Act Now to Stop War & End Racism Coalition v. District of Columbia ( 2009 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 10, 2009 Decided December 15, 2009
No. 08-7098
ACT NOW TO STOP WAR AND END RACISM COALITION AND
MUSLIM AMERICAN SOCIETY FREEDOM FOUNDATION,
APPELLANTS
v.
DISTRICT OF COLUMBIA,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cv-01495)
Carl Messineo argued the cause for appellants. With him
on the briefs was Mara Verheyden-Hilliard.
David A. Hyden, Assistant Attorney General, Office of
the Attorney General for the District of Columbia, argued the
cause for appellee. With him on the brief were Peter J.
Nickles, Attorney General, Todd S. Kim, Solicitor General,
and Donna M. Murasky, Deputy Solicitor General.
Before: GARLAND, Circuit Judge, and WILLIAMS and
RANDOLPH, Senior Circuit Judges.
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Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: Plaintiff-appellants Act
Now to Stop War and End Racism Coalition (“ANSWER”)
and Muslim American Society Freedom Foundation brought
this action claiming that certain regulations of the District of
Columbia Department of Transportation, governing the
placement of posters in the District, violated the First
Amendment and the Due Process Clause (presumably that of
the Fifth Amendment, though plaintiffs do not say). The
district court dismissed the suit, finding that the Foundation
lacked standing to challenge the regulations because its
alleged injury amounted at most to “subjective ‘chill.’” Act
Now to Stop War & End Racism Coal. v. District of
Columbia, 570 F. Supp. 2d 72, 77-78 (D.D.C. 2008) (quoting
Laird v. Tatum, 408 U.S. 1, 13-14 (1972)). As to ANSWER,
the district court abstained under Younger v. Harris, 401 U.S.
37 (1971), because the District has brought charges against
ANSWER—now pending before the District of Columbia
Office of Administrative Hearings—for violating aspects of
the postering regulations it seeks to challenge in this suit. 570
F.Supp. 2d at 74-75. We hold that the Foundation’s
allegations are adequate to support standing. The Younger
issue is more complex, but in the end we conclude that a
remand of ANSWER’s claim is also in order.
The challenged regulations impose various limitations on
individuals or groups that wish to affix noncommercial
posters on public lampposts in the District. They provide that
no more than three versions of each poster may be affixed on
one side of a street block, D.C. Mun. Regs. tit. 24, § 108.10;
that copies of posters and the name, address, and telephone
number of the originator must be filed with the District shortly
after posting, id. § 108.11; and that posters cannot be affixed
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by means that prevent their complete removal or that damage
the fixture, id. § 108.9, which we’ll call the “adhesive rule.”
When ANSWER and the Foundation filed this suit, the
regulations also required that most signs be removed within
60 days of posting, but imposed no time limit on “[s]igns
designed to aid in neighborhood protection from crime”; the
regulations also allowed political candidates seeking public
office in the District to post signs at any time before the
election as long as they removed signs within 30 days
following the general election. Id. §§ 108.5, 108.6. Signs had
to bear the date of posting, id. § 108.7, presumably to aid
enforcement of these time limits. Shortly before this appeal
was argued, the District’s Department of Transportation
issued an emergency rulemaking repealing the exemptions for
political candidates and signs relating to “neighborhood
protection from crime.” Under rules substituted on an interim
basis, all signs on public lampposts must be removed after 60
days, unless they are “related to a specific event,” in which
case they may be affixed any time prior to the event but must
be removed within 30 days following the event. Notice of
Emergency and Proposed Rulemaking, 56 D.C. Reg. 8759,
8759 (Nov. 6, 2009). The notice of rulemaking said that the
purpose of the amendments was to remove the time limit
distinction between political and non-political advertising
“that has raised First Amendment concerns.” Id.Plaintiffs’ principal claim before the district court was
that the time limits in the original postering regulations
impermissibly discriminated on the basis of content, by
imposing shorter time limits for speech not related to political
campaigns or crime prevention. They also claimed that the
size of the penalties (fines of up to $2000 per violation, see
D.C. Mun. Regs. tit. 24, § 1380.1; id. § 1312.1(a)), and what
they characterize as the regulations’ “strict liability” nature,
chilled constitutionally protected speech; that liability for
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failure to print the date on which the sign was posted served
no legitimate governmental interest; and that the regulations
were vague and overbroad, and invited arbitrary application.
They sought a declaration that the regulations were
unconstitutional, an injunction against their enforcement, and
attorneys’ fees.
The district court found that the Foundation lacked
standing to challenge the regulations because it did “not allege
that it has planned to undertake any action which may violate
the District’s postering regulations.” 570 F. Supp. 2d at 78.
But the Foundation had submitted an affidavit from its
executive director stating that the Foundation “seeks to
engage in postering . . . to the same extent as is afforded
others, including those favored within the existing District of
Columbia municipal regulation system,” and moreover that it
“must currently refrain from posting materials on public
lampposts . . . in the same manner and with the same freedom
as is allowed those whose speech pertains to neighborhood
crime or whose speech supports a candidacy for elected
office.” We read this affidavit as plainly indicating an intent
to engage in conduct violating the 60-day limit—but for the
existence of the regulations.
While “subjective ‘chill’ alone will not suffice to confer
standing on a litigant bringing a pre-enforcement facial
challenge to a statute allegedly infringing on the freedom of
speech,” Am. Library Ass’n v. Barr, 956 F.2d 1178, 1194
(D.C. Cir. 1992), imminent threats commonly suffice. We
implied in Seegars v. Gonzales, 396 F.3d 1248 (D.C. Cir.
2005), that standing to challenge laws burdening expressive
rights requires only “a credible statement by the plaintiff of
intent to commit violative acts and a conventional background
expectation that the government will enforce the law.” Id. at
1253. Allowance of standing in such a case appeared
essential to reconcile our decision in Navegar, Inc. v. United
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States, 103 F.3d 994 (D.C. Cir. 1997), on the one hand, with
Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289(1979), and many like standing cases, on the other. Seegars,
396 F.3d at 1251-54; see also Ord v. District of Columbia,
No. 08-7094, 2009 WL 4408200, at *13 (D.C. Cir. Dec. 4,
2009) (noting that Navegar imposes a more demanding
standard than United Farm Workers). As in Navegar, the
Seegars plaintiffs posed a “preenforcement challenge[] to a
criminal statute not burdening expressive rights and not in the
form of appeal from an agency decision,” 396 F.3d at 1253(emphasis added), so Navegar’s more demanding rule applied,
id. at 1253-54.
But here we are confronted with a challenge to a state
regulation that is claimed to burden expressive freedom, a
credible statement of intent to engage in violative conduct,
and somewhat more than the “conventional background
expectation that the government will enforce the law.” 396
F.3d at 1253. The District has in fact brought an enforcement
action against ANSWER for violations of the postering rules.
And the affidavit by the Foundation’s executive director
plainly qualifies, at the stage of a motion to dismiss, as “a
credible statement . . . of intent to commit violative acts.”
Seegars, 396 F.3d at 1253; cf. Lujan v. Defenders of Wildlife,
504 U.S. 555, 561 (1992) (“[E]ach element [of standing] must
be supported in the same way as any other matter on which
the plaintiff bears the burden of proof, i.e., with the manner
and degree of evidence required at the successive stages of the
litigation.”). We therefore must remand the Foundation’s
claims for further consideration.
With respect to ANSWER, the district court reasoned that
Younger abstention was appropriate because of ANSWER’s
involvement in administrative hearings before the District, in
which it can raise its federal constitutional claims as defenses.
570 F. Supp. 2d at 75. Younger abstention is appropriate only
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when several requirements are met: “[F]irst, a federal court
may dismiss a federal claim only when there are ongoing state
proceedings that are judicial in nature; second, the state
proceedings must implicate important state interests; third, the
proceedings must afford an adequate opportunity in which to
raise the federal claims.” Worldwide Moving & Storage, Inc.
v. District of Columbia, 445 F.3d 422, 425 (D.C. Cir. 2006)
(quoting Bridges v. Kelly, 84 F.3d 470, 476 (D.C. Cir. 1996)
(internal quotation marks omitted)). Moreover, the state
proceeding must be “the type of proceeding to which Younger
applies,” New Orleans Pub. Serv., Inc. v. Council of City of
New Orleans, 491 U.S. 350, 367 (1989), which normally
means “state criminal prosecutions” or “civil enforcement
proceedings,” id. at 368.
We agree that ANSWER has failed to show that it does
not have a “full and fair opportunity to litigate [its]
constitutional claim” against the adhesive rule in the
administrative hearings, so the district court appropriately
abstained as to that challenge. Cf. JMM Corp. v. District of
Columbia, 378 F.3d 1117, 1121 n.10 (D.C. Cir. 2004).
Nonetheless, Younger abstention would be improper to the
extent that ANSWER’s suit challenges the constitutionality of
other postering regulations that ANSWER has not been
accused of violating, so long as the invalidity of the
challenged regulation would not, presumably through
inseverability, imply the invalidity of any regulation that
ANSWER has been accused of violating. Conversely,
abstention is required as to any requested federal court relief
that would foreclose the District’s consideration of the same
issues in its civil enforcement proceedings. Cf. Trainor v.
Hernandez, 431 U.S. 434, 445 (1977) (relying, in application
of Younger abstention, on concern that nonabstention would
“foreclose the opportunity of the state court to construe the
challenged statute in the face of the actual federal
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constitutional challenges that would also be pending for
decision before it”).
Thus, 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. In such
a suit, not only would the court and the District’s Office of
Administrative Hearings be addressing entirely distinct
regulations, but there would be no way in which the court’s
decision could preempt the activity of the District’s
institutions.
Two aspects of this issue are obscure on the record before
us. First, so far as severability is concerned, we do not think it
appropriate for a court, except perhaps in the most obvious
case, to rule on the remedial issue of severability in advance
of deciding the merits. But we see no reason why a party
could not solve the problem by making a binding disclaimer
of any inseverability argument. At oral argument,
ANSWER’s counsel appeared under intensive questioning to
make such a disclaimer, though only after an array of
statements seeming to assert inseverability. While
ANSWER’s complaint has rather a blunderbuss quality, it
appears principally concerned with the non-application of the
60-day time limits to certain kinds of speech, under the
regulations as they existed when ANSWER filed suit, whereas
the proceedings in the Office of Administrative Hearings
appeared to revolve solely around the adhesive rule. So long
as ANSWER’s constitutional attack in federal court relates
entirely to a regulation (or regulations) not at all involved in
the Office of Administrative Hearings, and is entirely
severable, there is no occasion for abstention.
But—the second obscurity—it is unclear what regulations
are at stake both in the federal lawsuit and in the District’s
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proceedings. See Compl. ¶¶ 31-32 (alleging that “[t]he
District’s strict liability scheme . . . creates an unconstitutional
and severe chilling effect on free speech”); id. ¶ 39 (alleging
that the “registration requirements . . . violate[] the protected
right to engage in anonymous speech”); id. ¶ 40 (alleging that
the requirement that posters bear the date on which they were
posted “serves no legitimate interest apart from the
unconstitutional duration limitations”); id. ¶ 42 (“The
regulations are unconstitutionally vague.”); id. ¶ 44 (“The
regulations burden substantially more speech than necessary
to advance any legitimate government interest.”). As to the
District’s proceedings, its counsel represented before us that it
had charged ANSWER with violations of several provisions
besides the adhesive rule, including the regulations requiring
that the date of posting be written on the poster and that
posters must be filed with the District, and limiting to three
the number of posters in a single street block. But District
counsel said that these citations were “outside the record,” and
counsel for ANSWER could not clearly confirm or deny the
existence of charges other than those under the 60-day rule.
Because ANSWER in the district court made no
suggestion of foreswearing inseverability, we would normally
have no basis for reversing the district court’s decision. But
as it appears to have done so in oral argument, and as the case
must be remanded in any event on the Foundation’s claim, we
think it appropriate to reverse and remand the judgment on
ANSWER’s claim so that the parties may supplement the
record to lay an accurate basis for resolution of the Younger
abstention issue.
The judgment of the district court is therefore
Reversed and remanded.