Accountability Now USA v. Griess

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ACCOUNTABILITY NOW USA, Plaintiff, v. Civil Action No. 26-1385 (RDM) KEVIN GRIESS, Superintendent of the National Mall and Memorial Parks, et al., Defendants. MEMORANDUM OPINION “Freedom of speech is a bedrock constitutional right[,] . . . [and] [p]olitical speech in particular is the lifeblood of American democracy.” United States v. Trump, 88 F.4th 990, 1002 (D.C. Cir. 2023). This case involves the political speech of Plaintiff Accountability NOW USA (“Accountability Now”), an unincorporated association that maintains a 24/7 demonstration calling for the impeachment and removal of President Donald Trump on National Park Service (“NPS”) land. Claiming that two of Plaintiff’s signs containing references to President Trump’s alleged rape of a minor are “obscene” and, separately, that Plaintiff’s flag with the legend “8647” constitutes a “true threat” against the President in violation of 18 U.S.C. § 871, the NPS instructed Plaintiff to remove these displays or face the revocation of its demonstration permit. In light of that threat, Plaintiff complied with both requests, but it still wants to engage in the challenged speech. To that end, Plaintiff brings this First Amendment action challenging the NPS’s threatened revocation of its demonstration permit. Dkt. 1 (Compl.). It previously moved for a temporary restraining order (“TRO”) precluding the Superintendent of the National Mall and Memorial Parks, Kevin Griess, and Secretary of the Interior Doug Burgum (“Defendants”) and their agents and delegees “from taking enforcement action against them because of their display of [the] flag.” Dkt. 10 at 1. Concluding that Plaintiff was likely to succeed on the merits of its claim that its “8647” flag constitutes protected political speech, this Court issued a TRO precluding Defendants from either confiscating Plaintiff’s “8647” flag or revoking Plaintiff’s demonstration permit on account of that flag. See Dkts. 20 & 21. With minor modifications, the Court extended that order 14 days later. See Dkt. 29. The TRO is set to expire at the end of the day on June 29, 2026. See id.; see also Fed. R. Civ. P. 6(a)(1)(A), (C). Plaintiff now moves for a preliminary injunction seeking to “prevent Defendants from revoking Plaintiff’s demonstration permit or destroying its property based on its display” of the two signs accusing President Trump of rape and its materials containing the “8647” legend. Dkt. 27 at 9. Given the narrow focus of Plaintiff’s claims and the absence of any evident factual dispute, the Court ordered the parties to show cause why it should not treat Plaintiff’s pending motion as a motion for summary judgment and resolve the case on the merits. Min. Order (June 18, 2026); see Fed. R. Civ. P. 65(a)(2). In response, the “[p]arties agree[d] that there are no materially disputed facts relevant to Plaintiff’s claim,” and they did not “object[] to” consolidation of the motion for a preliminary injunction with final resolution of the case on the merits. Dkt. 35 at 1. The Court will, accordingly, treat Plaintiff’s pending motion as a motion for summary judgment. The only question before the Court, then, is whether in light of the undisputed factual record, the two signs accusing President Trump of rape and the “8647” materials fall outside the scope of First Amendment protection, as the NPS maintains, or whether they constitute protected political speech, as Plaintiff asserts. If the materials constitute fully 2 protected speech, all agree that the NPS lacks authority to compel their removal or to revoke Plaintiff’s permit for displaying them. As explained below, the Court concludes that Plaintiff is entitled to prevail as a matter of law. Plaintiff’s signs accusing President Trump of raping a minor might outrage or offend some, but they do not, by any measure, cross the line from protected political speech to unprotected obscenity. That is true, moreover, even under the less demanding obscene-as-to-minors standard. Similarly, Plaintiff’s “8647” flag and similar materials, which were displayed along with other materials calling for President Trump’s removal from office, do not constitute a “true threat” or criminal “incitement” to violence. Rather, both sets of materials represent core protected speech, and, as a result, the NPS may not compel their removal or condition Plaintiff’s continuing entitlement to a demonstration permit on Plaintiff’s refraining from that speech. “Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.” Mills v. Alabama, 384 U.S. 214, 218 (1966). Most fundamentally, this means that it is not the job or prerogative of the government to police the content of political speech. The vitality of this essential dictate, moreover, depends on ensuring that the narrow exceptions to First Amendment protection for obscenity, true threats, and criminal incitement do not become gaping loopholes, which permit government censorship whenever an agency or government official chooses to apply one of those labels to controversial speech about government affairs or officials. There may be occasions, to be sure, when political speech crosses the line and, for example, incites imminent violence. But the category of unprotected speech is exceedingly narrow, and the determination that speech is unprotected cannot be made lightly or without substantial factual support. Because the displays at issue here 3 convey political messages and do not fall within any of the narrow exceptions to First Amendment protection, the NPS may not revoke Plaintiff’s demonstration permit based on the content of that speech and may not confiscate or remove the materials merely because they are being displayed (with a lawful permit) on National Park property. Although the Court’s opinion is lengthy, that does not mean that this is a hard case. It is not. Plaintiff’s signs and flag fall well within the heartland of protected First Amendment speech, and Defendants offer no plausible basis for suppressing Plaintiff’s core, political speech. If “hard cases[] make bad law,” N. Sec. Co. v. United States, 24 S. Ct. 436, 468 (1904) (Holmes, J., dissenting), one can only hope that easy cases make good law. The Court will, accordingly, GRANT Accountability Now’s Motion for Summary Judgment. Dkt. 27. I. BACKGROUND The following facts are based on the parties’ declarations and other submissions and are, as the parties agree, undisputed. See Dkt. 35 at 1. Plaintiff Accountability Now is an unincorporated association that holds a permit from the NPS to conduct “a demonstration near the George Meade Statue on Constitution Avenue in Washington, D.C.” Dkt. 8-1 at 1 (Carey Decl. ¶¶ 1–2). “Volunteers maintain the demonstration twenty-four hours a day, seven days a week” at which they “engage in face-to-face conversations with members of the public[] to call attention to the rise of fascism in the United States and [to] demand the impeachment of President Trump.” Id. (Carey Decl. ¶ 2). Plaintiff’s “current permit was issued on April 13, 2026, and is valid through August 12, 2026[,]” and Plaintiff “intends to obtain another permit when the current permit expires, at the same or another location on NPS- managed land in the District of Columbia.” Id. at 2 (Carey Decl. ¶ 3). 4  On February 24, 2026, in response to reporting “that the Justice Department was withholding more than 50 pages of FBI interviews with a woman who had accused Donald Trump of sexually abusing her when she was a minor[,]” Plaintiff began to display two new signs at the demonstration. Id. (Carey Decl. ¶ 4). One sign reads: “TRUMP RAPED LITTLE GIRLS.” Id. The other reads: “KIDS, IF YOUR PARENTS ARE MAGA, THEY LOVE CHILD RAPISTS.” Id. According to Plaintiff, “[t]he display of those signs has engendered numerous conversations between volunteers and passersby regarding President Trump’s behavior, morality, and fitness to continue in office.” Id. On April 14, 2026, the day after Plaintiff’s most recent permit was issued, Griess called two NPS officials, Marisa Richardson, the Chief of the Division of Permits Management, and Supervisory Park Ranger Thomas Sheffer, and directed them to have an agent from the Permits Office “go to the site of the demonstration to take photographs of the signs and send them to him.” Dkt. 31-2 at 1 (Sheffer Decl. ¶ 3). “Permit monitoring,” which involves, among other things, “taking photographs of permitted sites to document the condition of NPS resources and ensure compliance with permit terms and conditions,” is a “regular practice of . . . Permits Office events compliance monitors[.]” Id. at 2 (Sheffer Decl. ¶¶ 5–6). An NPS events compliance monitor went to the site “[l]ate in the morning of April 14, 2026,” and took photographs, which were then “saved . . . to the administrative record of Accountability Now’s permit.” Id. (Sheffer Decl. ¶ 7). The photographed signs include the two signs accusing President Trump of committing rape, a banner that reads “IMPEACH. CONVICT. REMOVE[,]” and a sign, which was on the other side of the sandwich board that had the “TRUMP RAPED LITTLE GIRLS,” sign, which reads: PARTY AT FLARE WHEN HE’S DEAD. Id. at 4–7 (Sheffer Decl. Attachments); see also June 23, 2026 Hrg. Tr. (Rough at 28). Later that afternoon, Sheffer and 5 Richardson “met with representatives of Accountability N[ow] at the permitted demonstration site.” Dkt. 31-2 at 3 (Sheffer Decl. ¶ 10). Plaintiff’s counsel informed the Court during oral argument that during that conversation, the NPS agents requested that the two child rape signs be taken down, although it is not clear whether the NPS officials provided a reason for the request during the conversation. June 23, 2026 Hrg. Tr. (Rough at 3–4). Richardson also emailed Anita Carey, an organizer with Accountability Now who is listed as the “Person[] in Charge” on Plaintiff’s permit, Dkt. 17 at 1 (Pl.’s Ex. 1 at 1), that same day, relaying the following message from Griess: “Based on the photographic evidence from earlier today, the [Plaintiff’s] first amendment permit is displaying unprotected obscenity in signs or media. This is not protected by the first amendment and is therefore prohibited and a violation of law,” Dkt. 8-1 at 2–3 (Carey Decl. ¶ 5). Carey responded to Griess directly, “seeking clarification of NPS’s position and asking, in particular, why NPS believes the signs meet the legal definition of obscenity and what would happen if the signs remain on display.” Id. at 3 (Carey Decl. ¶ 6). Griess responded as follows on April 15, 2026: Thank you for your message. We appreciate your cooperation as we work to ensure that all permitted activities remain in compliance with federal requirements. To clarify, the material displayed under your permit has been evaluated under all appropriate standards and tests and is deemed unprotected obscenity, which the Court has established is not protected by the First Amendment. This determination is supported by federal law which prohibits obscene material on federal property. Because obscenity is unlawful on federal land, we must ask that the material be removed. The National Park Service may impose and enforce permit conditions to prevent unlawful conduct, including the display of obscene materials prohibited under federal law. All activities conducted under an NPS permit must remain lawful and in compliance with permit conditions. If a permittee chooses not to comply 6  with a lawful direction to cease prohibited conduct, the National Park Service may take further steps as appropriate to ensure compliance. Id. (Carey Decl. ¶ 7). The email does not specify what “appropriate standards and tests” were used to evaluate the materials or what federal law “prohibits obscene material on federal property.” Neither Richardson nor Griess suggested that they were concerned that children might see the signs or that the signs, even if protected as to adults, were obscene as to minors. “Based on these communications and the recent experiences of other NPS permit holders whose demonstrations were critical of President Trump,” Accountability Now concluded that it faced “a realistic and imminent threat that its demonstration permit [would] be summarily revoked or its signs removed, with minimal or zero notice” and that “[r]evocation [might] result in the destruction of its valuable property, including its tents, tables, chairs, sound equipment, and literature.” Id. (Carey Decl. ¶ 8). In particular, Plaintiff concluded “Defendant Griess’s message that the signs were ‘unlawful’ and that NPS would ‘take further steps as appropriate to ensure compliance’” meant that the NPS would either “summarily revoke its permit and dismantle its demonstration or [would] remove the signs with little or no notice.” Id. at 4 (Carey Decl. ¶ 10). That conclusion was further bolstered by Griess’s request “that the material be removed” “[b]ecause obscenity is unlawful on federal lands” and his observation that “[a]ll activities conducted under an NPS permit must remain lawful and in compliance with permit conditions.” Id. at 3 (Carey Decl. ¶ 7). “[I]n order to forestall” such an “enforcement action,” Plaintiff “temporarily removed the signs” at issue, filed this lawsuit, and unsuccessfully attempted to negotiate a resolution of the dispute with the NPS. Id. at 4 (Carey Decl. ¶ 11). Plaintiff filed a motion for a preliminary injunction on May 26, 2026, Dkt. 8, seeking an order barring Defendants from “taking any action” against Plaintiff “in retaliation” for displaying the 7 two signs, “including revocation of Plaintiff’s demonstration permit or seizure of [the] signs.” Dkt. 8-2 at 1. In addition to the two signs discussed above, Plaintiff has been displaying a red, white, and blue flag, which one of Plaintiff’s volunteers purchased from Amazon, that reads “8647.” Dkt. 10-2 at 1–2 (2d Carey Decl. ¶¶ 3–5). The flag was purchased in October 2025 and has been displayed at the demonstration site “on and off since” then as part of Plaintiff’s routine rotation of banners and signs. Dkt. 33-1 at 1–2 (6th Carey Decl. ¶¶ 2–3). The flag was on display on the morning of May 12, when two Secret Service officers approached a volunteer at the demonstration and engaged in the following brief conversation: Officer: How are you? Volunteer: I’m good. I’m recording this ’cause they told me to. Officer: That’s fine. Volunteer: How’s it going? Officer: Not a problem. Just so you’re aware, this is all consensual[.] Volunteer: Yeah[.] ... Officer: . . . we received a phone call because of the flag, in fact the 86 47 and what it can stand for. Volunteer: Uh-huh. I never heard of it standing for anything other than Trump shouldn’t be in office. Officer: OK. Alright. So you have no ill-will towards . . . Volunteer: I want Trump to live forever and rot in jail where he belongs. Officer: OK. That’s it. That’s all, all I needed to know[.] Volunteer: OK[.] 8  Officer: We just, we got a call so we just wanted to come down here . . . Volunteer: I’m sorry someone wasted your time[.] Officer. Oh, you’re good. You’re good. It’s part of our job[.] Volunteer: Yup[.] Officer: We just want to make sure that your First Amendment rights are protected. They were concerned, so we just want to make sure there’s no ill-will. Volunteer: OK. Haha. Thank you so much. Officer: Alright. Yes, ma’am. Volunteer: OK. Dkt. 15 at 2 (https://photos.app.goo.gl/MyS5T7g7b4JXRYmY6). Things took a turn for the more confrontational when two different officers approached the same volunteer about 25 minutes later and read her the Miranda warnings. Id. at 3. The volunteer was not in custody at the time, and, despite the officer’s representation, her right to court-appointed counsel had not attached. Although politely delivered, the Secret Service’s message was a worrisome one—that is, she was at risk of criminal prosecution for displaying the flag. Understandably, the volunteer declined to speak with the officers. Id. The Secret Service opened an investigation into the volunteer as a “potential threat.” Dkt. 13-1 at 4 (Quinn Decl. ¶ 10). “[The] investigation remains ongoing.” Id. Nothing happened, however, for another two weeks. But then, “[o]n Tuesday, May 26, . . . the Secret Service shared information with the U.S. Department of the Interior about its ongoing investigation relating to the individual holding a flag displaying the statement ‘8647’ on May 12 in the 300 block of Constitution Avenue, N.W.” Dkt. 16 at 1–2 (citation modified). The following day—and less than 24 hours after Plaintiff moved for its first preliminary injunction 9 regarding the two rape signs—“four cars of U.S Park Police officers pulled up to Plaintiff’s demonstration site” at around 5 a.m. on May 27, and an officer read “the volunteer on duty” the following “from a clipboard:” 18 U.S. Code 8741[.] Threats against the President. Right now, we’re looking at the 8647 as a threat against the President. Can I ask you to take it down please? The sign here? Dkt. 10-2 at 1 (2d Carey Decl. ¶ 2). All agree that no such provision of the U.S. Code exists and that the officer presumably intended to refer to 18 U.S.C. § 871, Dkt. 10 at 2; Dkt. 31 at 14, which makes it a felony to “knowingly and willfully” threaten “to take the life of . . . or to inflict bodily harm upon the President of the United States.” The volunteer on duty took the flag down. Dkt. 10-2 at 1 (2d Carey Decl ¶ 2). The park police officer told the volunteer to “please refrain from putting it back up” and warned that, “[i]f it comes back up[,] we’ll be by here again, OK, and then it will be a violation of the permit,” id.; see also Dkt. 10 at 1 (https://photos.app.goo.gl/jtM8Tj7sCnkS4Smg9). Later that day, Plaintiff filed an amended complaint adding the flag incident as part of its First Amendment challenge to the threatened revocation of its permit and required removal of allegedly unlawful speech. See Dkt. 9 at 6–7 (Am. Compl. ¶¶ 22–26). Plaintiff simultaneously moved for a TRO to “prevent Defendants from taking enforcement action against [it] because of [its] display of” the flag. Dkt. 10 at 1. The following day, the Court heard argument on the motion, see Min. Entry (May 28, 2026). Because Defendants’ counsel was unable to offer any description of the agency’s actual reasons for concluding that Plaintiff’s specific display of the flag posed a true threat—as opposed to conveying a political message urging President Trump’s removal from office—the Court provided the parties with an opportunity to supplement the record, see id., and specifically requested that Defendants submit evidence or records addressing 10 their decision-making process regarding the direction that Plaintiff remove the flag. May 28, 2026 Hrg. Tr. (Rough at 38, 43, 46). Both parties made additional submissions. Dkts. 15, 16, 18, & 19. On June 1, 2026, the Court issued a TRO regarding Plaintiff’s display of its “8647” flag, concluding that Plaintiff was likely to prevail on its claim challenging the threatened revocation of its demonstration permit for displaying the flag. Dkts. 20 & 21. On June 10, 2026, Plaintiff filed its renewed motion for a preliminary injunction, which sought relief with respect to (1) the two child rape signs, (2) the “8647” flag, and (3) two additional signs incorporating the “8647” legend. See Dkt. 27 at 32–33. This final request for relief involves two additional messages that Plaintiff began to display after this Court issued its TRO. One of these reads “SIGN OUR DECLARATION of SUPPORT” and “CONVICT. REMOVE.” and depicts an anthropomorphic raccoon, surrounded by a tree and flowers, holding a petition and waving an “8647” flag. Dkt. 27-1 at 1 (5th Carey Decl. ¶ 3). The second is a flag that is very similar to the original “8647” flag—it is also red, white, and blue, and framed by a series of white stars—but, in addition to the “8647” insignia, it includes the phrase “IMPEACH TRUMP.” Id. at 2 (5th Carey Decl. ¶ 5). The next day, Plaintiff sought an extension and expansion of the TRO “to enjoin the revocation of Plaintiff’s demonstration permit based on its display” of these additional, similar materials. Dkt. 29 at 2. The Court granted the extension on June 15, 2026, and modified the TRO to enjoin Defendants from removing these additional displays or threatening revocation of Plaintiff’s demonstration permit based on these displays. See generally id. The parties completed briefing on the renewed motion for a preliminary injunction on June 22, 2026, see Dkt. 34, and the Court heard argument on the motion the following day, see Min. Entry (June 23, 2026). At the Court’s invitation, June 23, 2026 Hrg. Tr. (Rough at 49), Defendants filed a 11 surreply on June 25, 2026, Dkt. 36, and with the Court’s permission, Min. Order (June 25, 2026), Plaintiff filed a final declaration that same day, Dkt. 33-1; Dkt. 38. With the parties’ consent, Dkt. 35, the Court now consolidates the pending motion for a preliminary injunction with the merits, see Fed. R. Civ. P. 65(a)(2), and will treat Plaintiff’s motion as a motion for summary judgment, see Fed. R. Civ. P. 56. II. LEGAL STANDARD To prevail on a motion for summary judgment, the moving party bears the burden of demonstrating “that there is no genuine dispute as to any material fact and [that it] is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” if it is capable of affecting the outcome of the litigation. Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if the evidence is such that a reasonable factfinder could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007). In considering a motion for summary judgment, the Court must resolve all factual disputes and draw “all justifiable inferences” in favor of the nonmoving party. Liberty Lobby, 477 U.S. at 255; see also Mastro v. Pepco, 447 F.3d 843, 850 (D.C. Cir. 2006). The nonmoving party’s opposition must consist of more than mere allegations or denials; instead, it must be supported by affidavits, declarations, or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). “[T]he moving party is entitled to judgment as a matter of law if the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case, and on which it will bear the burden of proof at trial.” Eddington v. U.S. Dep’t of Def., 35 F.4th 833, 836–37 (D.C. Cir. 2022) (citation modified). If 12 the nonmoving party’s evidence is “merely colorable” or “not significantly probative,” the Court should grant summary judgment. Liberty Lobby, 477 U.S. at 249–50 (citations omitted). As noted above, the parties agree that the case is suitable for resolution on summary judgment. Dkt. 35. III. ANALYSIS A. Standing Although Defendants do not challenge Plaintiff’s standing, the Court must satisfy itself that it has jurisdiction. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998). To establish Article III standing, a plaintiff must demonstrate a “concrete and particularized” injury that is “fairly traceable” to the defendant’s conduct and “that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338–39 (2016) (citation modified). The extent and nature of that burden varies at each “successive stage[] of the litigation.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). At the summary judgment stage, the moving party “must establish that there exists no genuine issue of material fact as to [standing].” Dep’t of Com. v. U.S. House of Representatives, 525 U.S. 316, 329 (1999); see also Public Citizen, Inc. v. Trump, 361 F. Supp. 3d 60, 83 (D.D.C. 2019). “[I]n assessing plaintiff[’s] standing, [the Court] must assume [the plaintiff] will prevail on the merits of [its] constitutional claims.” LaRoque v. Holder, 650 F.3d 777, 785 (D.C. Cir. 2011). Here, although Plaintiff does not challenge the constitutionality of a criminal statute, it invokes the standing doctrine developed in the context of First Amendment pre-enforcement challenges. Specifically, Plaintiff contends that it is “being prevented from engaging in political speech by the realistic threat that NPS will summarily revoke [its] demonstration permit and/or dismantle its demonstration should Plaintiff redisplay its signs and/or its flag.” Dkt. 27 at 19. Because Plaintiff’s “theory of injury is closely analogous to a pre-enforcement challenge,” 13 Turner v. U.S. Agency for Glob. Media, 502 F. Supp. 3d 333, 359–60 (D.D.C. 2020), the Court will apply those well-established principles even though Plaintiff challenges the threatened and allegedly unconstitutional revocation of its permit, as opposed to the threatened and allegedly unconstitutional enforcement of a criminal statute. See, e.g., Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 302 n.13 (1979) (“We think that the prospect of issuance of an administrative cease-and-desist order . . . against such prohibited conduct provides substantial additional support for the conclusion that appellees’ challenge to the publicity provision is justiciable.” (citation omitted)); Susan B. Anthony List v. Driehaus, 573 U.S. 149, 165, 166 (2014) (noting that “administrative action, like arrest or prosecution, may give rise to harm sufficient to justify pre-enforcement review” and considering the threat of administrative action “substantial”); see also Laird v. Tatum, 408 U.S. 1, 11 (1972) (referring to First Amendment pre- enforcement “challeng[es] [to the] exercise of government power [that] [is] regulatory, proscriptive, or compulsory in nature”). It bears note, however, that this case involves far more government action directed specifically at Plaintiff and the particular conduct at issue than the typical pre-enforcement action. “[W]here threatened action by government is concerned, [federal courts] do not require a plaintiff to expose himself to liability before bringing suit to challenge the basis for the threat.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128–29 (2007) (emphasis in original). As the Supreme Court explained in MedImmune: The plaintiff’s own action (or inaction) in failing to violate the law eliminates the imminent threat of prosecution, but nonetheless does not eliminate Article III jurisdiction. For example, in Terrace v. Thompson, 263 U.S. 197 (1923), the State threatened the plaintiff with forfeiture of his farm, fines, and penalties if he entered into a lease with an alien in violation of the State’s anti-alien land law. Given this genuine threat of enforcement, we did not require, as a prerequisite to testing the validity of the law in a suit for injunction, that the plaintiff bet the farm, so to speak, by taking the violative action. Id. at 216. See 14  also, e.g., Vill. of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926); Ex parte Young, 209 U.S. 123 (1908). Likewise, in Steffel v. Thompson, 415 U.S. 452 (1974), we did not require the plaintiff to proceed to distribute handbills and risk actual prosecution before he could seek a declaratory judgment regarding the constitutionality of a state statute prohibiting such distribution. Id. at 458–60. As then-Justice Rehnquist put it in his concurrence, “the declaratory judgment procedure is an alternative to pursuit of the arguably illegal activity.” Id. at 480. In each of these cases, the plaintiff had eliminated the imminent threat of harm by simply not doing what he claimed the right to do (enter into a lease, or distribute handbills at the shopping center). That did not preclude subject-matter jurisdiction because the threat-eliminating behavior was effectively coerced. See Terrace, 263 U.S. at 215–16; Steffel, 415 U.S. at 459. Id. at 129 (citations altered). Notably, this rule applies with particular force in the First Amendment context, where threats of enforcement actions can suppress protected speech, thereby causing the plaintiff immediate injury. As a result, standing to challenge government action “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.” U.S. Telecom Ass’n v. FCC, 825 F.3d 674, 739 (D.C. Cir. 2016) (citation modified). Here, Plaintiff has attested, and there is no reason to doubt, that it “wishes to again display these signs as part of its permitted demonstration, but reasonably fears that if it does so its permit will be summarily revoked and/or its demonstration forcibly broken up.” Dkt. 8-1 at 4 (Carey Decl. ¶ 11). It “intends to display these signs again as soon as it receives legal protection from those consequences.” Id. (Carey Decl. ¶ 12). Plaintiff has thus established that it intends “to engage in a course of conduct arguably affected with [the] constitutional interest,” of its political speech. Susan B. Anthony List, 573 U.S. at 159 (citation modified). The threat of enforcement is also far more than “credible.” Id. The Secret Service has twice visited Plaintiff’s demonstration, Dkt. 15 at 2–3, has given Miranda warning to one of Plaintiff’s volunteers, id. at 3, and has opened a criminal investigation, Dkt. 13-1 at 4 (Quinn 15 Decl. ¶ 10). The Secret Service’s investigation, in turn, prompted the NPS to act by, among other things, sending four cars of Park Police officers to Plaintiff’s demonstration site to inform one of Plaintiff’s volunteers that he or she was violating the criminal law by making a threat against the President and asking him or her to remove the flag. See Dkt. 10-2 at 1 (2d Carey Decl. ¶ 2); Dkt. 16 at 1–2. And separately, multiple representatives of the NPS have also visited Plaintiff’s demonstration site, Dkt. 31-2 at 1–3 (Sheffer Decl. ¶¶ 3–4, 7, 10), and informed Plaintiff that two of its signs have “been evaluated under all appropriate standards and tests and [have been] deemed unprotected obscenity,” which is not allowed on federal property and which violates the terms of Plaintiff’s permit. Dkt. 8-1 at 3 (Carey Decl. ¶ 7).1 Although Plaintiff seeks only to enjoin the revocation of its permit and the confiscation or destruction of its displays—and not to enjoin any ongoing criminal investigation or proceeding— there is ample evidence that the Secret Service and the NPS are focused on the specific signs and flag at issue; that they have already concluded that these displays are unlawful, unprotected, and incompatible with Plaintiff’s demonstration permit; and that, if Plaintiff were to continue to display them without a Court order, it would face enforcement actions, including the prompt loss of its permit. Given the unique attention that the Secret Service and NPS has given to Plaintiff’s purportedly unlawful and dangerous activity, it is unsurprising that Defendants have declined to “disavow any intention” of taking further action against Plaintiff on account of its displays. Woodhull Freedom Found. v. United States, 948 F.3d 363, 373 (D.C. Cir. 2020). In short, this is not a case in which a plaintiff that may or may not face an enforcement action seeks to challenge 1 All of this must be assessed, moreover, against the backdrop of Defendants’ previous revocation of the demonstration permit and dismantlement of the demonstrations of its partner organization, For Liberation and Resistance Everywhere USA (FLARE), on two separate occasions. See Dkt. 8-1 at 4 (Carey Decl. ¶ 9). 16 a statute or regulation of general applicability. Plaintiff, instead, seeks relief with respect to all- but-certain government action that is directed exclusively at it and that shows no hint of relenting. Nor is it an answer to suggest that Plaintiff could simply wait for the NPS to revoke its permit and then bring suit. Plaintiff needs its permit to continue its demonstration, and even a brief revocation of that permit—and the possible dismantling and removal of its demonstration site—would cause Plaintiff irreparable First Amendment injury. Moreover, in light of the fact that Defendants have not only sought to deter the future exercise of First Amendment rights but have already “direct[ly] prohibit[ed] . . . the exercise of First Amendment rights[,]” Laird, 408 U.S. at 11, nothing more is required from Plaintiff to establish a First Amendment injury-in-fact, Media Matters for Am. v. Paxton, 138 F.4th 563, 585 (D.C. Cir. 2025) (to obtain injunctive relief, “a party must show that their First Amendment interests are either threatened or in fact being impaired at the time relief is sought.” (citation modified)); cf. Woodhull Freedom Found., 948 F.3d at 371 (“lower courts’ willingness to permit pre-enforcement review is at its peak when claims are rooted in the First Amendment,” (citation modified)). The elements of causation and redressability are also straightforward: they “typically overlap as two sides of a causation coin” because “if a government action causes an injury, enjoining the action usually will redress that injury.” Carpenters Indus. Council v. Zinke, 854 F.3d 1, 6 n.1 (D.C. Cir. 2017) (citation modified). That is the case here. Plaintiff’s First Amendment injuries are “fairly traceable,”—in fact, only traceable—to Defendants’ actions, and an order enjoining Defendants from further interference with Plaintiff’s First Amendment rights would restore Plaintiff’s freedom to display its signs and flags and to engage in the speech at issue. 17  The Court, accordingly, is satisfied that Plaintiff has Article III standing to bring its First Amendment challenge. B. Merits At the onset, the Court notes that significant disagreement emerged at oral argument regarding two related issues: (1) whether the Court’s review was limited to the agency’s record or whether the Court should engage in independent fact finding, and (2) whether and how the agency’s rationale might evolve over time. See June 23, 2026 Hrg. Tr. (Rough at 4–5, 13–14, 19–26, 31–34). Plaintiff’s counsel argued that “the relevant factual context . . . was what was before the agency when it made this decision” and the Court should consider only the rationale offered by the agency officials at the time. Id. (Rough at 4–5, 44). Defendants’ counsel conceded that the Court “should not consider rationales that were developed for purposes of litigation” but still maintained that “the record in this case . . . is evolving because this is an ongoing dispute” and that this case should not be treated “like a traditional APA-style case” for at least two reasons. Id. (Rough at 13). First, if the Court concludes that the speech is not protected under the First Amendment, the agency action would need to pass only “rational basis review,” which is not limited to the “contemporaneous statements by the government.” Id. (Rough at 13–14). Second, new or different threats or relevant context might emerge over time, and the agency’s hands should not be tied in addressing future threats. Id. (Rough at 31–33). There are grains of truth to both positions. Defendants are correct that Plaintiff has not brought suit under the Administrative Procedure Act and that the Court is not bound to an administrative record compiled by the agency in evaluating an agency rule or adjudication. Defendants are also correct that their enforcement authority is not frozen in time and that new circumstances may invite new consideration and, if consistent with this opinion and the law, new actions. Plaintiff, in turn, is correct that the question before the Court is whether the NPS acted 18 lawfully in declaring the displays unlawful, asking Plaintiff to remove them, and threatening to revoke Plaintiff’s permit if it failed to do so. And, in considering the lawfulness of that action, the agency’s factual and legal predicate matters. As the Supreme Court has observed: “Government justifications for interfering with First Amendment rights must be genuine, not hypothesized or invented post hoc in response to litigation.” Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 543 n.8 (2022) (citation modified). The government cannot invent new compelling interests which it failed to “raise . . . in its contemporaneous correspondence” with the speaker to justify its censorship of protected speech. Id. At least in the present context, however, little turns on this conceptual debate between the parties. First, Defendants argue that, if the speech at issue is not protected by the First Amendment, they need only satisfy rational basis scrutiny and should be free to rely on any and all plausible rationales for their action. But for the reasons explained below, the Court concludes that Plaintiff’s speech is fully protected, and, thus, the question of rational basis scrutiny never arises. Second, the parties debate whether the case is governed by the administrative record. But there is no dispute about the relevant facts, and those facts have not shifted in any material respects since the agency acted. Third, although the record suggests that Defendants’ contention that the rape signs are obscene as to minors is a post hoc