Am. Freedom Def. Initiative v. King Cnty., 17-35897

Citation904 F.3d 1126
Decision Date27 September 2018
Docket NumberNo. 17-35897,17-35897
Parties AMERICAN FREEDOM DEFENSE INITIATIVE; Pamela Geller; Robert Spencer, Plaintiffs-Appellants, v. KING COUNTY, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Robert Joseph Muise (argued), American Freedom Law Center, Ann Arbor, Michigan; David Yerushalmi, American Freedom Law Center, Washington, D.C.; for Plaintiffs-Appellants.

David J. Hackett (argued), Senior Deputy Prosecuting Attorney, Civil Division Appellate Chair, King County Prosecuting Attorney's Office, Seattle, Washington, for Defendant-Appellee.

Eugene Volokh, Attorney; Matthew Delbridge, Terran Hause, and Cheannie Kha, Law Students; Scott & Cyan Banister First Amendment Clinic, UCLA School of Law, Los Angeles, California; for Amicus Curiae Pennsylvania Center for the First Amendment.

Before: Michael Daly Hawkins, Susan P. Graber, and Ronald M. Gould, Circuit Judges.

GRABER, Circuit Judge:

King County provides public transportation in the greater Seattle metropolitan area. The County finances its transit operations in part by selling advertising space on the exterior of buses. Although many municipalities restrict advertising to commercial publicity, King County accepts all ads that do not contain specified categories of prohibited content. This case requires us to consider three of those categories: false statements, disparaging material, and content that may disrupt the transit system. Plaintiffs American Freedom Defense Initiative, Pamela Geller, and Robert Spencer submitted an ad concerning global terrorism that contained, in the County's view, all three types of prohibited content. Plaintiffs then submitted a revised, factually accurate ad, which the County rejected under the remaining two categories. Plaintiffs brought this action under 42 U.S.C. § 1983, alleging that the County unconstitutionally refused to display their ads. The district court granted summary judgment to the County, and Plaintiffs timely appeal.

Reviewing de novo, Dutta v. State Farm Mut. Auto. Ins. Co. , 895 F.3d 1166, 1171 (9th Cir. 2018), we affirm in part and reverse in part. The County permissibly rejected the factually inaccurate ad because the First Amendment does not require the County to display patently false content in a nonpublic forum. But the County's rejection of the revised ad does not withstand scrutiny. Applying Matal v. Tam , ––– U.S. ––––, 137 S.Ct. 1744, 198 L.Ed.2d 366 (2017), we hold that the County's disparagement standard discriminates, on its face, on the basis of viewpoint. Finally, the disruption standard is facially valid but, on this record, we conclude that the County unreasonably applied the standard to Plaintiffs' ad.

FACTUAL AND PROCEDURAL HISTORY

In 2013, the United States Department of State submitted the following ad to King County's transit agency, Metro:

Metro approved the ad without fanfare, and it appeared on Metro's buses for nearly three weeks starting on June 6, 2013. The ad eventually drew the attention of a few members of the public. Metro received two letters from community leaders expressing concern that the ads would lead to more hate crimes, a letter from a member of Congress along the same lines, and two complaints from Metro-area residents who worried that the ads were "incendiary" and "inflammatory." Metro began a process of reevaluating its approval but, before the reevaluation concluded, the State Department voluntarily retracted the ad.1

About a month later, Plaintiffs submitted their own ad, modeled on the State Department's placard:

Metro rejected Plaintiffs' ad, concluding that it failed to comply with three substantive criteria of Metro's transit advertising policy. In Metro's view, the ad made false statements; it contained demeaning or disparaging content; and it foreseeably would harm or disrupt the transit system. Metro's advertising policy prohibits all three categories of content (and eight additional categories not at issue here).

Plaintiffs then filed this action, under 42 U.S.C. § 1983, alleging that Metro's rejection of the ad violated the First and Fourteenth Amendments. The district court denied Plaintiffs' motion for a preliminary injunction, and Plaintiffs appealed. In a published opinion, we affirmed the district court's denial of a preliminary injunction. Am. Freedom Def. Initiative v. King County (AFDI) , 796 F.3d 1165, 1173 (9th Cir. 2015).

We held that Metro's transit advertising program is a nonpublic forum and that, accordingly, Metro's substantive criteria must be reasonable and viewpoint neutral. Id. at 1169–70. We assessed the factual accuracy of the ad as follows:

Plaintiffs' proposed ad states, in prominent text: "The FBI Is Offering Up To $25 Million Reward If You Help Capture One Of These Jihadis." That statement is demonstrably and indisputably false. The FBI is not offering a reward up to $25 million for the capture of one of the pictured terrorists. The FBI is not offering rewards at all, and the State Department offers a reward of at most $5 million, not $25 million, for the capture of one of the pictured terrorists. Plaintiffs do not, and cannot, refute those basic facts.

Id. at 1171 (footnote and paragraph break omitted). We concluded that Metro's application of its falsity prohibition was likely both reasonable and viewpoint neutral. Id. at 1171–72. The false statements were indisputable, patent, and easily correctable, undermining any argument that Metro secretly harbored an unconstitutional motive. Id. We expressly declined to assess Metro's other two grounds for rejection: disparagement and disruption to the transit system. Id. at 1172. Because Plaintiffs were unlikely to succeed on the merits and because the other relevant factors disfavored a preliminary injunction, we concluded that the district court did not abuse its discretion in declining to issue a preliminary injunction. Id. at 1172–73.

After our decision, Plaintiffs submitted for approval a revised ad:

The revised version is substantially the same as the original, but it no longer includes false statements. Metro rejected the new ad on two grounds: disparagement and disruption to the transit system. Plaintiffs filed an amended complaint, challenging Metro's rejection of both the original and revised ads as a violation of their right to free speech under the First Amendment.2 After discovery, the parties filed cross-motions for summary judgment. The district court granted summary judgment to the County on all counts, and Plaintiffs timely appeal.

DISCUSSION

Metro's bus advertising program is a nonpublic forum (also called a limited public forum). AFDI , 796 F.3d at 1170 ; Seattle Mideast Awareness Campaign v. King County (SeaMAC) , 781 F.3d 489, 498 (9th Cir. 2015). Accordingly, strict scrutiny does not apply; instead, "Metro's rejection of Plaintiffs' advertisement[s] must be reasonable and viewpoint neutral." AFDI , 796 F.3d at 1170. We assess the reasonableness of a rejection in three ways: (1) by asking whether the rejection is reasonable in light of the forum's purpose; (2) by asking whether Metro's standard is sufficiently definite and objective to prevent arbitrary or discriminatory enforcement by County officials; and (3) by reviewing the record independently to determine whether the record supports Metro's conclusion. Id. at 1169–71. In considering viewpoint neutrality, we determine whether Metro's standard discriminates, on its face or as applied to the specific ad, on the basis of viewpoint. Id. at 1171.

A. Falsity Standard

The falsity clause in Metro's transit advertising policy states that Metro will reject any ad that is:

False or Misleading . Any material that is or that the sponsor reasonably should have known is false, fraudulent, misleading, deceptive or would constitute a tort of defamation or invasion of privacy.

In the earlier appeal, we explained at length why Plaintiffs were unlikely to succeed on their challenge to Metro's rejection of their original, factually inaccurate ad. We held that the falsity standard, facially and as applied to Plaintiffs' ad, was likely both reasonable and viewpoint neutral. Id. at 1170–72. Having reviewed the full factual record and having carefully considered the parties' arguments, we adopt our earlier, tentative analysis as our final analysis: The falsity standard meets constitutional scrutiny, both facially and as applied.

Falsity is a reasonable standard in light of the purpose of the transit system. Id. at 1170. The falsity standard is definite and objective, at least as applied to Plaintiffs' patently false ad. Id. at 1170–71. The record supports Metro's conclusion because Plaintiffs cannot—and do not—argue that the ad is accurate. Id. at 1171. Finally, the rejection was viewpoint neutral because nothing in the record suggests that Metro would accept the same inaccuracy in a different ad or that Metro has accepted other ads containing false statements. Id. In sum, Metro permissibly rejected Plaintiffs' original ad on the ground of falsity, and we need not reach the other two grounds for its rejection. Id. at 1172 ; accord SeaMAC , 781 F.3d at 499. We therefore affirm the district court's grant of summary judgment to the County on Plaintiffs' challenge to Metro's rejection of their original ad.

Because Metro rejected Plaintiffs' revised ad on the grounds of disparagement and disruption, we next consider those standards.

B. Disparagement Standard

The disparagement clause in Metro's transit advertising policy states that Metro will reject any ad that is:

Demeaning or Disparaging . Advertising that contains material that demeans or disparages an individual, group of individuals or entity. For purposes of determining whether an advertisement contains such material, the County will determine whether a reasonably prudent person, knowledgeable of the County's ridership and using prevailing community standards, would believe that the advertisement contains material
...

To continue reading

Request your trial
11 cases
  • Garnier v. O'Connor-Ratcliff
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 27 Julio 2022
    ...that would be "sufficiently definite and objective to prevent arbitrary or discriminatory enforcement." Am. Freedom Def. Initiative v. King County , 904 F.3d 1126, 1130 (9th Cir. 2018). The Trustees' suggestion that they had an unspoken policy against repetitive comments does not satisfy th......
  • Am. Freedom Defense Initiative v. Suburban Mobility Auth. for Reg'l Transp. (Smart)
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 23 Octubre 2020
    ...conclusion when considering speech restrictions by a public-transit authority in the Seattle area. Am. Freedom Def. Initiative v. King County , 904 F.3d 1126, 1130–33 (9th Cir. 2018). That entity prohibited bus advertisements that demeaned or disparaged groups. Id. at 1130–31. The Ninth Cir......
  • People for the Ethical Treatment of Animals, Inc. v. Shore Transit
    • United States
    • U.S. District Court — District of Maryland
    • 18 Enero 2022
    ...an individual, group of individuals or entity" constitutes viewpoint discrimination under Matal. Am. Freedom Def. Initiative v. King Cnty. , 904 F.3d 1126, 1130–31 (9th Cir. 2018). The Ninth Circuit explained that " Matal applies with full force to the disparagement clause here." Id. at 113......
  • Garnier v. O'Connor-Ratcliff
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 27 Julio 2022
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT