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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ACT NOW TO STOP WAR AND END
RACISM COALITION, et al.,
THE DISTRICT OF COLUMBIA
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
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.
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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
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
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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.’”
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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.
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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.
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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