303 F. Supp. 3d 11
D.C. Cir.2018Background
- WMATA changed its advertising policy in 2015, adopting Guidelines that prohibit "issue-oriented" ads and bar advertisements "intended to influence members of the public regarding an issue on which there are varying opinions" (Guideline 9) and those "intended to influence public policy" (Guideline 14). WMATA uses an internal panel to review potentially issue-oriented ads; OUTFRONT Media coordinates placement but must submit such ads to WMATA.
- Milo Worldwide (publisher of Milo Yiannopoulos's book Dangerous) contracted with OUTFRONT to run 28-day metro ads featuring Yiannopoulos's face, book title, and review quotations. OUTFRONT initially placed the ads in June 2017; WMATA later removed them in early July after complaints and panel review, offering a refund Milo declined.
- WMATA asserts removal was pursuant to its Guidelines after panel review (violations of Guidelines 9 and 14); Milo Worldwide contends removal was motivated by public pressure and that WMATA's initial acceptance then removal demonstrates arbitrariness and viewpoint discrimination.
- Milo moved for a preliminary injunction to restore its ads. The court applied the standard requiring a clear showing of likelihood of success on the merits and irreparable harm (plus balance of equities and public interest).
- The court concluded WMATA reasonably found the ads aimed to promote political advocacy (the book and quoted phrases linked to Yiannopoulos's political positions), distinguished comparator ads WMATA accepted, and rejected Milo's claims of viewpoint discrimination and vagueness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Forum standard / applicability of limited (nonpublic) forum rules | Milo accepts limited-forum analysis but argues WMATA violated its own Guidelines by removing ads that were facially commercial | WMATA treats advertising space as a limited/nonpublic forum and may impose content restrictions that are reasonable and viewpoint neutral | Court applied limited-forum rules and found WMATA's exclusion reasonable given ads promoted a political advocacy book and forum purposes |
| Reasonableness of exclusion under Guidelines 9 & 14 | Ads were innocuous, commercial book ads; prior WMATA acceptance shows arbitrariness | Ads promoted a political advocacy book, used quotes and Yiannopoulos's persona to convey political message; removing them advanced legitimate forum purposes (reduce opposition/security risks/admin burdens) | Court held WMATA reasonably concluded the ads sought to influence public policy and lawfully excluded them |
| Viewpoint discrimination | Removal resulted from public pressure and disparate treatment (WMATA previously accepted other ads with political subtext) | WMATA had neutral procedures and legitimate, distinguishing reasons for accepting other ads; temporal proximity of complaints is not proof of viewpoint bias | Court found plaintiff failed to show likelihood of success on viewpoint-discrimination claim; comparators were not similarly situated |
| Vagueness of Guidelines 9 & 14 | Guidelines are vague and allow arbitrary, idiosyncratic decisions | Guidelines are sufficiently definite when read in light of forum purposes; WMATA offered neutral explanations for decisions | Court rejected vagueness challenge, finding plaintiff did not show likely success on the merits |
| Irreparable harm for preliminary injunction | Loss of First Amendment forum and lost opportunity to persuade constitutes irreparable injury | Monetary losses are recoverable; plaintiff must show likelihood on merits to support constitutional irreparable-harm claim | Court held irreparable-harm claim failed because Milo did not show likelihood of success; injunction denied |
Key Cases Cited
- Pursuing America's Greatness v. Fed. Election Comm'n, 831 F.3d 500 (D.C. Cir. 2016) (preliminary-injunction factors and role of likelihood of success)
- League of Women Voters v. Newby, 838 F.3d 1 (D.C. Cir. 2016) (preliminary-injunction framework)
- Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995) (content-based restrictions permitted in limited fora if viewpoint neutral and reasonable)
- Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788 (1985) (forum analysis for government property)
- Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983) (public forum doctrine: traditional, designated, and nonpublic fora)
- Pleasant Grove City v. Summum, 555 U.S. 460 (2009) (limitations on forum and content distinctions)
- Initiative & Referendum Inst. v. U.S. Postal Serv., 685 F.3d 1066 (D.C. Cir. 2012) (limited/nonpublic forum discussion)
- Women's Health Link, Inc. v. Fort Wayne Pub. Transp. Corp., 826 F.3d 947 (7th Cir. 2016) (rejection of ad that was purely informational held unreasonable)
- Am. Freedom Def. Initiative v. Suburban Mobility Auth. for Reg'l Transp. (SMART), 698 F.3d 885 (6th Cir. 2012) (courts may look beyond an ad’s four corners to linked advocacy when assessing message)
- Mills v. District of Columbia, 571 F.3d 1304 (D.C. Cir. 2009) (loss of constitutional freedoms can constitute irreparable harm)
- Arkansas Dairy Co-op Ass'n, Inc. v. U.S. Dep't of Agric., 573 F.3d 815 (D.C. Cir. 2009) (failure to show likelihood of success can be dispositive on preliminary injunction)