MEMORANDUM OPINION

JOYCE HENS GREEN, District Judge.

    Plaintiffs Rollen F. Stewart, Steven D. Francis, and Edwin Thate, Jr. initiated this action this date

Franklin, Stuart J. Long, and James A. Dalrymple, seeking to enjoin defendants from preventing

plaintiffs from displaying religious signs at RFK Stadium. Presently pending is plaintiffs' motion for a

plaintiffs' pleadings and having considered the arguments advanced by counsel for both sides at an

oral hearing held today, plaintiffs' motion for a TRO and PI is granted. FN3

FN1. Although plaintiffs have named Sharon Pratt Dixon in their Complaint, the Court
has substituted Sharon Pratt Kelly as that defendant

FN2. With the parties' consent, this Opinion resolves plaintiffs' request for a TRO and request for a PI.

I. BACKGROUND

    On June 22, 1990, the Armory Board adopted a new regulation regarding signs and banners at RFK

conditions are met:

FN4. The regulation appears in the District of Columbia Register, Volume 37, No. 25, Chapter 29, §§ 2900 et seq.

    (1) The banner shall pertain to the event;

    (2) The banner shall not be commercial, vulgar or derogatory; and

    (3) The dimensions of the banner shall not exceed 4' x 6'. FN5

FN5. For purposes of the motion for a TRO and PI, plaintiffs do not object to the size restriction contained in § 2902.2.

    On January 4, 1992, plaintiff Thate placed a scripture sign with the reference "John 3:3" at the 20 yard

Thate noticed, however, that the sign was removed during half-time. He placed another sign with the

message "Mark 8:36" in the end zone and later noticed that that sign had also been torn. Francis, who

watched the January 4, 1992 game on television, observed that a variety of signs--"Hi to Kathy and

Don," "Capitol Punishment," "National Defense," and "2 Legit 2 Quit"--remained undisturbed

throughout the game. Thate, who attended the game, also noticed that other signs and banners were

not removed.

    At the hearing, counsel for plaintiffs indicated that although plaintiffs had displayed similar signs on

at least one other occasion between June, 1990 and January 4, 1992, the signs had never before been

removed. In addition, defense counsel stated that with the exception of those that exceeded the size

limitation, to his knowledge, the only signs that have been removed pursuant to the regulation's

"content" restriction belong to plaintiff. Finally, counsel for defendants indicated that plaintiffs' signs

were removed by defendants' employees at the direction of the National Football League ("NFL"). FN6

FN6. The National Football League does not have a contractual relationship with the Armory Board.

II. DISCUSSION

     A temporary restraining order may be granted only when the plaintiff demonstrates (1) a

substantial likelihood of success on the merits; (2) that irreparable injury will result in the absence of

the requested relief; (3) that no other parties will be harmed if temporary relief is granted; and (4) that

is not a wooden one, for as our court of appeals has noted, relief may be granted "with either a high

    A. Likelihood of Success on the Merits

Under either the public forum doctrine or overbreadth/vagueness analyses, it appears, based on the

present record, that plaintiffs have a substantial likelihood of success on the merits.FN7

            1. Public Forum Doctrine

    The Armory Board is an independent government agency established by Congress and charged with

the responsibility of constructing, maintaining, and operating RFK Stadium; because the Stadium is

government-owned property, the instant case can be analyzed under the rubric of the public forum

doctrine.

    The Supreme Court has suggested an analytical framework for deciding whether RFK Stadium is a

public forum. First, the Court must consider whether the conduct or speech in question is protected

speech. Next, the Court must analyze the nature of the forum and its public and non-public

characteristics. And finally, the Court must evaluate the justification for exclusion viewed against the

    First, there can be little question that the signs at issue constitute protected speech. The Supreme

Court has expressly held that religious expression enjoys the same protection as "political" speech

L.Ed.2d 440 (1981).

L.Ed.2d 567 (1985).

FN9. The Court need not reach plaintiffs' more tenuous argument that a
stadium, like a park or street, is a traditional public forum.

    The "touchstone" for determining whether government property is a designated public forum is the

Court of Appeals explained, "Intent is not merely a matter of stated purpose; rather, it is ... a matter to

be inferred from a number of factors," including "the character of the forum in the nature of the

property, its compatibility with expressive activity, and the consistent policy and practice of the

may not have the same public forum status in all places at all times." Id. at 1018 n. 8.

FN10. The compatibility inquiry enters into the first amendment analysis in two ways:
(1) compatibility provides some evidence of the government's intent; and (2) once the
nature of the forum has been determined, compatibility is relevant to the ultimate
determination of whether restrictions on speech are either reasonable or narrowly tailored
and based on a compelling state interest.

    Based on the present record, there is sufficient evidence for the Court to conclude that RFK Stadium

is a public forum. While defendants emphasized at oral argument that the Stadium draws all of its

revenue from leases and the sale of tickets, as defendants had to concede, the government also

intended, in operating the Stadium, "to build civic pride, identity and cohesion through sponsorship of

public events which bring citizens together for a common purpose." Stewart, 863 F.2d at 1019.

Moreover, while the Armory Board contends that its consistent policy and practice since June, 1990

have been to remove signs that do not comply with its regulations, there is evidence in the record to

course of the last several years, and those signs had never before been removed.

FN11. "Mere statements of policy, if consistently contradicted by practice, are not

dispositive." Stewart, 863 F.2d at 1021.

speech at the Stadium. At this stage of the proceedings, the only policy reason defendants advanced

for prohibiting plaintiffs' message was concern about offending fans, football team owners, tenants,

and, in particular, the NFL, a non-tenant, at whose direction defendants were prompted to remove

plaintiffs' January 4, 1992 signs. And "undifferentiated fear or apprehension of disturbance is not

Nevertheless, even were the Court to accept defendants' contention that RFK Stadium is not a

public forum, there is evidence in the present record that the regulation is unreasonable and that its

enforcement may represent " 'an effort to suppress expression merely because public officials oppose

460 U.S. at 46, 103 S.Ct. at 955).

    Defendants conceded at the hearing that they were specifically instructed by the NFL to remove only

the sign containing the religious message and were not directed to remove the signs, which stated, "Hi

to Kathy and Don," "Capitol Punishment," "2 Legit 2 Quit." While it is unclear whether the reason for

allowing certain signs to remain and other signs to be removed is the result of the NFL's or

defendants' officials' determination that some signs complied with the regulations and plaintiffs'

banners did not, or because defendants objected to the message, there was at least a suggestion that

plaintiffs' signs were removed because defendants disagreed with the messages contained therein. In

any event, it appears that the regulation is unreasonable because it is overbroad and vague.

            2. Overbreadth/Vagueness Doctrines

of viewpoint discrimination, plaintiffs also have a substantial likelihood of success on the merits in

challenging the regulation as overbroad and vague. As illustration, the regulation prohibits "vulgar" or

"derogatory" speech, but fails entirely to define those terms. In addition, the regulation prohibits

speech that does not "pertain to the event," but fails to guide anyone in determining what speech

pertains to an event and what speech does not. And as the Supreme Court suggested in a similar case

in which the Board of Airport Commissioners of the City of Los Angeles sought to prohibit

expressive activities at the airport that were unrelated to airport- related activities,

Much nondisruptive speech--such as the wearing of a T-shirt or button that contains a political

message--may not be 'airport related,' but is still protected speech even in a non-public forum....

Moreover, the vagueness of this suggested construction itself presents serious constitutional difficulty.

The line between airport-related speech and nonairport-related speech is, at best, murky.

Board of Airport Commissioners of the City of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 576,

107 S.Ct. 2568, 2573, 96 L.Ed.2d 500 (1987). In any event, the fact that defendants' officials alone

have the power to decide in the first instance whether a given activity is related to the event itself

law that 'confers on police a virtually unrestrained power to arrest and charge persons with a violation'

of the resolution is unconstitutional because '[t]he opportunity for abuse, especially where a statute

has received virtually open-ended interpretation, is self- evident.' " 482 U.S. at 576, 107 S.Ct. at 2573

(citation omitted).

    B. Balancing the Harms

also appears that the potential harm to plaintiffs in denying their motion substantially outweighs the

harm to defendants in allowing plaintiffs to display their signs. As the Supreme Court has suggested,

"The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes

    C. The Public Interest

Whatever public interest there may be in limiting inconvenience to Armory staff, or possibly

offending fans, owners, and professional associations, the public clearly has an interest in free speech.

The public interest in this case will be served by ensuring that plaintiffs' First Amendment rights are

not infringed before the constitutionality of the regulation has been definitively determined.

III. CONCLUSION

    Accordingly, for the reasons expressed above, it is hereby

ORDERED that plaintiffs' motion for a TRO and PI is granted; it is

FURTHER ORDERED that defendants are enjoined from preventing plaintiffs from displaying signs

with religious content at RFK Stadium; it is

FURTHER ORDERED that plaintiffs shall post a bond in the amount of $250 cash, without surety, as

security for the payment of such costs and expenses as may be incurred or suffered by the defendants

if it should be determined that they have been wrongfully enjoined or restrained; it is

FN12. All discovery disputes will be referred to a Magistrate Judge.

FURTHER ORDERED that cross-dispositive motions shall be filed no later than March 31, 1992;

oppositions thereto shall be filed no later than April 20, 1992; and replies, if any, shall be filed no

later than April 30, 1992. There shall be no extensions of these dates.

    There shall be no stay of this Order for the same reasons plaintiffs' motion for a TRO/PI was granted.

IT IS SO ORDERED.

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