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D.C. gov’t rescinds unconstitutional postering rule

Years of litigation lead to free speech victory

In a free speech victory for grassroots activists in Washington, D.C., the DC government has been forced to rescind its unconstitutional rule governing political signs and posters that favored politicians’ speech over grassroots activism.

New regulations issued in the D.C. Register on August 26, 2011, triple the time period (from 60 days to 180 days) that grassroots advocacy or “issue” oriented political materials may remain posted on public space, while limiting and equalizing the posting of campaign electioneering materials to the same maximum period, 180 days. Previously, campaign signage was granted preferential treatment, and could be posted indefinitely so long as they were removed 30 days after the general election.

Under the old system, groups or persons who posted grassroots or issue oriented political signs for longer than 60 days were subject to potentially massive fines. The lawsuit was originally filed after the District fined the anti-war and anti-racism organization, the A.N.S.W.E.R. Coalition, tens of thousands of dollars for postering.

After four years of hard fought litigation filed by the Partnership for Civil Justice Fund, on behalf of the ANSWER Coalition and Muslim American Society Freedom, the District of Columbia announced today it has issued “emergency” regulations amending the existing posting laws. The District explained the emergency change was “necessitated by the immediate need to address the continuing threat to the public welfare posed by a preliminary judicial finding of unequal treatment of non-commercial advertising in the public space.”

That “preliminary judicial finding” was issued in the ongoing litigation filed by the Partnership for Civil Justice Fund. On July 21, 2011, the Honorable Royce C. Lamberth, Chief Judge of the United States District Court for the District of Columbia issued an opinion in which he advised the District that it should “revise the regulations to include a single, across-the-board durational restriction that applies equally to all viewpoints and subject matters. This would address the problem of litter, remove the suspicion that politicians are carving out exceptions to benefit their own campaigns, and uphold the tradition of vibrant free expression in the national’s capital.”

Today’s emergency regulations, which address one part of the ongoing lawsuit, remove the preferential treatment given to the posters of politicians for their campaigns that let election-related posters remain up while those advocating grassroots political action and demonstrations were forced to take their posters down or suffer heavy financial penalties.

“We have prevailed against a recalcitrant government that has fought tooth and nail to preserve and maintain a system that gave special rights to government officials and candidates seeking office, while taking rights away from ordinary people speaking out on issues of social and political importance,” stated Carl Messineo, Legal Director of the PCJF.

“We have insisted from the first day of this litigation, filed almost exactly four years ago, that the District government may not lawfully maintain a system that creates a favored hierarchy of speech,” said Mara Verheyden-Hilliard, Executive Director of the PCJF.

“For decades, in this city teeming with activism, people trying to give voice to their causes and aspirations were restricted and fined for posters on issues of grassroots organizing, while the streets would be flooded with campaign signs for months on end,” she continued.

Case History

This case has required years of persistent litigation. When the case was filed on August 20, 2007, the District vigorously defended the legality of its regulations, which had been on the books for decades without legal challenge. At that time, the regulations expressly distinguished between campaign related speech and other political speech on the basis of content.

Days before a November, 2009 argument on the case before the U.S. Court of Appeals for the District of Columbia Circuit, the District of Columbia unexpectedly issued an “emergency” rescission and amendment to its regulations, substituting a new set that distinguished between “event specific” and issue oriented signage. The case was remanded to the lower court, where the plaintiffs contended that the new regulations perpetrated the prior express system of content-based preferential treatment for campaign related speech, again leaving grassroots activists to suffer the risk of massive fines and the burdens of removing or replacing their issue oriented political signs every 60 days.

In his July 21, 2011 opinion, Chief Judge Lamberth agreed with the plaintiffs’ reasoning, leading to the emergency amendments promulgated today.

The PCJF is litigating and providing legal support and consultation to grassroots activists in cities around the country who are challenging the growing trend of government and law enforcement to criminalize and monetarily fine the distribution of leaflets and posters.