Small Bus. in Transp. Coal. v. Bowser

610 F.Supp.3d 149

SMALL BUSINESS IN TRANSPORTATION COALITION, Plaintiff,

v.Muriel BOWSER, et al., Defendants.

Civil Case No. 20-2645 (RJL)

United States District Court, District of Columbia.

Signed June 28, 2022

Pamela A. Disney, Office of the Attorney General for the District of Columbia, Washington, DC, Shani C. Brown, PID/Equity Section, Washington, DC, for Defendants.

Laurence Lauro Socci, The Socci Law Firm, Washington, DC, for Plaintiff.

MEMORANDUM OPINION

(June 28^th 2022) [Dkt. ## 23, 24]

RICHARD J. LEON, United States District Judge The Small Business in Transportation Coalition ("SBTC" or "plaintiff") brought this action challenging the denial of SBTC's request to paint "Trucker Lives Matter" on a city street by defendants, the mayor and two members of the municipal government of Washington, DC (together, "defendants" or "the District"). SBTC claims this denial constitutes viewpoint discrimination in violation of the First Amendment in light of the fact that the phrase "Black Lives Matter" was painted on a street elsewhere in the city. Pending before me are the parties’ cross-motions for summary judgment. Upon consideration of the pleadings, the record, and the relevant law, and for the reasons stated below, defendants’ motion for summary judgment is GRANTED and plaintiff's motion is DENIED.

BACKGROUND ¹

The tragic death of George Floyd at the hands of a Minneapolis police officer who was arresting him sparked a nationwide series of protests and violent demonstrations in the summer of 2020. The District of Columbia was not spared! Indeed, in the area of Lafayette Square facing the White House, demonstrators clashed with law enforcement personnel for days, and President Trump had to deploy federal law enforcement officers to forcibly clear the Square. See, e.g. , Penkoski v. Bowser , 548 F. Supp. 3d 12, 17–18 (D.D.C. 2021). On June 5, 2020, defendant Muriel Bowser, the mayor of Washington ("Bowser" or "Mayor Bowser"), directed the D.C. Department of Public Works ("DPW") to commission a mural to be painted in the area. DPW employees complied and, together with a group of local artists, painted "Black Lives Matter" in large yellow letters, along with an image of the flag of the District of Columbia in the same yellow color, on the roadway in the block of 16^th Street NW just north of Lafayette Square. See Compl. ¶¶ 7–9 [Dkt. #1]; Pl.’s Mem. of Points and Auth. in Support of Mot. for Summ. J. ("Pl.’s Mem.") at 2 [Dkt. # 23-1]; Pl.’s Statement of Material Facts Not in Dispute ("Pl.’s Statement") ¶ 3 [Dkt. #23-2]; Defs.’ Statement of Undisputed Facts ¶¶ 1–2 ("Defs.’ Statement") [Dkt. # 24-2].² That morning, Bowser gave a press conference where she described the mural as "sen[ding] a message" from the District; when asked about the mural's permanence, she further noted that, "[l]ike all of our public art, it stays." Defs.’ Statement ¶¶ 4–5.

On June 6, 2020, activists altered the portion of the mural containing the D.C. flag by painting over the flag's three stars and adding the phrase "Defund the Police" in the same color and font adjacent to the existing mural, with the effect that the mural appeared to read "Black Lives Matter = Defund the Police." Id. ¶ 9. The following day, District employees repainted the stars but left intact the "Defund the Police" wording. Id. ¶ 10. In August 2020, at Mayor Bowser's direction, DPW employees painted over the "Defund the Police" wording during a re-paving of 16^th Street NW, while the original "Black Lives Matter" mural remained intact. See id. ¶ 12.³

Later in August 2020, SBTC sent a letter to defendant Bowser and to the Attorney General of the District of Columbia, Karl Racine, "to request a permit or other lawful approval" for SBTC to paint the phrase "Trucker Lives Matter" on a street near the headquarters of the U.S. Department of Transportation in the District. Compl. ¶¶ 14–15. On September 3, 2020, SBTC wrote to Deputy Mayor John Falcicchio to follow up on the letter to Mayor Bowser; Deputy Mayor Falcicchio directed SBTC to contact defendant Everett Lott ("Lott"), the Deputy Director of the D.C. Department of Transportation ("DDOT"). Id. ¶¶ 16–17. Lott, in turn, referred SBTC's inquiry to defendant Matthew Marcou ("Marcou"), the Associate Director for Public Space Regulations at DDOT. See id. ¶ 18. On September 8, 2020, SBTC sent a follow-up email to Marcou repeating the request; later that day, Marcou responded to SBTC stating the following:

The District Department of Transportation (DDOT) does not issue permits to install markings on open DC roadways or sidewalks. The District Government may commission markings on roadways and sidewalks. The District Government may also allow markings as part of a special event on roadways and sidewalks that are closed or restricted by DDOT or MPD, provided that the installations are only temporary and removed prior to the re-opening of the restricted areas.

Id. ¶¶ 19–22. In a series of follow-ups responding to Marcou, SBTC inquired why the District government was not giving SBTC's request "the same level of consideration it gave to Black Lives Matter, Inc.;" asked to be permitted to paint streets "[j]ust like the city granted that right to BLM;" and ultimately stated that it considered the government's having "allotted public space in the District" to Black Lives Matter but not to the SBTC's proposed mural to be "viewpoint discrimination." Id. ¶¶ 23–29. Deputy Mayor Falcicchio twice informed SBTC that "painting on the ... streets [was not] an option" and "not feasible" but that DDOT could "advise on use of public space nearby" for another display. Id. ¶¶ 25, 28. On September 18, 2020, SBTC filed the present lawsuit alleging that the District's denial of SBTC's request constituted a First Amendment violation. The parties have since filed cross-motions for summary judgment, which are now pending before me.

LEGAL STANDARD

The Court must enter summary judgment for a moving party "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The parties agree that there are no facts in dispute that are material to the merits of plaintiff's First Amendment claim, see , e.g. , Parties’ Joint Meet and Confer Report at 3, and the record before the Court gives me no basis on which to disagree.⁴ The question before me, then, is whether the undisputed record establishes that the District violated the Constitution, as plaintiff maintains, or that it was acting within its constitutional authority, as the District contends in response.

ANALYSIS

SBTC brings one claim against the defendants in this matter, asserting that the District violated SBTC's First Amendment rights by allowing "Black Lives Matter" to be painted on the District's streets while "failing to provide a reasonable basis for denying Plaintiff" the right to paint, or have the District paint, SBTC's proposed "Trucker Lives Matter" message on another street. See Compl. ¶¶ 39–41.⁵ SBTC submits that this alleged course of action constitutes viewpoint discrimination. Put differently, SBTC's claim is that the District had created a public forum in which it had allowed certain viewpoints to be expressed while censoring SBTC's message. In effect, SBTC is asking this Court to conclude that the District was obligated to espouse SBTC's message through a street mural because a mural saying "Black Lives Matter" was painted and endorsed by the District. For its part, the District argues primarily that the painting of the mural did not reflect or otherwise bring about the creation of a public forum, but instead was government speech, with the District speaking the message embodied by the mural on its own behalf.⁶

It is well established that "[t]he First Amendment's Free Speech Clause does not prevent the Government from declining to express a view." Shurtleff v. Boston , ––– U.S. ––––, 142 S. Ct. 1583, 1589, 212 L.Ed.2d 621 (2022) (citing Pleasant Grove City v. Summum , 555 U.S. 460, 467–69, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009) ). "When the Government wishes to state an opinion, to speak for the community, to formulate policies, or to implement programs, it naturally chooses what to say and what not to say." Id. ; see also Nat'l Endowment for Arts v. Finley , 524 U.S. 569, 598, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998) (Scalia, J., concurring in judgment) ("It is the very business of government to favor and disfavor points of view."). Indeed, for Government to work, private parties cannot invoke the protections of the First Amendment to force their elected officials to espouse other views; instead, it is through the ballot box that such parties may provide a check on the Government's own speech. See Shurtleff , 142 S. Ct. at 1589.

However, where the Government is not itself the speaker of a message, but instead has created or maintained a forum for the expression of private speakers’ views, governmental action is indeed constrained to varying degrees by the First Amendment. See, e.g. , Summum , 555 U.S. at 469–70, 129 S.Ct. 1125. And in that context, rejection of a given viewpoint may no longer merely be an expression of the Government's views, but rather the impermissible censorship of private citizens’ views. Shurtleff , 142 S. Ct. at 1589 ; see also id. at 1595–96 (Alito, J., concurring in the judgment). For this reason, discerning whether the Government is speaking on its own behalf in a given case is often of dispositive importance. Id. at 1596 (Alito, J., concurring in the judgment) ("The ultimate question is whether the government is actually expressing its own views or the real speaker is a private party and the government is surreptitiously engaged in the ‘regulation of private speech.’ " (quoting Summum , 555 U.S. at 467, 129 S.Ct. 1125 )). This indeed is one such case. If the "Black Lives Matter" mural expresses the message of the District as a speaker, SBTC has no constitutional basis to...