United States District Court, S.D. New York
OPINION AND ORDER
JOHN G. KOELTL, District Judge.
This case began when the defendant, the Metropolitan Transportation Authority ("MTA"), excluded from its advertising space on buses a controversial political advertisement submitted by the plaintiffs, the American Freedom Defense Initiative ("AFDI") and its cofounders. In this Court's previous decision, the Court held that when the MTA excluded the ad based solely on the MTA's policy prohibiting ads that imminently incite violence, the MTA violated the First Amendment. Accordingly, the Court granted the plaintiffs' motion for a preliminary injunction enjoining the MTA's enforcement of its policy to prohibit the ad, but stayed the effect of the injunction for 30 days to allow the defendants to consider their options for appeal and methods for displaying the proposed advertisement. Shortly thereafter, the MTA, in what it contends was an action it had been considering for some time, amended its regulations to prohibit the display of all political advertisements on MTA property (the "New Policy"). The MTA now moves to dissolve the preliminary injunction order, arguing that the plaintiffs' prior claims for injunctive relief are moot because they were directed at the MTA's exclusion of the ad under a different regulation, whereas the MTA is now excluding the ad under its New Policy barring all political ads.
The MTA's ban of all political ads is a dramatic change of circumstances from when the Court issued the preliminary injunction order. The Court's grant of the preliminary injunction was based on the MTA's enforcement of its standard prohibiting ads that "would imminently incite or provoke violence or other immediate breach of the peace, " but the MTA's exclusion of the plaintiffs' ad is no longer based on that standard. The Court analyzed the defendants' exclusion of the ad under strict scrutiny because the MTA's advertising space constituted a "designated public forum" under binding Second Circuit precedent. N.Y. Magazine v. Metro. Transp. Auth., 136 F.3d 123, 130 (2d Cir. 1998). However, the status of MTA buses as a designated public forum was based largely on the MTA's acceptance of political advertisements. Id . Because the MTA no longer accepts any political advertisements, a different standard of review likely applies under the First Amendment.
In sum, the defendants' adoption of the New Policy has rendered this Court's preliminary injunction moot. The plaintiffs argue that the New Policy and the manner in which the MTA enacted the New Policy are unconstitutional, but those allegations should be made in an amended complaint, which is not before the Court. It is plain that the legal basis for this Court's preliminary injunction has now been removed. Accordingly, the defendants' motion to vacate the preliminary injunction is granted.
The factual history of this case is set forth in the Court's opinion and order granting the plaintiffs' motion for a preliminary injunction. Am. Freedom Def. Initiative v. Metro. Transp. Auth. ("AFDI v. MTA II"), No. 14cv7928, 2015 WL 1775607, at *1-5 (S.D.N.Y. Apr. 20, 2015). The Court assumes the parties' familiarity with that opinion. The following factual and procedural background is provided for its relevance to the current motion.
On April 20, 2015, this Court granted the plaintiffs' motion for a preliminary injunction enjoining the MTA's exclusion of the plaintiffs' ad criticizing Hamas, which the parties termed the "Killing Jews" ad. Id. at *1. The ad includes a quote from "Hamas MTV": "Killings Jews is Worship that draws us close to Allah." Underneath the quote, the ad stated: "That's His Jihad. What's yours? " The plaintiffs had sought to run that ad on MTA buses. The MTA refused to run the ad based on Section (a)(x) of the MTA's standards, which prohibited ads that the MTA reasonably foresees would "imminently incite or provoke violence or other immediate breach of the peace." See Compl. ¶ 1. Because the MTA had not shown that there was any objective evidence to support its contention that the ad was likely to incite imminent violence, and because the MTA rejected the ad based on its content without a compelling interest or a response narrowly tailored to achieving any such interest, the Court granted the plaintiffs' motion for a preliminary injunction enjoining the MTA from excluding the advertisement under Section (a)(x) of its standards. AFDI v. MTA II, 2015 WL 1775607, at *1. The Court made clear that it was only enjoining the MTA's enforcement of Section (a)(x) to reject the Killings Jews ad, rather than striking down the whole standard or granting any other relief. Id. at *10. In order to enable the defendants to consider their appellate options and methods for display of the proposed advertisement, the Court stayed the effect of the preliminary injunction order for 30 days. Id.
The defendants did not appeal the Court's April 20 order, but instead, shortly after the opinion was issued, informed the Court that the MTA Board would be voting soon on whether to revise the MTA's standards to prohibit all political advertisements on MTA property. See Letter Dated Apr. 24, 2015 (ECF No. 34). On April 29, 2015, after holding a public meeting on the proposal, the MTA Board voted 9-2 to adopt the MTA's New Policy limiting its acceptance of political ads. See Rosen Decl. (ECF No. 46) ¶ 69. Specifically, Section IV.B of the New Policy prohibits any advertisement that falls into the following two categories:
1. Promotes or opposes a political party, or promotes or opposes any ballot referendum or the election of any candidate or group of candidates for federal, state, judicial, or local governmental offices.
2. Is political in nature, including but not limited to advertisements that either:
a. Are directed or addressed to the action, inaction, prospective action or policies of a governmental entity, except as permitted in [sections allowing governmental advertising and public service announcements]; or
b. Prominently or predominantly advocate or express a political message, including but not limited to an opinion, position, or viewpoint regarding disputed economic, political, moral, religious or social issues or related matters, or support for or opposition to disputed issues or causes.
Id. Ex. J. The New Policy explicitly provides that one of its purposes is to "convert the MTA's Property from a designated public forum into a limited public forum, " and that in doing so, it seeks to, among other things, "maintain a safe and welcoming environment for all MTA employees and customers, " and "minimize the resources and attention that have been expended to resolve disputes relating to the permissibility of certain political advertisements." Id . The New Policy does not amend any of the MTA's other existing standards, including the incitement standard the MTA previously used to exclude the Killing Jews ad.
The MTA's New Policy took effect immediately after it was adopted. Id . ¶ 74. Defendant Jeffrey Rosen, the MTA Director of Real Estate, determined that the Killing Jews ad falls within Section IV.B.2 because it is "political in nature, " and thus would not be run. Id . On May 5, 2015, the MTA notified the plaintiffs about its determination by e-mail. Id . Ex. ...