People for the Ethical Treatment of Animals, Inc. v. Shore Transit

• Decision Date: 18 January 2022
• Docket Number: CIVIL NO. JKB-21-02083
• Citation: 580 F.Supp.3d 183
• Parties: PEOPLE FOR the ETHICAL TREATMENT OF ANIMALS, INC., Plaintiff, v. SHORE TRANSIT et al., Defendants.
• Court: U.S. District Court — District of Maryland

580 F.Supp.3d 183

PEOPLE FOR the ETHICAL TREATMENT OF ANIMALS, INC., Plaintiff,

v.SHORE TRANSIT et al., Defendants.

CIVIL NO. JKB-21-02083

United States District Court, D. Maryland.

Signed January 18, 2022

Robin R. Cockey, Cockey Brennan and Maloney PC, Salisbury, MD, Brian M. Hauss, Pro Hac Vice, American Civil Liberties Union Foundation, New York, NY, for Plaintiff.

Kevin Bock Karpinski, Karpinski, Cornbrooks & Karp, P.A., Baltimore, MD, for Defendants.

MEMORANDUM

James K. Bredar, Chief Judge

Plaintiff People for the Ethical Treatment of Animals, Inc. ("PETA") brings suit for declaratory and injunctive relief against Defendants Shore Transit, Brad Bellacicco in his official capacity as Director of Shore Transit, and the Tri-County Council of the Lower Eastern Shore of Maryland ("Tri-County Council"). PETA brings suit under 42 U.S.C. § 1983, alleging that Defendants violated and continue to violate its First and Fourteenth Amendment rights by denying it permission to display two advertisements on Shore Transit's advertising space. Pending before the Court is Defendants’ Motion to Dismiss. (ECF No. 23.) The Motion is fully briefed, and no hearing is required. See Local Rule 105.6 (D. Md. 2021). For the reasons set forth below, the Motion to Dismiss will be DENIED.

I. Factual Background¹

PETA is a non-profit corporation that advocates for animal rights. (Compl. ¶ 10.) Tri-County Council is a regional council of governments established by the Maryland legislature, Shore Transit is a public transit agency and a division of the Tri-County Council, and Bellacicco is the Director of Shore Transit. (Id. ¶¶ 11–13.) Shore Transit operates the public bus system for Somerset, Wicomico, and Worcester Counties and allows advertising on the exterior and interior of its buses, in bus shelters, and on trash receptacles. (Id. ¶¶ 16, 18.) Shore Transit contracts with Vector Media ("Vector"), an advertising agency, to manage its advertising. (Id. ¶ 20.)

On May 12, 2020, PETA submitted two proposed advertisements to Shore Transit through Vector. (Id. ¶ 31.) Both included the text "No one needs to kill to eat. Close the slaughterhouses: Save the workers, their families, and the animals." (Id. ) One has the word "kill" superimposed on a bloody cleaver; the other includes an image of a child holding a chicken. (Id. ) Mark Sheely (Vector's Regional Manager) forwarded the proposed advertisements to Bellacicco, asking if Vector had permission to sell PETA exterior bus advertisement space to display them. (Id. ¶ 32.) On May 15, 2020, Sheely forwarded PETA Bellacicco's response: "After considerable consideration, we will decline the PETA ads. We find them too offensive for our market and political in nature." (Id. ¶ 33.)

On March 24, 2021, PETA filed a Maryland Public Information Act ("MPIA") request with the Tri-County Council seeking, inter alia , "all documents relating to Shore Transit's standards for accepting or rejecting advertisements, including any advertising policy Shore Transit may administer" and "all documents concerning Shore Transit's reasons for approving, not approving, or requesting modifications to advertisements submitted for Shore Transit's system, including any communications with entities that submitted advertisements for approval." (Id. ¶ 21 (alterations omitted).)

In response, the Tri-County Council provided "Shore Transit's contract with Vector Media; meeting and agenda minutes; email correspondence concerning Shore Transit's rejection of proposed advertisements promoting cannabis and cannabidiol (CBD) products; and the Maryland Locally Operated Transit Systems (LOTS) manual." (Id. ¶ 22.) Minutes from a July 29, 2015 meeting of the Tri-County Council's Executive Board indicate that Shore Transit's advertising agency "asked if political advertisements are to be accepted." (Id. ¶ 23.) The Executive Board determined to bring the question before the Tri-County Council at a September 23, 2015 meeting, wherein the Council discussed the issue and voted "to not accept political ads." (Id. ) In addition, Shore Transit's contract with Vector directs Vector to "follow minimum standards in the approval of submitted advertising that will be displayed in the buses" and further specifies that "[p]olitical advertisements will not be accepted." (Id. ¶ 24.) Under the contract, Shore Transit "reserves the right to reject any advertising that it determines to be controversial, offensive, objectionable or in poor taste" and "reserves the right to remove any offensive advertising at any time." (Id. ¶ 25.) These terms are not further defined in the contract or in other documentation. (Id. ¶ 27.)

On March 31, 2021, presumably in response to PETA's MPIA request, Bellacicco forwarded the May 2020 email chain relating to the two PETA advertisements to several Tri-County Council members, explaining that "considering the COVID situation unfolding in the area poultry plants, it was decided not to accept these ads." (Id. ¶ 36.) He further noted that Shore Transit had previously rejected advertisements from a "marijuana dispensary on the grounds [that Shore Transit] drug test[s] [its] drivers per Federal law and should not promote the produce [sic] on our buses .... Our contract with Vector does allow us to review and reject ads." (Id. )

On July 22, 2021, PETA renewed its request to run the proposed advertisements with Shore Transit but has not received a response from Vector. (Id. ¶ 37.)

In addition to the minutes and contract between Shore Transit and Vector and the emails relating to the rejection of the proposed advertisements discussed above, the Tri-County Council provided emails relating to the rejection of advertisements for cannabis and cannabidiol products. (Id. ¶¶ 28–29.) On February 28, 2018, Vector emailed Bellacicco asking whether Shore Transit would accept advertisements relating to medical cannabis. (Id. ¶ 28.) Bellacicco responded that "I have referred your question to [the Maryland Transit Administration] and the [Tri-County Council] Board. I doubt we will take their money because we are still firing people for smoking cannabis. Would be hypocritical to advertise it when we drug test." (Id. (alterations in original).) On March 10, 2020, Sheely emailed Bellacicco to ask if Shore Transit would accept advertisements for medical cannabis and cannabidiol products. (Id. ¶ 29.) Bellacicco responded: "Sorry but no. We have Federal Transportation funding and comply with FTA Drug and Alcohol testing program. Would be hypocritical to advertise for marijuana and fire people for using it." (Id. ) When asked whether Shore Transit would accept advertisements for cannabidiol products only, Bellacicco responded: "No we need to be careful with the perception of supporting a position opposed to [the Federal Transit Administration] and risk our funding." (Id. )

PETA brings two causes of action under 42 U.S.C. § 1983. Count I alleges violations of the First and Fourteenth Amendments. (Id. ¶¶ 39–47.) PETA argues that Shore Transit's policy prohibiting advertisements that it deems to be political, controversial, offensive, objectionable, or in poor taste violates the First Amendment on its face and as applied to PETA's advertisements, regardless of whether the advertising space is a designated public forum or nonpublic forum. (Id. ¶ 41.) PETA so argues because Shore Transit's prohibitions: (1) "constitute an impermissible content-based restriction on speech in a designated public forum"; (2) "are incapable of reasoned application"; (3) "afford unfettered discretion to enforcement officials"; (4) "discriminate on the basis of viewpoint"; and (5) "are substantially overbroad." (Id. ¶¶ 43–47.) Count II alleges violations of the Fourteenth Amendment, arguing that Shore Transit's prohibitions "are impermissibly vague because they do not provide adequate notice about what speech is prohibited and invite arbitrary or selective enforcement." (Id. ¶¶ 48–49.)

II. Legal Standard

When considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court must "accept as true all well-pleaded allegations and view the complaint in the light most favorable to the plaintiff." Venkatraman v. REI Sys., Inc. , 417 F.3d 418, 420 (4th Cir. 2005). To survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 662, 129 S.Ct. 1937. A "pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ " Id. at 678, 129 S.Ct. 1937 (alteration in original) (quoting Twombly , 550 U.S. at 555, 557, 127 S.Ct. 1955 ).

III. Analysis

PETA alleges that Defendants have violated its First and Fourteenth Amendment rights in rejecting its proposed advertisements and in prohibiting advertisements that Defendants deem to be "political" or "controversial, offensive, objectionable, or in poor taste." PETA sufficiently alleges that Defendants have violated its First Amendment rights because the prohibitions fail to provide workable standards and are viewpoint discriminatory. Further, for similar reasons, PETA has sufficiently alleged that Defendants’ prohibitions are unconstitutionally vague. As such, PETA's claims will survive dismissal.

A. First Amendment²

"The first inquiry a court must undertake when a First Amendment claim is asserted is whether the plaintiff has engaged in ‘protected speech.’ " Goulart v. Meadows , 345 F.3d 239,...