Mahoney v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
PATRICK MAHONEY et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 09-105 (ESH)
)
DISTRICT OF COLUMBIA, et al., )
)
Defendants. )
____________________________________)
MEMORANDUM OPINION
Plaintiffs Reverend Patrick Mahoney, Kaitlin Mahoney Martinez, the Christian Defense
Coalition, Survivors of the Abortion Holocaust, and Cheryl Conrad bring this action against
defendants District of Columbia (“District”), Chief of the Metropolitan Police Department
(“MPD”) Cathy L. Lanier, and unidentified MPD officer “John Doe.”1 Plaintiffs allege that
defendants’ refusal to permit them to engage in “chalk art” demonstrations on the pavement of
the 1600 block of Pennsylvania Avenue in front of the White House violated the First, Fourth,
and Fifth Amendments to the U.S. Constitution; the Religious Freedom Restoration Act
(“RFRA”), 42 U.S.C. § 2000bb et seq.; and the District of Columbia First Amendment Rights
and Police Standards Act of 2004 (“FARPSA”), D.C. Law 15-352 (2005) (codified at D.C. Code
§ 5-331.01, et seq.). Before the Court is defendants’ motion to dismiss the complaint or, in the
alternative, for summary judgment and plaintiff’s opposition thereto. For the reasons set forth
below, defendants’ motion will be granted.
BACKGROUND
In late 2008, plaintiffs began preparations for a January 24, 2009 demonstration on the
1
Chief Lanier and John Doe are sued solely in their official capacities.
1
paved pedestrian promenade segment of the 1600 block of Pennsylvania Avenue, N.W., directly
between the White House and Lafayette Park (“the 1600 Block promenade”), to protest President
Obama’s position on abortion and to protest the anniversary of the Supreme Court’s decision in
Roe v. Wade, 410 U.S. 113 (1973). (See Am. Verified Compl. (“Compl.”) ¶¶ 51-55, 57-60 [Dkt.
14]; Pls.’ Mot. for TRO and Prelim. Inj. (“TRO Mot.”) [Dkt. 4], Decl. of Rev. Patrick Mahoney
(“Mahoney Decl.”), Attach. 1 (“1st Henderson Letter”) at 1; Defs.’ Mot. to Dismiss the
Complaint or, in the Alternative, for Summ. J. (“Mot.”) [Dkt. 17], Statement of Material Facts
(“Defs.’ SMF”) ¶ 1.) This particular portion of Pennsylvania Avenue is under the jurisdiction of
the District of Columbia, while the National Park Service (“NPS”) has jurisdiction over the
adjacent White House sidewalk and Lafayette Park. (NPS Opp’n to TRO Mot. (“NPS TRO
Opp’n”) [Dkt. 9] at 1.) In addition, NPS is responsible, pursuant to an agreement with the
District, for maintaining and repairing the 1600 Block promenade. (Id.; see also id., Decl. of
Ann Bowman Smith (“Smith Decl.”) ¶ 5 & Ex. B.)
I. APPLICABLE STATUTES AND REGULATIONS
In the District, expressive assemblies are regulated by the “First Amendment
Assemblies” subchapter of FARPSA and related regulations. See generally D.C. Code §§ 5-
331.01 to -331.17; D.C. Mun. Regs. tit. 24, §§ 705-706, 711-712. Section 5-331.03 of the D.C.
Code declares that it is the District’s policy to permit “First Amendment assemblies” – i.e., those
conducted for social, political, and religious expression – “on the streets, sidewalks, and other
public ways,” subject to “reasonable restrictions designed to protect . . . property . . . .” D.C.
Code § 5-331.03; see also id. § 5-331.02(1) (defining “First Amendment assembly”). Except in
three exempted situations, assembly organizers must give notice to the MPD and seek advance
approval for their event so that the District can coordinate the use of public spaces by multiple
2
groups and facilitate the allocation of police protection and other municipal assistance to
assembly participants. Id. § 5-331.05(b)-(d). However, it is not an offense to assemble without
having received advance approval. Id. § 5-331.05(a).
FARPSA requires the MPD to “recognize and implement” the policy announced in § 5-
331.03 “when enforcing any restrictions” on assemblies. Id. § 5-331.04(a). The MPD may
impose content-neutral “reasonable time, place, and manner restrictions” on expressive
assemblies in three ways: prior to an assembly through the approval of an assembly plan; during
an assembly for which no plan was approved; or during an assembly whose plan had previously
been approved subject to restrictions, provided that the additional restrictions satisfy one of three
specified criteria. Id. § 5-331.04(b) & (c).
Although the authority to grant an assembly plan is vested exclusively with the Chief of
Police or her designee, id. § 5-331.06(a)(1), the municipal regulations specify that assembly
plans shall be approved if nine enumerated conditions are satisfied. D.C. Mun. Regs., tit. 24, §
706.9 (“Regulation 706.9”). In addition, the exercise of assembly plan review and approval
authority is subject to timing and notice requirements. See D.C. Code. § 5-331.06(b) & (c). For
example, the Chief must provide a written rationale for any limitations on the approval of an
assembly plan which the applicant had previously indicated would be “objectionable.” Id. § 5-
331.06(c)(3). An applicant may appeal restrictions and denials of approval to the Mayor or his
designee, who must “expeditiously” issue a written ruling on the appeal before the assembly’s
planned date and time. Id. § 5-331.06(d).
II. PLAINTIFFS’ ASSEMBLY PLANS
On November 24, 2008, plaintiffs notified the MPD and the Department of the Interior
(“DOI”) by letter of their intent to protest the Roe decision on January 24, 2009, on the 1600
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Block promenade. (See 1st Henderson Letter at 1; Compl. ¶¶ 83, 92, 94; Defs.’ SMF ¶ 1.) The
letter explained that plaintiffs planned “to create a variety of verbal and visual messages, by
making chalk drawings on the paved surface of Pennsylvania Avenue.”2 (1st Henderson Letter
at 2.) Plaintiffs’ letter was received by Commander James Crane of the MPD Special Operations
Division (“SOD”), whose duties and responsibilities include the issuance or denial of assembly
plan approvals pursuant to FARPSA (Defs.’ SMF ¶ 3), and by officials at the DOI, who
communicated the information to the NPS.3 (See Smith Decl. ¶ 6.)
On January 7, 2009, Commander Crane responded to plaintiff’s November 24 letter.
(See TRO Mot., Mahoney Decl., Attach. 4 (“Crane Letter”); see also Compl. ¶¶ 97-98.) Crane’s
letter articulated the MPD’s security concerns regarding the White House and requested
additional information that would help the MPD fashion a permit, such as the number of
anticipated participants, the starting and ending times of the demonstration, and whether
plaintiffs contemplated using any sound amplification or other equipment.4 (Crane Letter at 1-
2.) The letter was accompanied by a form entitled “Assembly Plan Notification/Application for
Approval of Assembly Plan.” (Id. at 2, 3 (attachment).) It also informed plaintiffs that chalking
the 1600 Block promenade and adjacent sidewalks would constitute defacement of public
property in violation of the District’s criminal defacement statute, D.C. Code § 22-3312.01, as
well as NPS regulations, and that the MPD did not intend “to issue a demonstration permit that
2
The letter also gave notice of an intended January 22, 2009 protest of the Roe decision
“by words and demonstration” in Lafayette Park. (1st Henderson Letter at 1.)
3
On December 10, 2008, plaintiffs met with NPS and U.S. Park Police representatives to
discuss the January 22 Lafayette Park plans, but no decision had yet been made regarding
plaintiffs’ request to conduct a chalking demonstration on January 24. (TRO Mot., Mahoney
Decl., Attach. 2 (“2nd Henderson Letter”) at 1.)
4
It is undisputed that plaintiffs’ planned demonstration, as reflected in their November 24
letter, was not subject to any of FARPSA’s exemptions from the advance approval requirement.
4
could be understood to exempt organizers or any other persons from the neutral application” of
the District’s defacement statute. (Id. at 2.)
On January 8, 2009, Margaret O’Dell, on behalf of the NPS, sent a letter to plaintiffs that
explained the agency’s jurisdiction over the White House sidewalk and its maintenance
responsibilities for the portion of Pennsylvania Avenue adjacent to the sidewalk. (NPS TRO
Opp’n., Ex. 1 (“O’Dell Letter”).) O’Dell expressed the agency’s view that chalking the grounds
directly in front of the White House would violate District law, as well as NPS regulations
prohibiting the defacement of “cultural . . . resources,” 36 C.F.R. § 2.1(a)(6), and of “real
property” on park lands under federal legislative jurisdiction. Id. § 2.31(a)(3) & (b). (See O’Dell
Letter at 2.) O’Dell’s letter also asserted that the prohibition on chalking was a reasonable time,
place, and manner regulation consistent with the First Amendment. (Id. at 1-2.)
On January 9, 2009, plaintiffs responded to the MPD by letter, citing the District’s past
sponsorship of chalk art events on public streets in other locations and characterizing as “patently
ridiculous” the refusal to permit chalking on the 1600 Block promenade. (TRO Mot., Mahoney
Decl., Attach. 5 (“3rd Henderson Letter”) at 4; Am. Comp. ¶ 106.) Plaintiffs’ letter demanded
that permission be granted for them to express their views “through the medium of sidewalk
chalk” or else they would initiate litigation to compel such permission. (3rd Henderson Letter at
4.)
On January 12, 2009, Commander Crane transmitted to plaintiffs an “Assembly Plan
Approval” that permitted the use of signs and banners but expressly withheld permission for
sidewalk chalking:
In accordance with the provisions of the First Amendment Assemblies Act of
2004, permission is hereby granted to Rev. Patrick Mahoney to conduct a First
Amendment Assembly on Saturday, January 24, 2009 from 0700 hours (assembly
time), [to] 1900 hours (disbanding time), consisting of no more than 5,000
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persons. You are permitted to possess signs and banners. However, there is no
permission granted to use chalk or any other material to mark the surfaces of
Pennsylvania Ave., N.W.
(TRO Mot., Mahoney Decl., Attach. 6 (“Assembly Plan Approval”) at 2 (emphasis added).) The
Assembly Plan Approval also indicated that plaintiffs would need a U.S. Park Police permit in
order to make any use of the White House sidewalk or Lafayette Park. (Id.)
III. THE INSTANT ACTION
On January 16, 2009, plaintiffs initiated this action and moved for a temporary
restraining order (“TRO”) and preliminary injunction, seeking to stop the District and the MPD
from denying them permission to engage in “chalk art” as part of their approval to demonstrate
on January 24. On the evening of January 20, the day of the presidential inauguration,
defendants and the NPS, as amicus curiae, filed oppositions to plaintiffs’ motion. [Dkt. 8-9.]
After hearing argument on January 22, the Court denied injunctive relief on the grounds that
plaintiffs failed to establish a substantial likelihood of success on the merits. (See Jan. 22, 2009
Minute Order.)
On January 24, 2009, Mahoney and others went to the 1600 block of Pennsylvania
Avenue, N.W. with the intent to conduct their planned demonstration. (See Compl. ¶¶ 125-127.)
Commander Crane and other MPD officers were also present. (Id. ¶ 128.) Mahoney began to
chalk the pavement, but MPD directed him to cease doing so, took the chalk away from him, and
required him to identify himself. (Id. ¶¶ 132-134; Defs.’ SMF ¶ 8; see also Defs.’ Mot., Ex. A
(video recording of incident).) Mahoney was not taken into custody or charged with any offense.
On February 25, 2009, plaintiffs filed an amended verified complaint asserting six causes
of action. Plaintiffs’ first cause of action (“Count I”) contends that the District’s defacement
statute, on its face, violates the First Amendment’s Speech Clause. (Compl. ¶¶ 157-164.)
Plaintiffs’ second, third, fourth, and fifth causes of action assert that by threatening to apply the
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defacement statute to plaintiffs’ activities, defendants violated plaintiffs’ rights under the First
Amendment’s Speech and Free Exercise Clauses (“Count II”), RFRA (“Count III”), FARPSA
(“Count IV”), and the equal protection component of the Fifth Amendment’s Due Process Clause
(“Count V”). (Id. ¶¶ 165-186.) Plaintiffs’ final cause of action alleges that the MPD’s efforts to
prevent Mahoney from chalking in front of the White House on January 24, 2009, violated his
rights under the First, Fourth, and Fifth Amendments as well as RFRA (“Count VI”). (Id. ¶¶
187-198.)
On March 17, defendants filed a motion to dismiss or, in the alternative, for summary
judgment. [Dkt. 17-19.] On April 16, plaintiffs filed their opposition [Dkt. 20], and defendants
filed their reply on May 5 [Dkt. 23]. On April 27, an annual “Chalk-In” event took place on H
Street, N.W., between 21st and 22nd Streets, in which participants chalked the streets and
sidewalks. (Pls.’ Mot. to Supplement Opp’n to Mot. (“Pl.’s Mot. to Supplement”) [Dkt. 24-25]
at 2-3.) On May 6, 2009, plaintiffs sought to supplement their opposition in response to the
Chalk-In event, and the Court granted the motion in light of defendants’ consent.
ANALYSIS
I. COUNTS I, II, AND IV: FREEDOM OF SPEECH CLAIMS
The central dispute in this action is whether the government may prevent plaintiffs from
chalking the 1600 Block promenade consistent with the Constitution. However, several
threshold issues are not disputed. First, the parties agree that defendants were acting under the
color of state law when they prevented plaintiffs from chalking. Second, the creation of words or
images through chalk or any other medium is an act of expression that implicates the First
Amendment. Third, the paved street of the 1600 Block promenade is public property that
constitutes a “quintessential public forum[]” where “the government may not prohibit all
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communicative activity,” because “streets and parks . . . ‘have immemorially been held in trust
for the use of the public, and, time out of mind, have been used for purposes of assembly,
communicating thoughts between citizens, and discussing public questions.’” Perry Educ. Ass’n
v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983) (quoting Hague v. CIO, 307 U.S. 496,
515 (1939) (Roberts, J., concurring)). Fourth, the government may “regulate competing uses of
public forums” by “impos[ing] a permit requirement on those wishing to hold a march, parade,
or rally.” Forsyth County v. Nationalist Movement, 505 U.S. 123, 130 (1992) (considering facial
challenge to county ordinance requiring permits for assemblies and parade).
“None of this leads, however, to the conclusion that [plaintiffs] had a constitutional right
to be free of all restraints.” Christian Knights of Ku Klux Klan Invisible Empire, Inc. v. District
of Columbia, 972 F.2d 365, 372 (D.C. Cir. 1992). “‘The privilege of a citizen of the United
States to use the streets and parks for communication of views on national questions may be
regulated in the interest of all,’” White House Vigil for the ERA Comm. v. Clark, 746 F.2d 1518,
1526 n.66 (D.C. Cir. 1984) (quoting Hague, 307 U.S. at 515 (Roberts, J., concurring)), and “[t]he
government is not precluded . . . from regulating expressive activities conducted on the White
House sidewalk,” id. at 1527 (emphasis omitted), the public promenade directly in front of it, or
any other public property. Although plaintiffs “may have First Amendment freedom to use [the
1600 Block promenade] for protected speech,” this right “is not accompanied by an unlimited
license” to speak in that traditional public forum through whatever medium and manner they see
fit, “any more than the right to address an audience from the platform of a public monument
would confer upon a speaker the freedom to paint a message on it, or to readorn with graffiti
property owned by the government . . . .” People for the Ethical Treatment of Animals v.
Giuliani (“PETA”), 105 F. Supp. 2d 294, 318 (S.D.N.Y. 2000); cf. United States v. Murtari, No.
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07-CR-387, 2007 WL 3046746, at *5 (N.D.N.Y. Oct. 16, 2007) (noting that even though
property damage statute under which defendant was charged did not prohibit defacement, he was
not “free to write in chalk all over the federal plaza”). Moreover, neither the First Amendment
nor FARPSA grants plaintiffs an unlimited right to tangibly alter the appearance of public
property using chalk or any other medium, permanent or otherwise, nor does it require that this
particular street be available to serve as a writing tablet. See Christian Knights, 972 F.2d at 372(“When it comes to use of a public forum such as a street, . . . speakers do not have a
constitutional right to convey their message whenever, wherever and however they please.”).
With these guiding principles in mind, the Court will now turn to plaintiffs’ facial and
as-applied challenges under the First Amendment and FARPSA.
A. Count I: Facial Challenge
Count I attacks the defacement statute, D.C. Code § 22-3312.01, as unconstitutional on
its face. Facial challenges are generally disfavored because they require courts to “‘formulate a
rule of constitutional law broader than is required by the precise facts to which it is to be
applied,’” and because they “threaten to short circuit the democratic process by preventing laws
embodying the will of the people from being implemented in a manner consistent with the
Constitution.” See Wash. State Grange v. Wash. State Republican Party, 128 S. Ct. 1184, 1191
(2008) (quoting Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring)).
Because the doctrines governing facial challenges are complex, the Court notes the instructive
discussion offered by the Supreme Court in New York State Club Association, Inc. v. City of New
York:
Although . . . facial challenges are sometimes permissible and often have been
entertained, especially when speech protected by the First Amendment is at stake,
to prevail on a facial attack the plaintiff must demonstrate that the challenged law
either “could never be applied in a valid manner” or that even though it may be
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validly applied to the plaintiff and others, it nevertheless is so broad that it “may
inhibit the constitutionally protected speech of third parties.” City Council of Los
Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798 (1984). Properly
understood, the latter kind of facial challenge is an exception to ordinary standing
requirements, and is justified only by the recognition that free expression may be
inhibited almost as easily by the potential or threatened use of power as by the
actual exercise of that power. Thornhill v. Alabama, 310 U.S. 88, 97-98 (1940).
Both exceptions, however, are narrow ones: the first kind of facial challenge will
not succeed unless the court finds that “every application of the statute created an
impermissible risk of suppression of ideas,” Taxpayers for Vincent, [466 U.S. at
798 n.15], and the second kind of facial challenge will not succeed unless the
statute is “substantially” overbroad, which requires the court to find “a realistic
danger that the statute itself will significantly compromise recognized First
Amendment protections of parties not before the Court.” [Id. at 801.]
487 U.S. 1, 11 (1988) (citations omitted); accord Initiative and Referendum Institute v. U.S.
Postal Serv., 417 F.3d 1299, 1312 (D.C. Cir. 2005); Wash. State Grange, 128 S. Ct. at 1190 &
n.6.
Regardless of how plaintiffs attempt to cast their arguments, their facial attack on the
statute fails in light of the defacement statute’s text and applicable legal doctrines.
1. D.C. Code 22-3312.01
Section 22-3312.01, previously codified as § 22-3112.1, is part of the criminal code that
addresses “[t]respass” and “[i]njuries to [p]roperty.” See D.C. Code, tit. 22, ch. 33. The statute
provides that
[i]t shall be unlawful for any person or persons willfully and wantonly to
disfigure, cut, chip, or cover, rub with, or otherwise place filth or excrement of
any kind; to write, mark, or print obscene or indecent figures representing obscene
or [sic] objects upon; to write, mark, draw, or paint, without the consent of the
owner or proprietor thereof, or, in the case of public property, of the person
having charge, custody, or control thereof, any word, sign, or figure upon:
(1) Any property, public or private, building, statue, monument, office, public
passenger vehicle, mass transit equipment or facility, dwelling or structure of any
kind including those in the course of erection; or
(2) The doors, windows, steps, railing, fencing, balconies, balustrades, stairs,
porches, halls, walls, sides of any enclosure thereof, or any movable property.
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D.C. Code § 22-3312.01. “Property” includes streets and sidewalks, see id. § 22-3312.05(9), and
the statute also applies to public property under federal jurisdiction. See United States v. Bohlke,
No. 87-M-1645, 116 Daily Wash. L. Rep 1697, 1700 (D.C. Super. Ct. July 14, 1988) (denying
motion to dismiss and convicting defendant, under statute’s previous codification at § 22-3112.1,
for defacing White House pillar); United States v. Frankel, 739 F. Supp. 629, 632 (D.D.C. 1990)
(denying motion to dismiss transfer to federal court of defendants’ prosecution for defacing U.S.
Capitol), sentences following plea aff’d sub nom. United States v. Mastropierro, 931 F.2d 905(D.C. Cir. 1991). Violators face criminal penalties of up to 180 days’ imprisonment and a fine of
not less than $250 or more than $1000. D.C. Code § 22-3312.04.
2. Every application of the statute does not create an impermissible risk
of suppression.
Plaintiffs contend that the defacement statute operates as “a classic prior restraint on
speech” because some of its terms prohibit the writing, marking, drawing, or painting upon
“public properties, including streets and sidewalks, which constitute quintessential public
forums.” (Compl. ¶¶ 158-160.) They also contend that the MPD supposedly “ignores” the
constraints placed by Regulation 706.9 upon the MPD’s discretion to deny approval for assembly
plans, and as a result the defacement statute gives defendants “unbridled discretion” to regulate
speech because its terms do not specify when consent must be granted to write upon or mark
government property. (Id. ¶¶ 161-164.) Plaintiffs rely on cases such as Forsyth County, 505
U.S. 123; City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988); and Thomas v.
Chicago Park District, 534 U.S. 316 (2002), each of which considered whether a licensing
regime (or other direct regulation of expression) gave government decisionmakers unlimited
discretion to restrict speech. (See Pls.’ Opp’n [Dkt. 20] at 5-9.) Such a regime would be
unconstitutional because it creates “an impermissible risk of suppression of ideas.” Taxpayers
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for Vincent, 466 U.S. at 798 n.15 (citing prior restraint and licensing cases).
The defacement statute is not subject to attack under this theory because it is not
“unconstitutional in every conceivable application . . . .” Taxpayers for Vincent, 466 U.S. at 796.
Section 22-3312.01 is an exercise of the District’s legislative authority to protect property rights.
See Hannibal & St. J.R. Co. v. Husen, 95 U.S. 465, 470-71 (1877) (noting that state’s legislative
police power extends to “the protection of persons and property against noxious acts of other
persons, or such a use of property as is injurious to the property of others”). It is true that the law
implicates First Amendment interests because the statute’s terms make it unlawful “to write,
mark, draw, or paint . . . upon” public property – including traditional public forums such as
streets and sidewalks – without the government’s permission. But the law also prohibits
disfiguring, cutting, or chipping real or movable property, or covering such property with filth or
excrement, and these prohibitions are “perfectly reasonable” with respect to “most of the
publicly owned objects mentioned in” the statute. Taxpayers for Vincent, 466 U.S. at 801; cf.
Lederman v. Giuliani, No. 98-CV-2024, 2001 WL 902591, at *6-*7 (S.D.N.Y. Aug. 7, 2001)
(rejecting facial challenge to substantially identical New York defacement statute brought by
plaintiff who argued it was unconstitutional prohibition on chalking of public property).
Plaintiffs’ reliance upon Forsyth County and similar cases is therefore misplaced. See
also Taxpayers for Vincent, 466 U.S. at 798 & n.15 (distinguishing prior restraint and licensing
cases when considering facial challenge to city ordinance making it unlawful to “paint, mark or
write on, or post or otherwise affix, any hand-bill or sign to” public property). The statute is not
a licensing regime designed “to regulate speech per se,” but rather a trespass statute aimed at
conduct which the District may legitimately prohibit. Humanitarian Law Project v. Mukasey,
552 F.3d 916, 933 (9th Cir. 2009) (finding no threat of censorship where statute permitted
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Secretary of State “to authorize the otherwise prohibited provision of ‘material support or
resources’ to a designated foreign terrorist organization,” where “material support” was not
equivalent to political expression or association). Even the licensing cases recognize that the
mere fact that a law gives the government some measure of discretion does not open that law to
facial challenge as a prior restraint. Plain Dealer, 486 U.S. at 759. Instead, it “must have a close
enough nexus to expression, or to conduct commonly associated with expression, to pose a real
and substantial threat of the identified censorship risks.” Id. Section 22-3312.01 lacks just such
a nexus.
First, the defacement statute “does not punish only [defacement] engaged in for the
purpose of expressing views.” United States v. O’Brien, 391 U.S. 367, 375 (1968). Instead, it
prohibits all intrusions upon another’s property, regardless of motivation, that tangibly alter the
appearance of the property. Plaintiffs have offered no authority to suggest that such intrusions
are historically associated with constitutionally privileged speech, and “it is an untenable
position that conduct such as vandalism is protected by the First Amendment merely because
those engaged in such conduct ‘intend[ ] thereby to express an idea.’” Riely v. Reno, 860 F.
Supp. 693, 702 (D. Ariz. 1994) (quoting Texas v. Johnson, 491 U.S. 397, 404 (1989)); see also
PETA, 105 F. Supp. 2d at 318; Wilson v. Johnson, 04-CV-059, 2005 WL 2417057, at *7 (E.D.
Tenn. Sept. 30, 2005) (“Plaintiff got caught defacing the doors and walls of two University
buildings, conduct that constitutes vandalism, and vandalism is not protected by the First
Amendment.”), aff’d, 247 F. App’x 620 (6th Cir. 2007).
Second, any burdens upon speech are independent of the expression’s content and
incidental to the statute’s legitimate purpose of protecting property. See Nat’l Paint & Coatings
Ass’n v. City of Chicago, 803 F. Supp. 135, 143 (N.D. Ill. 1992) (finding, for purposes of
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interstate commerce analysis, that ordinance regulating possession of graffiti-type spray paints
and markers served legitimate local interest in “preserving property values, deterring illegal
activity and protecting the aesthetic character of the City’s neighborhoods from the devastation
of graffiti vandalism”). The statute’s narrow focus leaves many alternative forms of speech,
such as signs or banners, the use of natural or amplified sound, or any other medium that does
not require changing the appearance of another’s property by writing a message directly “upon”
it.
Because it is not true that § 22-3312.01 “could never be applied in a valid manner,”
Taxpayers for Vincent, 466 U.S. at 798, plaintiffs’ facial challenge under this theory fails as a
matter of law.
3. An overbreadth challenge is not appropriate.
The Court will also consider plaintiffs’ facial challenge to § 22-3312.01 as one brought
under the traditional formulation of the “overbreadth” doctrine, because the Supreme Court has
not always consistently described whether the rationale for permitting a facial attack upon a
licensor’s excess discretion is distinct from the rationale for permitting a facial overbreadth
challenge. Compare, e.g., Wash. State Grange, 128 S. Ct. at 1190 & n.6 (distinguishing facial
challenges based on theory that “the law is unconstitutional in all of its applications” from those
based on overbreadth), with Forsyth County, 505 U.S. at 129 (describing facial challenges to
licensing regimes as subset of overbreadth doctrine); see also Griffin v. Sec’y of Veterans Affairs,
288 F.3d 1309, 1320-21 (Fed. Cir. 2002) (discussing discrepancies in Supreme Court’s
discussion of overbreadth doctrine). To hold that § 22-3312.01 is invalid on its face “by reason
of the overbreadth doctrine,” the Court must conclude that “the trespass [statute], taken as a
whole, is substantially overbroad judged in relation to its plainly legitimate sweep.” Virginia v.
Hicks, 539 U.S. 113, 122 (2003); Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)
14
(“[P]articularly where conduct and not merely speech is involved, . . . the overbreadth of a statute
must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate
sweep.”). Such a finding would “suffice[] to invalidate all enforcement of [the] law, ‘until and
unless a limiting construction or partial invalidation so narrows it as to remove the seeming
threat or deterrence to constitutionally protected expression.’” Hicks, 539 U.S. at 118-19(quoting Broadrick, 413 U.S. at 615).
“This is not, however, an appropriate case to entertain a facial challenge based on
overbreadth,” Taxpayers for Vincent, 466 U.S. at 801, because “the parties challenging the
statute are those who desire to engage in protected speech that the [supposedly] overbroad statute
purports to punish . . . .” Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504 (1985). “[T]he
overbreadth doctrine is essentially a jus tertii device; it evolved in order to permit one properly
charged under a statute to raise the First Amendment rights of others, not charged, whose
associational or expressive rights might be chilled by enforcement of overly broad legislation.”
Waters v. Barry, 711 F. Supp. 1125, 1133 (D.D.C. 1989); accord Hutchins v. District of
Columbia, 188 F.3d 531, 548 n.14 (D.C. Cir. 1999) (en banc) (“[A]n assertion of a facial
challenge under the First Amendment overbreadth doctrine . . . is really a standing exception . . .
for parties engaged in unprotected conduct to challenge applications of the statute against third
parties not before the court.” (emphasis added)). “[W]hen, as here, the plaintiffs are themselves
engaged in protected activity – when the challenged statute would have no greater impact upon
the rights of nonparties than it would have upon the rights of the parties before the Court – there
is no need to employ a traditional overbreadth analysis.” Waters, 711 F. Supp. at 1133.
Plaintiffs’ efforts to chalk on a public street already implicate those portions of § 22-
3312.01 that most directly raise First Amendment concerns, so there can be no basis to conclude
15
that the law “applies to any conduct more likely to be protected by the First Amendment than
[plaintiffs’] own [expressive activities].” Taxpayers for Vincent, 466 U.S. at 802. If the
defacement statute “may be validly applied to [plaintiffs], it can be validly applied to most if not
all of the [writing, marking, drawing, or painting upon public property done by] parties not
before the Court.” Id. There is thus no “realistic danger that the ordinance will significantly
compromise recognized First Amendment protections of individuals not before the Court,” id.,“no want of a proper party to challenge the statute, [and] no concern that an attack on the statute
will be unduly delayed or protected speech discouraged.” Spokane Arcades, 472 U.S. at 502.
It is clear that plaintiffs’ facial challenge – whether based on a theory of unbridled
discretion or substantial overbreadth – must fail, and thus, Count I will be dismissed for failure to
stated a claim upon which relief can be granted.5
For all of these reasons, Count I will be dismissed as a matter of law.
B. As-Applied Challenges
Plaintiffs also bring “as-applied” challenges to defendants’ reliance upon the defacement
5
Assuming arguendo that an overbreadth challenge were appropriate here, which it is
not, such a challenge would fail for the reasons that the Supreme Court rejected a similar
overbreadth challenge to a local trespass law in Hicks. See 539 U.S. at 123-24 (holding that
trespass policy governing public housing development’s “privatized” public streets was not
facially overbroad, because policy applied to all individuals entering the development’s streets
and “not just to those who seek to engage in expression,” where Court had assumed arguendo
that streets remained public forums and that policy of banning individuals who lacked
“‘legitimate business or social purpose for being on the premises’” was unlawful grant of
unfettered discretion to housing development’s manager). As was the case with the “no-return”
policy in Hicks, the defacement statute here cannot be deemed substantially overbroad. Even if
the defacement statute unlawfully gave defendants unbridled discretion to grant or deny consent
to write upon or mark a public street, the statutory text plainly prohibits many other forms of
defacing conduct with respect to many other types of property without raising any First
Amendment concerns. “[J]udged in relation to its plainly legitimate sweep,” id. at 122, the
defacement statute is not substantially overbroad, and plaintiffs’ facial challenge would, if
permitted to proceed, fail. See also id. at 124 (“Rarely, if ever, will an overbreadth challenge
succeed against a law or regulation that is not specifically addressed to speech or to conduct
necessarily associated with speech (such as picketing or demonstrating).”).
16
statute to restrict plaintiffs’ ability to chalk the 1600 Block promenade.
1. Count II: First Amendment - Speech Clause
Count II alleges that defendants violated plaintiffs’ freedom of speech “[b]y threatening
to apply a provision of the criminal code of the District of Columbia” to their expressive
conduct. (Compl. ¶ 170.) “Plaintiffs acknowledge that the District may regulate all such
activities” enumerated in the defacement statute, “including chalk art, whether such a statute
exists or not.” (Opp’n at 9 n.2) They argue, however, that those laws are unconstitutional at
applied to them.6
With respect to any “as-applied” challenge, it is well settled that “[t]he permissible mode
of regulati[ng]” the use of a traditional public forum “is summarized under the familiar heading
‘time, place and manner.’” Christian Knights, 972 F.2d at 372; Mahoney v. U.S. Marshals Serv.,
454 F. Supp. 2d 21, 32 (D.D.C. 2006) (rejecting as-applied challenge, brought by Rev. Mahoney
and Christian Defense Coalition, to restriction as to where they could demonstrate outside the
Red Mass). “[R]easonable time, place, and manner regulations” are valid “as long as the
6
Plaintiffs appear to frame their “as-applied” challenge in terms of Forsyth County’s
requirement of “narrowly drawn, reasonable and definite standards.” 505 U.S. at 133. (See
Opp’n at 10.) This is not the standard for an as-applied challenge, and plaintiffs’ argument is
based on several incorrect premises, owing to plaintiffs’ erroneous conclusion that D.C. Code §
22-3312.01 is analogous to a licensing provision governed by Forsyth County and similar cases,
see supra Section III.A.1, as well as their misinterpretation of FARPSA and Regulation 706.9.
See infra Section III.B.2.
However, even if Forsyth County were applicable by virtue of the MPD’s reliance upon
the defacement statute when carrying out its duties under FARPSA, the purpose of objective
standards is to help ensure that a licensing scheme is valid on its face, because “without
standards to fetter the licensor’s discretion, the difficulties of proof and the case-by-case nature
of ‘as applied’ challenges render the licensor’s action in large measure effectively
unreviewable.” Plain Dealer, 486 U.S. at 757. Because the defacement statute is not
unconstitutional on its face, and because plaintiffs disavow any challenge to FARPSA’s facial
validity (Opp’n at 3), the Forsyth County considerations would not inform the Court’s analysis
of plaintiffs’ “as-applied” claims.
17
restrictions ‘are content-neutral, are narrowly tailored to serve a significant government interest,
and leave open ample alternative channels of communication.’” Lederman v. United States, 291
F.3d 36, 44 (D.C. Cir. 2002) (quoting United States v. Grace, 461 U.S. 171, 177 (1983)); White
House Vigil, 746 F.2d at 1527. The undisputed facts show that defendants’ reliance upon § 22-
3312.01 when imposing the chalking restriction constitutes just such a valid regulation of the
place (i.e., the promenade) and manner (i.e., writing directly upon the surface of the promenade)
of plaintiff’s speech.7 And thus, plaintiffs’ “as-applied” challenge fails.
a) Content-neutrality
“A regulation that serves purposes unrelated to the content of expression is deemed
neutral, even if it has an incidental effect on some speakers or messages but not others.
Government regulation of expressive activity is content neutral so long as it is ‘justified without
reference to the content of the regulated speech.’” Ward v. Rock Against Racism, 491 U.S. 781,
791-92 (1989) (quoting Clark v. Cmty. for Creative Non-Violence (“CCNV”), 468 U.S. 288, 293
(1984)) (first emphasis added); Emergency Coalition to Defend Educ. Travel v. U.S. Dep’t of the
7
Plaintiffs have submitted an affidavit by Rev. Mahoney, pursuant to Rule 56(f)(2),
asserting that they are “unable to present evidence essential to demonstrate a genuine issue as to
certain material facts,” because that evidence is in defendants’ possession. (Opp’n, Rule 56(f)
Aff. of Rev. Mahoney (“Rule 56(f) Aff.”) ¶ 6.) The affidavit seeks discovery relating to (1) the
District’s prior application of the defacement statute; (2) the type of substance used by
defendants to mark the White House pavement for the 2005 inaugural parade; (3) evidence of
prior attempts to clean chalk from the White House pavement; and (4) the District’s prior
approval or denial of chalking in locations other than the 1600 block of Pennsylvania Avenue,
including “all District streets and sidewalks.” (Id. ¶¶ 1-4.) For the reasons discussed herein, the
Court denies the request because the discovery sought is not relevant to the Court’s analysis of
the issues presented and therefore would not create triable issues of fact. See Brookens v. Solis,
616 F. Supp. 2d 81, 96-97 & n.16 (D.D.C. 2009). And even if the discovery sought was
arguably relevant, plaintiffs offer only “conclusory assertion[s] without any supporting facts”
regarding their belief that further discovery would create a triable issue. See Byrd v. E.P.A., 174
F.3d 239, 248 n.8 (D.C. Cir. 1999) (affirming grant of summary judgment for defendant and
finding no abuse of discretion in denying Rule 56(f) request for discovery where plaintiff had
“merely alleged that ‘there may well be knowledge on the part of [the defendant’s] employees or
undisclosed documents” that would create fact issues).
18
Treasury, 545 F.3d 4, 12 (D.C. Cir. 2008). “[W]hether a statute is content neutral or content
based is something that can be determined on the face of it; if the statute describes speech by
content then it is content based.” G.K. Ltd. Travel v. City of Lake Oswego, 436 F.3d 1064, 1071
(9th Cir. 2006). The defacement statute is content-neutral on its face, as its plain language
prohibits unauthorized property-altering conduct (such as chipping, writing, or covering with
filth) without reference to the conduct’s motivation. See O’Brien, 391 U.S. at 375.
Similarly, defendants’ refusal to let plaintiffs chalk the 1600 Block promenade was
content-neutral because it was justified without reference to the content of plaintiff’s speech.
After plaintiffs informed defendants of their intent to demonstrate against abortion and the Roe
decision (see 1st Henderson Letter at 1-2), the responses from both the MPD and NPS took issue
only with how chalking the promenade and the adjacent sidewalk would constitute defacement in
violation of § 22-3312.01 and analogous federal regulations. (See Crane Letter at 2; O’Dell
Letter at 1-2.) “This justification . . . ‘ha[s] nothing to do with content,’” Ward, 491 U.S. at 792(quoting Boos v. Barry, 485 U.S. 312, 320 (1988) (O’Connor, J.)), and it does not “even
remotely suggest a hidden purpose to regulate speech because of a disagreement with appellants’
message.” Nat’l Org. for Women v. Operation Rescue, 37 F.3d 646, 655 (D.C. Cir. 1994).
Defendants’ invocation of the defacement statute when undertaking FARPSA’s undisputedly
constitutional approval process was consistent with FARPSA’s stated policy of permitting
“reasonable restrictions designed to protect . . . property . . . .” See D.C. Code § 5-331.03. The
content-neutral nature of defendants’ decision is also corroborated by the Assembly Approval
Plan issued by Commander Crane, which gave plaintiffs permission for a twelve-hour, 5,000-
person demonstration with signs and banners in the precise location that they requested. (See
Assembly Approval Plan at 2.) The approved assembly plan did not impose “any barrier to
19
delivering to the media, or to the public by other means, [plaintiffs’] intended message . . . .”
CCNV, 468 U.S. at 293.
Plaintiffs nonetheless argue that defendants selectively enforced the defacement statute
because they harbored content-discriminatory motives. (See Opp’n at 14; see also Compl. ¶
181.) Plaintiffs’ only basis for this contention is that defendants have previously permitted
others to chalk on public property in other parts of the District. The argument fails because
plaintiffs merely point to dissimilar incidents which do not support – and even undermine – the
argument that defendants applied the law in a content-based way.
First, the existence of other chalking events in other locations throughout the District,
such as the April 26 “Chalk-In” on H Street, has no bearing on defendants’ decision to prohibit
chalking on the 1600 Block promenade. (See Pls.’ Mot. to Supplement at 2-3.) “[T]he White
House area is a ‘unique situs’ for [F]irst [A]mendment activity,” White House Vigil, 746 F.2d at
1533 (quoting A Quaker Action Group v. Morton, 516 F.2d 717, 729 (D.C. Cir. 1975)), and
defendants have unique interests in the aesthetic maintenance of that area. Indeed, as defendants
represented during the TRO hearing, the parties “wouldn’t be here” if plaintiffs had sought to
engage in a chalk art demonstration in a different location. (Jan. 22, 2009 Hr’g Tr. on TRO Mot.
(“TRO Hr’g Tr.”) at 62:5-8.) They further offer unrebutted evidence that no proposed assembly
plan that contemplated “the marking of Pennsylvania Avenue in front of the White House, or the
adjoining sidewalks, with chalk or any other substance” has been approved under FARPSA.
(Defs.’ SMF ¶ 9.)8
8
The complaint does not allege anything to the contrary, and plaintiffs’ counsel conceded
during the TRO hearing that no one has ever received permission to chalk the 1600 Block
promenade. (See TRO Hr’g Tr. at 50:1-10.) In light of this concession, the Court rejects
plaintiffs’ belated and unsupported attempt to dispute this fact. (See Opp’n, Pls.’ Response to
Defs.’ SMF ¶ 9.) Moreover, plaintiffs cannot dispute this fact without any evidence, and
20
The Court also takes notice of the judicial opinions which show how the defacement
statute (when codified at § 22-3112.1) was previously used to prosecute conduct, whether
politically expressive or not, that tangibly altered the appearance of public property in the
District – including the White House. See Bohlke, 116 Daily Wash. L. Rep. at 1697 n.2
(prosecution for defacing White House pillar to protest government actions in Central America);
Frankel, 739 F. Supp. at 632 (prosecution for defacing U.S. capitol to protest condition of the
homeless); Craig v. United States, 523 A.2d 567, 567-68 (D.C. 1987) (prosecution for defacing
municipal bus stop passenger shelter with phrase “Fool’s Gold” and two dollar signs).
Second, the argument that defendants selectively enforced the statute against plaintiffs
because of their views is contradicted by plaintiffs’ allegation that on at least two occasions, the
MPD had advance knowledge of plaintiffs’ intent to demonstrate against abortion through chalk
art and nonetheless permitted plaintiffs to go forward. (See generally Compl. ¶ 56.) In 2004,
Rev. Mahoney, Kaitlin Martinez, and the Christian Defense Coalition allegedly held a chalk
demonstration near Constitution Avenue and 15th Street “in the personal physical presence of”
the previous MPD chief, “who allowed them to carry out the activity.” (Id. ¶ 56(a)(ii).) In 2007,
these same plaintiffs allegedly sought and received the MPD SOD’s advance approval for a
similar chalk art demonstration near George Washington University. (Id. ¶ 56(b)(iv) & (v).)
During that demonstration, members of the public objected to plaintiffs’ expression “and tried to
significantly, in their Rule 56(f) affidavit, they do not even suggest that further discovery might
aid them in filling this enormous evidentiary gap. Instead, they seek to learn about chalking in
locations other than in front of the White House. (See Rule 56(f) Aff. ¶ 4.)
It is also of no significance that uniformed Secret Service officers allegedly did not stop
plaintiffs from chalking on or near the 1600 Block promenade on one occasion in April 2006
(see Compl. ¶ 56(c)(v) & (vi)), since the Secret Service was not acting as defendants’ agent, and
its powers do not extend to granting permits to use the promenade. See generally 18 U.S.C. §
3056 (“Powers, authorities, and duties of United States Secret Service”).
21
have it stopped.” (Id. ¶ 56(b)(vi).) MPD SOD officers intervened, “confirmed that [plaintiffs]
were permitted to conduct the chalk art demonstration, and kept them from being molested while
they completed their demonstration.” (Id. ¶ 56(b)(vii).)
Even construing all the evidence in the light most favorable to plaintiffs, the Court must
conclude that “there is nothing to support the notion that defendants’ denial of [plaintiffs’]
application was neither content-neutral nor based on a desire to promote legitimate governmental
interests.” Bosscher v. Twp. of Algoma, 246 F. Supp. 2d 791, 800 (W.D. Mich. 2003) (granting
motion to dismiss First Amendment claim after rejecting argument that denial of construction
permit was content-based, where defendant’s planning commission had concluded that denial
would serve legitimate content-neutral “aesthetic concerns”).
b) Substantiality of governmental interest and narrow tailoring
Whether the defacement statute’s application to chalking is “narrowly tailored to serve a
significant governmental interest” is a determination of law for the Court. White House Vigil,
746 F.2d at 1528-29; accord Mesa v. White, 197 F.3d 1041, 1046 & n.5 (10th Cir. 1999) (citing
White House Vigil and noting that whether government “demonstrated that [its asserted interest]
is a significant government interest” “is a legal rather than factual question”). Defendants assert
a governmental interest in, among other things, “preserving the aesthetics . . . of the paved part of
Pennsylvania Avenue around the White House . . . .” (See Mot. at 14.) The Court agrees and
concludes that the restriction on chalking is a narrowly tailored means of advancing the
government’s significant interests, which are unrelated to the suppression of expression, in
keeping the 1600 Block promenade free of “visual clutter,” Taxpayers for Vincent, 466 U.S. at
808, and “conserving [District] property” through measures “designed to limit the wear and tear”
to which they are subjected. CCNV, 468 U.S. at 299; see also id. at 297 (“[the Court] think[s]”
22
the government “has a legitimate interest in ensuring that the National Parks are adequately
protected”).
There can be no doubt that “[t]he government has a substantial interest in the preservation
and enhancement of the human environment,” and “aesthetics are a proper focus of
governmental regulation.” White House Vigil, 746 F.2d at 1528. This includes maintaining
property held in trust for the public “in an attractive and intact condition.” CCNV, 468 U.S. at
296 (noting substantial governmental interest in “maintaining the parks in the heart of our
Capital in an attractive and intact condition”) (emphasis added). In some ways, “the
government’s relationship to things under its dominion and control is virtually identical to a
private owner’s property interest in the same kinds of things, and . . . [the government], ‘no less
than a private owner of property, has power to preserve the property under its control for the use
to which it is lawfully dedicated.’” Taxpayers for Vincent, 466 U.S. at 815 n.31 (quoting
Adderley v. Florida, 385 U.S. 39, 47 (1966)). The byways directly in front of the White House
are a “unique resource[] that the Federal Government holds in trust for the American people,”
CCNV, 468 U.S. at 290; see, e.g., White House Vigil, 746 F.2d 1518 (upholding restriction on
display of signs and placards within the “center zone” of the sidewalk outside the White House),
and the District has significant interests in preserving the promenade for use and enjoyment by
the public by “proscribing intrusive . . . formats for expression.” Taxpayers for Vincent, 466
U.S. at 806.
Plaintiffs do not appear to dispute defendants’ substantial interests in maintaining the
visual and structural integrity of the 1600 Block promenade. (See Opp’n at 14 n.3 (“Plaintiffs do
not contend that the District may not impose restrictions on expressive activity in furtherance of
the protection of public property.”).) Nor could they, given that the complaint acknowledges that
23
the promenade has been closed to vehicular traffic since the 1990s, that it was converted to a
pedestrian plaza, and that its paving, “sometimes referred to as ‘rustic paving,’ . . . constitutes an
aesthetically driven selection” of materials that “provide[s] a ‘colored’ street surface different
from typical asphalt surfaces.” (Compl. ¶¶ 87-91.) Instead, plaintiffs claim that no visible signs
of chalking or damage will result if they are permitted to chalk the promenade. To support this
claim, plaintiffs proffer that no such damage appeared after Rev. Mahoney marked a letter “P”
upon the surface on January 24, 2009, nor after the chalk was apparently removed. (Id. ¶¶ 143-
44; see also Opp’n at 15 & n.6.)
This argument is unpersuasive. The government’s interest in enforcing the defacement
statute to protect the 1600 Block promenade should “not be judged solely by reference to the
demonstration at hand” nor by reference to the harm caused (or not caused) by a single letter
written by a single demonstrator. CCNV, 468 U.S. at 296-97. Instead, “courts must look to what
would happen if every individual to which a restriction applies were freed of its limitations,”
Mahoney, 454 F. Supp. 2d at 35, and defendants were compelled to grant each and every request
to chalk the promenade. See Heffron v. Int’l Soc. for Krishna Consciousness, Inc., 452 U.S. 640,
654 (1981) (noting that “there would be a much larger threat to the State’s interest . . . if all other
religious, nonreligious, and noncommercial organizations could likewise” enjoy the place and
manner exemption sought by the plaintiffs). In addition, the significance of the interest “must be
assessed in light of the characteristic nature and function of the particular forum involved.” Id. at
651.
The area near the White House “attract[s] great numbers of visitors who come . . . to see
and experience” the president’s home. Heffron, 452 U.S. at 651 (contrasting commonplace
public streets with state fair). Access to this “unique situs for demonstration activity” is “scarce”
24
because of the many “competing applicants” who hope to use that space. Quaker Action Group,
516 F.2d at 727. “Absent the prohibition on [chalking], there would be other groups who would
demand permission to deliver an asserted message by [chalking the promenade]. Some of them
would surely have as credible a claim in this regard as do[] [plaintiffs], and the denial of
[permission] to still others would present difficult problems for the [MPD].” CCNV, 468 U.S. at
297; see also Mahoney, 454 F. Supp. 2d at 35.
Because permission to chalk “cannot be meaningfully limited to” plaintiffs, Heffron, 452
U.S. at 653, the likely widespread use of chalk art directly in front of the White House would
contribute to visual clutter, thereby undermining the District’s interest in maintaining an area of
singular national importance. See, e.g., Globe Newspaper Co. v. Beacon Hill Architectural
Comm’n, 100 F.3d 175, 183, 187 (1st Cir. 1996); One World One Family Now v. City and
County of Honolulu, 76 F.3d 1009, 1013 (9th Cir. 1996). In addition, basic principles of friction
and erosion suggest that frequent chalking and cleaning efforts would accelerate the “wear and
tear” inflicted upon the rustic paving’s surface. CCNV, 468 U.S. at 299.9
For similar reasons, the restriction on chalking upon the 1600 Block promenade is also
narrowly tailored to serve the government’s substantial interests, because it “target[s] and
[eliminates] no more than the exact source of the ‘evil’ [it seeks] to remedy.” Taxpayers for
Vincent, 466 U.S. at 808.10 “[I]t is the tangible medium of expressing the message” – i.e.,
9
Because courts have long recognized the government’s substantial interests in
promoting aesthetics through the visual and physical maintenance of public property, the Court
need not rely upon the factual assertions of amicus regarding the actual damage caused to the
promenade by chalk art and the power-washing methods used to remove chalk from the surface.
(See Smith Decl. ¶ 4.) Therefore, plaintiffs’ Rule 56(f) requests for discovery as to this issue are
irrelevant to the Court’s analysis.
10
A challenged time, place, or manner restriction need not be “the least restrictive”
method of furthering the government’s interest. Ward, 491 U.S. at 798.
25
chalking – “that has the adverse impact on the appearance of the landscape. . . . Here, the
substantive evil – visual [clutter] – is not merely a possible by-product of the activity, but is
created by the medium of expression itself. . . . [T]herefore, the application of the [restriction] in
this case responds precisely to the substantive problem which legitimately concerns the
[District]” and “curtails no more speech than is necessary to accomplish its purpose.” Id. at 810;
accord White House Vigil, 746 F.2d at 1536 n.112.
It is not for the Court to decide “how much protection the [promenade] require[s] or how
an acceptable level of preservation is to be attained.” CCNV, 468 U.S. at 299. “The validity of
[time, place, or manner] regulations does not turn on a judge’s agreement with the responsible
decisionmaker concerning the most appropriate method for promoting significant government
interests or the degree to which those interests should be promoted.” Ward, 491 U.S. at 800(internal quotations omitted). Just as challenges to time, place, or manner decisions do not
permit the courts “to replace the Park Service as manager of” Lafayette Park, CCNV, 468 U.S. at
299, they do not permit this Court to replace defendants as stewards of the 1600 Block
promenade.
c) Availability of ample alternative channels of communication
Plaintiffs’ preferred medium may be to chalk the pavement, but “the First Amendment
does not guarantee the right to communicate one’s views at all times and places or in any manner
that may be desired.” Heffron, 452 U.S. at 647. What it requires is that a content-neutral
regulation, such as the chalking restriction, preserves the speaker’s access to ample alternative
channels of communication. That requirement was certainly met here.
“Plaintiffs have not been prohibited from directing their speech activity at a specific
audience at a specific time and place.” Mahoney, 454 F. Supp. 2d at 35. To the contrary, they
26
were given permission to speak through signs, banners, and a demonstration of up to 5,000
people, with no restriction upon their ability to speak aloud, in the very location and times they
wanted. Their only limitation was as to the medium they could use on the promenade, “but that
did not render the restriction a complete prohibition on speech.” Id.Despite the chalking restriction, plaintiffs were free “to engage in a rich variety of
expressive activities,” such as picketing, marching, carrying signs, singing, shouting, chanting,
performing dramatic presentations, and appealing to passers-by. White House Vigil, 746 F.2d at
1528. “The content of the message they espouse is theirs and theirs alone; they may express
views and employ verbal formulae that would be punished as seditious libel, blasphemy or
obscenity in less free societies.” Id. “In short, the [restriction] leave[s] unaffected a multitude of
possibilities for meaningful protest” on the 1600 Block promenade. Id.; CCNV, 468 U.S. at 299(finding that ample alternative channels remained for communicating intended political message
despite restrictions on sleeping in Lafayette Park).
In sum, the restriction upon plaintiffs’ ability to demonstrate was a content-neutral and
narrowly tailored means of furthering defendants’ significant aesthetic interests in avoiding
visual clutter and protecting property, while leaving open ample alternative channels for
plaintiffs to communicate their views about abortion. The Court therefore grants summary
judgment on Count II’s cause of action under the First Amendment’s Speech Clause.
2. Count IV: FARPSA
Count IV alleges that defendants violated FARPSA because they supposedly failed to
comply with Regulation 706.9 when invoking the defacement statute to justify denying plaintiffs
permission to chalk the promenade. (Compl. ¶¶ 179-182; see also Pls.’ Opp’n at 25.) Plaintiff’s
argument is without merit, for they misunderstand the MPD’s authority under FARSPA.
27
As declared in FARPSA, it is the District’s policy to permit expressive assemblies,
subject to reasonable restrictions designed to, inter alia, “protect . . . property . . . .” D.C. Code.
§ 5-331.03. The MPD “shall recognize and implement” this policy when enforcing restrictions
on assemblies, id. § 5-331.04(a) (emphasis added), which it can do by imposing reasonable
content-neutral time, place, or manner restrictions through the approval of an assembly plan. See
id. § 5-331.04(b)(1) & (c). Thus, by its plain text, FARPSA mandates that the MPD account for
the protection of property when imposing time, place, and manner restrictions during the
assembly approval process. Defendants’ reliance upon the defacement statute was wholly
consistent with this mandate.
Regulation 706.9 supplements FARPSA by specifying that proposed assembly plans
“shall be approved” if the Chief of Police concludes that nine enumerated criteria have been
satisfied. D.C. Mun. Reg., tit. 24, § 706.9(a)-(i). Put another way, the regulation sets forth nine
grounds for denying a proposed assembly plan. The last of the nine is the only one to directly
reference property interests. See id. § 706.9(i). It gives the Chief of Police discretion not to
approve an assembly plan if she concludes that the proposed event will “create a substantial
possibility of violent, disorderly conduct likely to endanger public safety or to result in
significant property damage.” Id.
Plaintiffs interpret FARPSA and Regulation 706.9 as prohibiting the MPD from
“imposing restrictions on speech in a public forum” in order to protect property unless there is a
chance of “significant property damage” as a result of “violent, disorderly conduct.” (Opp’n at
13 (emphasis added).) In keeping with his reading, plaintiffs contend that defendants could not
prohibit the use of chalk without justifying it by reference to a reasonable prediction of violence
that would cause significant property damage. (Id.) This is an incorrect reading of the statutory
28
regime, because plaintiffs erroneously conflate Regulation 706.9’s provisions for denying an
assembly plan with the rest of FARPSA’s provisions for restricting an assembly plan.
The statutory and regulatory texts clarify that “denials” and “restrictions” are distinct and
independent concepts. For example, the MPD must give written notice when denying an
assembly plan as well as when approving a plan “subject to time, place, or manner restrictions”
that are “objectionable to the applicant.” D.C. Code. § 5-331.06(c)(3); D.C. Mun. Reg., tit. 24, §
706.12. Similarly, the administrative review procedures contemplate appeals of denials, as well
as approvals subject to objectionable restrictions. D.C. Code § 5-331.06(d)(1); D.C. Mun. Reg.,
tit. 24, § 712.1. The MPD may also impose restrictions on an assembly as it occurs, even though
no plan for that event was ever submitted or approved. D.C. Code § 5-331.04(b)(3).
Plaintiffs argue that the restriction on chalking in this instance was an “effective denial”
because plaintiffs were prohibited from engaging in the only manner of speech that they wanted
to employ. (Opp’n at 2.) This blurring of concepts is inconsistent with FARPSA. A “First
Amendment assembly” is defined simply as any “a demonstration, rally, parade, march, picket
line, or other similar gathering conducted for the purpose of persons expressing their political,
social, or religious views.’” See D.C. Code § 5-331.02(1). For purposes of the statute, it is
irrelevant what particular medium of expression a demonstrator chooses to employ; an
“assembly” is still an “assembly.” The approval issued by Commander Crane did, in fact,
approve plaintiffs’ plan to hold an assembly, i.e., to hold a “gathering conducted for the purpose
of [plaintiffs] expressing their . . . religious views.” Id. The fact that this assembly was “subject
to time, place, or manner restrictions” that were “objectionable to the applicant[s],” id. § 5-
331.06(d)(1), does not mean that the MPD denied plaintiffs’ request for an assembly.
The Court concludes that FARPSA’s general policy, which includes the protection of
29
property, empowers the MPD to impose reasonable content-neutral restrictions that are far
broader than Regulation 706.9’s grounds for declining to approve an assembly. Defendants’
reliance upon the defacement statute was consistent with the MPD’s responsibility under
FARPSA to recognize and implement the District’s property-protective policy when imposing
restrictions through the approval of an assembly plan. Because defendants have not violated
FARPSA, Count IV fails as a matter of law.11
III. COUNTS II AND III: RELIGIOUS FREEDOM CLAIMS
A. Count II: First Amendment - Free Exercise Clause
Count II also alleges that defendants’ reliance upon the defacement statute violated
plaintiffs’ First Amendment right to the free exercise of religion. (Compl. ¶¶ 165-72.) Plaintiffs
assert that they are “compelled by the teaching of their Christian faith[] to conclude that the
status of legalized abortion in the United States[] puts their nation in defiance of God’s order for
liberty,” and that this conclusion motivates their social activism. (Id. ¶¶ 43, 45.)
The Supreme Court’s decision in Employment Division, Department of Human Resources
v. Smith, 494 U.S. 872 (1990), clarified that under the Free Exercise Clause, a neutral law of
11
Defendants also argue that plaintiffs may not sue for a violation of FARPSA because
the statute does not create a private right of action. (See Defs.’ Reply in Supp. of Mot. (“Reply”)
[Dkt. 23] at 13-14.) The Court agrees and concludes, in the alternative, that Count IV must be
dismissed on this ground. The most important consideration “is whether the legislature intended
to create a private right of action.” Dial A Car, Inc. v. Transp., Inc., 132 F.3d 743, 744 (D.C.
Cir. 1998) (holding that District statute did not create private right of action); Transamerica
Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15-16 (1979) (“[W]hat must ultimately be
determined is whether [the legislature] intended to create the private remedy asserted . . . .”).
FARPSA’s legislative history indicates that the D.C. Council ultimately rejected a proposed
provision, § 5-321, that would have expressly provided a private right of action. (See Reply at
13; id., Attach. 1 at 9; id., Attach. 2 at 35-36; id., Attach. 3 at 9.) A private right of action for
statutory violations also appears inconsistent with the statutory scheme, which provides for direct
administrative review of the MPD’s denials of and modifications to assembly plan proposals.
D.C. Code. § 5-331.06(d). See Cort v. Ash, 422 U.S. 66, 78 (1975); accord Dial A Car, 132 F.3d
at 744 (applying Cort).
30
general applicability is not subject to heightened scrutiny. See, e.g., id. at 879 (“[T]he right of
free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral
law of general applicability on the ground that the law proscribes (or prescribes) conduct that his
religion prescribes (or proscribes).’” (quoting United States v. Lee, 455 U.S. 252, 263 n.3 (1982)
(Stevens, J. concurring in judgment)); Kaemmerling v. Lappin, 553 F.3d 669, 677 (D.C. Cir.
2008). Plaintiffs do not dispute that the defacement statute is facially neutral. (See Opp’n at 18.)
They do, however, contend that it is not generally applicable, because the statutory language
“permit[s] government officials to engage in selective enforcement of that law in a manner that
would burden only those engaging in specified conduct based on religious motivation, and
because [d]efendants have threatened to apply that law in precisely such a selective manner to
[p]laintiffs’ chalk art demonstration.” (Id. at 19.)
The principle of general applicability prevents the government from pursuing legitimate
interests in a manner that has the practical effect of imposing burdens primarily upon conduct
motivated by religious belief. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508
U.S. 520, 543 (1993); Am. Family Ass’n, Inc. v. F.C.C., 365 F.3d 1156, 1171 (D.C. Cir. 2004).
Heightened scrutiny of even a facially neutral law is appropriate if the law advances
governmental interests in a “substantial[ly]” “underinclusive” way that “fail[s] to prohibit
nonreligious conduct that endangers these interests in a similar or greater degree than [the
prohibited religiously motivated conduct] does.” Church of Lukumi, 508 U.S. at 543 (holding
that ordinances prohibiting ritual slaughter of animals were not of general applicability).
However, where a law does not have the effect of targeting religious speech “to an extreme
degree,” and it does not impose “extreme burdens [that] are not related to the legitimate
governmental interests served by the regulation,” then it does not run afoul of the general
31
applicability requirement. Am. Family Ass’n, 365 F.3d at 1171.
As discussed, the defacement statute rationally advances the District’s substantial
interests in promoting aesthetics and protecting property. It contains no exemptions that would
show nonreligious defacement more lenience than religiously motivated defacement. There is
also no evidence that any request to chalk the 1600 Block promenade, whether motivated by
secular or religious beliefs, has been granted under FARPSA. There is therefore no basis to
argue that the defacement statute has been selectively enforced to prohibit religiously motivated
defacement in the unique location of the White House area while letting nonreligious defacement
in the vicinity go unchallenged. If anything, defacement motivated by secular political purposes
in that area has been prosecuted, see Bohlke, 116 Daily Wash. L. Rep. at 1697 n.2, while Rev.
Mahoney has not even been charged. Accordingly, plaintiffs’ attack upon the general
applicability of § 22-3312.01 fails. As a result, although the statute incidentally affects
religiously motivated action, plaintiffs cannot raise any free exercise challenge to the law under
Smith’s general rule. See 494 U.S. at 878-81; see also Kaemmerling, 553 F.3d at 677.12
B. Count III: RFRA
Count III alleges that defendants violated plaintiffs’ rights under RFRA. (Compl. ¶¶ 173-
178.) RFRA was enacted as a congressional response to the Supreme Court’s decision in Smith,
and it “expressly adopted the compelling interest test,” rejected by Smith, “‘as set forth in
12
In the alternative, plaintiffs contend that because their claim involves religiously
motivated expression that implicates both the Free Exercise and Speech Clause, this action
presents a “hybrid situation” as discussed in Smith, 494 U.S. at 881-82 & n.1, such that § 22-
3312.01 would be subject to heightened scrutiny. (See Pls.’ Opp’n at 19-20.) Plaintiffs may not,
however, raise a “hybrid claim,” because they do not have an independently viable claim under
the Speech Clause. See Henderson v. Kennedy, 253 F.3d 12, 17 (D.C. Cir. 2001)) (“For this
argument to prevail, one would have to conclude that although the regulation does not violate the
Free Exercise Clause, and although they have no viable First Amendment claim against the
regulation, the combination of two untenable claims equals a tenable one. But in law as in
mathematics zero plus zero equals zero.” (citations omitted)).
32
Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972).’”
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 431 (2006) (quoting
42 U.S.C. § 2000bb(b)(1)). Under RFRA, the government13 may not “substantially burden a
person’s exercise of religion” unless “it demonstrates that the application of the burden to the
person” is both “in furtherance of a compelling government interest” and “is the least restrictive
means of furthering that compelling government interest.” 42 U.S.C. § 2000bb-1; Boardley v.
U.S. Dep’t of Interior, 605 F. Supp. 2d 8, 14 (D.D.C. 2009).
RFRA defines “exercise of religion” to include “any exercise of religion, whether or not
compelled by, or central to, a system of religious belief.” 42 § 2000bb-2(4) (incorporating
definition found in § 2000cc-5(7)(A)). “A litigant’s claimed beliefs ‘must be sincere and the
practice[] at issue must be of a religious nature.’” Kaemmerling, 553 F.3d at 677 (quoting
Levitan v. Ashcroft, 281 F.3d 1313, 1320 (D.C. Cir. 2002)). “Because the burdened practice need
not be compelled by the adherent’s religion to merit statutory protection,” what matters is not
“the centrality of the particular activity to the adherent’s religion but rather . . . whether the
adherent’s sincere religious exercise is substantially burdened.” Id. A substantial burden exists
when government action puts “‘substantial pressure on an adherent to modify his behavior and to
violate his beliefs . . . .’” Id. (quoting Thomas v. Review Bd., 450 U.S. 707, 718 (1981). By
contrast, “[a]n inconsequential or de minimis burden on religious practice does not rise to this
level, nor does a burden on activity unimportant to the adherent’s religious scheme.” Id.Plaintiffs argue that “the threat of enforcement of criminal sanctions under D.C. Code §
22-3312.01 as to [p]laintiffs’ planned chalk art demonstration imposed . . . ‘substantial pressure’
13
Although RFRA no longer applies to state governments, see City of Boerne v. Flores,
521 U.S. 507 (1997), it continues to apply to the District of Columbia. See 42 U.S.C. § 2000bb-
2(1) & (2).
33
on [p]laintiffs in deciding whether to follow through with their religious convictions on this
occasion.” (Pls.’ Opp’n at 22.) The Court accepts plaintiffs’ representations that they are
motivated by sincerely held religious beliefs to engage in the practice of “prayerfully
challeng[ing]” President Obama on the issue of abortion by “express[ing] prayers, thoughts,
views[,] and hopes” to him. (Compl. ¶¶ 54-55.) But plaintiffs do not allege that it is their
sincerely held religious belief that they should express those views to the president through the
specific medium of chalk or in the specific location of the 1600 Block promenade. (See
generally id. ¶¶ 38-45, 53-55.)
Rather, the complaint alleges that “many like-minded individuals” were going to be in the
District area on January 22, 2009 “to express continued opposition” to abortion on the
anniversary of the Roe decision, and that plaintiffs “decided to organize and conduct their chalk
art demonstration” “[w]ith that in mind . . . .” (Compl. ¶¶ 57-60.) Plaintiffs acknowledge that
chalk art is only “part of” their public religious and political expression. (Id. ¶ 56.) The
complaint further clarifies that plaintiffs do not exclusively associate the medium of chalk art
with their religious opposition to abortion, because they allegedly engaged in chalking
demonstrations in solidarity and support of “the persecuted members and adherents of Falun
Gong in Communist China.” (Id. ¶ 56(c)(iv).)
It is clear that these allegations are insufficient to support a claim that the restriction on
plaintiffs’ use of chalk pressured them “to modify [their] behavior and to violate [their] beliefs.”
Thomas, 450 U.S. at 718 (emphasis added). Rather, it only required that they modify their non-
religious choice of expressive medium or location. Compare Henderson v. Kennedy, 253 F.3d
12, 17 (D.C. Cir. 2001)) (finding no substantial burden in restriction upon plaintiffs’ ability to
sell T-shirts on National Mall, because plaintiffs “merely alleged that it is their vocation to
34
spread the gospel by ‘all available means’”), with O Centro, 546 U.S. at 427 (considering
substantial burden caused by federal ban on sacramental use of tea made from natural
hallucinogens), and Comanche Nation v. United States, No. 08-CV-849, 2008 WL 4426621, at
*17 (W.D. Okla. Sept. 23, 2008) (finding substantial burden where planned construction of
government facility would obstruct Native American plaintiffs’ view of religiously significant
landscape and thereby disrupt traditional religious practices). Plaintiffs remain free to act in
accordance with their beliefs. The chalking restriction is, “‘at most[,] a restriction on one of a
multitude of means’” that plaintiffs can use in order to engage in their practice of prayerful
challenge. Boardley, 605 F. Supp. 2d at 14 (quoting Henderson, 253 F.3d at 17). As such, it
does not substantially burden their exercise of religion, and Count III fails as a matter of law.
V. COUNT V: EQUAL PROTECTION CLAIM
Count V alleges that defendants violated plaintiffs’ equal protection rights under the Fifth
Amendment’s Due Process Clause. (Compl. ¶¶ 183-86.) Plaintiffs contend that in preventing
them from applying chalk to the pavement in front of the White House, the District treated them
differently than other “similarly situated” persons who have been permitted to chalk other
sideways or roadways located elsewhere in the District. (Pls.’ Opp’n at 25-26.) As already
noted, the area near the White House is a unique location for First Amendment activity, White
House Vigil, 746 F.2d at 1533, so the fact that defendants have permitted demonstrators to chalk
in other locations does not make them “similarly situated” to plaintiffs.
Permission to chalk on the 1600 Block promenade has not been granted under
FARPSA.14 (See Defs.’ SMF ¶ 9; TRO Hr’g Tr. at 50:1-10.) And it cannot be disputed that the
14
For this reason, plaintiffs cannot base their equal protection claim on the fact that the
District and the Armed Forces Inaugural Committee were permitted to mark the surface with
“some substance” in January 2005. (Pls.’ Opp’n at 27.) FARPSA did not go into effect until
35
defacement statute has, in fact, previously been applied to defacing conduct in that vicinity. See
Bohlke, 116 Daily Wash. L. Rep at 1700. Plaintiffs therefore cannot show that “anyone who was
similarly situated to them . . . was not similarly treated.” Mahoney, 454 F. Supp. 2d at 37(granting summary judgment for defendants); see also News Am. Publ’g., Inc. v. FCC, 844 F.2d
800, 809 (D.C. Cir. 1988) (applying requirement that “government [must] afford similar
treatment to similarly situated persons” to Fifth Amendment equal protection claim of
discrimination on the basis of speech). Because there is no genuine issue of material fact,
defendants are entitled to summary judgment on Count V.
VI. COUNT VI: CLAIMS ARISING FROM THE JANUARY 24, 2009
DEMONSTRATION
Count VI alleges that an unidentified “John Doe” MPD officer violated Mahoney’s
constitutional and statutory rights when he stopped Mahoney from chalking the 1600 Block
promenade on January 24, 2009, required Mahoney to identify himself, and seized the chalk that
he was using. (Compl. ¶¶ 132-138, 187-98.) Because defendants properly relied upon the
defacement statute when imposing a reasonable place and manner restriction to restrict Mahoney
from chalking in front of the White House, the unidentified MPD officer’s efforts to prevent
Mahoney from violating those restrictions could not abridge Mahoney’s rights under the First
Amendment, Fifth Amendment, or RFRA. See, e.g., Mahoney, 454 F. Supp. 2d at 32-39(granting summary judgment to defendants on claim by Rev. Mahoney and others that police
officers violated their rights under First Amendment, Fifth Amendment, and RFRA when
restricting or arresting them for seeking to demonstrate protests outside “controlled access area”
April 2005, and its assembly plan approval process did not exist during the 2005 Inauguration.
Moreover, the line that was drawn along Pennsylvania Avenue for the inaugural parade does not
constitute speech, which “requires both some intent to convey meaning and some meaningful
effect.” United States v. Grace, 778 F.2d 818, 821 (D.C. Cir. 1985).
36
near annual Red Mass ceremony). Moreover, even if it could be argued that the officer’s actions
constituted a search or seizure under the Fourth Amendment, which it cannot, the officer had
probable cause to take action after observing Mahoney chalking the promenade in violation of a
criminal defacement statute. See Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (“If an
officer has probable cause to believe that an individual has committed even a very minor
criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the
offender.”). Mahoney therefore fails to state claims under the Constitution or RFRA, and Count
VI will be dismissed as a matter of law.
CONCLUSION
For the foregoing reasons, the Court grants defendants’ motion. A separate Order will
accompany this Memorandum Opinion.
/s/
ELLEN SEGAL HUVELLE
United States District Judge
Date: September 30, 2009
37