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Case 1:07-cv-01495-HHK Document 11 Filed 03/14/2008 Page 1 of 21

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Plaintiffs,

v.

Civil Action No.: 07-cv-01495 (HHK)

ACT NOW TO STOP WAR AND END
RACISM COALITION, et al.,

)
)
)
)
)
)
)
)
)
____________________________________)

DISTRICT OF COLUMBIA,

Defendant.

PLAINTIFFS’ OPPOSITION TO

DEFENDANT’S MOTION TO DISMISS

Political postering, which is analogous to leafleting, is an historic and protected means

for conveying political thoughts, ideas and energizing movements at the grassroots level. The

constitutional rights of free speech accrue to the benefit not only of those with means to purchase

advertisements, or those whose views are in line with the government, or that reflect established

interests or political parties, but to all - - including those who engage directly in democratic

action or criticism of government policies through the time honored traditions of political

postering.

“The liberty of the press is not confined to newspapers and periodicals. It
necessarily embraces pamphlets and leaflets. These indeed have been historic
weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in
our own history abundantly attest. The press in its historic connotation
comprehends every sort of publication which affords a vehicle of information and
opinion. What we have had recent occasion to say with respect to the vital
importance of protecting this essential liberty from every sort of infringement
need not be repeated.”

Lovell v. Griffin, 303 U.S. 444, 452 (1938) (declaring as facially void, a municipal ordinance
which required registration and license in order to distribute leaflets)

The case before this Court does not arise in the context of an absolute ban on postering

on public lampposts and appurtenances. It presents a case in which the municipal government of

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Case 1:07-cv-01495-HHK Document 11 Filed 03/14/2008 Page 2 of 21

the District of Columbia has opened that forum to postering, but then unconstitutionally

burdened those who post disfavored content with strict restrictions on duration, with other

conditions, as well as the risk of severe financial sanction for violations. Those who post signs

with government favored content, that which challenges local crime or which carries the message

of candidates speaking within the establishment electoral process, are not subject to these same

restrictions and do not risk such sanctions. This arrangement is even more pernicious than an

ordinance which would ban political postering outright on public lampposts, for a ban on this

form of communication so deeply rooted in the District’s political process might engender a

political reaction. Here, the District has crafted a system of postering authorities and penalties

such that those whose messages are favored by the government can post freely and with

relatively little risk. Those, like plaintiffs, who wish to engage in grassroots activism including

advocacy that condemns the U.S. war and occupation in Iraq have their free speech rights

abridged and risk crippling and severe financial penalties should they seek to post in the same

manner as is allowed persons campaigning for elected office or speaking against neighborhood

crime.

The District of Columbia has established a patently unconstitutional system that grants

privileges and imposes restrictions on postering activity based on the content of the message

expressed. It is a content-based system that is void on its face, for there is no conceivable basis

and certainly no compelling state interest (and, notably, none offered by the defendant in its

motion) justifying this content based regulation of protected expressive conduct.1


1 The applicable constitutional framework was described by one U.S. District Court as follows:
“[The Supreme] Court has held time and time again: ‘Regulations which permit the government to discriminate on
the basis of the content of the message cannot be tolerated under the First Amendment.’ Forsyth County, 505 U.S. at
135, quoting, Regan v. Time, Inc., 468 U.S. 641, 648-49 (1984). Content-based regulations, particularly those that
discriminate against political speech, are subject to ‘the most exacting scrutiny.’ Bartnicki v. Vopper, 200 F.3d 109,
121 (3d Cir. 1999), aff’d, 532 U.S. 514 (2001). To meet the exacting standard of strict scrutiny, the government
must prove that the content-based regulation is necessary to serve a compelling governmental interest and is

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Case 1:07-cv-01495-HHK Document 11 Filed 03/14/2008 Page 3 of 21

Before the Court are two organizational plaintiffs, each with independent standing to

raise on their own behalf and on behalf of others a facial challenge to this unconstitutional,

overbroad and discriminatory set of regulations. The District of Columbia asks this Honorable

Court to dismiss the challenge to this patently unconstitutional system on prudential

considerations of abstention.

For the reasons stated below, the Court should deny the District of Columbia’s motion.

I.

Abstention is Not Applicable Where Plaintiffs Do Not Seek to Enjoin

Younger
any Administrative Enforcement Action, But Instead Present a Broad and
Specific Constitutional Facial Challenge to Postering Regulations that are
Overbroad, Content-based and that Objectively Chill First Amendment
Protected Activity

The two organizational plaintiffs, the ANSWER Coalition (Act Now to Stop War & End

Racism) and the Muslim American Society Freedom Foundation (MASF) challenge the District

of Columbia’s postering regulations as being flagrantly and patently unconstitutional as those

regulations establish a hierarchy of favored and disfavored speech based on an apparent ranking

of the perceived importance of content. See

First Amended Complaint at 2 – 4; id. at 6, ¶¶7 – 10;

id.

at 6 – 7, ¶¶13-20; id.

at 10, ¶¶36 - 38 (unconstitutional hierarchy established based on whether

content of speech is commercial or “related to the sale of goods or services,” non-commercial or

advocacy or not “related to the sale of goods or services,” political campaign literature or signs

of “individuals seeking office,” or “designed to aid in neighborhood protection from crime”).

The regulatory system uses restrictions and exemptions and selectively imposes strict burdens

and limitations based on the messaging content of the poster. See

First Amended Complaint at 2-

4; id.

at 6, ¶¶7 – 20; id.

at 10 – 11, ¶¶36 – 41.


narrowly drawn to achieve that end. Id.” Bell Vista United v. City of Philadelphia, Civil Action No. 04-1014
(E.D.Pa. 2004) at 16.

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Case 1:07-cv-01495-HHK Document 11 Filed 03/14/2008 Page 4 of 21

Anti-crime posters may be posted forever. Political campaign literature may be posted for

an indefinite amount of time and even long after a candidate has withdrawn from a race. Yet

sixty day limits are imposed on grassroots political advocacy speech, including anti-war speech,

despite the fact that the war and occupation rage on. See

First Amended Complaint at 2- 4; id.

at

6 – 7, ¶¶14 – 20.

The two organizational plaintiffs also challenge the postering regulations as being

flagrantly and patently unconstitutional as they require registration with the government to

engage in political postering, thereby prohibiting anonymous postering,2 although that

requirement is waived if the content of the speech is political campaign literature. See

First

Amended Complaint at 4; id.

at 10 – 11, ¶39.

The two organizational plaintiffs also challenge the strict liability and vicarious liability

scheme of enforcement,3 whereby the government claims the authority to issue citations and

financial penalties to persons/groups who merely associate with those who engage in postering,

including to landlords or persons who rent or share office space in the same building, and


2 “There can be no doubt that such an identification requirement would tend to restrict freedom to distribute
information and thereby freedom of expression. . . . Anonymous pamphlets, leaflets, brochures and even books have
played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout
history have been able to criticize oppressive practices and laws either anonymously or not at all. The obnoxious
press licensing law of England, which was also enforced on the Colonies was due in part to the knowledge that
exposure of the names of printers, writers and distributors would lessen the circulation of literature critical of the
government. ” Talley v. California, 362 U.S. 60, 64 (1960) (declaring unconstitutional an ordinance requiring that
handbills have printed on them the names of persons who distributed or sponsored them); See
Bible and Tract Society, Inc. v. Village of Stratton, 536 U.S. 150 (2002) (registration requirement to canvas violates
First Amendment) ; But
advertisement or poster, two (2) copies of the material shall be filed with an agent of the District of Columbia so
designated by the Mayor. The filing shall include the name, address, and telephone number of the originator of the
sign, advertisement, or poster.”).

24 D.C.M.R. §108.11 (“Within twenty-four (24) hours of posting each sign,

see

also

Watchtower

3 “[A]n individual may [not] be held liable for damages merely by reason of his association with others who
committed unlawful acts.” N.A.A.C.P. v. Claiborne Hardware, 458 U.S. 886, 920 n.56 (1982) (oft cited for the
principle that the First Amendment does not tolerate guilt by association). The concept of due process likewise
requires that guilt be personal. See, e.g., Scales v. United States, 367 U.S. 203, 225 (1961). Where First Amendment
freedoms are at stake, an even greater degree of specificity and clarity of laws is required. N.A.A.C.P. v. Button, 371
U.S. 415, 432-33 (1963) (“Because First Amendment freedoms need breathing room to survive, government may
regulate in the area only with narrow specificity.”).

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Case 1:07-cv-01495-HHK Document 11 Filed 03/14/2008 Page 5 of 21

regardless of who actually posted any poster at issue. See

First Amended Complaint at 8 – 9,

¶¶25 – 34.

The two organizational plaintiffs also challenge the regulations as unconstitutionally

vague, in particular with respect to the failure to place persons on notice as to what are allowable

or prohibited adhesives and for vagueness in the definition of what constitutes a “block” or a

“version” of a poster for the purpose of enforcing a limitation of 3 versions of a poster per block.

See

First Amended Complaint at 11, ¶42; 24 D.C.M.R. §108.10 (“No more than three (3)

versions or copies of each sign, advertisement or poster shall be affixed on one (1) side of a

street within one (1) block.”)

As reflected above, the two organizational plaintiffs present a broad-scale and specific

constitutional challenge to the postering regulations that sweep across the full scope of their

breadth.

Independently and collectively these regulations objectively chill postering and

expressive activity. If a person or group wishes to poster on anti-war or civil rights issues to the

same extent that persons are allowed to poster on anti-crime issues, that person or group must be

willing to accept bankrupting financial penalties. See, D.C. Law 15-205 of 2004 (fine for the 1st

violation is $150 or 8 service hours, for 2nd violation is $300 or 16 service hours, for 3rd violation

is $600 or 32 hours, and for 4th or greater violation is $2000 or 100 service hours), The same

draconian sanctions await any person or group that seeks to poster to the same extent as is

otherwise allowed by the District to individuals seeking office or posting electoral campaign

literature.

In response to this broad and specific constitutional challenge, the District of Columbia

urges abstention by pointing to notices of infraction citing the ANSWER Coalition for allegedly

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Case 1:07-cv-01495-HHK Document 11 Filed 03/14/2008 Page 6 of 21

violating one provision of the regulations, the adhesive clause, which prohibits the posting of

posters “affixed by adhesives that prevent their complete removal from the fixture or that do

damage to the fixture.” See

Def’s Memo. at 3; 24 D.C.M.R. §108.9.

Understanding the related enforcement proceedings to be properly confined to that which

is reflected on the face of the notices of infraction, specifically whether there has been a violation

in certain instances of the adhesive clause, there is no reason to anticipate (as the District argues

in its legal argument) that the ANSWER Coalition “may raise any and all of its asserted

constitutional issues there.” Def’s Opp at 3.

First, the administrative hearing will not allow or entertain constitutional challenges to

the underlying regulations. This position has been reiterated by the Administrative Judge in the

current citation hearings. See

1 D.C.M.R. 512.9 (prohibiting hearing examiner from refusing to

enforce provision where provision is repugnant to the U.S. Constitution).

Second, accepting the issue in administrative proceedings as the District frames it, even

where constitutional defenses were asserted4 there would be little reason to reach and adjudicate

constitutional issues. Either the ANSWER Coalition used adhesive that damaged public property

when posters were removed or it didn’t. This is a factual issue, not a constitutional issue. No

party stands before this Court to argue, as the District suggests, the existence of a First

Amendment right to permanently damage public property. See, Def’s Memo at 3 (“The District

has a valid esthetic interest in ensuring that public property is not permanently marred or

damaged by improperly attached posters. . .”). That is not what the case before this Court is


4 The administrative proceedings are not adequate for the airing of constitutional defenses, particularly those that are
fact based such as defenses based on bad faith, retaliatory intent, unconstitutional targeting and selective
enforcement. No discovery is allowed the respondent as a matter of right in the administrative proceeding. 1
1
D.C.M.R §2823. The administrative judges lack the legal competency to entertain constitutional challenges. See
D.C.M.R. §512.9 (“In deciding appeals, a hearing committee shall not have the authority to refuse to enforce any
statute, rule or regulation of the United States or of the District of Columbia on the ground that it is repugnant to the
Constitution of the United States.”).

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Case 1:07-cv-01495-HHK Document 11 Filed 03/14/2008 Page 7 of 21

about. The District of Columbia mischaracterizes the thrust of the present case in order to make

its misplaced argument for dismissal.

This case presents a challenge far broader in scope than fine regulatory details about

allowable adhesives.

Right now, those who wish to poster against the war and occupation of Iraq risk

substantial penalties for leaving posters up indefinitely or at least for the duration of the

occupation or even for the several month period in advance of a mass action necessary to build a

demonstration. Yet, at the very same time, those who speak out against neighborhood crime may

leave their posters up forever. Signs with content challenging neighborhood crime are favored,

signs with content challenging war crimes are disfavored.

Likewise, signs with content supporting a candidate for election are favored while signs

with content challenging political decisions are disfavored. Those who seek elected office may

leave their signs up for as many months as they remain relevant to an election and even long

after a candidate has withdrawn from a race. Any anti-war group that posts similarly will be

crushed and extinguished by fines and draconian penalties. One hundred cited posters leads to a

two hundred thousand dollar fine or, alternatively, a period of servitude that exceeds one full

year (if one counts all of the hours in a year, and leaves none for food, sleep or breaks). See

D.C.

Law 15-205 of 2004, “Fiscal Year 2005 Budget Support Act of 2004,” (4th and subsequent

violations penalized each with $2,000 fine or 100 hours of public service).

Bizarrely, and without any factual basis whatsoever, the District of Columbia contends

this has no chilling effect on constitutionally protected speech. See Def’s Memo. at 3 (“neither

plaintiff has shown the realistic potential for a ‘chilling effect’ on the exercise of any

constitutional right.”).

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Case 1:07-cv-01495-HHK Document 11 Filed 03/14/2008 Page 8 of 21

No reasonable person or organization can fully exercise their rights under this threat. See,

New York Times Co. v. Sullivan, 376 U.S. 254, 277 (1964) (“[T]he fear of damage awards . . .

may be markedly more inhibiting than the fear of prosecution under a criminal statute.”).

The anti-war ANSWER Coalition has expended substantial organizational resources to

voluntarily remove posters to avoid such penalties based on duration of posting - - even though

anti-war posters maintain their relevancy as the war and occupation of Iraq continues. See

Exhibit 1, Affidavit of Brian Becker at ¶¶4 – 6.

The constituency of plaintiff Muslim American Society Freedom Foundation is one that

has been targeted by the government and has great concerns about the risk of bringing the force

of the state upon it by the full exercise of their rights through postering on issues of public import

and debate. See Exhibit 2, Affidavit of Imam Mahdi Bray at ¶4. They, too, must refrain from

using posters the same way as is allowed those whose speech pertains to neighborhood crime or

whose speech supports a candidacy for elected office. Id.

at ¶¶5 – 6.

The injury to these plaintiffs is not only imminent, it is current and ongoing.

Historically, social change - - including popular action to force the cessation of unjust

war or policies - - has come from the popular expression of speech and democratic action.

Hence, the primacy of the protection of free speech as the First Amendment to the U.S.

Constitution. Few restrictions manifest a more flagrant violation of the First Amendment than

those which regulate and restrict based on the content of speech, much less establish a formalized

hierarchy as do the District regulations.

The District’s apparent interests lie in the protection of election related speech and in the

preservation of posters the substance of which is designed to prevent neighborhood crime.

Grassroots political speech outside of the limited electoral process is not the interest of the

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Case 1:07-cv-01495-HHK Document 11 Filed 03/14/2008 Page 9 of 21

District of Columbia government. Anti-war activists, including the plaintiffs, cannot afford

access to television or radio ads or even billboards as can the major political parties. Grassroots

activism, which may be the most direct form of democratic action, relies on posters, on leaflets,

on person-to-person and low cost person-to-public means of communication. Yet, speech

consisting of grassroots activism is discriminated against on the basis of content with the

District’s regulation of postering activity.

In its motion to dismiss, the District of Columbia presents no compelling state interest to

justify this content-based discrimination. No relevant case law suggests, and all relevant case law

rejects, that personal preference or aesthetics justifies content based discrimination. The District

of Columbia offers no argument that its discriminatory and hierarchical content-based ranking

and restriction of speech survives strict scrutiny. That is because there is no such argument. This

is a plainly unconstitutional abridgment of speech and expressive activity.

The District of Columbia returns in its argument repeatedly to the contention that

government has an interest in aesthetics and may regulate conduct in furtherance of that interest.

Yet the District’s regulations are content-based and not a neutral aesthetically driven constraint.

Plaintiffs do not dispute that avoidance of visual clutter or aesthetics may, under existing case

law, form a legitimate state interest that may be advanced in a non-discriminatory and

constitutional manner by the District of Columbia. However, the District of Columbia does not

have an objection to postering generally based on aesthetics. Having opened the forum of public

lampposts and appurtenances to postering, the District of Columbia may not restrict access or use

of that forum on the basis of content of speech, particularly political content that is at the core of

the First Amendment’s protections.

II.

Abstention Is Not Appropriate in the Face of the Flagrant and Constitutional
Violations Manifest in the Challenged Regulations

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Case 1:07-cv-01495-HHK Document 11 Filed 03/14/2008 Page 10 of 21

The District concurs that the Younger

abstention doctrine does not apply where the

federal plaintiff presents a flagrant and patent constitutional violation. Def’s Memo. at 6; See

also

JMM Corp., 378 F.3d at 1122, citing

Younger v. Harris

401 U.S. 37, 53 – 54 (1971)

(abstention doctrine not applicable where flagrant and patent constitutional violation present);

Dumbrowski v. Pfister, 380 U.S. 479, 489-90 (1965) (“We hold the abstention doctrine is

inappropriate for cases such as the present one where. . . statutes are justifiably attacked on their

face as abridging free expression, or as applied for the purpose of discouraging protected

activities.”)

Accordingly, abstention is neither appropriate nor mandated in this case.

The District of Columbia’s regulations of postering are nothing less than a shocking and

flagrant violation of the First Amendment. There are few offenses more anathema to, and more

clearly proscribed by, the First Amendment than government action that restricts speech or, as in

this case, creates a hierarchy of speech restrictions based on content.

This is a far cry from the circumstance in JMM Corp. v. District of Columbia, 378 F.3d

1117 (D.C. Cir. 2004), where the Court of Appeals explicitly observed that the zoning situation

in that case was not “flagrantly and patently” in violation of the Constitution, particularly given

the multiple U.S. Supreme Court cases upholding such zoning regulation of porn shops in the

face of First Amendment challenges. JMM Corp. v. District of Columbia, 378 F.3d 1117, 1127

(D.C. Cir. 2004).

The District of Columbia intentionally misrepresents plaintiffs’ claims when the District

claims that “plaintiffs have not alleged” the postering regulations to be flagrantly and patently

unconstitutional. Defs’ Memo. at 6. This is demonstrably false.

Plaintiffs, in the First Amended Complaint, assert that

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Case 1:07-cv-01495-HHK Document 11 Filed 03/14/2008 Page 11 of 21

“The District’s postering regulatory system is precisely the sort of severe and
discriminatory system that is intended to be precluded by operation of the First
Amendment. The Supreme Court has repeatedly warned against regulatory
systems which use restrictions and exemptions to favor certain speech based on
content.

‘[A]n exemption from an otherwise permissible regulation of speech may
represent a governmental ‘attempt to give one side of a debatable public question
an advantage in expressing its views to the people.’ First Nat. Bank of Boston v.
Bellotti, 435 U.S. 765, 785-786 (1978). Alternately, through the combined
operation of a general speech restriction and its exemptions, the government
might seek to select the ‘permissible subjects for public debate’ and thereby to
‘control . . . the search for political truth.’ Consolidated Edison Co. of N.Y. v.
Public Serv. Comm’n of N.Y., 447 U.S. 530, 538 (1980).’ City of Ladue v.
Gilleo, 512 U.S. 43, 52 (1994).”
First Amended Complaint at 10, ¶36.

Plaintiffs also assert that

“The District has created a hierarchy of speech within its regulation of postering.
The District of Columbia postering restrictions are a classic, unconstitutional
regulatory system in which favored content or subject matter receives favored
treatment and privileges and where disfavored content, including anti-war posters
calling for mass assembly, is burdened with crippling and potentially bankrupting
fines.”

Id.at 2 – 3.

Plaintiffs also observe the flagrancy of the violation, asserting that

“[A]nti-war posters merit no less protection than these other forms of political
speech. Courts have acknowledged that expression that protests a decision to go
to war is ‘absolutely pivotal speech.’ City of Ladue, 512 U.S. 43, 54 (1994).”
Id.

at 10, ¶38.

Plainly, the gravamen of the plaintiffs’ complaint is that the postering regulations are

patently and flagrantly unconstitutional.

III. MASF and the ANSWER Coalition Independently Have Standing

Under traditional and ordinary rules of standing, a group which has present objective

harm or threat of a specific future harm has standing. See

Def’s Memo. at 16 citing

Laird v.

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Case 1:07-cv-01495-HHK Document 11 Filed 03/14/2008 Page 12 of 21

Tatum, 408 U.S. 1, 14 (1972); See

also

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 – 61

(1992) (standing exists where there is injury in fact, the injury is fairly traceable to the

challenged conduct, and is likely to be redressed by a favorable decision).

Both plaintiffs in this case, the ANSWER Coalition and MASF, have standing. These

organizations’ constitutionally protected freedoms are currently injured. See, Elrod v. Burns,

427 U.S. 347, 373-374 (1976) (“The loss of First Amendment freedoms, for even minimal

periods of time, unquestionably constitutes irreparable injury”); See

also

Branch v. F.C.C., 824

F.2d 37 (D.C. Cir. 1987), quoting

Elrod v. Burns, 427 U.S. 347, 373 – 374 (1976).

Both MASF and the ANSWER Coalition are currently refraining from posting materials

on public lampposts and appurtenance to the extent as is allowed those engaging in favored

speech because of the existence of the postering regulations and the severe penalties imposed for

violations. See

Exhibit 1, Affidavit of Brian Becker at ¶¶3,7; Exhibit 2, Affidavit of Imam Mahdi

Bray at ¶5 Most fundamentally, this harms and discriminatorily limits these organizations’

abilities to reach out and communicate to the public at large through posters. See

Exhibit 1,

Affidavit of Brian Becker at ¶5; Exhibit 2, Affidavit of Imam Mahdi Bray at ¶6.

The ANSWER Coalition has been forced to expend its limited organizational and

volunteer resources in order to physically remove posters to avoid penalties for posting them for

the same duration as is allowed for campaign posters or anti-crime posters. See Exhibit 1,

Affidavit of Brian Becker at ¶¶4 – 6. This diversion of resources detracts from their primary

organizational purposes, including engaging in anti-war and anti-racism advocacy. Id.

at 5; See

Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982) (standing conferred by frustration of

purpose and related diversion of resources). The Coalition must also divert organizational and

human resources to counsel new volunteers, many of whom are concerned about, and

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Case 1:07-cv-01495-HHK Document 11 Filed 03/14/2008 Page 13 of 21

Exhibit 1, Affidavit of Brian Becker at ¶7.





discouraged from, engaging in postering because of the risk of enormous personal fines. See

These circumstances all present cognizable and direct injury-in-fact that meet the

traditional requirements for standing.

In addition to direct standing, the plaintiffs also assert third-party standing on behalf of

the First Amendment interests of others not directly before the Court. See

Exhibit 1, Affidavit of

Brian Becker at ¶8 (brings suit on behalf of self and others); Exhibit 2, Affidavit of Imam Mahdi

Bray at ¶3 (same).

The impermissible risk of chilling free speech is of such constitutional magnitude and

concern that the U.S. Supreme Court has created an exception from the general standing rules to

allow parties to present facial challenges to statutes or regulations that have the potential to chill

expressive activity. See, Forsyth County v. Nationalist Movement, 505 U.S. 123, 129 (1992);

Thornhill v. Alabama, 310 U.S. 88, 97 (1940); Freedman v. Maryland, 380 U.S. 51, 56 (1965);

See

also

Virginia v. American Booksellers Ass’n, 484 U.S. 383, 392-93 (1988) (plaintiff may

also bring claims on behalf of those who would be chilled from constitutionally protected speech

or expression through challenged action); Secretary of State of MD v. J.H. Muson Co., 467 U.S.

947, 956-57 (1984); Broadbrick v. Oklahoma, 413 U.S. 601, 612 (1973).

“This exception from general standing rules is based on an appreciation that the very

existence of some broadly written laws has the potential the chill the expressive activity of others

not before the Court.” Forsyth, 505 U.S. at 129 – 130. This exception expressly encompasses

“cases where the ordinance sweeps too broadly, penalizing a substantial amount of speech that is

constitutionally protected.” Id.

at 130.

“It has long been recognized that the First Amendment needs breathing space and
that statutes attempting to restrict or burden the exercise of First Amendment

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Case 1:07-cv-01495-HHK Document 11 Filed 03/14/2008 Page 14 of 21

rights must be narrowly drawn and represent a considered legislative judgment
that a particular mode of expression has to give way to other compelling needs of
society. As a corollary, the Court has altered its traditional rules of standing to
permit — in the First Amendment area — ‘attacks on overly broad statutes with
no requirement that the person making the attack demonstrate that his own
conduct could not be regulated by a statute drawn with the requisite narrow
specificity.’ Dombrowski v. Pfister, 380 U.S., at 486. Litigants, therefore, are
permitted to challenge a statute not because their own right of free expression are
violated, but because of a judicial prediction or assumption that the statute's very
existence may cause others not before the court to refrain from constitutionally
protected speech or expression.”

Broadrick v. Oklahoma, 413 U.S. 601, 611 - 12 (1973)

In other words, even absent an enforcement action alleging violation of the particular

provisions of the regulations at issue, a plaintiff may bring a facial challenge where a rule risks

chilling protected expression. See, id.

at 129.

Plaintiffs have standing under this broader recognition of standing in the context of the

First Amendment.5 No one, except someone with extraordinary financial means, can afford to

post anti-war posters and leave them up as if they were anti-crime or campaign posters.

Plaintiffs’ challenge to the postering regulation system is a classic facial overbreadth

challenge. While the District could exercise a cognizable interest in regulating postering, the

manner in which it has chosen to regulate is discriminatory, sweeps far too broadly and

encompasses an enormous amount of protected activity within its proscriptions. Of course, there

is no need to exhaust administrative remedies where a facial challenge lies. See, Lakewood v.

Plain Dealer Publishing Co., 486 U.S. 750, 755 - 762 (1988).

The District of Columbia is simply wrong that broader First Amendment standing applies

only in criminal contexts. See, e.g., Forsyth County v. Nationalist Movement,

505 U.S. 123, 129

(1992) (in civil challenge, holding unconstitutional an ordinance authorizing county


5

Remarkably, the District of Columbia cites the case of ANSWER Coalition v. Kempthorne, 493 F.Supp.2d

34 (D.D.C. 2007) to suggest that the Court in that case ruled against the ANSWER Coalition on this particular
application of standing. See
Def’s Memo. at 16. In fact the Court found that ANSWER did have standing. Id.

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Case 1:07-cv-01495-HHK Document 11 Filed 03/14/2008 Page 15 of 21

administrator to impose a fee on issuance of demonstration permits). There is nothing in the

District’s referenced case, Parker v. District of Columbia, 478 F.3d 370, 375 (D.C. Cir. 2007)

that so holds.

The District’s citations to Navegar, Inc. v. Unites States, 103 F.3d 994, 998 (D.C. Cir.

1997) and the considerably more recent post-Navegar

case of Seegars v. Gonzalez, 396 F.3d

1248 (D.C. Cir. 2005) are equally misplaced.

The D.C. Circuit was clear in its treatment of Seegars, which was a pre-enforcement

challenge to a criminal statute restricting gun ownership, that it distinguished this particular

context from that of pre-enforcement standing to challenge statutes that regulate or restrict

expression in the First Amendment context. See

Seegars, 396 F.3d at 1254 (distinguishing the

gun control challenge from cases upholding pre-enforcement review in the First Amendment

context).

The Seegars

Court was equally clear when it distinguished the lack of standing for

plaintiffs to challenge non-First Amendment statutes from a challenge to regulations, as are the

postering regulations. Seegar, 396 F.3d at 1253 (“We cannot help noting that Navegar’s analysis

is in sharp tension with standard rules governing preenforcement challenges to agency

regulations, where an affected party may generally secure review before enforcement . . .”).

The Seegar

and Navegar

cases are limited to the non-First Amendment contexts in which

they arise, as is reflected by the Seegar

ruling:

“Despite these apparent tensions [with the First Amendment cases and with pre-
enforcement regulation review], we faithfully apply the analysis articulated by
Navegar. We do so not because it represents our ‘law of firearms.’ See
generally
Frank H. Easterbrook, Cyberspace and the Law of the Horse, 1996 U. Chi. Legal
F. 207, 207-08 (1996). We do so because it represents the only circuit case
dealing with a non-First Amendment preenforcement challenge to a criminal
statute that has not reached the court through agency proceedings. See
LaShawn
v. Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) (en banc).”

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Seegars v. Gonales, 396 F.3d 1249, 1254 (D.C. Cir. 2005) (boldface added).

The District’s citation to Laird v. Tatum, 408 U.S. 1 (1972) is irrelevant to the current

case. Plaintiffs’ injury in this case is not a “mere subjective chill.” It is in marked contrast to the

instant case which presents current and direct injury-in-fact as well as an objective chill of

protected rights. In Laird, the plaintiffs claimed a mere subjective chill arising from a program

that lawfully collected information about public activities with principal sources of information

being the public news media and publications in general circulation as well as public meetings.

Laird, 408 U.S. at 6. Aside from the mere subjective personal disturbance at the existence of the

program, the Laird

plaintiffs “failed to allege any action on the part of the Army that was

unlawful in itself and further failed to allege any injury or any realistic threats to their rights

growing out of the Army’s actions.” Id.

at 8. Counsel in Laird

explained that plaintiffs’ alleged

injury-in-fact was that “in some future civil disorder of some kind, the Army is going to come in

with a list of troublemakers . . . and go rounding up people and putting them in military prisons

somewhere.” Laird

at 8-9 n.5. At another opportunity, Laird

counsel represented “We’re not

quite sure exactly what they have in mind and that is precisely what causes the chill, the chilling

effect.” Id.

Laird

is simply inapplicable to the case now before the Court.

IV.

The ANSWER Coalition is Not Barred By Res Judicata From Challenging the
Constitutionality of this Patently Unconstitutional System

The argument regarding res judicata, of course, has no bearing at all on the standing or

claims of MASF which is not in any way in privity with the ANSWER Coalition.

The District of Columbia begins its res judicata argument by making the distinction

between issue preclusion and claim preclusion, the two distinct applications of the principles of

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preclusion. For reasons stated below, there is no basis for preclusion within either of these

frameworks.

The ANSWER Coalition does not dispute that the sole prior occasion on which it was

ever issued a ticket for allegedly improper postings on D.C. public space was the issuance of

three citations dated March 18, 20026 which became the subject of administrative proceedings.

The District of Columbia does not argue that there is any issue preclusion from the three

prior tickets. Citing case law, the District accurately recites that in order for there to be issue

preclusion there must be an “issue [that] was actually and necessarily determined by a court of

competent jurisdiction” in a prior proceeding. Defs’ Memo. at 12, citing, Beverly Health &

Rehabilitation Svcs, Inc. v. NLRB, 317 F.3d 316, 322 (D.C. Cir. 2003).

There were three stages to those proceedings. There was, first, an administrative hearing

regarding the citations. Although the ANSWER Coalition sought to present constitutional legal

and factual defenses, the hearings examiner refused to entertain them on the basis that hearings

examiners lacked legal competency to do so. See

1 D.C.M.R. § 512.9 (“In deciding appeals, a

hearing committee shall not have the authority to refuse to enforce any statute, rule or regulation

of the United State or of the District of Columbia on the ground that it is repugnant to the

Constitution of the United States.”).

The second stage was an appeal to the Board of Appeals and Review. The District of

Columbia concedes that the BAR declined to determine any constitutional issues. See

Def’s

Memo. at 11 (“The BAR also noted that while it was ‘authorized to consider issues of

constitutionality, and both parties had extensively briefed the issue, it concluded that ‘this issue

in this case should be left for consideration by the District of Columbia Court of Appeals if

appellant so choose [sic] to file an appeal there.”).

6 Infraction notices Nos. 328966-1, 328965-0, 328967-2 (March 18, 2002).

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In the third stage, the D.C. Court of Appeals declined to review the matter further, citing

a lack of jurisdiction, based on the fact that no appeal had been filed within the requisite fifteen

day appeal period for appeal of an administrative decision. There is no suggestion by the District

of Columbia that any constitutional issue was determined or adjudicated by this action.

The District of Columbia does, however, argue claim preclusion, that the ANSWER

Coalition could have raised constitutional defenses to the three citations from the year 2002 and,

having failed to do so successfully, is barred from ever asserting such defenses against postering

citations or, more precisely, from bringing any constitutional challenge to the postering

restrictions. This would effectively immunize the District and allow it to unconstitutionally

sanction an anti-war organization engaged in communicating with the public on matters of public

import at the core of the First Amendment even where no court has ever determined that a

speech/postering regulation system that distinguishes on the basis of content of posters is

sustainable or constitutional.

This is a curious argument especially when juxtaposed against the District’s argument

that MASF lacks standing because it has never been cited under the postering regulations. By

application of this argument, MASF or any entity may not challenge the constitutionality of the

postering regulations unless a citation has been issued and once a citation has been issued must

advance their constitutional arguments through the administrative process and appeal. By the

District’s standards, there is no way to bring a constitutional challenge in U.S. District Court.

The District of Columbia, however, is decidedly non-specific as to what constitutional

defenses could have been raised in connection with the three 2002 notices of infraction. It is an

inaccurate oversimplification to suggest that all constitutional challenges to a regulatory scheme

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may be raised in any context in which any ticket is issued, even where only a narrow violation of

one provision is alleged.

In the context of those infractions, there was no evidence that the ANSWER Coalition

had even posted the three items. The inspector testified that “I don’t have any idea who put them

up.” The hearing examiner made a finding that there was a violation, specifically that copies of

the posters had not been registered with the Mayor (although no evidence or testimony was

presented that a search of records had been done and no registration found) and that the

ANSWER Coalition would be vicariously liable for this failure because it created the posters and

made them available to the public.

There were no charges that the posters had been posted for a duration that exceeded the

limitations imposed on non-commercial postings. There was no way for the ANSWER Coalition

in this proceeding to mount a wholesale constitutional challenge against provisions that were not

at issue in the facts as presented.

Even were the ANSWER Coalition able to have asserted a wholesale challenge to the

postering regulations, it is undisputed no constitutional challenge was ever adjudicated. Under

these circumstances, where the issue is of such public import and is of a constitutional

magnitude, res judicata does not apply to bar consideration of the constitutional issues by this

Court.

The doctrine of claim preclusion or res judicata does not apply to constitutional issues or

issues of public import. The D.C. Circuit is clear that the doctrine of res judicata is simply a

formulation of policy, which may be outweighed by other matters of policy including

specifically in cases involving important questions of constitutional law. See

Apotex, Inc. v.

Food & Drug Admin., 393 F.3d 210 (D.C. Cir. 2004), citing, Hardison v. Alexander, 655 F.2d

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1281, 1288-89 (D.C. Cir. 1981) (“there are exceptions [to res judicata] for reasons of compelling

public policy, such as cases involving important questions of constitutional law.”); Hardison v.

Alexander, 655 F.2d 1281, 1288 – 1289 (D.C. Cir. 1981) (“paramount questions of constitutional

law” have been recognized to “overcome the normal application of res judicata”); Spilker v.

Hankin, 188 F.2d 35, 38 – 39 (D.C. Cir. 1951).

One District Court has articulated this principle as follows,

“[W]here as here private litigation has extensive implications of public import, the
rule of res judicata or estoppel is not allowed to stultify reassessment of the prior
decision. The public interest supersedes the private interest. See
Commissioner of
Internal Revenue v. Sunnen, 333 U.S. 591, 599, 68 S.Ct. 715, 92 L.Ed. 898
(1948); Mercoid Corp. v. Mid-Continent Investment Co., 320 U.S. 661, 669-670,
64 S.Ct. 268, 88 L.Ed. 376 (1944); Spilker v. Hankin, 88 U.S. App.D.C. 206, 188
F.2d 35, 38 – 39 (1951). See
1B Moore, Federal Practice ¶0.405[11] (2d ed.
1965).”

also

Griffin v. State Board of Education, 296 F. Supp. 1178, 1181 (E.D. VA 1969).

This is consistent with the rulings of other Circuit courts. See

Knox By and Through

Hagberg v. Lederle Lab., 4 F.3d 875, 881 n.4 (10th Cir. 1993) (“flexible exceptions to the law of

preclusion are occasionally necessary.”); International Harvester v. OSHA, 628 F.2d 982, 986

(7th Cir. 1980), quoting, Bowen v. U.S., 570 F.2d 1311, 1321 (7th Cir. 1978) (“This court does

not adhere to a rigid view of the doctrine in the administrative context: The sound view is

therefore to use the doctrine of res judicata when the reasons for it are present in full force, to

modify it when modification is needed, and to reject it when the reasons against it outweigh

those in its favor.”); Moch v. East Baton Rouge Parish School Bd.,

548 F.2d 594, 597 (5th Cir.

1977)(“[C]ourts have occasionally rejected strict application of bar and estoppel principles when

their use would violate an overriding public policy or result in manifest injustice.”); Pearlstein v.

Scudder & German, 429 F.2d 1136, 1143 (2nd Cir. 1970) (“The doctrine of res judicata has in the

past been held subordinate to principles of public policy”).

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Public policy weighs heavily in favor of an adjudication on the constitutional issues

involved. There has not been duplicative litigation from the 2002 infraction notices. The D.C.

Court of Appeals did not consider the constitutional issues. It upheld each of the three $35 tickets

based on the lack of an appeal within the requisite period and the consequential lack of

jurisdiction of that Court to hear the case. No Court has ever addressed these issues. Yet, their

impact is severe for the ANSWER Coalition itself, and goes far beyond the ANSWER Coalition,

as the inclusion of the MASF as a plaintiff indicates.

Conclusion

For the foregoing reasons, the plaintiffs respectfully request this Honorable Court deny

the District’s motion to dismiss.

March 14, 2008

Respectfully Submitted,

/s/ Carl Messineo /s/
Carl Messineo (#450033)
Mara Verheyden-Hilliard (#450031)
Partnership for Civil Justice
617 Florida Avenue, NW
Washington, DC 20001
(202) 232-1180
(202) 350-9557 fax

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