People for Ethical Treat. of Animals v. Gittens

• Decision Date: 28 January 2005
• Docket Number: No. 03-7190.,No. 02-7106.,No. 03-7195.,02-7106.,03-7190.,03-7195.
• Parties: PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC., Appellee v. Anthony GITTENS, Executive Director, District of Columbia Commission on the Arts and Humanities, and District of Columbia, Appellants
• Court: U.S. Court of Appeals — District of Columbia Circuit

396 F.3d 416

PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC., Appellee v. Anthony GITTENS, Executive Director, District of Columbia Commission on the Arts and Humanities, and District of Columbia, Appellants

No. 02-7106.

No. 03-7190.

No. 03-7195.

United States Court of Appeals, District of Columbia Circuit.

Argued September 10, 2004.

Decided January 28, 2005.

Appeals from the United States District Court for the District of Columbia (02-cv00984).

Donna M. Murasky, Senior Litigation Counsel, Office of the Attorney General for the District of Columbia, argued the cause for appellants. With her on the briefs were Robert J. Spagnoletti, Attorney General, and Edward E. Schwab, Deputy Attorney General.

Arthur B. Spitzer argued the cause for appellee. With him on the brief was Fritz Mulhauser.

Before: GINSBURG, Chief Judge, and RANDOLPH and ROGERS, Circuit Judges.

RANDOLPH, Circuit Judge.

Several years ago, an agency of the District of Columbia sponsored a city-wide, outdoor exhibit of polyurethane models of donkeys and elephants, each painted and decorated by a different artist. The exhibit lasted five months. The parties to these consolidated appeals argue about whether, as the district court ruled, the agency violated the First Amendment to the Constitution when it rejected a design showing a circus elephant weeping from mistreatment. We do not reach the constitutional issue because the case may be moot. To explain why, we need to fill in some details about the exhibit.

In the fall of 2001, the District's Commission on the Arts and Humanities issued a "Call to Artists" for "Party Animals," a program intended to showcase local artists, attract tourists and enliven the streets "with creative, humorous art." "Party Animals" would be the "largest public art project in the history of the District of Columbia." It would consist of pre-formed sculptures of 100 donkeys and 100 elephants, four and one-half feet tall and five feet long, installed at prominent city, federal and private locations. The Commission invited artists to submit designs for painting and decorating the models. If the Commission's selection committee approved a design, the artist would receive a $1,000 honorarium and $200 for materials and supplies. The Commission retained ownership of the decorated donkeys and elephants and planned to sell them at auction after the exhibit ended.

The written announcement stated that "Party Animals" would showcase the "whimsical and imaginative side of the Nation's Capital" and that the Commission was looking "for artwork that is dynamic and invites discovery," "original and creative," "durable" and "safe." The Commission would not "allow direct advertising of any product, service, a company name, or social disrespect," and would impose "restrictions against slogans and inappropriate images." All designs "were subject to the Selection Committee's decision." More than 1,000 artists entered designs, most of which the Selection Committee rejected.

The Arts Commission also announced that it would accept designs outside of the general artistic competition from individuals or organizations who paid $5,000 or more to be high-level sponsors of the program. These sponsors could choose their own artist to decorate a donkey or elephant, which would be placed in a "prime public location." The written announcement stated that the Arts Commission "reserves the right of design approval" and would own the decorated donkey or elephant.

On the base of each sculpture was a plaque with the artist's name and the following:

DC Commission on the Arts & Humanities Anthony A. Williams, Mayor www.partyanimalsdc.org

An organization contributing $2,000 or more was entitled to have its name on the plaque.

In mid-March 2002, People for the Ethical Treatment of Animals, Inc. — PETA — submitted a sponsorship package, a check for $5,000, and a sketch of its proposed design, drawn by a cartoonist. PETA describes itself as a nonprofit corporation, founded in 1980, to support "the principle that animals are not ours to eat, wear, experiment on, or use for entertainment." Brief of Appellee at 5. The sketch PETA submitted depicted an elephant with a sign tacked to its side. The sign read:

The CIRCUS is Coming

See: Torture Starvation Humiliation

All Under the Big Top

A selection committee member informed PETA that its design was unacceptable. Several days later, PETA submitted two new designs, one of a happy circus elephant, the other of a sad, shackled circus elephant with a trainer poking a sharp stick at him. The committee member called PETA's representative to say that the Commission had accepted the happy elephant, but rejected the sad one. PETA then submitted another design, depicting a shackled elephant crying. A sign tacked to the elephant's side read: "The Circus is coming. See SHACKLES — BULL HOOKS — LONELINESS. All under the `Big Top.'" The Commission rejected this design. According to an affidavit of the Commission's executive director, PETA's proposal was "a political billboard, not art, and unlike any other design submission, it sought merely to promote a single issue and was not an artistic expression consistent with the goals, spirit and theme of the art project. The "Party Animals" arts project was designed to be festive and whimsical, reach a broad based general audience and foster an atmosphere of enjoyment and amusement. PETA's proposed ... design did not compliment these goals, and indeed was contrary to the Party Animals' expressive, economic, aesthetic, and civic purpose."

The "Party Animals" exhibit opened at the end of April 2002. One month later, PETA filed an action under 42 U.S.C. § 1983 against the executive director of the Arts Commission and the District of Columbia, seeking a preliminary and permanent injunction and damages for violation of its First Amendment rights. While the case was pending, PETA submitted still another design to the Commission, slightly altering its previous submission. Again the Commission rejected it, for reasons similar to those given for rejecting PETA's previous submission. All the while, the Commission held PETA's $5,000 check without cashing it.

After proceedings unnecessary to recount, the district court issued a preliminary injunction, finding that the Commission had violated PETA's freedom of speech and requiring the Commission to display PETA's final elephant. People for the Ethical Treatment of Animals v. Gittens, 215 F.Supp.2d 120 (D.D.C.2002). The District then cashed PETA's check and PETA had its elephant installed at Connecticut Avenue and Q Street, N.W. It remained there from the end of August until the end of September 2002, when "Party Animals" closed. In November 2003, the court issued a memorandum opinion and order granting PETA's motion for summary judgment, denying the District's cross-motion, and awarding PETA "$4,000 in damages." In late December 2003, the court issued the another order, stating:

Upon consideration of Plaintiffs' [sic] Motion for an Order Directing Entry of Judgment, of defendant's [sic] consent thereto, and of the entire record herein, it is hereby

ORDERED, that the motion is GRANTED; and it is further

ORDERED, that the Clerk shall enter judgment in favor of plaintiffs [sic] and against the District of Columbia in the amount of $4,000.

The Clerk of the court entered the judgment on December 23, 2003.

The District noted an appeal from the order granting the preliminary injunction (No. 02-7106), from the November 2003 memorandum and order granting summary judgment (No. 03-7190), and from the December 2003 judgment for $4,000 (No. 03-7195).

The "Party Animals" exhibit is long gone. But the parties assume the December 2003 judgment awarding PETA $4,000 keeps the First Amendment controversy alive.¹ We need to examine their assumption carefully. There is "a long line of Supreme Court pronouncements counseling judicial restraint in constitutional decisionmaking, the most notable of which is Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-47, 56 S.Ct. 466, 482, 80 L.Ed. 688 (1936) (Brandeis, J., concurring)." Kalka v. Hawk, 215 F.3d 90, 97 (D.C.Cir.2000). We therefore must assure ourselves that the First Amendment controversy between PETA and the District has not expired.

The operative portion of the district court's opinion states:

[T]he plaintiff contends that it should be awarded money damages for its loss of First Amendment rights caused by the defendants' failure to display its sculpture design. It is undisputed that the $5,000 sponsorship level entitled the sponsor to have its sculpture placed in a prominent place in the city for the five months of the Party Animals display. As a result of the time necessary to litigate the court-ordered injunction, the plaintiff's sculpture was only on display in a prominent location for one month. The plaintiff believes, and the defendants have not argued otherwise, that it is entitled to a refund, in essence, for the four months it was excluded from the public eye. The Court agrees, and accordingly awards the [plaintiff] $4000 in damages.

People for the Ethical Treatment of Animals v. Gittens, No. 02-00984, slip op. at 6, ___ F.Supp.2d ___, 2003 WL 24008995 (D.D.C. Nov. 14, 2003).

If the district court awarded PETA the $4,000 as compensatory damages for a violation of its First Amendment rights, the District's appeal from the grant of summary judgment is not moot. See, e.g., Powell v. McCormack, 395 U.S. 486, 497-98, 89 S.Ct. 1944, 1951-52, 23 L.Ed.2d 491 (1969). But if PETA's recovery did not turn on the validity of its First Amendment claims — and there are several indications that it did not — the $4,000 award could not save the constitutional issue from mootness. Although the court began by noting PETA's contention that it was entitled to $4,000 for the "loss of First Amendment rights," the court ended by calling the $4,000 a "refund, in essence, for the four months it was...