United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 10, 2009 Decided December 15, 2009 

No. 08-7098 

ACT NOW TO STOP WAR AND END RACISM COALITION AND 

MUSLIM AMERICAN SOCIETY FREEDOM FOUNDATION, 

APPELLANTS

v. 

DISTRICT OF COLUMBIA, 

APPELLEE

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:07-cv-01495) 

Carl Messineo argued the cause for appellants. With him 

on the briefs was Mara Verheyden-Hilliard. 

David A. Hyden, Assistant Attorney General, Office of 

the Attorney General for the District of Columbia, argued the 

cause for appellee. With him on the brief were Peter J. 

Nickles, Attorney General, Todd S. Kim, Solicitor General, 

and Donna M. Murasky, Deputy Solicitor General.

Before: GARLAND, Circuit Judge, and WILLIAMS and 

RANDOLPH, Senior Circuit Judges. 
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Opinion for the Court filed by Senior Circuit Judge

WILLIAMS. 

WILLIAMS, Senior Circuit Judge: Plaintiff-appellants Act 

Now to Stop War and End Racism Coalition (“ANSWER”) 

and Muslim American Society Freedom Foundation brought 

this action claiming that certain regulations of the District of 

Columbia Department of Transportation, governing the 

placement of posters in the District, violated the First 

Amendment and the Due Process Clause (presumably that of 

the Fifth Amendment, though plaintiffs do not say). The 

district court dismissed the suit, finding that the Foundation 

lacked standing to challenge the regulations because its 

alleged injury amounted at most to “subjective ‘chill.’” Act 

Now to Stop War & End Racism Coal. v. District of 

Columbia, 570 F. Supp. 2d 72, 77-78 (D.D.C. 2008) (quoting 

Laird v. Tatum, 408 U.S. 1, 13-14 (1972)). As to ANSWER, 

the district court abstained under Younger v. Harris, 401 U.S. 

37 (1971), because the District has brought charges against 

ANSWER—now pending before the District of Columbia 

Office of Administrative Hearings—for violating aspects of 

the postering regulations it seeks to challenge in this suit. 570 

F.Supp. 2d at 74-75. We hold that the Foundation’s 

allegations are adequate to support standing. The Younger

issue is more complex, but in the end we conclude that a 

remand of ANSWER’s claim is also in order. 

The challenged regulations impose various limitations on 

individuals or groups that wish to affix noncommercial 

posters on public lampposts in the District. They provide that 

no more than three versions of each poster may be affixed on 

one side of a street block, D.C. Mun. Regs. tit. 24, § 108.10; 

that copies of posters and the name, address, and telephone 

number of the originator must be filed with the District shortly 

after posting, id. § 108.11; and that posters cannot be affixed 
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by means that prevent their complete removal or that damage 

the fixture, id. § 108.9, which we’ll call the “adhesive rule.” 

When ANSWER and the Foundation filed this suit, the 

regulations also required that most signs be removed within 

60 days of posting, but imposed no time limit on “[s]igns 

designed to aid in neighborhood protection from crime”; the 

regulations also allowed political candidates seeking public 

office in the District to post signs at any time before the 

election as long as they removed signs within 30 days 

following the general election. Id. §§ 108.5, 108.6. Signs had 

to bear the date of posting, id. § 108.7, presumably to aid 

enforcement of these time limits. Shortly before this appeal 

was argued, the District’s Department of Transportation 

issued an emergency rulemaking repealing the exemptions for 

political candidates and signs relating to “neighborhood 

protection from crime.” Under rules substituted on an interim 

basis, all signs on public lampposts must be removed after 60 

days, unless they are “related to a specific event,” in which 

case they may be affixed any time prior to the event but must 

be removed within 30 days following the event. Notice of 

Emergency and Proposed Rulemaking, 56 D.C. Reg. 8759, 

8759 (Nov. 6, 2009). The notice of rulemaking said that the 

purpose of the amendments was to remove the time limit 

distinction between political and non-political advertising 

“that has raised First Amendment concerns.” Id.

Plaintiffs’ principal claim before the district court was 

that the time limits in the original postering regulations 

impermissibly discriminated on the basis of content, by 

imposing shorter time limits for speech not related to political 

campaigns or crime prevention. They also claimed that the 

size of the penalties (fines of up to $2000 per violation, see 

D.C. Mun. Regs. tit. 24, § 1380.1; id. § 1312.1(a)), and what 

they characterize as the regulations’ “strict liability” nature, 

chilled constitutionally protected speech; that liability for 
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failure to print the date on which the sign was posted served 

no legitimate governmental interest; and that the regulations 

were vague and overbroad, and invited arbitrary application. 

They sought a declaration that the regulations were 

unconstitutional, an injunction against their enforcement, and 

attorneys’ fees. 

The district court found that the Foundation lacked 

standing to challenge the regulations because it did “not allege 

that it has planned to undertake any action which may violate 

the District’s postering regulations.” 570 F. Supp. 2d at 78. 

But the Foundation had submitted an affidavit from its 

executive director stating that the Foundation “seeks to 

engage in postering . . . to the same extent as is afforded 

others, including those favored within the existing District of 

Columbia municipal regulation system,” and moreover that it 

“must currently refrain from posting materials on public 

lampposts . . . in the same manner and with the same freedom 

as is allowed those whose speech pertains to neighborhood 

crime or whose speech supports a candidacy for elected 

office.” We read this affidavit as plainly indicating an intent 

to engage in conduct violating the 60-day limit—but for the 

existence of the regulations. 

While “subjective ‘chill’ alone will not suffice to confer 

standing on a litigant bringing a pre-enforcement facial 

challenge to a statute allegedly infringing on the freedom of 

speech,” Am. Library Ass’n v. Barr, 956 F.2d 1178, 1194 

(D.C. Cir. 1992), imminent threats commonly suffice. We 

implied in Seegars v. Gonzales, 396 F.3d 1248 (D.C. Cir. 

2005), that standing to challenge laws burdening expressive 

rights requires only “a credible statement by the plaintiff of 

intent to commit violative acts and a conventional background 

expectation that the government will enforce the law.” Id. at 

1253. Allowance of standing in such a case appeared 

essential to reconcile our decision in Navegar, Inc. v. United 
5

States, 103 F.3d 994 (D.C. Cir. 1997), on the one hand, with 

Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289 

(1979), and many like standing cases, on the other. Seegars, 

396 F.3d at 1251-54; see also Ord v. District of Columbia, 

No. 08-7094, 2009 WL 4408200, at *13 (D.C. Cir. Dec. 4, 

2009) (noting that Navegar imposes a more demanding 

standard than United Farm Workers). As in Navegar, the 

Seegars plaintiffs posed a “preenforcement challenge[] to a 

criminal statute not burdening expressive rights and not in the 

form of appeal from an agency decision,” 396 F.3d at 1253 

(emphasis added), so Navegar’s more demanding rule applied, 

id. at 1253-54. 

But here we are confronted with a challenge to a state 

regulation that is claimed to burden expressive freedom, a 

credible statement of intent to engage in violative conduct, 

and somewhat more than the “conventional background 

expectation that the government will enforce the law.” 396 

F.3d at 1253. The District has in fact brought an enforcement 

action against ANSWER for violations of the postering rules. 

And the affidavit by the Foundation’s executive director 

plainly qualifies, at the stage of a motion to dismiss, as “a 

credible statement . . . of intent to commit violative acts.” 

Seegars, 396 F.3d at 1253; cf. Lujan v. Defenders of Wildlife, 

504 U.S. 555, 561 (1992) (“[E]ach element [of standing] must 

be supported in the same way as any other matter on which 

the plaintiff bears the burden of proof, i.e., with the manner 

and degree of evidence required at the successive stages of the 

litigation.”). We therefore must remand the Foundation’s 

claims for further consideration. 

With respect to ANSWER, the district court reasoned that 

Younger abstention was appropriate because of ANSWER’s 

involvement in administrative hearings before the District, in 

which it can raise its federal constitutional claims as defenses. 

570 F. Supp. 2d at 75. Younger abstention is appropriate only 
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when several requirements are met: “[F]irst, a federal court 

may dismiss a federal claim only when there are ongoing state 

proceedings that are judicial in nature; second, the state 

proceedings must implicate important state interests; third, the 

proceedings must afford an adequate opportunity in which to 

raise the federal claims.” Worldwide Moving & Storage, Inc. 

v. District of Columbia, 445 F.3d 422, 425 (D.C. Cir. 2006) 

(quoting Bridges v. Kelly, 84 F.3d 470, 476 (D.C. Cir. 1996) 

(internal quotation marks omitted)). Moreover, the state 

proceeding must be “the type of proceeding to which Younger 

applies,” New Orleans Pub. Serv., Inc. v. Council of City of 

New Orleans, 491 U.S. 350, 367 (1989), which normally 

means “state criminal prosecutions” or “civil enforcement 

proceedings,” id. at 368. 

We agree that ANSWER has failed to show that it does 

not have a “full and fair opportunity to litigate [its] 

constitutional claim” against the adhesive rule in the 

administrative hearings, so the district court appropriately 

abstained as to that challenge. Cf. JMM Corp. v. District of 

Columbia, 378 F.3d 1117, 1121 n.10 (D.C. Cir. 2004). 

Nonetheless, Younger abstention would be improper to the 

extent that ANSWER’s suit challenges the constitutionality of 

other postering regulations that ANSWER has not been 

accused of violating, so long as the invalidity of the 

challenged regulation would not, presumably through 

inseverability, imply the invalidity of any regulation that 

ANSWER has been accused of violating. Conversely, 

abstention is required as to any requested federal court relief 

that would foreclose the District’s consideration of the same 

issues in its civil enforcement proceedings. Cf. Trainor v. 

Hernandez, 431 U.S. 434, 445 (1977) (relying, in application 

of Younger abstention, on concern that nonabstention would 

“foreclose the opportunity of the state court to construe the 

challenged statute in the face of the actual federal 
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constitutional challenges that would also be pending for 

decision before it”). 

Thus, consistent with Younger, ANSWER may raise 

constitutional challenges in federal district court that are 

completely independent of and severable from the violations it 

is facing in the District’s administrative proceedings. In such 

a suit, not only would the court and the District’s Office of 

Administrative Hearings be addressing entirely distinct 

regulations, but there would be no way in which the court’s 

decision could preempt the activity of the District’s 

institutions. 

Two aspects of this issue are obscure on the record before 

us. First, so far as severability is concerned, we do not think it 

appropriate for a court, except perhaps in the most obvious 

case, to rule on the remedial issue of severability in advance 

of deciding the merits. But we see no reason why a party 

could not solve the problem by making a binding disclaimer 

of any inseverability argument. At oral argument, 

ANSWER’s counsel appeared under intensive questioning to 

make such a disclaimer, though only after an array of 

statements seeming to assert inseverability. While 

ANSWER’s complaint has rather a blunderbuss quality, it 

appears principally concerned with the non-application of the 

60-day time limits to certain kinds of speech, under the 

regulations as they existed when ANSWER filed suit, whereas 

the proceedings in the Office of Administrative Hearings 

appeared to revolve solely around the adhesive rule. So long 

as ANSWER’s constitutional attack in federal court relates 

entirely to a regulation (or regulations) not at all involved in 

the Office of Administrative Hearings, and is entirely 

severable, there is no occasion for abstention. 

But—the second obscurity—it is unclear what regulations 

are at stake both in the federal lawsuit and in the District’s 
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proceedings. See Compl. ¶¶ 31-32 (alleging that “[t]he 

District’s strict liability scheme . . . creates an unconstitutional 

and severe chilling effect on free speech”); id. ¶ 39 (alleging 

that the “registration requirements . . . violate[] the protected 

right to engage in anonymous speech”); id. ¶ 40 (alleging that 

the requirement that posters bear the date on which they were 

posted “serves no legitimate interest apart from the 

unconstitutional duration limitations”); id. ¶ 42 (“The 

regulations are unconstitutionally vague.”); id. ¶ 44 (“The 

regulations burden substantially more speech than necessary 

to advance any legitimate government interest.”). As to the 

District’s proceedings, its counsel represented before us that it 

had charged ANSWER with violations of several provisions 

besides the adhesive rule, including the regulations requiring 

that the date of posting be written on the poster and that 

posters must be filed with the District, and limiting to three 

the number of posters in a single street block. But District 

counsel said that these citations were “outside the record,” and 

counsel for ANSWER could not clearly confirm or deny the 

existence of charges other than those under the 60-day rule. 

Because ANSWER in the district court made no 

suggestion of foreswearing inseverability, we would normally 

have no basis for reversing the district court’s decision. But 

as it appears to have done so in oral argument, and as the case 

must be remanded in any event on the Foundation’s claim, we 

think it appropriate to reverse and remand the judgment on 

ANSWER’s claim so that the parties may supplement the 

record to lay an accurate basis for resolution of the Younger

abstention issue. 

The judgment of the district court is therefore 

Reversed and remanded.