People for the Ethical Treatment of Animals v. Hinckley

• Decision Date: 15 March 2021
• Docket Number: Civil Action H-20-3681
• Citation: 526 F.Supp.3d 218
• Parties: PEOPLE FOR the ETHICAL TREATMENT OF ANIMALS, Plaintiff, v. Shane HINCKLEY, Defendant.
• Court: U.S. District Court — Southern District of Texas

526 F.Supp.3d 218

PEOPLE FOR the ETHICAL TREATMENT OF ANIMALS, Plaintiff,

v.Shane HINCKLEY, Defendant.

Civil Action H-20-3681

United States District Court, S.D. Texas, Houston Division.

Signed March 15, 2021

Filed March 16, 2021

Gabriel Zane Walters, Pro Hac Vice, PETA Foundation, Washington, DC, Christopher W. Rothfelder, Rothfeder and Falick LLP, Houston, TX, for Plaintiff.

Michael Raphael Abrams, Todd Alan Dickerson, Ryan Glen Kercher, Office of the Attorney General for the State of Texas, Austin, TX, for Defendant.

MEMORANDUM OPINION AND ORDER

Gray H. Miller, Senior United States District Judge

Pending before the court is a motion to dismiss filed by defendant Shane Hinckley. Dkt. 10. After considering the motion, response, reply and applicable law, the court is of the opinion that the motion should be DENIED.

I. BACKGROUND

This is a freedom of speech case. The plaintiff, People for the Ethical Treatment of Animals, Inc. ("PETA"), attempted to have an advertisement placed on buses that were part of the Texas A&M University ("TAMU") transit system. Dkt. 1. It sent the advertisement to TAMU's advertising coordinator on October 9, 2019, and requested that the advertisement run in either October or November of 2019. Id. The proposed advertisement includes a photo of a thin and drooling golden retriever in a cell and reads: "Imagine having your body left to science while you're still in it. PETA.org." Id. ; Dkt. 16, Walters Dec., Ex. 1. Six weeks after PETA requested to run the advertisement, Shane Hinckley, the Vice President of Brand Development for TAMU and the defendant in this lawsuit, rejected the proposed advertisement because it violated TAMU's advertisement standards prohibiting "political campaigns and viewpoints or endorsements." Dkt. 1. PETA contends that the proposed advertisement does not contain a political campaign, viewpoint, or endorsement and instead was meant to educate the public about dogs who were suffering in TAMU's canine muscular dystrophy laboratory. Id. Moreover, PETA asserts that the policy of not allowing "political campaigns and viewpoints or endorsements" violates the First Amendment both facially and as applied to PETA's proposed advertisement. Id.

On October 27, 2020, PETA filed this lawsuit. Id. PETA asserts First and Fourteenth Amendments causes of action under 42 U.S.C. § 1983 because (1) TAMU's advertisement policy is unconstitutional facially and as applied to PETA; (2) the policy is vague in that it is not clearly defined such that a person of ordinary intelligence can readily determine whether an advertisement is allowable or prohibited; and (3) it is overbroad because it provides TAMU with unfettered discretion to interpret "political" in a way that renders a substantial number of its applications unconstitutional. Id. PETA seeks declaratory relief and an injunction. Id.

Hinckley moves to dismiss PETA's complaint, arguing that under Lehman v. City of Shaker Heights , 418 U.S. 298, 304, 94 S. Ct. 2714, 41 L.Ed.2d 770 (1974), TAMU may exclude political advertisements on its public transit systems. Dkt. 10. He notes that TAMU has "long prohibited political advertisements in its transit system, regardless of viewpoint," and that this prohibition is only one category of the fourteen exclusions in its advertising policy. Id. (citing Dkt. 1 (providing link to the standards, which include the category "political campaigns and viewpoints or endorsements") and Dkt. 10, Ex. A (the standards)). Hinckley asserts that the proposed advertisement in this case is part of a public campaign to target TAMU's muscular dystrophy laboratory. Id. (citing PETA v. Young , No. 4:20-cv-02913 (S.D. Tex.) (Hanks, J.), a lawsuit alleging that TAMU deleted comments about the experiments in the muscular dystrophy lab made by PETA-affiliated individuals as part of PETA's "anti-cruelty campaign"; the comments were made during live-streamed graduation ceremonies). Hinckley argues that TAMU's policy is not vague or overbroad and that PETA's constitutional challenges fail because the policy is reasonable in light of the forum's purpose and does not constitute viewpoint-based censorship. Id.

PETA asserts that Hinckley's involvement reflects TAMU's desire to exclude PETA's viewpoint because it is critical of the university's canine laboratory, noting that Hinckley was not even the official who typically made decisions about advertisements and instead was in charge of TAMU's "reputation campaign." Dkt. 16. PETA contends that categorical bans on "political" speech in forums similar to the TAMU transit system have been held to be unconstitutional because they confer unbridled discretion on officials and invite viewpoint discrimination. Id. (citing Minnesota Voters Alliance v. Mansky , ––– U.S. ––––, 138 S. Ct. 1876, 201 L.Ed.2d 201 (2018) ). It asserts that TAMU's policy is not capable of reasoned application and does not provide adequate safeguards against viewpoint discrimination. Id. It also argues that TAMU's reliance on Lehman is misplaced because the U.S. Supreme Court's 2018 decision in Minnesota Voters Alliance v. Mansky and cases applying it "have cast serious doubts on Lehman ’s continued validity in this area of law." Id. Moreover, PETA asserts that even if the court were to uphold the broad prohibition on political advertisements as legitimate, TAMU failed to apply the policy in a viewpoint neutral way here. Id. Additionally, according to PETA, the policy does not meet the requirements of the Due Process Clause because it is so vague that it leaves the public uncertain as to what exactly it prohibits. Id.

In reply, Hinckley reiterates his argument that Lehman , not Mansky , applies. Dkt. 21. He argues that Lehman is directly on point, that Mansky did not directly overturn Lehman , and that reading Mansky in the manner in which PETA suggests would be "unworkable" and would "jeopardize long-standing First Amendment precedents, infringe on the government's ability to control speech in its nonpublic forums, and ultimately restrict—not enhance—the right to free speech." Id. With regard to Lehman , Hinckley points out that the court cannot simply ignore directly-on-point precedent because the Fifth Circuit is a strict stare decisis court. Id. (citing Nat'l Coal. for Men v. Selective Serv. Sys. , 969 F.3d 546, 549 (5th Cir. 2020) ). He also argues that even if Mansky applies, PETA's claim still fails because here there is no broad ban coupled with a "haphazard interpretation" of the policy as in Mansky . Id. Rather, this policy bans ads with a "political viewpoint," which requires the official to determine if the ad relates to a government or the conduct of a government and take a discernible stance on the subject. Id.

The motion is now ripe for disposition. The court will first set forth the applicable legal standards and then discuss whether PETA has stated a claim under those standards.

II. LEGAL STANDARDS

A. Motion to Dismiss

" Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief.’ " Bell Atl. Corp. v. Twombly , 550 U.S. 544, 127 S. Ct. 1955, 1964–65, 167 L.Ed.2d 929 (2007). In considering a Rule 12(b)(6) motion to dismiss a complaint, courts generally must accept the factual allegations contained in the complaint as true. Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc. , 677 F.2d 1045, 1050 (5th Cir. 1982). The court does not look beyond the face of the pleadings in determining whether the plaintiff has stated a claim under Rule 12(b)(6). Spivey v. Robertson , 197 F.3d 772, 774 (5th Cir. 1999). "[A] complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, [but] a plaintiff's obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (citations omitted). The "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id. The supporting facts must be plausible—enough to raise a reasonable expectation that discovery will reveal further supporting evidence. Id. at 556, 127 S. Ct. 1955, 1964–65.

B. Ex Parte Young

Public officials sued in their official capacity are protected by the Eleventh Amendment, which bars suits by private citizens against a state in federal court, unless the Eleventh Amendment is shown not to apply or the Ex parte Young exception applies. K.P. v. LeBlanc , 627 F.3d 115, 124 (5th Cir. 2010). "The Young exception is a legal fiction that allows private parties to bring ‘suits for injunctive or declaratory relief against individual state officials acting in violation of federal law.’ " City of Austin v. Paxton , 943 F.3d 993, 997 (5th Cir. 2019) (quoting Raj v. La. State Univ. , 714 F.3d 322, 328 (5th Cir. 2013) ). This exception only applies if the state officer "by virtue of his [or her] office" has "some connection with the enforcement of the [challenged] act, or else [the plaintiff] is merely making him [or her] a party as a representative of the state, and thereby attempting to make the state a party." Ex parte Young , 209 U.S. 123, 157, 28 S. Ct. 441, 52 L.Ed. 714 (1908). Courts attempting to establish whether the exception applies must inquire "into whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective." City of Austin , 943 F.3d at 998 (cleaned up). If a particular individual or agency is statutorily tasked with enforcing the challenged law, then the named defendant must be the person contemplated by the statute. Id. (noting that the defendant in that case, Attorney General Paxton, had statutory authority to enforce the law being challenged). Hinckley does not dispute, at least at this stage, that Ex parte Young applies.

C. First Amendment

The First Amendment to the U.S....