                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA


AMERICAN FREEDOM DEFENSE
INITIATIVE,     et. al.,

              Plaintiffs,

      v.                               Civil Action No. 15-1038 (GK)

WMATA, et. al. ,

             Defendants.


                              MEMORANDUM OPINION

      Plaintiffs,      American    Freedom      Defense   Initiative,       Pamela

Geller      and    Robert   Spencer,   (collectively,        "Plaintiffs,"      or

"AFDI") ,    bring this     action against the Washington Metropolitan

Area Transit Authority, et. al.,           (collectively,     "Defendants," or

"WMATA"),     alleging violations      of their First Amendment            rights.

This dispute arose when Plaintiffs submitted an ad to WMATA to

display on its property. After Plaintiffs submitted the ad, WMATA

changed its policy to close its advertising space to all "issue-

oriented" advertising.        WMATA then rejected Plaintiffs'           ad under

the new policy.       Plaintiffs claim that WMATA's denial is a prior

restraint     on   Plaintiffs'    speech   in    violation    of   their     First

Amendment rights.




                                       1
         This matter is before the Court on the Parties' Cross-Motions

for Summary Judgment [Dkt. Nos. 19, 20]. Upon consideration of the

Motions,         Oppositions       [Dkt.   Nos.       20,         25],    and Replies                     [Dkt.     Nos.

25, 29], and the entire record herein, and for the reasons stated

below,      Defendants'       Motion for          Summary Judgment                               is granted,               and

Plaintiffs' Motion for Summary Judgment is denied.

I .      BACKGROUND

      A. Factual Background

         Plaintiff AFDI is a nonprofit organization incorporated under

the laws of New Hampshire.                   Compl.         CJ[    7     [ Dkt.          No.       1] .    Plaintiff

Pamela Geller is the President of AFDI. Id.                                     CJ[   10. Plaintiff Robert

Spencer is the Vice President of AFDI. Id.                                CJ[         11. AFDI is dedicated

to promoting and protecting the right to freedom of speech under

the First Amendment. Plaintiffs' Statement of Material Facts                                                      CJICJI    3-

4     ( "Pls.'    SMF")   [ Dkt.    No.    20-1] .     Plaintiffs frequently purchase

advertising space on transit authority property in major cities

throughout the United States to run ads promoting its message on

current events and political issues. Pls.' SMF                                          C)[CJI   5-6. Plaintiffs

have also frequently litigated transit authorities'                                                 rejection of

those ads.

        WMATA is a government agency that was established through a

congressionally           approved        interstate              compact               to       provide      public


                                                  2
transportation in the Washington, D.C. metropolitan area. See D.C.

Code     §   9-1107.01(80).                WMATA operates the Metrorail and Metrobus

systems      in the Washington,                    D. C. metropolitan area.            Defendants'

Motion for Summary Judgment at 3 ("Mot.")                              [Dkt. No. 19-1].

       WMATA leases                 advertising       space on its        buses    and on          free-

standing dioramas in its subway stations.                               Pls.'   SMF   err   9.    Before

May 28,      2015,           "WMATA had a policy of accepting a broad range of

issue-oriented ads." Mot. at 5. WMATA leased advertising space for

issue-oriented                and        political    advertisements       under      its        earlier

policy.      Id.    errerr   29-30; Defendant's Reply to Plaintiff's Statement

of Material Facts               <[[<[[    29-30   (Defs.' Rep. to Pls.' SMF")               [Dkt. No.

25-1].

       On or about May 20,                    2015,   Plaintiffs submitted two proposed

ads to WMATA's advertising agent for display on WMATA's buses and

free-standing dioramas. Pls.' SMF                         <[[   23. The proposed ads appear as

follows:


                                                                                CH


       Id.   err   24.



                                                      3
                              .................... ,.,_ .......            . . . ............ .,_,,. _...,.._....
                               "Tillll!tl.•..-rllMlilllltf1•-......- .. ~..,.........,....~.,..~
                                                                  tlillt~--




                Id.    <JI   25.

                On    May        22,     2015,       WMATA' s            advertising            agent          responded     to

Plaintiffs'                    submission stating,                       "The copy has been submitted to

the             transit            authority.           We        are      also       looking             into        available

inventory. I will let you know about both as soon as I hear back."

Id.       <JI    26-27.

                On    May        28,     2015,       WMATA' s            Board     of      Directors                unanimously

adopted a motion                          ("May 28 Moratorium" or "Restriction")                                        closing

"WMATA's                     advertising            space          to      any       and        all         issue-oriented

advertising,                     included but not limited to,                               political,               religious,

and advocacy advertising until the end of the calendar year." Id.

<JI<JI   44,         50.      The motion also stated that the Board would "review

what role such issue-oriented advertising has in WMATA's mission


                                                                     4
        . and    will    seek    public      comment        and   participation     for   its

consideration           before    making          a     final     policy   determination."

Bowersox Deel., Ex. A [Dkt. No. 19-3].

        WMATA rejected Plaintiffs'                    ads after the May 28 Moratorium

was enacted.        Pls.' SMF     ~~     59-60; Defs.' Rep. to Pls.' SMF             ~~   59-

60.

        On November 19,          2015,    the WMATA Board of Directors adopted

Resolution        No.   2015-55     closing           "WMATA' s   Commercial· Advertising

Space to issue-oriented ads,                 including political,           religious,    and

advocacy ads.            ." Id.,       Ex.   B.       The Resolution included further

"Guidelines        Governing      Commercial           Advertising,"       which   specified

that,

        9. Advertisements intended to influence members of the
        public regarding an issue on which there are varying
        opinions are prohibited.       .11. Advertisements that
        support or oppose any political party or candidate are
        prohibited. 12. Advertisements that support or oppose
        any   religion,   religious   practice   or  belief   are
        prohibited . . . [and] 13. Advertisements that support or
        oppose an industry position or industry goal without any
        direct   commercial benefit to the advertisers are
        prohibited.

        Id.

     B. Procedural Background

        On July 1, 2015, Plaintiffs filed their Complaint. On August

5,    2016,     Defendants filed their Motion for Summary Judgment.                        On



                                                  5
September 5, 2016, Plaintiffs filed their Cross-Motion for Summary

Judgment            ("Cross-Mot.")        [Dkt.     No.    20].     On    October        3,   2016,

Defendants filed their Opposition to Plaintiffs' Cross-Motion for

Summary Judgment and Reply (Defs.' Rep.")                         [Dkt. No. 25]. On October

31,      2016,       Plaintiffs filed their Reply             ("Pls.'          Rep.")    [Dkt. No.

2 9] •

II.      STANDARD OF REVIEW

         Summary judgment should be granted only if the moving party

has shown that there is no genuine dispute of material fact and

that the moving party is entitled to judgment as a matter of law.

Fed.      R.    Civ.    P.    56,   see also Celotex Corp. v. Catrett,                    477 U.S.

317,      322       (1986);    Johnson v.       Perez,    823 F.3d 701,          705    (D.C. Cir.

2016). A dispute of material fact is "'genuine' . . . if the evidence

is    such that a             reasonable       jury could return a verdict                for the

nonmoving party." Anderson v. Liberty Lobby,                             Inc.,    477 U.S. 242,

248      (1986).

         In     a    summary        judgment    motion,     the    moving        party    has   the

responsibility for "informing the district court of the basis for

its      motion,       and     identifying        those   portions        of     the    pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, which it believes demonstrate

the absence of a genuine issue of material fact." Celotex,                                      477


                                                   6
U.S. at 323 (internal quotation omitted).

     The court should view the evidence in favor of the nonmoving

party and draw all reasonable inferences in favor of that party

making     credibility      determinations       or      weighing    the    evidence,

Johnson,    823 F.3d at 705.      "However,      the nonmoving party may not

rely solely on allegations or conclusory statements. Rather, the

nonmoving party must present specific facts that would enable a

reasonable jury to find in its favor." Krishnan v.                     Foxx,   177 F.

Supp. 3d 496, 503 (D.D.C. 2016)        (citing Greene v. Dalton, 164 F.3d

671, 675 (D.C. Cir. 1999)).

III. ANALYSIS

  A. Forum Analysis

     The Parties do not dispute that Plaintiffs' ads are protected

speech.    Courts     analyze   restrictions          on    protected      speech   on

government property for compliance with the First Amendment under

the public forum doctrine.        Initiative & Referendum Inst. v. U.S.

Postal Serv.,       685   F.3d 1066,   1070      (D.C.     Cir.   2012).   Under the

public forum doctrine, government property is divided into three

categories:    1)    traditional public forums,             2)    designated public

forums,    and 3)   nonpublic forums.      Id.    "[T]he extent to which the

Government can control access          [to its property]            depends on the

nature of the relevant forum. Cornelius v. NAACP Legal Def. & Educ.


                                       7
Fund, Inc., 473 U.S. 788, 800 (1985).

       Traditional public forums,             such as streets and parks, "have

immemorially been held in trust for the use of the public,                           and,

time     out    of    mind,    have   been    used   for     purposes     of    assembly,

communicating         thoughts    between     citizens,      and discussing public

questions." Id.          (quoting Hague v. CIO, 307 U.S. 496, 515                 (1939))

(internal quotation marks omitted)

       A designated public forum is government property "which the

state has opened for use by the public as a place for expressive

activity." Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460

U.S.   37,     45    (1983)   "The Constitution forbids a state to enforce

certain exclusions from a [designated public forum] even if it was

not required to create the forum in the first place." Id. "[W]hen

the Government has intentionally designated a place or means of

communication as a public forum speakers cannot be excluded without

a compelling governmental interest." Cornelius, 473 U.S. at 800.

       A nonpublic forum "is not by tradition or designation a forum

for public communication," Perry,                4 60 U.S.      at 4 6,   and the First

Amendment does not guarantee unlimited expression in this forum.

Rather,      the government "may reserve the forum for its intended

purposes, communicative or otherwise, as long as the regulation on

speech    is    reasonable and not           an effort     to    suppress      expression


                                             8
merely because public officials oppose the speaker's view." Id.

Access   to    a   nonpublic      forum can be            restricted as     long as     the

restrictions are viewpoint neutral and reasonable. Cornelius, 473

U.S. at 800.

     Plaintiffs         contend    that    WMATA's          advertising    space    was    a

designated public forum at               the       time   they submitted their         ads.

Cross-Mot.      at 13-20. WMATA does not dispute this assertion.                        See

Defs.'   Rep.      at   3-4.    Plaintiffs          argue    that   this   Court    should

therefore analyze WMATA' s           rejection of AFDI' s            ads by using the

higher standard that applies to designated public forums.                            WMATA

contends that its advertising space was a nonpublic forum when it

rejected AFDI's ad, and therefore the rejection should be analyzed

under the standard that applies to nonpublic forums.                         This Court

agrees   with      WMATA.      WMATA's    new       guidelines      must   therefore      be

viewpoint neutral and reasonable.                   Pleasant Grove City v.         Summum,

555 U.S. 460, 470 (2009).

              1. WMATA's Restriction is Viewpoint Neutral

     The parties do not dispute that the government has a right to

convert a designated public forum into a nonpublic forum. See Mot.

at 7-8; Cross-Mot. at 17-18; Pls.' Rep. at 10; Cornelius, 473 U.S.

at 802 ("the government is not required to indefinitely retain the

open character of [a]           facility"). However,           Plaintiffs argue that


                                               9
WMATA's    decision   to    close   its   property   to     issue-oriented

advertising was improper because the change specifically targeted

Plaintiffs' ads. 1 See Pls.' Rep. at 10.

       Needless to say,    it would be unconstitutional for WMATA to

close its property to issue-oriented advertising "merely as a ruse

for impermissible viewpoint discrimination." See Lamb's Chapel v.

Ctr.   Moriches Union Free Sch.     Dist.,   508 U.S.     384,   394   (1993)

("[T]the First Amendment forbids the government to regulate speech




1    To the extent that Plaintiff brings their claims under WMATA's
pre-May 28, 2015 policy which permitted the publication of issue-
oriented ads on WMATA's property, WMATA's May 28 Moratorium mooted
any such claim. See AFDI v. MTA, 815 F.3d 105 (2d. Cir. 2016). In
AFDI, the same Plaintiffs sued the New York Metropolitan Transit
Authority for refusing to publish a similarly political ad. Id.
After the district court granted Plaintiffs' Motion for a
preliminary injunction, the MTA changed its advertising standards
to convert MTA' s property from a designated public forum to a
nonpublic forum. Id. The district court held that the MTA's new
policy mooted Plaintiffs' claims, and the Second Circuit affirmed.
Id.

     The AFDI case is consistent with the law in our Circuit. See
Initiative & Referendum Inst., 685 F.3d at 1074 ("[a] challenge to
a superseded law is rendered moot unless there is evidence
indicating that the challenged law likely will be reenacted").
Even considered in the light most favorable to Plaintiffs, they
have not presented any facts suggesting that WMATA is likely to
reverse its regulation. On the contrary, WMATA's May 28 Moratorium
was made permanent on November 19, 2015 and has remained in effect
ever   since.  Plaintiffs'    argument   that  WMATA's   financial
difficulties will force it to redesignate its property as a
designated public forum are nothing more than speculation.


                                    10
in ways that          favor some viewpoints or ideas at the expense of

others")        (internal    quotations       omitted) ;    _R_i_d_l_e_y.___v_._M_a_s_s_.__B_a_y~

Transp. Auth., 390 F.3d 65, 77            (1st Cir. 2004).

        WMATA argues that its reasons              for closing its advertising

space to     issue oriented ads          were    "that     controversial          ads     were

hurting WMATA's reputation with the community; ensuring employee

morale,     which     was    adversely   affected     by    constant         exposure        to

messages they might find offensive; minimizing vandalism directed

at issue-oriented ads; and reducing the administrative burden on

WMATA,     its     outside     advertising      management        company,         and     its

counsel, who were forced to review controversial ads to determine

if they complied with the former advertising policy." Defs.' Rep.

at 10 (citing Bowersox Depo at 41:6-48:13).

        Plaintiffs argue that the timing of WMATA's May 28 Moratorium

shows    that    it    was   targeted    at    Plaintiffs'      ads.      Specifically,

Plaintiffs allege that because their ad was pending when WMATA

took what they characterize as an "unprecedented and hasty action

of passing a        'moratorium'   which created a sea change in the way

WMATA had been doing business for decades," the new guidelines

must have been "timed so as to prevent the display of Plaintiffs'

advertisements." Pls.' Rep. at 10 (emphasis in original).

        However,    Defendants cite many cases in which the government


                                          11
changed its guidelines during the pendency of a lawsuit and the

court did not infer viewpoint discrimination from such timing. For

example,    in Ridley,        a    case which Plaintiffs cite as well,                the

defendant agreed to run an ad in April 2002, mooting a pending

appeal over the refusal to publish the ad, rejected an additional

ad in August 2002,           and changed its guidelines in January 2003.

Ridley,    390    F.3d at         74-75.   Despite     the    timing   of   the   changed

guidelines,      the court found "no evidence that the 2003 changes

were      adopted       as   a      mere     pretext     to     reject      plaintiff's

advertisements." Id. at 77.

       In Ridley, the court did find that one of the defendants had

engaged in viewpoint discrimination based on statements by some of

its officials. Id. at 87-88. Here, Plaintiffs rely on a statement

by Defendants'         representative that Plaintiffs' ad was the "straw

that   broke     the    camel's      back"   and     pushed    WMATA   to   change    its

guidelines. Even in the light most favorable to Plaintiffs, that

statement does not support an inference that WMATA's guidelines

were revised for the purpose of rejecting Plaintiffs' ads. Rather,

the statement suggests that WMATA had previously been considering

a policy change for other reasons and only saw Plaintiffs' ad as

additional support for their previous thinking.




                                             12
      Plaintiffs argue that because WMATA published issue-oriented

ads   in the past,    the changes to its guidelines and subsequent

rejection of Plaintiffs' ads can only be due to a preference for

other controversial messages over Plaintiffs' message. Cross-Mot.

at 25-26. However, having established that WMATA was permitted to

change its guidelines, the relevant inquiry is not whether WMATA

allowed other controversial messages before the May 28 Moratorium,

but whether WMATA has consistently enforced the new guidelines

since they were enacted.     Plaintiffs have submitted no evidence

that the new guidelines have been inconsistently enforced. 2

           2. WMATA's Restriction is Reasonable

      "A regulation is    reasonable   if   it   is   consistent with the

government's legitimate interest in maintaining the property for

its dedicated use." Initiative     &   Referendum Inst.,       685 F. 3d at

1073 (citing Perry,    460 U.S. at 50-51). A restriction "need only

be· reasonable; it need not be the most          reasonable or the     only

reasonable limitation." Cornelius, 473 U.S.           at 808   (emphasis in




2    Plaintiffs'   argument   that   the   government   may   not
"discriminate" against non-commercial ads in favor of commercial
ads, see Pls.' Rep. at 12, is unsupported by the case it cites,
Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 514 (1981),
and runs counter to the holdings of many of the other cases cited
above upholding guidelines that prohibit political or issue-
oriented advertising. See e.g. SMART, 698 F.3d 885.

                                  13
original).        There   is    no    "requirement        that       the    restriction         be

narrowly     tailored          or     that      the     Government's             interest       be

compelling," Cornelius,              473 U.S.       at 809,       especially because the

nonpublic forum is            "rarely     []the only means             of contact with a

particular audience." Id.

      Plaintiffs respond that "it is unreasonable to argue that an

ad displayed on the outside of a bus traveling through Washington,

D.C.- a bustling city in which passengers and outside observers

are   besieged      by    a    cacophony       of     expressive,          and   quite       often

political and controversial, media- would somehow interfere with

t'he operation of WMATA' s bus system." Cross-Mot. at 28.

      Yet,   Defendants explained how such ads have interfered with

WMATA's operations.            For example, WMATA stated that controversial

ads had led to vandalism directed at issue-oriented ads and an

administrative burden on WMATA's advertising agent and counsel who

were forced to review them to determine if they complied with the

former   advertising          policy.    Courts       have    consistently            held    that

restrictions         on        issue-oriented            advertising             on         public

transportation for reasons such as these are reasonable. This Court

finds WMATA's restrictions to be reasonable as well. See Lehman v.

City of Shaker Heights, 418 U.S. 298, 304                         (1974)   ("the managerial

decision     to     limit      car      card    space        to     innocuous         and     less


                                               14
controversial commercial and service oriented advertising does not

rise to the dignity of a First Amendment violation"); SMART,                                   698

F.3d at 892-893.

     B. WMATA's Restriction Is not Unconstitutionally Vague

       Plaintiffs argue that the May 28 Moratorium and subsequent

guidelines are "hopelessly vague," and therefore violate the First

Amendment by giving "officials [] unbridled discretion over [the]

forum's use." Cross-Mot.                  at 16     (quoting Se.        Promotions,     Ltd.    v.

Conrad,    420 U.S.          546,       553    (1975)).    A law or guideline limiting

free speech must have "narrow, objective, and definite standards

to    guide    the     licensing          authority."           Shuttlesworth    v.    City     of

Birmingham, Ala., 394 U.S. 147, 151 (1969).

       WMATA's advertising guidelines include sufficiently definite

standards      regarding what                 constitutes       "issue-oriented ads."          The

guidelines          specify that          the    Restriction       is   "including but         not

limited       to,     political,          religious        and     advocacy     advertising."

Bowersox Deel.,            Ex.    B. The guidelines further elaborate each of

the modifiers in that part of the Restriction.                             For example, the

guidelines state that "[a]dvertisements that promote or oppose any

political          party         or     candidate         are     prohibited;"        and   that

"[a]dvertisements that promote or oppose any religion,                                religious

practice      or     belief       are    prohibited;        and    that   "[a] dvertisements


                                                   15
intended to influence members of the public regarding an issue on

which there     are    varying    opinions    are   prohibited,"    among   other

specifications. Id.

     Thus, WMATA's Restriction is clearly not unconstitutionally

vague.   See    SMART,    698    F.3d   885   (held   that   a   restriction   on

"political or political campaign advertising" was "not so vague or

ambiguous that a person could not readily identify the applicable

standard"      and    therefore    upheld     another    transit    authority's

rejection of another one of plaintiffs' ads).

     Defendants' Motion for Summary Judgment is therefore granted

and Plaintiffs' Cross-Motion for Summary Judgment is denied. 3




3 Plaintiffs seek nominal damages under 42 U.S.C. § 1983.
Defendants argue that WMATA is immune from suit under Section 1983,
and that Plaintiffs are therefore not entitled to nominal damages.
Because this Court finds that Defendants are not liable, Plaintiffs
are not entitled to nominal damages and the Court need not reach
the issue of whether WMATA posseses sovereign immunity.

                                         16
IV.   CONCLUSION

      For the    foregoing   reasons,    Defendants'    Motion for   Summary

Judgment   shall   be   granted;   and    Plaintiffs'    Cross-Motion    for

Summary Judgment shall be denied. An Order shall accompany this

Memorandum Opinion.




March 28, 2017                            Gladys Kes
                                          United States District Judge


Copies to: attorneys on record via ECF




                                    17
