American Freedom Defense Init v. WMATA , 901 F.3d 356 ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 20, 2017 Decided August 17, 2018
No. 17-7059
AMERICAN FREEDOM DEFENSE INITIATIVE, ET AL.,
APPELLANTS
v.
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY,
WMATA AND PAUL J. WIEDEFELD, IN HIS OFFICIAL CAPACITY
AS GENERAL MANAGER FOR WMATA,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cv-01038)
Robert J. Muise argued the cause for appellants. With him
on the briefs was David Yerushalmi.
Donald B. Verrilli, Jr. argued the cause for appellees.
With him on the briefs were Chad I. Golder, Jonathan S.
Meltzer, Patricia Y. Lee, Gerard J. Stief, and Rex S. Heinke.
Before: HENDERSON and SRINIVASAN, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
GINSBURG.
2
Dissenting opinion filed by Circuit Judge HENDERSON.
GINSBURG, Senior Circuit Judge: The American Freedom
Defense Initiative (AFDI), Pamela Geller, and Robert
Spencer, 1 sought to run advertisements in Metrorail stations
and on Metrobuses in the Washington, D.C. area. The
Washington Metropolitan Area Transit Authority (WMATA)
refused the advertisements because they violated a then-
recently adopted moratorium on issue-oriented advertising in
the Metro system. AFDI sued both WMATA and its then-
general manager, Jack Requa, 2 claiming WMATA’s refusal to
display its advertisements violated its rights to free speech and
equal protection under the First and Fourteenth Amendments
to the Constitution of the United States. The district court
granted summary judgment on behalf of WMATA, which we
affirm in part and reverse in part.
I. Background
WMATA, which was created by an interstate compact
among the District of Columbia, Maryland, and Virginia,
operates the Metrorail and Metrobus services that provide
Washington-area residents with the majority of their public
transit options. D.C. CODE § 9-1107.01. Relevant to this
litigation, WMATA permits advertising throughout the Metro
system; specifically, Metrobuses display advertisements on
their exteriors, and the Metrorail stations contain advertising
“dioramas.”
1
For the sake of brevity, we refer to the plaintiffs collectively as
AFDI.
2
Requa is no longer WMATA’s general manager; Paul Wiedefeld,
the new general manager, has taken his place as a defendant.
3
AFDI describes itself as “a nonprofit organization ...
dedicated to freedom of speech, freedom of conscience,
freedom of religion, and individual rights.” It “promotes its
objectives by ... purchasing advertising space on transit
authority property ... to express its message on current events
and public issues, including issues involving the suppression of
free speech by Sharia-adherent Islamists and complicit
government officials.” It was in furtherance of this mission
that AFDI wanted to advertise in the Metro system in May
2015.
AFDI submitted two advertisements, identical in content,
one to be displayed on the exteriors of Metrobuses and the other
meant for Metrorail station dioramas. The advertisements
depict a turbaned, bearded, sword-wielding man who is
apparently meant to be the Prophet Muhammad. A speech
bubble emerging from the man’s mouth contains the sentence
“YOU CAN’T DRAW ME!” Below the man is a disembodied
hand, paler in color, holding either a pen or a pencil pressed to
paper. From the hand comes a speech bubble reading
“THAT’S WHY I DRAW YOU.” The phrase “SUPPORT
FREE SPEECH” appears at the top of the advertisements.
According to AFDI’s complaint, the advertisements “make the
point that the First Amendment will not yield to Sharia-
adherent Islamists who want to enforce so-called blasphemy
laws here in the United States, whether through threats of
violence or through the actions of complicit government
officials.”
When WMATA began accepting advertising in the 1970s,
it accepted issue-oriented advertisements, including political,
religious, and other advocacy. According to the uncontested
testimony of Lynn Bowersox, WMATA’s Assistant General
Manager for Customer Service, Communications, and
Marketing, WMATA had dealt with controversies surrounding
4
issue-oriented advertisements for much of the 1980s and
1990s. In the early 2010s, however, the controversies grew,
with monthly complaints over advertisements that disrespected
President Obama, depicted animal cruelty, advocated the use
of condoms to prevent sexually-transmitted diseases, and
supported the legalization of marijuana. By the time AFDI
submitted the advertisements at issue in this case, WMATA’s
leadership had spent “nearly 5 years of looking at” the question
whether to permit issue-oriented advertisements.
AFDI submitted its advertisements in May 2015. Not long
thereafter, Ms. Bowersox directed her staff to prepare a
memorandum detailing WMATA’s history with AFDI.
Additionally, Mr. Mort Downey, then Chairman of WMATA’s
Board, sent Ms. Bowersox an email message to which he
attached an article about a recent shooting in Garland, Texas
linked to the advertisements AFDI wanted to run on the Metro
system; he asked Ms. Bowersox to be prepared to discuss it at
the May meeting of the Board. Ms. Bowersox also prepared
for the executive session of the board meeting a memorandum
advocating the closure of WMATA’s advertising space to
issue-oriented advertising. In her deposition, Ms. Bowersox
allowed as how AFDI’s submission was “the straw that broke
the camel’s back” and prompted her to recommend WMATA
temporarily refuse to run issue-oriented advertisements.
The consensus among members of the Board at the
executive session was to accept Ms. Bowersox’s
recommendation of a temporary moratorium on issue-oriented
advertisements, which by its terms “close[d] WMATA’s
advertising space to any and all issue-oriented advertising,
including but not limited to, political, religious and advocacy
advertising until the end of the calendar year.” No member of
the Board mentioned AFDI’s advertisements; the only specific
advertisements mentioned were either “talking about open
5
skies agreements with certain Mid-East countries” or detailing
“animal experimentation practices at some of our national
science institutes.” With the Moratorium in place, WMATA
rejected AFDI’s proposed advertisements.
In July 2015, AFDI sued, claiming WMATA’s “restriction
on [AFDI’s] speech [was] content- and viewpoint-based in
violation of the Free Speech Clause of the First Amendment”
and WMATA’s “true purpose for adopting the [Moratorium]
was to silence the viewpoint expressed by [AFDI’s] speech.”
For the same reasons AFDI claimed WMATA’s actions
deprived it of equal protection under the law, in violation of the
Fourteenth Amendment.
WMATA did not sit idly by during the pendency of this
litigation. In November 2015, it rescinded the Moratorium and
adopted a series of “Guidelines Governing Commercial
Advertising,” the relevant parts of which provide:
9. Advertisements intended to influence members of
the public regarding an issue on which there are varying
opinions are prohibited.
11. Advertisements that support or oppose any political
party or candidate are prohibited.
12. Advertisements that promote or oppose any
religion, religious practice or belief are prohibited.
13. Advertisements that support or oppose an industry
position or industry goal without direct commercial
benefit to the advertiser are prohibited.
AFDI did not amend its complaint to take account of the new
Guidelines; its complaint still challenges only the Moratorium,
6
which is no longer in place. Neither did it resubmit to
WMATA the previously rejected advertisements for
reconsideration under the Guidelines.
The district court granted WMATA’s motion for summary
judgment. AFDI v. WMATA, 245 F. Supp. 3d 205 (D.D.C.
2017). First, the court determined WMATA’s advertising
space was a nonpublic forum once the Moratorium came into
effect. Id. at 210-11. Speech-restrictive actions in a nonpublic
forum must be both viewpoint neutral and reasonable, see
Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106-07
(2001), and the district court concluded WMATA’s restrictions
were both. See WMATA, 245 F. Supp. 3d at 211-13. The
district court also held neither the Moratorium nor the
Guidelines were unconstitutionally vague. Id. at 213-14.
II. Analysis
Because AFDI did not amend its complaint, we face at the
outset a jurisdictional question: Did the repeal of the
Moratorium moot this case? We conclude it did not. Though
the district court did not address mootness, “we have an
independent obligation to assure ourselves of jurisdiction.”
Am. Council of Life Insurers v. D.C. Health Benefit Exch.
Auth., 815 F.3d 17, 19 (D.C. Cir. 2016) (internal quotation
marks omitted).
A. Justiciability
We are acutely aware that “Article III of the Constitution
restricts the federal courts to deciding only actual, ongoing
controversies, and a federal court has no power to render
advisory opinions or decide questions that cannot affect the
rights of litigants in the case before them.” Nat’l Black Police
Ass’n v. Dist. of Columbia, 108 F.3d 346, 349 (D.C. Cir. 1997)
7
(cleaned up). Though a plaintiff’s claim may be justiciable
when filed, “a federal court must refrain from deciding it if
events have so transpired that the decision will neither
presently affect the parties’ rights nor have a more-than-
speculative chance of affecting them in the future.” Initiative
& Referendum Inst. (IRI) v. USPS, 685 F.3d 1066, 1074 (D.C.
Cir. 2012) (internal quotation marks omitted). At first blush,
that is what seems to have happened here. AFDI’s complaint
seeks injunctive and declaratory relief only against the
Moratorium, but the Moratorium was replaced by the
Guidelines in November 2015. There seems little point in
enjoining the enforcement of a moratorium that is no longer in
place.
Here, however, “[t]he intervening event ... is of the
[defendant]’s own doing.” IRI, 685 F.3d at 1074. When this
occurs, we examine whether the defendant’s voluntary
cessation of the challenged action truly renders the case moot.
Id. Generally it does not unless “(1) there is no reasonable
expectation that the alleged violation will recur, and (2) interim
relief or events have completely or irrevocably eradicated the
effects of the alleged violation.” Nat’l Black Police Ass’n, 108
F.3d at 349 (cleaned up).
This, however, is not a mine-run case of voluntary
cessation. WMATA did repeal the challenged Moratorium, but
it replaced the Moratorium with a policy that is fundamentally
similar; the Guidelines are in effect a particularization and
finalization of the temporary Moratorium. It is not quite
correct to say WMATA has ceased the challenged conduct;
instead, WMATA has renewed the challenged conduct in a new
form.
An analogous Supreme Court decision makes clear this
case is not moot. Northeastern Florida Chapter of Associated
8
General Contractors of America (AGC) v. City of Jacksonville,
involved a challenge to a minority-owned business preference
in the Jacksonville purchasing code. 508 U.S. 656, 658 (1993).
Shortly after the Court had granted certiorari, Jacksonville
repealed that portion of its purchasing code and replaced it with
a new ordinance differing only in minor respects. Id. at 660-
61. The Court held the case was not moot: “There [was] no
mere risk that Jacksonville [would] repeat its allegedly
wrongful conduct” for “it [had] already done so.” Id. at 662.
The voluntary cessation exception to mootness is not limited,
however, to cases in which “the selfsame statute will be
[re]enacted”; “if that were the rule, a defendant could moot a
case by repealing the challenged statute and replacing it with
one that differs only in some insignificant respect.” Id. The
new ordinance in AGC “may [have] disadvantage[d] [the
plaintiffs] to a lesser degree than the old one, but ... it
disadvantage[d] them in the same fundamental way.” Id.
Therefore the case was not moot. See also Global Tel*Link v.
FCC, 866 F.3d 397, 413-14 (D.C. Cir. 2017).
So too here. WMATA does not contend the change to the
Guidelines has remedied AFDI’s alleged injury; clearly
AFDI’s proposed advertisements are just as unacceptable to
WMATA under the Guidelines as they were under the
Moratorium; the Moratorium banned issue-oriented
advertisements, and so do the Guidelines. AFDI, in other
words, is still disadvantaged in the same fundamental way.
Indeed, AFDI’s briefs are best read to say it would resubmit its
advertisements but for their certain rejection under the
Guidelines. 3
3
Our dissenting colleague believes the case is moot because the
Guidelines “do not differ[] only in some insignificant respect” from
the Moratorium, Diss. Op. at 7 (quoting AGC, 508 U.S. at 662); the
Guidelines and the Moratorium, in her view, ask “different
questions.” The Moratorium simply asks whether an advertisement
9
One further question remains: Should we decide the
constitutionality of the Moratorium or the constitutionality of
the Guidelines? “A change in the law between a nisi prius and
an appellate decision requires the appellate court to apply the
changed law.” Ziffrin, Inc. v. United States, 318 U.S. 73, 78
(1943). Though the present situation is slightly different, for
the policy here changed prior to rather than after the district
court’s decision, precedent and practicality direct us to deal
with the world as it is now, not as it was when the case was
filed. As for precedent, we note the Supreme Court routinely
considers agency regulations that had superseded the originally
challenged regulation during the course of the litigation. See,
e.g., Cal. Bankers Ass’n v. Shultz, 416 U.S. 21, 53 (1974) (“We,
of course, must examine the statute and the regulations as they
now exist”); Thorpe v. Housing Auth. of Durham, 393 U.S.
268, 281-82 (1969) (noting the “general rule” that “an appellate
court must apply the law in effect at the time it renders its
decision”). 4 As for practicality, we see no advantage to either
is “an issue-oriented ... political, religious, [or] advocacy
advertisement” while the Guidelines ask whether an advertisement
violates Guideline 9, 11, 12, 13, or 14. Id. at 6. To this end, she cites
several cases for the proposition that substantial changes between an
old, repealed law and a new law enacted during the course of
litigation can moot a case.
The changes here, however, were not material to the case at hand.
Both the Moratorium and the Guidelines sought to ban issue-oriented
advertising, in all its forms, from WMATA’s advertising space, the
only difference being the degree of detail in which they do so. That
the Guidelines are more specific does not alter the harm to AFDI;
they “disadvantage [it] ... in the same fundamental way” as did the
Moratorium. AGC, 508 U.S. at 662.
4
In Global Tel*Link this court evaluated the original FCC order,
which had arguably been superseded by the order on reconsideration.
Global Tel*Link, 866 F.3d at 414. There, however, the more recent
10
of the parties in our ruling upon a policy that has no continuing
bite.
B. Merits
Having concluded this case remains justiciable, we move
to the merits. We classify WMATA’s advertising space as a
nonpublic forum and hold WMATA’s restrictions are
viewpoint-neutral; we remand to the district court the question
whether the restrictions are reasonable, which that court should
reexamine in light of Minnesota Voters Alliance v. Mansky,
138 S. Ct. 1876 (2018).
Our review of a district court’s grant of summary judgment
is de novo. Bank of N.Y. Mellon Trust Co. NA v. Henderson,
862 F.3d 29, 32 (D.C. Cir. 2017). Summary judgment should
issue “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). “[T]here is such a
‘genuine issue’ if ‘a reasonable jury could return a verdict for
the nonmoving party.’” Galvin v. Eli Lilly & Co., 488 F.3d
1026, 1031 (D.C. Cir. 2007) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). There are no disputed
facts in this case. The only dispute concerns application of the
law to the agreed facts.
AFDI challenges only Guidelines 9, 11, 12, and 13. We
note at the outset that Guidelines 11 (banning
“[a]dvertisements that support or oppose any political party of
candidate”) and 13 (prohibiting “[a]dvertisements that support
or oppose an industry position or industry goal without any
direct commercial benefit to the advertiser”) are obviously
order was “not before [the court],” id., whereas here the Guidelines
have been put before us by AFDI’s briefs.
11
inapplicable to this litigation; AFDI’s advertisements are not
partisan, and they are not related to any industry. We discuss
Guidelines 9 and 12 in further detail below. 5
1. Forum classification
Our analysis of a restriction on speech on government
property begins with the forum doctrine. IRI, 685 F.3d at 1070.
Under Perry Education Association v. Perry Local Educators’
Association, 460 U.S. 37, 45-46 (1983), a governmentally
controlled forum that could potentially be used for speech may
be a traditional public forum, a designated public forum, or a
nonpublic forum. Traditional public forums — sidewalks,
parks, and the like — are not implicated here. A designated
public forum is “public property which the state has opened for
use by the public as a place for expressive activity.” Id. at 45.
A designated public forum need not remain open
“indefinitely,” but so long as it is open the Government may
put in place only reasonable time, place, and manner
regulations and narrowly drawn content-based prohibitions.
Id. at 45-46. Nonpublic forums are, essentially, other
Government-owned property where some speech is permitted
— for example, an inter-school mail system. Id. at 46. It is
important here to note that “[t]he government does not create a
public forum by ... permitting limited discourse, but only by
intentionally opening a nontraditional forum for public
discourse.” Cornelius v. NAACP Legal Def. & Educ. Fund,
Inc., 473 U.S. 788, 802 (1985). In sum, a designated public
forum is a nontraditional public space the Government has
5
There is some overlap between Guideline 9, which bans
advertisements “intended to influence members of the public
regarding an issue on which there are varying opinions,” and
Guideline 14, which bans advertisements “intended to influence
public policy.” Because AFDI does not challenge Guideline 14,
however, we do not address it here.
12
opened to speech without restriction; a nonpublic forum is a
nontraditional public space the Government has opened to
speech with restrictions. See id.
AFDI and WMATA differ as to how WMATA’s
advertising space fits into the forum doctrine. We need not
resolve this disagreement, however, because another panel of
this circuit recently held the space is a nonpublic forum.
Archdiocese of Washington v. WMATA, No. 17-7171, slip op.
at 9-14 (D.C. Cir. July 31, 2018), and we are bound to follow
that decision. LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C.
Cir. 1996) (en banc).
The status of Metro advertising as a nonpublic forum
renders a large part of AFDI’s brief irrelevant, including its
claim to special protection of its speech based upon Matal v.
Tam, 137 S. Ct. 1744 (2017) (holding a ban on federal
registration of disparaging trademarks violated the First
Amendment). To that end, it quotes the anodyne statement that
“[s]peech may not be banned on the ground that it expresses
ideas that offend.” Id. at 1751. The relevance of a case in
which the Supreme Court did not engage in a forum analysis at
all escapes us; Matal did not discuss forum doctrine in any
depth because Matal dealt not with the Government permitting
speech on government property but with government
protection of speech from commercial infringement. Apart
from the quoted statement cited above, all AFDI’s references
to Matal invoke Justice Kennedy’s concurrence, which of
course did not speak for the Court.
AFDI also spills much ink on characterizing WMATA’s
restrictions as a “prior restraint.” Accepting AFDI’s
characterization arguendo, it is of no moment: A nonpublic
forum is by definition a place where the Government may
disallow certain types of speech.
13
Finally, AFDI complains WMATA’s restrictions are
content-based, as indeed they are. Content-based restrictions,
however, are permissible in a nonpublic forum: “[A]ccess to a
nonpublic forum can be based upon subject matter and speaker
identity so long as the distinctions drawn are reasonable in light
of the purpose served by the forum and are viewpoint neutral.”
Cornelius, 473 U.S. at 806.
2. Viewpoint neutrality and reasonableness
We move, then, to AFDI’s arguments concerning
viewpoint neutrality and reasonableness. We conclude the
Guideline properly before us is viewpoint-neutral, but we
remand the case to the district court to reconsider the question
of reasonableness.
A. Viewpoint neutrality
Though its briefs are confused, from what we can discern
AFDI offers three separate arguments to support its claim that
the Guidelines are not viewpoint-neutral. First, it brings what
amounts to an as-applied challenge, contending that, even if the
Guidelines are facially neutral, adopting the Moratorium and
the Guidelines bespeak an intent to discriminate specifically
against the views of AFDI. Second, it contends the ban on
issue-oriented advertising is facially viewpoint-discriminatory.
Third, it gestures at an argument that Guideline 12, which bans
“[a]dvertisements that promote or oppose any religion,
religious practice or belief,” effectively closes the forum to its
antireligious speech, which it argues must be permitted under
various Supreme Court cases. We find merit in none of the
arguments.
14
i. As-applied challenge
The parties point to no case in the Supreme Court or in this
circuit in which a change in the status of a forum was
challenged on the ground that it was intended sub silentio to
suppress the views of a particular party. Nevertheless, we
assume such a claim is viable, as exemplified by Ridley v.
Massachusetts Bay Transportation Authority, 390 F.3d 65 (1st
Cir. 2004), which dealt with a similar claim of seeming
viewpoint neutrality masking insidious bias.
At the outset, we note that as a general rule “[t]he
government is free to change the nature of any nontraditional
forum as it wishes.” Ridley, 390 F.3d at 77. But the rule is not
without an exception: For the Government to change the nature
of a forum in order to deny access to a particular speaker or
point of view surely would violate the First Amendment. Here,
if WMATA adopted the Moratorium and subsequent
Guidelines with the intent of suppressing the views of AFDI,
then we would hold the Guidelines unconstitutional as applied
to AFDI. Therefore, “[t]he [WMATA]’s mere recitation of
viewpoint-neutral rationales (or the presentation of a
viewpoint-neutral guideline) for its decisions to reject the
[advertisements at issue] does not immunize those decisions
from scrutiny.” Id. at 86.
The question is how to identify the Government’s intent.
Of course, direct evidence of viewpoint discrimination would
be highly probative, but “the government rarely flatly admits it
is engaging in viewpoint discrimination.” Id. That leaves two
types of evidence. The first is retrospective, that is, evidence
from before the decision was taken to close the forum insofar
as it may show whether the Government acted in order to
suppress a disfavored view. The second is prospective, namely
evidence of what happened once the forum was closed. AFDI
15
focuses its argument upon what happened in the lead up to
closing the forum, whilst WMATA focuses its argument upon
the lack of evidence of viewpoint discrimination once access to
the forum was restricted.
Retrospective evidence begins with “statements by
government officials on the reasons for” closing the forum. Id.
at 87. Assuming those statements provide a legitimate reason,
the plaintiff may attempt to show “the viewpoint-neutral
ground is not actually served very well by the specific
governmental action at issue ... in other words, the fit between
means and ends is loose or nonexistent.” Id.; see also United
States v. Griefen, 200 F.3d 1256, 1265 (9th Cir. 2000) (“Should
it appear ... that the order [closing the forum] was not narrowly
tailored to the realities of the situation ... the federal courts are
capable of taking prompt and measurably appropriate action”).
If, for example, the Government had said it wished to close a
forum to political speech but passed regulations banning only
anti-abortion messaging, then its action would undermine its
claim of viewpoint neutrality.
Other, less probative types of retrospective evidence might
also play a role. We are guided here by the test the Supreme
Court has used to unearth tacit discrimination on the basis of
race. “The historical background of the decision” is relevant;
if the Government had repeatedly been found to have engaged
in viewpoint discrimination, especially against the plaintiff,
then courts should look skeptically at its seemingly viewpoint-
neutral rationale. Vill. of Arlington Heights v. Metro. Hous.
Dev. Corp., 429 U.S. 252, 267 (1977). “The specific sequence
of events leading up to the challenged decision,” such as
“[d]epartures from the normal procedural sequence” and
“[s]ubstantive departures” from “the factors usually considered
important” may also be relevant. Id.
16
In terms of prospective evidence, most relevant is a lack of
evenhandedness in the Government’s actions after the forum is
closed. “[W]here the government states that it rejects
something because of a certain characteristic, but other things
possessing the same characteristic are accepted, this sort of
underinclusiveness raises a suspicion that the stated neutral
ground for action is meant to shield an impermissible motive.”
Ridley, 390 F.3d at 87 (footnote omitted); see also, e.g.,
Pittsburgh League of Young Voters Educ. Fund v. Port Auth.
of Allegheny Cty., 653 F.3d 290, 297-98 (3d Cir. 2011)
(accepting a “comparator analysis” between the plaintiff’s
rejected advertisement and several similar accepted
advertisements as evidence of viewpoint discrimination). Also
relevant is any post-hoc rationalization for the change in the
forum; if the Government proffers one reason when closing the
forum but another when it later defends the closing, then that
in itself is evidence of pretext. Cf. Coleman v. Ann Arbor
Transp. Auth., 947 F. Supp. 2d 777, 788 (E.D. Mich. 2013)
(noting in dicta that “post-hoc rationalization” could be
evidence of viewpoint discrimination).
Applying this framework to AFDI’s claims, it is clear they
fall short, indeed, so far short that no reasonable jury could
uphold them. First, AFDI has provided no prospective
evidence whatsoever; it cites no example of an issue-oriented
advertisement being run on Metrobuses or in Metrorail stations
once the Moratorium was adopted, nor has AFDI pointed to
any inconsistency in WMATA’s explanation for its decision to
close the forum. Neither has AFDI shown any mismatch
between WMATA’s stated reason for closing — to avoid being
involved in further controversies arising from issue-oriented
advertisements — and its decision to end the problem by
banning all issue-oriented advertisements. In other words,
there is a fit between WMATA’s means and its stated ends.
17
Indeed, AFDI’s own assumptions speak to the lack of
mismatch here. AFDI emphasizes the importance of
advertising to WMATA’s budget and hints WMATA would
not have reduced its advertising revenue unless it was to
discriminate against AFDI. That would counsel banning the
fewest advertisements consistent with excluding AFDI’s. Yet
there is no question the Moratorium and the Guidelines sweep
out far more than just AFDI’s advertisements. If WMATA
wished to keep out these particular advertisements, then it
could have banned, as one example, advertisements “with a
demonstrated link to violence,” which would have sufficed
given the events in Garland, Texas. That WMATA put in place
a much broader ban, even though it resulted in a larger potential
loss of revenue, strongly suggests it was not discriminating
against the views of AFDI.
The evidence AFDI proffers is weak. It stakes much of its
case upon Ms. Bowersox’s depicting AFDI’s advertisement as
“the straw that broke the camel’s back” with regard to issue-
oriented advertisements in the forum. AFDI seems to
misunderstand this metaphor. The point is that no particular
straw shoulders all the blame. Each straw, on its own,
contributed to breaking the unfortunate camel’s back. The last
straw was last by pure happenstance, not intent. So too here.
That AFDI’s advertisements were the last in a long line of
controversial or potentially controversial advertisements does
not mean the closure of the forum was meant to keep out the
views of AFDI in particular.
AFDI also points to the confusion over how to place the
Moratorium on the schedule for WMATA’s Board meeting,
Mr. Downey’s request that Ms. Bowersox be prepared to
discuss the violence surrounding AFDI’s advertisements in
Texas, and the haste with which the Moratorium was passed,
but these events are consistent with WMATA’s stated reason
18
for restricting the forum. When AFDI submitted its
advertisements, WMATA decided that it was no longer willing
to tolerate the controversies advertisements like them
engendered. It did act with haste to change its policies, but
AFDI does not even suggest WMATA violated its own
procedural rules. Regarding AFDI’s point about Mr.
Downey’s email, we note that neither the violence in Texas nor
AFDI itself was even mentioned at the Board meeting and
therefore seems irrelevant to the Board’s decision adopting the
Moratorium. AFDI is essentially asking us to infer WMATA
harbored an illicit intent without proffering any evidence to that
effect. No reasonable jury could do that.
The contrast between this case and Ridley is instructive.
There the defendant transit authority’s rationale for rejecting
the advertisements was that they advocated the legalization of
marijuana, and the head of the authority said bluntly that he
would have published the advertisements if they had supported
existing marijuana laws. 390 F.3d at 88. Such direct evidence
of viewpoint discrimination is lacking here.
Moreover, the transit authority in Ridley also claimed, post
hoc, it had rejected the advertisements because they might
promote marijuana use among juveniles, a risk the court
deemed “minimal and, indeed, probably nonexistent.” Id. Not
so here — the sole reason in the record for the advertisements’
rejection was that they were political, not commercial (they
“advocate[] free speech and do[] not try to sell you a
commercial product”), so there is no doubt WMATA’s reasons
for rejection match the advertisements’ actual content.
Finally, the plaintiff in Ridley pointed to advertisements
promoting alcohol use that were “clearly more appealing to
juveniles” than the marijuana legalization advertisements.
Ridley, 390 F.3d at 88-89. This inconsistent application of the
19
supposed rules of the forum was strong evidence of viewpoint
discrimination. Here, however, AFDI has not even alleged, let
alone provided evidence, that WMATA has applied its rules
inconsistently.
ii. Facial viewpoint neutrality
Next, AFDI argues the ban on issue-oriented advertising is
facially unconstitutional. The argument, again, is confused, but
the main thrust appears to be that WMATA’s restrictions favor
commercial over noncommercial speech and therefore run
afoul of the First Amendment.
We have no trouble rejecting this claim: There is Supreme
Court precedent almost directly on point. In Lehman v. City of
Shaker Heights, the Court confronted a ban on political
advertising in streetcars. 418 U.S. 298, 299-300 (1974)
(plurality opinion). Four Justices noted that “a city transit
system has discretion to develop and make reasonable choices
concerning the type of advertising that may be displayed in its
vehicles.” Id. at 303. They then rejected the argument that
banning political advertisements violated the First
Amendment, which tracks AFDI’s argument here concerning
all controversial advertising:
In these circumstances, the managerial decision to limit
car card space to innocuous and less controversial
commercial and service oriented advertising does not
rise to the dignity of a First Amendment violation.
Were we to hold to the contrary, display cases in public
hospitals, libraries, office buildings, military
compounds, and other public facilities immediately
would become Hyde Parks open to every would-be
pamphleteer and politician. This the Constitution does
not require.
20
Id. at 304.
The plurality opinion, in sum, held it was not
unconstitutional for a government to ban noncommercial
advertising in a place that was not an “open space[], ... meeting
hall, park, street corner, or other public thoroughfare.” Id. at
303. In contemporary terms, it is not facially viewpoint
discrimination to ban political advertising in a nonpublic
forum. Justice Douglas, concurring in the judgment,
emphasized the captive nature of streetcar passengers and the
would-be political advertiser’s “forced intrusions on their
privacy.” Id. at 307. That point, of course, applies equally to
WMATA.
Given the holding in Lehman, it is no surprise that other
circuits have turned away first amendment challenges to bans
on political or noncommercial advertising. See, e.g., AFDI v.
Suburban Mobility Auth. for Reg’l Transp., 698 F.3d 885, 888,
895 (6th Cir. 2012) (upholding ban on “[p]olitical or political
campaign advertising”); Children of the Rosary v. City of
Phoenix, 154 F.3d 972, 974, 980-81 (9th Cir. 1998) (White,
Retired Justice) (upholding advertising policy limiting
acceptable advertisements to “speech which proposes a
commercial transaction”); Lebron v. Nat’l R.R. Passenger
Corp. (Amtrak), 69 F.3d 650, 654, 658 (2d. Cir.) (upholding
Amtrak’s unwritten policy of not allowing political
advertising), opinion amended on denial of reh’g en banc, 89
F.3d 39 (2d Cir. 1995).
In any event, AFDI’s argument makes no sense on its own
terms. AFDI points out, as a way of showing WMATA’s
policy is flawed, that an advertiser could claim its product is
the best value, most efficient, or best tasting, but a religious
person could not promote his religion as the best, most truthful,
21
or most charitable. This is a correct description of what is and
is not acceptable under WMATA’s policy — an advertiser can
say whatever it wants about a permissible subject but cannot
say anything about an impermissible subject — but this is not
viewpoint discrimination; to hold otherwise would, as
WMATA points out, erase the distinction between content-
based and viewpoint-based restrictions.
AFDI next argues WMATA’s policy runs afoul of the
Supreme Court’s decision in Metromedia, Inc. v. City of San
Diego, 453 U.S. 490 (1981). This is silly. The plurality
opinion in Metromedia said that case “present[ed] the opposite
situation from that in Lehman,” which “turned on [a] unique
fact situation[] involving [a] government-created forum[] and
ha[d] no application here.” Id. at 514 n.19. If Lehman had no
application to Metromedia, then it stands to reason that
Metromedia has no application to this case, which is closely
analogous to Lehman.
Finally, AFDI complains that the Guidelines are somehow
worse than the Moratorium and that it is not clear on what basis
WMATA rejected its advertisements. How, asks AFDI, can
advertisements advocating free speech not be permitted? AFDI
has only itself to blame for any uncertainty as to why its
specific advertisements were rejected because it neither
included in the record WMATA’s communication rejecting the
advertisements nor resubmitted the advertisements once the
Guidelines were adopted. As it is, all we have in the record
before us is Ms. Bowersox’s statement that the advertisements
were rejected because they “advocate[] free speech and do[]
not try to sell you a commercial product.” In other words,
22
WMATA rejected the advertisements because they were
political. 6
iii. Antireligious speech ban
As noted above, AFDI’s briefs also mention Guideline 12,
which reads, in its entirety: “Advertisements that promote or
oppose any religion, religious practice or belief are prohibited.”
Though AFDI does not expand much upon what it thinks
problematic about Guideline 12, it does gesture toward the idea
that Guideline 12 might be an unconstitutional prohibition of
religious and antireligious views. In doing so, AFDI mentions
obliquely three Supreme Court cases — Lamb’s Chapel v.
Center Moriches Union Free School District, 508 U.S. 384
(1993); Rosenberger v. Rector and Visitors of the University of
Virginia, 515 U.S. 819 (1995); and Good News Club v. Milford
Central School, 533 U.S. 98 (2001) — that together might
arguably call into question the constitutionality of Guideline
12.
We need not venture into this particular thicket. To begin
with, AFDI never mounts a full-on argument that Lamb’s
6
AFDI also implies in its brief that it has constitutional objections to
the open advertising policy WMATA had prior to the Moratorium.
It is not clear what those claims might be, and AFDI’s complaint
appears to bring claims only against the Moratorium itself. Indeed it
is a puzzle as to how AFDI could have claims against the pre-
Moratorium policy, as its advertisements were rejected pursuant to
the Moratorium. In any event, it is not our practice to address so
undeveloped an argument. See, e.g., Schneider v. Kissinger, 412
F.3d 190, 200 n.1 (D.C. Cir. 2005) (“It is not enough merely to
mention a possible argument in the most skeletal way, leaving the
court to do counsel’s work ... a litigant has an obligation to spell out
its arguments squarely and distinctly, or else forever hold its peace”
(cleaned up)).
23
Chapel, Rosenberger, and Good News Club do indeed apply to
this case; it only cites them for the general proposition that
viewpoint discrimination is unconstitutional. Moreover, AFDI
was extremely late in portraying its advertisement as
antireligious speech, insofar as it has done so at all. In its
complaint, for example, it stated its “advertisements make the
point that the First Amendment will not yield to Sharia-
adherent Islamists who want to enforce so-called blasphemy
laws here in the United States, whether through threats of
violence or through the actions of complicit government
officials, such as Defendants in this case.” When the case was
filed, that is, AFDI represented the subject of its advertisements
as the Free Speech Clause of the First Amendment. In AFDI’s
initial motion for summary judgment it made a vague reference
to Rosenberger but came no closer to presenting its
advertisements as religious speech. Indeed, it first and
belatedly made this argument, such as it is, in its reply in
support of its motion for summary judgment. Implying now
that its speech is antireligious speech is a mere characterization
of convenience.
Additionally, as far as the record shows, WMATA decided
to refuse AFDI’s advertisements only because of their political
nature. As we said before, AFDI neglected to put in the record
the actual communication from WMATA rejecting its
proposed advertisements. (This failure of evidence is, of
course, entirely attributable to AFDI, as it has the burden of
proof.) All we have in the record is the testimony of Ms.
Bowersox. When AFDI’s counsel asked Ms. Bowersox at her
deposition why WMATA rejected the advertisements at issue,
she said she “believe[d] that this ad would come under
advocacy because it advocates free speech and does not try to
sell you a commercial product.” “The government’s purpose
is the controlling consideration” in speech cases, Ward v. Rock
Against Racism, 491 U.S. 781, 791 (1989), and here all we have
24
is WMATA itself telling us it rejected the advertisements
because they were political speech. Guideline 12, therefore, is
entirely irrelevant to this appeal, and we express no opinion as
to whether it violates the First Amendment. This leaves
Guideline 9 as the only Guideline AFDI properly challenges
that could apply to its proposed speech.
B. Reasonableness
We come, at last, to the reasonableness of WMATA’s
policy limiting access to its nonpublic forum, which “must be
assessed in the light of the purpose of the forum and all the
surrounding circumstances.” Cornelius, 473 U.S. at 809. “The
Government’s decision to restrict access to a nonpublic forum
need only be reasonable; it need not be the most reasonable or
the only reasonable limitation.” Id. at 808. “A regulation is
reasonable if it is consistent with the government’s legitimate
interest in maintaining the property for its dedicated use.” IRI,
685 F.3d at 1073.
AFDI does not suggest the purpose for the forum is
anything other than public transportation; instead, it posits that
(1) controversial advertising had not disrupted WMATA’s
operations prior to AFDI’s submission, see Appellant’s Brief
at 44 (noting that “[f]or decades WMATA had displayed
controversial, public-issue advertisements” and questioning
how any “ad ... would somehow interfere with the operation of
WMATA’s bus system”) and (2) WMATA’s objective in
selling advertising space must have been revenue
maximization, so that losing any revenue by refusing AFDI’s
advertising was unreasonable.
AFDI’s premise is incorrect. As related by Ms. Bowersox
in her deposition, before the Moratorium WMATA had been
plagued by problems stemming from issue-oriented
25
advertisements. These problems included complaints from
riders, community leaders, and employees; and vandalism,
security threats, and the increased administrative burden of
evaluating arguably obscene or otherwise unacceptable
advertisements. All this testimony is uncontested; there is not
the slightest hint in the record that WMATA in fact did not
have to deal with these problems. Nor has AFDI contested Ms.
Bowersox’s assertion that the problems became more acute in
the 2010s. In the face of all this, WMATA concluded the game
was not worth the candle; better to lose some advertising
revenue and avoid having to deal with the controversies they
create. This seems eminently reasonable; it might have cut into
WMATA’s revenues, but it necessarily avoided the
complaints, the vandalism, and the security threats that
WMATA’s open advertising policy had engendered. 7 No
reasonable jury could conclude, therefore, that the Moratorium
and the Guidelines were not reasonable efforts to avoid
controversies engendered by advertising on Metrobuses and at
Metro stations.
AFDI also cites two Third Circuit cases to support its
position. The first held unreasonable a ban upon
noncommercial advertisements in airports. NAACP v. City of
Philadelphia, 834 F.3d 435 (2016). The City proffered as its
objectives for the space “revenue maximization and
controversy avoidance,” id. at 445, but there was no record
evidence either of pre-ban controversies or of how the ban
could possibly help maximize revenue. Id. at 445-46. Here,
WMATA has not offered revenue maximization as a
7
Indeed, owing to the deficient state of the record, it is not even clear
WMATA lost money because of the restriction; it may have made up
in saved staff time and diminished vandalism what it lost in payments
for issue-oriented advertisements.
26
justification, and there is ample record evidence of
controversies before the Moratorium.
At issue in the second case was a designated public forum
as to which the defendant was effectively engaging in
censorship, permitting pro-abortion advertisements while
excluding anti-abortion ones. Christ’s Bride Ministries, Inc. v.
Se. Penn. Transp. Auth., 148 F.3d 242, 255-57 (3d Cir. 1998).
Here, of course, we are dealing with a nonpublic forum, and
WMATA has not discriminated among issue-oriented
advertisements but rather closed the space to all of them.
This does not, however, end our inquiry. In a recent case,
the Supreme Court analyzed a Minnesota statute banning
voters from wearing a “political badge, political button, or
other political insignia” at a polling place. Minnesota Voters
Alliance v. Mansky, 138 S. Ct. 1876, 1883 (2018). The Court
held that portion of the statute unconstitutional because the
State failed to draw “a reasonable line.” Id. at 1888. The
statute did not define the term “political,” which in the Court’s
view was simply too broad; the State proffered as a limiting
construction the idea that “political” meant “conveying a
message about the electoral choices at issue in [the] polling
place,” but the Court noted this construction introduced line-
drawing problems of its own. Id. at 1888-89. Indeed, at oral
argument the State could not explain with any consistency why,
for example, “a shirt displaying a rainbow flag” could be worn
for some elections and not for others, or why a shirt displaying
the text of the First Amendment was permissible but an
identical shirt with the text of the Second Amendment was not.
Id. at 1891. The crux of the Court’s decision was that the
State’s discretion in enforcing the statute had to be “guided by
objective, workable standards.” Id. Because the unqualified
ban on “political” apparel did not provide those standards, it
was unreasonable.
27
At several points in its briefs, AFDI makes something
approaching this argument, though it never explicitly argues
the Guidelines are unreasonable because they lack objective,
workable standards. Instead, AFDI at various points complains
the Moratorium and Guidelines are “hopelessly vague”, vest
WMATA with “unbridled control over the use of the forum”,
and lack the precise and definite standards necessary to satisfy
First Amendment scrutiny. AFDI focuses this attack in
particular upon Guideline 9 — the only Guideline it can
properly challenge — which bans “[a]dvertisements intended
to influence the public regarding an issue on which there are
varying opinions.”
In essence, AFDI merges two variant, though closely
related, Supreme Court doctrines to make this claim. First, the
Court has held, repeatedly, that the “danger of censorship and
of abridgment of our precious First Amendment freedoms is
too great where officials have unbridled discretion over a
forum’s use.” Se. Promotions, Ltd. v. Conrad, 420 U.S. 546,
553 (1975). Therefore, when government censors control
access to a forum, but have no standards to govern their
decisions, first amendment freedoms are abridged. See, e.g.,
City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 756-
57 (1988).
Second, the Court has condemned statutes that are too
vague to give a “person of ordinary intelligence a reasonable
opportunity to know what is prohibited.” Grayned v. City of
Rockford, 408 U.S. 104, 108 (1972). It is not entirely clear that
the vagueness doctrine applies to the Guidelines, which do not,
of course, impose criminal penalties on those whose
advertisements are denied. See, e.g., Bryant v. Gates, 532 F.3d
888, 893 (D.C. Cir. 2008) (noting “it is not clear whether the
vagueness doctrine applies ... at all” to statutes that do not
28
threaten criminal penalties). In any event, the overlap in
analysis between unbridled discretion and vagueness is clear;
both doctrines require a court to determine whether a
decisionmaker’s exercise of discretion in allowing or
disallowing speech is based upon objective and clear standards.
To this we can now add a third related inquiry — the
inquiry that Mansky seems to call for — whether the discretion
vested in a government official to permit or prohibit speech is
“guided by objective, workable standards.” Mansky, 138 S. Ct.
at 1891. These three seemingly inquiries all pose a single
challenge: We must determine whether Guideline 9 is so broad
as to provide WMATA with no meaningful constraint upon its
exercise of the power to squelch. If so, then it is not
“reasonable,” as that term is used in Mansky, and not
constitutional because it provides WMATA with unbridled
discretion. Put the other way around, if Guideline 9 is capable
of reasoned application, as Mansky demands, then it does not
confer unbridled discretion upon WMATA.
The parties’ briefs predate the decision in Mansky. Yet
Mansky invites arguments about whether Guideline 9 is
capable of reasoned application. Moreover, WMATA’s
defense of the Guidelines against AFDI’s unbridled
discretion/vagueness challenge was that it banned AFDI’s
advertisements as “political” speech, which is not
unconstitutional. That argument might be unavailing in light
of Mansky.
In these circumstances, AFDI should be given an
opportunity to refine its argument and to supplement the record
accordingly. See, e.g., Belizan v. Hershon, 495 F.3d 686, 692
(D.C. Cir. 2007) (remanding securities fraud claims to the
district court to reconsider in light of intervening Supreme
Court precedent). Guideline 9 has been in place for nearly
29
three years, and information on how it has been applied would
certainly be information as to whether it is capable of reasoned
application. In addition, the district court may wish to clarify
whether WMATA would have rejected AFDI’s advertisements
based upon Guideline 9 or some other Guideline.
We therefore reverse the grant of summary judgment to
WMATA as to whether its policy is reasonable and remand that
portion of this case to the district court.
3. Fourteenth amendment claim
As we noted at the outset of this opinion, AFDI also
brought a claim under the Fourteenth Amendment, asserting
that the “speech restriction ... unconstitutionally deprived
[AFDI] of the equal protection of the law guaranteed under the
Fourteenth Amendment ... in that [WMATA is] preventing
[AFDI] from expressing a message based on its content and
viewpoint.” In support of this claim, AFDI cites Police
Department of Chicago v. Mosley for the proposition that
“under the Equal Protection Clause ... [the] government may
not grant the use of a forum to people whose views it finds
acceptable, but deny use to those wishing to express less
favored or more controversial views.” 408 U.S. 92, 96 (1972).
In other words, according to AFDI the Equal Protection Clause,
like the First Amendment, prohibits the Government from
engaging in viewpoint discrimination. As seen above,
WMATA did not do that. AFDI does not contend, and Mosley
does not suggest, that an unreasonable speech restriction
violates the Fourteenth, as opposed to the First Amendment.
This is fatal to AFDI’s Fourteenth Amendment claim.
30
III. Conclusion
WMATA sought to end the controversy over the
advertisements displayed in its forum. It has succeeded in
eliminating complaints about the advertisements it accepts, but
it has swapped those controversies for numerous lawsuits over
the advertisements it rejects. While it is clear WMATA did not
engage in viewpoint discrimination in rejecting AFDI’s
advertisement and adopting Guideline 9, Mansky provides
enough uncertainty that it makes sense for the district court to
reexamine in the first instance whether WMATA’s applicable
restrictions are reasonable. The district court’s grant of
summary judgment to WMATA is therefore affirmed in part
and reversed in part, and the case is remanded to the district
court for further proceedings consistent with this opinion.
So ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, dissenting:
After the Washington Metropolitan Area Transit Authority
(WMATA) rejected the American Freedom Defense
Initiative’s (AFDI) advertisement under an interim advertising
policy (Moratorium), AFDI sued to enjoin that policy.
Although WMATA later changed its advertising policy by
adopting more specific, lucid and permanent provisions
(Guidelines), the litigation posture did not catch up. AFDI
never resubmitted its ad to WMATA and therefore WMATA
did not reject AFDI’s ad under its new permanent policy and
has not specified which, if any, of the Guidelines AFDI’s ad
would violate. AFDI did not amend its complaint to challenge
WMATA’s Guidelines, which remain in effect today.
Although the Guidelines attempt to serve the same goal as the
interim policy—banning controversial ads from WMATA’s
advertising space—WMATA’s speech restrictions’
applicability to the plaintiff’s speech is not clear and their
contents changed significantly after the plaintiff sued to enjoin
the earlier version. I believe the AFDI’s claim for an injunction
against the inoperative Moratorium is moot 1 and, accordingly,
I respectfully dissent.
1
AFDI also sued for damages under 42 U.S.C. § 1983 but I
believe that claim fails. The Supreme Court has held that “neither a
State nor its officials acting in their official capacities are ‘persons’
under [section] 1983.” Will v. Mich. Dep’t of State Police, 491 U.S.
58, 71 (1989). This holding applies to “States or governmental
entities that are considered ‘arms of the State’ for Eleventh
Amendment purposes.” Id. at 70. WMATA’s general manager as
named in the complaint is an “official[] acting in [his] official
capacit[y].” Id. at 71. And we have held that WMATA is an arm of
the state for sovereign immunity purposes. See Morris v. WMATA,
781 F.2d 218, 224 (D.C. Cir. 1986) (Maryland and Virginia
“conferred their eleventh amendment immunities upon WMATA”
by signing compact creating WMATA). Therefore, neither defendant
is liable for damages.
2
We “lack jurisdiction to decide moot cases” because a
moot case is no longer an actual case or controversy under
Article III. Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67,
70 (1983). The basis of mootness is in WMATA’s voluntary
conduct: changing the Moratorium—under which WMATA
rejected AFDI’s ad and which is the only policy AFDI
challenged in its complaint—to the Guidelines. A defendant’s
“voluntary cessation of a challenged practice” moots a case if
“subsequent events made it absolutely clear that the allegedly
wrongful behavior could not reasonably be expected to recur.”
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167, 189 (2000) (internal quotation marks omitted).
A claim for prospective relief against a law that is repealed or
expired after the claim is initiated may moot the claim. See
Nat’l Black Police Ass’n v. District of Columbia, 108 F.3d 346,
349–50 (D.C. Cir. 1997). In this case, we do not face a situation
in which the government has outright repealed the challenged
law with no evidence of intent to reenact it, see Burke v.
Barnes, 479 U.S. 361, 363–65 (1987), nor do we face a
situation in which the government has repealed the challenged
law but has expressed an intent to reenact the same law, see
City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 &
n.11 (1982). Instead, we face a situation in the middle of these
two poles: the government has replaced the challenged
regulation with a new regulation that differs in some respects.
I believe three United States Supreme Court cases serve as
guideposts.
In Diffenderfer v. Central Baptist Church of Miami, a state
law “authorize[d] a tax exemption for church property
used . . . as a commercial parking lot.” 404 U.S. 412, 413
(1972). The plaintiffs sued for an injunction requiring
government officials “to assess and collect taxes against such
property.” Id. During litigation, the state repealed the law and
enacted a new statute providing that “church property is
3
exempt from taxation only if the property is used
predominantly for religious purposes.” Id. at 414. The Court
noted that the application of the statute to the parking lot in
question likely changed and therefore concluded the case was
therefore moot. “The only relief sought in the complaint was a
declaratory judgment that the now repealed [statute] is
unconstitutional as applied to a church parking lot used for
commercial purposes and an injunction against its application
to said lot. This relief is, of course, inappropriate now that the
statute has been repealed.” Id. at 414–15.
In another case in which the defendant repealed and
replaced the challenged policy pendente lite, the Supreme
Court reached the opposite conclusion. Ne. Fla. Chapter of
Associated Gen. Contractors v. City of Jacksonville, 508 U.S.
656 (1993). In Northeastern Florida, an ordinance required
that 10 per cent of the amount spent on city contracts be “set
aside” for minority businesses. Id. at 658. Non-minority
contractors sued, arguing the ordinance violated the Equal
Protection Clause and seeking declaratory and injunctive relief.
Id. at 659. After the Supreme Court granted certiorari, the city
repealed the challenged ordinance and “replaced” it with
another ordinance that differed in a few minor ways but still
treated minorities in certain identical overlapping ways: the
first ordinance applied to women and seven minority groups
and the second applied to women and blacks only; in addition,
the first ordinance used only the “set aside” to achieve the quota
but the second ordinance contemplated five possibilities, one
of which was a plan that mirrored the “set aside.” Id. at 660–
61. The Court held the case was not moot, id. at 663, reasoning
that, although the new ordinance “differs in certain respects”
from the old ordinance, “insofar as it [duplicates the original
law,] it disadvantages” the plaintiffs “in the same fundamental
way,” id. at 662.
 4
A third case illustrates the principle that a significant
change in the way a challenged law works can render a case
moot. Fusari v. Steinberg, 419 U.S. 379 (1975). In Fusari, the
plaintiffs challenged state procedures for determining
continuing eligibility for unemployment compensation. The
district court held the scheme violated the plaintiff’s due
process rights. The state amended the statutes to provide
additional procedural protections. The Court held the claim
was moot. “Although the precise significance of the
amendment to [the law] is unclear,” the Court reasoned that the
changes “may alter significantly the character of the system
considered by the District Court.” Id. at 386–87; see also Nat’l
Mining Ass’n v. U.S. Dep’t of Interior, 251 F.3d 1007, 1011
(D.C. Cir. 2001) (relying on Fusari to dismiss as moot claim
against “old set of rules” replaced by “new system”).
The resolution of these three cases, the Supreme Court
tells us, turns on “whether the new ordinance is sufficiently
similar to the repealed ordinance that it is permissible to say
that the challenged conduct continues.” Ne. Fla., 508 U.S. at
662 n.3 In Northeastern Florida, the Supreme Court
“believe[d] that the ordinance ha[d] not been sufficiently
altered” and thus the claim was not moot. Id. (internal quotation
marks omitted). In contrast, the “statutes at issue” in
Diffenderfer and Fusari “were changed substantially” and thus
the claim was moot. Id.
So the question here: how similar are the Moratorium and
the Guidelines? WMATA points to a central similarity: the
Moratorium prohibited “any and all issue-oriented advertising,
including but not limited to, political, religious and advocacy
advertising until the end of the calendar year,” Joint Appendix
(JA) 34, and the Guidelines “resolved” to “close[]” WMATA’s
advertising space “to issue-oriented ads, including political,
religious and advocacy ads,” JA 35. WMATA argues the
5
carryover language means that WMATA’s conduct “has not
ceased.” Appellee’s Supp. Br. 5. My colleagues agree with this
reasoning. Maj. Op. 8 (“[T]he Moratorium banned issue-
oriented advertisements, and so do the Guidelines.”).
If that were all the new policy said, I would agree. But
WMATA’s advertising decisions under the Guidelines are not
governed by the language that WMATA relies on. Whereas the
prohibition of “issue-oriented . . . political, religious and
advocacy” ads was operative in the Moratorium, that same
language in the Guidelines is more akin to a preamble or a
statement of purpose; WMATA instead effects its intent via
five specific inquiries that serve as the operative terms of the
Guidelines. 2 Compare JA 34 (Moratorium), with JA 35
2
As an example of how WMATA uses the November policy,
WMATA rejected the Archdiocese of Washington’s “Find the
Perfect Gift” holiday advertisement under “Guideline 12”—the
provision prohibiting advertisements that promote or oppose a
religion, religious practice or belief. Archdiocese of Washington v.
WMATA, No. 1:17-cv-02554 (D.D.C. Nov. 28, 2017), ECF No. 1
¶ 19 (complaint citing WMATA letter stating it rejected
Archdiocese’s advertisement under “Guideline 12”); see id., No. 17-
7171, slip op. at 7 (D.C. Cir. July 31, 2018) (“When the Archdiocese
sought to purchase space for the ‘Find the Perfect Gift’
ad . . . WMATA declined on the ground that it was impermissible
under Guideline 12 ‘because it depicts a religious scene and thus
seeks to promote religion.’”). As another example, WMATA
rejected Milo Yiannopoulos’s advertisements for his book
Dangerous under “Guideline 9”—the provision prohibiting ads that
are “intended to influence members of the public regarding an issue
on which there are varying opinions”—and “Guideline 14”—the
provision prohibiting ads that “are intended to influence public
policy.” ACLU v. WMATA, No. 1:17-cv-01598 (D.D.C. Sept. 5,
2017), ECF No. 21, Attachment 1 ¶ 25 (Declaration of Lynn
Bowersox, stating ads were rejected under “Guidelines 9 and 14”).
For a final example, WMATA rejected an American Civil Liberties
6
(Resolution to revise Guidelines to prohibit issue-oriented ads),
and JA 37–38 (Guidelines). Thus, under the Moratorium,
WMATA asked: Is this advertisement an “issue-
oriented . . . political, religious [or] advocacy” advertisement?
Under the Guidelines, however, WMATA asks, inter alia: Is
this advertisement (1) “intended to influence members of the
public regarding an issue on which there are varying opinions”;
(2) “support[ing] or oppos[ing] any political party or
candidate”; (3) “promot[ing] or oppos[ing] any religion,
religious practice or belief”; (4) “support[ing] or oppos[ing] an
industry position or industry goal without any direct
commercial benefit to the advertiser”; or (5) “intended to
influence public policy”?
The two versions ask very different questions. And the
textual difference between the Moratorium and the Guidelines
is not purely semantic. As WMATA acknowledges, the
Guidelines “elaborate” on and “add meaningful content” to the
Moratorium’s policy. Appellee’s Supp. Br. 11 n.5. The
Guidelines give contours to the line WMATA draws between
what ads to accept and what ads to reject. The new boundaries
matter under the First Amendment. See, e.g., Bd. of Airport
Comm’rs of L.A. v. Jews for Jesus, Inc., 482 U.S. 569, 574–75
(1987) (constitutionality of forum speech restriction turns on
construction of government prohibition’s text); Shuttlesworth
v. City of Birmingham, 382 U.S. 87, 91–92 (1965)
(constitutionality of conviction under ordinance subject to First
Amendment challenge differs based on construction of
ordinance’s text). Although my colleagues believe the
Guidelines merely “particulariz[e] and finaliz[e]” the
Union (ACLU) advertisement for its annual conference under
Guidelines 9 and 14. ACLU v. WMATA, No. 1:17-cv-01598 (D.D.C.
May 27, 2018), ECF No. 37, Attachment 1 ¶ 6 (Declaration of Lynn
Bowersox, stating ACLU’s advertisement for its annual conference
was rejected under Guidelines 9 and 14).
7
Moratorium, Maj. Op. 7, the addition of “meaningful content”
to guide government officials’ decision-making, Appellee’s
Supp. Br. 11 n.5, can make all the difference in whether a
nonpublic forum speech restriction survives constitutional
scrutiny.
A recent United States Supreme Court case illustrates why.
A nonpublic forum speech restriction must provide “objective,
workable standards” to constrain government officials’
“discretion” in deciding what speech comes in and what speech
stays out. Minn. Voters All. v. Mansky, 138 S. Ct. 1876, 1891
(2018). The Supreme Court stated that “broad[],”
“indeterminate” restrictions, id. at 1888–89, are more difficult
to uphold than narrower, more “lucid” restrictions, id. at 1891.
For example, the Supreme Court suggested, the First
Amendment nonpublic forum “reasonableness” analysis of a
law that prohibits wearing “political” apparel likely differs
from the analysis of a law that prohibits displaying
“information that advocates for or against any candidate.” Id.
(internal quotation marks omitted). Moreover, the Supreme
Court noted that state guidance prohibiting “issue oriented
material designed to influence or impact voting” is problematic
because it “raises more questions than it answers.” Id. at 1889
(internal quotation marks and brackets omitted). Accordingly,
it is possible that the answer to whether a restriction on “issue-
oriented” “political” or “religious” or “advocacy”
advertisements is viewpoint-neutral and reasonable may differ
from the answer to whether a restriction on advertisements that
“support or oppose any political party or candidate” or
“promote or oppose any religion, religious practice or belief”
or “support or oppose an industry position or industry goal
without any direct commercial benefit” or attempt to “influence
public policy [or] the public regarding an issue on which there
are varying opinions” is viewpoint-neutral and reasonable.
8
The Guidelines, then, do not “differ[] only in some
insignificant respect.” Ne. Fla., 508 U.S. at 662. They may
replicate the Moratorium in spirit. But the Guidelines do not
replicate the Moratorium in substance. I believe the
“significantly revised” Guidelines “significantly” “alter” the
character of the system WMATA uses to assess
advertisements, Fusari, 419 U.S. at 380, 386, thereby rendering
AFDI’s claim for injunctive relief against the now-defunct and
textually transformed Moratorium moot. See Princeton Univ.
v. Schmid, 455 U.S. 100, 103 (1982) (dismissing appeal of First
Amendment challenge to government campus-speech
regulations that were “substantially amended” “while the case
was pending on appeal”); Nat’l Black Police Ass’n, 108 F.3d at
350 (claim for injunctive relief against campaign contribution
limits moot after enactment of new law that significantly raised
but did not eliminate contribution limits); AFDI v. Metro.
Transp. Auth., 815 F.3d 105, 110 (2d Cir. 2016) (claim for
injunctive relief against part of transit authority’s advertising
restriction moot after transit authority revised restriction and
changed basis for rejection because restriction on speech was
“consequence of [the transit authority’s] new advertising
policy, not a relic of its old one”).
Not only are the questions WMATA must ask different.
We also do not know WMATA’s answer. WMATA’s general
manager answered in a deposition that AFDI’s ad qualified as
an “advocacy” ad “because it advocated free speech and it does
not try to sell you a commercial product.” JA 90. Denying
AFDI’s ad because it is an “advocacy” ad may work under the
Moratorium’s prohibition on “advocacy” ads. It does not
suffice under the Guidelines. The generic restriction on
“advocacy” ads is gone from the operative portions of the
Guidelines. And WMATA never specified—to AFDI or to
us—under which of the particular Guidelines it would reject
AFDI’s ad. That runs contrary to WMATA’s decisions on
9
accepting or rejecting other ads submitted after the Guidelines
were promulgated. See supra n.2.
The majority recognizes the lack of “clari[t]y” regarding
the specific Guideline WMATA believes bars AFDI’s ad from
its metro stations and its buses. Maj. Op. 29 (stating that district
court on remand “may wish to clarify whether WMATA would
have rejected AFDI’s advertisements based upon Guideline 9
or some other Guideline”). 3 In my view, that uncertainty
counsels not remand but dismissal. See Fusari, 419 U.S. at 387
(dismissing challenge to law that changed during litigation
because Court was “unable meaningfully to assess the issues in
this appeal on the present record”); AFDI, 815 F.3d at 111
(dismissing plaintiff’s claim seeking injunction against transit
authority’s old advertising policy that changed during litigation
and holding that plaintiff “must” challenge new policy through
“amended complaint”). Given the absence of WMATA’s
assessment under the Guidelines and the material changes
between the Moratorium and the Guidelines, “we can only
speculate how the new system might operate” on the record
before us. Fusari, 419 U.S. at 388–89. Because I would hold
AFDI’s claim moot, I respectfully dissent.
3
My colleagues make some of WMATA’s decisions for it. See
Maj. Op. 10–11, 24 (determining that Guidelines 11, 12 and 13 are
inapplicable or irrelevant). Although I do not necessarily disagree
with their conclusions, I prefer to let WMATA first determine what
Guideline justifies restricting AFDI’s speech and assess the
constitutionality of that determination once it is made.