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Case 1:07-cv-01495-HHK Document 13 Filed 04/04/2008 Page 1 of 12

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA







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






DISTRICT OF COLUMBIA,



Plaintiffs,




Defendant.













v.























Civil Action No.07-1495 (HHK)





DEFENDANT’S REPLY

Pursuant to LCvR 7(d), defendant the District of Columbia hereby briefly replies to

Plaintiffs’ Opposition to Defendant’s Motion to Dismiss.

“The first amendment was never intended to protect the few while providing them with a

sacrosanct sword and shield with which they could injure the many.” Brandywine-Main Line

Radio, Inc. v. FCC, 473 F.2d 16, 62 (D.C. Cir. 1972), cert. denied, 412 U.S. 922 (1973).

Plaintiffs’ opposition is rife with irrelevant political discussion and conclusory assertions

that they have been persecuted for their views, but plaintiffs have not cited to a single controlling

case (and the District is aware of none) invalidating postering regulations like the District’s on

the grounds cited by plaintiffs.



1. The Court Should Dismiss the Complaint Pursuant to Younger.

Plaintiffs fail in their attempt to distinguish JMM Corp. v. District of Columbia, 378 F.3d

1117 (D.C. Cir. 2004), relying primarily on overheated and unhelpful rhetoric. That case, which

fully controls here, mandates dismissal of the instant claims.

Case 1:07-cv-01495-HHK Document 13 Filed 04/04/2008 Page 2 of 12

Plaintiffs argue that abstention is not appropriate because they are not seeking to enjoin

the pending administrative enforcement action being taken against them locally, but bring a

“constitutional facial challenge” to the District’s postering regulations, which they claim are

vague, overbroad, and impermissibly “content-based.” P.Opp. at 3, 5. The First Amended

Complaint contains only one count, and seeks to enjoin any enforcement of these District

regulations “as applied to political speech . . . .” First Am. Compl. at 12.

But the JMM plaintiff sought exactly the same relief; it sought to enjoin the pending local

enforcement action against it, but it also sought—just as plaintiffs do here—an injunction against

all enforcement of what it alleged were “unconstitutional content-based restrictions [that] are

vague and overbroad.” JMM, 378 F.3d at 1120.

JMM discussed at length the policy against “federal interference with state court

proceedings,” JMM, at 1121, but plaintiffs’ instant relief, if granted, would be a far greater

“interference” with local proceedings than enjoining any specific enforcement action, against

plaintiffs or anyone else.1



Plaintiffs also disingenuously claim that “there is no reason to anticipate” that ANSWER

Coalition could raise its constitutional claims in the administrative action and, worse, that the

administrative law judge “will not allow or entertain constitutional challenges” to the

regulations. P.Opp. at 6. These protests are utterly meaningless, however, in light of JMM, which


See id. at 1123:

1

Federal court interference with District enforcement proceedings may prevent the
District from effectuating its substantive policies and disrupt its efforts to protect
interests it regards as important. It will certainly result in duplicative legal
proceedings and may be interpreted to reflect negatively on the District’s ability
to enforce constitutional principles. But just as with a state, there is no reason to
presume that the courts of the District cannot be trusted to adequately protect
federal constitutional rights.



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Case 1:07-cv-01495-HHK Document 13 Filed 04/04/2008 Page 3 of 12

could not have been any clearer: “Whether or not the defendant can also raise its constitutional

defenses at the administrative level, ‘it is sufficient under [Younger v. Harris, 401 U.S. 37

(1971)] that constitutional claims may be raised in state-court judicial review of the

administrative proceeding.’” JMM, 378 F.3d at 1121 (quoting Ohio Civil Rights Comm’n v.

Dayton Christian Sch., Inc., 477 U.S. 619, 629 (1986)).



Thus, even if ANSWER Coalition is somehow denied the ability to even mention its

constitutional concerns at the administrative level, abstention is still appropriate, due to the

ability to raise those issues in subsequent court appeals of the administrative proceedings. Id.



Plaintiffs also seize on language in the single, narrow exception to the application of the

doctrine of equitable restraint in a failed attempt to shoehorn their allegations into a successful

argument.

The Circuit in JMM held that dismissal pursuant to Younger was appropriate “even where

a defendant levels a facial First Amendment challenge against a regulation and contends that its

existence has a chilling effect on his free speech.” Id. at 1122 n.11. To avoid the application of

equitable restraint, a party must demonstrate “extraordinary circumstances,” such as where the law

to be enforced was “flagrantly and patently” unconstitutional. JMM, 378 F.3d at 1122 (citing

Trainor v. Hernandez, 431 U.S. 434, 442–43 (1977)).

Plaintiffs have not made such a dramatic showing, other than repeatedly invoking the

mantra of “flagrantly and patently unconstitutional,” and primarily citing their own complaint.

While plaintiffs may subjectively believe that the District has taken action against the ANSWER

Coalition because of that organization’s views, there are no objective indications of such a

motive. Id. (a party may avoid Younger equitable restraint if it can show that government action

was taken “in bad faith or for the purpose of harassing” it).



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Case 1:07-cv-01495-HHK Document 13 Filed 04/04/2008 Page 4 of 12

The regulations in dispute here have been in effect, in substantially similar form, for

almost 30 years. See D.C. Law 3-50, the “Street Sign Regulation Amendment Act of 1979,” 26

D.C. Register 2733 (Dec. 21, 1979). It strains credulity to suggest that those same regulations

now “flagrantly and patently” violate the First Amendment on their face, where plaintiffs can

point to no previous challenges to those regulations. Dozens of jurisdictions across the country

have similar regulations, and plaintiffs have not cited any controlling case invalidating like

regulations.



Additionally, it is unclear to what plaintiffs refer when they claim that the “registration”

requirements of the postering regulations are waived for “political campaign literature,” P.Opp.

at 4, but they are simply wrong.2 In fact, political campaign literature has long been

constitutionally required to contain mandatory language not required of other posters.3

All . . . printed matter with reference to or intended for the support or defeat of a
candidate or group of candidates for nomination or election to any public office,
or for the support or defeat of any initiative, referendum, or recall measure, shall
be identified by the words “paid for by” followed by the name and address of the
payer or the committee or other person and its treasurer on whose behalf the
material appears.


D.C. Official Code § 1-1102.10.



2. Plaintiffs Lack Article III Standing.



Plaintiffs incorrectly imply that an exception to the general rules for prudential standing

allows them to bring their facial constitutional challenge because of the potential chill on



2


3

The registration requirements of which plaintiffs complain do not, on their face,

contain an exemption for any particular type of poster. See 24 DCMR § 108.11.

Plaintiffs also incorrectly claim that political campaign literature may be posted
for an indefinite amount of time, P.Opp. at 4, but 24 DCMR § 108.6 states that those materials
“shall be removed no later than thirty (30) days following the general election.”



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Case 1:07-cv-01495-HHK Document 13 Filed 04/04/2008 Page 5 of 12

expressive activity presented by the allegedly “overbroad” regulations. P.Opp. at 13. But even if

that exception applied here, plaintiffs fail to meet the concurrent requirements of Article III

standing.

Despite the clear requirement of case law that a plaintiff support its standing by alleging a

“specific present objective harm or a threat of specific future harm,” Laird v. Tatum, 408 U.S. 1,

14 (1972), plaintiffs fail to provide any “specificity” at all, either in their allegations or their self-

serving declarations.4 Plaintiffs’ asserted injuries lack the details necessary to support standing;

there are simply no specifics, just vague assertions of a “chill.”

Plaintiffs have failed to show the “concrete and particularized injuries” necessary to

support standing. “Litigants are . . . not entitled to an adjudication of every question they

perceive after reading through the text of legislation.” National Family Planning & Reproductive

Health Ass’n v. Gonzalez, 468 F.3d 826, 829 (D.C. Cir. 2006) (quoting American Library Ass’n v.

Barr, 956 F.2d 1178, 1197 (D.C. Cir. 1992)).5 Plaintiffs argue vehemently that the regulations



Although the documents are captioned “Affidavit,” they are more properly

considered declarations, as they have not been notarized. See 28 U.S.C. § 1746.

4


5



In Barr, several organizations challenged the constitutionality of provisions of the
federal Child Protection and Obscenity Act, alleging that they or their members’ First
Amendment rights would be chilled because the continued existence of the law “will cause them
to engage in self-censorship.” Id., 956 F.2d at 1190. The Circuit rejected that argument, noting
that “plaintiffs have not identified or described a single film, photograph or other item they or
their members have suppressed as a result of [the law].” Id. at 1191.

So too here. The instant plaintiffs have not identified or described any current or
imminent plans to mount posters for any specific future campaigns, marches, protests, rallies, or
other events; they make only conclusory assertions concerning a self-imposed general restraint,
which are insufficient as a matter of law to support standing. See Becker Declaration ¶ 3
(ANSWER Coalition “is currently refraining from posting”); Bray Declaration ¶ (MASFF “must
currently refrain from posting”). “We are left then with nothing more than plaintiffs’ conclusory
assertions, in their complaint and affidavits, that in view of the uncertainty about [the law], they
are ‘chilled’” by it. Barr, 956 F.2d at 1192–93.



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Case 1:07-cv-01495-HHK Document 13 Filed 04/04/2008 Page 6 of 12

“objectively chill” the exercise of constitutional rights, but provide no support for that

proposition except for repeated, conclusory assertions.

Plaintiffs claim that their “constitutionally protected freedoms are currently injured.”

P.Opp. at 12 (citing Elrod v. Burns, 427 U.S. 347, 373–74 (1976)). But again, they only fall back

on their self-imposed restraint not to engage generally in postering, without providing any of the

specifics required by the courts to confer standing.

“[W]here it is not clear that a particular [government action] will have any actual adverse

effect on protected First Amendment liberties, the moving party must demonstrate some likelihood

of a chilling effect on their rights.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d

290, 301 (D.C. Cir. 2006). Merely asserting a “chilling effect” on the exercise of First Amendment

rights is insufficient, alone, to demonstrate constitutional injury. Laird, 408 U.S. at 13–14

(“Allegations of a subjective ‘chill’ are not an adequate substitute for a claim of a specific present

objective harm or a threat of specific future harm . . . .”).

Put simply, “the harm of a ‘chilling effect,’ without more, does not support standing.”

Fraternal Order of Police v. Rubin, 26 F.Supp.2d 133, 141 (D.D.C. 1998) (citing United

Presbyterian Church v. Reagan, 738 F.2d 1375, 1380 (D.C. Cir. 1984)). See also DKT Memorial

Fund, Ltd. v. USAID, 887 F.2d 275, 298–99 (D.C. Cir. 1989) (rejecting standing where plaintiffs

“still com[e] before us with a bare allegation of ‘subjective chill’”) (“Plaintiffs were on quite

adequate notice long ago of the need for such specific present harm and have demonstrated none.”)

(citing Laird); Hatfill v. Ashcroft, 404 F.Supp.2d 104, 118–19 (D.D.C. 2005) (plaintiff “having

failed to show that his First Amendment rights were actually chilled, has not stated a claim for

which relief can be granted . . . .”) (emphasis in original). Cf. National Family Planning &

Reproductive Health Ass’n v. Gonzalez, 468 F.3d 826, 829 (D.C. Cir. 2006) (finding that plaintiff



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lacked Art. III standing to assert First Amendment claim, where alleged vagueness of statute leaves

plaintiff “uncertain” as to how to comply).

Plaintiffs have not shown the separate injury-in-fact necessary to support standing here. A

“[c]hilling effect is cited as the reason why the governmental imposition is invalid rather than as

the harm which entitles plaintiff to challenge it.” Barr, 956 F.2d at 1193 (quoting United

Presbyterian, 738 F.2d at 1378)).

MASFF’s claim is even more precarious. Its standing depends on the likelihood of

enforcement of the disputed regulations against them in the future, “and not on how much the

prospect of enforcement worries them.” Barr, 956 F.2d at 1193; id. at 1194 (to establish

standing, “a litigant must demonstrate a credible threat of prosecution under a statute that

appears to render the litigant’s arguably protected speech illegal.) (citing Renne v. Geary, 501

U.S. 312 (1991)); Skaggs v. Carle, 110 F.3d 831, 837 (D.C. Cir. 1997) (same).

MASFF has simply failed to make such a showing here.6



“[W]e are not persuaded that every plaintiff who alleges a First Amendment chilling

effect and shivers in court has thereby established a case or controversy.” Metropolitan Airports,

959 F.2d at 306 (quoting National Student Ass’n, Inc., v. Hershey, 412 F.2d 1103, 1113–14 (D.C.

Cir. 1969)).







6

Plaintiffs fail to distinguish Parker v. District of Columbia, 478 F.3d 370 (D.C.
Cir. 2007), and expend considerable effort knocking down a straw man of their own
construction. Parker (like Seegars and Navegar before it) stands for the proposition that a
general threat of prosecution (criminal or civil) is insufficient to support Article III standing,
even in a First Amendment challenge. Id. at 374. Rather, said the court, to show standing, a
plaintiff must allege “an actual and well-founded fear that the law will be enforced against them .
. . .” Id. at 375 (quoting Virginia v. American Booksellers Ass’n, 484 U.S. 383, 393 (1988)).



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Case 1:07-cv-01495-HHK Document 13 Filed 04/04/2008 Page 8 of 12

3. Plaintiffs Lack Prudential Standing.



Although prudential standing principles may be relaxed when First Amendment

violations are asserted, they are not—as plaintiffs imply—entirely discarded. As the Supreme

Court said in Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973), applying the overbreadth

doctrine is “strong medicine” which should be “employed by the Court sparingly and only as a

last resort.”7



Indeed, as our Circuit has noted, “the overbreadth doctrine may not be invoked to strike

down any provision that might reach protected speech in some imaginable application. To

invalidate a statute on its face, the overbreadth ‘must not only be real, but substantial as well,

judged in relation to the statute’s plainly legitimate sweep.’” Metropolitan Wash. Airports Auth.

Prof’l Fire Fighters Ass’n Local 3217, Int’l Ass’n of Fire Fighters, AFL-CIO-CLC v. United

States, 959 F.2d 297, 305 (D.C. Cir. 1992) (emphasis in original) (quoting Broadrick)). Put

another way, “a law should not be invalidated for overbreadth unless it reaches a substantial

number of impermissible applications.” Metropolitan Airports, 959 F.2d at 305 (quoting New

York v. Ferber, 458 U.S. 747, 771 (1982)).



See also Sabri v. United States, 541 U.S. 600 (2004):

7

[F]acial challenges are best when infrequent. [F]acial adjudication carries too
much promise of “premature interpretatio[n] of statutes” on the basis of factually
barebones records. [N]ot only do [such challenges] invite judgments on fact-poor
records, but they entail a further departure from the norms of adjudication in
federal courts[.] Accordingly, we have recognized the validity of facial attacks
alleging overbreadth (though not necessarily using that term) in relatively few
settings, and, generally, on the strength of specific reasons weighty enough to
overcome our well-founded reticence.


Id. at 609–610 (citations omitted).





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Plaintiffs have not made this showing of substantiality, that there is a “likelihood that the

statute’s very existence will inhibit free expression.” Members of City Council of Los Angeles v.

Taxpayers for Vincent, 466 U.S. 789, 799 (1984). Plaintiffs have presented no objective evidence

of any chill aside from their own conclusory assertions. “[T]here must be a realistic danger that

the statute itself will significantly compromise recognized First Amendment protections of

parties not before the Court for it to be facially challenged on overbreadth grounds.” Id. at 801

(emphasis added) (citing Erznoznik v. City of Jacksonville, 422 U.S. 205, 216 (1975)).



4. Res Judicata Prevents ANSWER Coalition From Proceeding.

Plaintiffs baldly claim that “[t]he doctrine of claim preclusion or res judicata does not

apply to constitutional issues or issues of public import.” Plaintiffs are wrong as a matter of law,

as their own citations—and JMM itself—make clear.8

Plaintiffs’ claim is essentially a “state law claim in federal garb.” Barwood, Inc. v.

District of Columbia, 202 F.3d 290, 294 (D.C. Cir. 2000). Plaintiffs, having inflated their local

regulatory dispute over littering tickets into a constitutional claim, then attempt to hide behind it

to avoid the normal operation of res judicata.

It is not sufficient to avoid preclusion, as plaintiffs imply, to simply utter the magic word

“Constitution.” If that were the case, every litigant seeking to avoid preclusion would include

constitutional claims in every pleading to avoid the results of previous litigation.



jurisdictions.

Indeed, the majority of plaintiffs’ citations are decades-old and from other

8





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As shown above, the plaintiff in JMM raised the same “important questions of

constitutional law” that the instant plaintiffs advance, but was nonetheless precluded. JMM, 378

F.3d at 1120.

Plaintiffs have not advanced the compelling reasons necessary to avoid the normal

operation of res judicata principles. See Apotex, Inc. v. FDA, 393 F.3d 210, 219 (D.C. Cir. 2004)

(exceptions to operation of res judicata apply “only in very limited circumstances, e.g., in cases

implicating significant questions of constitutional law where there has been a change in

controlling legal principles.”) (emphasis added); Hardison v. Alexander, 655 F.2d 1281, 1288–89

(D.C. Cir. 1981) (“[o]n rare occasions the courts have been willing to override the bar of res

judicata for reasons of compelling public policy.”) (emphasis added).

Regardless of how strongly plaintiffs believe they have been wronged, merely asserting a

First Amendment challenge to District regulations does not fulfill plaintiffs’ burden. Hardison,

655 F.2d at 1288–89 (“[T]his case hardly involves anything like the paramount questions of

constitutional law or exclusive jurisdiction that have been required in the past to overcome the

normal application of res judicata.”). Plaintiffs cannot show that these regulations are selectively

enforced; the record at the administrative proceeding (as well as the public record) will show that

the postering regulations are enforced evenhandedly against a wide range of entities that litter

public space, including the campaigns of every prominent local political candidate. Only if there

were any objective indication of the opposite, that certain viewpoints were systematically

targeted for suppression, might plaintiffs then be able to avoid the ordinary operation of the

doctrine of preclusion. Simply making strongly worded allegations is not enough.

“Res judicata . . . prevents the consideration not only of those issues which were litigated

but also those which might have been litigated in the first action.” Woodward & Lothrop, Inc. v.



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Schnabel, 593 F.Supp. 1385, 1398 (D.D.C. 1984) (emphasis added). Under claim preclusion, “a

final judgment on the merits of an action precludes the parties or their privies from relitigating

issues that were or could have been raised in that action.” Drake v. FAA, 291 F.3d 59, 66 (D.C.

Cir. 2002) (emphasis in original) (quoting Allen v. McCurry, 449 U.S. 90, 94 (1980)).

That is exactly what occurred here—plaintiff ANSWER Coalition received a final

judgment on the merits in A.N.S.W.E.R. v. DPW, D.C. Bd. of Appeals & Review Dkt. No. 02-

5859-LC, 51 D.C. Reg. 5382 (May 21, 2004)), in which it challenged the same regulations it

does here under the First Amendment. ANSWER Coalition then attempted to appeal that

decision to the D.C. Court of Appeals, but its appeal was dismissed as “untimely,” which, for res

judicata purposes, is treated as a “judgment on the merits.” See Smalls v. United States, 471 F.3d

186, 192 (D.C. Cir. 2006) (quoting Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 228 (1995)).

ANSWER Coalition cannot proceed here. Dynaquest Corp. v. USPS, 242 F.3d 1070,

1076 n.5 (D.C. Cir. 2001) (final judgment in another court precludes parties from relitigating

issues that were or could have been raised in that action, regardless of whether that action was

administrative or judicial, and res judicata applies to questions of law as well as fact); North v.

Walsh, 881 F.2d 1088, 1093 (D.C. Cir. 1989).

Plaintiffs concede (by entirely ignoring) the reach of res judicata to encompass issues

that were or could have been raised. Even if the facts were different in ANSWER Coalition’s

instant administrative dispute, preclusion would still apply. See Nat’l Post Office Mail Handlers

v. American Postal Workers Union, 907 F.2d 190, 192 (D.C. Cir. 1990) (even if the facts are

different in a subsequent case, if the legal issues are the same, relitigation of those issues is

precluded).



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ANSWER Coalition argues that while it “sought” to present its constitutional defenses in

the previous administrative proceeding, the hearing examiner “refused to entertain them . . . .”

P.Opp. at 17. But as the District has already demonstrated, for purposes of the application of res

judicata, such a claim is utterly immaterial. See JMM, 378 F.3d at 1121. Moreover, preclusion

applies even as to erroneous decisions. Page v. United States, 729 F.2d 818, 820 (D.C. Cir. 1984)

(citing Hardison, 655 F.2d at 1288).

This Court should not excuse ANSWER Coalition’s failure to preserve its constitutional

arguments in the previous administrative proceeding; it had the opportunity to do so and failed. It

is thus precluded from proceeding here under the ordinary application of res judicata.



















DATE: April 4, 2008











































































































Respectfully submitted,

PETER J. NICKLES
Interim Attorney General for the District of Columbia

GEORGE C. VALENTINE
Deputy Attorney General, Civil Litigation Division







/s/ Ellen A. Efros


ELLEN A. EFROS, D.C. Bar No. 250746
Chief, Equity Section I
441 Fourth Street, N.W., 6th Floor South
Washington, D.C. 20001
Telephone: (202) 442-9886
Facsimile: (202) 727-0431


ANDREW J. SAINDON, D.C. Bar No. 456987
Assistant Attorney General
Equity I Section
441 Fourth Street, N.W., 6th Floor South
Washington, D.C. 20001
Telephone: (202) 724-6643
Facsimile: (202) 727-0431
[email protected]

/s/ Andrew J. Saindon





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