Padou v. District of Columbia
77 A.3d 383
D.C.2013Background
- Don and Abigail Padou posted ~400 political posters on Brookland utility poles advertising a community rally; the District removed them for violating 24 DCMR § 108 subsections 108.7 (posting date), 108.10 (no more than three copies per block side), and 108.11 (filing copies and originator contact information).
- The Padous sued the District alleging § 108 violated the First Amendment facially and as-applied; the trial court granted summary judgment to the District; this court reversed in Padou I and remanded for further discovery on a selective-enforcement claim.
- On remand the Padous abandoned their as-applied/selective-enforcement claim, pursued facial challenges (including vagueness of § 108.10 and anonymous-speech concerns under § 108.11), and moved for summary judgment; the District argued lack of standing and that the provisions are permissible time, place, and manner regulations.
- The trial court dismissed the case as moot and for lack of standing after the Council amended §§ 108.5 and 108.6; the Padous appealed.
- The D.C. Court of Appeals held the Padous lacked standing to challenge subsections that were never applied to them (and thus could not challenge § 108 in its entirety), but did have standing to challenge §§ 108.7, 108.10, and 108.11 (the provisions actually enforced against them), and that amendments to §§ 108.5/108.6 did not render the Padous’ challenges to 108.7/108.10/108.11 moot.
- The court remanded for the trial court to decide the merits of whether §§ 108.7, 108.10, and 108.11 are valid time, place, and manner restrictions (including whether § 108.11 impermissibly burdens anonymous speech) and whether § 108.10 is unconstitutionally vague.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to challenge the specific subsections applied to them (§§ 108.7, 108.10, 108.11) | Padou: they were directly injured by enforcement and can challenge those provisions | District: plaintiffs lack standing to attack the regulation generally | Held: Padous have standing to challenge those three subsections they were cited under |
| Standing to challenge § 108 as a whole or other subsections not applied to them (§§ 108.3–108.6) | Padou: facial challenge to entire § 108 | District: no injury from provisions never applied; no standing | Held: No standing to challenge the regulation generally or subsections not applied to them |
| Mootness after amendments to § 108 (changes to §§ 108.5 and 108.6) | Padou: amendments do not moot challenges to unaffected subsections | District: amendments render dispute non‑justiciable | Held: Not moot — §§ 108.7, 108.10, 108.11 unchanged, so challenges remain live |
| Merits to be decided on remand: TPM validity, anonymity, and vagueness (e.g., "versions or copies") | Padou: §§ 108.7/108.10/108.11 violate First Amendment (time/place/manner, anonymity, vagueness) | District: provisions are constitutional TPM restrictions and § 108.10 is not vague | Held: Merits not decided on appeal; remanded for Superior Court to assess TPM analysis, anonymity issue for § 108.11, and vagueness of § 108.10 |
Key Cases Cited
- Padou v. District of Columbia, 998 A.2d 286 (D.C. 2010) (earlier appellate reversal and remand concerning discovery and selective-enforcement claim)
- Bennett v. Spear, 520 U.S. 154 (U.S. 1997) (standing involves constitutional and prudential limits)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (U.S. 1992) (injury in fact, traceability, redressability requirements for standing)
- Members of the City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789 (U.S. 1984) (plaintiffs whose posters were removed have standing to challenge ordinance applied to their expressive activity)
- Broadrick v. Oklahoma, 413 U.S. 601 (U.S. 1973) (overbreadth doctrine and its limits)
- Talley v. California, 362 U.S. 60 (U.S. 1960) (constitutional protection for anonymous speech)
- FCC v. Fox Television Stations, Inc., 132 S. Ct. 2307 (U.S. 2012) (vagueness principles applied to speech restrictions)