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

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 24, 2016 Decided January 24, 2017

No. 12-7139

ACT NOW TO STOP WAR AND END RACISM COALITION AND

MUSLIM AMERICAN SOCIETY FREEDOM FOUNDATION,

APPELLEES

v.

DISTRICT OF COLUMBIA,

APPELLANT

Consolidated with 12-7140

Appeals from the United States District Court

for the District of Columbia

(No. 1:07-cv-01495)

Carl J. Schifferle, Assistant Attorney General, Office of

the Attorney General for the District of Columbia, argued the

cause for appellant/cross-appellee. With him on the briefs

were Karl A. Racine, Attorney General, Todd S. Kim,

Solicitor General, and Loren L. AliKhan, Deputy Solicitor

General.

Mara E. Verheyden-Hilliard argued the cause for

appellees/cross-appellants. With her on the briefs were Carl

L. Messineo and Andrea Costello.

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Before: ROGERS and PILLARD, Circuit Judges, and

SENTELLE, Senior Circuit Judge.

PILLARD, Circuit Judge: Like many municipalities

around the country, the District of Columbia regulates the

manner in which members of the public may post signs on the

District’s lampposts. District of Columbia law allows a

posted sign to remain on a public lamppost for up to 180 days.

But a sign relating to an event must be removed within 30

days after the event, whether the 180-day period has expired

or not. Thus, the District’s rule may in some cases give less

favorable treatment to signs that relate to an event than to

signs that do not.

Two nonprofit organizations, the Act Now to Stop War

and End Racism Coalition (ANSWER) and the Muslim

American Society Freedom Foundation (MASF) (together,

the organizations), challenge the District’s sign-posting rule.

MASF brings a pre-enforcement challenge to the rule as

unconstitutional on its face in violation of the First

Amendment and due process. MASF first argues that the

distinction between event-related and other signs is content

based yet cannot meet strict First Amendment scrutiny and

that, even if the rule is not content based, it fails the

intermediate scrutiny applicable to content-neutral time,

place, and manner restrictions. Second, MASF contends that

the regulation delegates an impermissible degree of

enforcement discretion to the District’s inspectors in violation

of due process. It further challenges what it contends is strict

liability on the originators of posters for any violation of the

sign-posting rule, which MASF argues also contravenes its

speech and due process rights. ANSWER, unlike MASF, was

cited by the District for violations of the regulation.

ANSWER seeks damages under section 1983, contending that

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it did not in fact violate the regulation and that citations were

unconstitutional retaliation against it for its postering.

The district court granted summary judgment to MASF,

invalidating the regulation’s treatment of event-related posters

on both First Amendment and due process grounds, but

rejecting MASF’s strict-liability objection. The court also

sanctioned the District for seeking discovery in the face of an

order granting limited discovery to plaintiffs. The district

court granted summary judgment to the District on

ANSWER’s section 1983 damages claim for lack of a

showing of a policy, custom, or practice of retaliatory

enforcement, as required by Monell v. Dep’t of Soc. Servs. of

City of New York, 436 U.S. 658 (1978). The District and the

organizations cross-appealed.

We conclude that the regulation does not impose a

content-based distinction because it regulates how long

people may maintain event-related signs on public lampposts,

not the content of the signs’ messages. The “event-related”

category is not itself content based. Under the intermediate

First Amendment scrutiny that is therefore applicable, the rule

is a reasonable time, place, and manner restriction. It is

narrowly tailored to further a well-established, admittedly

significant governmental interest in avoiding visual clutter.

The regulation’s definition of event-based signs also guides

officials’ enforcement discretion sufficiently to avoid facial

invalidation on due process grounds. Accordingly, we reverse

the grant of summary judgment in MASF’s favor and remand

for the district court to enter summary judgment for the

District.

On the organizations’ cross-appeal, we affirm the district

court’s dismissal of ANSWER’s section 1983 damages claim

that the District retaliated against it in violation of the First

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Amendment, and MASF’s claim that the District’s regulation

imposes a system of strict liability the First Amendment does

not allow. Finally, because discovery is presumptively

available to all parties pursuant to the Federal Rules of Civil

Procedure in the absence of a court order to the contrary, we

vacate the district court’s imposition of discovery sanctions

against the District for seeking discovery without leave of

court.

I. Background

The District of Columbia began its regulation of signs on

public lampposts with an outright prohibition in 1902. D.C.

Police Regulations, Art. XII, § 2 (1902). The District

partially relaxed that ban in 1958 to allow for the posting of

signs on lampposts only with the permission of the District’s

Commissioners. D.C. Police Regulations, Art. 20 § 2 (1958).

After the District’s Corporation Counsel advised that the

regulation might be constitutionally infirm for lack of clearly

articulated standards, see Letter from Louis P. Robbins,

Acting Corporation Counsel, to James W. Hill, Director,

Dep’t of Licenses, Investigations, and Inspections (October

12, 1978) (Gov’t Add. 13) [hereinafter Robbins Letter], the

District revised the regulation to add specific criteria to limit

enforcing officers’ discretion, see Street Sign Regulation

Amendment Act of 1979, D.C. Law 3-50, 26 D.C. Reg. 2733

(1979); see also Crime Prevention Sign Posting Act of 1980,

D.C. Law 3-148, 27 D.C. Reg. 4884. Following the revisions,

signs “not relate[d] to the sale of goods” could be affixed to

lampposts for up to 60 days; election signs for District of

Columbia candidates for public office were exempt from that

overall limit but had to be taken down within 30 days after the

election; and signs intended to aid neighborhood crime

prevention were exempted from the time limits. See D.C.

MUN. REGS. tit. 24 § 108.4-108.6 (1980). Commercial signs

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could not be affixed to public lampposts at all. See id.

§ 108.4. The revised rule also articulated specific

requirements for the manner in which signs could be posted

on a lamppost “or appurtenances of a lamppost” to

“minimiz[e] the need to repair lamp posts defaced by signs

attached by adhesives or other permanent methods and the

need to remove abandoned or improperly secured signs from

lamp posts, the sidewalks and the streets.” Robbins Letter at

2; see D.C. MUN. REGS. tit. 24, § 108.8-108.9 (1980). During

the pendency of this case, the District twice further amended

its lamppost rules, as described below.

In the meantime, ANSWER, a “grassroots civil rights

organization” that works to end war and oppose racism,

Affidavit of Brian Becker ¶ 2 (Mar. 14, 2008), J.A. at 32, had

posted signs advertising rallies in the District, including

events in September 2007 and March 2010. MASF, an

unincorporated nonprofit association that conducts “civil and

human rights advocacy with a focus on empowering the

Muslim American community,” Affidavit of Imam Mahdi

Bray (Oct. 26, 2013) ¶ 6, Organizations’ Add. 2, has in the

past and intends in the future to post signs that combine

general messages of advocacy and references to specific

events, see id. at 6-8. MASF “has sought to engage in

postering to the same extent as is afforded others, including

those favored within the District of Columbia municipal

regulation system.” Id. at 9. The District of Columbia has

not cited MASF, but in 2007 the District issued multiple

citations against ANSWER under the then-current lamppost

rule.

ANSWER and MASF sued the District, seeking a

declaratory judgment that the District of Columbia’s lamppost

rule violates their First Amendment and due process rights,

and an injunction barring its enforcement. First Amended

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Complaint, Act Now To Stop War & End Racism Coal. v.

District of Columbia (ANSWER I), 570 F. Supp. 2d 72

(D.D.C. 2008) (No. 07-1495). The district court dismissed

both ANSWER’s and MASF’s claims for lack of standing,

and in abstention from pending local administrative

enforcement proceedings. ANSWER I, 570 F. Supp. 2d at 75-

78. The organizations appealed.

This court reversed in part and remanded. Act Now to

Stop War & End Racism Coal. v. District of Columbia

(ANSWER II), 589 F.3d 433, 434 (D.C. Cir. 2009). The court

held that MASF had standing based on “a credible statement

of intent to engage in violative conduct,” and had shown

sufficient likelihood of enforcement against it because its

allegations raised “somewhat more than the ‘conventional

background expectation that the government will enforce the

law.’” Id. at 435 (quoting Seegars v. Gonzales, 396 F.3d

1248, 1253 (D.C. Cir. 2005)). At the motion to dismiss stage,

the court reasoned, an affidavit from MASF’s director stating

an intention to violate the regulation sufficed to establish

standing. Id. at 436. As to ANSWER, the court found that

the district court had correctly abstained under Younger v.

Harris, 401 U.S. 37 (1971), to the extent that charges against

ANSWER for violations of the challenged regulation

remained pending in the District of Columbia’s administrative

process. ANSWER II, 589 F.3d at 436.

While MASF and ANSWER’s appeal was pending

before this court, the District of Columbia Department of

Transportation amended the lamppost regulation. The 2010

final rule made one distinction relevant to the plaintiffs’

claims: Signs “not related to a specific event” could be

posted for up to 60 days while signs “related to a specific

event” could be posted at any time beforehand, but had to be

removed within 30 days after the event. 57 D.C. Reg. 528

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(January 8, 2010) (amending D.C. MUN. REGS. tit. 24,

§§ 108.5 & 108.6). Thus, in theory, event-related signs could

be posted for months or years before the event they

announced and for an additional 30 days thereafter, while

signs that were not event related could be posted for a

maximum of 60 days.

On remand, ANSWER voluntarily dismissed its claims

for prospective relief. See Stipulation of Dismissal, Act Now

To Stop War & End Racism Coal. v. District of Columbia

(ANSWER III), 798 F. Supp. 2d 134 (D.D.C. 2011) (No. 07-

1495). MASF, the only party still challenging the

constitutionality of the District’s regulation going forward,

amended its complaint in light of the revised rule, adding an

as-applied challenge to the “event-related” distinction as

content based. See Supplemental Pleading ¶¶ 16-17,

ANSWER III, 798 F. Supp. 2d 134 (No. 07-1495). Because

neither the earlier nor the revised regulation had been

enforced against MASF, the district court dismissed MASF’s

as-applied challenge, leaving only its facial challenges under

the First Amendment and the Due Process Clause. ANSWER

III, 798 F. Supp. 2d at 143. Those claims, the court held,

could proceed to discovery. Id. at 150-51.

Meanwhile, in its supplemental pleading after remand,

ANSWER alleged that the District had “attacked” it with

ninety-nine enforcement actions in March and April 2010 in

retaliation for the content of its postering activity. The court

dismissed that claim, holding that ANSWER had failed

adequately to allege that the claimed retaliation resulted from

a municipal custom or practice. ANSWER III, 798 F. Supp.

2d at 154-55. The court also dismissed MASF’s claim that

the regulation imposes a system of “strict liability” in

violation of the First Amendment. Id. at 153.

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In 2012, the District revised the regulation once more,

yielding the version now before us. See 59 D.C. Reg. 273

(Jan. 20, 2012). Section 108 currently provides that any

sign—including those announcing events—may be affixed to

a publicly owned lamppost for a maximum of 180 days, but

that signs relating to specific events must be removed within

30 days after the event. D.C. MUN. REGS. tit. 24, §§ 108.5,

108.6. The regulation also continues to restrict the method of

affixing signs on public lampposts: All signs must be

“affixed securely to avoid being torn or disengaged by normal

weather conditions,” id. § 108.8, but cannot “be affixed by

adhesives that prevent their complete removal from the

fixture, or that do damage to the fixture,” id. § 108.9. Signs

may not be posted on “any tree in public space,” id. § 108.2,

and no more than three copies of any sign may be posted on

either side of the street on a given block, id. § 108.10. The

2012 revision also added subsection 108.13, which defines an

“event” as “an occurrence, happening, activity or series of

activities, specific to an identifiable time and place, if

referenced on the poster itself or reasonably determined from

all circumstances by the inspector.” See 59 D.C. Reg. 273

(codified at D.C. MUN. REGS. tit. 24, § 108.13).

After discovery—which we discuss in Part II.E., infra, in

connection with the sanctions order—the District and MASF

cross-moved for summary judgment. The court granted

summary judgment to MASF, reasoning that even if the

regulation does not distinguish on the basis of content,

subsections 108.5 and 108.6 nevertheless fail intermediate

scrutiny under the First Amendment for want of admissible

evidence showing how the regulation advances the city’s

content-neutral purposes. Act Now to Stop War & End

Racism Coal. v. District of Columbia (ANSWER IV), 905 F.

Supp. 2d 317, 340-41 (D.D.C. 2012). It also held that

subsection 108.13 was an impermissible delegation of

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enforcement discretion in violation of the Due Process

Clause. Id. at 332. The court sanctioned the District for

seeking discovery in violation of the court’s scheduling order.

Act Now to Stop War & End Racism Coal. v. District of

Columbia, 286 F.R.D. 117 (D.D.C. 2012). The District and

the organizations cross-appealed.

We held these appeals in abeyance pending the Supreme

Court’s resolution of Reed v. Town of Gilbert, 135 S. Ct. 2218

(2015), see Order, Act Now to Stop War & End Racism Coal.

v. District of Columbia, No. 12-7139 (D.C. Cir. August 20,

2014), and, once Reed was decided, requested supplemental

briefing addressing its applicability here.

II. Analysis

We begin by addressing the District’s contention that

MASF lacks standing to sue. Finding standing, we proceed to

MASF’s First Amendment and due process facial challenges.

As to both, we find MASF’s challenges fall short, and

accordingly reverse the district court’s grant of summary

judgment in its favor. We affirm the court’s dismissal of

ANSWER’s section 1983 claim for damages and MASF’s

claim that the District’s rule imposes strict liability in

violation of the First Amendment. Finally, we vacate the

discovery sanctions again the District.

A. MASF Has Standing to Challenge the District’s

Lamppost Regulation

The District argues that MASF ceased operating in 2011,

so has “lost standing” during the pendency of its suit. Gov’t

Br. at 19. Even if MASF exists, the District asserts, it has

failed to establish that the regulation causes it to suffer injury

in fact. We disagree: An affidavit from MASF’s Imam Bray

attests that MASF continues to exist as an unincorporated

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nonprofit association, and the District’s submissions raise no

real question on that point.

1. Evidence Shows MASF Exists. For a federal court

to exercise jurisdiction, “an actual controversy must be extant

at all stages of review, not merely at the time the complaint is

filed.” Davis v. Fed. Election Comm’n, 554 U.S. 724, 733

(2008); see also Lujan v. Defs. of Wildlife, 504 U.S. 555, 561

(1992) (plaintiff must support standing “with the manner and

degree of evidence required at the successive stages of the

litigation”). Thus, “[e]ven where litigation poses a live

controversy when filed, we must dismiss a case as moot 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.” Chamber

of Commerce of U.S. v. E.P.A., 642 F.3d 192, 199 (D.C. Cir.

2011) (alteration in original) (internal quotation marks

omitted). The District contends that this case has become

moot because MASF no longer exists, thus eliminating it as a

party whose rights could be affected.

MASF, as the party invoking our jurisdiction, “bears the

burden of establishing” its standing, Lujan, 504 U.S. at 561, a

burden that is “correlative to the burden” to establish the

substantive elements of its claims, Sierra Club v. E.P.A., 292

F.3d 895, 900 (D.C. Cir. 2002). Even though the District did

not challenge MASF’s existence when it moved for summary

judgment because it learned of the evidence that it believes

calls MASF’s existence into question only after noticing its

appeal, we consider MASF’s standing de novo, as we would

had it been challenged at the procedural stage to which the

case had progressed in the district court. Scenic America, Inc.

v. Anthony Foxx, 836 F.3d 42, 49-50 (D.C. Cir. 2016).

Accordingly, on appeal from denial of summary judgment in

MASF’s favor, there must be no material dispute about the

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facts that support its standing. We view the evidence and

inferences therefrom in the light most favorable to the District

as the nonmoving party on MASF’s cross-motion for

summary judgment. See Dunaway v. Int’l Bhd. of Teamsters,

310 F.3d 758, 761 (D.C. Cir. 2002).

Imam Bray’s affidavit suffices as an authoritative

statement of MASF’s continued existence as an

unincorporated nonprofit association under District of

Columbia law. An “unincorporated nonprofit association” is

“an unincorporated organization, consisting of 2 or more

members joined under an agreement that is oral, in a record,

or implied from conduct, for one or more common, nonprofit

purposes.” D.C. Code § 29-1102(5) (2016). Such a nonprofit

is “a legal entity distinct from its members and managers” and

has “perpetual duration” unless otherwise provided. Id. § 29-

1105(a), (b). To operate as an unincorporated nonprofit

association an organization need not be registered with the

District, see id. § 29-1102(5), and it has the capacity on a

member or manager’s initiative to sue in its own name, id. §

29-1109.

In his affidavit, Imam Bray attested that, “[t]hroughout

the period of litigation, there have always been two or more

persons (i.e. ‘members’ as that term is used in the District’s

Uniform Unincorporated Nonprofit Association Act) who

have participated in the management of the affairs of MASF

or in the development of the policies and activities of MASF.”

Bray Affidavit ¶ 4, Organizations’ Add. 2. The District has

no evidence that the organization in fact lacks “2 or more

members,” D.C. Code § 29-1102(5), who have joined together

for a “common, nonprofit purpose,” id., namely “to engage in

civil and human rights advocacy with a focus on empowering

the Muslim American community,” Bray Affidavit ¶ 6,

Organizations’ Add. 2.

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The District challenges MASF’s existence based on an

online newspaper report and a record from the District of

Columbia Department of Consumer and Regulatory Affairs.

While this appeal was pending, the District learned of an

online Muslim Link article reporting that MASF “announced

its closure on June 17, 2011.” Gov’t Add. 40. The Link cited

a statement from someone identifying himself as a MASF

member that the organization did not have “the resources that

would allow [continuing] advocacy and organizing work.” Id.

(alterations in original). In the online “comments” section of

the document as printed and filed by the District, however, a

member of the Muslim American Society’s Board of

Trustees, Mazan Mokhtar, explained that the “reports of MAS

Freedom’s closing are greatly exaggerated.” Gov’t Add. 42.

Imam Bray’s declarations attest to MASF’s continued

existence. Bray Affidavit ¶¶ 10-29, Organizations’ Add. 3-9.

The conclusory and ambiguous Link document,

unaccompanied by a declaration of the quoted individual or

anyone else attesting to personal knowledge of the putative

closing, fails to call into question MASF’s continued

existence.

The District also points to a record from the District of

Columbia Department of Consumer and Regulatory Affairs

(DCRA) stating that an entity referred to as “MASF, Inc.,”

had its incorporation status “revoked.” See Gov’t Br. Add.

44. MASF, however, avers that it is not the organization

described in that DCRA record. MASF’s complaint does not

refer to the organization as “MASF, Inc.,” see First Amended

Complaint at 5, ANSWER I, 570 F. Supp. 2d 72 (No. 07-

1495), nor is it so described in the corporate disclosure

statement to this court, see Corporate Disclosure Statement,

Docketed February 28, 2013. For further confirmation,

MASF points to Imam Bray’s sworn affidavit attesting that

MASF has never been incorporated. See Bray Affidavit,

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Organizations’ Add. 2-3. Imam Bray explains that he “was

involved with the formation and abandonment of that short-

lived separate corporation. Those papers were filed with the

intent to create a 501(c)(4) corporation that would engage in

activities coinciding with the 2008 Presidential election.

However, the project was abandoned. The incorporation

papers were, essentially, a false start.” Id. at 3. Thus, the

District has not raised a material factual dispute as to whether

the organization whose incorporation is listed as “revoked” is

the party before us.

Neither of the District’s submissions suffices to call into

question MASF’s continued existence.

2. MASF Has Established its Injury. The District also

contends that, even if MASF exists, the lamppost regulation

causes it no injury.

MASF brings a pre-enforcement challenge to the

regulation before it has faced any punishment. As we

explained when this case was previously before us, “standing

to challenge laws burdening expressive rights” may require

“only ‘a credible statement by the plaintiff of intent to commit

violative acts and a conventional background expectation that

the government will enforce the law.’” ANSWER II, 589 F.3d

at 435 (quoting Seegars v. Gonzales, 396 F.3d 1248, 1253

(D.C. Cir. 2005)). Here, MASF encounters “somewhat more

than the ‘conventional background expectation that the

government will enforce the law.’” Id. (quoting Seegars, 396

F.3d at 1253). Given the District’s energetic issuance of

multiple citations against ANSWER, the threat of

enforcement against MASF is not “imagined or wholly

speculative,” Seegars, 396 F.3d at 1252, nor is there reason to

think “the challenged law is rarely if ever enforced,” id.

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The District now argues that the 2012 amendment of the

lamppost regulation during the pendency of this case has

eliminated the risk of harm that MASF identified. The

District says that MASF has “never asserted an intent to

poster in violation of the regulations invalidated on summary

judgment”—i.e., the current rule, as promulgated in 2012.

Gov’t Br. at 27. MASF’s only claimed injury, the District

contends, stems from the disfavored status afforded to signs

not related to an event under the superseded 2010

Regulation—a disadvantage the current regulation eliminates.

The 2010 rule favored signs related to an event but, in

eliminating that leeway, the 2012 version could be viewed to

have swung too far in the other direction so as to disfavor

event-related signs. See 59 D.C. Reg. 273 (2012). Under the

2010 rule, signs “not related to a specific event” could be

posted for up to 60 days; the rule did not specify how far in

advance signs “related to a specific event” might be posted, so

long as they were removed within 30 days of the event. 57

D.C. Reg. 528 (Jan. 8, 2010). Thus, the 2010 rule on its face

allowed event-related signs to remain on lampposts for

months or years leading up to an event, while it restricted total

posting time for signs not related to an event. Under the

current rule as amended in 2012, however, no sign—whether

or not related to an event—may remain affixed to a public

lamppost for more than 180 days. D.C. MUN. REGS. tit. 24,

§ 108.5 (2012). Signs relating to a specific event must, as

before, be removed within 30 days after the event. Id.

§ 108.6. The current rule thus treats event-related signs, in

some circumstances, less favorably than signs unrelated to

any event: Assuming an event-related sign is posted fewer

than 150 days before the event, the requirement that it be

removed within 30 days after the event means it may not be

displayed for the full 180-day period it would otherwise enjoy

under the regulation if it were unrelated to an event.

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The District notes that MASF filed its amended

complaint on the heels of the 2010 rule, and contends that the

Complaint expressed only MASF’s intent to violate the then-

comparatively-restrictive 60-day limit that the 2010 rule

imposed on signs not related to an event. But MASF’s intent

is not so narrowly circumscribed: It intends to “engage in

postering to the same extent as is afforded others.” Bray

Affidavit ¶ 32, Organizations’ Add. 9. The organization has

reasserted, since the rule revision in 2012, that it plans to post

signs that would “violate the challenged regulations,

specifically keeping them affixed for 180 days despite the

regulations requiring any poster that is ‘related to a specific

event’ to be removed 30 days post-event.” Id. ¶ 35. MASF

also intends to post signs that contain both information related

to events and information of continuing relevance and

expresses uncertainty as to whether such signs are subject to

the 30-day post-event limitation. See id. ¶ 37. The District’s

arguments that MASF lacks standing therefore fail.

B. The District’s Rule Does Not Violate the First

Amendment

The District’s regulation of the public’s use of city

lampposts as convenient places to post signs is a content-

neutral time, place, and manner restriction that is sufficiently

tailored to a significant governmental interest in avoiding

clutter to comport with the First Amendment. As the district

court held, “the District’s lampposts are a textbook example

of a limited or designated public forum.” ANSWER III, 798 F.

Supp. 2d at 145. The District might have chosen not to make

its lampposts available as a place for the people to put up their

signs. Members of the City Council v. Taxpayers for Vincent,

466 U.S. 789, 814-15 (1984). But once it allows members of

the public to post signs on its lampposts, the government

lacks the “power to restrict expression because of its message,

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its ideas, its subject matter, or its content.” Police Dep’t of

City of Chicago v. Mosley, 408 U.S. 92, 95 (1972).

The level of constitutional scrutiny is determinative here.

MASF contends that the lamppost rule is content-based so

subject to strict scrutiny under Reed v. Town of Gilbert,

whereas the District of Columbia says the rule is a content-

neutral time, place, and manner restriction quite different

from the content-based sign-posting regulations struck down

in Reed. “Content-based laws—those that target speech based

on its communicative content—are presumptively

unconstitutional and may be justified only if the government

proves that they are narrowly tailored to serve compelling

state interests.” Reed, 135 S. Ct. at 2226. Government may,

however, impose content-neutral limitations on the duration

and manner in which the public uses government property for

expressive conduct like sign-posting. “‘[C]ontent-neutral’

time, place, and manner regulations are acceptable so long as

they are designed to serve a substantial governmental interest

and do not unreasonably limit alternative avenues of

communication.” City of Renton v. Playtime Theatres, Inc.,

475 U.S. 41, 47 (1986).

We review de novo the district court’s grant of summary

judgment to the organizations on their First Amendment

claim. Hodge v. Talkin, 799 F.3d 1145, 1155 (D.C. Cir.

2015).

1. The Rule Is Content Neutral. The District of

Columbia’s lamppost rule makes a content-neutral distinction

between event-related signs and those not related to an event.

The District requires that, whatever their content or

viewpoint, event-related signs be removed within thirty days

after the event to prevent them from accumulating as visual

clutter. That rule is not a “regulation of speech,” but “a

17

regulation of the places where some speech may occur.” Hill

v. Colorado, 530 U.S. 703, 719 (2000). It does not target the

“communicative content” of those signs, such as by

distinguishing among various events by topic, see Reed, 135

S. Ct. at 2226-27, but uniformly restricts the duration that

event notices may remain physically affixed to public

lampposts. The rule’s clutter-minimizing rationale does not

depend on the content of a sign’s message. See Hill, 530 U.S.

at 723; United States v. O’Brien, 391 U.S. 367, 376 (1968).

Content distinctions are of special concern under the First

Amendment because they pose the risk that government is

favoring particular viewpoints or subjects. But a broad-based,

general distinction between event-based signs and other signs

poses no such risk. It instead simply reflects the common-

sense understanding that, once an event has passed, signs

advertising it serve little purpose and contribute to visual

clutter. The promulgation and function of the District of

Columbia’s wholly viewpoint neutral lamppost rule reveals

“not even a hint of bias or censorship.” Taxpayers for Vincent,

466 U.S. at 804.

The fact that District officials may look at what a poster

says to determine whether it is “event-related” does not render

the District’s lamppost rule content-based. The “event-

related” definition is just as content neutral as was Colorado’s

“free zone” sustained in Hill, which prevented persons

approaching patients on the sidewalk outside abortion clinics

to come closer than eight feet to engage “in ‘oral protest,

education, or counseling’ rather than pure social or random

conversation.” 530 U.S. at 721. The Court in Hill

acknowledged that “the content of the oral statements made

by an approaching speaker must sometimes be examined to

determine whether the knowing approach is covered by the

statute,” but noted that such “cursory examination” did not

18

render the statute facially content based. Id. at 720, 722. So,

too, laws banning “picketing,” and injunctions aimed at

“demonstrating” that do not bar other types of expressive

conduct are not rendered content based merely because, at a

general level, the character of the expressive activity must be

taken into account to discern whether the law applies. See id.

at 722-23 & n.30 (citing Schenck v. Pro-Choice Network of

Western New York, 519 U.S. 357, 366-67 n.3 (1997); Madsen

v. Women’s Health Ctr., Inc., 512 U.S. 753, 759 (1994);

Frisby v. Schultz, 487 U.S. 474 (1988); United States v.

Grace, 461 U.S. 171 181 n.10 (1983); Police Dept. of

Chicago v. Mosley, 408 U.S. at 98). So, too, the fact that a

District of Columbia official might read a date and place on a

sign to determine that it relates to a bygone demonstration,

school auction, or church fundraiser does not make the

District’s lamppost regulation content based.

MASF contends that Reed requires us to apply strict

scrutiny because “[t]he regulation singles out specific subject

matter—that deemed ‘related to a specific event’—for

differential treatment,” and that, per Reed, there is no

“exception from the content-neutrality requirement for event-

based laws.” Cross-Appellants’ Supp. Br. at 6 (quoting Reed,

135 S. Ct. at 2231). But Reed does not view a bare distinction

between event-related and other signs as itself content-based.

The aspect of the Sign Code invalidated in Reed that the

Court held to be content-based was its further distinctions

among signs—including among event-related signs—based

on their subject matter.

The Town of Gilbert’s complex Sign Code exempted

twenty-three categories of signs—based on their content—

from the town’s general ban on posting outdoor signs, and

made additional content distinctions among the categories of

exempted signs, including several content distinctions among

19

event-related signs. 135 S. Ct. at 2224-25. In particular, the

Sign Code gave different amounts of leeway to event-related

signs depending on whether the event was, for example,

political, commercial, construction-related, “special-event,” or

religious or charitable. Political signs, including any

“temporary sign designed to influence the outcome of an

election called by a public body,” id. (quoting Gilbert, Ariz.,

Land Development Code (Sign Code or Code), Glossary of

General Terms, at 23 (2005)), enjoyed relatively generous

time limits; they could be posted for up to sixty days before a

primary election, and, if the candidate to which they referred

advanced to the general election, they could remain posted

until fifteen days following the general election, id. at 2225.

Signs relating to Temporary Uses and Special Events could be

posted up to 24 hours in advance and remain posted through

the day of the event, whereas Garage Sale signs and Bazaar

signs could remain posted only until the “end of the sale.”

Gilbert, Ariz., Land Development Code, Art. 4.402(K), (O),

(Y). The Gilbert Sign Code permitted builders to post

weekend directional signs “no earlier than 4:00 p.m. on

Friday of each week” and had to remove them “no later than

8:00 a.m. on the following Monday.” Id. Art. 4.405(B)(2)(f).

The Town of Gilbert’s Sign Code gave least favorable

treatment to the kind of sign that the petitioner church in Reed

sought to use: “Temporary Directional Signs Relating to a

Qualifying Event.” 135 S.Ct. at 2225. Such a sign, defined

as one that directed people to any “assembly, gathering,

activity, or meeting sponsored, arranged, or promoted by a

religious, charitable, community service, educational, or other

similar non-profit organization,” could only be displayed for

twelve hours before the event, and had to be removed within

an hour after the event. Id. The Sign Code thus afforded

more leeway to electioneering signs and even signs relating to

specified Temporary Uses such as farmers’ markets or

20

fireworks displays than to signs for morning church services,

which for the most part could not go up until after dark in

winter, and had to be removed the next morning before coffee

and doughnuts were fully digested.

The rule the organizations here challenge, in contrast,

distinguishes only between signs that are event-related and

signs that are not. That distinction is not itself content-based

under Reed. The organizations assert that Reed held that the

“event-based” category is necessarily content-based because it

“singles out specific subject matter—that deemed ‘related to a

specific event’—for differential treatment.” Appellee Supp.

Br. at 6. But Reed did not so hold. The passage the

organizations invoke was directed at the notion the court of

appeals had advanced that an otherwise “obvious content-

based inquiry,” such as the distinction between “political” and

“ideological” signs relating to an upcoming election, would

be somehow rendered content-neutral and thereby “evade

strict scrutiny review simply because an event (i.e. an

election) is involved.” Reed, 135 S. Ct. at 2231.

Indeed, Reed makes clear that a municipality may

continue to treat event-related signs differently from non-

event-related signs by means of time, place, and manner

restrictions, as long as it does not distinguish among types of

event based on content. What Reed held constitutionally

suspect was the way in which the Town of Gilbert’s Sign

Code made content-based distinctions among different types

of issues and events, and even different types of signs relating

to the same event. See Reed, 135 S Ct. at 2227. Unlike the

content-based treatment of event-related signs invalidated in

Reed, District of Columbia law treats all event-related signs

alike and is thus content neutral.

21

The Court in Reed emphasized that differences in time

limits depending on the “communicative content” of the signs

was what subjected the Town of Gilbert Sign Code to strict

scrutiny. See id. at 2227. Because Gilbert’s Sign Code

treated “the Church’s signs inviting people to attend its

worship services . . . differently from signs conveying other

types of ideas,” it was content-based regulation. Id. The

Court emphasized that the Sign Code’s distinctions did not

merely “hinge on ‘whether and when an event is occurring,’”

and did not just “permit citizens to post signs on any topic

whatsoever within a set period leading up to an election.” Id.

at 2231. Rather, the Code impermissibly required town

officials to examine each sign to determine whether, for

example, it was “designed to influence the outcome of the

election” and so must come down within fifteen days

thereafter, or more generally “ideological,” in which case no

time limit applied. Id. at 2231.

Justice Alito’s concurring opinion in Reed even more

squarely rejects the position the organizations advance here

that the distinction between event-related and other signs is

itself content-based. Writing for three of the six justices in

the majority, Justice Alito specifies that a regulation

“imposing time restrictions on signs advertising a one-time

event” does not by token of the “event-related” category as

such amount to a content-based distinction. Id. at 2233

(Alito, J., concurring). Rules treating event-related signs as a

group differently based on their time-limited nature “do not

discriminate based on topic or subject and are akin to rules

restricting the times within which oral speech or music is

allowed.” Id. That is, such rules are time, place, or manner

restrictions, constitutionally permissible if they are narrowly

tailored to serve a significant governmental interest. The

three justices who concurred in Reed also clearly would not

strictly scrutinize the rule we face here. See id. at 2236

22

(Breyer, J., concurring in the judgment) (concluding that even

the regulation at issue there “does not warrant ‘strict

scrutiny’”); id. at 2236-38 (Kagan, J., joined by Ginsburg and

Breyer, JJ., concurring in the judgment) (“The absence of any

sensible basis for these and other distinctions dooms the

Town’s ordinance under even the intermediate scrutiny that

the Court typically applies to ‘time, place, or manner’ speech

regulations. Accordingly, there is no need to decide in this

case whether strict scrutiny applies to every sign ordinance in

every town across this country containing a subject-matter

exemption.”).

All four of the opinions in Reed confirm that the District

of Columbia’s lamppost rule is not a content-based regulation

of speech. The District’s rule governs the time event-related

signs may remain on public lampposts after the event has

passed because obsolete signs cause a particular aesthetic

harm; the rule makes no distinctions among event-related

signs based on their particular communicative content.

Reed’s definition of content-based regulation does not sweep

in rules like the District’s that merely distinguish between all

signs related to events and all non-event-related signs. It is

therefore not subject to the strict scrutiny applicable to

content-based regulation of speech, but must only meet the

lesser constitutional scrutiny applicable to content-neutral

rules affecting speech.

Accordingly, we proceed to consider the validity of the

regulation under the standard applicable to content-neutral

regulation of speech.

2. The Regulation Withstands Intermediate Scrutiny.

Even if the regulation is content neutral, MASF argues, it

nevertheless violates the First Amendment. The district court

granted partial summary judgment to MASF on the ground

23

that the regulation could not pass muster under the

intermediate scrutiny applicable to content-neutral regulation

of speech.

A basic principle of the First Amendment—that “[e]ven

protected speech is not equally permissible in all places and at

all times,” Cornelius v. NAACP Legal Def. & Educ. Fund,

Inc., 473 U.S. 788, 799 (1985)—permits the government to

impose “reasonable time, place, and manner regulations as

long as the restrictions ‘are content-neutral, are narrowly

tailored to serve a significant government interest, and leave

open ample alternative channels of communication.’” United

States v. Grace, 461 U.S. 171, 177 (1983) (quoting Perry

Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45

(1983)); see Clark v. Cmty. for Creative Non-Violence, 468

U.S. 288, 298 n.8 (1984). Those same standards apply

whether the regulated speech occurs in a traditional public

forum—i.e. streets and parks—or on public property that the

government has designated for the public’s use as a forum for

speech and other expressive conduct, such as the lampposts in

this case. Perry Educ. Ass’n, 460 U.S. at 45-46. It is the

District of Columbia’s burden to show that its regulation

serves a substantial governmental purpose and is tailored to

that purpose. See McCullen v. Coakley, 134 S. Ct. 2518, 2540

(2014); Edwards v. District of Columbia, 755 F.3d 996, 1002-

03 (D.C. Cir. 2014). We conclude that it meets that burden

here.

The District’s interest is plainly significant.

“[M]unicipalities have a weighty, essentially esthetic interest

in proscribing intrusive and unpleasant formats for

expression.” Taxpayers for Vincent, 466 U.S. at 806; see also

Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 507-08

(1981) (finding no “substantial doubt” that the governmental

objective of furthering “the appearance of the city” is a

24

“substantial governmental goal[]”); Mahoney v. Doe, 642

F.3d 1112, 1118 (D.C. Cir. 2011). The district court accepted

that the prevention of clutter and litter is a substantial interest,

see ANSWER IV, 905 F. Supp. 2d at 334 n.4, and MASF does

not challenge that conclusion here, see Organizations’ Br. 44.

Instead, MASF argues that the District of Columbia has

failed to show that its regulation actually serves that interest.

But the event-related distinction in the District’s regulation

turns on the very non-speech feature of that activity that

makes it proscribable in the first place—that is, the visual

blight of superannuated event signs. The District

distinguishes event-related from non-event-related signs

based on its “weighty, essentially esthetic interest in

proscribing intrusive and unpleasant formats for expression.”

Taxpayers for Vincent, 466 U.S. at 806. The District’s

reasoning is straightforward: All signs have both

communicative value and aesthetic costs. Leading up to an

event, the communicative value of a sign related to that event

outweighs the aesthetic harm that sign causes. But after the

event, the communicative value of the sign is greatly

diminished. The sign then becomes, from the District’s

perspective, little more than visual clutter. See Robbins Letter

at 2. There is also greater risk that an event-related sign will

be abandoned after the event it announces, and not maintained

like a sign with continuing relevance. Failure to remove such

a sign is itself a manifestation of neglect.

As the Supreme Court has explained, where the basis for

distinguishing between types of communicative conduct

“consists entirely of the very reason the entire class of speech

at issue is proscribable, no significant danger of idea or

viewpoint discrimination exists.” R.A.V. v. City of St. Paul,

505 U.S. 377, 388 (1992). Such is the case here. That is not

to say that an event-related sign loses all communicative

25

value after the event has occurred. A viewer might have some

interest, for example, in knowing what kinds of events had

taken place (or been advertised) in the neighborhood in the

past, even though she had missed the event itself. That an

event-related sign might have some residual continuing

relevance, however, does not bar the District from

determining, in a content-neutral, across-the-board manner,

that the visual clutter outweighs any such interest.

The district court held that the District, “by submitting no

evidence whatsoever” of the relationship between its

admittedly substantial interest and the challenged regulation,

had failed to meet its burden on summary judgment.

ANSWER IV, 905 F. Supp. 2d at 344. The District responds

that it has sought, since it first established criteria for

permitting the public to post signs on District lampposts, to

protect “legitimate governmental interests in caring for city

lampposts and neighborhood aesthetics while

contemporaneously affording citizens ample opportunity to

exercise their First Amendment rights.” D.C. Council, Report

on Bill 3-179, at 3 (Sept. 26, 1979). The District was not

required in these circumstances to submit studies, statistics or

other empirical evidence in order to defend the event-related

distinction as a narrowly tailored means to serve its

substantial aesthetic interest. That relationship is less a matter

to be established by empirical evidence than it is the result of

a straightforward line of reasoning: “A poster for an event

that has already occurred is more likely to constitute litter and

blight than a poster for a future event” or a non-event-related

sign. ANSWER III, 798 F. Supp. 2d at 148. As the Supreme

Court has observed, “[t]he quantum of empirical evidence

needed to satisfy heightened judicial scrutiny of legislative

judgments will vary up or down with the novelty and

plausibility of the justification raised.” Nixon v. Shrink

Missouri Gov’t PAC, 528 U.S. 377, 391 (2000).

26

The District’s aesthetic judgment that an event-related

sign for an event that has passed contributes to visual clutter

is utterly plausible and not novel. See Nat’l Ass’n of Mfrs. v.

Taylor, 582 F.3d 1, 16 (D.C. Cir. 2009) (explaining that

because “a value judgment based on the common sense of the

people’s representatives” is not like a justification based on

“economic analysis that [is] susceptible to empirical

evidence,” such a common-sense judgment need not be

supported by an evidentiary showing); see also Blount v.

S.E.C., 61 F.3d 938, 944-45 (D.C. Cir. 1995) (holding that

there is no need to show evidence of any specific quid pro quo

to support the regulation against First Amendment challenge

because the dynamic to which regulation responded was “self-

evident[]”). The justification for the rule’s requirement that

event-related signs be removed within thirty days of the event

is just the sort of common-sense judgment for which

empirical data is likely to be both unavailable and

unnecessary.

The District has also shown that its lamppost rule leaves

open ample alternative channels of communication. The rule

does not limit anyone’s ability to say in multiple ways and for

unlimited duration the very same thing she or he seeks to

announce on lamppost posters. People may hand out leaflets

or speak to passers-by with the same message, or put that

message on bumper stickers. They may circulate or march

wearing or holding the very same signs, post or erect the same

signs on private property with the owners’ permission, and

post messages on various electronic and physical billboards,

publications, or pages to communicate about their events.

Nothing in the challenged rule prevents anyone from using

such channels for as long as they like, even after their event

has taken place. The challenged rule merely limits event-

related posters from continuing to occupy the limited space on

27

publicly owned lampposts more than thirty days after the

relevant event has passed.

There are admitted advantages to postering: It is a

relatively inexpensive method for an organization to

broadcast its message; it can be targeted to a particular

neighborhood; and it requires less time commitment than

leafletting or a direct-advocacy campaign. See, e.g.,

Taxpayers for Vincent, 466 U.S. at 812. But the District’s

regulation does not foreclose affixing posters to public

lampposts as a channel of communication; it merely imposes

reasonable limits on the duration that a poster may be left up

after the event has passed. Moreover, as the Supreme Court

explained in upholding a complete ban on the posting of signs

on publicly owned lampposts, even a full ban does

not affect any individual’s freedom to exercise the

right to speak and to distribute literature in the same

place where the posting of signs on public property is

prohibited. To the extent that the posting of signs on

public property has advantages over these forms of

expression, there is no reason to believe that these

same advantages cannot be obtained through other

means.

Id. at 812 (citation and footnote omitted); see also id. n.30.

The District’s regulation amounts to a reasonable time,

place, and manner restriction. Given the nature and

plausibility of the District’s justification for requiring event-

related signs to be removed within thirty days of the event,

there was no need for the District to introduce evidence

demonstrating the relationship between that justification and

the regulation.

28

C. MASF’s Vagueness Challenge Fails

MASF presents a further facial challenge to the lamppost

regulation on the ground that it is unconstitutionally vague. A

law may be vague in violation of the Due Process Clause for

either of two reasons: “First, it may fail to provide the kind of

notice that will enable ordinary people to understand what

conduct it prohibits; second, it may authorize and even

encourage arbitrary and discriminatory enforcement.” City of

Chicago v. Morales, 527 U.S. 41, 56 (1999); see F.C.C. v.

Fox Television Stations, Inc., 132 S. Ct. 2307, 2317 (2012).

MASF made both types of arguments to support its vagueness

claim, but in granting summary judgment to MASF the

district court addressed only the discriminatory-enforcement

theory, holding that the definition of “event” in section 108.13

of the regulation delegates impermissible enforcement

discretion to the District’s inspectors. ANSWER IV, 905 F.

Supp. 2d at 348. The court found it unnecessary to decide

whether section 108.13 also fails to give constitutionally

adequate notice of what amounts to an event-related sign, see

id., and on appeal MASF does not press a notice theory of

vagueness. We therefore consider only whether section

108.13 delegates impermissibly unbridled enforcement

discretion.

First, we address a potential threshold obstacle. The

District contends that a facial vagueness challenge is

foreclosed by the Supreme Court’s decision in Holder v.

Humanitarian Law Project, 561 U.S. 1 (2010). Under

Humanitarian Law Project, a party whose own expressive

activity is clearly proscribed cannot challenge a law’s

vagueness as it might apply to facts not before the court. Id.

at 20. Humanitarian Law Project addressed “only whether

the statute ‘provide[s] a person of ordinary intelligence fair

notice of what is prohibited,’” 561 U.S. at 20 (quoting United

29

States v. Williams, 553 U.S. 285, 304 (2008)), observing that

“Plaintiffs do not argue that the material-support statute grants

too much enforcement discretion to the Government.” Id.

We are aware of no decision that has applied Humanitarian

Law Project to bar a facial challenge like MASF’s that a law

is so vague as to subject the challenger itself to standardless

enforcement discretion. See Fox, 132 S. Ct. at 2317-18

(assuming facial vagueness challenges remain available when

based on an enforcement-discretion theory).

Indeed, it is not apparent how the Humanitarian Law

Project rule—barring a person to whom a legal provision

clearly applies from challenging its facial failure to give

sufficient notice to others, see 561 U.S. at 20—could apply to

a claim that a law is so vague as to fail to guide the

government’s enforcement discretion. At least in a pre-

enforcement posture, such a claim is by its nature facial.

“Self-censorship is immune to an ‘as applied’ challenge, for it

derives from the individual’s own actions, not an abuse of

government power.” City of Lakewood v. Plain Dealer

Publ’g Co., 486 U.S. 750, 757 (1988). “It is not merely the

sporadic abuse of power by the censor but the pervasive threat

inherent in its very existence that constitutes the danger to

freedom of discussion.” Thornhill v. Alabama, 310 U.S. 88,

97 (1940). Therefore, “only a facial challenge can effectively

test the statute.” City of Lakewood, 486 U.S. at 758; see also

Morales, 527 U.S. at 52 (holding that vagueness that “fails to

establish standards for the police and public that are sufficient

to guard against the arbitrary deprivation of liberty interests”

is subject to facial challenge).

Whereas Humanitarian Law Project determined that the

law’s applicability to the particular plaintiff was clear, a court

faced with an arbitrary-enforcement theory has no way to

discern in advance whether the exercise of unbridled

30

enforcement discretion will spare the plaintiff’s

constitutionally protected expression from prosecution. Cf.,

e.g., Forsyth Cty. v. Nationalist Movement, 505 U.S. 123, 133

n.10 (1992) (describing as “irrelevant” the uncodified criteria

actually applied to the challenger’s case by officials allegedly

imbued with undue enforcement discretion). And once

enforcement discretion has been exercised to punish

constitutionally protected expression and the speaker defends

on that ground, the vagueness defect escapes review. We thus

proceed on the assumption that a facial, pre-enforcement

vagueness challenge of the kind MASF presents here is

consistent with Humanitarian Law Project. Cf. Agostini v.

Felton, 521 U.S. 203, 237 (1997) (noting that lower courts

should not conclude that cases overrule precedent by

implication).

On the merits of MASF’s claim that section 108.13 is

void for vagueness, we begin with the “basic principle of due

process that an enactment is void for vagueness if its

prohibitions are not clearly defined.” Grayned v. City of

Rockford, 408 U.S. 104, 108 (1972). A statute authorizes an

impermissible degree of enforcement discretion—and is

therefore void for vagueness—where it fails to “set

reasonably clear guidelines for law enforcement officials and

triers of fact in order to prevent ‘arbitrary and discriminatory

enforcement.’” Smith v. Goguen, 415 U.S. 566, 573 (1974)

(quoting Grayned, 408 U.S. at 108). “When speech is

involved,” the Supreme Court has cautioned, “rigorous

adherence” to the requirement of a reasonable degree of

clarity “is necessary to ensure that ambiguity does not chill

protected speech.” Fox, 132 S. Ct. at 2317.

Section 108.13 sets reasonably clear guidelines for law

enforcement officers to determine whether a sign is event

related, and therefore is not unconstitutionally vague. The

31

regulation defines an “event” as “an occurrence, happening,

activity or series of activities, specific to an identifiable time

and place, if referenced on the poster itself or reasonably

determined from all circumstances by the inspector.” D.C.

MUN. REGS. tit. 24, § 108.13. Section 108.13 does not give

enforcement officials so little guidance as to permit them to

“act in an arbitrary or discriminatory way.” Fox, 132 S. Ct. at

2317. In any system that relies on the administration of laws

of general applicability in many different circumstances, some

degree of ambiguity is all but inevitable. And, indeed, there is

some evidence in this record that section 108.13 is susceptible

of inconsistent application. “What renders a statute vague,”

however, “is not the possibility that it will sometimes be

difficult to determine whether the incriminating fact it

establishes has been proved; but rather the indeterminacy of

precisely what that fact is.” Williams, 553 U.S. at 306. Here,

the fact targeted by the “event-related” limitation is clear: To

relate to an “event,” a sign must relate to “an occurrence,

happening, activity or series of activities, specific to an

identifiable time and place.” That is not a vague standard.

Those laws that courts have held to be constitutionally

infirm for vagueness gave significantly less guidance to

enforcement agents than does 108.13’s definition of an event-

related sign. In Kolender, for example, a statute requiring a

suspect to present “credible and reliable” identification gave

police impermissibly open-ended enforcement discretion.

Kolender v. Lawson, 461 U.S. 352, 358-60 (1983). That

statute “contain[ed] no standard for determining” how to meet

the highly subjective “credible and reliable” requirement. Id.

at 358. In Niemotko v. Maryland, too, no standard or

guideline whatsoever cabined the Park Commissioner’s and

the City Council’s discretion whether to grant a permit to hold

a demonstration in the city park; officers were empowered to

rely on nothing more than their own inclinations regarding

32

each permit request. 340 U.S. 268, 271-72 (1951); see also,

e.g., Armstrong v. D.C. Pub. Library, 154 F. Supp. 2d 67, 81-

82 (D.D.C. 2001) (striking for vagueness a regulation

prohibiting “objectionable” appearance in a library). The

District of Columbia’s criteria for defining an “event-related”

lamppost sign, in contrast, adequately specify that the post-

event time limitation applies to signs announcing an event or

series of events of the type that occur at a specified time and

place.

MASF sees impermissible leeway in section 108.13’s

explicit recognition of the enforcement officer’s authority to

refer to “all circumstances” to determine whether a poster is

event related. See D.C. MUN. REGS. tit. 24, § 108.13. In

particular, section 108.13 directs enforcement officers to

consider not only the poster itself, but to use their common

sense and background knowledge to determine whether, in

context, a poster in fact relates to “an occurrence, happening,

activity or series of activities, specific to an identifiable time

and place.” Thus, the event-relatedness of even a terse sign

announcing a renowned local athletic event, a seasonal charity

event, or a candidate for election could be determined to be

event related in part based on circumstances apart from the

poster itself. Nothing about such an inquiry renders the law

vague. To the extent enforcement agents draw on

surrounding circumstances to unreasonably infer that a sign is

event related in accordance with the District’s rule, the event-

relatedness restriction would not apply. See D.C. MUN. REGS.

tit. 24, § 108.13. So long as their inferences are reasonable,

however, the rule’s open-endedness about the evidence that

may be used to meet that standard does not convert its

otherwise clear limitation into an impermissibly vague one.

MASF highlights deposition testimony from the

District’s inspectors that, it argues, shows the unconstrained

33

discretion section 108.13 affords the police inspectors.

Inspectors confirmed that they had some leeway to assess

event-relatedness, see ANSWER IV, 905 F. Supp. 2d at 347 &

n.10, and were not unanimous as to whether a 2012 poster

stating simply “GRAHAM!” pertained to the reelection

campaign of City Council member Jim Graham and so was

event-related. MASF also highlights testimony of Inspectors

who had difficulty deciding the time limitation applicable to

posters listing multiple events with different dates. But the

most that evidence shows is that section 108.13 might be

misapplied in certain cases. It does not show that section

108.13 lacks criteria to cabin enforcement discretion.

As the Supreme Court explained in the analogous context

of a facial First Amendment challenge to a licensing scheme,

“the success of a facial challenge on the grounds that an

ordinance delegates overly broad discretion to the

decisionmaker rests not on whether the administrator has

exercised his discretion [unlawfully], but whether there is

anything in the ordinance preventing him from doing so.”

Forsyth Cty, 505 U.S. at 133 n.10. The District’s regulation

guards against the unlawful exercise of discretion by

delimiting what qualifies as an event: “an occurrence,

happening, activity or series of activities, specific to an

identifiable time and place.” D.C. MUN. REGS. tit. 24,

§ 108.13. Ostensible vagueness about “whether the

incriminating fact . . . has been proved” is not vagueness at

all. Williams, 553 U.S. at 306. We accordingly hold that

section 108.13 is not void for vagueness.

D. The District Court Correctly Dismissed the

Organizations’ Other Claims

We next consider the organizations’ cross-appeal. They

appeal from the district court’s 2011 dismissal of ANSWER’s

34

claim that the District retaliated against it in violation of the

First Amendment by citing as violations posters that were

lawful under the regulation. ANSWER III, 798 F. Supp. 2d at

153-55. They also appeal the court’s dismissal of MASF’s

claim that the District’s regulation imposes a system of “strict

liability” in violation of the First Amendment. Id. at 152-53.

We review de novo the district court’s decision under Rule

12(b)(6) to dismiss those claims, see English v. District of

Columbia, 717 F.3d 968, 971 (D.C. Cir. 2013), and we affirm.

1. ANSWER Fails to State a § 1983 Claim. In its

complaint, ANSWER alleged that the District’s issuance of

ninety-nine notices of violation against it had been “in bad

faith and for the purpose of harassment.” Supplemental

Complaint ¶¶ 42-43, ANSWER III, 798 F. Supp. 2d 134 (No.

07-1495). The district court found that ANSWER had

plausibly pled a constitutional violation, but dismissed the

complaint for failure to allege that a custom or policy of the

District had caused that violation. ANSWER III, 798 F. Supp.

2d at 154-55.

Section 1983 “give[s] a remedy to parties deprived of

constitutional rights, privileges and immunities by an

official’s abuse of his position.” Monroe v. Pape, 365 U.S.

167, 172 (1961) overruled on other grounds by Monell v.

Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978).

Both states and cities can be sued under section 1983, Monell,

436 U.S. at 663, 690, and for that purpose the District of

Columbia is treated as a city, Jones v. Horne, 634 F.3d 588,

600 (D.C. Cir. 2011). The District may be liable under

section 1983, but only to the extent permitted under Monell—

i.e., only based on action that “implements or executes a

policy statement, ordinance, regulation, or decision officially

adopted and promulgated by that body’s officers” or for harm

“visited pursuant to governmental ‘custom’ even though such

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custom has not received formal approval.” Monell, 436 U.S.

at 690-91. Under Monell, “a municipality cannot be held

liable solely because it employs a tortfeasor—or, in other

words, a municipality cannot be held liable under § 1983 on a

respondeat superior theory.” Id. at 691. The “touchstone of”

a section 1983 claim against a municipality is that “official

policy is responsible for a deprivation of rights protected by

the Constitution.” Id. at 690. That is, the alleged policy or

custom must have “caused the violation.” Warren v. District

of Columbia, 353 F.3d 36, 38 (D.C. Cir. 2004).

ANSWER has not alleged that a custom or policy lay

behind the notices of violation the District issued to it. On

appeal, ANSWER argues that “the 99 enforcement actions

were sufficiently pervasive and numerous to constitute a

custom.” Organizations’ Br. 67. A section 1983 plaintiff

may establish causation in several ways, but ANSWER has

not contended that any District custom or policy was “the

moving force of the constitutional violation.” Jones, 634 F.3d

at 601. Nor has ANSWER sought to show causation based on

a failure to train or “deliberate indifference.” See Baker v.

District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003).

It makes no case that a policymaker knowingly ignored the

alleged pattern of retaliatory enforcement. See Jones, 634

F.3d at 601. ANSWER does not even identify by name or

title any policy maker who knew of the enforcement actions

the District took against it. The closest ANSWER comes to

claiming a role for a policymaking official is its discussion of

the District’s Department of Public Works’ General Counsel’s

voluntary dismissal of the enforcement actions against

ANSWER. But at most that shows a policymaker’s

involvement in curbing allegedly unconstitutional

enforcement.

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The district court was correct, then, to dismiss

ANSWER’s claims because the organization “never

coherently allege[d] the existence of a broader municipal

custom or practice that explains the issuance of those tickets”

citing ANSWER for violating the sign posting rule. ANSWER

III, 798 F. Supp. 2d at 154.

2. The Regulation Does Not Impose “Strict Liability.”

MASF contends that the District’s regulation imposes a “strict

liability” regime in violation of the First Amendment. Strict

liability in criminal statutes burdening speech is “generally

disfavored.” United States v. Sheehan, 512 F.3d 621, 629

(D.C. Cir. 2008). But we need not decide whether the

imposition of civil fines on a strict-liability basis would be

constitutional here because, as we construe the regulation, it

does not impose strict liability.

Section 108.1 says, “No person shall affix a sign,

advertisement, or poster to any public lamppost or

appurtenances of a lamppost, except as provided in

accordance with this section.” D.C. MUN. REGS. tit. 24,

§ 108.1. MASF asserts in its complaint that the District

“imposes strict liability for violation of these regulations upon

persons or groups whose name or address is identified in a

poster even if the person/group did not produce the poster.”

First Am. Compl. ¶ 25, ANSWER I, 570 F. Supp. 2d 72

(No. 07-1495); see id. ¶¶ 25-32. By “strict liability,” MASF

seems to mean something closer to “vicarious liability”—that

is, holding one party liable for the actions of another. See

generally Liability, Black’s Law Dictionary (10th ed. 2014).

Section 108.1 by its terms provides that no person may

“affix” an offending sign to a lamppost. On its face,

therefore, section 108.1 does not impose liability on anyone

other than the person who “affixes” the sign to the lamppost.

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The District in defending the rule assures us that it makes “a

person liable only if that person is responsible for the

unlawfully posted sign because, for example, he or she

directed or encouraged the posting or his or her employee or

agent posted it.” Gov’t Reply Br. at 39.

MASF invokes Schneider v. New Jersey, 308 U.S. 147

(1939), in which the Supreme Court held that a municipal

ordinance imposing liability on the distributors of pamphlets

for the litter left by the recipients of the pamphlets was

unnecessarily burdensome on the speech rights of the

pamphleteers. Id. at 162. The Schneider Court held that

imposing liability on the distributor of the pamphlets could

not be justified by the cities’ interest in preventing litter

because the cities had an obvious alternative method to

prevent litter: They could impose liability on “those who

actually throw papers on the streets.” Id.

But MASF gives us no reason to think that an

organization would be held liable under section 108.1 if it did

not “affix” a sign, but rather had its sign affixed by someone

else acting without its authority who then failed timely to

remove it. Nor has MASF raised a material question of fact

as to whether the District has enforced the regulation to

impose the type of strict or vicarious liability of which the

Schneider Court disapproved. In light of the District of

Columbia’s binding assurances and the lack of record

evidence to the contrary, we do not read section 108.1 to

impose strict or vicarious liability, and so affirm the district

court’s decision to dismiss MASF’s strict-liability claim.

E. Discovery Sanctions are Vacated

Finally, we address the discovery sanctions the district

court imposed against the District of Columbia under Federal

Rule of Civil Procedure 16(f). We review the district court’s

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award of sanctions for an abuse of discretion, see Perkinson v.

Gilbert/Robinson, Inc., 821 F.2d 686, 689 (D.C. Cir. 1987),

and vacate it.

Rule 16(f)(2) gives courts a tool to enforce compliance

with its scheduling orders. That rule directs that a court,

“[i]nstead of or in addition to any other sanction, . . . must

order the party, its attorney, or both to pay the reasonable

expenses—including attorney’s fees—incurred because of

any noncompliance with this rule, unless the noncompliance

was substantially justified or other circumstances make an

award of expenses unjust.” Fed. R. Civ. P. 16(f)(2). But a

court may award sanctions under Rule 16(f) only where a

party violates an unambiguous order. See Ashlodge, Ltd. v.

Hauser, 163 F.3d 681, 684 (2d Cir. 1998), overruled on other

grounds, as stated in New Pac. Overseas Grp. (U.S.A.) Inc. v.

Excal Int’l Dev. Corp., 272 F.3d 667, 669 (2d Cir. 2001) (“To

sustain sanctions under Rule 16(f), an order must be

unambiguous . . . .”); cf. United States v. Day, 524 F.3d 1361,

1372 (D.C. Cir. 2008). The order that the District allegedly

violated here was ambiguous.

The court’s scheduling order authorized MASF to take

discovery but was silent as to the District. Before the court

issued the order, the District and MASF had submitted a joint

status report. The joint report explained that the District

believed discovery was “unnecessary here, as the remaining

facial vagueness challenge presents a purely legal question.”

J.A. at 97. MASF, however, proposed that the court allow it

to propound ten interrogatories, ten requests for production,

fifteen requests for admission, and allow it to take six

depositions. In response to MASF’s suggestion, the District

suggested the court allow MASF ten interrogatories, five

requests for production, and one deposition. Neither party

39

addressed the scope of District’s anticipated discovery in the

event that the court imposed discovery constraints on MASF.

MASF and the District each submitted a proposed

scheduling order: The District’s order contemplated that

“each party may not propound more than ten (10)

interrogatories (including sub-parts) and five (5) requests for

production of documents, and may not take more than one (1)

deposition.” J.A. at 103. That is, the District’s proposed

order tracked the limited discovery it had suggested in the

Joint Status Report, contemplating that the limits would apply

equally to both parties. MASF’s proposed order suggested

less restrictive limits on its own discovery, and did not specify

whether or to what extent the District’s discovery would be

restricted. With some stylistic modifications, the court

adopted MASF’s proposed order, stating that “plaintiff is

authorized to propound not more than” the specified numbers

of interrogatories, requests for production, requests for

admission, and deposition notices; the order made no mention

of any discovery restriction on the District of Columbia.

The District sent eleven interrogatories and three requests

for production to MASF and ANSWER. After plaintiffs’

counsel objected, the District withdrew six of its

interrogatories but insisted on its right to conduct discovery.

MASF then moved for a protective order and sanctions. The

court granted the motion.

We acknowledge the district courts’ prerogative to

sanction parties for noncompliance with their orders, but we

must vacate the sanctions here because the underlying order

was ambiguous as to whether it limited the District’s

discovery rights. It expressly lowered the default caps in the

Federal Rules of Civil Procedure only as to the plaintiffs. The

order referred more generally to the earliest date on which

40

“discovery requests may be served” and when “the parties”

should file their dispositive motions. J.A. at 105. In context,

the order could reasonably be read (a) to leave the District’s

discovery rights as specified in the Federal Rules, (b) to

implicitly subject it to the same lower caps the court applied

to plaintiffs, or (c) to permit limited discovery to the plaintiffs

while by negative implication barring any discovery

whatsoever by the District.

In the context of the dueling proposed orders—one

equally limiting both parties and the other, which the court

accepted, speaking only to plaintiffs—the court’s order could

reasonably be read to constrain only the plaintiffs. Such one-

sided treatment seems sensible enough given that the District,

which as defendant did not bear the burden of proof, was

unlikely to need extensive discovery in any event. That same

reasoning might, alternatively, support reading the order as

setting limits equally applicable to both parties, given that the

District had urged the court to proceed without any discovery

and presumably was willing to work within any constraints it

could persuade the court to impose. Alternatively, framed as

it was affirmatively to “authorize” the plaintiffs, and only

plaintiffs, to take the specified discovery, and issuing against

the backdrop of the District’s initial argument against any

discovery for either party, the order might be read—as the

court evidently intended—to preclude the District from taking

any discovery.

There are, however, strong background principles that cut

against the district court’s intended reading. Under Rule 26, a

party may take discovery “regarding any nonprivileged matter

that is relevant to any party’s claim or defense and

proportional to the needs of the case.” Fed. R. Civ. P.

26(b)(1). Critically, a party has that prerogative without the

order of a court. A court order may “otherwise limit[]” a

41

party’s discovery right, but a court’s affirmative permission is

not a prerequisite to the taking of discovery. Id. Given the

general discovery authorizations in the Federal Rules of Civil

Procedure, which are not contingent on court orders granting

permission, the district court’s scheduling order was

ambiguous. Sanctions for the District’s service of discovery

requests were therefore unwarranted, and are vacated.

***

For the foregoing reasons, we reverse the district court’s

grant of summary judgment to MASF on its facial First

Amendment and due process challenges to the District of

Columbia’s regulation and remand for the district court to

enter summary judgment for the District. We affirm the

court’s decision to dismiss ANSWER’s claim for damages

and MASF’s claim alleging an impermissible strict liability

regime. Finally, we vacate the court’s award of sanctions.

So ordered.