Judicial Watch, Inc. v. Bowser

• Docket Number: Civil Action No. 20-cv-1789 (TSC)
• Decision Date: 07 February 2022
• Citation: 590 F.Supp.3d 1
• Parties: JUDICIAL WATCH, INC., Plaintiff, v. Muriel BOWSER, in her official capacity as Mayor of the District of Columbia, et al., Defendants.
• Court: U.S. District Court — District of Columbia

590 F.Supp.3d 1

JUDICIAL WATCH, INC., Plaintiff,

v.Muriel BOWSER, in her official capacity as Mayor of the District of Columbia, et al., Defendants.

Civil Action No. 20-cv-1789 (TSC)

United States District Court, District of Columbia.

Signed February 7, 2022

Michael Bekesha, Paul J. Orfanedes, Judicial Watch, Inc., Washington, DC, T. Russell Nobile, Judicial Watch, Inc., Gulfport, MS, for Plaintiff.

Pamela A. Disney, Gavin Noyes Palmer, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

TANYA S. CHUTKAN, United States District Judge Plaintiff Judicial Watch, Inc., a not-for-profit organization, has sued Defendants—D.C. Mayor Muriel Bowser, Interim Deputy Mayor John Falcicchio, and Director of Transportation Jeffrey Martoonian—alleging that they violated its First Amendment rights by denying its request to paint its organization's motto on city streets. Defendants have moved to dismiss Plaintiff's lawsuit, and, for the reasons explained below, the court will GRANT Defendants’ motion to dismiss.

I. BACKGROUND

On June 5, 2020, in the wake of widespread protests surrounding the killing of George Floyd in Minneapolis, Minnesota, employees of MuralsDC and the D.C. Department of Public Works ("DPW") teamed up with local artists to paint the words "Black Lives Matter" and the D.C. flag ("BLM mural") on a two-block stretch of 16th Street, NW. ECF No. 1, Compl. ¶ 7, 10. The two-block stretch was closed to traffic and remained so when Plaintiff filed this lawsuit. Id. ¶ 13. Mayor Bowser approved the work, and the day after it was painted stated, "[t]here are people who are craving to be heard and to be seen and to have their humanity recognized. We had the opportunity to send that message loud and clear on a very important street in our city." Id. ¶ 10.

On June 6, 2020, activists acting without the Mayor's permission painted the words "Defund the Police" on 16th Street directly next to the mural. Id. ¶ 8. They also altered the image of the D.C. flag by painting over the three stars in the D.C. flag crest. Id. ¶ 9. As a result, the mural appeared to state, "Black Lives Matter = Defund the Police." Id. The next day, DPW employees repainted the stars on the D.C. crest, but did not alter the "Defund the Police" text. Id. DPW employees announced that "the ‘Defund the Police’ message would not be removed." Id.

On June 10, 2020, Plaintiff sent a letter to the Mayor's office requesting permission to paint the words, "Because No One Is Above the Law!" on District streets, "preferably Independence Avenue SW, between 2nd and 4th Streets SW," using lettering "identical in size and color to the lettering used to paint ‘Black Lives Matter’ on 16th Street NW." Id. ¶ 11. On June 12, 2020, Deputy Mayor Falcicchio responded, referring Plaintiff to the D.C. Department of Transportation. Id. ¶ 13. He cautioned Plaintiff that it was unlikely that the Department of Transportation would grant the request because the paint would conflict with road markings. Id. Falcicchio subsequently directed Plaintiff to a portion of the District's webpage pertaining to public space permits. Id. ¶ 17.

On June 23, 2020, Plaintiff sent another letter to Falcicchio, complaining that the District was ignoring its request and that the District did not have a policy or procedure for it to request a permit to paint on city streets. Id. ¶ 19. Plaintiff alleges that the next day, it called the D.C. Department of Transportation and spoke with a "customer service representative" who said she was "not sure we have a permit" for painting murals on city streets. Id. ¶ 21.

One week later, Plaintiff filed this action, alleging that Defendants violated its First Amendment rights, under 42 U.S.C. section 1983, by denying it permission to paint its organization's motto on a public street. Id. ¶ 27. Plaintiff also argues that Defendants failed to "provide a reasonable basis for denying Plaintiff the timely opportunity to paint its expressive message on a district street." Id.

Defendants contend that Plaintiff fails to state a valid claim for relief because the BLM mural is government speech and that the District is not required to convert city streets into private message boards. See ECF No. 12.

II. LEGAL STANDARD

A motion to dismiss under Rule 12(b)(6) for failure to state a claim "tests the legal sufficiency of a complaint." Browning v. Clinton , 292 F.3d 235, 242 (D.C. Cir. 2002). A complaint should state a "short plain statement of the claim showing that the pleader is entitled to relief." Fed. R. of Civ. Proc. 8(a)(2). The complaint must contain enough facts to state a claim that is plausible on its face by alleging facts that, if assumed to be true, would allow the court to draw "reasonable inference[s] that the defendant is liable for the misconduct alleged." Bell Atl. Co. v. Twombly , 550 U.S. 544, 555-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; Arpaio v. Obama , 797 F.3d 11, 19 (D.C. Cir. 2015) ; Ashcroft v. Iqbal , 556 U.S. 662, 677-78, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The court presumes the truth of a plaintiff's factual allegations, see Iqbal , 556 U.S. at 679, 129 S.Ct. 1937, and construes the complaint "in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged," Hettinga v. United States , 677 F.3d 471 (D.C. Cir. 2012) (internal quotation marks omitted). Moreover, when deciding on a motion to dismiss, the court "may consider ... the facts alleged in the complaint, any documents either attached to or incorporated in the complaint, and matters of which [the Court] may take judicial notice." EEOC v. St. Francis Xavier Parochial Sch. , 117 F.3d 621, 624 (D.C. Cir. 1997) ; Laughlin v. Holder , 923 F.Supp.2d 204, 209 (D.D.C. 2013).

III. ANALYSIS

"It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys." Rosenberger v. Rector & Visitors of Univ. of Va. , 515 U.S. 819, 828, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). If the government creates a space for public speech, it "must respect the open character of" that space, Oberwetter v. Hilliard , 639 F. 3d 545, 551 (D.C. Cir. 2011), and not engage in "viewpoint discrimination," whereby the government favors or restricts certain speech based on the "motivating ideology or the opinion or perspective of the speaker," Penkoski v. Bowser , No. 20-CV-01519 (TNM), 548 F.Supp.3d 12, 20–21 (D.D.C. July 12, 2021) (citing Rosenberger , 515 U.S. at 829, 115 S.Ct. 2510 ).

While the First Amendment restricts government regulation of private speech, "it does not regulate government speech." Pleasant Grove City v. Summum , 555 U.S. 460, 467, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009). A government entity may "speak for itself," and "select the views that it wants to express." Id. at 467-68, 129 S.Ct. 1125. For instance, the government "need not promote ‘pro-littering’ campaigns aside its anti-littering campaigns." Penkoski , 548 F.Supp.3d at 20–21 (citing See Nat'l Endow. for Arts v. Finley , 524 U.S. 569, 598, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998) (Scalia, J., concurring in judgment) ("It is the very business of government to favor and disfavor points of view.")). Indeed, "[e]ven political discrimination is allowed when the government chooses to sponsor speech." Raven v. Sajet , 334 F. Supp. 3d 22, 32 (D.D.C. 2018), aff'd sub nom. Raven v. United States , No. 18-5346, 2019 WL 2562945 (D.C. Cir. May 17, 2019). "Were the Free Speech Clause interpreted otherwise, government would not work." Walker v. Texas Div., Sons of Confederate Veterans, Inc. , 576 U.S. 200, 207, 135 S.Ct. 2239, 192 L.Ed.2d 274 (2015).

A. Traditional Public Forum

Defendants argue that public streets are not a traditional public forum for street paintings, and therefore they were not required to "respect the open character" of city streets by allowing Plaintiff to paint its preferred message. Id. The court agrees.

Plaintiff argues that public streets have long been recognized as a traditional public forum for "expressive activities" such as "street protests," and that the forum should be interpreted to also allow street paintings. Pl. Opp'n at 25. To be sure, public streets "have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Summum , 555 U.S. at 469, 129 S.Ct. 1125. However, the Supreme Court's characterization of a public street as a place of assembly for temporary communications does not convert public streets into a forum for painting permanent messages on the street.

For example, in Summum , the Supreme Court rejected attempts to "analogize the installation of permanent monuments in a public park to the delivery of speeches and the holding of marches and demonstrations" and rejected the argument that public parks are a traditional public forum for the installation of monuments. Id. at 478, 129 S.Ct. 1125. In so holding, the Court distinguished between expressions that are temporary—such as speakers who "eventually come to the end of their remarks" and people carrying signs who "at some point tire and go home"—and monuments that "monopolize the use of the land on which they stand and interfere permanently with other uses of the public space." Id. at 479, 129 S.Ct. 1125. See also Mahoney v. Doe , 642 F.3d 1112, 1117, 1119 (D.C. Cir. 2011) (finding that chalk art qualified as speech in a public forum—a closed road akin to a sidewalk—when "the defacement at issue is temporary and can be cured"). The Court concluded that, "as a general matter, forum analysis simply does not apply to the installation of permanent monuments on public property." Summum , 555 U.S. at 480, 129 S.Ct. 1125.

Here, Plaintiff requested to paint the words "Because No One is Above the Law!" on a public road, "preferably Independence Avenue SW, between 2nd and 4th Streets SW,"...