Wallbuilder Presentations v. Clarke

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA WALLBUILDER PRESENTATIONS, Plaintiff, v. Civil Action No. 23-3695 (BAH) RANDY CLARKE, in his official capacity as Judge Beryl A. Howell General Manager and Chief Executive Officer of the Washington Metropolitan Area Transit Authority, Defendant. MEMORANDUM OPINION Having shown a likelihood of success during consideration of its earlier successful motion for preliminary injunctive relief in 2024, plaintiff WallBuilder Presentations (“WallBuilders”), a Texas-based non-profit organization with a “primary mission” of “educating the nation concerning the Godly foundation of our country,” WallBuilder Presentations v. Clarke (“WallBuilder”), No. 23-cv-3695 (BAH), 2024 WL 2299581, at *1 (D.D.C. May 21, 2024) (quoting Compl. ¶ 29, ECF No. 1), now seeks summary judgment, after nearly a year of discovery and significant changed circumstances, on claims that two of the “Guidelines Governing Commercial Advertising” (the “Guidelines”) used by the Washington Metropolitan Area Transit Authority (“WMATA”) to determine whether to accept or reject proposed commercial advertisements, violate the First Amendment. Pl.’s Renewed Mot. for Summ. J. (“Pl.’s Mot.”), ECF No. 61. WMATA, which “operates the Metrorail and Metrobus services in the District of Columbia, Maryland, and Virginia, and permits advertising throughout its Metro system,” including “on the exterior of Metrobuses and ‘dioramas’ inside Metrorail stations,” WallBuilder, 2024 WL 2299581, at *1 (quoting Am. Freedom Def. Initiative v. WMATA (“AFDI”), 901 F.3d 356, 359 (D.C. Cir. 2018)), has filed a 1 cross-motion for summary judgment, Def.’s Mot. for Summ. J. (“Def.’s Mot.”), Def.’s Mem. of P. & A. in Supp. of Mot. for Summ. J. & in Opp’n to Pl.’s Renewed Mot. for Summ. J. (“Def.’s Opp’n”), ECF No. 62-1. 1 “WMATA’s advertising space is a non-public forum.” Archdiocese of Wash. v. WMATA, 897 F.3d 314, 322-23 (D.C. Cir. 2018). For such a nonpublic forum, “[i]n addition to time, place, and manner regulations, the State may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.” Perry Educ. Ass’n v. Perry Loc. Educators’ Ass’n, 460 U.S. 37, 46 (1983). The reasonability requirement “is not a demanding one, but rather is a ‘forgiving test.’” Archdiocese, 897 F.3d at 329-30 (quoting Minn. Voters All. v. Mansky, 585 U.S. 1, 17 (2018)). After all, as the Supreme Court has observed “on several occasions, ‘[t]he State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.’” Perry Educ., 460 U.S. at 46 (quoting U.S. Postal Serv. v. Greenburgh Civic Ass’n, 453 U.S. 114, 129-30 (1981), and collecting cases). The D.C. Circuit has emphasized that “[f]ar from undermining First Amendment values, the [Supreme] Court has understood the latitude afforded the government in regulating a non- public forum to promote these values” because “[t]he non-public forum preserves some speech where there is no constitutional obligation to do so.” Archdiocese, 897 F.3d at 324; see Mahoney v. U.S. Capitol Police Bd., No. 24-5207, 2026 WL 2836881, at *7 (D.C. Cir. Sept. 22, 2026) (“Because the Eastern Steps are a nonpublic forum, the Board could prohibit demonstrations altogether, as it has done inside the Capitol.”). 1 WMATA’s General Manager and Chief Executive Officer, Randy Clarke, is named as defendant in his official capacity. See Compl. ¶ 16. 2  Six months following the grant of preliminary injunctive relief enjoining application of WMATA’s Guideline 9 to four of WallBuilders’ proposed advertisements previously rejected under this policy guidance, WMATA, in November 2024, adopted Internal Procedures and Interpretive Aids (the “Interpretive Aids”) intended to clarify the Guidelines. Pl.’s Mot., Att. 2, Pl.’s Rule 56 Statement of Undisputed Facts in Supp. of Its Mot. for Summ. J. (“Pl.’s SUMF”) ¶ 60, ECF No. 61-2. These Aids are sufficient to satisfy the “forgiving test” applied to assess the constitutionality of regulations imposed on speech in nonpublic fora, Archdiocese, 897 F.3d at 329-30 (quoting Mansky, 585 U.S. at 17), and so render the challenged Guideline 9 a reasonable restriction on speech. Accordingly, for the reasons explained more fully below, WallBuilders’ motion for summary judgment is denied, see ECF No. 61, and WMATA’s motion for summary judgment is granted, see ECF No. 62. I. BACKGROUND The factual background and procedural history of this matter, including events occurring before and after issuance of a preliminary injunction in May 2024, see WallBuilder, 2024 WL 2299581, at*2-5, are described below, beginning with a short history of considerations leading to WMATA’s adoption of the challenged portions of the commercial advertising Guidelines and continuing with a description of WallBuilders’ efforts in 2023 to advertise on WMATA’s Metrobuses and inside Metrorail stations, which efforts were addressed in the WallBuilder preliminary injunction decision, see id., and then the subsequent events leading to the pending cross-motions for summary judgment. A. WMATA’s Commercial Advertising Guidelines “WMATA ‘operates the Metrorail and Metrobus services that provide Washington-area residents with the majority of their public transit options,’ and derives a significant portion of its 3 annual operating revenue from advertising displayed on the exterior of Metrobuses and inside Metrorail stations.” Id. at *2 (quoting AFDI, 901 F.3d at 359). Its “advertising practices are governed by its ‘Guidelines Governing Commercial Advertising,’ which were adopted on August 3, 1972, and amended twice, on November 20, 2003, and November 19, 2015.” Id. (citations omitted). Before 2015, “the Guidelines permitted ‘issue-orienting advertising,’ which, due to D.C.’s ‘unique’ situs as ‘the seat of the federal government,’ comprised a significant portion of its revenue—approximately $2 to 5 million of its $20 million in revenue in 2015.” Id. (citations omitted). “‘Beginning in 2010,’ however, ‘WMATA began to reconsider its approach as a result of near-monthly complaints from its employees, riders, elected officials, and community and business leaders about its advertisements.’” Id. (quoting Archdiocese, 897 F.3d at 319). WMATA’s Senior Vice President for Rail Transformation explained that “the Metro Transit Police Department and the U.S. Department of Homeland Security feared that certain ads would, due to external world events, incite individuals to violence on the system and harm WMATA employees and customers.” Def.’s Opp’n to Pl.’s Mot. for Prelim. Inj. (“Def.’s Opp’n to Prelim. Inj.”), Att. 2, Decl. of WMATA’s Senior Vice President for Rail Transformation, Lynn M. Bowersox (“Bowersox Decl.”) ¶ 11, ECF No. 22-2. 2 Then, in May 2015, WMATA received a proposed advertisement captioned at top with “[t]he phrase ‘SUPPORT FREE SPEECH’” and “depict[ing] a turbaned, bearded, sword-wielding man who is apparently meant to be the Prophet Muhammad,” with “[a] speech bubble emerging from the man’s mouth contain[ing] the sentence ‘YOU CAN’T DRAW ME!’” AFDI, 901 F.3d at 2 The identical Bowersox Declaration is also found in the record as an exhibit to WallBuilders’ first motion for summary judgment, see Pl.’s Mot. for Summ. J., Att. 11, Decl. of WMATA’s Senior Vice President for Rail Transformation, Lynn M. Bowersox, ECF No. 41-11, and the instant summary judgment motion, see Pl.’s Mot., Att. 13, Decl. of WMATA’s Senior Vice President for Rail Transformation, Lynn M. Bowersox, ECF No. 61-13. For convenience, the first filed version of the declaration is cited. 4 360. “[A] disembodied hand, paler in color, holding either a pen or a pencil pressed to paper” appears below the man, and “[f]rom the hand comes a speech bubble reading ‘THAT’S WHY I DRAW YOU.’” Id. This “proposed ad featuring a cartoon depiction of the Prophet Mohammad raised concerns because some Muslims consider drawing the Prophet Mohammad so offensive that they have reacted violently to such depictions in the past,” and “WMATA was aware that two gunmen were killed after they attempted to attack the building in Texas where the contest that eventually produced this proposed ad was being held.” Bowersox Decl. ¶ 11. This advertisement was seen as “the straw that broke the camel’s back,” and so WMATA imposed “a temporary moratorium on issue-oriented advertisements, which by its terms ‘close[d] WMATA’s advertising space to any and all issue-oriented advertising, including but not limited to, political, religious and advocacy advertising until the end of the calendar year.’” AFDI, 901 F.3d at 361 (alteration in original). The moratorium on all issue-oriented advertisements was subsequently lifted, in November 2015, when WMATA’s Board of Directors adopted the two Guidelines challenged in this lawsuit: Guideline 9, which prohibits “[a]dvertisements intended to influence members of the public regarding an issue on which there are varying opinions,” and Guideline 12, which prohibits “[a]dvertisements that promote or oppose any religion, religious practice or belief.” Compl., Ex. A, WMATA’s Guidelines Governing Commercial Advertising (“WMATA’s Guidelines”) at 2, ECF No. 1-1. The Board reasoned “that any economic benefit of issue-oriented ads was outweighed by community and employee opposition, the associated security and violence risks, the possibility of vandalism, and the administrative burdens associated with reviewing ads and responding to complaints about ads.” WallBuilder, 2024 WL 2299581, *2 (citing Bowersox Decl. ¶¶ 9-13). 5  “The leasing of WMATA’s advertising space is administered by Outfront Media, Inc. (“Outfront”), a third-party contractor that ‘handles day-to-day advertising and is paid for each ad that runs in WMATA advertising space.’” Id. at *3 (quoting Bowersox Decl. ¶ 17). Thus, when advertisers submit proposed ads, those ads go “to Outfront, which has the authority unilaterally to accept ads that comply with the Guidelines.” Id. (citing Bowersox Decl. ¶¶ 17-18). “Outfront accepts ‘thousands of ads’ without forwarding them to WMATA” but is “supposed to submit potential ads that may violate the Guidelines to WMATA for review.” Id. (quoting Bowersox Decl. ¶¶ 18, 28). When a proposed advertisement is forwarded for review, “[a] three-member panel (the “Panel”), comprised of WMATA’s Marketing Director and two attorneys appointed by WMATA’s General Counsel, reviews any submissions . . . to determine whether they comply with the Guidelines.” Id. (citing Bowersox Decl. ¶¶ 19, 21). “To make this determination, the Panel reviews the ad in the context of relevant case law regarding advertising restrictions and prior ads that the Panel has rejected or accepted.” Id. (citing Bowersox Decl. ¶¶ 20, 23). “In addition to reviewing the ad itself, the Panel ‘may’ also review any website or QR code referred to in the ad ‘to determine if the advertisement would lead a viewer to material that violates WMATA’s Guidelines.’” Id. (citing Bowersox Decl. ¶ 22). “Between November 2015 and December 2023, the Panel reviewed 2,064 ads and rejected 814.” Id. (citing Bowersox Decl. ¶ 25). B. WallBuilders’ 2023 Advertising Campaign “One of the primary tools WallBuilders uses ‘to educate the public’ about its ‘primary mission’ of ‘educating the nation concerning the Godly foundation of our country’ is its website, which provides an online library of resources, including videos, podcasts, articles, and quotations from American historical figures.” Id. (citations omitted). “At the end of 2022, WallBuilders began to rebrand its website, with hopes of relaunching in June 2023,” and “[t]o publicize this relaunch, it developed an ad campaign, with particular focus 6 on ‘target[ing] Washington, D.C., and the National Capital Area’ due to ‘the region’s unique audience—including large numbers of residents who work in politics, policy, and law, as well as residents and visitors interested in learning about American history and civic traditions’—and sought to advertise, in particular, with WMATA due to ‘the high visibility for WMATA advertising.’” Id. (quoting, inter alia, Pl.’s Mot. for Prelim. Inj., Att. 7, Decl. of WallBuilders’ Mktg. & Project Coordinator, Kristina Smith (“Smith Decl.”) ¶¶ 7-8, ECF No. 9-7.). 3 WallBuilders proceeded to design and submit to Outfront, in May 2023, two proposed ads, “[t]he first featured Henry Brueckner’s late-1800s painting of George Washington kneeling to pray at Valley Forge, and the second showed Howard Chandler Christy’s 1940 painting of the signing of the United States Constitution at Independence Hall.” Id. (citing Smith Decl. ¶¶ 9, 10, 12). These two ads, reproduced below, “stated in prominent lettering, ‘Christian?’ and, in smaller lettering, next to a QR code, ‘to find out about the faith of our founders, go to wallbuilders.com.’” Id. (quoting Smith Decl. ¶ 11). 3 The identical Smith Declaration also appears in the record as an exhibit to WallBuilders’ first motion for summary judgment, see Pl.’s Mot. for Summ. J., Att. 8, Decl. of WallBuilders’ Mktg. & Project Coordinator, Kristina Smith, ECF No. 41-8, and the pending summary judgment motion, see Pl.’s Mot., Att. 10, Decl. of WallBuilders’ Mktg. & Project Coordinator, Kristina Smith, ECF No. 61-10. For convenience, the first filed version of the declaration is cited. 7  Outfront forwarded both ads to WMATA’s Panel, which met on June 8, 2023, and, “[u]pon review of WallBuilders’ website, the Panel concluded the website ‘contain[ed] clear advocacy,’ based on, inter alia, the following statements on the homepage: (1) ‘Helping Americans Remember and Preserve the True History of Our Great Nation[.] Find all the education, training, and resources you need if you’re an educator, church leader, legislator, or anyone who just wants to discover more.’; (2) ‘Restore America’s Biblical Foundation[.] Learn the truth about our nation’s Godly heritage today!’; (3) ‘Many Americans don’t understand the Christian foundation of our nation. Through original source documents, we strive to reveal the historical truths about our Founding Fathers’ faith and the religious principles they established. We are driven to equip people to discover this truth with documents and artifacts from the first 400+ years of US history.’; (4) ‘Many ‘academics’ deliberately ignore, change, and revise the facts of history in order to suit their own agendas. Truth is constantly becoming harder to find. We’re here to help.’; (5) ‘Do you support Christian ideals of freedom in America?’; and (6) in a video statement by the WallBuilders’ President available on the homepage, ‘Today, so few people recognize what has made this nation, really, the most successful, prosperous nation in the history of the world [is] a biblical foundation.’” Id. at *4 (alterations in original) (quoting Def.’s Opp’n to Prelim. Inj. at 9- 11). 8  Additionally, the Panel “reviewed the specific page of WallBuilders’ website to which the QR code linked, different from the homepage, and concluded that the page contained advocacy by criticizing as ‘blatantly false’ the following position: ‘One of the common criticisms is that the Founding Fathers were a collective group of atheists, agnostics, and or deists who wanted a strict separation of church and state, resulting in a secular government and public square. Some go as far as foolishly writing that these allegations are so evident that no actual evidence or proof is needed to substantiate their claims.’” Id. (quoting Def.’s Opp’n to Prelim. Inj. at 11-12). WMATA rejected the ads pursuant to Guideline 9, summarily explaining that “[t]he ad review panel has determined that the two attached proposed advertisements are both prohibited by Commercial Advertising Guideline 9.” Id. (alteration in original) (quoting Smith Decl., Ex. A at 14). WMATA did not respond to WallBuilders’ inquiries about why the ads were rejected, so suspecting that the ads’ reference to Christianity was the “issue” of controversy that ran afoul of Guideline 9, WallBuilders redesigned the ads by eliminating nearly all of the text and in September 2023 submitted to WMATA the revised ads, as reproduced below. See id. at *5. 9  “The Panel reviewed the revised ads on September 7, 2023, and concluded, again, that the ads violated Guideline 9 ‘because they sought to influence the public on the issue of the separation of church and state.’” Id. (citation omitted). “Outfront ‘suggested that WMATA might approve WallBuilders’ advertisements if [it] removed WallBuilders’ website address and QR code from the ads,’ which WallBuilders declined to do ‘because stripping the ads of all references to WallBuilders but the organizational name and logo would have negated the possible promotional and educational benefits that WallBuilders sought to achieve by running these ads.’” Id. (alteration in original) (quoting Smith Decl. ¶¶ 26–27). Notably, Guideline 12 was not cited by WMATA as the reason for rejection of the different iterations of these four proposed ads. C. WallBuilders Initiates Instant Suit and Is Granted Preliminary Injunction “On December 12, 2023, WallBuilders filed the instant action against Randy Clarke,” in his official capacity as WMATA’s General Manager and Chief Executive Officer, “alleging, in six counts pursuant to 42 U.S.C. § 1983, that Guidelines 9 and 12 violate the First Amendment.” Id. at *5. The Complaint alleged “that Guideline 9 is unreasonable both facially (Count I) and as applied to WallBuilders (Count II), and viewpoint discriminatory both facially (Count III) and as applied to WallBuilders (Count IV); and that Guideline 12 is facially viewpoint discriminatory 10 (Count V) and unreasonable (Count VI).” Id. at *21. Simultaneously, WallBuilders moved “for a preliminary injunction to enjoin Clarke, ‘his officers, agents, employees, attorneys, and all persons in active concert or participation with them who receive actual notice of the Order, from implementing or enforcing WMATA’s Commercial Advertising Guidelines 9 and 12 to continue to reject WallBuilders’ proposed advertisements.’” Id. (quoting Pl.’s Mot. for Prelim. Inj. at 1). In response, WMATA “moved to dismiss the complaint for lack of standing, pursuant to Federal Rule of Civil Procedure 12(b)(1), and for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6).” Id. (citing Def.’s Mot. to Dismiss, Att. 1, Def.’s Mem. of P. & A. in Supp. of Mot. to Dismiss at 2, ECF No. 23-1). The parties’ competing motions became ripe in February and March 2024, but resolution was stalled until briefing was completed, in mid-May 2024, on WallBuilders’ two motions for leave to file supplemental exhibits in support of its motion. See id. at *5. Ultimately, on May 21, 2024, WallBuilders’ motions for leave to file supplemental exhibits were granted and WallBuilders’ motion for preliminary injunctive relief was granted in part and denied in part, while WMATA’s motion to dismiss was granted in part and denied in part. See id. at *2. Specifically, WallBuilders’ claims in Counts I and II, both of which challenged Guideline 9 as unconstitutionally unreasonable, survived WMATA’s motion to dismiss because “the utterly undefined use of the phrase ‘[a]dvertisements intended to influence . . . regarding an issue on which there are varying opinions,’ coupled with the lack of any definitions or official guidance and WMATA’s inconsistent application of Guideline 9, makes clear that Guideline 9 is not a reasonable restriction on speech.” Id. at *16. This decision also critically scrutinized WMATA’s advertisement review process more generally, noting that “WMATA provide[d] no definitions for the terms used in these two challenged Guidelines and ha[d] neither ‘set out any formal regulations 11 to direct the implementation or interpretation of these Guidelines,’ nor ‘published advertiser guidance about what speech is forbidden under the Guidelines.’” Id. at *1 (quoting Compl. ¶ 27); see id. at *13 (“In fact, WMATA offers no definitions and no guidance on how to define an ‘[a]dvertisement intended to influence members of the public regarding an issue on which there are varying opinions,’ and no instruction on how to apply the Guideline, including whether related content, such as information on websites referenced in the ad, should be considered.” (citation omitted)). As a result, “WallBuilders’ motion for a preliminary injunction [wa]s granted insofar as it seeks preliminarily to enjoin the enforcement of Guideline 9 on WallBuilders.” Id. at *17. At the same time, however, WMATA’s motion to dismiss established that the Complaint failed to state a claim as to the remaining counts. With respect to the viewpoint-discrimination challenges to Guideline 9, WallBuilders’ facial challenge in Count III was foreclosed by AFDI, where “the D.C. Circuit held, in reviewing Guideline 9, that ‘WMATA’s restrictions are [facially] viewpoint-neutral,’” WallBuilder, 2024 WL 2299581, at *9 (alteration in original) (quoting AFDI, 901 F.3d at 363), and its as-applied challenge in Count IV was rejected because “the Complaint fails adequately to allege factual support to show WMATA ‘singled out’ or ‘disfavor[ed]’ WallBuilders on account of its religious viewpoints,” id. at *10 (alteration in original) (quoting Matal v. Tam, 582 U.S. 218, 248 (2017) (Kennedy, J., concurring in part and concurring in the judgment)). As to Guideline 12, the Court determined that the claims in “Counts V and VI are foreclosed by Archdiocese of Washington v. Washington Metropolitan Area Transit Authority, in which the D.C. Circuit squarely held that Guideline 12, by ‘prohibit[ing] religious and anti- religious ads in clear, broad categories,’ is viewpoint neutral and is reasonable in light of WMATA’s previous ‘security concerns arising from [ ] controversial ad[s]’ and its ‘compelling 12 interest in ensuring the safety and reliability of its transportation services and operating in a manner that maintains the attractiveness of its service to a multi-cultural, multi-ethnic, and religiously diverse ridership.’” Id. at *20 (alterations in original) (quoting Archdiocese, 897 F.3d at 325, 330- 31). Although WMATA “did not reject WallBuilders’ ads pursuant to Guideline 12,” WallBuilders had standing to bring a pre-enforcement challenge against Guideline 12 because its “ads, which can fairly be read to promote the ‘religious principles’ allegedly adopted by the Founders and thus foundational to the nation, are ‘arguably’ prohibited by Guideline 12” and because “WMATA has not disavowed future rejection of WallBuilders’ ads pursuant to Guideline 12, especially if Guideline 9 is unavailable due to being found unconstitutional.” Id. at *18-20. In sum, WMATA’s motion to dismiss was granted as to WallBuilders’ viewpoint discrimination claims as well as both claims challenging Guideline 12, and a preliminary injunction was issued enjoining enforcement of Guideline 9 against WallBuilders. See id. at *21. D. WallBuilders’ Summer 2024 Advertising Campaign, and WMATA’s Adoption of Interpretive Aids Following issuance, in May 2024, of preliminary injunctive relief against WMATA enjoining WMATA from enforcing Guideline 9 against WallBuilders, see id. at *17, “WallBuilders informed WMATA that it wanted to run the original two ‘Christian?’ ads on WMATA buses in June and July 2024,” and those “ads ran in the summer of 2024” and “continued to appear on some WMATA buses for months after the contract period ended in July 2024,” Pl.’s SUMF ¶ 57. In the summer of 2024, WallBuilders submitted four new ads showing quotations from historical American leaders designed “to educate the public on the views of the founders on the importance of faith and on the role of faith in our country’s founding and history.” Id. ¶ 58. The first ad states “[t]he Bible contains more knowledge necessary to man in his present state than any 13 other book in the world,” and attributes the quote to “Signer of the Declaration of Independence Dr. Benjamin Rush.” Id. ¶ 27 (capitalization standardized). The second ad states that “[t]hose people who are not governed by God will be ruled by tyrants,” and attributes the quote to the “Founder of Pennsylvania William Penn.” Id. ¶ 31 (capitalization standardized). The third ad states that “[t]o the distinguished character of patriot, it should be our highest glory to add the more distinguished character of Christian,” and attributes the quote to “President George Washington.” Id. ¶ 32 (capitalization standardized). The fourth and last ad states “[w]ithout God, there could be no American form of government, nor an American way of life. Recognition of the Supreme Being is the first—the most basic—expression of Americanism,” and attributes this quote to “President Dwight Eisenhower.” Id. ¶ 34 (capitalization standardized). These four proposed ads are reproduced below. 14  All four ads submitted by WallBuilders were rejected by WMATA on July 12, 2024, within two weeks of submission. See id. ¶ 59; Pl.’s Opp’n to Def.’s Rule 56(D) Mot. for Disc., Att. 1, 15 Suppl. Decl. of WallBuilder’s President, Timothy Barton (“Barton Suppl. Decl.”) ¶ 12, ECF No. 44-1. 4 The reason given for rejection was for noncompliance with Guidelines 12 and 14, although “WMATA did not provide an explanation as to why these ads violated Guideline 12 when the original ads did not.” Pl.’s SUMF ¶ 59; see also Barton Suppl. Decl. ¶ 12 (“On July 12, 2024, WMATA rejected the four ads, citing Guidelines 12 (prohibiting religious advertisements) and 14 . . . .”); WMATA’s Guidelines at 2 (Guideline 14: “Advertisements that are intended to influence public policy are prohibited.”). Thereafter, in November 2024, WMATA published Internal Procedures and Interpretive Aids, which are designed to “help WMATA’s advertisement review panel (“Panel”) apply the Guidelines to all advertisements submitted for review by its third-party advertising vendor.” Def.’s Opp’n, Ex. 1, Fourth Decl. of WMATA’s Dir. of Mktg., Georgetta Nicol (“4th Nicol Decl.”), Ex. A, WMATA Internal Procedures and Interpretive Aids for Reviewing Proposed Commercial Advertising (“Interpretive Aids”) at Preamble, ECF No. 62-4. 5 The four-page Interpretive Aids document consists of four sections, describing: in section I, the composition and expertise of WMATA’s advertisement review Panel, which is required to solicit outside legal advice if consensus by the Panel cannot be reached as to “whether an advertisement violates the Guidelines,” id. § I. A.-D.; in section II, the procedure for submitting advertisements to the third- party advertising vendor and the circumstances when that vendor is required to submit an ad to the Panel for review, id. § II. A.-C.; and, in section III, guidance for “Panel review of advertisements,” id. § III (caption), with specific steps to be undertaken by the Panel when an ad “contains a link to 4 The identical declaration is also attached to WallBuilders’ pending summary judgment motion, see Pl.’s Mot., Att. 19, Suppl. Decl. of WallBuilder’s President, Timothy Barton, ECF No. 61-19, but only the first filed declaration is cited. 5 This declaration and accompanying exhibits were twice docketed as a standalone entries, see ECF Nos. 64, 65, but the latter entry was modified to clarify that such entry was “entered in error.” For convenience, the first filed declaration is cited. 16 a website, a QR code, or a reference to a website,” id. § III. B.-C., and, absent such link or reference, authorizing the Panel to conduct “research” regarding information presented in the ad “that is not readily known to or understood by the Panel,” so that the Panel may “educate itself in order to make an informed decision as to whether the advertisement violates the Guidelines,” id. § III. D. The bulk of the Interpretive Aids is devoted, in the last section IV, to “Guidance for determining if advertisements violate the Guidelines,” id. § IV. (caption), beginning with three subsections of general policy statements, id. § IV., A. – C., followed by seven subsections of specific “Interpretive aids” for Guidelines 1, 4, 8, 9, 12, 13 and 14, id. § IV. D, E, F, G, H, I, and J, respectively. Pertinent to this case, the “Interpretive aids for Guideline 9,” in subsection IV. G., starts with an instruction for the review Panel to determine “an advertisement’s intent”—consistent with Guideline 9’s first clause limiting the prohibition to “[a]dvertisements intended to influence members of the public . . .”—by looking at “the face of the advertisement and review of any relevant websites . . . .” Id. at § IV.G.1. Next, this subsection defines “an ‘issue’ for purposes of Guideline 9 [a]s ‘a point, matter, or dispute, the decision of which is of special or public importance,’” and notes that “[a]dvertisements that include such issues generally promote a message to the public about substantive ethically, socially, or politically controversial or divisive topics, as illustrated in this section.” Id. at § IV.G.2. Sixteen specific examples of prohibited “types of advertisements” are listed, including those “[s]upporting, opposing, or promoting,” inter alia, “a political party,” “any person holding any government position or any candidate for such a position,” “a ballot measure or proposed measure,” or “a policy or policies of a business or nonprofit entity other than encouraging or promoting the purchase or use of goods or services of the advertiser”; “[d]escribing or promoting a particular view, interpretation, or meaning of 17 historical events, historical documents (for example, but not limited to, the Declaration of Independence or Constitution), laws, statutes, regulations, or other government policies”; and “[s]upporting, opposing, or promoting an ethical, social, or humanitarian cause, mission, call to action, awareness campaign, position statement, or other similar effort unless solely for a commercial purpose.” Id. at § IV.G.3.a, b, c, j, m, p. To provide additional guidance in applying Guideline 9, subsection IV. G. of the Interpretive Aids goes on to list five types of advertisements that do not violate this Guideline, stating that “Guideline 9 does not prohibit”: (1) “advertisements for a newspaper, magazine, other publication, TV program, film, theatrical performance, concert, podcast, or other media solely because the medium’s content addresses political issues or contains political messages, so long as the advertisement does not otherwise violate the Guidelines”; (2) “advertisements for employment, including encouraging enlistment in a branch of the military” or other government job, “solely because the employer’s missions, policies, practices, or tactics are the subject of ‘varying opinions,’ so long as the advertisement does not otherwise violate the Guidelines”; (3) “advertisements that encourage or promote the purchase or use of goods or services because others may be opposed to their purchase or use, so long as the advertisement does not otherwise violate the Guidelines”; (4) “advertisements that promote medical services that may be the subject of public debate and controversy (for example, but not limited to, abortion, pregnancy care, gender- affirming medical treatment, in-vitro fertilization, vaccines, etc.) if the advertisement is limited to describing the services available, so long as the advertisement does not otherwise violate the Guidelines”; and (5) “advertisements soliciting donations so long as the advertisement does not otherwise violate the Guidelines.” Id. § IV.G. 4 - 8, respectively. 18  The Interpretive Aids make clear that “WMATA reserves the right to revise or amend the internal procedures and interpretive aids without notice.” Id. (Preamble). E. Pending Cross-Motions for Summary Judgment Before WMATA issued the Interpretive Aids, the parties had filed cross-motions for summary judgment concerning Guideline 9, but, over Wallbuilders’ objection, WMATA moved to defer completion of summary judgment briefing until discovery could be conducted, which discovery motion was denied. See Pl.’s Mot. for Summ. J., ECF No. 41; Def.’s Rule 56(d) Mot. for Disc. & Deferral of Consideration Pl.’s Mot. for Summ. J. at 1, ECF No. 43; Minute Order (Sept. 13, 2024) (“Defendant’s arguments that the requested discovery is necessary for effective opposition to plaintiff’s pending Motion for Summary Judgment are unpersuasive.”); Def.’s Mot. for Summ. J., ECF No. 48. Following WMATA’s adoption of the Interpretive Aids in November 2024, however, WallBuilders sought discovery “to probe [the Interpretive Aids’] development and meaning and to reinforce that the interpretive aids do not render the Guidelines constitutional.” Pl.’s Rule 56(d) Mot. for Disc., Att. 1, Pl.’s Mem. of P. & A. in Supp. of Its Rule 56(d) Mot. for Disc. at 1, ECF No. 52-1. WMATA had no objection to limited discovery about “non-privileged, non-speculative information about WMATA’s decisions on advertisements based on Guideline 9 . . . as interpreted using the Interpretive Aids,” Def.’s Partial Opp’n to Pl.’s Rule 56(d) Mot. at 1, ECF No. 53, and WallBuilders’ discovery request was granted, Minute Order (Dec. 17, 2024). The then-pending cross-motions for summary judgment were denied as moot with leave to refile “given that discovery will result in a different record upon which either party may seek summary judgment.” Id. At the parties’ requests, the close of discovery was twice extended until December 5, 2025, and in the interim, a discovery dispute was resolved at a telephonic hearing, at which WMATA’s objection to proposed hypothetical questions WallBuilders planned to ask at a deposition of WMATA’s witness, proffered under Fed. R. Civ. P. 30(b)(6), was sustained. See 19 Minute Orders (Apr. 29, 2025; Sept. 29, 2025; Oct. 10, 2025); Minute entry for telephonic hearing (Oct. 10, 2025). At the close of discovery, in response to the Court’s direction to advise “whether plaintiff’s claims are moot in light of the Internal Procedures and Interpretive Aids for Reviewing Proposed Commercial Advertising,” Minute Order (Dec. 17, 2024), the parties submitted divergent positions, see Joint Status Rep. Regarding Further Procs. (“Joint Status Rep.”), ECF No. 60. WMATA contended that WallBuilders’ “claims for declaratory and injunctive relief as to Guideline 9 . . . are moot because the Aids substantially change WMATA’s advertisement review system, including vis-à-vis Guideline 9” and because “[t]he Complaint seeks a declaration that Guideline 9 as it existed prior to the Interpretive Aids ‘violates the First Amendment on its face’ and an injunction permanently preventing WMATA from enforcing Guideline 9 vis-à-vis WallBuilders.” Id. at 3-4 (citation omitted). WallBuilders, for its part, emphasized that “the Interpretive Aids are an ‘internal document’ created entirely by WMATA’s counsel in response to litigation” and that “the Interpretive Aids are changeable by WMATA at any time ‘without notice.’” Id. at 5-6 (citations omitted). Furthermore, WallBuilders argued that its “summary judgment briefing will explain, in detail, how the Interpretive Aids do nothing to clarify the unmoored scope of Guideline 9, but rather, make it worse,” so “[t]his case remains a live and justiciable controversy.” Id. at 6. WallBuilders thereafter filed a renewed motion for summary judgment, see Pl.’s Mot., and WMATA cross-moved for summary judgment, see Def.’s Opp’n. These two motions are now ripe for resolution. See Def.’s Reply in Supp. of Mot. for Summ. J., ECF No. 68. 20 II. LEGAL STANDARD A movant is entitled to summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). “‘[T]he mere existence of some alleged factual dispute between the parties’ is not enough to defeat summary judgment; ‘the requirement is that there be no genuine issue of material fact.’” United States ex rel. McBride v. Halliburton Co., 848 F.3d 1027, 1030 (D.C. Cir. 2017) (alteration and emphasis in original) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247- 48 (1986)). “Material” facts are those that “might affect the outcome of the suit under the governing law,” and “genuine” issues are those in which “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. Thus, “[i]n considering a motion for summary judgment, judges must ask themselves not whether they think ‘the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented,’” because that evidence is such that “the jury could reasonably find for the plaintiff.” Stoe v. Barr, 960 F.3d 627, 638-39 (D.C. Cir. 2020) (quoting Anderson, 477 U.S. at 252). Any “inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (ellipsis in original) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam)). III. DISCUSSION The Complaint, which has not been amended over the course of this litigation, originally asserted six counts, see WallBuilder, 2024 WL 2299581, at *21, and of these, only two, Counts I and II, survived WMATA’s motion to dismiss, id. *8. WallBuilders now advances arguments seeking summary judgment as to both surviving Counts I and II (challenging Guideline 9 as 21 unreasonable), and also seeks reconsideration of dismissal of Count VI (challenging Guideline 12 as unreasonable), and summar