United States Court of Appeals, District of Columbia Circuit
November 20, 2017
from the United States District Court for the District of
Columbia (No. 1:15-cv-01038)
J. Muise argued the cause for appellants. With him on the
briefs was David Yerushalmi.
B. Verrilli, Jr. argued the cause for appellees. With him on
the briefs were Chad I. Golder, Jonathan S. Meltzer, Patricia
Y. Lee, Gerard J. Stief, and Rex S. Heinke.
Before: Henderson and Srinivasan, Circuit Judges, and
Ginsburg, Senior Circuit Judge.
GINSBURG, SENIOR CIRCUIT JUDGE
American Freedom Defense Initiative (AFDI), Pamela Geller,
and Robert Spencer,  sought to run advertisements in Metrorail
stations and on Metrobuses in the Washington, D.C. area. The
Washington Metropolitan Area Transit Authority (WMATA)
refused the advertisements because they violated a
then-recently adopted moratorium on issue-oriented
advertising in the Metro system. AFDI sued both WMATA and its
then-general manager, Jack Requa,  claiming WMATA's refusal
to display its advertisements violated its rights to free
speech and equal protection under the First and Fourteenth
Amendments to the Constitution of the United States. The
district court granted summary judgment on behalf of WMATA,
which we affirm in part and reverse in part.
which was created by an interstate compact among the District
of Columbia, Maryland, and Virginia, operates the Metrorail
and Metrobus services that provide Washington-area residents
with the majority of their public transit options. D.C. Code
§ 9-1107.01. Relevant to this litigation, WMATA permits
advertising throughout the Metro system; specifically,
Metrobuses display advertisements on their exteriors, and the
Metrorail stations contain advertising "dioramas."
describes itself as "a nonprofit organization ...
dedicated to freedom of speech, freedom of conscience,
freedom of religion, and individual rights." It
"promotes its objectives by ... purchasing advertising
space on transit authority property ... to express its
message on current events and public issues, including issues
involving the suppression of free speech by Sharia-adherent
Islamists and complicit government officials." It was in
furtherance of this mission that AFDI wanted to advertise in
the Metro system in May 2015.
submitted two advertisements, identical in content, one to be
displayed on the exteriors of Metrobuses and the other meant
for Metrorail station dioramas. The advertisements depict a
turbaned, bearded, sword-wielding man who is apparently meant
to be the Prophet Muhammad. A speech bubble emerging from the
man's mouth contains the sentence "YOU CAN'T
DRAW ME!" Below the man is a disembodied hand, paler in
color, holding either a pen or a pencil pressed to paper.
From the hand comes a speech bubble reading "THAT'S
WHY I DRAW YOU." The phrase "SUPPORT FREE
SPEECH" appears at the top of the advertisements.
According to AFDI's complaint, the advertisements
"make the point that the First Amendment will not yield
to Sharia-adherent Islamists who want to enforce so-called
blasphemy laws here in the United States, whether through
threats of violence or through the actions of complicit
WMATA began accepting advertising in the 1970s, it accepted
issue-oriented advertisements, including political,
religious, and other advocacy. According to the uncontested
testimony of Lynn Bowersox, WMATA's Assistant General
Manager for Customer Service, Communications, and Marketing,
WMATA had dealt with controversies surrounding issue-oriented
advertisements for much of the 1980s and 1990s. In the early
2010s, however, the controversies grew, with monthly
complaints over advertisements that disrespected President
Obama, depicted animal cruelty, advocated the use of condoms
to prevent sexually-transmitted diseases, and supported the
legalization of marijuana. By the time AFDI submitted the
advertisements at issue in this case, WMATA's leadership
had spent "nearly 5 years of looking at" the
question whether to permit issue-oriented advertisements.
submitted its advertisements in May 2015. Not long
thereafter, Ms. Bowersox directed her staff to prepare a
memorandum detailing WMATA's history with AFDI.
Additionally, Mr. Mort Downey, then Chairman of WMATA's
Board, sent Ms. Bowersox an email message to which he
attached an article about a recent shooting in Garland, Texas
linked to the advertisements AFDI wanted to run on the Metro
system; he asked Ms. Bowersox to be prepared to discuss it at
the May meeting of the Board. Ms. Bowersox also prepared for
the executive session of the board meeting a memorandum
advocating the closure of WMATA's advertising space to
issue-oriented advertising. In her deposition, Ms. Bowersox
allowed as how AFDI's submission was "the straw that
broke the camel's back" and prompted her to
recommend WMATA temporarily refuse to run issue-oriented
consensus among members of the Board at the executive session
was to accept Ms. Bowersox's recommendation of a
temporary moratorium on issue-oriented advertisements, which
by its terms "close[d] WMATA's advertising space to
any and all issue-oriented advertising, including but not
limited to, political, religious and advocacy advertising
until the end of the calendar year." No member of the
Board mentioned AFDI's advertisements; the only specific
advertisements mentioned were either "talking about open
skies agreements with certain Mid-East countries" or
detailing "animal experimentation practices at some of
our national science institutes." With the Moratorium in
place, WMATA rejected AFDI's proposed advertisements.
2015, AFDI sued, claiming WMATA's "restriction on
[AFDI's] speech [was] content- and viewpoint-based in
violation of the Free Speech Clause of the First
Amendment" and WMATA's "true purpose for
adopting the [Moratorium] was to silence the viewpoint
expressed by [AFDI's] speech." For the same reasons
AFDI claimed WMATA's actions deprived it of equal
protection under the law, in violation of the Fourteenth
did not sit idly by during the pendency of this litigation.
In November 2015, it rescinded the Moratorium and adopted a
series of "Guidelines Governing Commercial
Advertising," the relevant parts of which provide:
9. Advertisements intended to influence members of the public
regarding an issue on which there are varying opinions are
11. Advertisements that support or oppose any political party
or candidate are prohibited.
12. Advertisements that promote or oppose any religion,
religious practice or belief are prohibited.
13. Advertisements that support or oppose an industry
position or industry goal without direct commercial benefit
to the advertiser are prohibited.
did not amend its complaint to take account of the new
Guidelines; its complaint still challenges only the
Moratorium, which is no longer in place. Neither did it
resubmit to WMATA the previously rejected advertisements for
reconsideration under the Guidelines.
district court granted WMATA's motion for summary
judgment. AFDI v. WMATA, 245 F.Supp.3d 205 (D.D.C.
2017). First, the court determined WMATA's advertising
space was a nonpublic forum once the Moratorium came into
effect. Id. at 210-11. Speech-restrictive actions in
a nonpublic forum must be both viewpoint neutral and
reasonable, see Good News Club v. Milford Cent.
Sch., 533 U.S. 98, 106-07 (2001), and the district court
concluded WMATA's restrictions were both. See
WMATA, 245 F.Supp.3d at 211-13. The district court also
held neither the Moratorium nor the Guidelines were
unconstitutionally vague. Id. at 213-14.
AFDI did not amend its complaint, we face at the outset a
jurisdictional question: Did the repeal of the Moratorium
moot this case? We conclude it did not. Though the district
court did not address mootness, "we have an independent
obligation to assure ourselves of jurisdiction." Am.
Council of Life Insurers v. D.C. Health Benefit Exch.
Auth., 815 F.3d 17, 19 (D.C. Cir. 2016) (internal
quotation marks omitted).
acutely aware that "Article III of the Constitution
restricts the federal courts to deciding only actual, ongoing
controversies, and a federal court has no power to render
advisory opinions or decide questions that cannot affect the
rights of litigants in the case before them."
Nat'l Black Police Ass'n v. Dist. of
Columbia, 108 F.3d 346, 349 (D.C. Cir. 1997) (cleaned
up). Though a plaintiff's claim may be justiciable when
filed, "a federal court must refrain from deciding it if
events have so transpired that the decision will neither
presently affect the parties' rights nor have a
more-than-speculative chance of affecting them in the
future." Initiative & Referendum Inst.
(IRI) v. USPS, 685 F.3d 1066, 1074 (D.C.
Cir. 2012) (internal quotation marks omitted). At first
blush, that is what seems to have happened here. AFDI's
complaint seeks injunctive and declaratory relief only
against the Moratorium, but the Moratorium was replaced by
the Guidelines in November 2015. There seems little point in
enjoining the enforcement of a moratorium that is no longer
however, "[t]he intervening event ... is of the
[defendant]'s own doing." IRI, 685 F.3d at
1074. When this occurs, we examine whether the
defendant's voluntary cessation of the challenged action
truly renders the case moot. Id. Generally it does
not unless "(1) there is no reasonable expectation that
the alleged violation will recur, and (2) interim relief or
events have completely or irrevocably eradicated the effects
of the alleged violation." Nat'l Black Police
Ass'n, 108 F.3d at 349 (cleaned up).
however, is not a mine-run case of voluntary cessation. WMATA
did repeal the challenged Moratorium, but it replaced the
Moratorium with a policy that is fundamentally similar; the
Guidelines are in effect a particularization and finalization
of the temporary Moratorium. It is not quite correct to say
WMATA has ceased the challenged conduct; instead, WMATA has
renewed the challenged conduct in a new form.
analogous Supreme Court decision makes clear this case is not
moot. Northeastern Florida Chapter of Associated General
Contractors of America (AGC) v. City of
Jacksonville, involved a challenge to a minority-owned
business preference in the Jacksonville purchasing code. 508
U.S. 656, 658 (1993). Shortly after the Court had granted
certiorari, Jacksonville repealed that portion of its
purchasing code and replaced it with a new ordinance
differing only in minor respects. Id. at 660-61. The
Court held the case was not moot: "There [was] no mere
risk that Jacksonville [would] repeat its allegedly wrongful
conduct" for "it [had] already done so."
Id. at 662. The voluntary cessation exception to
mootness is not limited, however, to cases in which "the
selfsame statute will be [re]enacted"; "if
that were the rule, a defendant could moot a case by
repealing the challenged statute and replacing it with one
that differs only in some insignificant respect."
Id. The new ordinance in AGC "may
[have] disadvantage[d] [the plaintiffs] to a lesser degree
than the old one, but ... it disadvantage[d] them in the same
fundamental way." Id. Therefore the case was
not moot. See also Global Tel*Link v. FCC, 866 F.3d
397, 413-14 (D.C. Cir. 2017).
here. WMATA does not contend the change to the Guidelines has
remedied AFDI's alleged injury; clearly AFDI's
proposed advertisements are just as unacceptable to WMATA
under the Guidelines as they were under the Moratorium; the
Moratorium banned issue-oriented advertisements, and so do
the Guidelines. AFDI, in other words, is still disadvantaged
in the same fundamental way. Indeed, AFDI's briefs are
best read to say it would resubmit its advertisements but for
their certain rejection under the Guidelines.
further question remains: Should we decide the
constitutionality of the Moratorium or the constitutionality
of the Guidelines? "A change in the law between a nisi
prius and an appellate decision requires the appellate court
to apply the changed law." Ziffrin, Inc. v. United
States, 318 U.S. 73, 78 (1943). Though the present
situation is slightly different, for the policy here changed
prior to rather than after the district court's decision,
precedent and practicality direct us to deal with the world
as it is now, not as it was when the case was filed. As for
precedent, we note the Supreme Court routinely considers
agency regulations that had superseded the originally
challenged regulation during the course of the litigation.
See, e.g., Cal. Bankers Ass'n v.
Shultz, 416 U.S. 21, 53 (1974) ("We, of course,
must examine the statute and the regulations as they now
exist"); Thorpe v. Housing Auth. of Durham, 393
U.S. 268, 281-82 (1969) (noting the "general rule"
that "an appellate court must apply the law in effect at
the time it renders its decision"). As for
practicality, we see no advantage to either of the parties in
our ruling upon a policy that has no continuing bite.
concluded this case remains justiciable, we move to the
merits. We classify WMATA's advertising space as a
nonpublic forum and hold WMATA's restrictions are
viewpoint-neutral; we remand to the district court the
question whether the restrictions are reasonable, which that
court should reexamine in light of Minnesota Voters
Alliance v. Mansky, 138 S.Ct. 1876 (2018).
review of a district court's grant of summary judgment is
de novo. Bank of N.Y. Mellon Trust Co. NA v.
Henderson, 862 F.3d 29, 32 (D.C. Cir. 2017). Summary
judgment should issue "if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Fed.R.Civ.P.
56(a). "[T]here is such a 'genuine issue' if
'a reasonable jury could return a verdict for the
nonmoving party.'" Galvin v. Eli Lilly &
Co., 488 F.3d 1026, 1031 (D.C. Cir. 2007) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). There are no disputed facts in this case. The only
dispute concerns application of the law to the agreed facts.
challenges only Guidelines 9, 11, 12, and 13. We note at the
outset that Guidelines 11 (banning "[a]dvertisements
that support or oppose any political party of
candidate") and 13 (prohibiting "[a]dvertisements
that support or oppose an industry position or industry goal
without any direct commercial benefit to the
advertiser") are obviously inapplicable to this
litigation; AFDI's advertisements are not partisan, ...