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American Freedom Defense Initiative v. Washington Metropolitan Area Transit Authority

United States Court of Appeals, District of Columbia Circuit

August 17, 2018

American Freedom Defense Initiative, et al., Appellants
Washington Metropolitan Area Transit Authority, WMATA and Paul J. Wiedefeld, in his official capacity as General Manager for WMATA, Appellees

          Argued November 20, 2017

          Appeal from the United States District Court for the District of Columbia (No. 1:15-cv-01038)

          Robert J. Muise argued the cause for appellants. With him on the briefs was David Yerushalmi.

          Donald 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.



         The American Freedom Defense Initiative (AFDI), Pamela Geller, and Robert Spencer, [1] 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, [2] 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.

         I. Background

         WMATA, 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."

         AFDI 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.

         AFDI 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 government officials."

         When 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.

         AFDI 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 advertisements.

         The 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.

         In July 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 Amendment.

         WMATA 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 prohibited.
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.

         AFDI 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.

         The 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.

         II. Analysis

         Because 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).

         A. Justiciability

         We are 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 in place.

         Here, 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).

         This, 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.

         An 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).

         So too 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.[3]

         One 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").[4] As for practicality, we see no advantage to either of the parties in our ruling upon a policy that has no continuing bite.

         B. Merits

         Having 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).

         Our 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.

         AFDI 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, ...

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