Am. Freedom Defense Initiative v. Wash. Metro. Area Transit Auth.

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.