Background

Petition Filed in Supreme Court for Review of Unconstitutional Ordinance that Chills Free Speech and Threatens to Bankrupt Grassroots Groups Posting Political Leaflets 

Partnership for Civil Justice Fund attorneys working with Paul Hughes of Mayer Brown LLP have filed a Petition for Writ of Certiorari asking the U.S. Supreme Court to review a federal appeals court ruling that threatens free speech in Washington, D.C., in a challenge to the constitutionality of the District of Columbia’s regulations governing public posting of political leaflets. 

The regulations have previously been used to target grassroots organizations posting political messages in the nation’s capital. 

While it is lawful to post signs on certain public space in D.C., the regulations governing those postings are unconstitutionally vague and grant standardless discretion to enforcement agents who may then issue draconian fines of up to $2,000 per poster. 

The PCJF mounted this legal challenge in federal court ten years ago, in 2007, after D.C. issued hundreds of baseless citations and $70,000 in fines to the anti-war organization, Act Now to Stop War & End Racism Coalition (ANSWER). The litigation continued on behalf of ANSWER and the Muslim American Society Freedom Foundation (MASF), a civil rights and social justice organization. 

In response to the PCJF’s legal challenge, the District amended its regulations four times, from one unconstitutional iteration to another until the regulations were struck down by a federal district court. In 2012, then Chief Judge of the U.S. District Court for the District of Columbia Royce Lamberth issued a 58-page opinion ruling that the challenged law “fails First Amendment and Due Process scrutiny.” 

Separately the PCJF forced the District to rescind the $70,000 in bankrupting fines it falsely issued after years of prosecution. 

However, this year, the U.S. Court of Appeals for the D.C. Circuit reinstated the challenged regulations. 

This has been a hard fought battle over the decade and we have won at multiple stages. But the District’s government, including under current Attorney General Karl Racine, has held firm in defending unconstitutional postering laws that are a danger to the First Amendment and put grassroots organizations at risk of bankrupting fines for communicating with low-cost public posters. 

The cert petition asks the Court to review the decision by the D.C. Circuit which overturned the District Court and held that the sign ordinance was not unconstitutionally vague. 

The ordinance provides no objective criteria to govern enforcement agents’ discretion in issuing fines as they may choose to deem a poster to be related to an event and thus subject to special restrictions requiring early removal and massive fines – even where no event is referenced on the face of the leaflet. 

In his 58-page opinion, now reversed on appeal, Judge Lamberth wrote: “When First Amendment rights are at issue, the government must strive to be clear and precise. It should cabin discretion to ensure that its law is enforced fairly and predictably. It cannot simply allow each officer to independently decide whether certain speech runs afoul of the law.” 

The ruling continued, “[O]nce the District opens up public property to political speech, it has a responsibility to be fair, even, and precise in its regulations. If it chooses to make distinctions between different types of speech—even if its distinctions might appear benign—it must justify why it treats different kinds of speech differently, and explain how this distinction furthers its significant interests. When treading on First Amendment interests, it should strive to limit administrative discretion, not codify and endorse it. In order to avoid chilling protected speech, the regulations must be clear, and provide objective standards for enforcement.” 

The recently-filed cert petition states: “Unless this Court intervenes, free speech will be chilled in the District. Because the standards an official may use to judge whether a sign is event-related are ad hoc and entirely unknowable, the public is very likely to engage in self-censorship to avoid the draconian $2,000 per poster fines. 

“The event-related sign regulation at issue here has unique implications given that the District is the Nation’s seat of government. Events of all stripes occur on a daily basis in the District, and rallies emerge with little warning or planning. Meanwhile, individuals and groups from across the country hang their posters in the District, often addressing issues of pressing political concern. Postering—a core exercise of democratic free speech—is woven deep into the District’s fabric. Yet the decision below authorizes District officials to apply idiosyncratic interpretations of what makes a sign “related to” an event— and then impose punishment on those who unwittingly violate that ad hoc standard.” 

The cert petition can be read here.