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Archdiocese of Washington v. Washington Metropolitan Area Transit Authority

United States Court of Appeals, District of Columbia Circuit

July 31, 2018

Archdiocese of Washington, Donald Cardinal Wuerl, a Roman Catholic Archbishop of Washington, a corporation sole, Appellant
Washington Metropolitan Area Transit Authority and Paul J. Wiedefeld, in his official capacity as General Manager of the Washington Metropolitan Area Transit Authority, Appellees

          Argued March 26, 2018

          Appeal from the United States District Court for the District of Columbia (No. 1:17-cv-02554)

          Paul D. Clement argued the cause for appellant. With him on the briefs were Michael F. Williams and Kasdin M. Mitchell.

          John M. Gore, Acting Assistant Attorney General, U.S. Department of Justice, Matthew J. Glover, Counsel to the Assistant Attorney General, Matthew M. Collette and Nicholas Y. Riley, Attorneys, were on the brief for amicus curiae United States in support of appellant.

          Shannen W. Coffin was on the brief for amici curiae Ethics and Public Policy Center and First Liberty Institute in support of appellant.

          Jeffrey M. Johnson and Lisa M. Kaas were on the brief for amicus curiae The Franciscan Monastery USA, Inc. in support of appellant.

          Ryan A. Shores was on the brief for amici curiae Becket Fund for Religious Liberty, et al. in support of appellant.

          Donald B. Verrilli Jr. argued the cause for appellees. With him on the brief were Chad I. Golder, Jonathan Meltzer, Patricia Y. Lee, and Rex S Heinke. Anthony T. Pierce entered an appearance.

          Before: Rogers, Kavanaugh [*] and Wilkins, Circuit Judges.


          Rogers, Circuit Judge.

         The Washington Metropolitan Transit Authority ("WMATA") was established by compact between the State of Maryland, the Commonwealth of Virginia, and the District of Columbia to provide safe and reliable transportation services. See Pub. L. No. 89-774, 80 Stat. 1324 (1966). Like other transit authorities, it sells commercial advertising space to defray the costs of its services, and for years it had accepted ads on all types of subjects. In 2015 WMATA closed its advertising space to issue-oriented ads, including political, religious, and advocacy ads. This decision followed extended complaints from riders, community groups, business interests, and its employees, resulting in regional and federal concerns about the safety and security of its transportation services, vandalism of its property, and a time-intensive administrative burden reviewing proposed ads and responding to complaints about ads.

         Since Lehman v. City of Shaker Heights, 418 U.S. 298 (1974), transit authorities have been permitted to accept only commercial and public service oriented advertisements because "a streetcar or bus is plainly not a park or sidewalk or other meeting place for discussion," but rather "is only a way to get to work or back home." Id. at 306 (Douglas, J., concurring). Under the Supreme Court's forum doctrine, WMATA, as a non-public forum, may restrict its advertising "[a]ccess . . . as long as the restrictions are 'reasonable and [are] not an effort to suppress expression merely because public officials oppose the speaker's view.'" Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 800 (1985) (quoting Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 46 (1983)). Based on experience that its approach to advertising was interfering with its ability to provide safe and reliable transportation service, WMATA adopted Guidelines Governing Commercial Advertising, employing broad subject-matter prohibitions in order to maintain viewpoint neutrality and avoid ad hoc bureaucratic determinations about which ads are benign and which are not. Guideline 12 states: "Advertisements that promote or oppose any religion, religious practice or belief are prohibited."

         The Archdiocese of Washington contends that Guideline 12 violates the First Amendment and the Religious Freedom Restoration Act ("RFRA") and seeks a mandatory preliminary injunction that would require WMATA to place an avowedly religious ad on the exteriors of its buses. The Archdiocese has not shown, however, that WMATA is impermissibly suppressing its viewpoint on an otherwise permitted subject, and its claim of discriminatory treatment is based on hypothesis. Following Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819, 831 (1995), WMATA may exclude religion as a subject matter from its advertising space. Notably, there is no principled limit to the Archdiocese's conflation of subject-matter restrictions with viewpoint-based restrictions as concerns religion. Were the Archdiocese to prevail, WMATA (and other transit systems) would have to accept all types of advertisements to maintain viewpoint neutrality, including ads criticizing and disparaging religion and religious tenets or practices. Because the Archdiocese has not demonstrated a likelihood of prevailing on the merits or that the equities weigh favorably, it has not met the demanding standard for a mandatory preliminary injunction. See Dorfmann v. Boozer, 414 F.2d 1168, 1173 (D.C. Cir. 1969).


         Until 2015, WMATA had accepted most issue-oriented advertisements, including political, religious, and advocacy ads. Beginning in 2010, WMATA began to reconsider its approach as a result of near-monthly complaints from its employees, riders, elected officials, and community and business leaders about its advertisements. See Decl. of Lynn M. Bowersox, WMATA Ass't Gen. Mgr., Cust. Serv., Comms. & Mktg., in support of Defs' Opp. to Mot. for TRO and Prel. Inj., ¶¶ 4-5 & Ex. A (Dec. 1, 2017) ("Bowersox Decl."). The complaints spanned objections to ads that were critical of the Catholic Church's position against use of condoms, to ads by People for the Ethical Treatment of Animals with graphic images of animal cruelty, to ads opposing discrimination based on sexual orientation. The condoms ad, for example, "generated hundreds of angry phone calls and letters and generated the second-largest negative response to any ad[] ever run in WMATA advertising space." Id. ¶ 25. An "anti-Islam ad . . . was also a factor in WMATA's decision to change its advertising space to a nonpublic forum." Id. ¶¶ 11, 26. The Metro Transit Police Department and the United States Department of Homeland Security "feared that certain ads would, due to world events, incite individuals to violence on the system and harm WMATA employees and customers." Id. ¶ 11. Specifically, they referred to events following "a contest to create a cartoon depiction of the Prophet Muhammad." Id. A cartoon that was submitted as an ad to WMATA "raised concerns, because some Muslims consider drawing the Prophet Mohammed so offensive that they have reacted violently to such depictions in the past." Id. (differing spellings in original). "WMATA was aware that two gunmen were killed after they attempted to attack the building where the contest . . . was being held." Id. Additionally, a survey showed that "98% of the public was familiar with the types of ads found on buses, in trains, and in stations," that "58% opposed issue-oriented ads," and that "46% were extremely opposed to . . . issue-oriented ads." Id. ¶ 14.

         On November 19, 2015, the WMATA Board of Directors, with representatives from Maryland, Virginia, and the District of Columbia, decided to narrow the subjects that it would accept in WMATA advertising space. Upon resolving that WMATA's advertising space is closed "to issue-oriented ads, including political, religious and advocacy ads," Res. 2015-55, the Board adopted Guidelines Governing Commercial Advertising, (Nov. 19, 2015) (eff. 30 days after adoption), including Guideline 12 prohibiting "[a]dvertisements that promote or oppose any religion, religious practice or belief." The Board concluded that any economic benefit derived from issue-oriented advertising was outweighed by four considerations: (1) complaints from its employees, community opposition and outcry, and adverse publicity for WMATA; (2) security concerns from the Metro Transit Police Department and the United States Department of Homeland Security; (3) vandalism of WMATA property; and (4) the administrative burden associated with the time-intensive process of reviewing proposed ads and responding to complaints about ads. Bowersox Decl. ¶¶ 9-13. Since the Guidelines took effect, WMATA has regularly rejected ads as non-compliant with its Guidelines, including Guideline 12. See id. ¶ 17 & Ex. C.

         The "Find the Perfect Gift" ad that the Archdiocese seeks to have WMATA place on the exterior of its buses depicts a starry night and the silhouettes of three shepherds and sheep on a hill facing a bright shining star high in the sky, along with the words "Find the Perfect Gift." The ad includes a web address and a social media hashtag. Its website, although still under construction when the ad was submitted to WMATA, "contained substantial content promoting the Catholic Church," including "a link to 'Parish Resources,' . . . a way to 'Order Holy Cards,' and . . . religious videos and 'daily reflections' of a religious nature." Id. ¶ 19. The Archdiocese explains that "[t]he 'Find the Perfect Gift' campaign is an important part of [its] evangelization efforts," Decl. of Dr. Susan Timoney, S.T.D., Sec'y for Pastoral Ministry and Social Concerns, Archdiocese of Wash., ¶ 4 (Nov. 27, 2017) ("Timoney Decl."), "welcoming all to Christmas Mass. or . . . joining in public service to help the most vulnerable in our community during the liturgical season of Advent," Decl. of Edward McFadden, Sec'y of Commns., Archdiocese of Wash., serving Cardinal Donald Woerl, ¶ 3 (Nov. 27, 2017) ("McFadden Decl."). Dr. Timoney advises: "It is critically important for the goals of the . . . campaign that the Archdiocese begin spreading its message before the Advent season" because "[t]he Roman Catholic Church teaches" that in "sharing in the long preparation for the Savior's arrival with the first Christmas, we renew our ardent desire for Christ's second coming." Timoney Decl. ¶ 5.

         When the Archdiocese sought to purchase space for the "Find the Perfect Gift" ad on the exterior of Metrobuses, WMATA declined on the ground that it was impermissible under Guideline 12 "because it depicts a religious scene and thus seeks to promote religion." McFadden Decl. ¶¶ 7, 12, 16 (internal quotations omitted). On November 28, 2017, the Archdiocese filed a complaint for declaratory and injunctive relief under the First Amendment's Free Speech and Free Exercise Clauses, RFRA, and the Fifth Amendment's guarantees of due process and equal protection. The Archdiocese sought a declaration that Guideline 12 was unconstitutional under the First and Fifth Amendments and violated RFRA, and an injunction preventing WMATA from enforcing Guideline 12 to reject the Archdiocese's ad.

         The district court denied the Archdiocese's motion for a temporary restraining order ("TRO") and preliminary injunction. 281 F.Supp.3d 88 (D.D.C. 2017). Concluding the Archdiocese was not likely to succeed on the merits, the court ruled that Guideline 12 was consistent with the Free Speech Clause as a viewpoint neutral and reasonable regulation in a non-public forum, and that Guideline 12 did not burden the Archdiocese's right to free exercise as a neutral and generally applicable regulation not singling out religious activity for suppression. 281 F.Supp.3d at 102-05, 107-14. The court also rejected the Archdiocese's arguments based on RFRA and the Fifth Amendment's Due Process and Equal Protection Clauses. Id. at 115-16. The court further concluded that the three other preliminary injunction factors did not weigh in favor of granting injunctive relief, including because the Archdiocese's "irreparable harm argument rises and falls with its merits arguments." Id. at 116.

         The Archdiocese appealed and filed an emergency motion for an injunction pending appeal, "preventing WMATA from denying the Archdiocese's 'Find the Perfect Gift' campaign," and an expedited appeal on the merits. This court denied the motion for a mandatory injunction pending appeal on December 20, 2017, but set an expedited briefing schedule. After initially maintaining the case is moot because Advent has passed, the government desisted once the Archdiocese indicated it "specifically intend[s] to ask to run this exact ad in the next Advent season," Oral Arg. Tr. 27 (Mar. 26, 2018) (counsel for WMATA).


         A preliminary injunction is an "extraordinary remedy," Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165 (2010) (citation omitted). The moving party must make a "clear showing that four factors, taken together, warrant relief: likely success on the merits, likely irreparable harm in the absence of preliminary relief, a balance of the equities in its favor, and accord with the public interest." League of Women Voters v. Newby, 838 F.3d 1, 6 (D.C. Cir. 2016) (citations omitted). This court "reviews the district court's legal conclusions as to each of the four factors de novo, and its weighing of them for abuse of discretion." Id. at 6-7 (citing Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291 (D.C. Cir. 2009)).


         On appeal, the Archdiocese contends that Guideline 12 "unconstitutionally abridges . . . free speech rights by suppressing religious viewpoints on subjects that WMATA otherwise allows on bus exteriors." Appellant's Br. 13 (emphasis in original). The Archdiocese also contends that WMATA enforces Guideline 12 "arbitrarily by permitting some religious speech while excluding the Archdiocese's," which "violates the First Amendment's free speech guarantee." Id. at 14. Further, the Archdiocese contends that Guideline 12 "raises problems under the Religion Clauses and RFRA" because "WMATA's exclusion of all religious speech from bus exteriors and its interference with the Archdiocese's religious exercise violates the Free Exercise Clause and RFRA, and WMATA's arbitrary enforcement puts it in the position of a religious censor . . . favor[ing] some religions over others in violation of the Establishment Clause (and equal protection principles)." Id.

         1. To determine whether the Archdiocese has shown that it is likely to prevail on the merits requires a threshold determination of the nature of the forum at issue. The Supreme Court recently reaffirmed its "'forum-based' approach for assessing restrictions that the government seeks to place on the use of its property." Minn. Voters Alliance v. Mansky, 138 S.Ct. 1876, 1885 (2018) (quoting Int'l Soc. For Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992)). The Supreme Court has long recognized that "[e]ven protected speech is not equally permissible in all places and at all times" and that the government is not "require[d] . . . freely to grant access to all who wish to exercise their right to free speech on every type of [g]overnment property without regard to the nature of the property or to the disruption that might be caused by the speaker's activities." Cornelius, 473 U.S. at 799-800.

         Under the forum doctrine, the Supreme Court acknowledges that "[t]he existence of a right of access to public property and the standard by which limitations upon such right must be evaluated differ depending on the character of the property at issue." Perry Educ. Ass'n, 460 U.S. at 44. The Court identified three categories of property. First, public forums are "places which by long tradition or by government fiat have been devoted to assembly and debate," such as sidewalks or parks, where "the rights of the state to limit expressive activity are sharply circumscribed." Id. at 45. To enforce a content-based exclusion in a public forum, the regulation must satisfy strict scrutiny. Id. (citing Carey v. Brown, 447 U.S. 455, 461 (1980)). Second, designated public forums are those in which the government has "opened" public property "as a place for expressive activity." Id. "Although [the government] is not required to indefinitely retain the open character of the facility, as long as it does so it is bound by the same standards as apply in a traditional public forum." Id. at 46. Third, a non-public forum is public property which is not by tradition or designation a public forum, and "the [government] may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view." Id. (citing U.S. Postal Serv. v. Council of Greenburgh Civic Ass'ns, 453 U.S. 114, 131 n.7 (1981)). In this third category, policy or practice may establish that the property is not held open ...

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