1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) PATRICK MAHONEY et al. , ) ) Plaintiffs, ) ) v. ) Civil Action No. 09-105 (ESH) ) DISTRICT OF COLUMBIA, et al. , ) ) Defendants. ) ____________________________________) MEMORANDUM OPINION Plaintiffs Reverend Patrick Mahoney, KaitlinMahoney Martinez, the Christian Defense Coalition, Survivors of the Abortion Holocaust, and Cheryl Conrad bring this action against defendants District of Columb ia (“District”), Chief of the Metropolitan Police Department (“MPD”) Cathy L. Lanier, and unidentified MPD officer “John Doe.” 1 Plaintiffs allege that defendants’ refusal to permit them to engage in “chalk art” demonstrations on the pavement of the 1600 block of Pennsylvania Ave nue in front of the White Hous e violated the First, Fourth, and Fifth Amendments to the U.S. Constitution; the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb et seq. ; and the District of Columbia First Amendment Rights and Police Standards Act of 2004 (“FARPSA”), D.C. Law 15-352 (2005) (codified at D.C. Code § 5-331.01, et seq. ). Before the Court is defendants’ motion to dismiss the complaint or, in the alternative, for summary judgment and plainti ff’s opposition thereto. For the reasons set forth below, defendants’ motion will be granted. BACKGROUND In late 2008, plaintiffs began preparations for a January 24, 2009 demonstration on the

1 Chief Lanier and John Doe are sued solely in their official capacities.2 paved pedestrian promenade segment of the 1600 block of Pennsylvania Av enue, N.W., directly between the White House and Lafayette Park (“ the 1600 Block promenade”), to protest President Obama’s position on abortion and to protest the anniversary of th e Supreme Court’s decision in Roe v. Wade , 410 U.S. 113 (1973). ( See Am. Verified Compl. (“Compl.”) ¶¶ 51-55, 57-60 [Dkt. 14]; Pls.’ Mot. for TRO and Prelim. Inj. (“TRO Mot.”) [Dkt. 4], Decl. of Rev. Patrick Mahoney (“Mahoney Decl.”), Attach. 1 (“1st Henderson Le tter”) at 1; Defs.’ Mot. to Dismiss the Complaint or, in the Alternative, for Summ. J. (“Mot.”) [Dkt. 17], Statement of Material Facts (“Defs.’ SMF”) ¶ 1.) This particular portion of Pennsyl vania Avenue is under the jurisdiction of the District of Columbia, while the National Park Service (“NPS”) has jurisdiction over the adjacent White House sidewalk and Lafayette Park. (NPS Opp’n to TRO Mot. (“NPS TRO Opp’n”) [Dkt. 9] at 1.) In addition, NPS is re sponsible, pursuant to an agreement with the District, for maintaining and repairing the 1600 Block promenade. ( Id. ; see also id. , Decl. of Ann Bowman Smith (“Smith Decl.”) ¶ 5 & Ex. B.) I. APPLICABLE STATUTES AND REGULATIONS In the District, expressive assemblies are regulated by the “First Amendment Assemblies” subchapter of FARP SA and related regulations. See generally D.C. Code §§ 5- 331.01 to -331.17; D.C. Mun. Regs. tit. 24, §§ 705-706, 711-712. Section 5-331.03 of the D.C. Code declares that it is the District’s po licy to permit “First Amendment assemblies” – i.e. , those conducted for social, political, and religious expr ession – “on the streets, sidewalks, and other public ways,” subject to “reasonable restrictions designed to protec t . . . property . . . .” D.C. Code § 5-331.03; see also id. § 5-331.02(1) (defining “First Amen dment assembly”). Except in three exempted situations, assembly organizers must give notice to the MPD and seek advance approval for their event so that the District cancoordinate the use of public spaces by multiple3 groups and facilitate the allocation of police protection and other municipal assistance to assembly participants. Id. § 5-331.05(b)-(d). However, it is not an offense to assemble without having received advance approval. Id. § 5-331.05(a). FARPSA requires the MPD to “recognize a nd implement” the policy announced in § 5- 331.03 “when enforcing any restrictions” on assemblies. Id. § 5-331.04(a). The MPD may impose content-neutral “reasonable time, place, and manner restrictions” on expressive assemblies in three ways: prior to an assembly through the approval of anassembly plan; during an assembly for which no plan was approved; or during an assembly whose plan had previously been approved subject to restric tions, provided that the additional re strictions satisfy one of three specified criteria. Id. § 5-331.04(b) & (c). Although the authority to grant anassembly plan is vested exclusively with the Chief of Police or her designee, id. § 5-331.06(a)(1), the municipal regu lations specify that assembly plans shall be approved if nine enumerated c onditions are satisfied. D.C. Mun. Regs., tit. 24, § 706.9 (“Regulation 706.9”). In addition, the exerci se of assembly plan review and approval authority is subject to timi ng and notice requirements. See D.C. Code. § 5-331.06(b) & (c). For example, the Chief must provide a written rationa le for any limitations on the approval of an assembly plan which the applicant had previ ously indicated would be “objectionable.” Id. § 5- 331.06(c)(3). An applicant may appeal restrictions and denials of approval to the Mayor or his designee, who must “expeditiously” issue a writte n ruling on the appeal before the assembly’s planned date and time. Id. § 5-331.06(d). II. PLAINTIFFS’ ASSEMBLY PLANS On November 24, 2008, plaintiffs notified the MPD and the Department of the Interior (“DOI”) by letter of their intent to protest the Roe decision on January 24, 2009, on the 16004 Block promenade. ( See 1st Henderson Letter at 1; Compl. ¶¶ 83, 92, 94; Defs.’ SMF ¶ 1.) The letter explained that plaintiffs planned “to create a variety of verbal and visual messages, by making chalk drawings on the pave d surface of Pennsylvania Avenue.” 2 (1st Henderson Letter at 2.) Plaintiffs’ letter was received by Commander James Crane of the MPD Special Operations Division (“SOD”), whose duties and responsibilities include the issu ance or denial of assembly plan approvals pursuant to FA RPSA (Defs.’ SMF ¶ 3), and by officials at the DOI, who communicated the information to the NPS. 3 ( See Smith Decl. ¶ 6.) On January 7, 2009, Commander Crane responded to plaintiff’s November 24 letter. ( See TRO Mot., Mahoney Decl., Atta ch. 4 (“Crane Letter”); see also Compl. ¶¶ 97-98.) Crane’s letter articulated the MPD’s security concerns regarding the White House and requested additional information that would help the MP D fashion a permit, such as the number of anticipated participants, the starting and ending times of th e demonstration, and whether plaintiffs contemplated using any so und amplification or other equipment. 4 (Crane Letter at 1- 2.) The letter was accompanied by a form entitled “Assembly Plan Notification/Application for Approval of Assembly Plan.” ( Id. at 2, 3 (attachment).) It also in formed plaintiffs that chalking the 1600 Block promenade and adjacent sidewalk s would constitute defacement of public property in violation of the Di strict’s criminal defacement statute, D.C. Code § 22-3312.01, as well as NPS regulations, and thatthe MPD did not intend “to issu e a demonstration permit that

2 The letter also gave notice of anintended January 22, 2009 protest of the Roe decision “by words and demonstration” in Lafayett e Park. (1st Henderson Letter at 1.) 3 On December 10, 2008, plaintiffs met with N PS and U.S. Park Police representatives to discuss the January 22 Lafayette Park plans, but no decision had yet been made regarding plaintiffs’ request to conduc t a chalking demonstration on January 24. (TRO Mot., Mahoney Decl., Attach. 2 (“2nd Henderson Letter”) at 1.) 4 It is undisputed that plaintiffs’ planned de monstration, as reflected in their November 24 letter, was not subject to any of FARPSA’s exem ptions from the advance approval requirement.5 could be understood to exempt or ganizers or any other persons from the neutral application” of the District’s defacement statute. ( Id. at 2.) On January 8, 2009, Margaret O’Dell , on behalf of the NPS, sent a letter to plaintiffs that explained the agency’s jurisdiction over th e White House sidewalk and its maintenance responsibilities for the portion of Pennsylvani a Avenue adjacent to the sidewalk. (NPS TRO Opp’n., Ex. 1 (“O’Dell Letter”).) O’Dell expressed the agency’s view that chalking the grounds directly in front of the White House would violate District la w, as well as NPS regulations prohibiting the defacement of “cultural . . . reso urces,” 36 C.F.R. § 2.1(a)(6), and of “real property” on park lands under fe deral legislativ e jurisdiction. Id. § 2.31(a)(3) & (b). ( See O’Dell Letter at 2.) O’Dell’s letter also asserted that the prohibition on chalking was a reasonable time, place, and manner regulation consistent with the First Amendment. ( Id. at 1-2.) On January 9, 2009, plaintiffs responded to th e MPD by letter, citing the District’s past sponsorship of chalk art events on public streets in other locations and characterizing as “patently ridiculous” the refusal to pe rmit chalking on the 1600 Block promenade. (TRO Mot., Mahoney Decl., Attach. 5 (“3rd Henderson Letter”) at 4; Am. Comp. ¶ 106.) Plaintiffs’ letter demanded that permission be granted for them to expres s their views “through the medium of sidewalk chalk” or else they would initiate litigation to compel such pe rmission. (3rd Henderson Letter at 4.) On January 12, 2009, Commander Crane transmitte d to plaintiffs an “Assembly Plan Approval” that permitted the use of signs and banners but expressly withheld permission for sidewalk chalking: In accordance with the provisions of th e First Amendment Assemblies Act of 2004, permission is hereby granted to Re v. Patrick Mahoney to conduct a First Amendment Assembly on Saturday, Ja nuary 24, 2009 from 0700 hours (assembly time), [to] 1900 hours (disbanding time), consisting of no more than 5,0006 persons. You are permitted to possess signs and banners. However, there is no permission granted to use chalk or any other material to mark the surfaces of Pennsylvania Ave., N.W. (TRO Mot., Mahoney Decl., Attach. 6 (“Assembly Pl an Approval”) at 2 (emphasis added).) The Assembly Plan Approval also indicated that plai ntiffs would need a U.S. Park Police permit in order to make any use of the White House sidewalk or Lafayette Park. (Id. ) III. THE INSTANT ACTION On January 16, 2009, plaintiffs initiated this action and moved for a temporary restraining order (“TRO”) and preliminary injunc tion, seeking to stop the District and the MPD from denying them permission to engage in “chalk art” as part of their approval to demonstrate on January 24. On the evening of January 20, the day of the presid ential inauguration, defendants and the NPS, as amicus curiae , filed oppositions to plaintiffs’ motion. [Dkt. 8-9.] After hearing argument on January 22, the Court denied injunctive reli ef on the grounds that plaintiffs failed to establish a substantial likelihood of succe ss on the merits. ( See Jan. 22, 2009 Minute Order.) On January 24, 2009, Mahoney and others we nt to the 1600 block of Pennsylvania Avenue, N.W. with the intent to co nduct their planned demonstration. ( See Compl. ¶¶ 125-127.) Commander Crane and other MPD o fficers were also present. ( Id. ¶ 128.) Mahoney began to chalk the pavement, but MPD directed him to cease doing so, took the chalk away from him, and required him to identify himself. ( Id. ¶¶ 132-134; Defs.’ SMF ¶ 8; see also Defs.’ Mot., Ex. A (video recording of incident).) Mahoney was not taken into custody or charged with any offense. On February 25, 2009, plaintiffs filed an amende d verified complaint asserting six causes of action. Plaintiffs’ first cause of action (“CountI”) contends that the District’s defacement statute, on its face, violates the First Amen dment’s Speech Clause. (Compl. ¶¶ 157-164.) Plaintiffs’ second, third, fourth, a nd fifth causes of action assert th at by threatening to apply the7 defacement statute to plaintiffs’ activities, defend ants violated plaintiffs’ rights under the First Amendment’s Speech and Free Exercise Clauses (“Count II”), RFRA (“Count III”), FARPSA (“Count IV”), and the equal prot ection component of the Fifth Amendment’s Due Process Clause (“Count V”). ( Id. ¶¶ 165-186.) Plaintiffs’ final cause of action alleges that the MPD’s efforts to prevent Mahoney from chalking in front of th e White House on January 24, 2009, violated his rights under the First, Fourth, and Fifth Amen dments as well as RFRA (“Count VI”). ( Id. ¶¶ 187-198.) On March 17, defendants filed a motion to di smiss or, in the alternative, for summary judgment. [Dkt. 17-19.] On April 16, plaintiffs filed their opposition [Dkt. 20], and defendants filed their reply on May 5 [Dkt. 23]. On Ap ril 27, an annual “Chalk-In” event took place on H Street, N.W., between 21st and 22nd Streets, in which particip ants chalked the streets and sidewalks. (Pls.’ Mot. to Supplement Opp’n to Mot. (“Pl.’s Mot. to Supplement”) [Dkt. 24-25] at 2-3.) On May 6, 2009, plaintiffs sought to supplement their opposition in response to the Chalk-In event, and the Court granted the motion in light of defendants’ consent. ANALYSIS I. COUNTS I, II, AND IV: FREEDOM OF SPEECH CLAIMS The central dispute in this ac tion is whether the government may prevent plaintiffs from chalking the 1600 Block promenade consistent with the Constitution. However, several threshold issues are not disputed. First, the parties agree that defenda nts were acting under the color of state law when they prevented plaintiffs from chalking. Second, the creation of words or images through chalk or any other medium is anact of expression that implicates the First Amendment. Third, the paved street of th e 1600 Block promenade is public property that constitutes a “quintessential public forum[]” where “the government may not prohibit all8 communicative activity,” because “str eets and parks . . . ‘have immemorially been held in trust for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.’” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n , 460 U.S. 37, 45 (1983) (quoting Hague v. CIO , 307 U.S. 496, 515 (1939) (Roberts, J., concurring )). Fourth, the government may “regulate competing uses of public forums” by “impos[ing] a permit requirement on those wishing to hold a march, parade, or rally.” Forsyth County v. Nationalist Movement , 505 U.S. 123, 130 (1992) (considering facial challenge to county ordinance requiri ng permits for assemblies and parade). “None of this leads, however, to the conclusion that [plaintiffs] had a constitutional right to be free of a ll restraints.” Christian Knights of Ku Klux Klan Invisible Empire, Inc. v. District of Columbia , 972 F.2d 365, 372 (D.C. Cir. 1992). “‘The pr ivilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all,’” White House Vigil for the ERA Comm. v. Clark , 746 F.2d 1518, 1526 n.66 (D.C. Cir. 1984) (quoting Hague , 307 U.S. at 515 (Roberts, J., concurring)), and “[t]he government is not precluded . . . from regulating expressive activities conducted on the White House sidewalk,” id. at 1527 (emphasis omitted), the public prom enade directly in front of it, or any other public property. Although plaintiffs “m ay have First Amendment freedom to use [the 1600 Block promenade] for protected speech,” th is right “is not accompanied by an unlimited license” to speak in that traditional public foru m through whatever mediumand manner they see fit, “any more than the right to address an audience from the platform of a public monument would confer upon a speaker the freedom to paint a message on it, or to readorn with graffiti property owned by the government . . . .” People for the Ethical Treatment of Animals v. Giuliani (“ PETA ”), 105 F. Supp. 2d 294, 318 (S.D.N.Y. 2000); cf. United States v. Murtari , No.9 07-CR-387, 2007 WL 3046746, at *5 (N.D.N.Y. Oc t. 16, 2007) (noting that even though property damage statute under whic h defendant was charged did notprohibit defacement, he was not “free to write in chalk all over the federal plaza”). Moreover, neither the First Amendment nor FARPSA grants plaintiffs an unlimited rightto tangibly alter the appearance of public property using chalk or any other medium, perm anent or otherwise, nor does it require that this particular street be available to serve as a writing tablet. See Christian Knights , 972 F.2d at 372 (“When it comes to use of a public forum suchas a street, . . . speakers do not have a constitutional right to convey th eir message whenever, wherever and however they please.”). With these guiding principles in mind, the C ourt will now turn to plaintiffs’ facial and as-applied challenges under th e First Amendment and FARPSA. A. Count I: Facial Challenge Count I attacks the defacement statute, D.C. Code § 22-3312.01, as unconstitutional on its face. Facial challenges are generally disfavor ed because they require courts to “‘formulate a rule of constitutional law broade r than is required by the precis e facts to which it is to be applied,’” and because they “threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution.” See Wash. State Grange v. Wash. State Republican Party , 128 S. Ct. 1184, 1191 (2008) (quoting Ashwander v. TVA , 297 U.S. 288, 347 (1936) (Bra ndeis, J., concurring)). Because the doctrines governing facial challenges are complex, th e Court notes the instructive discussion offered by the Supreme Court in New York State Club Associat ion, Inc. v. City of New York : Although . . . facial challenges are someti mes permissible and often have been entertained, especially when speech protecte d by the First Amendment is at stake, to prevail on a facial attack the plainti ff must demonstrate that the challenged law either “could never be applied in a validmanner” or that even though it may be10 validly applied to the plaintiff and others, it nevertheless is so broad that it “may inhibit the constitutionally protect ed speech of third parties.” City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798 (1984). Properly understood, the latter kind of facial challenge is an ex ception to ordinary standing requirements, and is justified only by th e recognition that fr ee expression may be inhibited almost as easily by the potential or threateneduse of power as by the actual exercise of that power. Thornhill v. Alabama , 310 U.S. 88, 97-98 (1940). Both exceptions, however, are narrow ones: the first kind of facial challenge will not succeed unless the court fi nds that “every application of the statute created an impermissible risk of suppression of ideas,” Taxpayers for Vincent , [466 U.S. at 798 n.15], and the second kind of facial challenge will not succeed unless the statute is “substantially” overbroad, whic h requires the court to find “a realistic danger that the statute itself will signi ficantly compromise recognized First Amendment protections of partie s not before the Court.” [ Id. at 801.] 487 U.S. 1, 11 (1988) (citations omitted); accord Initiative and Referendum Institute v. U.S. Postal Serv. , 417 F.3d 1299, 1312 (D.C. Cir. 2005); Wash. State Grange , 128 S. Ct. at 1190 &
n.6. Regardless of how plaintiffs attempt to cast their arguments, their facial attack on the statute fails in light of the defacement statute’s text and applicable legal doctrines. 1. D.C. Code 22-3312.01 Section 22-3312.01, previously codified as § 22- 3112.1, is part of the criminal code that addresses “[t]respass” and “[ i]njuries to [p]roperty.” See D.C. Code, tit. 22, ch. 33. The statute provides that [i]t shall be unlawful for any person or persons willfully and wantonly to disfigure, cut, chip, or cover, rub with, or otherwise place filth or excrement of any kind; to write, mark, orprint obscene or indecent figures representing obscene or [ sic ] objects upon; to write, ma rk, draw, or paint, without the consent of the owner or proprietor thereof, or, in th e case of public property, of the person having charge, custody, or control ther eof, any word, sign, or figure upon: (1) Any property, public or private, bu ilding, statue, monument, office, public passenger vehicle, mass transit equipment or facility, dwelling or structure of any kind including those in the c ourse of erection; or (2) The doors, windows, steps, railing, fencing, balconies, balustrades, stairs, porches, halls, walls, sides of any enclos ure thereof, or any movable property.11 D.C. Code § 22-3312.01. “Property” includes streets and sidewalks, see id. § 22-3312.05(9), and the statute also applies to public property under federal jurisdiction. See United States v. Bohlke , No. 87-M-1645, 116 Daily Wash. L. Rep 1697, 1700 (D.C. Super. Ct. July 14, 1988) (denying motion to dismiss and convicting defendant, unde r statute’s previous codification at § 22-3112.1, for defacing White House pillar); United States v. Frankel , 739 F. Supp. 629, 632 (D.D.C. 1990) (denying motion to dismiss transfer to federal co urt of defendants’ prosecution for defacing U.S. Capitol), sentences following plea aff’d sub nom. United States v. Mastropierro , 931 F.2d 905 (D.C. Cir. 1991). Violators face criminal penaltie s of up to 180 days’ imprisonment and a fine of not less than $250 or more than $1000. D.C. Code § 22-3312.04. 2. Every application of the statute does not create an impermissible risk of suppression. Plaintiffs contend that the defacement statut e operates as “a classic prior restraint on speech” because some of its terms prohibit the writing, marking, drawing, or painting upon “public properties, including streets and sidewalks, which constitute quintessential public forums.” (Compl. ¶¶ 158-160.) They also contend that the MPD supposedly “ignores” the constraints placed by Regulation 706.9 upon the MPD’ s discretion to deny approval for assembly plans, and as a result the defacement statute gi ves defendants “unbridled discretion” to regulate speech because its terms do not specify when co nsent must be granted to write upon or mark government property. ( Id. ¶¶ 161-164.) Plaintiffs rely on cases such as Forsyth County , 505 U.S. 123; City of Lakewood v. Plain Dealer Publishing Co. , 486 U.S. 750 (1988); and Thomas v. Chicago Park District , 534 U.S. 316 (2002), each of whic h considered whether a licensing regime (or other direct regulation of expre ssion) gave government decisionmakers unlimited discretion to restrict speech. ( See Pls.’ Opp’n [Dkt. 20] at 5-9.) Such a regime would be unconstitutional because it creates “an imperm issible risk of suppression of ideas.” Taxpayers12 for Vincent , 466 U.S. at 798 n.15 (citing prior restraint and lic ensing cases). The defacement statute is not subject to attack under this theory because it is not “unconstitutional in every concei vable application . . . .” Taxpayers for Vincent , 466 U.S. at 796. Section 22-3312.01 is an exercise of the District’s legislative authority to protect property rights. See Hannibal & St. J.R. Co. v. Husen , 95 U.S. 465, 470-71 (1877) (notin g that state’s legislative police power extends to “the pr otection of persons and property against noxious acts of other persons, or such a use of property as is injurious to the property of others”). It is true that the law implicates First Amendment interests because the statute’s terms make it unlawful “to write, mark, draw, or paint . . . upon” public property – including traditional public forums such as streets and sidewalks – without the government ’s permission. But the law also prohibits disfiguring, cutting, or chipping r eal or movable property, or coveri ng such property with filth or excrement, and these prohibitions are “perfectly reasonable” with resp ect to “most of the publicly owned objects mentioned in” the statute. Taxpayers for Vincent , 466 U.S. at 801; cf. Lederman v. Giuliani , No. 98-CV-2024, 2001 WL 902591, at *6-*7 (S.D.N.Y. Aug. 7, 2001) (rejecting facial challenge to substantially identical New York defacement statute brought by plaintiff who argued itwas unconstitutional prohibition on chalking of public property). Plaintiffs’ reliance upon Forsyth County and similar cases is therefore misplaced. See also Taxpayers for Vincent , 466 U.S. at 798 & n.15 (distinguishing pr ior restraint and licensing cases when considering facial ch allenge to city ordinance making it unlawful to “paint, mark or write on, or post or otherwise affi x, any hand-bill or sign to” public property). The statute is not a licensing regime designed “to regulate speech pe r se,” but rather a trespass statute aimed at conduct which the District may legitimately prohibit. Humanitarian Law Project v. Mukasey , 552 F.3d 916, 933 (9th Cir. 2009) (finding no threatof censorship wher e statute permitted13 Secretary of State “to authori ze the otherwise prohibited prov ision of ‘material support or resources’ to a designated fore ign terrorist organization,” wh ere “material support” was not equivalent to political expression or associatio n). Even the licensing cases recognize that the mere fact that a law gives the government some measure of discretion does not open that law to facial challenge as a prior restraint. Plain Dealer , 486 U.S. at 759. Instead, it “must have a close enough nexus to expression, or to conduct commonly associated with expr ession, to pose a real and substantial threat of the identified censorship risks.” Id. Section 22-3312.01 lacks just such

a nexus. First, the defacement statute “does not puni sh only [defacement] engaged in for the purpose of expressing views.” United States v. O’Brien , 391 U.S. 367, 375 (1968). Instead, it prohibits all intrusions upon another’s property, regardless of motivation, that tangibly alter the appearance of the property. Plaintiffs have offered no authority to suggest that such intrusions are historically associated with constitutiona lly privileged speech, and “it is an untenable position that conduct such as vandalism is protected by the First Amendment merely because those engaged in such conduct ‘intend[ ] thereby to express an idea.’” Riely v. Reno , 860 F. Supp. 693, 702 (D. Ariz. 1994) (quoting Texas v. Johnson , 491 U.S. 397, 404 (1989)); see also
PETA , 105 F. Supp. 2d at 318; Wilson v. Johnson , 04-CV-059, 2005 WL 2417057, at *7 (E.D. Tenn. Sept. 30, 2005) (“Plaintiff gotcaught defacing the doors a nd walls of two University buildings, conduct that constitutes vandalism, and vandalism is not protected by the First Amendment.”), aff’d , 247 F. App’x 620 (6th Cir. 2007). Second, any burdens upon speech are independent of the expression’s content and incidental to the statute’s legitim ate purpose of protecting property. See Nat’l Paint & Coatings Ass’n v. City of Chicago , 803 F. Supp. 135, 143 (N.D. Ill. 1992) (finding, for purposes of14 interstate commerce analysis, that ordinance re gulating possession of graffiti-type spray paints and markers served legitimate local interest in “preserving property va lues, deterring illegal activity and protecting th e aesthetic character of the City’s neighborhoods from the devastation of graffiti vandalism”). The statute’s narrow focus leaves many alternative forms of speech, such as signs or banners, the use of natural oramplified sound, or any other medium that does not require changing the appear ance of another’s property by wr iting a message directly “upon” it. Because it is not true that § 22-3312.01 “coul d never be applied in a valid manner,” Taxpayers for Vincent , 466 U.S. at 798, plaintiffs’ facial ch allenge under this th eory fails as a matter of law. 3. An overbreadth challenge is not appropriate. The Court will also consider plaintiffs’ f acial challenge to § 22-3312.01 as one brought under the traditional formulation of the “overbre adth” doctrine, because the Supreme Court has not always consistently described whether the rationale for permitting a facial attack upon a licensor’s excess discretion is distinct from the rationale for permitting a facial overbreadth challenge. Compare, e.g. , Wash. State Grange , 128 S. Ct. at 1190 & n.6 (distinguishing facial challenges based on theory that “the law is unconstitutional in all of its applications” from those based on overbreadth), with Forsyth County , 505 U.S. at 129 (describin g facial challenges to licensing regimes as subset of overbreadth doctrine); see also Griffin v. Sec’y of Veterans Affairs , 288 F.3d 1309, 1320-21 (Fed. Cir. 2002) (discussi ng discrepancies in Supreme Court’s discussion of overbreadth doctrine). To hold that § 22-3312.01 is invalid on its face “by reason of the overbreadth doctrine,” the Court must conclude that “the trespass [statute], taken as a whole, is substantially overbroad judged in re lation to its plainly legitimate sweep.” Virginia v. Hicks , 539 U.S. 113, 122 (2003); Broadrick v. Oklahoma , 413 U.S. 601, 615 (1973)15 (“[P]articularly where conduct and not merely speechis involved, . . . the ove rbreadth of a statute must not only be real, but substant ial as well, judged in relation to the statute’s plainly legitimate sweep.”). Such a finding would “suffice[] to invalidate allenforcement of [the ] law, ‘until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitu tionally protected expression.’” Hicks , 539 U.S. at 118-19 (quoting Broadrick , 413 U.S. at 615). “This is not, however, an appropriate case to entertain a facial challenge based on overbreadth,” Taxpayers for Vincent , 466 U.S. at 801, because “the parties challenging the statute are those who desire to engage in prot ected speech that the [supposedly] overbroad statute purports to punish . . . .” Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504 (1985). “[T]he overbreadth doctrine is essentially a jus tertiidevice; it evolved in order to permit one properly charged under a statute to raise the First Am endment rights of others, not charged, whose associational or expressive rights might be chi lled by enforcement of overly broad legislation.” Waters v. Barry , 711 F. Supp. 1125, 1133 (D.D.C. 1989); accord Hutchins v. District of Columbia , 188 F.3d 531, 548 n.14 (D.C. Cir. 1999) ( en banc ) (“[A]n assertion of a facial challenge under the First Amendmen t overbreadth doctrine . . . is re ally a standing exception . . . for parties engaged in unprotected conduct to challenge applications of the statute against third parties not before the court.” (emphasis added)). “[W]hen, as here, the pl aintiffs are themselves engaged in protected activity – when the challenged statute w ould have no greater impact upon the rights of nonparties than it would have upon the ri ghts of the parties be fore the Court – there is no need to employ a traditi onal overbreadth analysis.” Waters , 711 F. Supp. at 1133. Plaintiffs’ efforts to chalk on a public stre et already implicate those portions of § 22- 3312.01 that most directly raise First Amendment c oncerns, so there can be no basis to conclude16 that the law “applies to any conduct more likely to be protected by the First Amendment than [plaintiffs’] own [expressive activities].” Taxpayers for Vincent , 466 U.S. at 802. If the defacement statute “may be validly applied to [plain tiffs], it can be validly applied to most if not all of the [writing, marking, drawing, or pa inting upon public property done by] parties not before the Court.” Id. There is thus no “realistic danger that the ordinance will significantly compromise recognized First Amendment protecti ons of individuals not before the Court,” id. , “no want of a proper party to challenge the statut e, [and] no concern that an attack on the statute will be unduly delayed or protected speech discouraged.” Spokane Arcades , 472 U.S. at 502. It is clear that plaintiffs’ facial challenge – whether ba sed on a theory of unbridled discretion or substantial ove rbreadth – must fail, and thus, Count I will be dismissed for failure to stated a claim upon which relief can be granted. 5 For all of these reasons, Count I w ill be dismissed as a matter of law. B. As-Applied Challenges Plaintiffs also bring “as-applied” challenge s to defendants’ reliance upon the defacement

5 Assuming arguendo that an overbreadth challenge we re appropriate here, which it is not, such a challenge would fail for the reasons that the Supreme Court rejected a similar overbreadth challenge to a local trespass law in Hicks

. See 539 U.S. at 123-24 (holding that trespass policy governing public housing developm ent’s “privatized” public streets was not facially overbroad, because policy applied to al l individuals entering the development’s streets and “not just to those who seek to enga ge in expression,” where Court had assumed arguendo that streets remained public forums and that policy of banning i ndividuals who lacked “‘legitimate business or social purpose for be ing on the premises’” was unlawful grant of unfettered discretion to housing development’s ma nager). As was the case with the “no-return” policy in Hicks , the defacement statute here cannot be deemed substantially overbroad. Even if the defacement statute unlawfully gave defendants unbridled discretion to grant or deny consent to write upon or mark a public street, the statut ory text plainly prohibits many other forms of defacing conduct with respect to many other types of property without raising any First Amendment concerns. “[J]udged in relati on to its plainly legitimate sweep,” id. at 122, the defacement statute is not substa ntially overbroad, and plaintiffs ’ facial challenge would, if permitted to proceed, fail. See also id. at 124 (“Rarely, if ever, w ill an overbreadth challenge succeed against a law or regulation that is not sp ecifically addressed to speech or to conduct necessarily associated with speech (suc h as picketing or demonstrating).”).17 statute to restrict plaintiffs’ abil ity to chalk the 1600 Block promenade. 1. Count II: First Amendment - Speech Clause Count II alleges that defendants violated plai ntiffs’ freedom of speech “[b]y threatening to apply a provision of the criminal code of the District of Columbia” to their expressive conduct. (Compl. ¶ 170.) “Plaintiffs acknowledg e that the District may regulate all such activities” enumerated in the defacement statut e, “including chalk art, whether such a statute exists or not.” (Opp’n at 9 n.2) They argue, however, that those laws are unconstitutional at applied to them. 6 With respect to any “as-applied” challenge, it is well settled that “[t]he permissible mode of regulati[ng]” the use of a tr aditional public forum “is summarized under the familiar heading ‘time, place and manner.’” Christian Knights , 972 F.2d at 372; Mahoney v. U.S. Marshals Serv. , 454 F. Supp. 2d 21, 32 (D.D.C. 2006) (rejecting as -applied challenge, brought by Rev. Mahoney and Christian Defense Coalition, to restriction as to where they could demonstrate outside the Red Mass). “[R]easonable time, place, and mann er regulations” are valid “as long as the

6 Plaintiffs appear to frame their “as-applied” challenge in terms of Forsyth County ’s requirement of “narrowly drawn, reasonable a nd definite standards.” 505 U.S. at 133. ( See Opp’n at 10.) This is not the standard for an as-applied challenge, and plaintiffs’ argument is based on several incorrect premises, owing to plai ntiffs’ erroneous conclusion that D.C. Code § 22-3312.01 is analogous to a licen sing provision governed by Forsyth County and similar cases, see supra Section III.A.1, as well as their misinterpretation of FARPSA and Regulation 706.9. See infra Section III.B.2. However, even if Forsyth County were applicable by virtue of the MPD’s reliance upon the defacement statute when carrying out its duties under FARPSA, the purpose of objective standards is to help ensure th at a licensing scheme is valid on its face , because “without standards to fetter the licensor’s discretion, the difficulties of proof and the case-by-case nature of ‘as applied’ challenges render the licensor’s action inlarge measure effectively unreviewable.” Plain Dealer , 486 U.S. at 757. Because the defacement statute is not unconstitutional on its face, and because plaintiffs disavow any challenge to FARPSA’s facial validity (Opp’n at 3), the Forsyth County considerations would not in form the Court’s analysis of plaintiffs’ “as-applied” claims.18 restrictions ‘are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.’” Lederman v. United States , 291 F.3d 36, 44 (D.C. Cir. 2002) (quoting United States v. Grace, 461 U.S. 171, 177 (1983)); White House Vigil , 746 F.2d at 1527. The undisputed facts show that defendants’ reliance upon § 22- 3312.01 when imposing the chalking restriction cons titutes just such a valid regulation of the place ( i.e. , the promenade) and manner ( i.e. , writing directly upon the su rface of the promenade) of plaintiff’s speech. 7 And thus, plaintiffs’ “as -applied” challenge fails. a) Content-neutrality

“ A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an in cidental effect on some speaker s or messages but not others. Government regulation of expressive activity is content neutral so long as it is ‘ justified without reference to the content of the regulated speech.’” Ward v. Rock Against Racism , 491 U.S. 781, 791-92 (1989) (quoting Clark v. Cmty. for Creative Non-Violence (“ CCNV ”), 468 U.S. 288, 293 (1984)) (first emphasis added); Emergency Coalition to Defend Educ. Travel v. U.S. Dep’t of the

7 Plaintiffs have submitted an affidavit by Rev. Mahoney, pursuant to Rule 56(f)(2), asserting that they are “unable to present evidenceessential to demonstrat e a genuine issue as to certain material facts,” because that evidence is in defendants’ possession. (Opp’n, Rule 56(f) Aff. of Rev. Mahoney (“Rule 56(f) Aff.”) ¶ 6.) The affidavit seeks discovery relating to (1) the District’s prior application of the defacement statute; (2) th e type of substance used by defendants to mark the White House pavement for the 2005 inaugural parade; (3) evidence of prior attempts to clean chalk from the White House pavement; and (4) the District’s prior approval or denial of chalking in locations other than the 160 0 block of Pennsylvania Avenue, including “all District streets and sidewalks.” ( Id. ¶¶ 1-4.) For the reasons discussed herein, the Court denies the request because the discovery sought is not relevant to the Court’s analysis of the issues presented and therefore woul d not create triable issues of fact. See Brookens v. Solis , 616 F. Supp. 2d 81, 96-97 & n.16 (D.D.C. 2009). And even if the discovery sought was arguably relevant, plaintiffs of fer only “conclusory assertion[s] without any supporting facts” regarding their belief that further disc overy would create a triable issue. See Byrd v. E.P.A. , 174 F.3d 239, 248 n.8 (D.C. Cir. 1999) (affirming gran t of summary judgment for defendant and finding no abuse of discretion in denying Rule 56(f) request for discovery where plaintiff had “merely alleged that ‘there may well be knowledge on the part of [the defendant’s] employees or undisclosed documents” that would create fact issues).19 Treasury , 545 F.3d 4, 12 (D.C. Cir. 2008). “[W]hether a statute is content neutral or content based is something that can be determined on the face of it; if the statute describes speech by content then it is content based.” G.K. Ltd. Travel v. City of Lake Oswego , 436 F.3d 1064, 1071 (9th Cir. 2006). The defacement statute is cont ent-neutral on its face, as its plain language prohibits unauthorized property-altering conduct (such as chi pping, writing, or covering with filth) without reference to the conduct’s motivation. See O’Brien , 391 U.S. at 375. Similarly, defendants’ refusa l to let plaintiffs chalk the 1600 Block promenade was content-neutral because it was ju stified without refere nce to the content of plaintiff’s speech. After plaintiffs informed defe ndants of their intent to dem onstrate against abortion and the Roe decision ( see 1st Henderson Letter at 1-2), the responses from both the MPD and NPS took issue only with how chalking the promenade and the adj acent sidewalk would constitute defacement in violation of § 22-3312.01 and analog ous federal regulations. ( See Crane Letter at 2; O’Dell Letter at 1-2.) “This justification . . . ‘ha[s] nothing to do with content,’” Ward , 491 U.S. at 792 (quoting Boos v. Barry , 485 U.S. 312, 320 (1988) (O’Connor , J.)), and it does not “even remotely suggest a hidden purpose to regulate sp eech because of a disagr eement with appellants’ message.” Nat’l Org. for Women v. Operation Rescue , 37 F.3d 646, 655 (D.C. Cir. 1994). Defendants’ invocation of the defacement statute when undertaking FARPSA’s undisputedly constitutional approval process was consistentwith FARPSA’s stated policy of permitting “reasonable restrictions designed to protect . . . property . . . .” See D.C. Code § 5-331.03. The content-neutral nature of defendants’ decision is also corroborated by the Assembly Approval Plan issued by Commander Cran e, which gave plaintiffs pe rmission for a twelve-hour, 5,000- person demonstration with signs and banners in the precise location that they requested. ( See Assembly Approval Plan at 2.) The approved assembly plan did not impose “any barrier to20 delivering to the media, or to th e public by other means, [plaintiffs’] intended message . . . .”
CCNV , 468 U.S. at 293.

Plaintiffs nonetheless argue that defendants selectively enforced the defacement statute because they harbored conten t-discriminatory motives. ( See Opp’n at 14; see also Compl. ¶ 181.) Plaintiffs’ only basis for this contention is that defendants have previously permitted others to chalk on public propert y in other parts of the Distri ct. The argument fails because plaintiffs merely poin t to dissimilar incidents which do not support – and even undermine – the argument that defendants applied the law in a content-based way. First, the existence of other chalking events in other locations throughout the District, such as the April 26 “Chalk-In” on H Street, has no bearing on defe ndants’ decision to prohibit chalking on the 1600 Block promenade. ( See Pls.’ Mot. to Supplement at 2-3.) “[T]he White House area is a ‘unique situs’ fo r [F]irst [A]mendment activity,” White House Vigil , 746 F.2d at 1533 (quoting A Quaker Action Group v. Morton , 516 F.2d 717, 729 (D.C. Cir. 1975)), and defendants have unique interests in the aesthetic maintenance of th at area. Indeed, as defendants represented during the TRO heari ng, the parties “wouldn’t be here” if plaintiffs had sought to engage in a chalk art demonstration in a differe nt location. (Jan. 22, 2009 Hr’g Tr. on TRO Mot. (“TRO Hr’g Tr.”) at 62:5-8.) They further o ffer unrebutted evidence that no proposed assembly plan that contemplated “the marking of Pennsylva nia Avenue in front of the White House, or the adjoining sidewalks, with chalk or any other substance” has been approved under FARPSA. (Defs.’ SMF ¶ 9.) 8

8 The complaint does not allege anything to th e contrary, and plainti ffs’ counsel conceded during the TRO hearing that no one has ever received permission to chalk the 1600 Block promenade. ( See TRO Hr’g Tr. at 50:1-10.) In light of this concession, the Court rejects plaintiffs’ belated and unsupported attempt to dispute this fact. ( See Opp’n, Pls.’ Response to Defs.’ SMF ¶ 9.) Moreover, plaintiffs cannot dispute this fact without any evidence, and21 The Court also takes notice of the judici al opinions which show how the defacement statute (when codified at § 22-3112.1) was prev iously used to pros ecute conduct, whether politically expressive or not, that tangibly altered the appearance of public property in the District – including the White House. See Bohlke , 116 Daily Wash. L. Rep. at 1697 n.2 (prosecution for defacing White House pillar to protest government actions in Central America); Frankel , 739 F. Supp. at 632 (prosecution for defacing U.S. capitol to protest condition of the homeless); Craig v. United States , 523 A.2d 567, 567-68 (D.C. 1987) (prosecution for defacing municipal bus stop passenger shelter with phrase “Fool’s Gold” and two dollar signs). Second, the argument that defenda nts selectively enforced the statute against plaintiffs because of their views is contradicted by plainti ffs’ allegation that on at least two occasions, the MPD had advance knowledge of plaintiffs’ intent to demonstrate against abortion through chalk art and nonetheless permitted plaintiffs to go forward. ( See generally Compl. ¶ 56.) In 2004, Rev. Mahoney, Kaitlin Martinez, and the Christia n Defense Coalition allegedly held a chalk demonstration near Constitution Avenue and 15th Street “in the personal physical presence of” the previous MPD chief, “who allowed them to carry out the activity.” ( Id. ¶ 56(a)(ii).) In 2007, these same plaintiffs allegedly sought and received the MPD SOD’s advance approval for a similar chalk art demonstration near George Washington University. ( Id. ¶ 56(b)(iv) & (v).) During that demonstration, members of the public objected to plaintiffs’ expression “and tried to

significantly, in their Rule 56(f) a ffidavit, they do not even sugge st that further discovery might aid them in filling this enormous evidentiary gap. Instead, they seek to learn about chalking in locations other than in frontof the White House. ( See Rule 56(f) Aff. ¶ 4.) It is also of no significance that uniformed Secret Service officers allegedly did not stop plaintiffs from chalking on or near the 1600 Block promenade on one occasion in April 2006 ( see Compl. ¶ 56(c)(v) & (vi)), since the Secret Se rvice was not acting as defendants’ agent, and its powers do not extend to granti ng permits to use the promenade. See generally 18 U.S.C. § 3056 (“Powers, authorities, and duties of United States Secret Service”).22 have it stopped.” ( Id. ¶ 56(b)(vi).) MPD SOD officers inte rvened, “confirmed that [plaintiffs] were permitted to conduct the chalk art demonstration, and kept them from being molested while they completed their demonstration.” ( Id. ¶ 56(b)(vii).) Even construing all the evidence in the light mo st favorable to plaintiffs, the Court must conclude that “there is nothi ng to support the notion that defenda nts’ denial of [plaintiffs’] application was neither content- neutral nor based on a desire to promote legitimate governmental interests.” Bosscher v. Twp. of Algoma , 246 F. Supp. 2d 791, 800 (W.D. Mich. 2003) (granting motion to dismiss First Amendment claim after re jecting argument that denial of construction permit was content-based, where defendant’s pl anning commission had concluded that denial would serve legitimate content- neutral “aesthetic concerns”). b) Substantiality of governmental interest and narrow tailoring Whether the defacement statute’s application to chalking is “narrowly tailored to serve a significant governmental inte rest” is a determination of law for the Court. White House Vigil , 746 F.2d at 1528-29; accord Mesa v. White , 197 F.3d 1041, 1046 & n.5 (10th Cir. 1999) (citing White House Vigil and noting that whether government “demons trated that [its asserted interest] is a significant government interest” “is a legal rather than factual question”). Defendants assert a governmental interest in, among othe r things, “preserving the aestheti cs . . . of the paved part of Pennsylvania Avenue around the White House . . . .” ( See Mot. at 14.) The Court agrees and concludes that the restricti on on chalking is a narrowly tailored means of advancing the government’s significant interests, which are unr elated to the suppression of expression, in keeping the 1600 Block promenad e free of “visual clutter,” Taxpayers for Vincent , 466 U.S. at 808, and “conserving [District] prope rty” through measures “designe d to limit the wear and tear” to which they are subjected. CCNV , 468 U.S. at 299; see also id. at 297 (“[the Court] think[s]”23 the government “has a legitimate interest in ensuring that the National Parks are adequately protected”). There can be no doubt that “[t]he government ha s a substantial interest in the preservation and enhancement of the human environment,” and “aesthetics are a proper focus of governmental regulation.” White House Vigil , 746 F.2d at 1528. This includes maintaining property held in trust for the public “in an attractive and intact condition.” CCNV , 468 U.S. at 296 (noting substantial government al interest in “maintaining th e parks in the heart of our Capital in an attractive and intact condition”) (emphasis added). In some ways, “the government’s relationship to things under its dominion and control is vi rtually identical to a private owner’s property interest in the same kinds of things, and . . . [the government], ‘no less than a private owner of property, has power to preserve the prope rty under its control for the use to which it is lawfully dedicated.’” Taxpayers for Vincent , 466 U.S. at 815 n.31 (quoting Adderley v. Florida , 385 U.S. 39, 47 (1966)). The byways di rectly in front of the White House are a “unique resource[] that the Federal Governme nt holds in trust for the American people,”
CCNV , 468 U.S. at 290; see, e.g. , White House Vigil , 746 F.2d 1518 (upholding restriction on display of signs and placards within the “center zone” of the sidewalk outside the White House), and the District has significant interests in pr eserving the promenade for use and enjoyment by the public by “proscribing intrusive . . . formats for expression.” Taxpayers for Vincent , 466
U.S. at 806. Plaintiffs do not appear to di spute defendants’ substantial interests in maintaining the visual and structural integrity of the 1600 Block promenade. ( See Opp’n at 14 n.3 (“Plaintiffs do not contend that the District may not impose restrictions on expressi ve activity in furtherance of the protection of public property.”) .) Nor could they, given that the complaint acknowledges that24 the promenade has been closed to vehicular tra ffic since the 1990s, that it was converted to a pedestrian plaza, and that its paving, “sometimes re ferred to as ‘rustic paving,’ . . . constitutes an aesthetically driven sele ction” of materials that “provide[s ] a ‘colored’ street surface different from typical asphalt surfaces.” (Compl. ¶¶ 87-91.) Instead, plaintiffs claim that no visible signs of chalking or damage will result if they are pe rmitted to chalk the promenade. To support this claim, plaintiffs proffer that no such damage appeared after Rev. Mahoney marked a letter “P” upon the surface on January 24, 2009, nor after the chalk was apparently removed. ( Id. ¶¶ 143- 44; see also Opp’n at 15 & n.6.) This argument is unpersuasive. The governme nt’s interest in enforcing the defacement statute to protect the 1600 Block promenade shoul d “not be judged solely by reference to the demonstration at hand” nor by re ference to the harm caused (or not caused) by a single letter written by a single demonstrator. CCNV , 468 U.S. at 296-97. Instead, “courts must look to what would happen if every individual to which a re striction applies were freed of its limitations,” Mahoney , 454 F. Supp. 2d at 35, and defendants were compelled to grant each and every request to chalk the promenade. See Heffron v. Int’l Soc. fo r Krishna Consciousness, Inc. , 452 U.S. 640, 654 (1981) (noting that “there would be a much larger threat to the State’s inte rest . . . if all other religious, nonreligious, and noncommercial organi zations could likewise” enjoy the place and manner exemption sought by the plaintiffs). In addition, the significance of the interest “must be assessed in light of the characteristic nature and function of the particular forum involved.” Id. at 651. The area near the White House “attract[s] great numbers of visitors who come . . . to see and experience” the president’s home. Heffron , 452 U.S. at 651 (contrasting commonplace public streets with state fair). Access to this “ unique situs for demonstrat ion activity” is “scarce”25 because of the many “competing applicants” who hope to use that space. Quaker Action Group , 516 F.2d at 727. “Absent the prohibition on [chalking], there would be other groups who would demand permission to deliver an asserted message by [chalking the promenade]. Some of them would surely have as credible a claim in this regard as do[] [plaintiffs], and the denial of [permission] to still others would pres ent difficult problems for the [MPD].” CCNV , 468 U.S. at 297; see also Mahoney , 454 F. Supp. 2d at 35. Because permission to chalk “cannot be meaningfully limited to” plaintiffs, Heffron , 452 U.S. at 653, the likely widespread use of chalk art directly in front of the White House would contribute to visual clutter, ther eby undermining the District’s inte rest in maintaining an area of singular national importance. See, e.g. , Globe Newspaper Co. v. Beacon Hill Architectural
Comm’n , 100 F.3d 175, 183, 187 (1st Cir. 1996); One World One Family Now v. City and County of Honolulu , 76 F.3d 1009, 1013 (9th Cir. 1996). In a ddition, basic principles of friction and erosion suggest that freque nt chalking and cleaning efforts would accelerate the “wear and tear” inflicted upon the rus tic paving’s surface. CCNV , 468 U.S. at 299. 9 For similar reasons, the restriction on ch alking upon the 1600 Block promenade is also narrowly tailored to serve the government’s subs tantial interests, becau se it “target[s] and [eliminates] no more than the exact source of the ‘evil’ [it seeks] to remedy.” Taxpayers for
Vincent , 466 U.S. at 808. 10 “[I]t is the tangible medium of expressing the message” – i.e. ,

9 Because courts have long recognized th e government’s substantial interests in promoting aesthetics through the visual and physi cal maintenance of public property, the Court need not rely upon the factual assertions of amicus regarding the actual damage caused to the promenade by chalk art and the power-washing methods used to remove chalk from the surface. ( See Smith Decl. ¶ 4.) Therefore, plaintiffs’ Rule 56( f) requests for discovery as to this issue are irrelevant to the Court’s analysis. 10 A challenged time, place, or manner restri ction need not be “the least restrictive” method of furthering the government’s interest. Ward , 491 U.S. at 798.26 chalking – “that has the adverse impact on the appearance of the landscape. . . . Here, the substantive evil – visual [clutter] – is not mere ly a possible by-product of the activity, but is created by the medium of expression itself. . . . [T ]herefore, the application of the [restriction] in this case responds precisely to the substant ive problem which legitimately concerns the [District]” and “curtails no more speech thanis necessary to accomplish its purpose.” Id. at 810; accord White House Vigil , 746 F.2d at 1536 n.112. It is not for the Court to decide “how muchprotection the [promena de] require[s] or how an acceptable level of preservation is to be attained.” CCNV , 468 U.S. at 299. “The validity of [time, place, or manner] regulations does not turn on a judge’s agreement with the responsible decisionmaker concerning the most appropriate method for promoting significant government interests or the degree to which thos e interests should be promoted.” Ward , 491 U.S. at 800 (internal quotations omitted). Just as challenge s to time, place, or manner decisions do not permit the courts “to replace the Park Se rvice as manager of” Lafayette Park, CCNV , 468 U.S. at 299, they do not permit this Court to repla ce defendants as stewards of the 1600 Block promenade. c) Availability of ample altern ative channels of communication Plaintiffs’ preferred medium may be to ch alk the pavement, but “the First Amendment does not guarantee the right to communicate one’s views at all times and places or in any manner that may be desired.” Heffron , 452 U.S. at 647. What it requir es is that a content-neutral regulation, such as the chalking restriction, preserves the speake r’s access to ample alternative channels of communication. That re quirement was certainly met here. “Plaintiffs have not been prohibited from di recting their speech activity at a specific audience at a specific time and place.” Mahoney , 454 F. Supp. 2d at 35. To the contrary, they27 were given permission to speak through signs , banners, and a demonstration of up to 5,000 people, with no restriction upon th eir ability to speak aloud, in th e very location and times they wanted. Their only limitation was as to the medium they could use on the promenade, “but that did not render the restriction a complete prohibition on speech.” Id. Despite the chalking restricti on, plaintiffs were free “to e ngage in a rich variety of expressive activities,” such as picketing, marching, carrying signs, singing, shouting, chanting, performing dramatic presentations , and appealing to passers-by. White House Vigil , 746 F.2d at 1528. “The content of the message they espouse is theirs and theirs alone; they may express views and employ verbal formulae that would be punished as seditious libel, blasphemy or obscenity in less free societies.” Id. “In short, the [restriction] leav e[s] unaffected a multitude of possibilities for meaningful protes t” on the 1600 Block promenade. Id. ; CCNV , 468 U.S. at 299 (finding that ample alternative channels remain ed for communicating in tended political message despite restrictions on sleeping in Lafayette Park). In sum, the restriction upon plaintiffs’ abi lity to demonstrate was a content-neutral and narrowly tailored means of furthering defendant s’ significant aesthetic interests in avoiding visual clutter and protecting property, while leaving open ample alternative channels for plaintiffs to communicate their views about abortion. The Court therefore grants summary judgment on Count II’s cause of action under the First Amendment’s Speech Clause. 2. Count IV: FARPSA Count IV alleges that defendants violatedFARPSA because they supposedly failed to comply with Regulation 706.9 when invoking the def acement statute to justify denying plaintiffs permission to chalk the promenade. (Compl. ¶¶ 179-182; see also Pls.’ Opp’n at 25. ) Plaintiff’s argument is without merit, for they mis understand the MPD’s authority under FARSPA.28 As declared in FARPSA, it is the District ’s policy to permit expressive assemblies, subject to reasonable restrictions designed to, inter alia , “protect . . . property . . . .” D.C. Code. § 5-331.03. The MPD “ shall recognize and implement” this policy when enforcing restrictions on assemblies, id. § 5-331.04(a) (emphasis added), wh ich it can do by imposing reasonable content-neutral time, place, or manner restrictio ns through the approval of an assembly plan. See id. § 5-331.04(b)(1) & (c). Thus, by its plain text, FARPSA mandates that the MPD account for the protection of property when imposing time, place, and manner restrictions during the assembly approval process. Defendants’ re liance upon the defacement statute was wholly consistent with this mandate. Regulation 706.9 supplements FARPSA by speci fying that proposed assembly plans “shall be approved” if the Chie f of Police concludes that nine enumerated criteria have been satisfied. D.C. Mun. Reg., tit. 24, § 706.9(a)-(i). Pu t another way, the regulation sets forth nine grounds for denying a proposed assembly plan. The la st of the nine is the only one to directly reference property interests. See id. § 706.9(i). It gives the Chief of Police discretion not to approve an assembly plan if she concludes th at the proposed event wi ll “create a substantial possibility of violent, disorder ly conduct likely to endanger pu blic safety or to result in significant property damage.” Id. Plaintiffs interpret FARPSA and Regu lation 706.9 as prohibiting the MPD from “imposing restrictions on speech in a public forum” in order to protect property unless there is a chance of “significant property da mage” as a result of “violent, disorderly conduct.” (Opp’n at 13 (emphasis added).) In keeping with his read ing, plaintiffs contend th at defendants could not prohibit the use of chalk without justifying it by reference to a reasonable prediction of violence that would cause signific ant property damage. ( Id. ) This is an incorrect reading of the statutory29 regime, because plaintiffs erroneously conflate Regulation 706.9’s provisions for denying an assembly plan with the rest of FARPSA’s pr ovisions for restricting an assembly plan. The statutory and regulatory texts clarify that “denials” and “restrictions” are distinct and independent concepts. For example, the MPD must give written notice when denying an assembly plan as well as when approving a plan “subject to time, place, or manner restrictions” that are “objectionable to the applicant.” D. C. Code. § 5-331.06(c)(3); D.C. Mun. Reg., tit. 24, § 706.12. Similarly, the admini strative review procedures contempl ate appeals of denials, as well as approvals subject to objectionable restrictions. D.C. C ode § 5-331.06(d)(1); D.C. Mun. Reg., tit. 24, § 712.1. The MPD may also impose restric tions on an assembly as it occurs, even though no plan for that event was ever submitted or approved. D.C. Code § 5-331.04(b)(3). Plaintiffs argue that the restriction on chal king in this instance was an “effective denial” because plaintiffs were prohibited from engaging in the only manner of speech that they wanted to employ. (Opp’n at 2.) This blurring of con cepts is inconsistent with FARPSA. A “First Amendment assembly” is defined simply as a ny “a demonstration, rally, parade, march, picket line, or other similar gathering conducted for the purpose of persons ex pressing their political, social, or religious views.’” See D.C. Code § 5-331.02(1). For purposes of the statute, it is irrelevant what particular medium of expr ession a demonstrator chooses to employ; an “assembly” is still an “assembly.” The appr oval issued by Commander Crane did, in fact, approve plaintiffs’ plan to hold an assembly, i.e. , to hold a “gathering conducted for the purpose of [plaintiffs] expressing thei r . . . religious views.” Id. The fact that this assembly was “subject to time, place, or manner restrictions” that were “objectionable to the applicant[s],” id. § 5- 331.06(d)(1), does not mean that the MPD denied plaintiffs’ request for an assembly. The Court concludes that FARPSA’s general policy, which includes the protection of30 property, empowers the MPD to impo se reasonable content-neutral restrictions that are far broader than Regulation 706.9’s gr ounds for declining to approve an assembly. Defendants’ reliance upon the defacement statute was cons istent with the MPD’s responsibility under FARPSA to recognize and implement the District ’s property-protective policy when imposing restrictions through the approval of an assembly plan. Because defendants have not violated FARPSA, Count IV fails as a matter of law. 11
III. COUNTS II AND III: RELIGIOUS FREEDOM CLAIMS A. Count II: First Amendment - Free Exercise Clause Count II also alleges that defendants’ reli ance upon the defacement statute violated plaintiffs’ First Amendment right to the free exer cise of religion. (Compl . ¶¶ 165-72.) Plaintiffs assert that they are “compelled by the teaching of their Christian faith[] to conclude that the status of legalized abortion in the United States[] puts their nation in defiance of God’s order for liberty,” and that this conclusion motivates their social activism. ( Id. ¶¶ 43, 45.) The Supreme Court’s decision in Employment Division, Depart ment of Human Resources v. Smith , 494 U.S. 872 (1990), clarified that under th e Free Exercise Clause, a neutral law of

11 Defendants also argue that plaintiffs may not sue for a violation of FARPSA because the statute does not create a private right of action. ( See Defs.’ Reply in Supp. of Mot. (“Reply”) [Dkt. 23] at 13-14.) The Court agr ees and concludes, in the altern ative, that Count IV must be dismissed on this ground. The most important c onsideration “is whether the legislature intended to create a private right of action.” Dial A Car, Inc. v. Transp., Inc. , 132 F.3d 743, 744 (D.C. Cir. 1998) (holding that District statute did not create private right of action); Transamerica Mortgage Advisors, Inc. v. Lewis , 444 U.S. 11, 15-16 (1979) (“[W]hat must ultimately be determined is whether [the legislature] intended to create the private remedy asserted . . . .”). FARPSA’s legislative history indicates that the D.C. Council ultimately rejected a proposed provision, § 5-321, that would ha ve expressly provided a private right of action. ( See Reply at 13; id. , Attach. 1 at 9; id. , Attach. 2 at 35-36; id. , Attach. 3 at 9.) A pr ivate right of action for statutory violations also appears inconsistent with the statutory scheme, which provides for direct administrative review of the MPD’ s denials of and modifications to assembly plan proposals. D.C. Code. § 5-331.06(d). See Cort v. Ash , 422 U.S. 66, 78 (1975); accord Dial A Car , 132 F.3d at 744 (applying Cort).31 general applicability is not s ubject to heightened scrutiny. See, e.g. , id. at 879 (“[T]he right of free exercise does not relieve an individual of the obligation to co mply with a ‘valid and neutral law of general applicability on th e ground that the law proscribes (o r prescribes) conduct that his religion prescribes (or proscribes).’” (quoting United States v. Lee , 455 U.S. 252, 263 n.3 (1982) (Stevens, J. concurring in judgment)); Kaemmerling v. Lappin , 553 F.3d 669, 677 (D.C. Cir. 2008). Plaintiffs do not dispute that the de facement statute is f acially neutral. ( See Opp’n at 18.) They do, however, contend that it is not genera lly applicable, because the statutory language “permit[s] government officials to engage in se lective enforcement of that law in a manner that would burden only those engaging in specifiedconduct based on religious motivation, and because [d]efendants have threatened to apply th at law in precisely such a selective manner to [p]laintiffs’ chalk art demonstration.” (Id. at 19.) The principle of general app licability prevents the governme nt from pursuing legitimate interests in a manner that has the practical effect of impos ing burdens primarily upon conduct motivated by religious belief. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah , 508 U.S. 520, 543 (1993); Am. Family Ass’n, Inc. v. F.C.C. , 365 F.3d 1156, 1171 (D.C. Cir. 2004). Heightened scrutiny of even a facially neutral law is appropriate if the law advances governmental interests in a “subs tantial[ly]” “underinclusive” wa y that “fail[s] to prohibit nonreligious conduct that endangers these interests in a similar or greater degree than [the prohibited religiously motiv ated conduct] does.” Church of Lukumi , 508 U.S. at 543 (holding that ordinances prohibiting ritual slaughter of animals were not of general applicability). However, where a law does not have the effect of targeting religious speech “to an extreme degree,” and it does not impose “extreme burdens [that] are not related to the legitimate governmental interests served by the regulation,” then it does not run afoul of the general32 applicability requirement. Am. Family Ass’n , 365 F.3d at 1171. As discussed, the defacement statute rationa lly advances the District’s substantial interests in promoting aesthetics and protecting pr operty. It contains no exemptions that would show nonreligious defacement more lenience thanreligiously motivated defacement. There is also no evidence that any request to chalk th e 1600 Block promenade, whether motivated by secular or religious beliefs, has been granted under FARPSA. There is therefore no basis to argue that the defacement statute has been selec tively enforced to prohibit religiously motivated defacement in the unique locati on of the White House area while letting nonreligious defacement in the vicinity go unchallenged. If anything, de facement motivated by secular political purposes in that area has been prosecuted, see Bohlke , 116 Daily Wash. L. Rep. at 1697 n.2, while Rev. Mahoney has not even been charged. Accord ingly, plaintiffs’ atta ck upon the general applicability of § 22-3312.01 fails. As a result , although the statute in cidentally affects religiously motivated action, plai ntiffs cannot raise any free exer cise challenge to the law under Smith ’s general rule. See 494 U.S. at 878-81; see also Kaemmerling , 553 F.3d at 677. 12
B. Count III: RFRA Count III alleges that defendants violated pl aintiffs’ rights under RFRA. (Compl. ¶¶ 173- 178.) RFRA was enacted as a congressional re sponse to the Supreme Court’s decision in Smith , and it “expressly adopted the compe lling interest test,” rejected by Smith , “‘as set forth in

12 In the alternative, plaintiffs contend th at because their claim involves religiously motivated expression that implicates both the Free Exercise and Speech Clause, this action presents a “hybrid situation” as discussed in Smith , 494 U.S. at 881-82 & n.1, such that § 22- 3312.01 would be subject to heightened scrutiny. ( See Pls.’ Opp’n at 19-20.) Plaintiffs may not, however, raise a “hybrid claim,” because they do not have an independent ly viable claim under the Speech Clause. See Henderson v. Kennedy , 253 F.3d 12, 17 (D.C. Cir. 2001)) (“For this argument to prevail, one would have to conclude that although the regula tion does not violate the Free Exercise Clause, and although they have no viable First Amendment claim against the regulation, the combination of two untenable clai ms equals a tenable one. But in law as in mathematics zero plus zero equals zero.” (citations omitted)).33 Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972).’” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal , 546 U.S. 418, 431 (2006) (quoting 42 U.S.C. § 2000bb(b)(1)). Under RFRA, the government 13 may not “substantially burden a person’s exercise of religion” unl ess “it demonstrates that the application of the burden to the person” is both “in furtherance of a compelling g overnment interest” and “is the least restrictive means of furthering that compelling governme nt interest.” 42 U.S.C. § 2000bb-1; Boardley v. U.S. Dep’t of Interior , 605 F. Supp. 2d 8, 14 (D.D.C. 2009). RFRA defines “exercise of relig ion” to include “any exercise of religion, whether or not compelled by, or central to, a system of re ligious belief.” 42 § 2000bb-2(4) (incorporating definition found in § 2000cc-5(7)(A)) . “A litigant’s claimed beliefs ‘must be sincere and the practice[] at issue must be of a religious nature.’” Kaemmerling , 553 F.3d at 677 (quoting Levitan v. Ashcroft, 281 F.3d 1313, 1320 (D.C. Cir. 2002)). “B ecause the burdened practice need not be compelled by the adherent’s religion to merit statutory pr otection,” what matters is not “the centrality of the particular activity to th e adherent’s religion but rather . . . whether the adherent’s sincere religious exerci se is substantially burdened.” Id. A substantial burden exists when government action puts “‘substantial pressure on an adherent to modify his behavior and to violate his beliefs . . . .’” Id. (quoting Thomas v. Review Bd. , 450 U.S. 707, 718 (1981). By contrast, “[a]n inconsequential or de minimis burden on religious practice does not rise to this level, nor does a burden on ac tivity unimportant to the adherent’s religious scheme.” Id. Plaintiffs argue that “the thre at of enforcement of criminal sanctions under D.C. Code § 22-3312.01 as to [p]laintiffs’ planned chalk art dem onstration imposed . . . ‘substantial pressure’

13 Although RFRA no longer applies to state governments, see City of Boerne v. Flores , 521 U.S. 507 (1997), it con tinues to apply to the Di strict of Columbia. See 42 U.S.C. § 2000bb2(1) & (2).34 on [p]laintiffs in deciding whether to follow through with their religious convictions on this occasion.” (Pls.’ Opp’n at 22.) The Court accep ts plaintiffs’ represen tations that they are motivated by sincerely held religious beliefs to engage in the pract ice of “prayerfully challeng[ing]” President Obama on the issue of abortion by “express[ing] prayers, thoughts, views[,] and hopes” to him. (C ompl. ¶¶ 54-55.) But plaintiffs do not allege that it is their sincerely held religious belief that they should express those views to the president through the specific medium of chalk or in the specifi c location of the 1600 Block promenade. ( See generally id. ¶¶ 38-45, 53-55.) Rather, the complaint alleges that “many like-mi nded individuals” were going to be in the District area on January 22, 2009 “to expre ss continued opposition” to abortion on the anniversary of the Roe decision, and that plainti ffs “decided to organize and conduct their chalk art demonstration” “[w]ith that in mind . . . .” (Compl. ¶¶ 57-60.) Plaintiffs acknowledge that chalk art is only “part of” their public religious and politic al expression. ( Id. ¶ 56.) The complaint further clarifies that plaintiffs do not exclusively associate the medium of chalk art with their religious opposition to abortion, because they allegedly engaged in chalking demonstrations in solidarity and support of “the persecuted members and adherents of Falun Gong in Communist China.” (Id. ¶ 56(c)(iv).) It is clear that these allega tions are insufficient to support a claim that the restriction on plaintiffs’ use of chalk pressured them “to modify [their] behavior and to violate [their] beliefs.” Thomas , 450 U.S. at 718 (emphasis added). Rather, it only required that they modify their nonreligious choice of expressive medium or location. Compare Henderson v. Kennedy , 253 F.3d 12, 17 (D.C. Cir. 2001)) (finding no s ubstantial burden in restric tion upon plaintiffs’ ability to sell T-shirts on National Mall, because plaintiffs “merely alleged that it is their vocation to35 spread the gospel by ‘all available means’”), with O Centro , 546 U.S. at 427 (considering substantial burden caused by federal ban on s acramental use of tea made from natural hallucinogens), and Comanche Nation v. United States , No. 08-CV-849, 2008 WL 4426621, at *17 (W.D. Okla. Sept. 23, 2008) (finding substan tial burden where planned construction of government facility would obstruct Native Americanplaintiffs’ view of religiously significant landscape and thereby disrupt tradi tional religious practices). Plaintiffs remain free to act in accordance with their beliefs. The chalking restriction is, “‘at mo st[,] a restriction on one of a multitude of means’” that plaintiffs can use in order to engage in their practice of prayerful challenge. Boardley , 605 F. Supp. 2d at 14 (quoting Henderson , 253 F.3d at 17). As such, it does not substantially burden their exercise of religion, and Count III fails as a matter of law. V. COUNT V: EQUAL PROTECTION CLAIM Count V alleges that defendants violated pl aintiffs’ equal protecti on rights under the Fifth Amendment’s Due Process Clause. (Compl. ¶¶ 183- 86.) Plaintiffs conte nd that in preventing them from applying chalk to the pavement in front of the White House, the District treated them differently than other “similarly situated” persons who have been permitted to chalk other sideways or roadways located el sewhere in the District. (Pls.’ Opp’n at 25-26.) As already noted, the area near the White House is a un ique location for First Amendment activity, White House Vigil , 746 F.2d at 1533, so the fact that defendant s have permitted demonstrators to chalk in other locations does not make them “similarly situated” to plaintiffs. Permission to chalk on the 1600 Block promenade has not been granted under
FARPSA. 14 ( See Defs.’ SMF ¶ 9; TRO Hr’g Tr. at 50:1-10. ) And it cannot be disputed that the

14 For this reason, plaintiffs cannot base thei r equal protection claim on the fact that the District and the Armed Forces Inaugural Committee were permitted to mark the surface with “some substance” in January 2005. (Pls.’ Opp’n at 27.) FARPSA did not go into effect until36 defacement statute has, in fact, previously been applied to defacing conduct in that vicinity. See Bohlke , 116 Daily Wash. L. Rep at 1700. Plaintiffs therefore cannot show that “anyone who was similarly situated to them . . . was not similarly treated.” Mahoney , 454 F. Supp. 2d at 37 (granting summary judgment for defendants); see also News Am. Publ’g., Inc. v. FCC , 844 F.2d 800, 809 (D.C. Cir. 1988) (applying requirement th at “government [mus t] afford similar treatment to similarly situated persons” to Fifth Amendment equal protection claim of discrimination on the basis of speech). Because there is no genuine issue of material fact, defendants are entitled to su mmary judgment on Count V. VI. COUNT VI: CLAIMS ARISI NG FROM THE JANUARY 24, 2009 DEMONSTRATION Count VI alleges that an unidentifie d “John Doe” MPD officer violated Mahoney’s constitutional and statutory rights when he stopped Mahoney from chalking the 1600 Block promenade on January 24, 2009, required Mahoney to identify himself, and seized the chalk that he was using. (Compl. ¶¶ 132-138, 187-98.) Be cause defendants properly relied upon the defacement statute when imposing a reasonable pl ace and manner restriction to restrict Mahoney from chalking in front of the White House, the unidentified MPD officer’s efforts to prevent Mahoney from violating those restrictions co uld not abridge Mahoney’ s rights under the First Amendment, Fifth Amendment, or RFRA. See, e.g. , Mahoney , 454 F. Supp. 2d at 32-39 (granting summary judgment to defendants on claim by Rev. Mahoney and others that police officers violated their rights under First Amendment, Fifth Amendment, and RFRA when restricting or arresting them fo r seeking to demonstrate protests outside “controlled access area”

April 2005, and its assembly plan approval proc ess did not exist during the 2005 Inauguration. Moreover, the line that was draw n along Pennsylvania Avenue for the inaugural parade does not constitute speech, which “require s both some intent to convey meaning and some meaningful effect.” United States v. Grace , 778 F.2d 818, 821 (D.C. Cir. 1985).37 near annual Red Mass ceremony). Moreover, even if it could be argued that the officer’s actions constituted a search or seizure under the Fourth Amendment, which it cannot, the officer had probable cause to take action after observing Mahoney chalking the promenade in violation of a criminal defacement statute. See Atwater v. City of Lago Vista , 532 U.S. 318, 354 (2001) (“If an officer has probable cause to believe that anindividual has committed even a very minor criminal offense in his presence, he may, withoutviolating the Fourth Amendment, arrest the offender.”). Mahoney therefore fails to state claims under the Constitution or RFRA, and Count VI will be dismissed as a matter of law. CONCLUSION For the foregoing reasons, the Court grants defendants’ motion. A separate Order will accompany this Memorandum Opinion.

/s/ ELLEN SEGAL HUVELLE United States District Judge Date: September 30, 2009