Supreme Court Lets Stand King County Metro Bus Ad Rejection
You may have seen the news that, on March 7, 2016, the US Supreme Court declined to hear an appeal of a Ninth Circuit Court of Appeals decision, AFDI v. King County, refusing to enjoin King County Metro’s 2013 rejection of an ad, titled “Faces of Global Terrorism,” for display on its buses. Metro had concluded that the ad failed to meet its advertising guidelines, and the plaintiff American Freedom Defense Initiative (AFDI) sought to overturn Metro’s decision on free speech grounds. This action by the Court will likely be significant for local governments as they consider the extent to which they can enact and enforce similar restrictions.
The Supreme Court’s refusal to hear the appeal (denial of a petition for writ of certiorari, or “denying cert”) of the Ninth Circuit’s decision means that decision stands as the final decision in that case. The Supreme Court’s refusal to hear the appeal does not mean that the Court either agrees or disagrees with the decision of the Court of Appeals; it means only that the Court will not review the case. A denial of cert typically is without comment or explanation, though sometimes a dissenting justice writes as to why he or she thinks the petition for cert should have been granted, as happened in this case with Justice Thomas’ dissent. The Court’s decision not to review a case has no precedential value; it is not binding on other courts. However, the Court’s denial of the appeal means that the reasoning and conclusions of the Ninth Circuit’s decision in AFDI v. King County are binding for that circuit, which includes Washington State.
In AFDI v. King County, a three-judge panel of the Ninth Circuit affirmed the federal district court’s denial of a preliminary injunction to require Metro to publish the ad. The ad in question was similar to one that had been placed by the FBI on Metro buses but that had been pulled after complaints that the ad stereotyped Muslims. AFDI’s proposed ad was very similar – but not identical – to the FBI ad, and it contained misstatements about the reward being offered for helping in the capture of one of the pictured “Jihadis.” (Both ads can be viewed on pages 5-6 of the court’s decision.) Metro rejected the ad in part because it concluded that the ad violated a provision of its advertising policy that prohibits advertisements “that the sponsor reasonably should have known is false, fraudulent, misleading, deceptive. . . .”
Applying a recent decision involving similar circumstances, Seattle Mideast Awareness Campaign v. King County, the Ninth Circuit first determined that the advertising space on Metro’s buses under its transit advertising policy was a “nonpublic forum” (also called by the courts a “limited public forum”). In a nonpublic forum, “any subject-matter or speaker-based limitations” must be “reasonable and viewpoint neutral.” The court determined that the ad contained false statements and concluded that Metro’s rejection of the ad was reasonable based on its “interest in preventing the dissemination of false information to a captive audience that it has created by providing public transit services.”
The court also determined that Metro’s rejection of the ad was viewpoint neutral:
Finally, we conclude that Metro’s rejection of the ad for inaccuracy likely was viewpoint neutral. Nothing in the record suggests either that Metro would have accepted the ad with the same inaccuracy if only the ad had expressed a different viewpoint or that Metro has accepted other ads containing false statements.
I think this case merits particular attention because it demonstrates that the government has much more leeway in regulating speech in a nonpublic forum than in a “traditional” and “designated” public forum, such as was addressed in the significant 2015 US Supreme Court decision in Reed v. Town of Gilbert. There, the Court rejected any type of content-based restrictions in the town’s sign code. See the 6/24/2015 MRSC blog post, US Supreme Court Issues Significant Sign Code Decision. As stated by the Ninth Circuit in Seattle Mideast Awareness Campaign v. King County:
In traditional and designated public forums, content-based restrictions on speech are prohibited, unless they satisfy strict scrutiny. In limited public forums, content-based restrictions are permissible, as long as they are reasonable and viewpoint neutral.
(Citations omitted.) (For a thorough analysis of this distinction, see the court’s decision in Seattle Mideast Awareness Campaign v. King County, also involving a proposed, but rejected, King County Metro bus advertisement.)
A key takeaway here is that the context – or forum – in which speech occurs matters for First Amendment freedom of speech purposes. So, for example, King County Metro – which is not required to allow advertising on its buses – established a bus advertising policy that allows ads unless they fall within one of 11 categories, one category of which is “political campaign speech.” Although such speech generally cannot be restricted in a traditional or designated public forum, except in an entirely content neutral manner, the restrictions in the bus ad policy survived judicial scrutiny because they were applied to a nonpublic forum.
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Photo courtesy of Kevin Zolkiewicz.
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