Ban of Bus Ads on Controversial Issues Violates Constitution

In WallBuilder Presentations v. Clarke, (D DC, May 21, 2024), a D.C. federal district court granted a preliminary injunction barring enforcement of a Guideline of the Washington Metropolitan Transit Authority which bars bus ads that are "intended to influence members of the public regarding an issue on which there are varying opinions...." Plaintiffs submitted two ads that promoted the idea that the nation's founders were Christians. The court said in part:

... [N]othing in Guideline 9’s text answers basic questions about its reach, and the “indeterminate scope” of Guideline 9 is not “clarif[ied]” or “saved” by any official guidance..... Enforcement of Guideline 9 is thus left to individual reviewers to determine, on a....case-by-case basis, what constitutes an “[a]dvertisement intended to influence” and what constitutes “an issue on which there are varying opinions.”  Such determinations “require[] a government decision-maker to maintain a mental index” of all the issues on which varying opinions exist—which, in turn, requires the decisionmaker to know not only the issues on which opinions differ, but also the precise degree to which opinions differ—an enterprise that the D.C. Circuit has said is “not reasonable.”....   

This Court thus joins the many courts that have rejected similar phrases as constitutionally suspect.... Without objective, workable standards in Guideline 9’s text or accompanying official guidance, reviewers’ “own politics may shape [their] views on what counts” as “an issue on which there are varying opinions,” and the risk of “unfair or inconsistent enforcement,” and even “abuse” is “self-evident.”  ....

However, relying on Circuit Court precedent, the court refused to enjoin enforcement of Guideline 12 that  prohibits advertisements that promote or oppose any religion, religious practice or belief.

ACLU issued a press release announcing the decision.

Suit Challenges D.C. Bus Advertising Restrictions

Suit was filed yesterday in a D.C. federal district court against the Washington Metropolitan Transit Authority challenging its guidelines on permissible bus advertising. Plaintiff is an organization seeking to educate about the religious faith of the founders of America and the role of their religion in the drafting of the Constitution. Its ads violate two WMTA guidelines: one which prohibits advertising "intended to influence members of the public regarding an issue on which there are varying opinions" and the other which bars ads "that promote or oppose any religion, religious practice or belief." The complaint (full text) in WallBuilder Presentations v. Clarke, (D DC, filed 12/12/2023) alleges in part:

8. First, Guideline 9’s “issue” advertising ban, applied by WMATA to prohibit the advertisements, violates the First Amendment in a number of ways. It is unconstitutionally vague, announces an unworkable standard that grants unfettered discretion to the decisionmakers, and, consequently, unlawfully discriminates against WallBuilders’ religious viewpoint. While it rejected WallBuilders’ advertisements, WMATA permits a wide array of advertising relating to issues involving “varying opinions” on its public buses and other advertising venues subject to its Advertising Guidelines. WMATA also permits advertisements for other mission-oriented organizations, even advertisements that relate to the faith-based missions of other organizations. 

9. Second, Guideline 12’s ban on religious advertising also infringes WallBuilders’ right to speak on otherwise permissible topics because of the religious viewpoint WallBuilders seeks to express in its advertisements. By refusing to accept advertisements that “promote or oppose any religion, religious practice or belief,” Guideline 12 necessarily results in discrimination against religious viewpoints on a range of otherwise permissible topics.

Daily Caller reports on the lawsuit which was brought on behalf of plaintiffs by the ACLU and First Liberty Institute, as well as the law firm Steptoe, LLP.

Pro-Life Protesters Can Continue Viewpoint Discrimination Suit Over D.C. Defacement Ordinance

 In Frederick Douglas Foundation, Inc. v. District of Columbia, (DC Cir., Aug.15, 2023), the U.S. Court of Appeals for the D.C. Circuit held that a pro-life group can move ahead with its viewpoint discrimination claim against the D.C. government, but not its equal protection claim.  Plaintiffs alleged that D.C. did not enforce its defacement ordinance against "Black Lives Matter" protesters who chalked or painted protest signs on public and private property. However it did enforce the ordinance against pro-life protesters who wished to paint or chalk "Black Pre-Born Lives Matter" on sidewalks or streets. The court said in part:

... [T]o make out a First Amendment selective enforcement claim, the Foundation is not required to allege discriminatory intent. Viewpoint discrimination violates the First Amendment, “regardless of the government’s benign motive … or lack of animus toward the ideas contained in the regulated speech.”... “Innocent motives do not eliminate the danger of censorship.”...

The Foundation, in the alternative, frames its selective enforcement claim in terms of equal protection. To the extent a separate equal protection claim for viewpoint discrimination arises under the Fifth Amendment, the Foundation has failed to allege an essential element—purposeful discrimination. Even taking the facts in the light most favorable to the Foundation, we find it has not put forward plausible evidence of the District’s animus....

The First Amendment prohibits the government from favoring some speakers over others. Access to public fora must be open to everyone and to every message on the same terms. The District may act to prevent the defacement of public property, but it cannot open up its streets and sidewalks to some viewpoints and not others.... The Foundation has plausibly alleged that its members were similarly situated to individuals against whom the defacement ordinance was not enforced, and that the District discriminated on the basis of viewpoint when enforcing the ordinance. Because the Foundation has failed to adequately allege animus on the part of the District, however, its equal protection challenge fails.

Judge Wilkins filed a concurring opinion, saying in part:

In my view, even though the Foundation must meet the high bar of pleading purposeful discrimination to prevail on its First Amendment claim,.. the high standard is met here.

ADF issued a press release announcing the decision.

 

Judge Asks for Briefing on Whether 13th Amendment Protects Abortion Rights

 In United States v. Handy, (D DC, Feb. 6, 2023), a D.C. federal district court refused to dismiss a criminal case charging ten defendants with conspiracy to block access to a Washington, D.C. abortion clinic. The court said in part:

In part, Defendant moves to dismiss the Superseding Indictment based on the Supreme Court's statement in Dobbs v. Jackson Women's Health Org. ... that “the Constitution does not confer a right to abortion.”... [I]t appears that Defendant’s constitutional argument is predicated on the false legal premise that the predicate statute at issue in the Superseding Indictment only regulates access to abortion. In fact, it regulates a broad category of “reproductive health services,” including, among other things, “counselling or referral services.” See 18 U.S.C. § 248(5). Nevertheless, to the extent that Defendants seek resolution of this matter via a constitutional holding, the Court will require additional briefing....

Here, the “issue” before the Court in Dobbs was not whether any provision of the Constitution provided a right to abortion. Rather, the question before the Court in Dobbs was whether the Fourteenth Amendment to the Constitution provided such a right....  [I]n consideration of the Supreme Court’s longstanding admonition against overapplying its own precedent, it is entirely possible that the Court might have held in Dobbs that some other provision of the Constitution provided a right to access reproductive services had that issue been raised. However, it was not raised. 

Of those provisions that might contain some right to access to such services, the Thirteenth Amendment has received substantial attention among scholars and, briefly, in one federal Court of Appeals decision. E.g., Andrew Koppelman, Forced Labor: A Thirteenth Amendment Defense of Abortion, 84 Nw. U. L. Rev. 480 (1990); Jane L. v. Bangerter, 61 F.3d 1505, 1514-15 (10th Cir. 1995). Therefore, and to ensure the correct and just disposition of this criminal action, the parties shall address in their forthcoming briefing: (1) whether the scope of Dobbs is in fact confined to the Fourteenth Amendment and (2) whether, if so, any other provision of the Constitution could confer a right to abortion as an original matter....

Politico reports on the court's Order.

DC Circuit Hears Oral Arguments From Abortion Protesters

On Wednesday, the U.S. Court of Appeals for the D.C. Circuit heard oral arguments (audio of full oral arguments) in Frederick Douglass Foundation, Inc. v. DC.  In the case, a D.C. federal district court dismissed claims that enforcing ordinances prohibiting the defacing property against anti-abortion protesters but not against racial-justice protesters violated free exercise and free speech protections.  The abortion protesters sought to paint or chalk D.C. streets with the slogan "Black Pre-Born Lives Matter." (See prior posting.) An ADF press release has more on the case.

Damage Claim For Denying Lincoln Memorial Religious Demonstration Permit Dismissed

In Ferguson v. Owen, (D DC, July 8, 2022), a D.C. federal district court dismissed, with leave to amend, a suit for damages against the head of the National Park Service Division of Permits Management for refusing plaintiff a permit for a 4-month long demonstration at the Lincoln Memorial.  He was offered a permit to demonstrate at the Korean War Veterans Memorial site. Plaintiff, a street musician, wanted to convey a religious/ political message.  The court rejected plaintiff's RFRA claim, finding that the denial had not imposed a substantial burden on his religious exercise, saying in part:

Must an individual have a central religious belief that requires demonstrating at the Lincoln Memorial in order for the denial of permit applications to demonstrate at the Lincoln Memorial—accompanied by the approval of permit applications to demonstrate at nearby locations—to constitute a substantial burden under RFRA? The answer to this question is yes.

The court also rejected plaintiff's 1st Amendment claim, refusing to extend implied Bivens causes of action to this type of claim.

School Lacks Standing To Sue For Students' and Parents' Distress From Anti-Abortion Pickets

In Nicdao v. Two Rivers Public Charter School, (DC Ct. App., June 9, 2022), the District of Columbia's local Court of Appeals held that a school's suit for intentional infliction of emotional distress should be dismissed for lack of standing.  At issue was intrusive protests by three individuals who were opposing the construction of a Planned Parenthood clinic next door to the school.  The court held that the school lacked third-party standing to sue on behalf of parents and students who were injured. Financial hurdles making it difficult for the injured parties to sue are insufficient here justify third-party standing. The court also dismissed plaintiff's private nuisance and conspiracy claims. Liberty Counsel issued a press release announcing the decision.

Baseball Team Scout Sues For Religious Exemption From Team's COVID Vaccine Mandate

Yesterday suit was filed in a D.C. federal district court by a scout for the Washington Nationals baseball team who was denied an accommodation for his religious objections to the baseball club's COVID vaccine mandate. The complaint (full text) in Gallo v. Washington Nationals Baseball Club, LLC, (D DC, filed 4/20/2022), claims discrimination on the basis of religion and disability. Thomas More Society issued a press release announcing the filing of the lawsuit.

Preacher's Challenge To Large Group Vigils On Capitol Grounds Fails

In Mahoney v. United States Capitol Police Board, (D DC, April 5, 2022), a D.C. federal district court refused to grant a preliminary injunction to a clergyman who was denied a permit to hold a large prayer vigil on part of the Capitol grounds.  Groups of 20 or more were permitted at that location only if sponsored by a member of Congress. The court rejected plaintiff's selective enforcement claim, saying in part:

Members of Congress sponsoring or organizing demonstrations on the Capitol Grounds present “distinguishable legitimate prosecutorial factors that might justify making different prosecutorial decisions with respect to them.”...  Consider the numerous ways in which Members are different from non-Members while on the Capitol Grounds. In such a setting, for instance, the Member is at her workplace, she enjoys private access to many areas that are otherwise restricted, and she is carrying out her unique constitutional duties as a legislator and representative of her constituents. Numerous legal principles recognize this reality and accord Members unique status while on the Capitol Grounds.

The court also found that plaintiff was unlikely to succeed on his freedom of assembly claim. 

DC Minor Consent Law Violates Parents' Free Exercise Rights

In Booth v. Bowser, (D DC, March 18, 2022), a D.C. federal district court granted a preliminary injunction on free exercise grounds against the Minor Consent for Vaccinations Act Amendment of 2020 which allows minors who are at least 11 years old to consent to vaccinations without parental approval. The court concluded that the Act burdens religious practice, explaining:

If a minor’s parent has filed a religious exemption for the child and the child elects to get a vaccine anyway, a healthcare provider must leave blank part 3 of the Certificate. Id. Part 3 is the child’s immunization record. This serves to obfuscate the child’s vaccination from his parents. But the MCA does not require providers to leave blank part 3 of the Certificate for students whose parents filed a medical exemption.

Washington Post reports on the decision.

Lawsuit By Nun Seeks A Religious Exemption From D.C.'s Healthcare Professionals' Vaccine Mandate

Litigation over the denial of religious exemptions from COVID vaccine mandates continues. This week, a suit was filed in the D.C. federal district court by a nun who is a surgeon and family physician. The DC health department denied her request for a religious exemption from its vaccine requirement for health care professionals.  The complaint (full text) in Byrne v. Bowser, (D DC, filed 3/9/2022) contends that this violates Sr. Deirdre's rights under RFRA and the Free Exercise Clause. In seeking a temporary restraining order and preliminary injunction. plaintiff lists the various medical services she will be unable to perform, including "her abortion pill reversal ministry with the result that human lives that could have been saved in utero might well be lost." Attached to the complaint are nearly 450 pages of exhibits. Thomas More Society issued a press release announcing the filing of the lawsuit.

Suit Challenges DC's Remaining Mask Mandate For Catholic Schools

In Mayor's Order 2022-029 (Feb. 14, 2022), the District of Columbia lifted its COVID mask mandate for various business and recreation venues, and houses of worship, but continued the mandate for a number of facilities including "Public, public charter, private, parochial, and independent schools."  On Monday, suit was filed in the D.C. federal district court by parents of Catholic school students alleging that keeping the mask mandate on Catholic schools violates RFRA and the First Amendment. The complaint (full text) in Dugan v. Bowser, (D DC, filed 3/7/2022) alleges in part:

Defendants’ mandate requiring the children to wear masks in their Catholic school classrooms—while allowing children and adults to not wear masks nearly everywhere else—is arbitrary, unscientific, and irrational. Under Defendants’ policy, a child could sit for hours at the Wizards game at the crowded Capitol One Arena without wearing a mask, but she must cover her face for seven hours a day, the moment she steps into her Catholic school building....

In addition to unconstitutionally burdening Catholic schools and treating them unequally, Defendants’ prolonged mask mandate has had substantially detrimental effects on—and is continuing to significantly impede—the Parents’ children’s Catholic formation and education.

ADF issued a press release announcing the filing of the lawsuit.

UPDATE: On March 11, ADF announced that the lawsuit has been voluntarily dismissed after D.C. revoked the mask mandate.  (Plaintiff's Notice of Voluntary Dismissal).

Preacher Can Move Ahead With Selective Enforcement Challenge To U.S. Capitol Demonstration Limits

In Mahoney v. United States Capitol Police Board, (D DC, Feb. 22, 2022), a clergyman challenged traffic regulations that barred demonstrations by 20 or more people at various locations near the U.S. Capitol. Plaintiff claimed he felt "called by God" to hold a prayer vigil near the Capitol to mark the 20th anniversary of the 9-11 attacks. The court rejected plaintiff's facial free speech challenge to the regulation. However it permitted plaintiff to move ahead with his selective enforcement and free-association claims, saying in part:

Plaintiff has therefore alleged that the Board declined to enforce the Traffic Regulations against several large demonstrations that did not involve religious speech, while it enforced them against him because of the religious content of his speech. It is thus at least plausible that Defendants’ decision was based on the content of Mahoney’s speech, even if that is not the only plausible explanation.

The court rejected plaintiff's Free Exercise and RFRA challenges. It observed: "nowhere does he allege that having a large group present was essential to carrying out his sincerely held religious belief."

Priest's Suit For Reinstatement Dismissed

In Iwuchukwu v. Archdiocese for the Military Services,(D DC, Feb. 11, 2022), the D.C. federal district court dismissed a suit by a former Catholic priest who worked at Georgetown University Hospital and the Department of Veterans Affairs.  After a woman accused the priest of sexually abusing her, the Archdiocese revoked his faculties and endorsement so he could not work as a Catholic pastor.  Legal authorities did not pursue charges against the priest because the statute of limitations had run; the priest submitted polygraph results supporting his denial of wrongdoing.  However the Archdiocese refused to reinstate him.  He sued claiming violation of the 14th Amendment's due process clause and illegal retaliation against him for filing an employment discrimination claim. The court held that the suit should be dismissed under the ecclesiastical abstention doctrine because this:

plainly concerns the composition of the clergy and a matter of church discipline.... Moreover, the conferral of faculties and an endorsement on a priest is a purely religious decision that cannot be reviewed by courts.

The court concluded that his claim for retaliation in violation of the D.C. employment discrimination law should be dismissed because of the statutory exemption for religious organizations.

DC Circuit: USCIS Denial Of Religious Worker Visa Violated RFRA

In National Capital Presbytery v. Mayorkas, (D DC, Oct. 19, 2021), the D.C. federal district court held that USCIS violated the Religious Freedom Restoration Act when it refused to renew the R-1 nonimmigrant religious worker visa for one of National Capital Presbytery's (NCP) ministers who is a citizen of Myanmar. The church applying for a R-1 visa must show how it intends to compensate the religious worker. Here the agency's Administrative  Appeals Office concluded that NCP had not adequately shown this. The court said in part:

Plaintiffs note that Defendants promulgated the compensation regulation to improve its “ability to detect and deter fraud and other abuses in the religious worker program.”... No compelling interest exists here. Defendants do not argue that NCP does not exist, or that there is any fraud afoot here. Given the interest the compensation regulation serves, and that Defendants do not allege fraud, they cannot show a compelling interest in denying NCP’s petition for the reasons asserted....

Suit By Anti-Abortion Protesters Seeking To Chalk Slogan On DC Streets Is Dismissed

In Frederick Douglass Foundation, Inc. v. District of Columbia, (D DC, Sept. 1, 2021), the D.C. federal district court faced on a motion to dismiss the nearly identical questions that it decided in the case in March when it denied a preliminary injunction to anti-abortion protesters who wished to paint or chalk D.C. streets with the slogan "Black Pre-Born Lives Matter." Now the court dismissed plaintiffs' claims that enforcing ordinances prohibiting the defacing property against them but not against racial-justice protesters violated their free exercise and free speech rights. Discussing plaintiffs' RFRA claim, the court said in part:

Taking as true ... allegations that the individual Plaintiffs hold religious beliefs about abortion that motivate their organizing and other activities, Plaintiffs still do not allege any facts to support the claim that painting or chalking the street is needed to express those beliefs.

Moving to plaintiffs' 1st Amendment free exercise claim, the court said in part:

As with their RFRA claim, the individual Plaintiffs allege only that they “share sincerely held religious beliefs” about the preciousness of life and “engage in pro-life advocacy and witness as part of” those beliefs.... Taken as true, this statement does not establish that the inability to paint or chalk substantially burdened their religious exercise.

Muslim Group Sues Facebook For Consumer Fraud Because of Online Hate Speech

The non-profit organization Muslim Advocates filed suit yesterday in District of Columbia Superior Court against Facebook and its executives alleging that their failure to take down anti-Muslim posts, while claiming to do so, is fraudulent and violates the D.C. Consumer Protection Procedures Act.  The complaint (full text) in Muslim Advocates v. Zuckerberg, (DC Super. Ct., filed 4/8/2021) alleges in part:

Every day, ordinary people are bombarded with harmful content in violation of Facebook’s own policies on hate speech, bullying, harassment, dangerous organizations, and violence. Hateful, anti-Muslim attacks are especially pervasive on Facebook. 

Yet Facebook refuses to “remove” this content or “take it down,” as its executives repeatedly promised that they and the company would do when they learn of such content. Instead, in an effort to convince Congress, civil rights groups, and the public that their product is safe, Facebook’s officials have consistently misrepresented the company’s actual practices when it comes to enforcing Facebook’s own its own standards and policies to keep Facebook free of hate speech and other harmful content....

Facebook has been used, among other things, to orchestrate the Rohingya genocide in Myanmar, mass murders of Muslims in India, and riots and murders in Sri Lanka that targeted Muslims for death. Anti-Muslim hate groups and hate speech run rampant on Facebook with anti-Muslim posts, ads, private groups, and other content.....

Washington Post reports on the lawsuit.

Anti-Abortion Protesters Lose Challenge To D.C.'s Defacement Ordinance

In Frederick Douglass Foundation, Inc. v. District of Columbia,  (DDC, March 26, 2021), the federal district court for the District of Columbia refused to enjoin enforcement of D.C.'s Defacement Ordinance against two groups that organized an anti-abortion demonstration. Protesters attempted to paint or chalk the streets with their slogan "Black Pre-Born Lives Matter." The court rejected plaintiffs' free speech, equal protection, RFRA and free exercise claims. Plaintiffs claim that the Ordinance is enforced in a viewpoint discriminatory manner in that "Black Lives Matter" and "Defund the Police" protesters were not prosecuted. The court said in part, however:

It seems far more plausible, rather, that law enforcement opted against enforcing the Ordinance [against Black Lives Matter protesters] in light of the foreseeable risks of intervention in the moment — e.g., inflaming what may well have already been a tense, fervent, and chaotic protest scene.

DC's Capacity Restrictions On Churches Held Invalid

In Roman Catholic Archbishop of Washington v. Bowser, (D DC, March 25, 2021), the D.C. federal district court granted a preliminary injunction against D.C.'s COVID-19 capacity restrictions on houses of worship, finding that they violate the 1st Amendment as well as RFRA. The limit of the lesser of 25% or 250 congregants particularly affects the  Basilica of the Shrine of the Immaculate Conception which seats at least 3000 people. The court said in part:

In practical terms, this means that the Archdiocese’s churches must stop admitting parishioners once they become a quarter full, but Whole Foods or Target can take in as many customers as they wish while complying with social-distancing requirements. “[O]nce a State creates a favored class of businesses, as [the District] has done in this case, [it] must justify why houses of worship are excluded from that favored class.”....

The District’s restrictions are also problematic because the 250-person cap uniquely burdens churches. The Mayor’s order explained that the District set the hard cap at 250 based on the number of persons that “the largest restaurant” could serve at 25 percent capacity....   But as the District admits, “no restaurant in the District has a room that can hold 1,000 people.”

Courthouse News Service reports on the decision.

DC Church Sues Proud Boys For Over Racist Vandalism

An historic Black church in Washington, DC filed suit yesterday against the Proud Boys, its chairman Enrique Tarrio, and members of the organization, seeking damages and declaratory relief for vandalizing of the church.  The complaint (full text) in Metropolitan African Methodist Episcopal Church v. Proud Boys International, L.L.C., (DC Super. Ct., filed 1/4/2021), alleges in part:

1. On December 12, 2020, hundreds of members of the Proud Boys, an all-male group with ties to white nationalism and a pronounced history of violence, traveled to Washington D.C. for the purpose of committing further acts of violence intended to intimidate and silence individuals and organizations that support racial justice.

2. Arriving in droves from around the country, they created a violent riot in Washington, D.C., committed brutal assaults against protestors and passersby, destroyed property, and silenced peaceful speech by tearing down, igniting, and otherwise destroying signs and banners supporting the Black Lives Matter movement.

3.... Metropolitan AME, like other nearby churches showing support for the Black Lives Matter movement, was terrorized through coordinated acts of violence when Proud Boys members climbed over a fence surrounding the Church, came on to the Church’s property and destroyed a large Black Lives Matter sign the Church was proudly displaying.... 

The suit alleges conversion, trespass, violations of the D.C. Bias-Related Crime Act of 1989, and the Freedom of Access to Clinic Entrances Act that prohibits damaging or destroying property of a house of worship. Lawyers Committee for Civil Rights issued a press release announcing the lawsuit. Miami Herald reports on the suit.

Meanwhile (according to AP), yesterday Tarrio returned to D.C. in advance of the protests planned for Wednesday when Congress certifies Electoral College results. He was promptly taken into custody under an arrest warrant issued in connection with the December 12 incident. He also will likely face weapons charges since officers found two high-capacity firearm magazines in his custody when he was arrested.

[Thanks to Michael Lieberman for the lead.]