse, does not create a public forum. See United States v. Kokinda, 497 U.S. 720, 730, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990). City buses, for example, are not public fora because there are "no open spaces, no meeting hall, park, street, corner, or other public thoroughfare." Lehman, 418 U.S. at 303, 94 S.Ct. 2714 (upholding restrictions on use of bus advertising space for political campaign signs even though commercial advertisements were permitted); see also Kokinda, 497 U.S. at 730, 110 S.Ct. 3115 (sidewalk leading up to post office is not a public forum); Taxpayers for Vincent, 466 U.S. at 814, 104 S.Ct. 2118 (municipal utility poles are not public fora).

Restrictions on speech in public fora face the greatest scrutiny. See, e.g., Pleasant Grove v. Summum, ___ U.S. ___, 129 S.Ct. 1125, 1132, 172 L.Ed.2d 853 (2009). To pass constitutional muster, a restriction on free speech in a public forum must be content-neutral, narrowly tailored to advance a compelling government interest, and must leave ample alternative channels of communication. See Perry Ed. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983); Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984) (Kennedy, J., concurring). "Narrowly tailored" means that the restriction does not burden more free speech than necessary, Hill v. Colo., 530 U.S. 703, 728, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), but the restriction "need not be the least restrictive or least intrusive means" available. Ward v. Rock Against Racism, 491 U.S. 781, 798, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). Ample alternative channels of communication exist where, for example, the message intended to be conveyed through a sign could easily be communicated orally. See Taxpayers for Vincent, 466 U.S. at 812, 104 S.Ct. 2118.

If the forum is not public, scrutiny is less stringent. In that case, to be constitutional, the restriction on free speech need only be reasonable, i.e., not arbitrary, capricious or invidious. Lehman, 418 U.S. at 303, 94 S.Ct. 2714. For example, a city bus system's restriction on all political advertisements has been held reasonable, even when commercial advertising was permitted, because of the captive audience present on municipal buses and the risk of apparent endorsement of one candidate or viewpoint over another. Id. at 304, 94 S.Ct. 2714.

In the present case, two areas are being regulated: the above-ground areas of WMATA stations and the below-ground, paid areas of the stations. Assuming the above-ground areas are public fora, see Cmty. for Creative Non-Violence v. Turner, 893 F.2d 1387, 1391 (D.C.Cir.1990), WMATA may still regulate free speech if the regulations are content-neutral, "narrowly tailored," and "leave open ample alternative channels for communication." See Clark, 468 U.S. at 293, 104 S.Ct. 3065 (Kennedy, J., concurring). The Court holds that WMATA's Use Regulation is content-neutral because it applies irrespective of the content of any free speech activity being regulated. It is also narrowly tailored; though, subject to certain distance provisions, the Use Regulation strictly prohibits the affixing of any sign, banner or material to WMATA structures it permits the display of signs smaller than 18" × 18", leafleting, and oral communication with commuters in the above-ground areas. Thus, the Use Regulation is tailored to prohibit only those speech activities that may reasonably be considered to hinder the provision of safe and efficient public transportation. The regulation also leaves open sufficient alternative channels of communication. See, e.g., Turner, 893 F.2d at 1393 ("In...