White Coat Waste Project v. Greater Richmond Transit CompanyWhite Coat Waste Project v. Greater Richmond Transit Company
MEMORANDUM OPINION
This First Amendment action arises out of Defendant Greater Richmond Transit Company‘s refusal to air what it deemed a political advertisement by Plaintiff White Coat Waste Project concerning the treatment of test-animals at the Hunter Holmes McGuire VA Medical Center in Richmond, Virginia. This matter comes before the Court on White Coat Waste Project‘s (“White Coat“) Motion for Summary Judgment, (ECF No. 25), and Greater Richmond Transit Company‘s (“GRTC“) Motion for Summary Judgment, (ECF No. 30). GRTC and White Coat responded to the cross-motions for summary judgment. (ECF Nos. 34, 35.) Accordingly, the matter is ripe for disposition.
The Court dispenses with oral argument because the materials before it adequately present the facts and legal contentions, and argument would not aid the decisional process. The Court exercises jurisdiction pursuant to
I. Factual and Procedural Background
White Coat brings this action against GRTC pursuant to
A. Factual Background5
White Coat describes itself as a “bipartisan non-profit taxpayer watchdog organization” that seeks to “unite animal-lovers and liberty-lovers to expose and end wasteful taxpayer-funded animal experiments.” (Compl. ¶ 3.) In support of this mission, White Coat currently operates a campaign “to end taxpayer funding for dog experiments at the Richmond Hunter Holmes McGuire VA Medical Center,” the (“McGuire VA Center“). (Id. ¶ 8.)
In 1973, GRTC “was incorporated as a nonprofit corporation ‘for the purpose of providing mass transportation [in Richmond and nearby environs] service as a public service corporation.‘” (White Coat Mot. Summ. J., Strugar Decl., Ex. A, “GRTC Responses and Objections to Plaintiff‘s First Set of Interrogatories,” ECF No. 26-1.) GRTC‘s Advertising Policy, as developed, prohibits various types of advertisements, including “[a]ll political ads.” (Strugar Decl., Ex. H, “GRTC Advertising Policy.“)
1. History and Ownership Structure of GRTC
In April 1973,6 the City of Richmond incorporated GRTC “as a nonprofit corporation
At the time of GRTC‘s founding, VTC‘s employees were unionized, but federal law mandated that federal funds could be made available only to transit operators which preserved “already-existing collective bargaining rights.” (Hurd, Public Transportation 26); (Strugar Decl., Ex. C, “GRTC‘s Answers to Plaintiffs’ Second Set of Requests for Admissions,” Resp. No. 17); (Adams Dep. 37–39.)
Virginia law, however, “prohibit[ed] collective bargaining with the representatives of public employees.” (Hurd, Public Transportation 26.) To resolve this conflict, the Richmond City Attorney and Assistant City Attorney proposed that the “city form a non-profit corporation under the general laws of Virginia, the voting stock of which would be owned by the City of Richmond . . . [so that]8 . . . the U.S. Department of Transportation would—as it did—find that the wholly-owned corporation was an instrumentality of the city and was, therefore, a ‘public body’ within the meaning of [federal law], eligible to apply for and receive federal grants.” (Hurd, Public Transportation 26.) This public stock corporation structure allowed the former VTC “employees to continue to collectively bargain while also retaining eligibility for federal grant money.”9 (GRTC‘s Answers to Plaintiffs’ Second Set of Requests for Admissions, Resp. No. 17); (see also Adams Dep. 37–39.)
On March 15, 1973, the General Assembly of the Commonwealth of Virginia “amended the Richmond City Charter to provide that ‘the city shall have the power to acquire, operate, lease, or otherwise provide for the operation of a public transportation system . . . both within and outside the City of Richmond‘” (the “1973 Charter Amendment“). (White Coat Req. Judicial Notice Ex. A “Acts and Joint Resolutions of the General Assembly of the Commonwealth of Virginia, Session 1973, Chapter 348, sec. 2,” ECF No. 28.)
In April 1973, in accordance with the 1973 Charter Amendment, the City of Richmond created GRTC through the State Corporation Commission under Virginia‘s Stock Corporation Act.10 (Mem. Supp. GRTC Mot. Summ. J., Ex. B, “GRTC Articles of Incorporation,” 23–24); (Adams Dep. 37.) Following incorporation, the Richmond City Manager negotiated the sale of VTC‘s physical assets to GRTC, (Hurd, Public Transportation 24), and the Richmond City Council “appropriated $2,134,000 in bond funds as a grant to [GRTC] for the purpose of enabling it to meet the local share of the capital costs of acquiring and improving the transit system,” (id. 25.)
b. The City of Richmond and Chesterfield County Own GRTC‘s Common Stock and Control Key Aspects of GRTC Operations
The City of Richmond originally owned all of GRTC‘s stock. (Hurd, Public Transportation 24.) Currently, ten shares of GRTC stock exist, with the City of Richmond and Chesterfield County each owning five shares. (Adams Dep. 14–15.) No entity other than the City of Richmond and Chesterfield County has at any time owned GRTC‘s stock. (Id.)
A six-member Board of Directors (“the Board“) operates GRTC today.11 (Adams Dep. 15.) While Richmond initially appointed all board members, now the Richmond City Council appoints three members of the Board and the Chesterfield County Board of Supervisors appoints the other three. (Hurd, Public Transportation 24); (Adams Dep. 17–18.)
Members of the GRTC Board serve a one-year term and can be removed by the local government entity that appointed them. (Adams Dep. 21.) Nothing in the Record provided to the Court suggests that limits exist on who can be appointed or on how long renewal of terms may continue.
GRTC‘s buses utilize “public use” license plates, and GRTC remains “subject to [Virginia‘s Freedom of Information Act] because it is a ‘public body’ under
As with its private predecessor VTC, the City of Richmond must authorize any fare increases that GRTC wishes to institute
Given that it operates at a loss, the GRTC Board approves an annual budget—accounting for projected fare revenue, advertising revenue, as well as federal and state contributions—and then makes a specific request to the City of Richmond and Chesterfield County (for their respective routes) asking for the necessary funds to cover the shortfall in the budget.
(Adams Dep. 29–30.) Between 2010 and 2017, the City of Richmond provided eleven to fourteen million dollars to GRTC per fiscal year. (Mem Supp. GRTC Mot. Summ. J., Ex. E, “GRTC Operating Budget,” ECF No. 31-5); (Adams Dep. 29–30.) The City of Richmond typically provides between 23%–30% of GRTC‘s annual revenue, constituting the largest share of government funding. (GRTC Operating Budget); (Adams Dep. 28.) Federal transportation subsidies account for anywhere between 10%–19% of GRTC‘s annual revenue, (GRTC Operating Budget); (Adams Dep. 27), while the Commonwealth of Virginia provides another 17.5%–23% of GRTC‘s annual revenue. (GRTC Operating Budget); (Adams Dep. 30–31.) Advertising accounts for roughly one percent of GRTC annual revenue. (Adams Dep. 24.)
2. GRTC‘s Advertising Policy Prohibits All Political Advertising
On September 13, 1973, GRTC‘s Board of Directors instituted a ban on all political advertisements. (Mem. Supp. GRTC Mot. Summ. J., Ex. A, Sept. 27, “1973 GRTC Board Minutes,” 4.) The minutes report only that the question of banning political advertisements was raised and “discussed.” (Id.) The minutes do not report the nature of the discussion, or why the question was raised. A board member “moved that no political advertising should be allowed,” another member seconded the motion, and the provision against political advertising was “adopted by voice vote.” (Id.) Nothing on the record suggests that the 1973 Board or GRTC passed or adopted any specific or written policy. (Strugar Decl., Ex. J., “Deposition of Carrie Rose Pace” 38–39, ECF No. 26-2.) Similarly, the May 18, 1987 Board Minutes state only that “Mr. Bobb moved that we retain our present policy of not allowing political advertising on buses.” (Mem. Supp. GRTC Mot. Summ. J., Ex. A, “May 18, 1987 Board Minutes,” 14.) Again, the Board approved that motion “by voice vote.” (Id.) The May 18, 1987 Board Minutes say nothing else about the advertising motion, nor did GRTC offer any elaboration on this record. (Pace Dep. 39.)
In 2013, the GRTC Board adopted its first written advertising policy. The May 21, 2013 GRTC Board Minutes report that “GRTC has not had a policy for advertising on the buses. GRTC has had practices but no policy in place.” (Mem. Supp. GRTC Mot. Summ. J., Ex. A, “May 21, 2013 Board Minutes,” 48.) The GRTC Board then passed a written advertising policy. (Strugar Decl., Ex. I, “2013 Advertising Policy“); (Mem. Supp. GRTC Mot. Summ. J, Ex. A, “2013 Advertising Policy,” 50–51.)
On April 16, 2018, the GRTC Board of Directors approved the most recent Advertising Policy, which changed the 2013 document only slightly to add a prohibition against content that would violate exclusive
Thus, the 2013 Advertising Policy was operative during the events in this case. (Id.) The policies include an identical preamble which provides:
GRTC Transit System believes that advertising on bus vehicles is best performed when guided by a standard set of established criteria. GRTC intends for this Advertising Policy to articulate those criteria by a viewpoint neutral advertising standard to be consistently applied and objectively enforced. Enactment of this Policy represents GRTC‘s declared intent not allow any of its transit vehicles or property to become a public forum for dissemination, debate, or discussion of public issues.
(2013 Adver. Policy 1.)
GRTC states that any advertising is subject to approval by GRTC or its designated representatives, and prohibits “[a]ll political ads,” and fourteen other categories of advertisements, including those which are obscene, promote illegal activity, convey religious or anti-religious messaging, or convey derogatory or defamatory messages. (2018 Advertising Policy.) GRTC‘s Advertising Policy also prohibits any advertisement that “[c]ontains internet address(es) and/or telephone number(s) that direct(s) viewers to materials, images or information that would violate this advertising policy if they were contained in advertising displayed or posted on GRTC Transit System vehicles.” (2013 Adver. Policy 1.)
The policy also describes the overarching manner in which proposed advertisements would be reviewed:
The Advertising Contractor shall review each advertisement submitted for display on GRTC vehicles to determine whether the advertisement falls within, or may fall within one or more of the [15] categories set forth above. If the advertising Contractor determines that an advertisement falls within, or may fall within, one or more of the categories set forth above, then the Advertising Contractor will submit the advertisement, along with the name of the advertiser, size and number of the advertisements, and the dates and locations of display to the GRTC Marketing department for review of the advertisement by GRTC.
Upon determination of whether or not the advertisement falls into one of the categories listed in this policy, the GRTC Marketing department will advise the Advertising Contractor of the decision. GRTC reserves the right to reject or remove any advertising when it deems not to be in compliance with these guidelines.
(2013 Adver. Policy 1-2.) While describing the skeletal procedure GRTC uses to review a proposed advertisement, the 2013 Advertising Policy says nothing about how
how a determination of whether or not an advertisement falls into one of the” categories prohibited by the policy. During this litigation, however, the Parties explored the decision-making process by GRTC in depth.
3. The GRTC Process for Accepting or Rejecting Advertisements
GRTC works with Media Transit, “a private company which is on contract with GRTC as approved by our board of directors to manage both inside and outside bus advertising.” (Pace Dep. 27.) If Media Transit “determines that an advertisement falls within, or may fall within,” a category prohibited by the Advertising Policy, Media Transit then submits the advertisement to GRTC “for review of the advertisement by GRTC.” (2013 Adver. Policy 1.) The 2013 Advertising Policy does not describe or define how Media Transit would decide whether an ad may or may not fall within a category prohibited by the Advertising Policy.
The GRTC Marketing Department reviews any advertisement sent by Media Transit, and, “[u]pon determination of whether or not the advertisement falls into one of the categories” prohibited by the Advertising Policy, the GRTC notifies Media Transit of the decision. (2018 Adver. Policy 1-2); (see also Pace Dep. 32.) GRTC Director of Communications Carrie Rose Pace evaluates proposed advertisements received from Media Transit. (Pace Dep. 16, 33.) Pace testified about the process she undertakes in making that decision, but the 2013 Advertising policy is silent as to the process she uses. The record contains no document describing the process Pace uses, nor does such a document appear to exist.
In carrying out the Advertising Policy, Pace recounted that she consults with, or has consulted with, a number of other actors at GRTC about potential advertisements, including: (1) Sally Brazil of MediaTransit; (2) Tim Brazil of MediaTransit; (3) Sheryl Adams; (4) Jonathan Owens of the GRTC Marketing Department; and, (5) Anthony T. Carter Jr., Director of Risk Assessment at GRTC. (Pace Dep. 40–41.)
Pace did not indicate in exactly what circumstances she would consult with other actors, but testified that she sometimes sought a “second opinion” (id. 107, 142, 147), to “make sure that [she] was applying the advertisement policy correctly” (id. 146).
4. During her Deposition, the GRTC Director of Communications Testified as to Advertisements that GRTC had Accepted as a Public Service Announcement or Rejected as Political under its Advertising Policy
As part of this litigation, White Coat deposed Pace, the GRTC Director of Communications, pursuant to
public information that is intended for public good and use, without making you -- I think I will just leave it at that, for public good and use.” (Id. 208:13–17.) The Advertising Policy does not mention “public service announcement,” nor does any document describe a public service announcement or how GRTC categorizes something as a public service announcement rather than a political advertisement.
To enforce this restriction, Pace visits any external source, such as a website URL, to determine whether language or images displayed on that external source violate the policy. (Pace Dep. 85.) If an advertiser‘s website contains “vulgar language . . . graffiti . . . or language whose messages targets or bashes individuals,” then Pace rejects that advertisement. (Mem. Supp. White Coat Mot. Summ. J. 6–7 (internal quotation marks omitted).) Even if the proposed advertisement does not include a website, Pace “will find the proposed advertiser‘s website if she is not familiar with the product to learn more about the proposed advertiser in making her determination as to whether the advertisement violates GRTC‘s policy.” (Id. 7.) When visiting external cites to certify compliance with the prohibition on political advertisements in the Advertising Policy, Pace finds it “most useful . . . to go to the home page” and then “check the ‘About us,’ so that [she] can better understand whether or not the group is a political action group.” (Pace Dep. 75.) The record lacks any indication that Pace‘s review process is memorialized as written guidelines, or in any other form.
During Pace‘s deposition, White Coat asked Pace about specific advertisements offered to GRTC and whether GRTC accepted or rejected those advertisements based on the terms of the Advertising Policy. (See generally id.) Those advertisements are recounted briefly here.
a. GRTC Approves an Advertisement for Gracie‘s Guardians
In her deposition, Pace confirmed that she approved an advertisement from Gracie‘s Guardians, which subsequently ran on GRTC transit vehicles.
(Strugar Suppl. Decl., Ex. Z “Gracie‘s Guardians Advertisement,” ECF No. 35-1.)
In contrast, Pace stated that GRTC‘s Advertising Policy required her to reject White Coat‘s advertisement because White Coat is an “animal cruelty related nonprofit” and thus a “political action group.” (Id. 36.) Pace differentiated Gracie‘s Guardians because when she reviewed their website, she did not see “political action group information on there.” (Id. 191.)
b. Media Transit Approves an Advertisement for Chickpeas that GRTC later Rejects
In January 2016, the Physicians Committee for Responsible Medicine ran the following advertisement for chickpeas on GRTC transit vehicles. (Strugar Decl., Ex. D “White Coat Notice of Rule 30(b)(6) Deposition to GRTC,” 41.)
(Strugar Decl., Ex. L “Chickpea Advertisement.“) Media Transit, without notifying GRTC‘s Communications Department, approved the advertisement and began running it inside buses. (Pace Dep. 133.) After a reporter asked GRTC to comment, Pace went to the website for the Physicians Committee for Responsible Medicine and determined that their “mission” qualified as a “political action [mission].”15 (Id. 134–35.) Pace explained in her deposition that the advertisement‘s content “triggered the question” of whether the advertisement violated the [Advertising] Policy, but the “website and the naming of the political action group” led her to believe it was a political ad. (Id. 135.) Pace did not offer specific testimony as to how or why she deemed this entity a political action group.
c. GRTC Approves an Advertisement for the 2016 Vice Presidential Debate
In September 2016, GRTC ran an advertisement promoting the Vice Presidential
[t]hat goes back to the viewpoint neutral, making sure that it is viewpoint neutral, that you provide a forum that is not going to -- at least on our bus, not the forum itself, but on our bus, that isn‘t going to favor one political side or the other.
(Id. 151–52.) Pace could not recall whether William Weld, the Vice-Presidential candidate from the Libertarian Party, was invited to participate in the Longwood debate when she approved the advertisement. (Id. 152.) When asked whether electing a Vice President “is a political issue,” Pace responded, that in her view, it “is a political action that an individual can choose to take or not take, yes. But, that is not what the advertisement was about.” (Id. 153.)
d. GRTC Rejects White Coat‘s Advertisement About Animal Testing at the McGuire VA Medical Center
In March 2017, as part of a campaign against McGuire VA Medical Center in Richmond, Virginia conducting experiments using dogs, White Coat sought to run the following advertisement with GRTC:
(White Coat Notice R. 30(b)(6) Dep. 41); (Strugar Decl., Ex. O “White Coat Advertisement.“) GRTC rejected White Coat‘s advertisement. (Pace Dep. 101–04.) Pace testified about her initial review of the proposed advertisement, stating that she “was not familiar with the content of” White Coat‘s “ad at all.” (Id. 101.) She proceeded to the website for McGuire Veterans Center to “try to understand what this [ad was] even referencing” and “Googled White Coat Wasted [sic] Project to find their website.” (Id. 101–02.) Because White Coat appeared to be an “animal cruelty related nonprofit,” Pace considered it “a political action group” and rejected White Coat‘s proposed advertisement. (Id. 102, 104.) Pace related that she did not “recall” having concerns with rider safety in relation to White Coat‘s advertisement. (Id. 109.)
After GRTC rejected White Coat‘s advertisement, Justin Goodman, the Vice President of Advocacy and Public Policy at White Coat, emailed Pace seeking explanation regarding the decision to reject White Coat‘s advertisement. (Goodman Decl. ¶ 8, ECF No. 27.) Goodman stated that White Coat was a “bipartisan nonprofit pursuant to section 501(c)(3) of the Internal Revenue Code” and sought “clarification on how
to comply with GRTC‘s [Advertising] Policy.” (Id.) Pace sent Goodman a copy of the Advertising Policy, (GRTC Resp. White Coat Mot. Summ. J. 8), but did not clarify at that time how she or GRTC interpreted the word “political,” (Goodman Decl. ¶ 9). Pace suggested that if White Coat “partnered with a Richmond Animal Care and Control to run the ad, GRTC might run it as a public service advertisement.” (Id.)
e. GRTC Approves an Advertisement for the Virginia Commonwealth University‘s Institute for Contemporary Art
Roughly four months after White Coat initiated the instant lawsuit, Virginia Commonwealth University (“VCU“), located in Richmond, Virginia, ran the following advertisement (the “VCU Advertisement“) promoting their Institute for Contemporary Art.
(Strugar Decl., Ex. N “the VCU Advertisement.“) GRTC‘s deliberations over the VCU advertisement are documented in emails, which White Coat submitted. (Strugar Decl., Ex. M “Emails Regarding the VCU Advertisement.“) On February 27, 2018, at 1:02 p.m., Sally Brazil of Media Transit forwarded the VCU Advertisement to Carrie Pace, saying “Art for approval/VCU.” (Id. 224.) At 1:05 p.m., three minutes later, Pace forwarded the email to Anthony Carter, GRTC‘s Director of Risk Management, stating “[p]lease see the attached ad awaiting approval. Normally, this ad would not trigger any concerns, but the top left copy does. Please advise.” (Id. 223–24.) At 1:21 p.m., sixteen minutes after Pace‘s email, Carter replied:
I do not have any issue with this. Free Speech and Free Expression is what VCU is advertising for their Institute for Contemporary Art. I don‘t think they are trying
influence anyone or change anyone‘s mind about a specific social/political issue. I would be concerned if this was a political/socially motivated add [sic] using or referencing Freedom of Speech or Freedom of Expression to influence the public. I look at this add [sic] as nothing more than an advertisement/awareness notice for VCU‘s Institute for Contemporary Art.
(Id. 223.) An hour later, Pace responded, thanking Carter and stating that “[t]he ad is approved.” (Id.)
When asked to comment on GRTC‘s approval of the VCU advertisement, Pace recalled that she “wanted to make sure that [the advertisement] was not political” due to its seeming endorsement of free speech and free expression. (Pace Dep. 155.) When asked whether she concurred with Carter‘s conclusion, Pace stated that “I trusted his conclusion. . . . I‘m not well
f. The GRTC Director of Communications Considers Hypothetical Advertisements During Her Deposition
In addition to the actual advertisements about which Pace testified, Pace considered hypothetical advertisements during her deposition to explain how she would review them under the terms of the Advertising Policy.16 (See, e.g., id. 62, 82.) She concluded that an
advertisement for Election Day would constitute a public notice, even though it encouraged others to vote, because “it‘s legally their right.” (Id. 160–61.)
White Coat‘s deposition questions. Regardless, the Court finds the evidence admissible under
The probative value of Pace‘s responses to the hypothetical advertisements is apparent. White Coat brings facial and as-applied First Amendment challenges. GRTC‘s Advertising Policy, as will be discussed later, must be reasonable and viewpoint neutral to survive White Coat‘s viewpoint discrimination claim. Similarly, GRTC‘s Advertising Policy must provide a person of ordinary intelligence a reasonably opportunity to understand what conduct it prohibits, and it may not encourage arbitrary and discriminatory enforcement to survive White Coat‘s vagueness claim. Such hypotheticals aid the process by illustrating how GRTC classifies an advertisement, and why certain advertisements with similar content may be treated differently.
Furthermore, the danger of unfair prejudice, confusing the issues, or misleading the jury do not outweigh the probative value of this evidence. GRTC does not point to what part of its “regular process” was excluded when Pace was asked to compare hypothetical advertisements. (See GRTC Resp. White Coat Mot. Summ. J. 15.) Indeed, the record indicates that GRTC‘s process for classifying advertisements often lasted only a few minutes. (See generally Emails Regarding the VCU Advert.) GRTC cannot claim unfair prejudice from the fact that opposing counsel discussed each advertisement for a short period of time.
Moreover, because White Coat brings facial challenges to the Advertising Policy, the Court may consider these hypotheticals when resolving whether the Advertising Policy violates the Constitution on its face. Preston v. Leake, 660 F.3d 726, 738 (4th Cir. 2011) (“in the First Amendment context, the fear of chilling expressive rights has led courts to entertain facial challenges based merely on hypothetical applications of the law to nonparties“). Although courts generally frown upon litigation by hypothetical, it is sometimes required in First Amendment cases that involve facial challenges to speech restrictions. See, e.g., Broadrick v. Oklahoma, 413 U.S. 601, 612–13 (1973); Los Angeles Police Dep‘t v. United Reporting Publ‘g Corp., 528 U.S. 32, 38–39 (1999). In any event, the Court considers the spontaneous nature of these colloquies when assigning weight to the evidence.
When asked whether an advertisement that directed viewers to “Support Our Troops” would qualify as political, Pace observed that GRTC‘s classification of the advertisement would hinge on the identity of the speaker. (Id. 191–93.) Specifically, she stated:
[Pace]: I would need to know who [the support our troops advertisement] is from.
Q. Why?
[Pace]. Because I would need to determine if they are a political action group and if it‘s a political statement.
Q. Is there any situation in which “Support our troops” would not be a political statement?
[Pace]. I believe in war, there were ads sponsored by the United States Government to this theme.
Q. Sure.
[Pace]. So, I believe in war, that‘s my understanding.
Q. So, if the United States Government sought to run this ad, would it violate the prohibition on political advertising?
....
[Pace]. Okay. So, it would fall as a PSA, a public service announcement, if they are asking for the public in war time to contribute to the war effort. I‘m thinking specifically World War II, World War I, these are where I have seen these examples from the government.
. . .
Q. What if it was just from the veterans organization?
[Pace]: Political action group, if they are, then they would fall under a political ad.
(Id. 191–93 (emphasis added).)
Pace cited “the Virginia Department of Health . . . putting out a public service announcement about testing for HIV” as another example of a public service announcement. (Id. 206.) Pace relayed her conclusion that a “public service announcement is meant to provide public information that is intended for public good and use, without making you -- I think I will just leave it at that, for public good and use.” (Id. 208.)
Pace also compared a hypothetical advertisement from the United States Army and an advertisement from an unidentified group. (Id. 161–62.)
Pace also discussed proposed commercial advertisements. When asked to consider an advertisement from Walmart, Pace traveled to the “About us” section of the Walmart.com website. (Id. 79.) At that time, Walmart‘s website read:
At Walmart we are committed to using our size and scale for good, not just for our customers, or even our associates, suppliers, and their families, but also for the people in our communities and around the world that we will never meet. We are proud to say that the work we do makes a real difference on the real issues that matter to all of us and drives meaningful change in a way that no other company can.
(Id. 79–80.) Pace stated that the global responsibility section was “vague” and that she “would want to understand more” before approving an advertisement. (Id. 81–82.)
B. White Coat Alleges Two Causes of Action
In the Complaint, White Coat brings two causes of action based on GRTC‘s Advertising Policy and GRTC‘s refusal to run White Coat‘s advertisement concerning the treatment of test animals at McGuire VA Medical Center. In Count I (the “Viewpoint Discrimination Claim“), White Coat alleges that “GRTC‘s refusal to run [White Coat‘s] advertisement amounts to discrimination on the basis of content and/or viewpoint in violation of the
The original two claims also involve specific and limited grounds for relief. As relief, White Coat asks the Court to make two declarations: (1) “[d]eclare that GRTC‘s [Advertising] Policy prohibiting ‘political ads’ is facially unconstitutional under the
II. Standard of Review: Rule 56
Summary judgment under
“A fact is material if the existence or non-existence thereof could lead a [finder of fact] to different resolutions of the case.” Thomas v. FTS USA, LLC, 193 F. Supp. 3d 623, 628 (E.D. Va. 2016) (citing Liberty Lobby, 477 U.S. at 248). Once a party has properly filed evidence supporting its motion for summary judgment, the nonmoving party may not rest upon mere allegations in the pleadings, but instead must set forth specific facts illustrating genuine issues for trial. Celotex Corp., 477 U.S. at 322–24. The parties must present these in the form of exhibits and sworn affidavits.
A court views the evidence and reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. Liberty Lobby, 477 U.S. at 255. Whether an inference is reasonable must be considered in conjunction with competing inferences to the contrary. Sylvia Dev. Corp. v. Calvert Cty., 48 F.3d 810, 818 (4th Cir. 1995). Nonetheless, the nonmoving “party is entitled ‘to have the credibility of his [or her] evidence as forecast assumed.‘” Miller v. Leathers, 913 F.2d 1085, 1087 (4th Cir. 1990) (en banc) (quoting Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979)).
In the end, the nonmoving party must do more than present a scintilla of evidence in its favor.
Rather, the non-moving party must present sufficient evidence such that reasonable jurors could find by a preponderance of the evidence for the nonmovant, for an apparent dispute is not genuine within contemplation of the summary judgment rule unless the non-movant‘s version is supported by sufficient evidence to permit a reasonable [finder of fact] to find the facts in his [or her] favor.
Sylvia Dev. Corp., 48 F.3d at 818 (internal quotations, citations, and alterations omitted).
III. Legal Standard: Section 1983 Claims
Section 1983 provides a private right of action for a violation of constitutional rights by persons acting under the color of state law. See
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .
Section 1983 is not itself a source of substantive rights, but rather provides a vehicle through which plaintiffs may challenge alleged deprivations of their constitutional rights. See generally Carey v. Piphus, 435 U.S. 247, 253 (1978) (stating that § 1983 “was intended to ‘[create] a species of tort liability’ in favor of persons who are deprived of ‘rights, privileges, or immunities secure[d]’ to them by the Constitution.” (quotation omitted)). In broad terms, to state a claim under § 1983, “a plaintiff must establish three elements . . . : (1) the deprivation of a right secured by the Constitution or a federal statute; (2) by a person; (3) acting under color of state law.” Jenkins v. Medford, 119 F.3d 1156, 1159–60 (4th Cir. 1997); see also Brown v. Mitchell, 308 F. Supp. 2d 682, 692 (E.D. Va. 2004) (citations omitted) (“[A] plaintiff must show that the defendant, acting under color of law, violated the plaintiff‘s federal constitutional or statutory rights, and thereby caused the complained of injury.“).
When a plaintiff brings a Section 1983 claim against a government entity such as a municipality, liability attaches only if “an official policy or custom” caused the “unconstitutional deprivation of the plaintiff‘s rights.” Brown, 308 F. Supp. 2d. at 692 (citing Monell v. Dep‘t of Soc. Servs. of City of N.Y., 436 U.S. 658, 694 (1978)).
A policy or custom for which a municipality or government entity may be held liable can arise in four ways: (1) through an express policy, such as a written ordinance or regulation; (2) through the decisions of a person with final policymaking authority; (3) through an omission, such as a failure to properly train officers, that “manifest[s] deliberate indifference to the rights of citizens“; or[,] (4) through a practice that is so “persistent and widespread” as to constitute a “custom or usage with the force of law.”
Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003) (quoting Carter v. Morris, 164 F.3d 215, 217 (4th Cir. 1999)).
IV. Analysis: State Action For § 1983 Purposes
White Coat contends that the GRTC Advertising Policy violates the
A. Because the Governments of Richmond and Chesterfield County are Entwined in the Management and Control of GRTC, GRTC is a State Actor
GRTC constitutes a government actor because the City of Richmond and Chesterfield County are “entwined in . . . [its] management or control.” Evans, 382 U.S. at 301. Because of this relationship, the actions of GRTC may fairly be treated as those of the state itself for § 1983 purposes.
1. Legal Standard: Entwinement and State Action Under § 1983
Section 1983 provides a private right of action for a violation of constitutional rights by persons or entities acting under the color of state law. See
The United States Court of Appeals for the Fourth Circuit has “observed that merely private conduct, no matter how discriminatory or wrongful[,] fails to qualify as state action.” Id. at 181 (citing Mentavlos v. Anderson, 249 F.3d 301, 301 (4th Cir. 2001)) (internal quotation marks omitted). “This is so, in part, to preserve[ ] an area of individual freedom by limiting the reach of federal law and avoid[ing] impos[ition] [up]on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed.” Id. (citing Edmonson v. Leesville Concrete Co., 500 U.S. 614, 619 (1991)) (internal quotation marks omitted). Thus, “[p]rivate activity will generally not be deemed ‘state action’ unless the state has so dominated such activity as to convert it to state action.” Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 616 (4th Cir. 2009) (quoting DeBauche v. Trani, 191 F.3d 499, 507 (4th Cir. 1999)).
On the other hand, “‘the deed of an ostensibly private organization or individual’ may at times demand to be treated ‘as if a State has caused it to be performed.‘” Mentavlos, 249 F.3d at 310 (quoting Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass‘n, 531 U.S. 288, 295 (2001)). In particular, “state action may be found if, though only if, there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself.” Id. (citations and internal quotation marks omitted). In the end, “no specific formula” guides the Court‘s analysis in determining the existence of state action: “‘What is fairly attributable [to the
Relevant here, a nominally private entity may become a state actor when government “is entwined in . . . [its] management or control.” Evans, 382 U.S. at 301. For instance, in Brentwood, the Supreme Court determined that “a statewide association incorporated to regulate interscholastic athletic competition” was a state actor where public schools comprised 84% of the association‘s membership, state board members served on the association‘s board, and the association‘s employees were treated as state employees for retirement purposes. 531 U.S. at 288, 298, 300. Justice Souter, writing for the majority, stated that “[t]he nominally private character of the Association is overborne by the pervasive entwinement of public institutions and public officials in its composition and workings, and there is no substantial reason to claim unfairness in applying constitutional standards to it.” Id. at 298.
2. Richmond and Chesterfield County Are Entwined in the Management and Control of GRTC
GRTC fits the “entwinement” criteria for at least eight reasons. First, the City of Richmond and Chesterfield County own GRTC‘s common shares, and GRTC has always been one-hundred percent government owned. (Adams. Dep. 14–15.) Second, the City of Richmond and Chesterfield County appoint the six-member Board of Directors, who serve one-year terms and may be removed at will by the elected government body that appointed them. (Id. 16–19, 21.) Third, GRTC‘s buses utilize “public use” license plates. (Adams Dep. 37.) Fourth, GRTC remains subject to Virginia‘s Freedom of Information Act. (GRTC‘s Responses and Objections to Plaintiff‘s First Set of Interrogatories, Resp. No. 14.) Fifth, the Richmond City Attorney‘s Office provides legal services to GRTC, including in the instant lawsuit. See Richmond City Code § 2-112(2). Sixth, the City of Richmond must authorize any fare increases that GRTC wishes to institute. (Adams Dep. 17.) Seventh, the GRTC Board approves an annual budget, taking into account projected fare revenue as well as federal and state contributions, and then makes a specific request to the City of Richmond for the remainder. (GRTC Operating Budget); (Adams Dep. 27–31.) Eighth, and finally, the Virginia General Assembly, through the 1973 Charter Amendment, authorized the City of Richmond to create GRTC. (Acts and Joint Resolutions of the General Assembly of the Commonwealth of Virginia, Session 1973, Chapter 348, sec. 2.)
Taken together, these facts show that the “nominally private character of [GRTC] is overborne by the pervasive entwinement of public institutions and public officials in its composition and workings.” Brentwood, 531 U.S. at 298. In contrast to Brentwood, where public schools comprised only 84% of an organization‘s governing body, the entirety of GRTC‘s Board of Directors is appointed by government bodies, and those same government bodies own GRTC‘s ten shares of stock. Because of this “close nexus” between the local governing entities and GRTC, which filters down into numerous aspects of GRTC‘s budget, the composition of its vehicles, its legal status, and operating procedures, GRTC‘s actions “may be fairly treated as that of the State itself.” Id. at 295 (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974)).
In the alternative, the Court finds that GRTC qualifies as a government actor under
B. GRTC Qualifies as a State Actor Under the Supreme Court‘s Decision in Lebron v. National Railroad Passenger Corporation
In Lebron, the Supreme Court determined that the National Railroad Passenger Corporation, more commonly known as “Amtrak,” was “by its very nature, what the Constitution regards as the Government” and thus a state actor. 513 U.S. at 392. Relying on many of the same factors in the above entwinement analysis, the Supreme Court set forth a three-part test for determining when a nominally private entity became “part of the Government” for
1. Lebron Identifies Three Prongs to Determine When Entwinement Grows to Such Proportions that the Entity becomes “By its Very Nature, what the Constitution Regards as the Government.”
In Lebron, the Supreme Court concluded that Amtrak—“established and organized under federal law for the very purpose of pursuing federal governmental objectives under the direction and control of federal governmental appointees“—was, by virtue of its nature, what the Constitution regarded to be government. 513 U.S. at 398. In facts similar to those before the Court, the plaintiff in Lebron sought to run an advertisement critiquing certain political causes, but Amtrak rejected the advertisement. Id. at 377. The plaintiff contended that Amtrak‘s rejection of his advertisement constituted state action. Id. at 379–80.
Observing that “it is not for Congress to make the final determination of Amtrak‘s status as a Government entity for purposes of determining the constitutional rights of citizens,” the Lebron Court looked to the “nature and history of Amtrak” to determine its governmental status. Id. at 383, 392. The Lebron Court first noted that the Rail Passenger Service Act of 1970 (the “RPSA“) authorized the creation of Amtrak “to avert the threatened extinction of passenger trains” in the United States. Id. at 383–84. The RPSA, in addition to authorizing Amtrak‘s incorporation, “set forth its structure and powers” and “outline[d] procedures under which Amtrak will relieve private railroads of their passenger-service obligations.” Id. at 384.
Next, the Lebron Court discussed how Amtrak was subsequently incorporated under the District of Columbia Business Corporation Act.18 At the time, Amtrak‘s Board of Directors
(“Amtrak‘s Board“) had nine members. Six Directors, (including the current Secretary of Transportation), were appointed by the President; two Directors, (by virtue of the Federal
Considering Amtrak‘s history, structure, and the common law, the Lebron Court determined that Amtrak was subject to constitutional constraints. The Federal Government was not merely “entwined” with Amtrak‘s governance: Amtrak was “by its very nature” what the Constitution regarded to be government. Id. at 392. Lebron therefore established that a corporation, like GRTC, is “part of the Government” for constitutional purposes when: “[(1)] the Government creates [the] corporation by special law, [(2)] for the furtherance of governmental objectives, and [(3)] retains for itself permanent authority to appoint a majority of the directors of that corporation.” Id. at 400; see also Kerpen v. Metro. Washington Airports Auth., 907 F.3d 152, 158 (4th Cir. 2018), cert. denied, 140 S. Ct. 132 (2019) (discussing Lebron prongs); Philips, 572 F.3d at 185–86 (recognizing three Lebron prongs).
2. The History and Ownership Structure of GRTC Satisfy the Three Lebron Prongs for Determining the Existence of State Action
The history and ownership structure of GRTC satisfy the three Lebron prongs, meaning GRTC‘s actions may be fairly treated as the actions of the government itself.20
The Court finds the first Lebron prong—whether the government creates the corporation by special law—satisfied. The Court observes that the 1973 Charter Amendment led to GRTC‘s creation. Like the statute at issue in Amtrak, an enabling statute authorized the creation of GRTC.
Although GRTC contends that GRTC was not created by special statute or law, this argument fails for two reasons.21 First, the Virginia Generally Assembly created GRTC by a
“special law” in a substantially similar manner as Congress established Amtrak. Second, a “special law” requirement as narrowly as GRTC seeks would undermine the reasoning of Lebron, contravene binding Supreme Court precedent in Brentwood and Evans, and muddy state action jurisprudence.22
Here, the 1973 Charter Amendment authorizing the creation of GRTC qualifies as a special law. Virginia government authorized the City of Richmond “to acquire, operate, lease, or otherwise provide for the operation of a public transportation system . . . both within and outside the City of Richmond.” (See Act of Joint Resolutions of the General Assembly of the Commonwealth of Virginia, Session 1973, Chapter 348, sec. 2.) The City of Richmond thus acquired the ability to operate a particular transit system from a specific act of the legislature having no applicability to the members of the general public, other corporations, or other transit systems in the state. Put another way, the General Assembly only delegated the City of Richmond the authority to create a certain entity, not a general power. The City of Richmond then exercised that authority, delegated by a special law of the legislature, to incorporate GRTC and acquire VTC‘s assets.
GRTC protests that the 1973 Charter Amendment merely delegated “broad
GRTC‘s contention that GRTC was not created through the 1973 Charter Amendments and thus not “created” by special law is similarly unavailing. The RPSA did not create Amtrak. Congress, through the RPSA, authorized the creation of Amtrak, which was subsequently incorporated by the Executive Branch under the District of Columbia Business Corporation Act. Similarly, the 1973 Charter Amendment did not create GRTC. The Virginia General Assembly authorized the creation of GRTC, which was incorporated by the City of Richmond under Virginia‘s Stock Corporation Act. In both cases, the legislature authorized the creation of the stock corporation while another government actor created the corporation through existing corporate formation statutes. The method of GRTC‘s creation differs little, if at all, from that of Amtrak‘s. The Court concludes that GRTC was authorized and created pursuant to a “special law” of the Virginia General Assembly.
b. The Second Lebron Prong: Furtherance of Governmental Objectives
The Court finds that the second Lebron prong—the furtherance of governmental objectives—also is met on the record before it. The Supreme Court recognized in Lebron that the preservation of public transportation amounts to furtherance of a governmental objective. Lebron, 513 U.S. at 399. The City of Richmond, a government body incorporated GRTC in the early 1970s, for the purpose of “preserv[ing] the city‘s transit services.” (Hurd, Public Transportation 23.) The Court finds this second criterion met for determining the existence of state action.
Finally, the Court determines that the third Lebron prong—whether the government has retained for itself permanent authority to appoint a majority of the directors of that corporation—also is satisfied. The City of Richmond, and later Chesterfield County, has retained “for itself permanent authority to appoint a majority of the directors” of GRTC. Lebron, 513 U.S. at 400. Indeed, the City of Richmond and Chesterfield County‘s control over the GRTC Board surpasses the Federal Government‘s control over Amtrak as described in Lebron. The City of Richmond and Chesterfield County each appoint three members of the six-member GRTC Board. There appear to be no limitations, statutory or otherwise, on who the governing bodies may appoint. The local governing bodies enjoy complete discretion not only over appointments to the Board, but also removals. According to GRTC, board members, even though they are appointed to only one-year terms, are removable at-will by the bodies that appointed them.
These facts present a stronger case of government control than those examined in Lebron. In Lebron, certain statutes limited the President‘s discretion as to whom he or she could appoint to the Amtrak Board by certain, objective criteria. Amtrak‘s Board Members served longer terms, and were not so easily removed. Six Amtrak Board members served either two or four year terms, and they were not removable—for ‘good cause’ or otherwise—by the President. Furthermore, the structure of Amtrak at least allowed for the possibility of a private stake in Amtrak. In its corporate history, Amtrak previously had private common stock shareholders who possessed the power to appoint board members. Here, no such private control exists. Since GRTC‘s incorporation nearly four decades ago, no non-governmental entity has ever owned one of its ten shares.25
GRTC argues that White Coat “will be unable to present any evidence that any governmental actor exercised or attempted to exercise any control over which advertisements to run.” (GRTC Mem. Supp. Mot. Summ. J. 10–11.) GRTC misinterprets Lebron to include a requirement that a government appointee or employee actually make the specific decision said to violate the Constitution. The employees who rejected the proposed advertisement at issue in Lebron were Amtrak employees, not federal government workers. Those Amtrak employees, however, carried out a policy that was set or approved (either explicitly or implicitly) by Amtrak‘s Board, which was almost entirely composed of government appointees. Here too, GRTC‘s Board, appointed entirely by local governing bodies, adopted the initial ban on political advertising in 1973 and have continued that policy. The ban has subsequently been carried out by employees who serve at the pleasure of the Board, which the City of
Because GRTC‘s nominal independence from the state “is overborne by the pervasive entwinement of public institutions and public officials in its composition and workings,” Brentwood Acad., 531 U.S. at 289, the Court concludes that GRTC constitutes a government actor for § 1983 purposes. Compare, supra, Section IV(A)(2) (undergoing entwinement analysis) with Section IV(B)(2)(a), (c) (evaluating Lebron factors one and three).
As a government entity, GRTC may be liable if “an official policy or custom” caused the “unconstitutional deprivation of the plaintiff‘s rights.” Brown, 308 F. Supp. 2d. at 692. White Coat alleges that an official GRTC policy, the Advertising Policy, caused the constitutional violation. As a result, the Court agrees that GRTC may be liable for constitutional violations through § 1983. The Court turns next to the merits of White Coat‘s facial and as-applied Viewpoint Discrimination and Vagueness Claims.
V. Analysis: Viewpoint Discrimination and Vagueness Claims
White Coat contends that the Advertising Policy violates the
A. Facial and As-Applied First Amendment Challenges
The
Two types of challenges to the validity of a statute on
White Coat brings both facial and as-applied
1. Facial First Amendment Challenges
In a facial challenge, “a plaintiff may sustain its burden in one of two ways.” Educ. Media Co. at Va. Tech, Inc. v. Insley, 731 F.3d 291, 298 n.5 (4th Cir. 2013). First, a plaintiff
asserting a facial challenge “may demonstrate that no set of circumstances exists under which the law would be valid, or that the law lacks any plainly legitimate sweep.” Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of Balt., 721 F.3d 264, 282 (4th Cir. 2013) (en banc) (internal quotation marks and alterations omitted). Second, a plaintiff asserting a facial challenge may prevail if he or she “show[s] that the law is overbroad because a substantial number of its applications are unconstitutional, judged in relation to the statute‘s plainly legitimate sweep.” Id. (internal quotation marks and alterations omitted).
Under either scenario, a court considering a facial challenge must assess the constitutionality of the challenged law “without regard to its impact on the plaintiff asserting the facial challenge.”27 Educ. Media Co. at Va. Tech, Inc. v. Swecker, 602 F.3d 583, 588 (4th Cir. 2010). Accordingly, when assessing the constitutionality of a government restriction on speech, such as the Advertising Policy at issue here, courts may consider hypothetical situations if the challenger brings a facial attack on the restriction. Preston v. Leake, 660 F.3d 726, 738 (4th Cir. 2011) (when addressing a facial
When crafting a remedy for facial claims versus as-applied claims, the facial invalidation of a government restriction on speech presents a broader remedy (declaratory relief) than an as-applied invalidation (injunctive relief). That is so because a facial claim contends that a particular government restriction on speech can never be validly enforced and would be unconstitutional in all, or virtually all, of its applications. Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008). In contrast, an as-applied challenge concedes that the statute may be constitutional in many of its applications but asserts that it is not so under the particular circumstances of the case.
Because a facial challenge addresses whether a restriction on speech is “unconstitutional in all of its applications,” id. (quoting Salerno, 481 U.S. at 745), assessing the constitutionality of the restriction as applied to the plaintiff is a critical first step. Cf. Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982) (examining specific conduct at issue before reaching facial claim). If that analysis shows that the plaintiff‘s own speech may lawfully be prohibited, then the government restriction on speech is not facially unconstitutional.
2. As-Applied First Amendment Challenges
To be sure, facial challenges and as-applied challenges conceptually overlap. See Doe v. Reed, 561 U.S. 186 (2010) (acknowledging that plaintiffs’ claim “has characteristics of both” as-applied and facial challenge). But, in contrast to a facial challenge, the Court must assess an as-applied challenge “based on a developed factual record and the application of a statute to a specific person.” Richmond Med. Ctr. for Women v. Herring, 570 F.3d 165, 172 (4th Cir. 2009) (en banc). “In an as-applied challenge . . . the [government actor] must justify the challenged regulation with regard to its impact on the plaintiffs.” Educ. Media Co. at Va. Tech v. Insley, 731 F.3d at 298.
In some cases, courts may find restrictions on speech facially constitutional but unconstitutional as applied to plaintiffs. See, e.g., Educ. Media Co. at Va. Tech, Inc. v. Swecker, 602 F.3d 583, 591 (4th Cir. 2010) (upholding restriction on speech as facially constitutional); Educ. Media Co. at Va. Tech, Inc. v. Insley, 731 F.3d 291, 302 (4th Cir. 2013) (on a second appeal, concluding that the same challenged regulation at issue in Swecker violated the
B. Viewpoint Discrimination Claim
In Count 1, White Coat contends that the Advertising Policy allows GRTC to engage in viewpoint discrimination both facially and as applied to White Coat. Before reaching that issue, the Court must decide the appropriate standard of review based on whether advertising space in GRTC vehicles constitutes a public forum, a designated public forum, or a nonpublic forum.
1. Legal Standard: The Government‘s Power to Regulate Speech in Different Forums
Although the
traditional public forums, designated public forums, and nonpublic forums.” Minn. Voters Alliance v. Mansky, 138 S. Ct. 1876, 1885 (2018).
First, government may only sparingly regulate speech on government property “that has traditionally been available for public [use],” and such regulation “is subject to the highest scrutiny.” Krishna, 505 U.S. at 678. The quintessential public forum includes “streets and parks which ‘have immemorially been held in trust for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Perry, 460 U.S. at 45 (quoting Hague v. CIO, 307 U.S. 496, 515 (1939)). “Reasonable time, place, and manner restrictions are allowed [in public forums], but any restriction based on the content of the speech must satisfy strict scrutiny, that is, the restriction must be narrowly tailored to serve a compelling government interest, and restrictions based on viewpoint are prohibited.” Pleasant Grove City v. Summum, 555 U.S. 460, 469 (2009) (internal citations omitted).
Second, a government entity may create a designated public forum “if government property that has not traditionally been regarded as a public forum is intentionally opened up for that purpose.” Id. (citing Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802 (1985)); see also Child Evangelism Fellowship of Md., Inc. v. Montgomery Cty. Pub. Schs., 457 F.3d 376, 383 (4th Cir. 2006). Such forums can include “university meeting facilities generally open for use by student groups, a school board meeting open to the public, and a municipal auditorium and city-leased theater designed for and dedicated to expressive activities.” Goulart v. Meadows, 345 F.3d 239, 249 (4th Cir. 2003) (citations omitted).
In a designated public forum, regulations on speech are subject to two different levels of scrutiny. Child Evangelism, 457 F.3d at 383. Under the so-called “external” standard, which
places restrictions on the government‘s ability to designate the class for whose benefit the forum has been opened, the restriction need only be “‘viewpoint neutral and reasonable in
“There is some confusion over the terminology use[d] to describe this [second] category, as the Supreme Court and lower courts have also used the term ‘limited public forum‘” interchangeably to what is also called a designated public forum. Goulart, 345 F.3d at 249. The Supreme Court has recognized public school facilities after hours and a student activity fund of a public university as limited public forums. Id.; Child Evangelism, 457 F.3d at 382. The Fourth Circuit has clarified that in a limited public forum, “the government creates a channel for a specific or limited type of expression where one did not previously exist.” Child Evangelism, 457 F.3d at 382 (noting that a designated public forum, in contrast, is one where “the government makes public property . . . generally accessible to all speakers.“). The speech restriction imposed on a limited public forum is subject to just one level of scrutiny: “a government entity may impose restrictions on speech that are reasonable and viewpoint neutral.” Pleasant Grove City, 555 U.S. at 470 (citing Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106-07 (2001)).
This level of scrutiny also applies to what courts have identified as the third type of government-controlled space, the “nonpublic” forum. Mansky, 138 S. Ct. at 1885. The Fourth Circuit has acknowledged that “the similarity between the external standard for speech restrictions in a limited public forum and the standard for speech restrictions in a nonpublic forum ‘in effect makes the limited public forum analytically indistinct from a nonpublic forum.‘” Goulart, 345 F.3d at 249 n.23 (quoting Warren v. Fairfax Cty., 196 F.3d 186, 194 n.8 (4th Cir. 1999) (en banc)). A nonpublic forum is “subject to the same two limitations [as a limited public forum]: the policy must be reasonable and viewpoint neutral.” Child Evangelism, 457 F.3d at 383 (citing Ark. Educ. Television Comm‘n v. Forbes, 523 U.S. 666, 680 (1998)).
2. The Advertising Space on GRTC Buses Is a Nonpublic Forum Because the Government Has Decided to Close It to Certain Types of Speech
The advertising space on GRTC‘s buses operate as a nonpublic forum. GRTC, as a state actor, “retains the choice of whether to designate its property as a forum for specified classes of speakers.” Ark. Educ., 523 U.S. at 680. When the government, such as GRTC, determines to close a forum to certain types of speech, it becomes a nonpublic forum. See Archdiocese of Wash. v. Wash. Metro. Area Transit Auth., 897 F.3d 314, 323 (D.C. Cir. 2018) (“Having plainly evinced its intent in 2015 to close [the government transit system‘s] advertising space to certain subjects, the Board of Directors converted that space into a non-public forum.“). GRTC, by substantially limiting speech and preserving public transportation as the primary goal of the forum, has evinced an intent to create a nonpublic forum.
Nearly every court to consider this question has concluded that advertising
at 322-23 (concluding transit system advertising space constituted a non-public forum); Am. Freedom Def. Initiative v. Suburban Mobility Auth. for Reg‘l Transp., 698 F.3d 885, 891 (6th Cir. 2012); Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65, 82 (1st. Cir. 2004); Uptown Pawn & Jewelry, Inc. v. City of Hollywood, 337 F.3d 1275, 1278-79 (11th Cir. 2003); Children of the Rosary v. City of Phoenix, 154 F.3d 972, 977 (9th Cir. 1998). Even knowing these advertisements appear both inside and outside GRTC vehicles,29 this Court similarly concludes that the advertising space found on GRTC vehicles constitutes a nonpublic forum.
In any event, even were this Court to find that outside advertising somehow could convert the nonpublic forum to a limited one, White Coat and GRTC properly recognize that designating GRTC vehicles as a limited-public forum or a nonpublic forum is a distinction without a difference: either way, the policy limiting speech “must be reasonable and viewpoint neutral.” Child Evangelism, 457 F.3d at 383.
C. Legal Standard: Viewpoint Discrimination Claims in Nonpublic Forums
The Court pauses to acknowledge that even beyond the entwinement and forum analyses,
1. Viewpoint Neutrality
When the State creates a nonpublic forum, it need not allow persons to engage in every type of speech. Good News Club., 533 U.S. at 106. The State‘s power to restrict speech in a
nonpublic forum, however, is not unlimited. Cornelius, 473 U.S. at 806. In a nonpublic forum, ensuring viewpoint neutrality requires the government to do more than just “refrain from explicit viewpoint discrimination.” Child Evangelism, 457 F.3d at 384. The government entity regulating the speech must “provide adequate safeguards to protect against the improper exclusion of viewpoints.” Id. (citing cases). And, in Child Evangelism, the Fourth Circuit noted that unbridled discretion to apply a restriction risks viewpoint discrimination because “the government [might succeed] in unconstitutionally suppressing particular protected speech by hiding the suppression from public scrutiny.” Child Evangelism, 457 F.3d at 386. Accordingly, in a nonpublic forum, like that of GRTC, government regulation or censorship of speech must be both reasonable and viewpoint neutral. Id. at 383 (emphasis added).
Regarding viewpoint discrimination, a restriction on speech must not discriminate based on the viewpoint of the speaker. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995). “[T]he test for viewpoint discrimination is whether—within the relevant subject category—the government has singled out a subset of messages for disfavor based on the views expressed.” Matal v. Tam, 137 S. Ct. 1744, 1766 (2017). At base, viewpoint neutrality ensures “that minority views are treated with the same respect as are majority views.” Bd. of Regents of Univ. of Wi. Sys. v. Southworth, 529 U.S. 217, 235 (2000).
2. Reasonableness
In a nonpublic forum, restrictions on speech need only be reasonable as “assessed in the light of the purpose of the forum and all the surrounding circumstances.” Cornelius, 473 U.S. at 809. The reasonableness standard is more exacting than the rational basis inquiry, and the government bears the burden of proof on it. NAACP v. City of Philadelphia, 834 F.3d 435, 441 (3d Cir. 2016). Still, “it need not be the most reasonable or the only reasonable limitation.”
Cornelius, 473 U.S. at 808. To allow a court to grasp the purpose to which the government actor has devoted the forum, courts can rely on evidence from the record, and on commonsense. NAACP, 834 F.3d at 441; see also Archdiocese of Wash., 897 F.3d at 340. “In other words, consideration of a forum‘s special attributes is relevant to the constitutionality of a regulation since the significance of the governmental interest must be assessed in the light of the characteristic nature and function of the particular forum involved.” Goulart, 345 F.3d at 255 (internal quotation marks and citation omitted).
Under this framework, the Court must first evaluate whether the exclusion of White Coat‘s advertisement amounted to impermissible viewpoint discrimination.
D. The GRTC Advertising Policy As Applied to White Coat Does Not Satisfy Viewpoint Neutrality
The record suggests that Pace and other members of GRTC‘s Communications Department are doing their level best to enforce the Advertising Policy in an evenhanded and thoughtful manner. Indeed, GRTC‘s Advertising Policy expressly aspires to articulate a “standard set of criteria” which allows review of advertisements using a “viewpoint neutral” standard that is “consistently applied” and “objectively enforced.” Nonetheless, the Court concludes that GRTC engaged in unconstitutional viewpoint discrimination as-applied to White Coat because GRTC rejected White Coat‘s advertisement on political grounds while accepting other political advertisements.
To prevail against White Coat‘s as-applied Viewpoint Discrimination Claim, GRTC must justify the challenged regulation with regard to its impact on White Coat. Educ. Media Co. at Va. Tech v. Insley, 731 F.3d at 298. GRTC contends that its intent “is to not allow any of its transit vehicles or property to become a public forum for dissemination, debate, or discussion of public issues.” (Mem. Supp. GRTC Mot. Summ. J. 21, Ex. H “Pace Deposition” 35:4-18, ECF
No. 31-8.) GRTC allows public service announcements without identifying this within its Advertising Policy or another document.31 GRTC avers that it has “consistently interpreted the phrase ‘public issues’ to refer to political content that specifically expresses an identifiable viewpoint.” (Id. (quoting Pace Dep. 35:13-18).) GRTC claims that it rejected White Coat‘s advertisement because it “was a political action group” that “advocate[s] specifically against animal cruelty.” (Id. (quoting Pace Dep. 37:19-22).)
But when asked how the advertisement could be considered non-political, GRTC sent a copy of the Policy to White Coat without offering an interpretation of “political.” (Goodman Decl. ¶ 8). By email, Pace suggested (without identifying any other textual change) that a government agency co-sponsor might allow the advertisement to be run as a public service announcement. (Goodman Decl. ¶ 9). Nothing in this record gives notice to White Coat as to how GRTC determines “what falls within, or may fall within” one of the prohibited categories such as the ban on political advertising. (2013 Adver. Policy 1-2.)
Finally, in its response, GRTC recognizes that it erroneously ran the Chickpea Advertisement (albeit without reviewing it) but “it is not required to be perfect.” (GRTC Resp. White Coat Mot. Summ. J. 14.) GRTC also states that even if the advertisement for the Vice Presidential debate violated the Advertising Policy,
1. The Record Shows GRTC Engaged in Impermissible Viewpoint Discrimination As Applied to White Coat
First, while the record contains the policy that bans “all political ads,” it contains no written description of how GRTC implements that policy. Nothing enunciates how GRTC determined what fell within any of the listed prohibitions. Instead, two employees testified about their experience applying it. As GRTC presents its process, unfortunately, even the best efforts of these employees cannot surmount the absence of identifiable standards to apply the Advertising Policy in a consistent way. GRTC has no written standards about how the Policy should be applied or interpreted.32 In fact, the record before the Court shows a level of inconsistency that renders the policy unconstitutional.
Here, the record shows that GRTC cannot justify its restriction on political advertisements as applied to White Coat. At least three advertisements reviewed by GRTC demonstrate why. First, the record shows GRTC permitted Gracie‘s Guardians to advocate against animal cruelty in the context of a “public service announcement,” but White Coat could not advocate against animal cruelty in regard to the treatment of specific animals at a specific location. In so doing, GRTC found a view uncontroversial when it attacked a practice at a certain level of generality (“don‘t be cruel to animals“) but the same message became contentious and “political” when it advocated for a specific application of that view (“don‘t be cruel to these animals“). This inconsistency reveals how GRTC engaged in impermissible viewpoint discrimination as applied to White Coat.
Second, GRTC accepted advertisements promoting the Vice Presidential Debate, despite its overtly political nature, because it advertised “a public meeting for the benefit of public information that‘s neutral, meaning that all sides are invited to participate in a moderated public discussion.” (Pace Dep. 147: 21-24.) Of course, GRTC‘s statement that the debate would not “favor one political side or the other” reveals a substantive underlying judgment: that there are only two sides, or political parties, to be heard. (Id. 151-52.) Therefore, GRTC accepted overtly political material which conveyed, on some level, a value choice on political ideologies because of GRTC‘s subjective determination that a majority viewpoint was not political.33 (Id. 148.) The Advertising Policy allowed GRTC, through Pace, the discretion to determine that an advertisement pertaining to a “political action that an individual can choose to take” was not political only because she thought “that [was] not what the advertisement was about.” (Id. 153:22-24.) Pace‘s unbridled discretion in applying this restriction shows viewpoint discrimination because “the government [might succeed] in unconstitutionally suppressing particular protected speech by hiding the suppression from public scrutiny.”34 Child Evangelism, 457 F.3d at 386.
Third, the record also shows that in some circumstances GRTC‘s Director of Communications admitted that interpretation of the Policy varied based on her level of familiarity with the content of the advertisement. For instance, VCU sought to run an advertisement promoting its contemporary art institute that seemed to advocate for “Free Speech” and “Free Expression.” Pace “was not well versed in contemporary art,” so she relied on and adopted the perspective of her peer, Anthony Carter, who presumably had familiarity with modern art. (Pace Dep. 156:7-19.) If either Pace or Carter determined that the advertisement was actually advocating for free speech or free expression—as one reasonably could considering those terms appeared in large font in the advertisement—then it would “not be viewpoint neutral advertising” and would violate the Advertisement Policy. (Id. 157:3-4.) But because Carter did not “think [VCU was] trying [to] influence anyone or change anyone‘s mind about a specific social/political issue” with the advertisement—and Pace trusted his judgment—it was approved. (Strugar Decl., Ex. M “Emails Regarding the VCU Advertisement.“) GRTC accepted the VCU Advertisement not because its content was firmly apolitical, but because a GRTC official believed that VCU was not “trying [to] influence anyone.” (Id.)
Still, the record does not explain how GRTC, acting through Pace, determined that VCU was not “trying to influence anyone” via their advertisement: surely, an advertisement for an art museum touting the history of free expression might influence the political views of those who attend. Even if GRTC could be confident in VCU‘s intentions, their definition of “political” changed while determining the propriety of the advertisement. It appears that GRTC’ test, at least when it came to VCU, was whether an advertiser was attempting “to influence anyone” with their message—not whether the advertisement expressed a “viewpoint” or supported one political party or another. GRTC tends to view non-controversial statements of a political nature
as “public service announcements”35 while more controversial statements, or even the same statement espoused by a more controversial speaker, are viewed as “political” in violation of the Advertising Policy. The ad hoc application of the Advertising Policy results in the inclusion of mainstream or uncontroversial views—as viewed by GRTC—while more controversial statements are excluded.
The record also shows that Pace‘s implementation of the Advertising Policy involved seeking to learn more about the sponsoring organization before accepting or rejecting an advertisement. Again, no written procedure required this. But even
discriminates not just on the perceived political nature of the advertisement, but on GRTC‘s perceived political nature of the speaker.36
2. Lehman Does Not Foreclose the As-Applied Viewpoint Discrimination Claim White Coat Raises Here
GRTC argues that the factually analogous Lehman resolves the issues that White Coat presents to this Court. Specifically, Lehman found constitutional a city‘s ban on political advertisements on their public transit system. 418 U.S. at 303-04. In Lehman, the Supreme Court noted the “uncontradicted testimony at the trial [indicated] that during the 26 years of public operation, the Shaker Heights system, pursuant to city council action, had not accepted or permitted any political or public issue advertisement on its vehicles.” Id. at 300-01 (emphasis added). The Supreme Court found that the policy did not violate the constitution because no evidence showed arbitrary, capricious, or invidious enforcement. Id. at 304.
Although Lehman supports the notion that a city transit system‘s prohibition on political advertisements could survive facial
does not show that, like the transit system in Lehman, it has consistently applied its ban on political advertisements for the past twenty-six years.
Despite the Advertising Policy‘s invocation of the talismanic
E. The Advertising Policy Does Not Permit Viewpoint Discrimination On its Face Because it Prohibits All Political Advertisements
White Coat also brings a facial Viewpoint Discrimination challenge to the Advertising Policy‘s prohibition on political advertisements. Although the Supreme Court‘s recent Mansky decision makes this facial Viewpoint Discrimination claim a close call, the Court will grant GRTC‘s motion for summary judgment on this issue in light of Lehman.
1. Lehman Permits A Ban on Political Advertisements for Interior Advertising Space on City Buses
The reasonableness of the Government‘s restrictions in a nonpublic forum is “assessed in the light of the purpose of the forum and all the surrounding circumstances.” Cornelius, 473 U.S. at 809. Still, “it need not be the most reasonable or the only reasonable limitation.” Cornelius, 473 U.S. at 808. “In other words, consideration of a forum‘s special attributes is
relevant to the constitutionality of a regulation since the significance of the governmental interest must be assessed in the light of the characteristic nature and function of the particular forum involved.” Goulart, 345 F.3d at 255 (internal quotation marks and citation omitted). However, “[t]he
In Lehman, the Supreme Court upheld a prohibition on political advertisements in buses’ “car card” interior advertising spaces. 418 U.S. at 303-04 (plurality opinion). In doing so, the Supreme Court recognized three justifications for the city‘s prohibition on political ads. Id. at 304. First, short-term candidacy advertisements could prevent the transit system from securing long-term commercial advertisements that would bring in more revenue by virtue of their longer run-time. Id. Second, users could “be subjected to the blare of political propaganda.” Id. Finally, the ban prevented any inference of favoritism “in parceling out the limited space to eager politicians.” Id. In his concurrence in the judgment, Justice Douglas agreed—not because political advertisements were especially objectionable, but because riders were a captive audience. Id. at 307-08 (Douglas, J., concurring in the judgment).
Lehman predates modern public forum analysis, but the Supreme Court has incorporated that decision into the modern fora framework. See Krishna, 505 U.S. at 678; Cornelius, 473 U.S. at 803-04. Although the Court recognizes that the Supreme Court issued a plurality opinion in Lehman, the Court finds that Lehman remains valid and controls the facial viewpoint
discrimination outcome here.38 The D.C. Circuit, for instance, recently cited Lehman as “Supreme Court precedent directly on point” in a case involving the Washington Metro Area Transit Authority‘s ban on “issue oriented advertising.” Am. Freedom Def. Initiative v. Wash. Metro. Area Transit Auth., 901 F.3d 356, 368 (D.C. Cir. 2018) (rejecting facial viewpoint discrimination claim because under Lehman “it is not facially viewpoint discrimination to ban political advertising in a nonpublic forum“); Am. Freedom Def. Initiative, 698 F.3d at 888, 895 (upholding ban on “[p]olitical or political campaign advertising“); Children of the Rosary, 154 F.3d at 974, 980-81 (White, Retired Justice) (upholding advertising policy limiting acceptable advertisements to “speech which proposes a commercial transaction“); Lebron v. Nat‘l R.R. Passenger Corp., 69 F.3d 650, 654, 658 (2d. Cir. 1995) (upholding Amtrak‘s unwritten policy of not allowing political advertising on remand from the Supreme Court), opinion amended on denial of reh‘g en banc, 89 F.3d 39 (2d Cir. 1995)). At the very least, this long line of cases provides a circumstance (or several given the multiple findings) “under which the law would be valid.” Greater Balt. Ctr. for Pregnancy Concerns, Inc., 721 F.3d at 282 (alterations and citation omitted). Because Lehman upheld a ban on political advertisements in “car card” interiors (when evidence also covered exterior advertisements), the Court finds Lehman controlling.
2. Mansky Does Not Control the Facial Viewpoint Discrimination Claim Because it Considered a First Amendment Challenge Based on Reasonableness in Light of the Purpose Served by a Different Type of Nonpublic Forum: A Polling Place
White Coat contends that the Advertising Policy is facially unconstitutional as to viewpoint because “[t]he Supreme Court‘s recent decision in Mansky is directly on point and
consistent with a long line of cases striking down amorphous restrictions on speech on
In Mansky, the Supreme Court considered whether Minnesota‘s “political apparel ban” preventing voters from wearing political insignia inside a polling place violated the Free Speech Clause on reasonableness grounds. 138 S. Ct. at 1882-83. Because “the apparel ban ma[de] no distinction based on the speaker‘s political persuasion,” the only question was whether the ban was facially “‘reasonable in light of the purpose served by the forum‘: voting.” Id. at 1886 (quoting Cornelius, 473 U.S. at 806). By comparison, the purpose of the forum here is providing mass transportation in the greater Richmond area as a public service corporation. (GRTC Responses and Objections to Plaintiff‘s First Set of Interrogatories.)
The Supreme Court concluded in Mansky that the law did not survive the reasonableness test because of the “unmoored use of the term ‘political’ in the Minnesota law, combined with haphazard interpretations the State has provided in official guidance and representations to this Court.” 138 S. Ct. at 1888. Mansky did not consider a viewpoint discrimination claim, which this Court confronts. Id. at 1886. Rather, Mansky considered whether a state‘s ban on political apparel at a polling place was “reasonable in light of the purpose served by the forum: voting.” Id. (internal quotation marks and citation omitted). The considerations for that nonpublic
a polling place, differ from an evaluation of nature and characteristics of the nonpublic forum here, a bus system. Because Mansky considered a
Given the recency of the Mansky decision, few courts have had the opportunity to apply its reasoning to prohibitions on political advertisements. The findings conflict. The Courts of Appeals for the District of Columbia and the Third Circuit, for instance, have considered Lehman and Mansky in the public transit context and reach diverging conclusions. In American Freedom Defense Initiative v. Washington Metropolitan Area Transit Authority, the Court of Appeals for the District of Columbia rejected a facial viewpoint discrimination claim raised against a transit system after the Supreme Court issued Mansky. 901 F.3d at 368. In a 2-1 decision, the D.C. Circuit Court found that Lehman controlled the outcome of the plaintiff‘s facial viewpoint discrimination claim against a transit system. Although the D.C. Circuit Court remanded the plaintiff‘s reasonableness claim based on Mansky, the appellate court had “no trouble” rejecting the facial viewpoint discrimination claim because “[t]here is Supreme Court precedent [Lehman] almost directly on point.”39 Id.
White Coat‘s argument that Mansky controls the outcome finds support in the United States Court of the Appeals for the Third Circuit. (Notice Suppl. Authority, ECF No. 36.) In Northeastern Pennsylvania Freethought Society v. County of Lackawanna Transit System, the plaintiff challenged a public transit system‘s ban on religious and atheistic messages, which applied to both interior and exterior advertisements. 938 F.3d 424, 428, 440 n.4 (3d Cir. 2019). The Court of Appeals for the Third Circuit issued a 2-1 decision whose split reflects a reading different from that of the D.C. Circuit. The majority cabined Lehman as “a narrow exception to the general prohibition against subject-matter distinctions,” and remarked that, unlike in Lehman, the captive audience concerns were not paramount because the court was considering exterior advertisements. Id. at 440. The majority held that because the transit system‘s “policy discriminates based on viewpoint” it violated the
The split within and between these two appellate decisions demonstrates without question that both sides of the Mansky and Lehman debate rest on persuasive arguments. As to the facial viewpoint analysis, however, the Court concludes that Lehman controls the decision to ban political advertisements in the public transit context. Here, GRTC “offers space on the interior and exterior of its buses to advertisers.” (Mem. Supp. White Coat Mot. Summ. J. 1, ECF No. 29.) GRTC‘s forum,
In conducting its own analysis, the Court concludes that the difference between a polling place and a transportation system commends application of Lehman rather than Mansky. The Supreme Court has highlighted that the type of nonpublic forum at issue raises different considerations. Transit systems, unlike spaces such as parks and sidewalks that have historically been used for congregation and discussion, have a utilitarian purpose that governments are entitled to maintain, at least where they have provided a non-speech-suppressive rationale for regulation. Cornelius, 473 U.S. at 803-04, 806 (“A speaker may be excluded from a nonpublic forum if he [or she] wishes to address a topic not encompassed within the purpose of the forum.” (citing Lehman, 418 U.S. 298)). The Court of Appeals for the Ninth Circuit has recognized that transit systems have legitimate safety concerns that may be considered when formulating an advertising policy. See Seattle Mideast Awareness Campaign v. King Cty., 781 F.3d 489, 501 (9th Cir. 2015) (finding advertising restrictions constitutional where riders and drivers threatened not to ride or drive, citing legitimate safety concerns generated by the negative reaction to proposed advertisement). GRTC similarly contends that its intent in limiting political advertisements on its transit system is to “not allow any of its transit vehicles or property to become a public forum for dissemination, debate, or discussion of public issues.” (Mem. Supp. GRTC Mot. Summ. J. 21, Ex. H Pace Dep. 35:4-18.) And GRTC asserts that its buses are “moving billboards” and it possesses an interest in limiting “controversial and inflammatory subject matter” that could endanger passengers. (Mem. Supp. GRTC Mot. Sum. J. 7.) While the record evidence is not overwhelming, common sense suggests that these are cognizable and valid, especially given the lenient reasonableness standard this Court must employ.40
Mansky added more layers to
As a result, the Court finds that Lehman and its progeny hold that public transit systems do not engage in facial viewpoint discrimination when implementing a ban on political advertising. The Court will grant GRTC‘s Motion for Summary Judgment as to White Coat‘s facial Viewpoint Discrimination Claim. The Court turns next to White Coat‘s Vagueness Claim.
F. Vagueness Claim
White Coat contends that the Advertising Policy‘s prohibition on political advertisements is unconstitutionally vague both facially and as applied to White Coat. The Court first reviews the specific analytical framework for vagueness claims.
1. Legal Standard: First Amendment Vagueness Claims
“A statute can be impermissibly vague for either of two independent reasons. First, if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what [speech] it prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory enforcement.” Hill v. Colorado, 530 U.S. 703, 732 (2000) (citing City of Chicago v. Morales, 527 U.S. 41, 56-57 (1999)); see also Wag More Dogs Liab. Corp. v. Cozart, 680 F.3d 359, 370-71 (4th Cir. 2012). An unconstitutionally vague statute or regulation “fails to give adequate warning of what activities it proscribes or fails to set out ‘explicit standards’ for those who must apply it.” Broadrick v. Oklahoma, 413 U.S. 601, 607 (1973) (quoting Grayned v. City of Rockford, 408 U.S. 104, 108-14 (1972)). Thus, all
The void for vagueness doctrine does not “hold legislators to an unattainable standard when evaluating enactments in the face of vagueness challenges.” Wag More Dogs, 680 F.3d at 371. The Court “can never expect mathematical certainty from our language.” Id. (citing Hill, 530 U.S. at 733 (citation and internal quotations omitted in original)). The court instead “ask[s] whether the government‘s policy is ‘set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with.‘” Id. (quoting Imaginary Images, Inc. v. Evans, 612 F.3d 736, 749 (4th Cir. 2010)).
The limitations of language also mean that “[w]herever the law draws a line there will be cases very near each other on opposite sides.” United States v. Wurzbach, 280 U.S. 396, 399 (1930). Imprecise language does not necessarily make a statute or regulation unconstitutionally vague. “The precise course of the line may be uncertain, but no one can come near it without knowing that he [or she] does so, if [that person] thinks.” Id. (citing Nash v. United States, 229 U.S. 373 (1913)). “Dictionary definitions and old-fashioned common sense facilitate the inquiry.” Wag More Dogs, 680 F.3d at 371 (citing Imaginary Images, 612 F.3d at 749; United States v. Cullen, 499 F.3d 157, 163 (2d Cir. 2007)).
The void for vagueness doctrine applies to both criminal and civil
2. The Advertising Policy is Unconstitutionally Vague As Applied to White Coat Because the Record Shows Inconsistent and Arbitrary Application
Despite the Advertising Policy‘s avowal of consistent application and objective enforcement, the Court finds the Advertising Policy unconstitutionally vague as applied because: (1) the record shows a person of ordinary intelligence could not readily determine whether the policy allows or prohibits advertisements similar to that proposed by White Coat; and, (2) the record evinces arbitrary enforcement of the Advertising Policy as applied to White Coat.41
The record demonstrates that a person of ordinary intelligence could not consistently apply the ban on “political” advertisements when deciding to accept or reject White Coat‘s advertisement. Nor could one anticipate what is prohibited. No person of ordinarily intelligence could know “what falls within, or may fall within” one of the prohibited categories such as the ban on political advertising. (2013 Adver. Policy 1-2.)
At the outset, GRTC never defined the word “political” in the Advertising Policy, and “there exist[s] no specific written guidance documents other than the Board minutes and the policy itself.” (Mem. Supp. GRTC Mot. Sum. J. 7.) Additionally, GRTC‘s definition of the term “political” has changed several times over the course of the litigation. In its pleadings on the Motion to Dismiss, GRTC relied on the first definition of “political” in Webster‘s New Collegiate Dictionary (the “Webster Definition): “of or relating to government, a government, or the conduct of government.” (Mem. Supp. GRTC Mot. Dismiss 12-13, ECF No. 9 (quoting Webster‘s New Collegiate Dictionary 883 (1981)).) GRTC also mentioned additional definitions: “concerned with the making as distinguished from the administration of governmental policy” and “of, relating to, or involving politics and esp[ecially] party politics.” (Id. at 12 n.3 (quoting Webster‘s New Collegiate Dictionary 883 (1981)).) Yet the record shows GRTC accepted advertisements that were expressly political in nature under the Webster Definition. The advertisement for the Vice Presidential Debate is a “political” advertisement because it is “of or
demonstrates that a party submitting an advertisement to GRTC did not have notice of these definitions.
During litigation, GRTC tried to clarify its definition. Perhaps recognizing that the Supreme Court viewed the breadth of the Webster‘s Definition of “political” with disfavor in Mansky, GRTC abandons it on Summary Judgment. See 138 S. Ct. at 1888, 1890 (“Under a literal reading of those definitions, a button or T-shirt merely imploring others to ‘Vote!’ could qualify“). GRTC now defines political speech as that which “specifically expresses an identifiable viewpoint” and only that viewpoint and defines a political action group as one that engages in “‘specific targeted policy advocacy’ that is related to only one side of political issue.” (Mem. Supp. GRTC Mot. Sum. J. 21) (quoting Pace Dep. 37:19-22)). In doing so, GRTC appears to change its definition of “political” to “partisan,” where partisan reflects what GRTC deems to be controversial.42 GRTC does not advance its case by putting forth these varying definitions which point toward the Advertising Policy‘s lack of clarity and authorization of arbitrary enforcement as applied to White Coat. Nothing suggests that the inconsistent decisions stemmed from anything other than an attempt to apply an elusive policy, but the Court notes, as the Supreme Court did in Mansky, that even the best-intentioned judgments run the risk of inconsistency where discretion runs unguided “by objective, workable standards.” 138 S. Ct. at 1891.
Given the evolving definition of “political” even before this Court, GRTC‘s application of the Advertising Policy “turn[s] in significant part on the background knowledge and media
consumption of the particular [official] applying it.” Id. at 1890. In some circumstances, GRTC‘s Director of Communications admitted that interpreting the Policy varied based on her level of familiarity with the content of the advertisement. (Pace Dep. 155-57.) When VCU sought to run an advertisement promoting its contemporary art institute that seemed to advocate for “Free Speech” and “Free Expression,” Pace relied on and adopted the perspective of her peer, Anthony Carter, who presumably had familiarity with modern art. (Id. 156:7-19.) If either Pace or Carter had determined that the advertisement was advocating for free speech or free expression, then it would “not be viewpoint neutral advertising” and would violate the Advertisement Policy. (Id. 157:3-4.) Pace undertook her website review and internal verification without written protocol, meaning that no advertiser could know those actions contributed to a rejection. As a result, the policy, as applied, would not provide a person of ordinary intelligence a reasonable opportunity to understand what speech it prohibits.
In addition to failing to inform a person of ordinary intelligence what speech is prohibited, the record shows that the Advertising Policy allowed for arbitrary enforcement of the ban on political advertisements as applied to White Coat. Here, GRTC rejected the White Coat advertisement because Pace considered the organization an “animal cruelty related nonprofit,” which was, in her opinion, “a political action
Moreover, after GRTC rejected White Coat‘s advertisement, White Coat sought clarification from GRTC regarding its decision under the terms of the Advertising Policy. GRTC did not offer White Coat any definition of “political,” but did suggest—without explaining why—that the advertisement might run as a public service announcement if co-sponsored by Richmond Animal Care and Control. This demonstrates not only arbitrary enforcement, but also shows that White Coat was not on notice as to what was prohibited even when they asked. Although Lehman supports GRTC‘s argument that it may restrict certain advertisements, that case also recognized that an advertising policy applied in an inconsistent and arbitrary manner may violate the
Because the record shows that, as applied to the decision to reject White Coat‘s advertisement while accepting other advertisements that were political in nature, the Advertising Policy resulted in arbitrary enforcement and did not allow a person of ordinary intelligence to readily determine what the ban on political advertising prohibited. As a result, the Court will grant White Coat‘s Motion for Summary Judgment with regard to its as-applied Vagueness Claim.
3. The Advertising Policy is Facially Constitutional under a Vagueness Analysis
The complications created by the intersecting standards applicable to this
The consistent application of Lehman to
4. Courts are Trending Toward a Thoughtful Application of the Facial Vagueness Test Rather than Lehman When Evaluating Whether an Advertising Ban in a Transit System is Facially Unconstitutional
Despite this binding precedent, and especially in the absence of Fourth Circuit guidance, the Court recognizes that Lehman‘s unbending application to assessing the constitutionality of
advertising bans on political advertisements in transit systems has come under challenge in the forty-six years since Lehman came down. The challenges are grounded in strong
So while there can be no debate that the Lehman plurality upheld a restriction on political advertising in the public transit context, some courts have begun to recognize that “the fact that Lehman upheld a policy of excluding political advertisements in public buses hardly determines the [constitutionality] of such a restriction for all time.” Air Line Pilots Ass‘n, Intern v. Dep‘t of Aviation of City of Chicago, 45 F.3d 1144, 1159 (7th Cir. 1995); see also Freethought Soc‘y, 938 F.3d at 439-440 (”Lehman is ‘properly . . . viewed as [a] narrow exception[] to the general prohibition against subject-matter distinctions.‘” (quoting Consol. Edison Co. of N.Y. v. Pub. Serv. Comm‘n of N.Y., 447 U.S. 530, 539 (1980))).
The Fourth Circuit has not made such a finding. The Fourth Circuit allows courts to strike down regulations as impermissibly vague under the longstanding test that articulates just either of two reasons: “[f]irst, a regulation can fail to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits. Second, a regulation can authorize or even encourage arbitrary and discriminatory enforcement.” Wag More Dogs, 680 F.3d at 370-71 (4th Cir. 2012) (internal quotation marks and citations omitted). Generally speaking, “[s]triking down ordinances (or exceptions to the same) as facially void for vagueness is a disfavored judicial exercise.” Schleifer by Schieffer v. City of Charlottesville, 159 F.3d 843, 853 (4th Cir. 1998).
But recently, some courts suggest that a “third related inquiry” emanating from the Supreme Court in its 2018 Mansky decision exists: whether the discretion vested in a government official to permit or prohibit speech is “guided by objective, workable standards.” Am. Freedom Def. Initiative, 901 F.3d at 372. The D.C. Circuit Court remanded for a determination whether the guideline is capable of reasoned application. Id. at 373. This reasonableness query seems grounded on legitimate concerns raised by many courts. Invoking considerations raised by the Fourth Circuit and others, the D.C. Circuit Court asked the district court to determinate whether the guideline is capable
Here, should the test of whether the Advertising Policy failed “to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits,” the policy would signal facially vague unconstitutionality. Even though Mansky considered a facial
with the structure or affairs of government, politics, or the state). Similarly, in the case at bar, without further guidance or explanation for decisionmakers or potential advertisers interpreting the Policy, the term “political” may encompass a wide variety of speech, as shown through White Coat‘s hypothetical advertisements and the record before the Court.
GRTC‘s Advertising Policy offers an unmoored use of the word “political” without definition, and it offers no guidance whatsoever as to what “political,” “political action group,” or “public service announcement” could encompass. No person of ordinary intelligence could understand what speech the Policy prohibits.
Similarly, the Policy could authorize arbitrary enforcement. For instance, to determine what may be deemed political GRTC officials attempt to learn more about the sponsoring organization before accepting or rejecting an advertisement. However, an official‘s unchecked subjective determination of both a “political ad” or a “political action group” can result in arbitrary enforcement of the Policy. White Coat proffered hypothetical advertisements to suggest what the Advertising Policy might preclude, such as whether “No Army” or “Go Army” advertisements would be permissible, or whether a commercial advertisement from Walmart.com might trigger “political” concerns. These hypothetical advertisements reveal the unbridled discretion that decisionmakers for GRTC may exercise when categorizing an advertisement as political or nonpolitical, without allowing an ordinary person to understand what may be excluded. As a result, the Court sees this policy as possibly unconstitutionally vague on its face.
And even Lehman upheld the city‘s restriction on political advertisements while also recognizing that the city must not limit advertisements in an arbitrary, capricious, or invidious manner. 418 U.S. at 303-04. In so doing, the Supreme Court expressly recognized that an advertising policy applied in an inconsistent and arbitrary manner might violate the
While the Court sees the lack of guidance on what advertisers or officials alike may deem political, it is nonetheless bound to follow Lehman in finding that the Policy at bar is not facially unconstitutional as vague. For these reasons, the Court will grant GRTC‘s Motion for Summary Judgment as to its facial Vagueness Claim.
VI. Injunctive Relief
Because the Court finds the Advertising Policy constitutional on its face, it will not grant White Coat‘s request for declaratory relief. Because the Court finds the Advertising Policy unconstitutional as applied to White Coat, the Court will grant White Coat‘s request for injunctive relief.
Consistent with this Memorandum Opinion, the Court will grant injunctive relief to White Coat and enjoin GRTC from inconsistently accepting and rejecting advertisements, as applied to White Coat, that may be considered political in contravention to the terms of its Advertising Policy.
VII. Conclusion
For the foregoing reasons, the Court will grant in part and deny in part White Coat‘s Motion for Summary Judgment, (ECF No. 25), and grant in part and deny GRTC‘s Motion for Summary Judgment, (ECF No. 30).
An appropriate Order shall issue.
M. Hannah Lauck
United States District Judge
Date: May 30, 2020
Richmond, Virginia
Notes
In Lebron, the Supreme Court emphasized both government control, and its longevity:
Amtrak is not merely in the temporary control of the Government (as a private corporation whose stock comes into federal ownership might be); it is established and organized under federal law for the very purpose of pursuing federal governmental objectives, under the direction and control of federal governmental appointees. It is in that respect no different from the so-called independent regulatory agencies such as the Federal Communications Commission or the Securities Exchange Commission, which are run by Presidential appointees with fixed terms.
Id. at 398. The Executive Branch‘s authority to appoint Amtrak Directors meant that it exerted its control not just as a creditor or owner, but as a “policymaker.” Id. at 399.
The Supreme Court stressed that this conclusion was borne not only from history and law, but from common sense. If government were able to avoid constitutional obligations by simply incorporating, a state would be able to resurrect ”Plessy v. Ferguson . . . by the simple device of having the State of Louisiana operate segregated trains through a state-owned Amtrak.” Id. at 397. That Amtrak‘s federal charter stated that it “shall be operated and managed as a for profit corporation” did not compel a different result. Id. at 385 (citing
GRTC‘s argument that they cannot be deemed a state actor seems to echo Justice O‘Connor‘s dissent in Lebron. In dissent, Justice O‘Connor contended that “[a]lthough a number of factors indicate the Government‘s pervasive influence in Amtrak‘s management and operation, none suggest that the Government had any effect on Amtrak‘s decision to turn down [the plaintiff‘s] proposal.” 513 U.S. at 412. But the Lebron majority concluded that there need not be a showing that the influence or decisions of governmental appointees filtered down into every conceivable decision for the government to exercise control as a “policymaker.” Id. at 399. In this case, it suffices that the government exerted command over the policy and practice of GRTC through the control of its Board.
Common sense mandates this conclusion, especially on the facts of this case. In 1973, GRTC‘s Board, consisting entirely of government appointees, adopted by voice vote the political advertising policy in question with little discussion of its contours. Today, GRTC‘s Director of Communications, Pace, typically has responsibility “for evaluating [a] proposed advertisement” and “rejects the advertisement” if she finds that it violates the Advertising Policy. (Mem. Supp. White Coat Mot. Summ. J. 6.) It cannot fairly be said that the government does not act as a policy maker when it sets a policy and delegates authority to an ostensibly private employee to enforce that policy. See Horvath, 362 F.3d at 147 (“that is, the State need not have coerced or even encouraged the events at issue in the plaintiff‘s complaint if ‘the relevant facts show pervasive entwinement to the point of largely overlapping identity’ between the State and the entity that the plaintiff contends is a state actor.“) (quoting Brentwood, 531 U.S. at 303).
Marcellus v. Va. State Bd. of Elections, 168 F. Supp. 3d 865, 872-73 (E.D. Va. 2016) (internal citations, quotations, and alterations omitted), aff‘d, 849 F.3d 169 (4th Cir. 2017).Facial challenges are disfavored for several reasons. Among them, a ruling of unconstitutionality frustrates the intent of the elected representatives of the people. Facial challenges also run contrary to the fundamental principle of judicial restraint that courts should neither anticipate a question of constitutional law in advance of the necessity of deciding it nor formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. Further, facial challenges raise the risk of premature interpretation of statutes on the basis of factually barebones records.