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Case 1:07-cv-01495-RCL Document 86 Filed 11/29/12 Page 1 of 58















07-cv-1495 (RCL)


The Court considers whether the fourth iteration of the District of Columbia’s law

regulating the posting of signs on lampposts passes First Amendment muster. The law’s most

recent version treats signs relating to an “event” differently from “non-event” signs when

determining how long the signs may remain posted. The District has amended the law twice

since this Court’s last substantive opinion. While these amendments bring the law closer to

constitutionality, the District has not properly explained the event/non-event distinction, and has

added a definition of “event” that explicitly delegates broad administrative discretion to

enforcement officers. Therefore the plaintiff is entitled to summary judgment.



A. Early History of the Case

From 1980 until the filing of this suit in 2007, the rules for posting on the District’s

lampposts exempted campaign and public safety signs from the generally-applicable durational

limits, and required that campaign posters be removed within thirty days after the general

election. At the time, the law stated:

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108.5: A sign, advertisement, or poster shall not be affixed for more than sixty

(60) days, except the following:

(a) Signs, advertisements, and posters for individuals seeking

political office in the District…; and

(b) Signs designed to aid in neighborhood protection from crime

shall be exempt from the sixty (60) day time period.

108.6: Political campaign literature shall be removed no less than thirty (30) days

following the general election.

108.7: Each sign, advertisement, or poster shall contain the date upon which it

was initially affixed to a lamppost.

108.8: Each sign, advertisement, or poster shall be affixed securely to avoid

being torn down or disengaged by normal weather conditions.

108.9: Signs, advertisements, and posters shall not be affixed by adhesives that
prevent their complete removal from the fixture, or do damage to the

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.

108.11: Within twenty-four (24) hours of posting each sign, 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. CODE MUN. REGS. § 108 (1980).

In the summer of 2007, Act Now to Stop War and End Racism Coalition

(“ANSWER”)—a “grassroots civil rights organization which seeks to engage the public in

communications opposing war and racism, among other issues,” Affidavit of Brian Becker 1–2,

Mar. 14, 2008, ECF No. 11-1 (“ANSWER Affidavit”)—posted signs advertising its September

15th “March to Stop the War” on public lampposts and electrical boxes throughout the city. The

District cited ANSWER for numerous violations of § 108.9, the provision regarding the use of

adhesives. See Ex. 1 to Def.’s First Mot. Dismiss, Feb. 6, 2008, ECF No. 8-1 (reproducing four

Notices of Violation, all referencing § 108.9). ANSWER contested the tickets before the

District’s Office of Administrative Hearings (“OAH”).


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In addition to its claims before the OAH, ANSWER challenged the District’s postering

regulations in this Court. Compl., Aug. 21, 2007, ECF No. 1. Unlike in the administrative

proceeding, ANSWER sued in federal court with a co-plaintiff, Muslim American Society

Freedom Foundation (“MASF”), which “focuses on empowering the Muslim-American

community through civic education, participation, community outreach, and coalition building

including First Amendment assemblies in opposition to war and in support of civil rights.”

Affidavit of Imam Mahdi Bray, Mar. 14, 2008, ECF No 11-2 (“MASF Affidavit”).

In their complaint, the plaintiffs alleged that the regulations were facially unconstitutional

because they contained improper content-based distinctions in violation of the First Amendment,

First Am. Compl. ¶¶ 7–8, Dec. 18, 2007, ECF No. 3; were unconstitutionally vague and

overbroad, id. ¶¶ 42–44; violated plaintiffs’ right to anonymous speech, id. ¶ 39; and imposed a

strict liability regime that violated plaintiffs’ due process rights, id. ¶¶ 25–34. Both plaintiffs

submitted affidavits explaining that they had refrained from posting signs on public lampposts in

the manner they would prefer because of the regulations, and that they were suing on behalf of

themselves and “all others engaged in civil rights advocacy” whose speech had been similarly

“chilled.” MASF Affidavit 1–2; ANSWER Affidavit 1–2.

The District moved to dismiss the complaint. Def.’s First Mot. Dismiss, Feb. 6, 2008,

ECF No. 8. The District argued, among other theories, that MASF lacked standing because it

suffered no injury from the regulations, id. at 14–20, and that the Court should abstain from

adjudicating ANSWER’s claims under the doctrine of Younger v. Harris, 401 U.S. 37 (1971),

because ANSWER could present its constitutional claims through the administrative proceedings

at the OAH. Def.’s First Mot. Dismiss 4–8. The Court agreed with both arguments and granted


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the District’s motion to dismiss. Act Now to Stop Racism and End War Coal. v. Dist. of

Columbia (ANSWER I), 570 F. Supp. 2d 72 (D.D.C. 2008). Plaintiffs appealed.

On November 2, 2009—shortly before the United States Court of Appeals for the District

of Columbia Circuit heard oral arguments—the District’s Department of Transportation

(“Department”) issued a Notice of Emergency and Proposed Rulemaking revising the poster

rules. D.C. MUN. REGS. tit. 56, §§ 8759–60 (Nov. 6, 2009). The new rules allowed:

all signs that are not lewd, indecent, or vulgar, or do not pictorially represent the
commission of or the attempt to commit any crime to be posted on a structure in
public space for sixty (60) days, and a sign, advertisement, or poster related to a
specific event may be affixed any time prior to an event but shall be removed no
later than thirty (30) days following the event for which it is advertising or

Id. at 8759. The Department explained that the emergency rulemaking was “necessitated by the

immediate need to address the continuing threat to the public welfare posed by an unequal

treatment of non-commercial advertising in the public space.” Id. The Department characterized

the new regulations as “a technical amendment” that “removes a time limit distinction that exists

between political and non-political advertising that has raised First Amendment concerns.” Id.

The revised provisions, which became final on January 8, 2010, D.C. MUN. REGS. tit. 57, § 528

(Jan. 8, 2010), read as follows:

108.5: A sign, advertisement, or poster not related to a specific event shall be

affixed for no more than sixty days.

108.6: A sign, advertisement, or poster related to a specific event may be affixed
any time prior to the event but shall be removed no later than thirty (30)
days following the event to which it is related.

24 D.C. CODE MUN. REGS. §§ 108.5–108.6 (2011).

The Court of Appeals decided the case on grounds that did not require consideration of

these new rules. The Court first reversed on the issue of MASF’s standing. Judge Williams

explained that MASF’s affidavit “plainly indicat[ed] an intent to engage in conduct violating the


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60-day limit” and that this qualified as the “credible statement by the plaintiff of intent to commit

a violative act” that the D.C. Circuit had previously held to constitute standing in a First

Amendment facial challenge. Act Now to Stop Racism and End War Coal. v. Dist. of Columbia

(ANSWER II), 589 F.3d 433, 435 (D.C. Cir. 2009) (quoting Seegars v. Gonzales, 396 F.3d 1248,

1253 (D.C. Cir. 2005)).

The Court of Appeals also remanded on some of the claims by ANSWER that this Court

had initially declined to consider under the Younger abstention doctrine. Judge Williams

explained that “the district court appropriately abstained” on the claims related to § 108.9, the

adhesive provision, which ANSWER had directly challenged in the OAH. Id. But on the other

claims, the Court of Appeals held that “consistent with Younger, ANSWER may raise

constitutional challenges in federal district court that are completely independent of and

severable from the violations it is facing in the District's administrative proceedings.” Id.

With the case back before the Court, plaintiffs updated their complaint to account for the

revised regulations. Suppl. Pleading, May 5, 2010, ECF No. 22-1. They maintained the claims

that they had previously asserted, including their principal allegation that the regulations draw an

unconstitutional, content-based distinction between signs carrying a general political message

and signs related to political campaigns. Id. ¶ 4. While the new regulations replaced the explicit

exception for signs posted in support of “individuals seeking political office” with a more

general category for signs “related to a specific event,” plaintiffs argued that the District had

“simply substituted a new set of unconstitutional content-based distinctions for the prior set of

unconstitutional content-based distinctions.” Id.

Plaintiffs added two new counts in their supplemental pleading. First, in addition to

facially challenging §§ 108.5–108.6 of the new regulations, they added an “as applied” challenge


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alleging that the provisions are improperly content-based and undefined. Id. ¶¶ 102–04. Second,

ANSWER added a claim that the District had violated 42 U.S.C. § 1983 by issuing “baseless”

citations “in retaliation for the ANSWER Coalition’s exercise of its lawful rights to free speech

through lawful postering activities.” Id. ¶¶ 105–06. ANSWER based this claim on ninety-nine

citations it received from the District in March and April 2010, which it alleges were issued

“notwithstanding the fact that the Coalition had fully complied with the [amended] regulations.”

Id. ¶ 44 (emphasis omitted).1

B. The Court’s July 2011 Ruling on Defendant’s Motion to Dismiss

The District again moved to dismiss all of plaintiffs’ claims. Def’s Second Mot. Dismiss,

June 2, 2010, ECF No. 26. Thereafter, ANSWER voluntarily dismissed its prospective claims

under Counts One and Two, leaving MASF to pursue those facial constitutional challenges

alone. Stipulation of Dismissal, Oct. 25, 2010, ECF No. 35. On July 21, 2011, this Court

granted in part and denied in part the District’s motion. Act Now to Stop Racism and End War

Coal. v. Dist. of Columbia (ANSWER III), 798 F. Supp. 2d 134 (D.D.C. 2011). This Court ruled

that MASF had standing to bring its facial challenge, but both plaintiffs lacked standing for their

new “as applied” claims. Id. at 143. The Court then considered the merits of MASF’s First

Amendment challenges. When determining whether the claims could survive a motion to

dismiss, the Court “must accept as true all of the factual allegations contained in the complaint,”

Atherton v. Dist. of Columbia, 567 F.3d 672, 681 (D.C. Cir. 2009), and grant plaintiffs “the

benefit of all inferences that can be derived from the facts alleged.” Kowal v. MCI Commc'ns

Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).

1 This case was originally assigned to Judge Henry H. Kennedy, who presided over this case until
his retirement in 2011. The case was reassigned by consent to Chief Judge Royce C. Lamberth on May 4,
2011. Reassignment of Civil Case, ECF No. 36. The proceedings discussed in the next section, Part II.B.,
occurred under Chief Judge Lamberth, who is currently assigned to this case.


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The Court found that the signs were “a form of expression protected by the Free Speech

Clause.” Id. at 144 (quoting City of Ladue v. Gilleo, 512 U.S. 43, 48 (1994)). Next, the Court

found that the lampposts are “a textbook example of a limited or designated public forum, in

which public property has been ‘opened for use by the public as a place for expressive activity.’”

Id. at 145 (quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983)).

The Court then considered whether the law could meet the standards for a designated

public forum, which permits content-neutral regulations which are narrowly tailored to serve a

significant public interest, and leave open ample alternatives for communication.2 Id. (citing

Burson v. Freeman, 504 U.S. 191, 197 (1992)). While the law was viewpoint-neutral—applying

equally to anti-war and pro-war posters—it was not necessarily content-neutral. “The guidelines

provide substantially different treatment to two posters that are identical in every respect except

that one contains content related to an event while the other does not.” Id. at 146.

The Court also rejected the District’s arguments that “the regulations are content-neutral

because they do not totally prohibit a type of expression or a specific message but rather merely

regulate the manner in which the message may be conveyed” and “that the regulations should be

judged content-neutral even if [they] have some incidental effect on speech because they

promote a content-neutral purpose—reducing litter and blight.” Id. at 146–47 (citations

omitted). The Court explained that restrictions that impose differential burdens on speech must

still reviewed for content neutrality, id. at 146 (citing Turner Broad. Sys. v. F.C.C., 512 U.S. 622,

642 (1994)), and that the regulations at issue did not clearly accomplish a content-neutral

purpose in a content-neutral manner, id. at 147.

2 If the regulations are found to be content-based, they can still be constitutional if they survive
strict scrutiny. Burson, 504 U.S. at 198. Under this demanding standard, the District would have to show
that “the regulation is necessary to serve a compelling state interest and that it is narrowly drawn to
achieve that end.” Id. While not impossible to meet, see id., this is a very difficult hurdle to clear.


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The Court summarized its main concerns with the District’s regulations as follows:

Viewed on its own, § 108.5, which limits posters “not related to a specific event”
to a hanging time of sixty days, is unproblematic. An across-the-board durational
restriction would limit litter by requiring posters of all types to be taken down
after a certain number of days. Likewise, the provision of § 108.6 requiring
posters related to events to be “removed no later than thirty (30) days following
the event” is straightforward. A poster for an event that has already occurred is
more likely to constitute litter and blight than a poster for a future event or a
general political message. This Court’s concern arises from the other half of
§ 108.6, which allows posters related to a specific event to be “affixed any time
prior to the event.” It is not clear how allowing posters to hang for an indefinite
period of time before an event advances the District’s interest in reducing litter….

In the absence of an explanation for how this distinction between event and non-
event signs advances the District’s objective of litter prevention, the differential
burdens imposed by §§ 108.5–108.6 present serious First Amendment concerns.
City of Ladue, 512 U.S. at 52 (“Exemptions from an otherwise legitimate
regulation of a medium of speech may…diminish the credibility of the
government's rationale for restricting speech in the first place.”). In particular,
given that the District has announced that elections qualify as “events” under the
new regulations, Pl.’s Notice, this distinction could be seen as a way of
resurrecting the old rules that prioritized election-related speech—including the
political communications of the government officials who make and enforce the
rules—over general issue advocacy and political expression.

Id. at 148. After considering whether the law could be narrowly tailored and leave alternative

channels of communication open, the Court denied the District’s motion to dismiss Count One of

the complaint. Id. at 149–50. The Court suggested that “an across-the-board durational

restriction that applies without exceptions based on the content of the signs would address the

constitutional concern while preserving the District’s interest in preventing litter.” Id. at 149.

The Court also refused to dismiss MASF’s claim that that the law is unconstitutionally

vague and overbroad. MASF contends that the law does not adequately define which posters

“relate to an event,” does not give adequate notice to potential speakers, and allows for arbitrary

enforcement. Id. at 150–51. While “some of plaintiff’s…scenarios str[uck] the Court as a bit

far-fetched,” the Court found “practical uncertainties…raise[d] the possibility that the law ‘fail[s]


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to provide the kind of notice that will enable ordinary people to understand which conduct it

prohibits.’” Id. at 151 (quoting City of Chicago v. Morales, 527 U.S. 41, 56 (1999)).

The Court dismissed plaintiffs’ claims that the registration requirement “represents an

unconstitutional restraint on their right to anonymous speech,” and “that the District imposed a

system of ‘strict liability’ enforcement in violation of the Due Process Clause.” Id. at 152–53.

The Court found these claims legally meritless. Id. The Court also dismissed ANSWER’s

§ 1983 claim that the “District harassed it with a series of bogus and false notices of violation.”

Id. at 153 (citations omitted). While ANSWER alleged a violation of its constitutional rights, it

could not meet its “‘burden of pleading the existence of a municipal custom or practice that

abridges [its] federal constitutional or statutory rights.’” Id. at 154 (quoting Bonaccorsy v. Dist.

of Columbia, 685 F. Supp. 2d 18, 27 (D.D.C. 2010)). The Court dismissed all of ANSWER’s

active claims, leaving only MASF’s facial constitutional challenges. The Court ordered the case

to proceed to discovery to give the District “an opportunity to clarify the questions remaining

about the meaning of the term ‘event’ and the relation of [the] event/non-event distinction in §§

108.5–108.6 to the anti-littering interest it asserts.” Id. at 155.

C. Current Regulations

Following ANSWER III, the District twice amended its postering regulations. On August

26, 2011, the Department of Transportation amended the disputed regulations to read:

108.5: A sign, advertisement, or poster shall be affixed for no more than one

hundred eighty (180) days.

108.6: A sign, advertisement, or poster related to a specific event shall be
removed no later than thirty (30) days following the event to which it is
related. This subsection is not intended to extend the durational
restriction in subsection 108.5.

D.C. MUN. REGS. tit. 58, § 7688 (Aug. 26, 2011). The following month, the District further

amended the regulations. D.C. MUN. REGS. tit. 58, § 8410 (Sept. 30, 2011). First, the District


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required the person posting the sign, in their filing with the District, to designate the date of the

event for event-related signs:

108.11: Within twenty-four hours of posting each sign, 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, and if the sign is for an event, the date of the

Id. (new text in italics). Furthermore, the amendment added a subsection defining “event”:

108.13: For purposes of this section, the term ‘event’ refers to an occurrence,
happening, activity or series of activities, specific to an identifiable time
and place, if referenced on the poster itself or reasonably determined
from all circumstances by the inspector.

24 D.C. CODE MUN. REGS. § 108.13 (2012) (providing current 108.13 definition of “event”).

These regulations are currently in effect. D.C. MUN. REGS. tit. 59, § 273 (Jan. 20, 2012).

On June 22, 2012, MASF and the District filed cross-motions for summary judgment.

Pl.’s Mot. Summ. J, ECF No. 60; Def.’s Mot. Summ. J., ECF No. 59. The Court now considers

these motions and will grant in part MASF’s motion, and deny in toto defendant’s motion.



A. Summary Judgment

“The court shall grant summary judgment 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The mere

existence of any factual dispute will not defeat summary judgment; “the requirement is that there

be no genuine issue of material fact.” Anderson, 477 U.S. at 247–48 (emphasis in original). A

fact is material if, under the applicable law, it could affect the outcome of the case. Id. A

dispute is genuine if the “evidence is such that a reasonable jury could return a verdict for the


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nonmoving party.” Id. Because “[c]redibility determinations, the weighing of the evidence, and

the drawing of legitimate inferences from the facts are jury functions, not those of a judge,” the

“evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in

his favor.” Id. at 255. A nonmoving party, however, must establish more than “the existence of

a scintilla of evidence” in support of its position. Id. at 252. The inferences drawn from the

evidence “must be reasonably probable and based on more than mere speculation.” Rogers

Corp. v. E.P.A., 275 F.3d 1096, 1103 (D.C. Cir. 2002) (citations omitted). In addition, the

nonmoving party may not rely solely on allegations or conclusory statements. See Greene v.

Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). The nonmoving party must present specific facts

that would enable a reasonable jury to find in its favor. Id. If the evidence presented is “merely

colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477

U.S. at 249–50.

The filing of a cross-motion for summary judgment does not “concede the factual

allegations of the opposing motion.” CEI Washington Bureau, Inc. v. Dep’t of Justice, 469 F.3d

126, 129 (D.C. Cir. 2006). Cross-motions for summary judgment are treated separately. See

Sherwood v. Washington Post, 871 F.2d 1144, 1147 n.4 (D.C. Cir. 1989) (“[I]t does not matter

that the District Court was faced with cross-motions for summary judgment. ‘The rule governing

cross-motions for summary judgment…is that neither party waives the right to a full trial on the

merits by filing its own motion; each side concedes that no material facts are at issue only for the

purposes of its own motion.’”) (quoting McKenzie v. Sawyer, 684 F.2d 62, 68 n.3 (D.C. Cir.

1982)). The court may—despite the parties’ stipulations that there are no disputed facts—find

that material facts are in dispute, deny both motions, and proceed to trial. Id. at 1147 n.4.


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B. Public Forum Doctrine

The First Amendment provides that “Congress shall make no law…abridging the

freedom of speech.” U.S. CONST., amend. I. The Supreme Court has long held that this

restriction applies not only to Congress, but also to state and municipal governments. Lovell v.

Griffin, 303 U.S. 444, 450 (1938). While the First Amendment “reflects ‘a profound national

commitment to the principle that debate on public issues should be uninhibited, robust, and wide-

open,’” Snyder v. Phelps, 131 S. Ct. 1207, 1215 (2011) (quoting N.Y. Times Co. v. Sullivan, 376

U.S. 254, 270 (1964)), a municipal government “may sometimes curtail speech when necessary

to advance a significant and legitimate state interest,” Members of the City Council of City of

L.A. v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984).

Courts in this Circuit generally follow three steps in assessing a First Amendment

challenge: “first, determining whether the First Amendment protects the speech at issue, then

identifying the nature of the forum, and finally assessing whether the…justifications for

restricting…speech ‘satisfy the requisite standard.’” Mahoney v. Doe, 642 F.3d 1112, 1116

(D.C. Cir. 2011) (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797

(1985)). The first step here is undisputed. “[S]igns are a form of expression protected by the

Free Speech Clause[.]” City of Ladue, 512 U.S. at 48. The Court will focus on the second and

third steps: identifying the nature of the forum and determining the requisite standard.

1. Identifying the Nature of the Forum

The second step is to determine the nature of the forum in which the protected speech

occurs. Public forum doctrine “divides government property into three categories for purposes

of First Amendment analysis.” Oberwetter v. Hilliard, 639 F.3d 545, 551 (D.C. Cir. 2011). One

category is the traditional public forum, which encompasses public areas that have “by long


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tradition or by government fiat…been devoted to assembly and debate.” Perry, 460 U.S. at 45.

A second category is the limited public forum or designated public forum, which comprises

“public property which the State has opened for use by the public as a place for expressive

activity.” Id. The final category is the nonpublic forum, which consists of government property

that is “not by tradition or designation a forum for public communication.” Id. at 46. In

determining which analysis to apply to a given means of expression, the “dispositive question is

not what the forum is called, but what purpose it serves.” Boardley v. U.S. Dep’t of the Interior,

615 F.3d 508, 515 (D.C. Cir. 2010).

2. Determining the Requisite Standard

The next step is determining and applying the requisite standard. The test for a

designated public forum is the same as that for a traditional public forum. Perry, 460 U.S. at 46.

The key question is whether the law is a content-based or content-neutral regulation of speech.

Content-based regulations are subject to strict scrutiny, and will only be upheld if “the regulation

is necessary to serve a compelling state interest and…is narrowly drawn to achieve that end.”

Burson, 504 U.S. at 197–98. Content-neutral regulations are judged under a less rigorous “time,

place or manner” test, which permits restrictions when “they are narrowly tailored to serve a

significant governmental

interest” and “leave open ample alternative channels


communication of the information.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).

The “government has no power to restrict expression because of its message, its ideas, its

subject matter, or its content.” Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573

(2002) (citations omitted). “Deciding whether a particular regulation is content based or content

neutral is not always a simple task. We have said that the ‘principal inquiry in determining

content neutrality…is whether the government has adopted a regulation of speech because of


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[agreement or] disagreement with the message it conveys.’” Turner, 512 U.S. at 642 (quoting

Ward, 491 U.S. at 791) (alterations in original). Generally, “laws that by their terms distinguish

favored speech from disfavored speech on the basis of the ideas or views expressed are content

based,” while “laws that confer benefits or impose burdens on speech without reference to the

ideas or views expressed are in most instances content neutral.” Id.

Laws that discriminate based on viewpoint are most odious. R.A.V. v. City of St. Paul,

505 U.S. 377, 382 (1992); see also Hastings Christian Fellowship v. Martinez, 130 S. Ct. 2971,

3006 (2010) (“We have never before taken the view that a little viewpoint discrimination is

acceptable.”) (Scalia, J., dissenting). However, courts should be careful not to “conflate content

neutrality with viewpoint neutrality.” ANSWER III, 798 F. Supp. 2d at 146. “Regulation of the

subject matter of messages, though not as obnoxious as viewpoint-based regulation, is also an

objectionable form of content-based regulation.” Hill v. Colorado, 530 U.S. 703, 722 (2000).

Laws that distinguish “based only upon the manner in which speakers transmit their

messages to viewers, and not upon the messages they carry” are content-neutral. Turner, 512

U.S. at 645. Furthermore, a “‘regulation that serves purposes unrelated to the content of the

expression is deemed neutral, even if it has an incidental effect on some speakers or messages

but not others.’” Hastings, 130 S. Ct. at 2994 (quoting Ward, 491 U.S. at 791). The “mere

assertion of a content-neutral purpose will not be enough to save a law which, on its face,

discriminates based on content,” Turner, 512 U.S. at 642–43 (citations omitted)—“that

distinction must actually advance the content-neutral purpose the city asserts,” ANSWER III, 798

F. Supp. 2d at 147 (original formatting omitted).


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C. Substantial Overbreadth and Vagueness

MASF also challenges the District’s law as unconstitutionally overbroad and vague on its

face. In the First Amendment context, courts are especially concerned about overbroad and

vague laws that may have a chilling effect on speech. See, e.g., Reno v. American Civil Liberties

Union, 521 U.S. 844, 871–72 (1997) (“The vagueness of such a regulation raises special First

Amendment concerns because of its obvious chilling effect on speech.”) (citing Dombrowski v.

Pfister, 380 U.S. 479, 494 (1965)). Courts are suspicious of “[b]road prophylactic rules in the

area of free expression[,]” and therefore “[p]recision of regulation must be the touchstone in an

area so closely touching our most precious freedoms.” NAACP v. Button, 371 U.S. 415, 438

(1963) (citations omitted).

The doctrines of substantial overbreadth and vagueness 3 often overlap, and Courts

frequently blend them together. See, e.g., Forsyth County v. Nationalist Movement, 505 U.S.

123, 129 (1992) (“[A] party [may] challenge an ordinance under the overbreadth doctrine in

cases where every application creates an impermissible risk of suppression of ideas, such as an

ordinance that delegates overly broad discretion to the decisionmaker, and in cases where the

ordinance sweeps too broadly, penalizing a substantial amount of speech that is constitutionally

protected.”); Kolender v. Lawson, 461 U.S. 352, 358 n.8 (1982) (“We have traditionally viewed

vagueness and overbreadth as logically related and similar doctrines.”); Hunt v. City of L.A., 601

F. Supp. 2d 1158, 1167 n.6 (C.D. Cal. 2009) (“The doctrines of overbreadth, unbridled

discretion, and vagueness overlap.”) (citing SMOLLA & NIMMER ON FREEDOM OF SPEECH §§ 6:1–

3 The vagueness doctrine, itself, encompasses the doctrine of standardless delegation of
administrative discretion. See City of Chicago v. Morales, 527 U.S. 41, 56 (1999). Sometimes,
“standardless delegation” is treated as a separate, freestanding doctrine. See SMOLLA & NIMMER ON
FREEDOM OF SPEECH § 6:2 (2012) (stating that doctrines of overbreadth, vagueness, and standardless
delegation of administrative discretion “are analytically distinct”). This Court will follow the lead of the
Supreme Court and treat “standardless delegation” as a form of unconstitutional vagueness.


Case 1:07-cv-01495-RCL Document 86 Filed 11/29/12 Page 16 of 58

6 (2008)). While noting the conceptual similarities, this Court heeds the warning not to “confuse

vagueness and overbreadth doctrines,” Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455

U.S. 489, 497 n. 9 (1982), and explain each doctrine separately.

1. Vagueness and Standardless Delegation of Administrative Discretion

“Vagueness may invalidate a criminal law for either of two independent reasons. First, it

may fail to provide the kind of notice that will enable ordinary people to understand what

conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory

enforcement.” City of Chicago v. Morales, 527 U.S. 41, 56 (1999). Vague laws violate the Due

Process clause of the Constitution, and this doctrine is not limited to laws regulating speech. See

Papachristou v. Jacksonville, 405 U.S. 156, 162 (1972) (vagrancy statutes void for vagueness

under Due Process clause). Requiring some precision in the law vindicates the “underlying

principle that no man shall be held criminally responsible for conduct which he could not

reasonably understand to be proscribed.” United States v. Harriss, 347 U.S. 612, 617 (1954).

Perhaps more importantly, this doctrine reigns in the discretion of enforcement officers:

[T]he more important aspect of the vagueness doctrine “is not actual notice, but
the other principal element of the doctrine—the requirement that a legislature
establish minimal guidelines to govern law enforcement.” Where the legislature
fails to provide such minimal guidelines, a criminal statute may permit “a
standardless sweep [that] allows policemen, prosecutors and juries to pursue their
personal predilections.”

Kolender, 461 U.S. at 358 (quoting Smith v. Goguen, 415 U.S. 566, 574–75 (1974)).

“[T]he Supreme Court has stated that the vagueness doctrine should be applied with

special exactitude where a statute might impinge on basic First Amendment freedoms.”

Sharkey’s. Inc. v. City of Waukesha, 265 F. Supp. 2d 984, 990 (E.D. Wis. 2003) (citing Grayned

v. City of Rockford, 408 U.S. 104, 109 (1972)); see also F.C.C. v. Fox Television Stations, Inc.,

132 S. Ct. 2307, 2317 (June 21, 2012) (“[T]he void for vagueness doctrine addresses at least two


Case 1:07-cv-01495-RCL Document 86 Filed 11/29/12 Page 17 of 58

connected but discrete due process concerns: Regulated parties should know what is required of

them so they can act accordingly; and precision and guidance are necessary so that those

enforcing the law do not act in an arbitrary or discriminatory way. When speech is involved,

rigorous adherence to these requirements is necessary to ensure that ambiguity does not chill

protected speech.”). Courts in this circuit have strictly enforced the vagueness doctrine. See

Armstrong v. D.C. Public Library, 154 F. Supp. 2d 67, 77, 81 (D.D.C. 2001) (“[W]hen a

regulation lacks terms which can be defined objectively, a court will strike it down for

vagueness.”; “[T]his Circuit has ruled that officials must have explicit guidelines in order to

avoid arbitrary and discriminatory enforcement.”) (citations omitted).

The vagueness doctrine does not require “perfect clarity and precise guidance…even of

regulations that restrict expressive activity.” Ward, 491 U.S. at 794. “Condemned to the use of

words, we can never expect mathematical certainty from our language.” Grayned, 408 U.S. at

110. Regulations “cannot, in reason, define proscribed behavior exhaustively or with

consummate precision.” United States v. Thomas, 864 F.2d 188, 195 (D.C. Cir. 1988). Courts

“must be careful not to go beyond the statute’s facial requirements and speculate about

‘hypothetical’ or ‘imaginary’ cases.” Washington State Grange v. Washington Republican

Party, 552 U.S. 442, 449–50 (2008) (citing United States v. Raines, 362 U.S. 17, 22 (1960)).

2. Substantial Overbreadth

A Court may facially invalidate a law if there is “no set of circumstances under which the

law would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). “In the First

Amendment context, however” the Supreme Court “recognizes ‘a second type of facial

challenge,’ whereby a law may be invalidated as overbroad if ‘a substantial number of its

applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’”


Case 1:07-cv-01495-RCL Document 86 Filed 11/29/12 Page 18 of 58

United States v. Stevens, 130 S. Ct. 1577, 1587 (2010) (quoting Washington State Grange, 552

U.S. at 449 n.6). Courts require that the overbreadth of the law be substantial “not only in an

absolute sense, but also relative to the statute’s plainly legitimate sweep.” United States v.

Williams, 553 U.S. 285, 292 (2008).

The Supreme Court has established a two-step test for analyzing substantial overbreadth.

First, a court must “construe the challenged statute; it is impossible to determine whether a

statute reaches too far without first knowing what the statute covers.” Id. at 293. Second, a court

must consider “whether the statute, as [the court has] construed it, criminalizes a substantial

amount of protected expressive activity.” Id. at 297. While this test is considerably less

stringent than the Salerno test, the Supreme Court warns that “[i]nvalidation for overbreadth is

strong medicine that is not to be casually employed.” Id. at 293 (citations omitted).


The District’s sign regulations are unconstitutional for two reasons. First, the law is an

unconstitutional regulation of protected speech in a designated public forum. The District has

not properly justified the distinction it draws between events and non-events. The District has

not offered any admissible evidence explaining how its regulations further any content-neutral

purposes. See Def.’s Statement of Material Facts, June 22, 2012, ECF No. 59-1 (“Def.’s SMF”)

(providing nothing how regulations achieve content-neutral purposes). The Court cannot accept

the District’s inadmissible ipse dixit that the law’s event/non-event is narrowly tailored to

promote esthetics and litter control, and the District has provided no admissible evidence about

how the law accomplishes those interests. Thus, the law fails intermediate scrutiny—the lowest

level applicable to a law regulating speech in a public forum.


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Secondly, the regulations fail because they explicitly delegate administrative discretion to

enforcement officers. A sign could be related to an event if “reasonably determined from all

circumstances by the inspector.” 24 D.C. CODE MUN. REGS. § 108.13 (2012); Pl.’s Statement of

Material Facts ¶8, June 22, 2012, ECF No. 60-1 (“Pl.’s SMF”). The Court recognizes that

language is imprecise, and it cannot expect definitions to cover every imaginable scenario. Yet,

when a law touches on the sensitive area of free speech, more specificity is required. A

legislature cannot explicitly delegate ambiguous cases to the rudderless “reasonable” judgment

of individual enforcement officers.

MASF has “show[n] 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), and MASF is entitled to

summary judgment. Since the District’s cross-motion seeks summary judgment on identical

issues, granting MASF summary judgment logically precludes granting the District’s motion.

MASF also challenges the sign regulations on the grounds that they are unconstitutionally

overbroad—although the law may be applied in some instances without offending the First

Amendment, its overly-broad sweep penalizes a significant amount of constitutionally-protected

speech. Def.’s Mot. Summ. J. 38–40. MASF relies heavily on cases that conflate overbreadth

with vagueness; the Court strives to treat those doctrines separately. The problem with the sign

regulations isn’t that they regulate too much speech, or regulate certain categories of speech that

the District cannot touch. A law that imposes an across-the-board durational limit on all signs, or

properly explains the fit between the event/non-event distinction and content-neutral interests,

could be constitutional. The real problems are the lack of justification for the event/non-event

distinction, and the explicit delegation of administrative discretion to individual decisionmakers.


Case 1:07-cv-01495-RCL Document 86 Filed 11/29/12 Page 20 of 58

A. MASF’s Challenge that the Law is Unconstitutionally Content-Based

There are three steps in this kind of First Amendment challenge: determining whether the

First Amendment protects the speech, determining the forum in which the speech occurs, and

then assessing whether the regulations meet the requisite standard. See Part III.B supra;

Mahoney, 642 F.3d at 1116. The District’s latest amendments do not change how the Court

would assess the first two steps; therefore, the Court will re-state and adopt, in the following two

sections, its analysis in ANSWER III, 798 F. Supp. 2d at 144–45.

1. Do the Regulations Implicate Protected Speech?

The first step here is clear. “[S]igns are a form of expression protected by the Free

Speech Clause[.]” City of Ladue, 512 U.S. 43, 48 (1994). That is particularly true given the

subject of the signs plaintiff seeks to post—political opinions on public issues such as war and

racial profiling. Snyder, 131 S. Ct. at 1211 (“[S]peech on public issues occupies the ‘highest

rung of the hierarchy of First Amendment values’ and is entitled to special protection.”) (quoting

Connick v. Myers, 461 U.S. 138, 145 (1983)); City of Ladue, 512 U.S. at 54 (characterizing anti-

war speech as “absolutely pivotal”). Plaintiff’s desire to post signs bearing political messages

easily qualifies as protected speech.

2. What is the Nature of the Forum?

The second step is to determine the nature of the forum where the protected speech

occurs. This is slightly more complicated than the first step, but still raises no serious doubt.

The “lamppost[s] and appurtenances” referenced by the regulations, 24 D.C. CODE MUN. REGS.

§ 108.1 (2012), are government property. The District’s lampposts are not a traditional public

forum; their purpose is not to serve as a means of expression. Unlike streets and parks, the

quintessential public fora, they have not “immemorially been held in trust for the use of the


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public and, time out of mind…been used for purposes of assembly, communicating thoughts

between citizens, and discussing public questions.” Hague v. C.I.O., 307 U.S. 496, 515 (1939).

On the other hand, the District’s lampposts cannot be considered a nonpublic forum. While the

Supreme Court found Los Angeles’s utility poles to be a nonpublic forum in Taxpayers for

Vincent, 466 U.S. at 815, there is an important distinction between that case and this one. The

Los Angeles ordinance banned all signs on utility poles. Id. Here, the District explicitly permits

a wide array of postings on public lampposts. The District’s lampposts cannot constitute a

nonpublic forum given that the regulations designate them as a lawful place for posting. 24 D.C.

CODE MUN. REGS. § 108 (2012). Instead, the District’s lampposts are a textbook example of a

limited or designated public forum, in which public property has been “opened for use by the

public as a place for expressive activity.” Perry, 460 U.S. at 45.

3. Are the Regulations Content-Neutral or Content-Based?

The next step is determining whether the regulations are content-neutral or content-based,

and determining whether strict or intermediate scrutiny applies. The District has amended its

regulations in response to the Court’s July 2011 opinion. While these amendments do not solve

all the regulations’ constitutional problems—see Part III.A.5 infra—the Court will reexamine the

content-neutrality of the regulations and not simply rely on its analysis in ANSWER III.

a. Content-neutral justifications for laws with incidental effects on content—

legal standard and burden of proof

The District argues that its regulations are content-neutral because they are “justified

without reference to the content of the regulated speech.” Def.’s Mot. Summ. J. 9 (quoting

Ward, 491 U.S. at 789). But the “mere assertion of a content-neutral purpose will not be enough

to save a law which, on its face, discriminates based on content.” Turner, 512 U.S. at 642–43.


Case 1:07-cv-01495-RCL Document 86 Filed 11/29/12 Page 22 of 58

Simply by pointing to the words of the regulations and asking the Court to apply the

controlling law, MASF has met its initial summary judgment burden. It has shown that the sign

regulations regulate protected speech in a designated public forum, and places differential

burdens on different types of speech. See Pl.’s SMF ¶8; Def.’s SMF ¶¶5–6; Def.’s Opp’n to Pl.’s

SMF 3, July 17, 2012, ECF No. 62-1 (“The District does not dispute paragraph 8 of the

[plaintiff’s] SMF, as the quoted text is contained in the current regulations.”). The burden then

shifts to the District to show how its law is narrowly tailored to achieve a significant, content-

neutral interest. See ANSWER III, 798 F. Supp. 2d at 148 (“In the absence of an explanation for

how th[e] distinction between event and non-event signs advances the District’s objective of

litter prevention, the differential burdens imposed by [the sign regulations] present serious First

Amendment concerns.”). The District asserts in its briefs, without reference to any legislative

history or supporting affidavits, that the regulations promote esthetics and reduce litter.4 Def.’s

Mot. Summ. J. 11–12. At this stage, such conclusory statements are insufficient.

4 One might argue that the District fails at a more basic level; not only does it fail to introduce any
evidence explaining how its law achieves its interests in litter control and esthetics, it fails to introduce
evidence showing that its interests are in fact litter control and esthetics. In fact, the District does not
introduce any legislative history or affidavit explaining why it passed the law; again, it simply relies on
ipse dixit in its briefs.

Unlike with the issue of narrow tailoring, see infra Part.III.A.4, the Court can take judicial notice
of public records evincing the intent behind Section 108. In its Notice of Emergency Rulemaking, the
District noted its amendment of the sign regulations “retain[s] the intent of the Council when it passed the
Street Sign Regulation Amendment Act of 1979, D.C. Law 3-50, 26 DCR 2733 (December 21, 1979).”
D.C. MUN. REGS. tit. 56, §§ 8759–60 (Nov. 6, 2009). The stated intent of that law was to control litter
and promote esthetics and public safety. 26 DCR 2733 (1979).

Furthermore, the District’s Notice of Proposed Rulemaking states that sign regulations serve to,
inter alia, “[r]educe [ ] traffic hazards,” “[p]rotect property values,” and “[p]rovide an attractive visual
environment[.]” D.C. MUN. REGS. tit. 56, §§ 10022–99 (Aug, 17, 2012). (However, the Proposed
Rulemaking’s conclusory statement that its sign regulations “advance these governmental interests and
objectives and are the minimum amount of regulation necessary to achieve them,” id., is evidence of
nothing, especially considering it applies to dozens of different sections—including regulations of
billboards and public art.) While this Proposed Rulemaking has yet to become final, it provides more
evidence that the District has litter control and esthetics interests in mind when regulating signs.


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The Supreme Court held in City of Cincinnati v. Discovery Network, 507 U.S. 410

(1993), that the burden is on the government to explain how its law furthers its interests.

Cincinnati prohibited the distribution of “commercial handbills” through newsracks installed on

public property. The city did not completely ban newsracks and allowed the distribution of

newspapers. Id. at 412–15. Cincinnati claimed that its interests in “ensuring safe streets and

regulating visual blight” justified this distinction. Id. at 415. The Court held the law

unconstitutional, as the city did not properly justify its law: “It was the city’s burden to establish

a reasonable fit between its legitimate interests in safety and esthetics and its choice of a limited

and selective prohibition of newsracks as the means chosen to serve those interests.” Id. at 416.

Although Discovery Network challenged the law, the Court did not require Discovery to prove

that Cincinnati had an impermissible or insufficient interest; instead the Supreme Court put the

onus on the city to defend its law:

In the absence of some basis for distinguishing between “newspapers” and
“commercial handbills” that is relevant to an interest asserted by the city, we are
unwilling to recognize Cincinnati’s bare assertion that the “low value” of
commercial speech is a sufficient justification for its selective and categorical ban
on newsracks dispensing “commercial handbills.” Our holding, however, is
narrow. As should be clear from the above discussion, we do not reach the
question whether, given certain facts and under certain circumstances, a
community might be able to justify differential treatment of commercial and
noncommercial newsracks. We simply hold that on this record Cincinnati has
failed to make such a showing. Because the distinction Cincinnati has drawn has
absolutely no bearing on the interests it has asserted, we have no difficulty
concluding, as did the two courts below, that the city has not established the “fit”
between its goals and its chosen means that is required[.]

Id. at 428. The Court also