Defending Animal Rights Today and Tomorrow v. Washington Sports and Entertainment, Lp

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
DEFENDING ANIMAL RIGHTS )
TODAY AND TOMORROW, )
)
Plaintiff, )
)
v. ) Civil Action No. 11-0786 (ABJ)
)
WASHINGTON SPORTS AND )
ENTERTAINMENT, LP, et al., )
)
Defendants. )
____________________________________)
MEMORANDUM OPINION
Every year, the Ringling Bros. and Barnum & Bailey Circus makes an appearance under
the big top at the Verizon Center in the District of Columbia. Every year, it attracts a crowd of
parents and children, cotton candy vendors, and animal rights activists. In 2011, the circus came
to town on March 24. Compl. ¶ 8. And on that date, members of plaintiff organization
Defending Animal Rights Today and Tomorrow (“DARTT”) were on hand to provide
information concerning the treatment of animals to circus patrons as they left the performance.
Compl. ¶ 10.
DARTT members were permitted to utilize a variety of media to communicate their
message: they were wearing signs, they displayed images on the side of the Verizon Center
building with a video projector, they were equipped with megaphones to amplify their spoken
comments, and they handed out leaflets. But DARTT brings this lawsuit alleging that defendants
Washington Sports and Entertainment (“WSE”) and the District of Columbia (“D.C.” or “the
District”) violated its rights under the First Amendment to the U.S. Constitution because the
protesters were directed to move their leafleting activity from their chosen location under the
overhang directly outside the Verizon Center doors to other points on the F Street sidewalk.
Since both the circus and the leafleting had come to an end before this action was filed, the Court
denied plaintiff’s motion for preliminary injunction on May 24, 2011. Defending Animal Rights
Today and Tomorrow v. Wash. Sports and Entm’t, LP, et al., No. 11-cv-00786, 2011 WL
2020788, at * 3 (D.D.C. May 24, 2011) [Dkt. #14]. Defendants have now moved to dismiss the
complaint or, in the alternative, for summary judgment [Dkt. #17 and #19]. The parties each
submitted declarations in support of their positions, and WSE provided the Court with unedited
surveillance video from the dates and times at issue, which depicts the scene outside the Verizon
Center when the circus concluded. Ex. A to Touhey Decl. The Court heard oral argument on
defendants’ motions on September 8, 2011. For the reasons stated below, the Court will grant
defendants’ motions, and this case will be dismissed. Since plaintiff’s lawful protest activities
were neither prohibited nor impeded, the First Amendment was alive and well on F Street in
March of 2011.
BACKGROUND
The Verizon Center is a sports and entertainment arena located at 601 F Street, N.W.,
Washington, D.C. Since 2009, DARTT has held protests at the Verizon Center when the
Ringling Bros. circus was in residence to inform attendees about “Ringling’s cruel treatment of
animals.” Compl. ¶ 10; Ortberg ¶ Decl. 2–3. DARRT intends to stage similar protests at all
future Ringling Bros. circuses held at the Verizon Center. Compl. ¶ 30; Ortberg Decl. ¶ 9.
This year, the circus was held from March 24 to March 27, 2011. Compl. ¶ 8. On March
24 and 25, 2011, DARTT members distributed its leaflets as circus-goers left the arena. Riley
Decl. ¶¶ 2, 4; Alioto Decl. ¶ 8. Approximately 9,000 people attended the circus on each of those
2
nights. Touhey Decl. ¶ 3. Because so many patrons leave the Verizon Center together
immediately after the conclusion of an event, “the period just after an event ends is when crowd
control is most challenging and pedestrian safety issues are most significant around the F Street
exterior doors.” Id. ¶ 10.
On at least one of the evenings, there were approximately seven protesters on hand to
distribute fliers. Euler Decl. ¶ 3. In addition to leafleting, DARTT members also protested by
shouting into a megaphone and by projecting words and images on the side of the Verizon
Center. Alioto Decl. ¶ 8. Some were holding or wearing signs. Motions Hearing Transcript
(“Tr.”) at 37–38, September 8, 2011; Ex. A to Touhey Decl.
On the night of March 24, 2011, Jennifer Riley, a member of DARTT, states that she was
handing out leaflets to patrons leaving the circus when a Verizon Center employee told her she
could not stand near the door. Riley Decl. ¶ 2. Then, “[a]s more people started leaving the
Verizon Center, a different Verizon Center employee told me that I needed to move out to the
edge of the sidewalk.” Id. Riley claims that from her new location, “I had trouble handing out
leaflets … because the circus patrons were not walking near me … [and] would have to walk
several feet to get the flier from me.” Id. ¶ 3. Riley also asserts that “[a]t the times that I was
closer to the door, more people were accepting fliers from me.” Id. On the same night, another
member of DARTT, Robin Euler, was leafleting under the concrete awning at the F Street
entrance to the Verizon Center when two security guards told her to move beyond the awning.
Euler Decl. ¶ 2. One of the security guards informed her that she needed to move because the
area of the sidewalk under the awning was private property. Id.
On the next night, March 25, 2011, DARTT members returned to the Verizon Center for
another protest. Euler was again leafleting at the F Street entrance approximately “4 feet from
3
where the awning ends.” Id. ¶ 3. An off-duty Metropolitan Police officer, Sgt. Anthony Alioto,
told her that she “couldn’t stand anywhere on the ground below the awning.” Id. Euler
complied with his order, but she asserts that because she was farther from the door, “[a]bout one-
tenth as many people were taking fliers” as compared to when she was standing under the
awning. Id. ¶ 4. Riley, who was also standing under the overhang distributing leaflets on March
25, was told by Sgt. Alioto that she “could not stand under the overhang” because it was “private
property.” Riley Decl. ¶ 4. When Riley questioned Sgt. Alioto about whether the strip of
sidewalk between the edge of the overhang and sidewalk curb was private property, Sgt. Alioto
responded that he did not know. Id. Riley moved from under the overhang but complains that
she “had trouble handing out leaflets to many of the patrons.” Id. ¶ 5. She claims that “[m]ore
patrons were accepting my leaflets when I was standing under the overhang.” Id.
By way of background, the Court notes that the following facts are undisputed:
The F Street doors to the arena are recessed 7 feet 2 inches back from the arena’s
main façade, and the recessed area is bounded by large concrete columns. Joint
Supplemental Statement of Facts at ¶ 1; [Dkt. #35].
The concrete awning that overhangs both the recessed entrance on F Street and the
adjacent sidewalk extends over the sidewalk approximately 23 feet 3 inches from
the arena doors. Id.
The edge of the overhang does not correspond to the edge of the sidewalk; there is 9
feet 8 inches of sidewalk remaining between the edge of the 23 foot overhang and
the curb directly in front of the doors. Id.
And on the nights in question, even the curb did not mark the edge of pedestrian
territory. The parties agree that the patrons exiting the arena were not confined to
the sidewalk, and traffic in the street was blocked, as the pedestrians spilled out
onto F Street. Tr. at 26–27. So, the five lane street extended the sidewalk well past
the 9.5 feet it already extended beyond the overhang. Id.
If one turns to the right after exiting the arena on F Street, the sidewalk leads directly to
the entrance of the Gallery Place Metro station at the corner of 7th and F Streets, N.W. See Ex. 2
4
to Light Decl. Therefore, as is visible from the videotape submitted as evidence, a large
percentage of the arena patrons headed in that direction. Ex. A to Touhey Decl.
STANDARD OF REVIEW
Although defendants move to dismiss or, in the alternative, for summary judgment,
summary judgment is the appropriate vehicle here because the Court and the parties rely on
matters outside the pleadings. 1 Summary judgment is appropriate “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). The party seeking summary judgment bears the “initial
responsibility of informing the district court of the basis for its motion, and identifying those
portions of the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue
of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks
omitted). To defeat summary judgment, the non-moving party must “designate specific facts
showing there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted). The
existence of a factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247–48 (1986). A dispute is “genuine” only if a reasonable fact-
finder could find for the non-moving party; a fact is only “material” if it is capable of affecting
the outcome of the litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C.
Cir. 1987). In assessing a party’s motion, “[a]ll underlying facts and inferences are analyzed in
the light most favorable to the non-moving party.” N.S. ex rel. Stein v. District of Columbia, 709
F. Supp. 2d 57, 65 (D.D.C. 2010), citing Anderson, 477 U.S. at 247.
1 Plaintiff has had an opportunity to present evidence outside the pleadings in opposition to
defendants’ motions. See Wiley v. Glassman, 511 F.3d 151, 160 (D.C. Cir. 2007).
5
ANALYSIS
I. Standing
Before addressing the merits of plaintiff’s claims, the Court will address whether plaintiff
has standing to bring the action at all. “A plaintiff’s standing under Article III of the United
States Constitution must be determined first in order to establish the jurisdiction of the Court to
hear the case . . . [and it] focuses on the complaining party to determine whether the litigant is
entitled to have the court decide the merits of the dispute or of particular issues.” George v.
Napolitano, 693 F. Supp. 2d 125, 129 (D.D.C. 2010) (internal quotation marks and citations
omitted). To establish Article III standing, plaintiffs must demonstrate that: “(1) [they have]
suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the
defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed
by a favorable decision.” Id. at 129–30, quoting Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs., 528 U.S. 167, 180–81 (2000). “Lack of standing is a defect in subject matter
jurisdiction.” Id. at 128–29, citing Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987).
Defendants argued in their papers that plaintiff lacks standing to bring this lawsuit
because it has only alleged a hypothetical future injury. WSE’s Opp. to Mot. Prelim. Inj. at 7;
D.C.’s Am. Mot. to Dismiss at 6–7. They contend that plaintiff can only speculate as to whether
defendants would similarly restrict their right to protest at a future event. D.C.’s Mem. at 7. But
it is agreed that the Ringling Bros. circus is scheduled to return to the District next year from
March 15 to March 18, 2012. WSE’s Opp. to Mot. Prelim. Inj. at 2; Touhey Decl. ¶ 4. And
plaintiff maintains that the alleged injury is more than hypothetical because DARTT experienced
6
similar restrictions when it leafleted at the circus for the past three years, see Ortberg Decl. ¶ 4
(“In 2010 … we were told by MPD that we could not be under the overhang area”) and the
organization “definitely plans to do more protests … the next time the circus comes to town,” id.
¶ 9; Compl. ¶ 30. Defendant District of Columbia essentially conceded plaintiff’s standing at the
hearing. Tr. at 18–19, 50–51. Given the repetitive nature of the events that gave rise to this
lawsuit, the Court will assume for purposes of this motion that plaintiff has demonstrated
standing and will proceed to the merits of the case.
II. First Amendment Framework
The First Amendment to the U.S. Constitution provides that “Congress shall make no law
. . . abridging the freedom of speech.” U.S. Const. amend. I. The Supreme Court has determined
that this restriction applies not only to Congress but also to municipal governments. Lovell v.
City of Griffin, 303 U.S. 444, 450 (1938). However, a city government “may sometimes curtail
speech when necessary to advance a significant and legitimate state interest.” Members of the
City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984), citing Schenck v.
United States, 249 U.S. 47, 52 (1919).
The D.C. Circuit has instructed courts in this district to follow a three step analysis when
assessing a First Amendment claim: “[F]irst, determining whether the First Amendment protects
the speech at issue, [second,] identifying the nature of the forum, and [third,] 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 Court will follow this approach to evaluate plaintiff’s claims
in this case.
7
A. Plaintiff’s Members Were Engaged in Constitutionally Protected Speech
Regarding the first step of the analysis, the parties do not dispute that plaintiff’s leafleting
activity is constitutionally protected speech. See Schenck v. Pro-Choice Network of W. N.Y., 519
U.S. 357, 358 (1997) (“Leafleting and commenting on matters of public concern are classic
forms of speech that lie at the heart of the First Amendment ….”).
B. The Sidewalk Was a Public Forum
The second step is to determine the nature of the forum where the constitutionally
protected activity occurred. The Supreme Court has recognized sidewalks as “quintessential
public forums,” International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 696
(1992), that “occupy a privileged position in the hierarchy of First Amendment jurisprudence,”
White House Vigil for the ERA Committee v. Clark, 746 F.2d 1518, 1526–27 (D.C. Cir. 1984). A
sidewalk is generally presumed to be a public forum because, similar to streets and parks, it has
historically served as a setting for free speech. See Henderson v. Lujan, 964 F.2d 1179, 1182
(D.C. Cir. 1992). “[T]he location and purpose of a publicly owned sidewalk is critical to
determining whether such a sidewalk constitutes a public forum.” U.S. v. Kokinda, 497 U.S.
720, 728–29 (1990).
Neither party in this case contends that the sidewalk on either side of F Street is anything
but a public forum. But, the record reflects that Verizon Center employees informed Sgt. Alito
that the area under the overhang was private property, and that he communicated that
understanding to plaintiff’s members when he directed them to stand further from the doors.
Euler ¶ 3; Riley ¶ 4. At the preliminary injunction stage, WSE did not retreat from that position,
and it also argued that because the seven foot recessed area directly outside the arena doors (and
8
under the first portion of the concrete overhang) is part of the Verizon Center leasehold, at least
that much constitutes private property. WSE’s Opp. to Mot. Prelim. Inj. at 5. WSE
characterized this area just outside the doors as “clearly set back from the main façade of the
building[,] . . . obviously not part of the thoroughfare sidewalk[,]” and “not a seamless
component of the urban grid.” Id. But the record does not clearly indicate that this was where
all of the protesters were located when they were directed to move, and, in any event, they were
not simply instructed to move out of the recessed entrance – they were told they could not stand
anywhere under the overhang, the majority of which is public property. See Compl. ¶ 11; Riley
Decl. ¶ 2; Euler Decl. ¶ 3.
Later, in its memorandum in support of its motion for summary judgment, WSE changed
tactics and took the position that the Court need not resolve the question of whether any portion
of the area under the canopy was private or public property because “‘the regulation would be a
permissible restriction on speech even in [public] forums.’” WSE’s Mem. at 6, quoting Initiative
& Referendum Inst. v. U.S. Postal Serv., 417 F.3d 1299, 1306 (D.C. Cir. 2004). The District
maintained that the portion of the sidewalk under the overhang was private and that asking
plaintiff’s members to move onto public property was reasonable. See D.C.’s Am. Mot to
Dismiss at 9–10, 14.
Although the Court declined to resolve the legal status of the sidewalk at the preliminary
injunction stage, it concludes here that the entire area under the canopy – from which DARTT
members were undeniably ordered to move – is a public forum. A review of the photographs
and videotapes submitted in evidence makes it clear that there is absolutely no material
differentiation between the portions of the sidewalk that are shaded or not shaded by the
overhang, or between the recessed and non-recessed portions of the sidewalk. Even though the
9
paving material changes in the recessed portion, there is no break in the flow of pedestrian traffic
and the Verizon Center-owned strip is seamlessly connected to the publicly owned portion of the
sidewalk. See United States v. Grace, 461 U.S. 171, 180 (1981) (holding that private sidewalk
on the outer boundaries of government property was indistinguishable from public sidewalks and
therefore qualified as a public forum). Perhaps this is why defendant WSE essentially agreed at
oral argument that the law applicable to a public forum is the law applicable in this case. Tr. at
29.
In sum, DARTT members were not on a private sidewalk or driveway. They did not
ignore signs advising them that they were on private property, and they did not have to navigate
any sort of barrier or separation to get from the sidewalk to where they were standing. They
were leafleting on a city street, at the entrance to an arena that is open to the general public.
Even if the Court accepts as true WSE’s uncontested statement that the recessed strip directly
outside of the arena doors belongs to the Verizon Center under the lease agreement, there is no
meaningful demarcation of where the Verizon Center’s property ends and public property begins
such that the DARTT protesters or anyone else would have been aware of the difference. This is
particularly true when the sidewalk is packed with pedestrians. Thus, the law applicable to a
traditional public forum applies here.
C. The Restriction Did Not Infringe Upon Plaintiff’s Constitutional Rights
The third step in the First Amendment analysis is to assess whether directing the DARTT
members to stand beyond the edge of the overhang was permissible under the First Amendment.
In a public forum, such as the sidewalk in this case, “the government’s ability to permissibly
restrict expressive conduct is very limited: the government may enforce reasonable time, place
and manner restrictions as long as the restrictions ‘are content-neutral, are narrowly tailored to
10
serve a significant government interest, and leave open ample channels of communication.’”
Grace, 461 U.S. at 17, quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37,
45 (1983); accord Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989); Cmty. for Creative
Non-Violence v. Kerrigan, 865 F.2d 382, 390 (D.C. Cir. 1989); A.N.S.W.E.R. Coal. v.
Kempthorne, 537 F. Supp. 2d 183, 194 (D.D.C. 2008). 2
The record indicates that the protesters were directed to move away from the entrance
doors while circus patrons – including many children – were leaving the arena en masse, and that
they resumed their activities from a point about twenty feet away from the door. The defendants
submit that this directive meets the three necessary criteria: that the order constituted a
reasonable time, place, and manner restriction that served the government’s interest in ensuring
the safety of pedestrians, while it also permitted the multi-faceted protest to continue unabated
and the message to be delivered.
It is important to emphasize that there is no evidence in the case suggesting that the
instructions plaintiff’s members received had anything to do with what they had to say. The
parties agreed at oral argument that the restriction at issue in this case was content-neutral. Tr. at
39–40; see also Defending Animal Rights Today and Tomorrow, 2011 WL 2020788, at *3 n. 3
(noting that the record was devoid of any evidence suggesting that the restrictions on leafleting
were related to content of the fliers). Content-neutral regulations are subject to what has been
characterized as intermediate scrutiny analysis. Emergency Coal. to Defend Educ. Travel v. U.S.
Dep’t of Treasury, 545 F.3d 4, 12 (D.C. Cir. 2008), citing United States v. O’Brien, 391 U.S.
2 At oral argument, counsel for the District took the position that the Court need only
determine whether the officer’s order was reasonable based on the circumstances. Tr. at 19–20;
see also Supplemental Mem. at 1 [Dkt. # 34]. But reasonableness is only part of the test, and
none of the cases that the District has presented to the Court support counsel’s formulation.
11
367, 377 (1968). The Court will therefore consider whether the regulation was narrowly tailored
to achieve a substantial government interest, and whether it leaves open ample alternative
channels of communication. Ward, 491 U.S. at 791. 3
1. Narrowly Tailored
Was the restriction narrowly tailored to achieve a substantial government interest? 4 The
D.C. Circuit has instructed that a content-neutral time, place, or manner restriction is narrowly
tailored “‘so long as the . . . regulation promotes a substantial government interest that would be
achieved less effectively absent the regulation.’” Boardley v. U.S. Dep’t of Interior, 615 F.3d
508, 519 (D.C. Cir. 2010), quoting Ward, 491 U.S. at 799. “But while the regulation ‘need not
be the least restrictive or least intrusive means,’ the regulation may not ‘burden substantially
more speech than is necessary’ to achieve the government’s substantial interests.” Id., quoting
Ward, 491 U.S. at 799.
3 Plaintiff asks the Court to apply a “somewhat” more stringent test from Madsen v.
Women’s Health Ctr., Inc., 512 U.S. 753 (1994) instead. That case involved the constitutionality
of a thirty-six-foot fixed buffer zone around an abortion clinic, which required protesters at an
abortion clinic to move to the other side of the street. Id. at 757–60. The Court explained that
because the plaintiffs in that case were challenging a court ordered injunction, as opposed to
generally applicable ordinance, the normal time, place, and manner analysis was not “sufficiently
rigorous.” Id. at 765. Instead, the Court applied the test of whether the regulation “burden[ed]
no more speech than necessary to serve a governmental interest.” Id. Plaintiff contends that the
directive issued by the security personnel on the scene in this case is more like an injunction than
a local ordinance, and it cites McTernan v. City of York, 564 F.3d 636, 654 (3rd Cir. 2009),
where the Third Circuit used the Madsen test to evaluate the constitutionality of an oral police
directive. Pl.’s Opp. to D.C.’s Am. Mot. to Dismiss at 8. The Court need not resolve the issue of
whether the Madsen test should apply in this instance because, even if it did, the Court would
find that no constitutional violation occurred. Also, despite the position plaintiff advanced in its
written oppositions, and the language in Madsen suggesting that an injunction may not burden
more speech than necessary, 512 U.S. at 765, plaintiff agreed at the hearing that the restriction
need not be the least restrictive alternative, as long as it is in the “zone of constitutionality,” Tr.
at 40. This is consistent with the law in this Circuit.
4 Other courts use the terms “substantial governmental interest” and “significant
government interest” interchangeably. See, e.g., Ward, 491 U.S. at 781; Clark, 468 U.S. at 288.
12
a. The Government Had a Substantial Interest in Ensuring Pedestrian Safety and
the Orderly Flow of Traffic After the Circus
Defendants maintain that the government had a substantial interest in “ensuring
pedestrian safety and orderly traffic flow outside of the Verizon Center at the conclusion of the
Circus.” WSE’s Mem. at 9. The Supreme Court has determined that the government’s interest
in “avoiding congestion and maintaining the orderly movement of [ ] patrons” is “sufficient to
satisfy the requirement that a place or manner restriction must serve a substantial state interest.”
Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 652, 654 (1981); see also
Schenck, 519 U.S. at 376 (finding that the government has a valid interest in “promoting the free
flow of traffic on streets and sidewalks”).
The record shows that more than 9,000 people attended the circus on each of the nights in
question, Touhey Decl. ¶ 3, that they exited together at the conclusion of the event, id. ¶ 10, and
that the substantial majority of the patrons departed through the bank of doors on F Street. Tr. at
34. At the hearing, the Court reviewed footage from surveillance video from the nights in
question and observed a large crowd of people streaming out of the Verizon Center and at least
one DARTT protester handing out materials near the door. Tr. at 5, 7, 14; Ex. A to Touhey Decl.
The video reflects that she was originally positioned in the middle of crowd such that exiting
patrons found it necessary to walk around her. Ex. A to Touhey Decl.
Plaintiff argues that the government must establish that the leafleters actually impeded
the flow of people and that there was a demonstrated need for the restriction before it was
imposed. Pl.’s Opp. D.C.’s Am. Mot. to Dismiss at 11, quoting Kuba v. Marine World Joint
Powers Auth., No. S-05-0794 WBS JFM, 2006 U.S. Dist. LEXIS 33566, at *15–16 (E.D. Cal.
May 17, 2006). But there is no such prerequisite; the Supreme Court has explained that simply
13
reducing a risk can suffice as a governmental interest. Clark v. Cmty. for Creative Non-Violence,
468 U.S. 288, 296–97 (1984).
In Clark, the Court addressed a regulation that prohibited individuals from sleeping in
parks throughout the District of Columbia. In discussing the threat addressed by the rule, the
Court noted that “it is evident from our cases that the validity of this regulation need not be
judged solely by reference to the demonstration at hand.” Id. Instead, it was completely
appropriate for the Court to consider how “[a]bsent the prohibition on sleeping, there would be
other groups who would demand permission to deliver an asserted message by camping in
Lafayette Park.” Id. at 297. In other words, the Court considered the validity of a regulation
based on the potential for harm, not just harm actually caused. Id. (“If the Government has a
legitimate interest in ensuring that the National Parks are adequately protected … and if the
parks would be more exposed to harm without the sleeping prohibition than with it, the ban is
safe from invalidation under the First Amendment …. ”) (emphasis added). Given the
substantial safety risks involved if the flow of exiting patrons was impeded, the Court agrees
with defendants that the government had a significant interest in promoting public safety by
ensuring the orderly traffic flow of pedestrians at the conclusion of the circus. See Heffron, 452
U.S. at 650.
b. The Restriction Was Narrowly Tailored
The narrow tailoring inquiry requires that there be a “real nexus between the challenged
regulation and the significant governmental interest sought to be served by the regulation.”
Kerrigan, 865 F.2d at 388. “It is not enough … that a governmental interest is significant;
rather, it must be shown that a reasonable regulation is narrowly tailored to substantially serve a
significant government interest.” A.N.S.W.E.R. Coal., 537 F. Supp. 2d at 195, quoting Cmty. for
14
Creative Non-Violence, 468 U.S. at 388. According to defendants, the restriction was narrowly
tailored because it did not completely prevent plaintiff’s members from engaging in protected
speech. D.C.’s Am. Mot. to Dismiss at 13. Rather, it only required them to move “a few feet
away” and did not stop the protesters “from reaching [their] intended audience.” Id.Plaintiff’s members have complained that the distance they were asked to move was too
great, 5 and they assert that they were unable to reach a sufficient number of the departing patrons
after they complied with the order to move to the edge of the canopy. Euler Decl. ¶ 4; Riley
Decl. ¶ 3. But the objective evidence – the surveillance footage reviewed by the Court –
undermines this contention. The video shows that the people who flowed out of the doors into
the area shaded by the canopy continued to move briskly out from under it; they either continued
walking straight forward onto the uncovered sidewalk and street, or they turned right and
proceded up the uncovered sidewalk towards the Metro at the corner of 7th and F Streets. Ex. A
to Touhey Decl. Protesters standing at any point between the western edge of the overhang and
the Metro were smack in the middle of pedestrian traffic that turned right after exiting the arena.
And protesters who stood between the southern edge of the overhang and F Street were standing
in the midst of the pedestrians who walked straight. This is especially true given that F Street
was blocked to traffic and the pedestrian area extended all the way across the street to the
opposite sidewalk. Tr. at 26–27. The fact is that DARTT’s members were not relegated to some
5 Robin Euler asserts that she was forced to move “really far” from her original position,
which she estimated was approximately four feet from where the awning ended. Euler Decl. ¶¶
3–4. She repositioned herself at a spot on the sidewalk that was not underneath the awning. But
based on the measurements to which the parties have agreed, if Euler was originally standing
four feet from the edge of the awning, and the sidewalk between the end of the awning and the
street was 9 feet wide, see Joint Supplemental Statement of Facts ¶ 1, then Euler was forced to
move, at the least, only four feet further from the door, and at the most – if she went all the way
to the curb – only 13 feet. Thus, the distances involved in this case were hardly substantial.
15
distant location at the edge of the action, trying to flag down members of the crowd after they
had already dispersed; they were standing in a sea of pedestrians even at their new location.
Plaintiff characterizes the restriction as an impermissible “20 foot buffer zone,” Tr. at 37,
and it points the Court to cases such as Madsen, 512 U.S. at 753, where the protesters were
physically separated from the people they were trying to persuade by a space they could not
enter. See also Kuba v. 1-A Agr. Ass’n, 387 F.3d 850, 863 (9th Cir. 2004) (rule stationing
leaftleters 200 feet from the fair entrance was overbroad; “[c]ordoning protesters off in a free
expression zone … far from encourages interaction with them, [and] is more likely to give the
impression to passersby that these people are to be avoided.”). But here, both the metaphor and
the cases are inapposite. Plaintiff’s members were not separated from their intended audience by
20 feet – they were told to stand 20 feet from the door. As the video shows, the protesters were
fully integrated into the crowd of circus-goers who, while emptying the Verizon Center, filled
not only the area under the overhang, but the entire sidewalk. Ex. A to Touhey Decl; Tr. at 5, 7,
14.
Plaintiff next argues that the restriction was not narrowly tailored because it resulted in
the distribution of fewer leaflets than the protesters would have been able to place in patrons’
hands had they remained in their original location under the canopy. According to Robin Euler,
in her new spot, “people would have to go out of their way to get a flier,” and “about one-tenth
as many people” took them. Euler Decl. ¶ 4. Another DARTT member, Jennifer Riley, agreed
that “[b]y not being able to be on the portion of the sidewalk under the overhang, I had trouble
handing out leaflets to many of the patrons.” Riley Decl. ¶ 5. She states that “[m]ore patrons
were accepting my leaflets when I was standing under the overhang.” Id.16
Even if the Court resolves all factual disputes in plaintiff’s favor and accepts these
somewhat subjective complaints at face value, 6 the declarations do not give rise to a
constitutional violation. Although leafleting is a pure form of protected speech that occupies a
valued place in American history, see Jamison v. Texas, 318 U.S. 413, 416 (1943), plaintiff does
not have an unlimited constitutional right to leaflet anywhere or at any time it decides to do so,
Cornelius v. NAACP Legal Def. and Educ. Fund., Inc., 473 U.S. 788, 799–800 (1985) (“Nothing
in the Constitution requires the Government freely to grant access to all who wish to exercise
their right to free speech on every type of property without regard to the nature of the property or
to the disruption that might be caused by the speaker’s activities.”); Cox v. Louisiana, 379 U.S.
536, 554 (1965) (collecting Supreme Court cases to show the long standing principle that “[t]he
rights of free speech and assembly, while fundamental in our democratic society, still do not
mean that everyone with opinions or beliefs to express may address a group at any public place
and at any time”). Plaintiff’s members did not necessarily have a right to leaflet at the most
advantageous spot or even a “more” advantageous spot than at the edge of overhang. Indeed,
plaintiff acknowledges in its complaint that “[m]embers of DARTT had every right to leaflet
anywhere they chose on the sidewalk, provided that they were not blocking egress or ingress or
incommoding passersby [sic]”), Compl. ¶ 19, and at oral argument, counsel for the plaintiff
agreed that its members had no right to force its pamphlets on those who did not wish to receive
them. Tr. at 34.
Plaintiff cites a number of cases in arguing that the restriction burdened more speech than
necessary. See Turner v. Plafond, No. C 09-00683 MHP, 2011 U.S. Dist. LEXIS 1718, at *58
6 The characterization of the events in the declarations does not create a genuine issue of
material fact for trial given the undisputed video evidence that shows the protesters were able to
press their leaflets on a number of the patrons. Ex. A to Touhey Decl; Tr. at 5–6.
17
(N.D. Cal. Jan. 7, 2011); Marine World, 2006 U.S. Dist. LEXIS 33566, at *1; Halfpap v. City of
W. Palm Beach, No. 05-80900-CIV, 2006 U.S. Dist. LEXIS 97428, at *69–70 (S.D. Fla. Apr. 12,
2006). But all of these cases dealt with total bans on expressive activity that bear no relationship
to what took place. Here, the protesters were forced to move only a few feet away from where
they originally stood, and there was nothing separating them from the circus attendees. They
continued to distribute their leaflets in their new location. Plaintiff suggests that defendants
could have chosen a less restrictive means of achieving its objectives, such as limiting the
number of protesters under the canopy to one or two individuals. Pl.’s Opp. D.C.’s Am. Mot. to
Dismiss at 9. But as the Supreme Court has observed, “when a content-neutral regulation does
not entirely foreclose any means of communication, it may satisfy the tailoring requirement even
though it is not the least restrictive or least intrusive means of serving the statutory goal.” Hill v.
Colorado, 530 U.S. 703, 726 (2000); see also Am. Library Ass’n v. Reno, 33 F.3d 78, 88 (D.C.
Cir. 1994). In light of those precedents, the Court concludes that the direction at issue was
sufficiently narrowly tailored to further the significant government interest in ensuring pedestrian
safety.
2. Ample Alternative Channels of Communication
Most important, even if DARTT members in fact reached a smaller percentage of the
crowd with their written literature after they moved out from under the overhang, they
successfully communicated their message audibly with a megaphone and visually with signs and
a giant, graphic video projection on the side of the building. Alioto Decl. ¶ 8; Ex. A to Touhey
18
Decl. 7 Thus, the Court finds that the restriction left open multiple effective alternative channels
of communication. ISKCON of Potomac, Inc. v. Kennedy, 61 F.3d 949, 958 (D.C. Cir. 1995). 8
CONCLUSION
Given the undisputed facts, the Court agrees with defendants that it is difficult to find
support for plaintiff’s argument that its members’ constitutional rights under the First
Amendment were burdened at all, much less that they were burdened more than necessary. The
protesters had direct access to a large crowd of circus-goers as they left the Verizon Center, and
they were not separated from them by any kind of barricade or buffer zone. The protesters were
simply moved to another area of the public sidewalk that was well within the line of sight and
hearing of the patrons leaving the Verizon Center. They continued to leaflet and communicated
their message of protest by shouting into a megaphone, holding signs, and projecting images
onto the side of the building. Because the Court finds that these circumstances do not amount to
an infringement of plaintiff’s constitutional rights, it does not need to reach the issues of
7 Plaintiff takes great pride in this accomplishment on its website and it was noted
elsewhere on the internet. See DARTT, http://dartt-online.org (last visited Oct. 19, 2011)
(providing a link to youtube.com under “Video links” that demonstrates their protests) and
http://www.youtube.com/watch?v=qRf1cBRcLmw (last visited Oct. 19, 2011) (“On the 24th of
March, animal rights activists projected horrific images of the abuse of animals by circuses … on
the wall of the Verizon Center … Now ain’t that something … the circus is performing here at
the Verizon Center and here on the wall of the Verizon Center is being shown a video … on the
side of their own building! … If we can do it to the FBI, we can do it to you … The video
continues to run … no trouble from security …. ”); see also DC Direct Action News,
http://dcdirectactionnews.wordpress.com/2011/03/26/video-of-circus-animal-abuse-projected-
on-verizon-center-during-circus/ (last visited Oct. 19, 2011) (“Huge crowds then streamed out,
and while many walked right by the huge video presentation, others found the footage too
compelling to ignore, so they stayed to watch.”)
8 The Court could treat this element as conceded because plaintiff does not address it in its
papers. Bryant v. PEPCO, 730 F. Supp. 2d 25, 29 (D.D.C. 2010).
19
municipal liability or state action. Since plaintiff’s motion for leave to amend [Dkt. #26] sought
leave to add allegations related only to these issues, it will be denied as moot.
Accordingly, the Court will grant defendants’ motions to dismiss the complaint or in the
alternative, for summary judgment [Dkt. #17 and #19].9 This case will be dismissed with
prejudice. A separate order will issue.
AMY BERMAN JACKSON
United States District Judge
DATE: October 20, 2011
9 The District originally filed a motion to dismiss, or in the alternative, for summary
judgment [Dkt. #16] but later filed an amended motion. The original motion will be denied as
moot.
20