Case :-cv-00-cab-rbb Document Filed 0// Page of 0 Matthew Strugar, SBN matthew-s@petaf.org PETA Foundation W. Sunset Blvd. Los Angeles, CA 00 Tel: -- Fax: 0-0-0 David Loy, SBN davidloy@aclusandiego.org Sean Riordan, SBN sriordan@aclusandiego.org ACLU Foundation of San Diego & Imperial Counties P.O. Box San Diego, CA Tel: -- Fax: --00 Attorneys for Plaintiff UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA People for the Ethical Treatment of Animals, Inc., Plaintiff, v. San Diego County Regional Airport Authority and JCDecaux North America, Defendants. Case No.: 'CV0 CAB RBB Complaint for Declaratory and Injunctive Relief
Case :-cv-00-cab-rbb Document Filed 0// Page of 0 Plaintiff People for the Ethical Treatment of Animals, Inc. ( PETA ), by and through its undersigned counsel, brings this Complaint for declaratory and injunctive relief against the San Diego County Regional Airport Authority ( Airport Authority ) and JCDecaux North America ( JCDecaux ) to protect its rights under the First and Fourteenth Amendments to the United States Constitution and their analogs in the California Constitution. Plaintiff alleges upon knowledge as to its own conduct and observations and upon information and belief as to the conduct of others: Nature of the Action. This civil rights action arises out of the unconstitutional refusal of the Airport Authority and its agent, JCDecaux, to accept advertising at San Diego International Airport ( SAN or the Airport ) from Plaintiff because of the message expressed in the proposed advertisement.. Plaintiff seeks a declaration that Defendants violated its constitutional rights as set forth in this Complaint; a declaration that Defendants actions violate the First and Fourteenth Amendments to the United States Constitution and Article, Sections and of the California Constitution as set forth in this Complaint; and preliminary and permanent injunctive relief ordering Defendants to accept and display Plaintiff s advertisement on terms no less favorable than those given to other nonprofit advertisers. Plaintiff also seeks an award of reasonable costs of litigation, including attorneys fees and expenses, pursuant to U.S.C. and other applicable law. Parties. Plaintiff PETA is a Virginia non-stock corporation and animal protection charity exempt from taxation pursuant to Section 0(c)() of the Internal Revenue Code. A central tenet of PETA s mission is to expose cruelty to animals used for entertainment, educate the public about such cruelty, and
Case :-cv-00-cab-rbb Document Filed 0// Page of 0 encourage people to oppose such cruelty, including at SeaWorld in San Diego, California.. Defendant Airport Authority is the County agency that manages the operation of SAN.. Defendant JCDecaux is a Delaware corporation doing business in California. JCDecaux manages the advertising space at SAN under a contract with the Airport Authority. Jurisdiction and Venue. This Court has original jurisdiction pursuant to U.S.C. and as this is an action to redress the deprivation, under color of state law, of rights secured by the Constitution and laws of the United States. This Court has supplemental jurisdiction to consider Plaintiff s state constitutional claims pursuant to U.S.C.. Plaintiff seeks remedies under U.S.C. and (protection of constitutional rights), Fed R. Civ. P. (injunctive relief), and U.S.C. 0 and 0 and Fed. R. Civ. P. (declaratory relief).. Venue is proper under U.S.C. because the Defendants acts in violation of the United States Constitution have arisen and continue to arise in the Southern District of California. Facts Giving Rise to Plaintiff s Claims. At all times relevant to the matters set forth in this Complaint, Defendant Airport Authority had and currently has in place a written policy concerning the acceptance of advertising to run at the Airport (hereinafter, the Advertising Policy ). The Advertising Policy was and is, in full: () Advertising contracts shall be negotiated for the purpose of increasing airport revenues. () Advertising displays shall be in good taste, non-controversial, and maintained in such a manner as not to interfere with ordinary Airport operations, and to be as informational as possible.
Case :-cv-00-cab-rbb Document Filed 0// Page of 0. Since its inception, Plaintiff has championed ending the use of animals for human amusement, including the use of marine mammals in aquaticthemed amusement parks. As part of its public awareness and education campaigns, Plaintiff prepared an advertisement encouraging the public to avoid SeaWorld, the captive-animal aquatic-themed amusement park with several locations throughout the country, including in San Diego. Plaintiff chose SAN as the site for this advertisement to counteract the abundance of advertising traditionally promoting SeaWorld San Diego throughout the Airport.. Plaintiff seeks to run the following advertisement ( the Advertisement ) at SAN:. Defendant JCDecaux serves as the advertising agent for SAN pursuant to a contract with the Airport Authority. Pursuant to this contract, the Airport reserves the right to prohibit the display of alcohol and tobacco advertising. The contract also requires JCDecaux to provide the Airport with each proposed advertising contract and advertising copy, with the Airport retaining absolute and sole discretion to reject any proposed advertisement. The contract provides the Airport with the right to compel the removal of any advertisement and limits
Case :-cv-00-cab-rbb Document Filed 0// Page of 0 JCDecaux s right to object, on constitutional grounds or otherwise, to such a removal.. On January, 0, Plaintiff contacted JCDecaux seeking to run the Advertisement.. That same day, Steve MacKelvie, Vice President of Airport Properties for JCDeceaux, informed Plaintiff that it would not accept the proposed advertisement as it does not conform to [JCDecaux s] internal policies on advertising.. When Plaintiff inquired about the basis of the alleged nonconformity, MacKelvie directed Plaintiff to Martha Bailey, Executive Vice President of Legal Affairs and General Counsel for JCDecaux.. On January, 0, Plaintiff wrote Bailey to inquire about the basis for JCDecaux rejecting the proposed advertisement. Bailey, on behalf of Defendant JCDecaux, responded that JCDecaux North America makes its decisions on content based on internal guidelines and policies.. Plaintiff responded that it wished to know which of [JCDecaux s] specific guidelines [PETA s] ad violates and asked for a copy of those guidelines or policies. Bailey responded stating, I am sorry but these are our internal guidelines/policies.. On January 0, 0, Plaintiff s counsel wrote to Bailey and Defendant Airport Authority CEO Thella Bowens stating that their refusal to run Plaintiff s advertising was unconstitutional. The letter requested that Defendants accept the Advertisement and respond to Plaintiff s counsel to that effect by February, 0.. On February, 0, Bailey responded to Plaintiff s counsel s letter, maintaining Defendants refusal to run Plaintiff s Advertisement or to disclose Defendants advertising criteria to Plaintiff. Bailey informed Plaintiff that the
Case :-cv-00-cab-rbb Document Filed 0// Page of 0 advertisement violated inter alia JCDeacux s internal, non-public policy against advertisements that are disparaging or demeaning.. Defendants refusal to accept Plaintiff s Advertisement is in stark contrast to Defendants acceptance of advertisements promoting SeaWorld and of other issue-oriented, educational, and advocacy advertisements displayed at SAN. For example, SAN consistently accepts and displays digital advertisements, posters, and wall-wrap advertisements promoting SeaWorld. In addition, Defendants accept issue-oriented advertisements from, among others, Earth Justice, Oxfam, the World Wildlife Fund, the Nature Conservancy, the Girl Scouts, the Make a Wish Foundation, and the Rotary Club. 0. Defendants have applied a system of prior restraint to refuse Plaintiff s proposed advertisement on the bases of its content and/or viewpoint that does not include constitutionally adequate standards.. Plaintiff is suffering an ongoing irreparable injury to its rights under the First and Fourteenth Amendments to the United Constitution and Article I, Sections and of the California Constitution. Plaintiff has no adequate remedy at law.. At all times relevant to this Complaint, Defendants acted under color of state law, and JCDecaux has acted in concert with Defendant Airport Authority in the maintenance and application of restrictions on advertising at SAN. First Cause of Action Infringement of Freedom of Speech First and Fourteenth Amendments ( U.S.C. ). Plaintiff incorporates by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein.. Defendants refusal to run Plaintiff s Advertisement has restricted and continues to restrict Plaintiff s ability to convey its political message to the public and to participate in a debate on a matter of public concern. Defendants actions
Case :-cv-00-cab-rbb Document Filed 0// Page of 0 violate the First Amendment to the United States Constitution as made applicable to state entities through the Fourteenth Amendment.. Defendants refusal to run Plaintiff s anti-seaworld Advertisement while accepting and displaying pro-seaworld advertising, as well as similar issueoriented advocacy advertisements, amounts to discrimination on the basis of content and/or viewpoint in violation of the First Amendment to the United States Constitution, as made applicable to state entities through the Fourteenth Amendment.. Defendants Advertising Policy, and its application of the published Advertising Policy, and/or disclosed or undisclosed nonpublic additional criteria governing Airport advertising, gives Defendants unfettered discretion in enforcement, violating Plaintiff s rights under the First and Fourteenth Amendments to the United States Constitution.. Defendants Advertising Policy, and its application of the published Advertising Policy, and/or disclosed or undisclosed nonpublic additional criteria governing Airport advertising is overbroad in violation of the First Amendment to the United States Constitution, as made applicable to state entities through the Fourteenth Amendment.. Plaintiff has suffered and will continue to suffer irreparable harm and the deprivation of its rights because of Defendants unconstitutional policies and practices. Second Cause of Action Infringement of Freedom of Speech California Constitution, Article I, Section. Plaintiff incorporates by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 0. Defendants refusal to run Plaintiff s Advertisement has restricted and continues to restrict Plaintiff s ability to convey its political message to the public
Case :-cv-00-cab-rbb Document Filed 0// Page of 0 and to participate in a debate on a matter of public concern. Defendants actions violate Article I, Section of the California Constitution.. Defendants refusal to run Plaintiff s anti-seaworld Advertisement while accepting and displaying pro-seaworld advertising, as well as similar issueoriented advocacy advertisements, amounts to discrimination on the basis of content and/or viewpoint in violation of Article I, Section of the California Constitution.. Defendants Advertising Policy, and its application of the published Advertising Policy, and/or disclosed or undisclosed nonpublic additional criteria governing Airport advertising, gives Defendants unfettered discretion in enforcement, violating Plaintiff s rights under Article I, Section of the California Constitution.. Defendants Advertising Policy, and its application of the published Advertising Policy, and/or disclosed or undisclosed nonpublic additional criteria governing Airport advertising is overbroad in violation of Article I, Section of the California Constitution.. Plaintiff has suffered and will continue to suffer irreparable harm and the deprivation of its rights because of Defendants unconstitutional policies and practices. Third Cause of Action Vagueness Fourteenth Amendment ( U.S.C. ). Plaintiff incorporates by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein.. The criteria Defendants used and are using to prohibit Plaintiff s Advertisement are not clearly defined such that a person of ordinary intelligence can readily determine whether the Advertisement is allowable or prohibited. Defendant JCDecaux s supposed anti-disparagement policy is not clearly
Case :-cv-00-cab-rbb Document Filed 0// Page of 0 defined such that a person of ordinary intelligence can readily determine whether the Advertisement is allowable or prohibited.. Defendant JCDecaux refuses to disclose the criteria upon which it accepts or rejects advertisements, preventing a person of ordinary intelligence from readily determining whether an advertisement is allowable or prohibited.. Defendants Advertising Policy and/or the disclosed or undisclosed additional criteria governing advertising are vague on their face and as applied to Plaintiff.. Defendants Advertising Policy, and its application of the published Advertising Policy, and/or the disclosed or undisclosed additional criteria governing Airport advertising, violate Plaintiff s rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. 0. Plaintiff has suffered and will continue to suffer irreparable harm and the deprivation of its rights because of Defendants unconstitutional policies and practices. Fourth Cause of Action Vagueness California Constitution, Article I, Section. Plaintiff incorporates by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein.. The criteria Defendants used and are using to prohibit Plaintiff s Advertisement are not clearly defined such that a person of ordinary intelligence can readily determine whether the Advertisement is allowable or prohibited. Defendant JCDecaux s supposed anti-disparagement policy is not clearly defined such that a person of ordinary intelligence can readily determine whether the Advertisement is allowable or prohibited.. Defendant JCDecaux refuses to disclose the criteria upon which it accepts or rejects advertisements, preventing a person of ordinary intelligence from readily determining whether an advertisement is allowable or prohibited.
Case :-cv-00-cab-rbb Document Filed 0// Page of 0. Defendants Advertising Policy and/or the disclosed or undisclosed additional criteria governing advertising are vague on their face and as applied to Plaintiff.. Defendants Advertising Policy, and its application of the published Advertising Policy, and/or the disclosed or undisclosed additional criteria governing Airport advertising, violate Plaintiff s rights under the Due Process Clause of Article I, Section of the California Constitution.. Plaintiff has suffered and will continue to suffer irreparable harm and the deprivation of its rights because of Defendants unconstitutional policies and practices. Prayer for Relief Wherefore, Plaintiff requests that the Court:. Declare that Defendants have violated and are violating Plaintiff s rights under the First and Fourteenth Amendment to the United States Constitution and Article I, Sections and of the California Constitution;. Declare that Defendants Advertising Policy is facially unconstitutional under the First and Fourteenth Amendments to the United States Constitution and Article I, Sections and of the California Constitution;. Declare that Defendants imposition of nonpublic restrictions on advertising at the Airport, including but not limited to the supposed nondisparagement restriction, is unconstitutional under the First and Fourteenth Amendments to the United States Constitution and Article I, Sections and of the California Constitution;. Grant Plaintiff preliminary and permanent injunctive relief ordering Defendant to accept and display Plaintiff s proposed advertisement on terms no less favorable than those given to other nonprofit advertisers;
Case :-cv-00-cab-rbb Document Filed 0// Page of 0. Award Plaintiff costs and reasonable attorneys fees pursuant to U.S.C., Cal. Code Civ. Proc.., Fed. R. Civ. P. (d), and any other applicable law; and. Grant any other relief that the court deems appropriate. Date: March, 0 Respectfully submitted, /s Matthew Strugar Matthew Strugar, SBN matthew-s@petaf.org PETA Foundation W. Sunset Blvd. Los Angeles, CA 00 Tel: -- Fax: 0-0-0 David Loy, SBN davidloy@acluisandiego.org Sean Riordan, SBN sriordan@aclusandiego.org ACLU Foundation of San Diego & Imperial Counties P.O. Box San Diego, CA Tel: -- Fax: --00 Attorneys for Plaintiff