Act Now to Stop War and End Racism Coalition v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
ACT NOW TO STOP WAR AND END )
RACISM COALITION, et al., )
)
Plaintiffs, )
)
v. ) 07-cv-1495 (RCL)
)
THE DISTRICT OF COLUMBIA )
)
Defendant. )
)
MEMORANDUM OPINION
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.
I. BACKGROUND
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:
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
fixture.
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”).
2
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
publicizing.
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.
6
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.
7
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
9
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
event.
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.
II. LEGAL STANDARD
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 for
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.
15
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
16
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.’”
17
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).
III. DISCUSSION
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.
18
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.
19
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
20
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.
21
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.
22
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 distinguished between content and viewpoint-discrimination. The
Court rejected a need for “evidence that the city has acted with animus toward the ideas
contained in respondents’ publications,” id. at 429, and the argument that “‘discriminatory…
treatment is suspect under the First Amendment only when the legislature intends to suppress
23
certain ideas’” id. (quoting Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims
Board, 502 U.S. 105, 117 (1991) (also rejecting argument)).
b. Content-neutral justifications for laws with incidental effects on content—the
District’s failure to explain with admissible evidence
The District has failed to meet its burden and introduce any admissible evidence 5
explaining how District’s regulations achieve content-neutral interests. It does not introduce any
relevant legislative history, municipal regulation, or affidavit. The District’s attorneys simply
assert that the District’s regulations promote esthetics and reduce litter. See Def.’s Mot. Summ.
J. 11–12. Such unsworn ipse dixit is evidence of nothing. See, e.g., Schoch v. First Fidelity
Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990) (“unsupported allegations in [a non-movant’s]
memorandum and pleadings are insufficient to repel summary judgment”); Int’l Distrb. Corp. v.
Am Dist. Tel. Co., 569 F.2d 136, 139 (D.C. Cir. 1977) (“[A] party may not avoid summary
judgment by mere allegations unsupported by affidavit.”); see also Akers v. Liberty Mut. Group,
744 F. Supp. 2d 92, 96 (D.D.C. 2010) (“Because the objective of summary judgment is to
prevent unnecessary trials, and because ‘[v]erdicts cannot rest on inadmissible evidence,’ it
follows that the evidence considered at summary judgment must be capable ‘of being converted
into admissible evidence.’”) (quoting Greer v. Paulson, 505 F.3d 1306, 1315 (D.C. Cir. 2007)).
The District points to other cases where courts recognized that sign regulations were
motivated by significant interests in reducing visual clutter. Def.’s Mot. Summ. J. 13–16 (citing
5
The party opposing summary judgment may rely on evidence “capable of being converted into
admissible evidence at trial” to “survive summary judgment.” Greer v. Paulson, 505 F.3d 1306, 1315
(D.C. Cir. 2007). Generally, this allows an opposing party to submit evidence such as sworn affidavits
(which themselves would not be admissible at trial if the witness were available to testify) to establish
that there is a genuine issue of disputed fact, and the case should go to trial. See Gleklen v. Dem.
Congressional Campaign Comm., Inc., 199 F.3d 1365, 1369 (D.C. Cir. 2000). But a party opposing
summary judgment “may not rest upon mere allegations or denials.” Anderson, 477 U.S. at 256. The
unsupported statements of counsel are not capable of being transformed into admissible evidence, and
therefore cannot be considered at this stage.
24
Covenant Media of S.C. v. City of N. Charleston, 493 F.3d 421 (4th Cir. 2007); Wag More Dogs,
Ltd. Liability Corp. v. Cozart, 680 F.3d 359 (4th Cir. 2012); Reed v. Town of Gilbert, Ariz., 587
F.3d 966 (9th Cir. 2009)). These cases show that litter control and esthetics can act as significant
content-neutral interests. Covenant Media, 493 F.3d at 434 (“North Charleston’s interests in
regulating signs were completely unrelated to the messages displayed: They were to “eliminate
confusing, distracting and unsafe signs, assure the efficient transfer of information; and enhance
the visual environment[.]”); Wag More Dogs, 680 F.3d at 368 (“Arlington enacted the ordinance
to, among other aims, promote traffic safety and the County’s aesthetics, interests unrelated to
messages displayed.”); Reed, 587 F.3d at 981 (city has “significant interests in aesthetics and
traffic safety”). These cases also show that sign regulations are not content-based simply
because they distinguish between different types of signs. Covenant Media, 493 F.3d at 434(although “the Sign Regulation required looking generally at what type of message a sign carries
to determine where it can be located, this ‘kind of cursory examination’ did not make the
regulation content-based.”) (quoting Hill, 530 U.S. at 721); Wag More Dogs, 680 F.3d at 365(rejecting “wooden logic” that all laws imposing different requirements are content-based;
embracing “a practical analysis of content neutrality, requiring that a regulation do more than
merely differentiate based on content to qualify as content based”); Reed, 587 F.3d at 978(“[T]his regulation is a good example that the ‘officer must read it’ test is not always
determinative of whether a regulation is content based or content neutral.”). They show how
municipalities may treat different kinds of signs differently without violating the Constitution.
The holdings in Covenant Media, Wag More Dogs, and Reed would support arguments
the District could make to defend its sign regulations. The cases cannot, however, replace the
need for the District to make its own arguments. As Cincinnati holds, the District has “the
25
burden to establish a reasonable fit between its legitimate interests…[and] the means chosen to
serve those interests.” 507 U.S. at 416; see also Bd. of Trustees of State Univ. of New York v.
Fox, 492 U.S. 469, 480 (1989) (“[T]he State bears the burden of justifying its restrictions…and
must affirmatively establish the reasonable fit we require.”). The Court must determine whether
the District’s event/non-event distinction is narrowly tailored to achieve its interests. This is a
case-specific inquiry. Covenant Media, Wag More Dogs, and Reed may show that, in other
instances, cities have justified differential treatment of signs to further esthetics. But the laws in
those cases deal with different kinds of sign regulations; none are sufficiently similar to prove
that the kinds of differential burdens the District places on event and non-event signs would be
similarly justified. Covenant Media, 493 F.3d at 424–25 (regulation exempted signs “identifying
or advertising a business…located on the premises where the sign is installed” from size and
zoning requirements applicable to other “billboards”); Wag More Dogs, 680 F.3d at 363–64
(petitioner objects to differential permit requirements placed on business signs); Reed, 587 F.3d
at 971–78, 981–83 (considering requirements placed on “Temporary Directional Signs Relating
to a Qualifying Event”—signs placed outside of event site for less than a day—and distinctions
between commercial and non-commercial speech).
Reed presents the most analogous case, but there are still important differences. The law
in Reed regulates the placement of signs on private property, not in a designated public forum.
587 F.3d at 976–77 (law specifically prohibits placing signs “[o]n fences, boulders, planters,
other signs, vehicles, utility facilities, or any structure”). The signs in Reed direct someone to the
place of a particular event, and are not used to broadly advertise future events. Id. at 979–80.
The sign regulation in Reed is very limited; it only allows signs to be displayed “up to 12 hours
before, during, and 1 hour after the Qualifying Event ends.” Id. at 977. This kind of ordinance
26
does not address the kinds of signs at issue in the present case—campaign signs posted months
before the election; signs advertising political marches and rallies weeks in advance. The present
case is not like Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377 (2000), where the Supreme
Court found that Missouri’s law was so similar to the campaign finance regulations approved in
Buckley v. Valeo, 424 U.S. 1 (1976), and its progeny that Missouri need not introduce extensive
empirical evidence in support of its law. Nixon, 528 U.S. at 391 (“The quantum of empirical
evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or
down with the novelty and plausibility of the justification raised.”). There is no evidence that the
District relied on the experiences of the municipalities referenced in Covenant Media, Wag More
Dogs, and Reed when passing its regulations.
The District’s reliance on the Supreme Court’s decisions in Turner, Nixon and Renton is
misplaced. The District argues:
[T]he government need not produce affirmative evidence that the challenged
regulations are having the intended effect. See Turner, 512 U.S. at 666 (“[W]hen
trenching on first amendment interests, even incidentally, the government must be
able to adduce either empirical support or at least sound reasoning on behalf of
its measures”) (emphasis added) (quoting Century Communications Corp. v.
FCC, 835 F.2d 292, 391(D.C. Cir. 1987)). The reasoning contained herein is
more than sufficient to demonstrate the constitutionality of the District’s postering
regulations….
In Nixon, the Supreme Court upheld a Missouri campaign-finance law against a
First Amendment challenge, despite the fact that the state does not preserve
legislative history. Nixon, 528 U.S. at 393. The “evidence” introduced by the
government there included a single affidavit from a state legislator and numerous
newspaper articles. Id. (citing, inter alia, City of Renton v. Playtime Theatres,
457 U.S. 41, 51–52 (1986) (“The First Amendment does not require a city, before
enacting…an ordinance, to conduct new studies or produce evidence independent
of that already generated by other cities, so long as whatever evidence the city
rests upon is reasonably believed to be relevant to the problem that the city
addresses”)).
Def.’s Mot. Summ. J. 11, n.7. The Court agrees that the District need not introduce extensive
evidence that its regulations promote esthetics or reduce litter. See Turner, 512 U.S. at 666. But
27
the Court cannot accept “mere conjecture as adequate to carry a First Amendment burden.”
Nixon, 528 U.S. at 392. In all three cases cited, the government provided some evidence—
outside of the unsworn statements of counsel—to show how the law would further content-
neutral interests. In Turner, “Congress enacted the 1992 Cable Act after conducting three years
of hearings on the structure and operation of the cable television industry. The conclusions
Congress drew from its factfinding process are recited in the text of the Act itself.” 512 U.S. at
632 (citations omitted). In Renton, the “resolution contained a clause explaining that” businesses
which have as their “primary purpose the selling, renting or showing of sexually explicit
materials…would have a severe impact upon surrounding businesses and residences.” 475 U.S.
at 44 (internal quotation marks omitted). Renton’s City Council, prior to enacting the law,
“referred the matter to the city’s Planning and Development Committee” who “held public
hearings, reviewed the experiences…of other cities, and received a report from the City’s
Attorney’s Office advising as to developments in other cities.” Id. And while the District points
out that an affidavit and some newspaper articles were sufficient to meet the government’s
burden in Nixon, 528 U.S. at 393, at least Missouri provided something. 6
The District emphasizes Turner’s statement that “‘when trenching on first amendment
interests…the government must be able to adduce either empirical support or at least sound
reasoning on behalf of its measures.’” 512 U.S. at 666 (quoting Century, 835 F.2d at 304)
(emphasis added). The District may argue that its filings—and the arguments contained
6
The District points to two news articles from the Washington Post discussing the visual blight
caused by campaign signs. Def.’s Mot. Summ. J. 19. However, neither of these articles explains why the
Council enacted these regulations. In fact both of them relate to efforts in Virginia, not Washington,
D.C., to curb election signs. See Holly Hobbs, Signs of election time, WASH. POST, Oct. 20, 2011, at T17
(describing political signs in Fairfax County, Virginia); Shya Somashekhar, Looking for Sign-Free
Roadsides: County Considers Pact with VDOT, WASH. POST, Sept. 18, 2008, at T1 (describing efforts in
Loudoun County, Virginia to regulate political signs). Unlike in Renton, there is no evidence that the
District’s Department of Transportation or City Council considered the efforts in other jurisdictions when
amending its sign regulations.
28
therein—constitute the ‘sound reasoning’ needed to defend the sign regulations. Def.’s Mot.
Summ. J. 10–12. However, even if ‘sound reasoning’ could suffice, that reasoning cannot rest
solely on lawyers’ arguments. Directly before quoting Century, the Turner Court stated: “Th[e]
obligation [of the Court] to exercise independent judgment when First Amendment rights are
implicated…assure[s] that, in formulating its judgments, Congress has drawn reasonable
inferences based on substantial evidence.” 512 U.S. at 666. Therefore, while the Court may
defer to the “sound reasoning” of the government—and not require extensive empirical
evidence—it must have some way to independently test the government’s reasoning. Relying on
the unsupported, unsworn ipse dixit of counsel is the opposite of “exercis[ing] independent
judgment when First Amendment rights are implicated.” Id. It would be ironic if Turner held
that the government need not introduce any evidence to defend its law under the First
Amendment, and may simply rest on unsworn conclusory statements. The Turner Court did not
find the government’s ‘sound reasoning’—supported by properly submitted statistics, studies,
and legislative history—sufficient to defend the law, and remanded the case to develop an even
“more thorough factual record.” Id. at 668.
The District also cites, in its Reply, City of L.A. v. Alameda Books, Inc., 535 U.S. 425,
439 (2002), which states: “In effect [the dissenting Justices ask[] the city to demonstrate, not
merely by appeal to common sense, but also with empirical data, that its ordinance will
successfully lower crime. Our cases have never required that municipalities make such a
showing, certainly not without actual and convincing evidence from plaintiffs to the contrary.”
(presented as quoted in Def.’s Reply 8). As with Turner, Nixon and Renton, the District presents
language out of context to try to show that the government may rely solely on lawyers’
arguments to demonstrate the proper “fit” between the law and the government’s interests.
29
Alameda Books concerned an ordinance, similar to the one in Renton, regulating the siting of
adult entertainment establishments. Id. at 433–34. Los Angeles submitted relevant legislative
history and a 1977 report from the Department of City Planning to explain the interests behind
the law, and how the law is narrowly tailored to accomplish those interests. Id. at 430. The key
dispute between Justice O’Connor and the dissenting Justices was not whether the government
had any evidentiary burden to explain its regulation of speech; the dispute concerned how much
evidence the government had to provide to meet this burden. Id. at 438–42. The sides disagreed
over whether Los Angeles could rely on the 1977 Study to demonstrate the reasonable “fit”
required by the First Amendment. Id. Although the majority was willing to grant the city
considerable deference to address the secondary effects of pornographic speech, “[t]his is not to
say that a municipality can get away with shoddy data or reasoning. The municipality’s evidence
must fairly support the municipality’s rationale for its ordinance.” Id. at 438 (emphasis added).
Los Angeles had an “evidentiary requirement” to justify its law, despite the fact that it did not
facially discriminate against particular viewpoints. Id. at 439. Justice O’Connor recognized that
the “City Council is in a better position than the Judiciary to gather and evaluate data on local
problems,” id. at 440, but weighed this against the Court’s “‘obligation to exercise independent
judgment when First Amendment rights are implicated.’” Id. (quoting Turner, 512 U.S. at 666).
Alameda Books suggests that once a city introduces evidence on how its law is narrowly tailored
to mitigate the secondary effects of speech, the conclusions the city draws from that evidence
deserves judicial deference. It does not hold, as the District suggests, that a government has no
evidentiary burden whatsoever when treading on First Amendment rights.
At one point, the District claims there is “ample evidence in the legislative and public
records to uphold the District’s scheme.” Def.’s Mot. Summ. J. 11. But the District never
30
directed the Court to this evidence. A conclusory claim that supporting evidence may exist is not
enough to defeat plaintiff’s summary judgment motion. See, e.g., Celotex Corp v. Catrett, 477
U.S. 317, 325 (1986) (disapproving “a line of cases allowing a party opposing summary
judgment to resist a properly made motion by reference only to its pleadings”); Engl v. Aetna
Life Ins. Co., 139 F.2d 469, 473 (2d Cir. 1943) (allowing an opposing party to “reserve one’s
evidence when faced with a motion for summary judgment” would render “useless the very
valuable remedy of summary judgment”). At summary judgment the Court cannot rely on “mere
allegations or denials.” Anderson, 477 U.S. at 256; see also 10A WRIGHT, MILLER & KANE,
FEDERAL PRACTICE & PROCEDURE § 2727 (3d ed. 2012) (“A judge may not resolve a summary-
judgment motion by ‘assumptions’ about matters that have not been properly presented in the
manner prescribed by the rule or that are not the subject of the judicial notice doctrine.”).
4. Would the regulations survive the applicable standard?
The District does not seem to treat this case as one arising under the First Amendment. It
does not act as if it needs to do anything to justify its law, except to suggest that the plaintiff has
not met its burden. Cf. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 885 (1990) (“Rule 56 does
not require the moving party to negate the elements of the nonmoving party’s case.”). The law
undeniably touches First Amendment rights, and therefore the Court cannot analyze it under the
rational basis standard. The Court must subject the law to at least intermediate scrutiny, which
applies to content-neutral regulations. Because of the District’s total failure to explain the “fit”
between the event/non-event distinction and any content-neutral justification, the law fails
intermediate scrutiny and is unconstitutional.
Under intermediate scrutiny, the Court allows content-neutral time, place, and manner
regulations of speech that “are narrowly tailored to serve a significant governmental interest” and
31
“leave open ample alternative channels for communication of the information.” Ward, 491 U.S
at 791. In analyzing laws for narrow tailoring:
[O]ur decisions require [ ] a fit between the legislature’s ends and the means
chosen to accomplish those ends—a fit that is not necessarily perfect, but
reasonable; that represents not necessarily the single best disposition but one
whose scope is in proportion to the interest served; that employs not necessarily
the least restrictive means but…a means narrowly tailored to achieve the desired
objective. Within those bounds we leave it to governmental decisionmakers to
judge what manner of regulation may best be employed.
S.U.N.Y. v. Fox, 492 U.S. at 480 (internal quotation marks and citations omitted) (applied to
public forum context in Cincinnati, 507 U.S. at 417). Although the District has discretion in
tailoring a solution to the litter problems posed by event signs, it still has the burden to “establish
a ‘reasonable fit’ between its legitimate interests in safety and esthetics” and the event/non-event
distinction drawn by the law. Cincinnati, 507 U.S. at 417; see also S.U.N.Y. v. Fox, 492 U.S. at
480 (“[T]he State bears the burden of justifying its restrictions…and must affirmatively establish
the reasonable fit we require.”) (emphasis added).
In Alameda Books, the Supreme Court explained how a court should approach whether a
law purporting to regulate the secondary effects of speech is content-neutral, and whether such a
law is narrowly tailored:
In Renton, the Court distinguished the inquiry into whether a municipal ordinance
is content neutral from the inquiry into whether it is “designed to serve a
substantial government interest and do[es] not unreasonably limit alternative
avenues of communication.” 475 U.S., at 47–54. The former requires courts to
verify that the “predominate concerns” motivating the ordinance “were with the
secondary effects of adult [speech], and not with the content of adult [speech].”
Id., at 47….The latter inquiry goes one step further and asks whether the
municipality can demonstrate a connection between the speech regulated by the
ordinance and the secondary effects that motivated the adoption of the ordinance.
Only at this stage did Renton contemplate that courts would examine evidence
concerning regulated speech and secondary effects. Id., at 50-52.
32
535 U.S. at 440-41. This case makes clear that content-neutral laws are subject to intermediate
scrutiny, id. at 440 (“municipal ordinances receive only intermediate scrutiny if they are content
neutral”), and under intermediate scrutiny the government has an evidentiary burden to
demonstrate the connection between the regulation of speech and a substantial, independent
government interest, id. at 439 (characterizing Renton’s burden on government to justify its
regulation of speech as an “evidentiary requirement”).
After a half-year discovery period, and sufficient time to prepare complete summary
judgment motions, there is still no “explanation for how th[e] distinction between event and non-
event signs advances the District’s objective.” ANSWER III, 798 F. Supp. 2d at 148. The
District has not properly explained how the regulations’ distinction “advance[s] the content-
neutral purpose the city asserts.” Id. at 147. Even if the Court is willing to defer to the District’s
“greater experience with and understanding of the secondary effects that follow certain protected
speech,” Alameda Books, 535 U.S. at 442, the District has given the Court nothing to which it
can defer. Taking the unsworn, conclusory statements of counsel at face value would completely
obliterate the Court’s “obligation to exercise independent judgment when First Amendment
rights are implicated.” Turner, 512 U.S. at 666.
Since this law touches on protected speech in a public forum, the Court cannot provide its
own justification for the law based on what the District might have thought, or put the burden on
the plaintiff to prove that the District could not have any non-discriminatory motives. Cf. Am.
Bus Ass'n v. Rogoff, 649 F.3d 734, 742 (D.C. Cir. 2011) (law did not implicate First Amendment
and was “subject only to rational basis-review,” under which “a legislature…need not actually
articulate at any time the purpose or rationale supporting its classification.”). The First
Amendment’s public forum doctrine does not permit such deference. Perry, 460 U.S. at 46.
33
5. The District’s 2011 amendments do not solve all the constitutional problems
The District amended the sign regulations in 2011 after this Court’s opinion in ANSWER
III. Addressing the previous iteration of the law, ANSWER III suggested that “limit[ing] posters
‘not related to a specific event’ to a hanging time of sixty days[ ] is unproblematic.” 798 F. Supp.
2d at 148. It also suggested that “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.” Id. The Court was most worried by the fact that the regulations allowed
posters relating an event to hang for an indefinite time before the event. Id. This provision
seriously undercut any possible argument that the event/non-event distinction could advance
content-neutral interests in reducing litter, and since “the District has announced that elections
qualify as ‘events’ under the new regulations this distinction could be seen as a way of
resurrecting the old rules that prioritized election-related speech[.]” Id.The District’s latest amendments address some of these issues. Rather than allowing an
event poster to hang indefinitely before the event, all posters are subject to a one hundred eighty
day durational limit. Pl’s SMF ¶ 8. The only difference is that event posters must be removed
within thirty days after the occurrence of the event, but these thirty days do not extend the 180-
day limit. Id. This change may alleviate worries that the District is pushing the same
unconstitutional preference for campaign signs in a less obviously discriminatory package. The
District’s amended law combines two features the Court found less offensive—the time limit for
non-event posters, and the 30-day post-event limit for event posters—and removes the feature
the Court found most odious—allowing event posters to hang indefinitely pre-event. See
ANSWER III, 798 F. Supp. 2d at 148.
34
The District took commendable measures to address pressing constitutional concerns.
Nevertheless, the regulations still distinguish between event and non-event signs without any
admissible justification for this difference. They still regulate protected speech in a designated
public forum. When the Court suggested that “[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,” id. at 148, the Court was considering the District’s Motion to Dismiss. In such a
posture, the Court generally does not look at facts outside the pleadings. See Nat’l Postal
Professional Nurses v. U.S. Postal Service, 461 F. Supp. 2d 24, 28 (D.D.C. 2006) (“When
addressing a motion to dismiss under Rule 12(b)(6), the Court generally may not look outside the
facts contained within the four corners of the complaint, unless it treats the motion to dismiss as
a motion for summary judgment.”) (internal citations and quotation marks omitted). The
relevant inquiry there is whether the “complaint states a plausible claim for relief,” Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009), not whether the moving party has shown “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). At summary judgment, however, the District has the burden of
introducing evidence explaining how the regulations are narrowly tailored, and the court must
look beyond the pleadings and briefs.
ANSWER III suggested that the most straightforward way to avoid constitutional
problems would be to subject all posters to the same durational limits. Id. at 155 (“There is, of
course, another alternative available to the District’s officials. They can revise the regulations to
include a single, across-the-board durational restriction that applies equally to all viewpoints and
subject matters.”). Granted, this is not the only option available to the District—with a proper
content-neutral justification, it might constitutionally distinguish between event and non-event
35
signs. Yet, when courts have approved of content-neutral sign regulations, they still subjected
those laws to intermediate scrutiny. If the District wants to treat different types of signs
differently, it must provide evidence justifying this distinction. See id. at 148 (“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.”) The 2011 amendments, while a step in the right
direction, did not obviate this requirement.
6. MASF is entitled to summary judgment
MASF has met is summary judgment burden. It has put forward undisputed facts
showing that the District’s regulations regulate protected speech in a designated public forum. It
has shown that the law facially makes distinctions between certain types of speech. These
questions are primarily legal—essentially, the Court need only apply the controlling law to the
plain text of the regulations. Pl.’s SMF ¶ 8; Def.’s SMF ¶¶ 5–6; Def.’s Opp’n to Pl.’s SMF 3.
After the plaintiff makes this showing, the burden then shifts to the District to provide evidence
justifying its law and demonstrating that it is narrowly-tailored to accomplish a significant
content-neutral interest. The District’s complete failure to introduce evidence for which it would
have the burden at trial means that the plaintiff is entitled to summary judgment now, and the
Court should not further delay this matter.
Cincinnati held that the government has the burden of explaining the purposes of its law
and how it achieves those purposes. 507 U.S. at 417. With the burden now on the government,
the District may not simply rest on its pleadings to oppose MASF’s motion for summary
36
judgment. One of the most-cited Supreme Court cases in history, 7 Celotex Corp v. Catrett, 477
U.S. 317 (1986), makes this clear. The Supreme Court held:
[T]he plain language of Rule 56(c) mandates the entry of summary judgment,
after adequate time for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial. In such
a situation, there can be “no genuine issue as to any material fact,” since a
complete failure of proof concerning an essential element of the nonmoving
party's case necessarily renders all other facts immaterial. The moving party is
“entitled to a judgment as a matter of law” because the nonmoving party has
failed to make a sufficient showing on an essential element of her case with
respect to which she has the burden of proof.
477 U.S. at 322–23 (quoting Fed. R. Civ. P. 56(c)). The Supreme Court elaborated:
In cases…where the nonmoving party will bear the burden of proof at trial on a
dispositive issue, a summary judgment motion may properly be made in reliance
solely on the “pleadings, depositions, answers to interrogatories, and admissions
on file.” Such a motion, whether or not accompanied by affidavits, will be “made
and supported as provided in this rule,” and Rule 56(e) therefore requires the
nonmoving party to go beyond the pleadings and by her own affidavits, or by the
“depositions, answers to interrogatories, and admissions on file,” designate
“specific facts showing that there is a genuine issue for trial.”
Id. at 324 (quoting Fed. R. Civ. P. 56). Celotex meant “to disapprove a line of cases allowing a
party opposing summary judgment to resist a properly made motion by reference only to its
pleadings,” id. at 325—which the District tries to do by submitting no evidence whatsoever.
This case is over five years old. This Court, after narrowing the remaining issues, opened
a 120-day discovery period and set a schedule for dispositive motions. Sched. Order, ECF No.
48. The Court and the plaintiff put the District on notice that the purposes and operation of its
regulations would be at issue. ANSWER III, 798 F. Supp. 2d at 155 (“[T]he District will have an
7
An empirical study found, as of June 2005, that Celotex is the second most frequently cited case
of all time by federal courts and tribunals. The first and third most cited cases—Anderson v. Liberty
Lobby, Inc., 477 U.S. 242 (1986); and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 474 U.S. 574(1986)—are related summary judgment opinions issued the same year. Adam M. Steinman, The
Irrepressible Myth of Celotex: Reconsidering Summary Judgment Burdens Twenty Years After the
Trilogy, 63 WASH. & LEE L. REV. 81, 143 (2006). These cases are often called the “Celotex Trilogy.” See
id. at 94. As of November 2012, a WestLaw search returns over 154,000 federal cases citing Celotex.
37
opportunity [during discovery] to clarify…the relation of event/non-event distinction in
§§ 108.5–108.6 to the anti-littering interest it asserts.”); Pl.’s Notice of Dep. 2, May 3, 2012,
ECF No 54-1 (requesting information on “[t]he purpose of the postering regulations; the asserted
interests in promulgating the postering regulations” and “[h]ow, and to what extent, the
event/non-event distinction advances and/or accomplishes the purpose(s) of the postering
regulation.”). 8 The District’s complete failure to justify its law should not further delay this case.
As the Second Circuit stated in a seminal case:
If one may thus reserve one’s evidence when faced with a motion for summary
judgment there would be little opportunity “to pierce the allegations of fact in the
pleadings” or to determine that the issues formally raised were in fact sham or
otherwise unsubstantial. It is hard to see why a litigant could then not generally
avail himself of this means of delaying presentation of his case until the trial. So
easy a method of rendering useless the very valuable remedy of summary
judgment is not suggested in any part of its history or in any one of the applicable
decisions.
Engl, 139 F.2d at 473 (detailed in 10A WRIGHT, MILLER & KANE, FEDERAL PRACTICE &
PROCEDURE § 2727 (3d ed. 2012)). The District may claim that it was mistaken, that it did not
know that it had to produce evidence of anything. This is not a reason to deny MASF summary
judgment. Following the Supreme Court’s lead in Cincinnati, and the summary judgment
precedent of Celotex, the Court holds that while the District “might be able to justify differential
treatment” of signs relating to event and signs bearing a general message, “on this record [the
District of Columbia] has failed to make such a showing.” Cincinnati, 507 U.S. at 428.
Therefore, MASF has shown there is “no genuine dispute as to any material fact and is…entitled
to judgment as a matter of law,” Fed. R. Civ. P. 56(a), and is entitled to summary judgment.
8
The District refused to answer MASF’s questions, instead moving for a protective order. Def.’s
Mot. Protective Order, May 14, 2012, ECF No. 54. The Court’s action today moots this motion, as
addressed in a separate Memorandum and Order issued later this date.
38
B. MASF’s Challenge that the Law is Unconstitutionally Vague
MASF claims the District’s sign regulations are unconstitutionally vague because they
fail “to define what constitutes a sign to be ‘related to a specific event,’” Pl.’s Mot. Summ. J. 1,
and do not provide “sufficient guidance to the state’s agents as to how to enforce the law,” id. at
2. MASF believes the regulations’ definition of “event” provides neither potential speakers nor
enforcement officers any real guidance, and this uncertainty chills a substantial amount of
protected speech. Id. at 33–34. The Court agrees that the sign regulations are unconstitutionally
vague, but rests its decision on narrower grounds than urged by MASF. The most obvious
problem with the regulations’ definition of “event” is its explicit authorization of administrative
discretion. The sign regulations provide the following definition of “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) (emphasis added). By delegating some cases to the
“reasonable determination” of individual inspectors, the District fails to assure potential speakers
that it will enforce the sign regulations in an objective, predictable manner. On this basis, the
Court holds that the sign regulations facially lack the “precision and guidance…necessary so that
those enforcing the law do not act in an arbitrary or discriminatory way,” F.C.C. v. Fox, 132 S.
Ct. at 2317, and MASF is entitled to summary judgment.
1. MASF’s broader argument that the sign regulations are vague
“Vagueness may invalidate a criminal law 9 for either of two independent reasons. First,
it may fail to provide the kind of notice that will enable ordinary people to understand what
9
The District’s sign regulations, 24 D.C. CODE MUN. REGS. § 108 (2012), constitute a penal
statute. See Washington v. D.C. Dep’t of Public Works, 954 A.2d 945, 948 (D.C. 2008) (Litter Control
Act, under which the sign regulations are authorized and issued, is a penal statute).
39
conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory
enforcement.” Morales, 527 U.S. at 56. MASF argues that the District’s regulations are void for
both kinds of vagueness, and seek to “demonstrate that the regulations are discretionary,
subjective, and not outcome-determinative, fail to adequately constrain enforcement officials’
discretion, authorize or encourage arbitrary and/or biased enforcement, and fail to provide notice
to enable ordinary people seeking to engage in constitutionally protected free speech postering as
to what signs will or will not be subject to financial penalties.” Pl.’s Mot. Summ. J. 2–3.
In support of their motion, MASF deposed four of the District’s Solid Waste Inspectors,
the government officials responsible for enforcing the sign regulations and issuing notices of
violation. See Pl.’s SMF ¶¶ 15–18; Def.’s Opp’n to Pl.’s SMF ¶¶ 15–18; see also Exs. 5–6 to
Pl.’s Mot. Summ. J (documents on Solid Waste Inspector duties and background of individual
deponents); Broome Dep., May 15, 2012, Ex. 7 to Pl.’s Mot. Summ. J.; Hood Dep., May 15,
2012, Ex. 8 to Pl.’s Mot. Summ. J.; Lee Dep., May 17, 2012, Ex. 9 to Pl.’s Mot. Summ. J.;
Barber Dep., May 15, 2012, Ex. 10 to Pl.’s Mot. Summ. J. Each deposition followed a similar
pattern. At the beginning of the examination, plaintiffs’ counsel provided the deponent with a
complete and current copy of the District’s sign regulations, and allowed the deponent to refer to
this exhibit at all times. See Pl.’s Mot. Summ. J. 10; Pl.’s SMF ¶ 20; Def.’s Opp’n to Pl.’s SMF
¶ 20. Plaintiff’s counsel then presented each Inspector with a series of hypothetical signs and
asked whether each sign was related to an event, which event, and when the regulations require
the sign to be taken down. See Pl.’s Mot. Summ. J. 10–33; Exs. 7–10 to Pl.’s Mot. Summ. J.
(excerpts of deposition transcripts); Exs. 11–18 (hypothetical signs used in depositions).
MASF’s counsel asked each Inspector about several types of potentially-troublesome signs,
including signs referring to a candidate’s name, signs which may be related to more than one
40
event, signs pertaining to future political events or a series of activities, and signs with hybrid
content. Pl.’s SMF ¶¶ 21–22; Def.’s Opp’n to Pl.’s SMF ¶¶ 21–22. As MASF characterizes the
examinations, the Solid Waste Inspectors provided conflicting statements on whether a sign
relates to an event (and when it needs to come down), admitted that the regulations provide no
guidance for particular signs in front of them, and frequently relied on their individual discretion
to make close calls. Pl.’s Mot. Summ. J. 10–33.
The plaintiff places significant weight on these depositions, dedicating most of its Motion
for Summary Judgment to discussing them. Id. In summary, MASF claims that the Solid Waste
Inspector depositions show:
[N]ot even trained law enforcement officers responsible for issuing penalties
through notices of violation can provide consistent applications of the regulations.
Activists and organizations who wish to affix signs to lampposts have no notice as
to how long a sign may remain posted under the regulations before the pain of
financial sanction may be imposed. They are at the mercy and punishment of
these agents who, lacking any guidance, have no choice but to be arbitrary in their
enforcement; and whose biases and discriminations, whether conscious or
unconscious, are unchecked by clear regulations that properly constrain
discretion.
Id. at 34–35. MASF’s vagueness challenge is broad. There is no easy fix for the problem—
according to MASF, the regulations are “hopelessly vague.” Id. at 2. MASF does not say what
would be an acceptable definition of “event,” although it might be one providing clear guidance
to the Solid Waste Inspectors regarding the hypothetical signs used during the depositions.
2. The narrower grounds for finding the sign regulations vague
MASF’s depositions yield interesting results and leave the reader with the impression that
the sign regulations might be hopelessly vague. Solid Waste Inspectors contradict each other—
and sometimes themselves—when presented with the hypothetical signs. See id. at 10–33.
While MASF used “fake” posters, it based some of its hypotheticals on real world examples. See
41
Pl.’s Reply 8–12 (submitting real examples of campaign signs that simply state name of
candidate and office, without specifying date of related “event”).
The Court must be careful when determining how much weight to give these depositions.
While the Court does not think MASF’s counsel tried to mislead or confound the Solid Waste
Inspectors, the Inspectors might be more easily confused in the unfamiliar context of a formal
deposition. It is hard to determine how much of the Inspectors’ confusion comes from the form
of the depositions, rather than the regulations themselves. It is also hard to determine how much
of the Inspectors’ confusion comes from the regulations’ definition of event, rather than the
regulations’ delegation of administrative discretion. Would the Inspectors have turned to their
individual “reasonable determination” so quickly if the statute did not tell them they could do so?
On several occasions, the Inspectors state that the sign regulations specifically allow them to use
their personal judgment, and use this to justify moving away from any objective, codified
standards. 10 While not direct evidence that the sign regulations are vague, this testimony
suggests problems with the guidance the law provides to enforcement officers.
When considering whether a statute is unconstitutionally vague, the Court should start
with the text of the statute. Cf. Forsyth, 505 U.S. at 133 (“[T]he success of a facial challenge on
the grounds that an ordinance delegates overly broad discretion to the decision maker rests not
on whether the administrator has exercised his discretion in a content-based manner, but whether
10
See, e.g., Broome Dep. 31:18–22 (“Q: You would—as an enforcement officer, sir, you have the
reasonable discretion, though, when you come across this exact same poster, 1-E, to treat it as a sign of
general support for Graham, don’t you?…A: Yes.”); Id. at 38:7–38:19 (“Q. Where in the regulations does
it suggest that you are constrained in any way? A. It doesn’t constrain me in the regulations. It says I can
use my judgment…. Q. Someone else’s exercise of discretion and judgment might lead them to another
reasonable conclusion, that is, it’s related to the general election; correct? A. Correct.”); Hood Dep.
15:19–17:19 (“Q. And as you apply the regulations as an enforcement officer, what’s the removal date
appropriate for this sign? A. It would actually be—it would be my discretion between 108.5 and 108.6….
Q. And the rules leave it up to you because of the nature of the sign, as to which one you might
reasonably apply; correct? A. Yes.”).
42
there is anything in the ordinance preventing him from doing so.”). If the text of the statute—as
interpreted—indicates that the law is vague, there may be no need for extrinsic evidence. In fact,
several courts have disapproved of looking at anything other than the words of the law when
facing a facial challenge. See Def.’s Reply 5–6 (collecting cases from outside D.C. Circuit).
Furthermore, when considering a facial constitutional challenge, the Court should exercise
“judicial restraint” to avoid “‘unnecessary pronouncement on constitutional issues’” and
“‘premature interpretations of statutes.’” Washington State Grange, 522 U.S. at 450 (quoting
Raines, 362 U.S. at 22). When faced with a broad constitutional challenge, a court should try to
resolve the issue on narrower grounds if possible. See, e.g., Plaut v. Spendthrift Farm, Inc., 514
U.S. 211, 217–18 (1995) (Court first considers narrowest of alternate grounds submitted for
claim that congressional statute is unconstitutional); Shelby Co., Ala. v. Holder, 679 F.3d 848,
868–69 (D.C. Cir. 2012) (“courts will avoid deciding constitutional questions…if the litigation
can be resolved on narrower grounds”).
Therefore, the Court turns to the text of the sign regulations, which provide:
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). At first glance, this definition of event may seem
acceptable. After all, the Constitution does not require “perfect clarity and precise guidance…
even of regulations that restrict expressive activity.” Ward, 491 U.S. at 794. The District argues
that ordinary people know what an “event” is and understand what it means for a poster to be
“related to an event.” See Def.’s Opp’n to Pl.’s Mot. Summ. J. 9 (citing Hill, 530 U.S. at 732(“The likelihood that anyone would not understand any of those common words seems quite
remote.”)). The District defines an “event” as “an occurrence, happening, activity or series of
43
activities, specific to an identifiable time and place[.]” 24 D.C. CODE MUN. REGS. § 108.13
(2012). While this definition is not absolutely comprehensive, it does not need to be. See
Thomas, 864 F.2d at 195 (laws “cannot, in reason, define proscribed behavior exhaustively or
with consummate precision”). MASF argues the Inspector depositions show that this definition
is inadequate, Pl.’s Mot. Summ. J 33–35. But the District could counter that “speculation about
possible vagueness in hypothetical situations not before the Court will not support a facial attack
on a statute when it is surely valid ‘in the vast majority of its intended applications.’” Hill, 530
U.S. at 733 (quoting Raines, 362 U.S. at 23).
The Court need not determine whether defining “event” as “an occurrence, happening,
activity or series of activities, specific to an identifiable time and place,” 24 D.C. CODE MUN.
REGS. § 108.13 (2012), could be sufficient. If the District had stopped there, this would be a
closer case. The regulations’ definition of event continues, stating that an “‘event’ refers to an
occurrence, happening,” et cetera, “if referenced on the poster itself or reasonably determined
from all circumstances by the inspector.” Id. Since this explicitly delegates discretion, it
provides the Court a narrower ground for finding the law unconstitutionally vague. 11
The regulations allow a poster to be related to an event, even if the poster itself does not
reference an event, if “reasonably determined from all circumstances by the inspector.” 24 D.C.
CODE MUN. REGS. § 108.13 (2012). This is a clear example of the kind of administrative
discretion that the Due Process Clause and First Amendment abhor. See, e.g., Kolender, 461
U.S. at 358. Using the modifier “reasonable” does not provide enough guidance. Telling an
officer to act “reasonably” does not provide objective criteria cabining his discretion.
11
Again, if the regulations ended with “if referenced on the poster itself,” this would be a closer
case. MASF might argue that the law does not make it clear when an event is “referenced on the poster
itself.” But the District could counter that imagining remote scenarios where the law is not perfectly clear
does not mean the law is facially vague. See Williams, 554 U.S. at 305 (“Close cases can be imagined
under virtually any statute.”).
44
Reasonable people frequently come to different conclusions. While MASF would not want the
enforcement officers to act unreasonably, MASF might still worry about uneven and inconsistent
implementation of the sign regulations; this fear could substantially chill protected speech. See
Reno, 521 U.S. at 871–72. Moreover, the inspector is allowed to draw on “all circumstances”
when making this “reasonabl[e] determin[ation].” 24 D.C. CODE MUN. REGS. § 108.13 (2012).
The inspectors are not limited to considering clear, objective criteria when deciding whether a
sign relates to an event. Since the inspectors may look at “all circumstances,” this suggests they
may consider whatever they find relevant as long as they come to a “reasonable” determination.
If a law presents a constitutional issue, a court should construe the statute—if possible—
to avoid the constitutional problem. Courts assume that legislatures do not intend to pass
unconstitutional laws, and this assumption acts as an interpretive tool. See, e.g., Edward J.
DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575
(1988). This canon does not work when its application would, in effect, rewrite the law. See
Clark v. Martinez, 543 U.S. 371, 385 (2005) (“The canon of constitutional avoidance comes into
play only when, after the application of ordinary textual analysis, the statute is found to be
susceptible of more than one construction; and the canon functions as a means of choosing
between them.”) (emphasis in original). Here, the Court cannot avoid the constitutional problems
without doing considerable violence to the text, and must find the regulations’ delegation of
discretion unconstitutional. The District admits that “there exist no additional policies, rules,
staff instructions, guidance or any documents or communications which further constrain the
term ‘event’ or define what characteristics render a sign to be ‘related to a specific event.’ There
are no limiting or interpretive materials beyond what appears…on the face of the regulation
45
itself.” Pl.’s Reply 5; see also Def.’s Resps. to Pl.’s First Set of Reqs. 10–11, Mar. 13, 2012,
ECF No. 60-3 (Ex. 4 to Pl.’s Mot. Summ. J.) (Requests for Admission Nos. 2 & 3).
If the Court construed the sign regulations to avoid constitutional problems about
unfettered discretion, it would have to add or delete text. When engaging in statutory
construction, courts are limited to interpreting the language before them; they may not drastically
re-write the statute to save it from its drafters. Stevens, 130 S. Ct. at 1591–92 (“We will not
rewrite a law to conform it to constitutional requirements, for doing so would constitute a serious
invasion of the legislative domain, and sharply diminish Congress’s incentive to draft a narrowly
tailored law in the first place.”) (alterations, citations and quotation marks omitted).
One might avoid the constitutional problem by limiting the Inspectors’ “reasonabl[e]
determin[ation]” to the definition listed elsewhere in the regulations. That is, an Inspector may
reasonably determine that a poster is related to an event only if the poster itself references “an
occurrence, happening, activity or series of activities, specific to an identifiable time and
place[.]” 24 D.C. CODE MUN. REGS. § 108.13 (2012). This construction replaces subjective
judgment with objective criteria. Since it relies on language from the regulations to limit the
Inspectors’ discretion, it stays closer to the intent of the District. This construction, however,
basically makes a significant portion of the text inoperative. If the Inspectors are restricted to
deciding whether posters reference an “event” as described by § 108.13, why tell them they can
draw on “all circumstances” to “reasonably determine[]” what an event is? 24 D.C. CODE MUN.
REGS. § 108.13 (2012). If “all circumstances” simply means what is explicitly listed in the
regulations, then “all circumstances” is basically surplus, inoperative language. This
construction would “violate[] the established principle that a court should give effect, if possible,
to every clause or word of a statute.” Moskal v. United States, 498 U.S. 103, 109 (1990)
46
(internal quotation marks omitted). The Court could read the impermissible discretion out of the
regulations, but doing so would read a significant part of the text out of the regulations. Cf.
Clark, 543 U.S. at 384 (“If we were…free to ‘interpret’ statutes as becoming inoperative when
they ‘approach constitutional limits,’ we would be able to spare ourselves the necessity of ever
finding a statute unconstitutional as applied. And the doctrine that statutes should be construed
to contain substantive dispositions that do not raise constitutional difficulty would be a thing of
the past; no need for such caution, since—whatever the substantive dispositions are—they
become inoperative when constitutional limits are ‘approached.’”)
Furthermore, the sign regulations’ use of “or” weighs against minimizing the grant of
discretion. An “‘event’ refers to an occurrence, happening,” et cetera, “if referenced on the
poster itself or reasonably determined from all circumstances by the inspector.” 24 D.C. CODE
MUN. REGS. § 108.13 (2012) (emphasis added). A basic canon of statutory construction provides
that, typically, “and” joins a conjunctive list, and “or” joins a disjunctive list. See ANTONIN
SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 116
(2012). Since an event is something “referenced on the poster itself” or “reasonably
determined…by the inspector,” 24 D.C. CODE MUN. REGS. § 108.13, this suggests that the
administrative discretion is somehow distinct from the rest of the subsection. It suggests that an
Inspector, if making a reasonable determination from all circumstances, can decide that a poster
relates to an event even if that poster does not clearly list the time and place of the event. But if
the Court construed the regulations to limit the Inspectors’ discretion to strictly applying what
has already been listed, it would effectively turn that “or” into an “and”—in violation of the
general understanding of what “or” means in statutes.
47
There might be another way to avoid the constitutional problem. Instead of effectively
nullifying part of the regulations, the Court could interpret “reasonable” and “circumstances” to
provide clear, objective criteria to enforcement officers. This would preserve the text—the grant
of discretion would still have some independent effect—and offer clear guidance to enforcement
officers and potential speakers. However, if the Court did this it would essentially rewrite the
statute. The terms “reasonably determined” and “all circumstances” do not give the Court
enough to develop sufficiently clear standards. In order to achieve the required level of
precision, the Court would need to provide its own criteria. In doing so, the Court would go
beyond merely construing the statute, and would engage in lawmaking. This is not permissible,
even to save a statute from unconstitutionality. See, e.g., United States v. Locke, 471 U.S. 84, 96
(1985) (“We cannot press statutory construction ‘to the point of disingenuous evasion’ even to
avoid a constitutional question.”); Stevens, 130 S. Ct. at 1591 (“We will not rewrite a law to
conform it to constitutional requirements[.]”)
In response to MASF’s discovery requests, the District admitted:
For the purposes of determining the date by which a poster must be removed, the
postering regulations allow an enforcement agent to use reasoning and discretion
and to consider any and all circumstances believed or known to the inspector in
order to “reasonably determine[] from all circumstances” whether a sign is
“related to a specific event” and what the date of the referenced specific event is.
Def.’s Resps. to Pl.’s First Set of Reqs. 12 (Request for Admission 10). Combined with the
District’s admission that there are no other materials construing the definition of “event,” id. at
10–11 (Reqs. 2 & 3), this suggests that the District may interpret its statute as granting Inspectors
administrative discretion above and beyond merely applying the plain text of the regulations. It
at least suggests that the District does not place a narrow limiting construction on § 108.13.
48
The District argues that “[t]he fact that the inspectors here…may have some discretion in
enforcing the regulations is immaterial.” Def.’s Opp’n to Pl.’s Mot. Summ. J. 9. It is “common
sense that all police officers must use some discretion in deciding when and where to enforce
city ordinances,” Morales, 527 U.S. at 62 n.32, and “[a]s always, enforcement requires the
exercise of some degree of police enforcement,” Grayned, 408 U.S. at 114. No statutory
definition of “event” can cover every possible scenario, and an overly-verbose definition might
serve to confuse more than clarify. Courts recognize that legislatures can never obviate the need
for police officers to make reasonable, on-the-beat judgments about whether certain conduct
violates the law. However, there is a difference between recognizing that administrative
discretion is inevitable and writing that discretion into the law.
The District cites cases outside the First Amendment to argue that the inspectors’
discretion is immaterial. Def.’s Opp’n to Pl.’s Mot. Summ. J. 9–10 (citing Town of Castle Rock
v. Gonzales, 545 U.S. 748, 761 (2005) (interest at stake asserted under procedural component of
Due Process Clause); Morales, 527 U.S. at 62 n.32 (vagrancy law does not implicate First
Amendment rights, but a liberty interest protected by the Due Process Clause of the Fourteenth
Amendment)). 12 Courts apply the vagueness doctrine with special exactitude when First
Amendment interests are at stake. See, e.g., F.C.C. v. Fox, 132 S. Ct. at 2317 (“When speech is
involved, rigorous adherence to th[e] requirements [of the vagueness doctrine] is necessary to
12
The District also cites Grayned v. City of Rockford—a First Amendment case—for the
proposition that “enforcement requires the exercise of some degree of police judgment.” 408 U.S. at 114.
This recognition that some discretion is inevitable is not an endorsement of the District’s position.
Elsewhere in Grayned, the Supreme Court emphasized the need to hold laws affecting First Amendment
interests to a higher standard: “[W]here a vague statute abuts upon sensitive areas of basic First
Amendment freedoms, it operates to inhibit the exercise of those freedoms;” id. at 109 (internal quotation
marks omitted) and “Where First Amendment interests are affected, a precise statute evincing a
legislative judgment that certain specific conduct be proscribed assures us that the legislature has focused
on the First Amendment interests and determined that other governmental policies compel regulation.”
Id. at 109 n.5 (internal quotation marks and citations omitted).
49
ensure that ambiguity does not chill protected speech.”); Sharkey’s, 265 F. Supp. 2d at 990(“[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.”).
When First Amendment rights are at issue, the government must strive to be clear and
precise. It should cabin discretion to ensure that its law is enforced fairly and predictably. It
cannot simply allow each officer to independently decide whether certain speech runs afoul of
the law. Even if the officers apply the law in good faith—without discriminatory motive or
bias—the possibility of inconsistent enforcement can chill speech. The District’s broad grant of
administrative discretion to its Inspectors raises serious Due Process concerns. The Court cannot
find a way to construe the law to avoid this constitutional problem, and must hold that § 108.13
is unconstitutional.
3. MASF is entitled to summary judgment
While MASF puts significant weight on the depositions of Solid Waste Inspectors, and
the testimony raised some interesting points, the vagueness issue can be resolved by looking only
at the words of the sign regulations. The District states that there is nothing outside of the
regulations that interprets or constrains the regulations. Def.’s Resps. to Pl.’s First Set of Reqs.
10–11 (Requests for Admission Nos. 2 & 3). The District has submitted no relevant limiting
construction that any court has placed on the sign regulations, nor has this Court found any.
By applying the principles of statutory construction and the vagueness doctrine to the
plain text, the Court determines that the sign regulations delegate administrative discretion to
individual enforcement officers in violation of the Due Process Clause. This Court, and the
Court of Appeals, have previously found that MASF has standing to bring this facial challenge.
ANSWER II, 589 F.3d at 435–36; ANSWER III, 798 F. Supp. 2d at 143. The Court decided the
50
issue on narrower grounds not requiring the consideration of any extrinsic evidence. The
question being essentially legal, not factual, MASF has sufficiently shown it is entitled to
summary judgment on this issue. See United States v. Phillip Morris USA, Inc., 327 F. Supp. 2d
13, 17 (D.D.C. 2004) (“[S]ummary judgment is appropriate for purely legal questions.”); 325–
343 56th Street Corp. v. Mobil Oil Corp., 906 F. Supp 669, 679 (D.D.C. 1995) (“When the
unresolved issues are primarily legal rather than factual, summary judgment is particularly
appropriate. Such issues include matters turning on statutory interpretation.”) (citations omitted).
C. MASF’s Challenge that the Law is Unconstitutionally Overbroad
MASF also argues that the District’s sign regulations are unconstitutionally overbroad.
Under traditional overbreadth doctrine, a law touching First Amendment concerns would be
invalid if a “substantial number of its applications are unconstitutional, judged in relation to the
statute’s plainly legitimate sweep.” Washington State Grange, 552 U.S. at 449 n.6. The doctrine
of substantial overbreadth creates an exception to the traditional facial challenge, where the party
challenging the law must show that there is “no set of circumstances under which the law would
be valid.” Salerno, 481 U.S. at 745. Because of concerns about chilling protected speech, such a
strong showing is not required in free speech cases. See Stevens, 130 S. Ct. at 1587. When
determining whether a law is substantially overbroad, a court must “construe the challenged
statute,” Williams, 553 U.S. at 293, and consider “whether the statute, as [the court has]
construed it, criminalizes a substantial amount of protected expressive activity,” id. at 297.
MASF relies primarily on cases that intertwine overbreadth with vagueness, quoting the
following language:
[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,
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and in cases where the ordinance sweeps too broadly, penalizing a substantial
amount of speech that is constitutionally protected.
Boardley, 615 F.3d at 513 (quoting Forsyth, 505 U.S. at 129) (quoted in Pl.’s Mot. Summ. J. 38).
While Courts sometimes conflate overbreadth and vagueness, it is important to remember that
the doctrines are distinct. A vague law may be overbroad—through its imprecision, it may have
a large number of unconstitutional applications. One often accompanies the other, but not
always. In this case, the problem is not that the law is overbroad; in order for the District to
make the regulations constitutional, it does not necessarily have to narrow their sweep. A law
applying the thirty-day restriction to all “event” signs could be constitutional if enforcement
officers and the public had clear guidance on what constituted an “event” sign, and the District
properly justified the distinction. A law placing an across-the-board restriction on all signs could
be constitutional, even though this change does not necessarily “narrow” the law’s sweep.
Therefore, it would be analytically incorrect to say that the sign regulations are
“substantially overbroad.” Clarifying this does not significantly alter the plaintiff’s position—
often, MASF called the sign regulations “overbroad” when making an argument about vagueness
and administrative discretion. Clarifying this does not change the ultimate result—the sign
regulations’ event/non-event distinction and definition of event are still unconstitutional.
D. Severability of the District’s Sign Regulations
The Court has found that the District’s differential treatment of signs relating to an event
and signs bearing a general message is an unconstitutional regulation of speech in a designated
public forum, and explicitly delegates overly broad discretion to individual decisionmakers.
Now the Court must consider whether it can sever the unconstitutional aspects of the law from
the remainder of the statute, and if the law is severable, the Court must make clear which
provisions it finds unconstitutional.
52
“Generally speaking, when confronting a constitutional flaw in a statute,” courts “try to
limit the solution to the problem,” severing any “problematic portions while leaving the
remainder intact.” Ayotte v. Planned Parenthood of Northern New Eng., 546 U.S. 320, 328–329
(2006). “Whether an unconstitutional provision is severable from the remainder of the statute in
which it appears is largely a question of legislative intent, but the presumption is in favor of
severability.” Regan v. Time, Inc., 468 U.S. 641, 653 (1984). The “invalid portions of a statute
are to be severed ‘[u]nless it is evident that the [l]egislature would not have enacted those
provisions which are within its power, independently of that which is not.’” I.N.S. v. Chadha,
462 U.S. 919, 931–32 (1983) (quoting Buckley, 424 U.S. at 108). A legislature “could not have
intended a constitutionally flawed provision to be severed from the remainder of the statute if the
balance of the legislation is incapable of functioning independently.” Alaska Airlines, Inc. v.
Brock, 480 U.S. 678, 684 (1987). “The more relevant inquiry in evaluating severability is
whether the statute will function in a manner consistent with the intent” of the legislature after
the court severs the unconstitutional provisions. Id. at 685. When the legislature “has explicitly
provided for severance by including a severability clause in the statute” this heightens the
presumption in favor of severability. Id. at 686. The “absence of a severability clause,
however…does not raise a presumption against severability.” Id. If “[t]he unconstitutionality of
a part of an Act does not necessarily defeat or affect the validity of its remaining provisions, the
normal rule is that partial, rather than facial, invalidation is the required course.” Free Enter.
Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3161 (2010) (internal citations and
quotation marks omitted).
The first step is to clearly identify the unconstitutional provisions, so the Court can
consider what the law would look like without those provisions. The law in question is Section
53
108 of the D.C. Code of Municipal Regulations, titled “Signs, Posters, and Placards;” it currently
has thirteen subsections authorizing and regulating the posting of signs on public lampposts. See
Ex. 3 to Pl.’s Mot. Summ. J.; 24 D.C. CODE MUN. REGS. §§ 108.1–13 (2012). At this stage,
MASF only challenges the regulations’ distinction between event and non-event posters, and the
regulations’ definition of event. Pl.’s Mot. Summ. J. 1–3. Sections 108.5 and 108.6 draw the
key distinction:
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.
24 D.C. CODE MUN. REGS. §§ 108.5–6 (2012). Furthermore, the regulations define event as:
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.
Id. at 108.13. These provisions are at issue.
The Court finds that subsections 108.6 and 108.13 are severable from the rest of the sign
regulations. Since the District’s lampposts are a designated—not traditional—public forum,
declaring the entire law void might forbid the posting of any sign on the District’s lampposts.13
In the alternative, voiding the entire law may open the lampposts to all comers, without any of
the reasonable protections and limitations afforded by Section 108. The Court does not believe
13
One could argue that the sign regulations are what designate the lampposts as a public forum in
the first place, and in the absence of a law authorizing limited political speech, no one would have a free-
standing “right” to post there. 24 D.C. CODE MUN. REGS. §§ 108.4 (2012) (“Any sign, advertisement, or
poster that does not relate to the sale of goods or service may be affixed on public lampposts or
appurtenances of a lamppost, subject to the restrictions set forth in this section.”); cf. Taxpayers for
Vincent, 466 U.S. at 815 (utility poles are not a traditional public forum and government may completely
forbid the posting of signs thereupon).
54
that the District intended—in the absence of the event-based restrictions—to either completely
open or completely close the District’s lampposts as a forum for speech. The sign regulations
might still “function in a manner consistent with the intent” of the District without subsections
108.6 and 108.13. Brock, 480 U.S. at 685. Certainly, the District might prefer to subject event
signs to the shorter periods provided by § 108.6, but the District could still be protected by the
generally-applicable limit imposed by § 108.5. 14 The law is not made nonsensical or inoperative
by severing subsections 108.6 and 108.13, and does not result in a law that the Court feels the
District could not have intended.
The vast majority of the regulations’ remaining 11 subsections make complete sense after
excising subsections 108.6 and 108.13. The regulations’ prohibition of posting on trees (§
108.2), ban on indecent signs (§ 108.3), regulation of adhesives (§ 108.9), et cetera, do not
depend on the regulations’ event/non-event distinction. Only one subsection need be modified
after the Court severs subsections 108.6 and 108.13 from the law:
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
event.
24 D.C. CODE MUN. REGS. §§ 108.11 (2012) (emphasis added). 15 The District added the
italicized text to subsection 108.11 after the Court’s July 2011 motion to dismiss ruling. D.C.
MUN. REGS. tit. 58, § 8410 (Sept. 30, 2011). This language depends on the unconstitutional
distinction between event and non-event posters, and the Court believes that the District would
14
MASF does not challenge the across-the-board durational limit imposed by § 108.5, but
challenges the differential treatment between signs that fall under § 108.5 and event signs under § 108.6.
15
Neither the District or MASF paid much attention to this provision. The District did not argue
that it relies on the “event dates” designated in the filings to determine when a poster must come down.
55
not have intended to add it if subsections 108.6 and 108.13 were not part of the law; this
language should be severed from the rest of the law.
It is possible to sever the sign regulations’ unconstitutional provisions without making the
rest of the law inoperable or unreasonable. Having found the sign regulations’ event/non-event
distinction and definition of event unconstitutional, the Court holds subsections 108.6 and 108.13
unconstitutional but severable from the rest of Section 108. Furthermore, the portion of
subsection 108.11 reading “and if the sign is for an event, the date of the event,” is solely related
to the unconstitutional distinction drawn by subsection 108.6, but severable from the rest of
Section 108. Therefore subsections 108.1–5, 108.7–10, and 108.12 (inclusive) shall remain in
effect. Subsection 108.11 shall remain in effect after the language referencing “events” is
excised from the provision.
IV. CONCLUSION
When the District first passed its sign regulations in 1980, it expressed a clear preference
for candidates seeking political office. 24 D.C. CODE MUN. REGS. § 108 (1980). After
ANSWER—and later MASF—challenged the sign regulations, the District took steps to fix the
problems in its law. Unfortunately, after five years of litigation and four amendments to the sign
regulations, the law still fails First Amendment and Due Process scrutiny.
The Court lauds the District for opening its lampposts to political messages, when it
might have never designated them a public forum in the first place. The Court commends the
District’s Department of Transportation for repeatedly amending the sign regulations to bring the
law closer to constitutionality.
But once the District opens up public property to political speech, it has a responsibility
to be fair, even, and precise in its regulations. If it chooses to make distinctions between
56
different types of speech—even if its distinctions might appear benign—it must justify why it
treats different kinds of speech differently, and explain how this distinction furthers its
significant interests. When treading on First Amendment interests, it should strive to limit
administrative discretion, not codify and endorse it. In order to avoid chilling protected speech,
the regulations must be clear, and provide objective standards for enforcement.
The District has a considerable interest in regulating how signs are posted on its
lampposts. Speakers do not have a right to post signs wherever and however they want, but can
be restrained by reasonable time, place and manner restrictions. Not every law that treats
different types of speech differently is an impermissible content-based limitation. When a law is
narrowly tailored to serve significant content-neutral interests, and leaves open ample alternative
channels of communication, it can pass intermediate scrutiny.
MASF has a strong interest in knowing that the District will implement the sign
regulations in a predictable, consistent, and objective manner. The fear of inconsistent, uneven
enforcement can have a serious chilling effect on speech. The nature of speech at issue increases
the chance of inconsistent applications. If MASF posts signs throughout the District, several
different Solid Waste Inspectors will see the signs. As the depositions indicate, different
Inspectors may come to different conclusions about the same signs. Furthermore, MASF has an
interest in knowing that, when the District decides to place restrictions on protected speech, it
has seriously considered those restrictions. Requiring the District to show that its law is
narrowly tailored forces the government to consider whether it can achieve its goals by a less
restrictive means. It forces the District to consider the effect of its speech regulations, and look
more closely at whether those regulations are necessary.
57
The Court rests its decision on narrower grounds than urged by MASF. The Court must
exercise restraint and not unnecessarily decide extraneous matters. At this point, the Court does
not decide whether the District could justify its event/non-event distinction if it properly
explained how its law is narrowly tailored to promote litter control and esthetics. The Court does
not decide whether the regulations’ definition of “event”—if it did not explicitly delegate
administrative discretion to inspectors—would be sufficient.
The Court hopes that it has provided the District some guidance going forward. The
District may keep the law as is, with one across-the-board durational limit applying to all signs.
It may reenact the event/non-event distinction—and an amended definition of event—and be
prepared to explain the fit between the distinction and the law’s purposes. But the District may
not regulate protected speech in a designated public forum without being able to show that the
law is narrowly tailored, and it may not allow officers to exercise broad individual judgment
when enforcing the law.
For the reasons explained in this Memorandum Opinion, the Court will grant in part the
plaintiff’s Motion for Summary Judgment, ECF No. 60, and deny in toto defendant’s cross-
Motion for Summary Judgment, ECF No. 59.
A separate Order consistent with this Memorandum Opinion shall issue this date.
Signed, Royce C. Lamberth, Chief Judge, November 29, 2012.
58