Am. Freedom Defense Initiative v. King Cnty.
| Decision Date | 12 August 2015 |
| Docket Number | No. 14–35095.,14–35095. |
| Parties | AMERICAN FREEDOM DEFENSE INITIATIVE; Pamela Geller; Robert Spencer, Plaintiffs–Appellants, v. KING COUNTY, Defendant–Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert Joseph Muise (argued), American Freedom Law Center, Ann Arbor, MI; and David Yerushalmi, American Freedom Law Center, Washington, D.C., for Plaintiffs–Appellants.
David J. Hackett (argued) and Linda M. Gallagher, Senior Deputy Prosecuting Attorneys, Seattle, WA, for Defendant–Appellee.
Sarah A. Dunne, Legal Director, and La Rond M. Baker, ACLU of Washington Foundation; and Venkat Balasubramani, Focal PLLC, Seattle, WA, for Amicus Curiae American Civil Liberties Union of Washington.
Appeal from the United States District Court for the Western District of Washington, Richard A. Jones, District Judge, Presiding. D.C. No. 2:13–cv–01804–RAJ.
Before: MICHAEL DALY HAWKINS, SUSAN P. GRABER, and RONALD M. GOULD, Circuit Judges.
Defendant King County's public transit agency, Metro, operates an extensive public transportation system in the greater Seattle metropolitan area, with the primary purpose of providing safe and reliable public transportation. Like many transit agencies, Metro finances its operations in part by selling advertising space, including on the exteriors of its buses. Advertisements must meet guidelines specified in Metro's transit advertising policy. In 2013, Metro rejected an advertisement submitted by Plaintiff American Freedom Defense Initiative, a nonprofit entity headed by Plaintiffs Pamela Geller and Robert Spencer, because Metro concluded that the ad failed to meet the guidelines. Plaintiffs declined to discuss the rejection with Metro and, instead, filed this action under 42 U.S.C. § 1983. Arguing that Metro's rejection violated the First Amendment, Plaintiffs sought a preliminary injunction requiring Metro to publish the ad. The district court denied the motion, and Plaintiffs filed this interlocutory appeal. Because we conclude that the district court did not abuse its discretion, Friends of the Wild Swan v. Weber, 767 F.3d 936, 942 (9th Cir.2014), we affirm.
Metro's 2012 transit advertising policy, which was in effect at all times relevant to this appeal, requires that ads on Metro's buses meet certain substantive criteria. In general, advertisements are allowed unless they fall within one of the following eleven categories listed in section 6.2 of the policy:
Metro enforces the criteria by screening advertisements for compliance with the policy.
In 2013, the United States Department of State submitted the following advertisement:
Metro reviewed the advertisement, concluded that it met the transit advertising policy's substantive criteria and, accordingly, approved it for display on the exterior of Metro's buses.
After the ad began appearing on bus exteriors, Metro received a small number of complaints from the public, including from a member of Congress and at least two community leaders. The complaints characterized the ad as offensive and expressed concerns that the ad would increase mistreatment of racial, ethnic, and religious minorities who have a similar appearance or name to the persons shown in the ad. In response to the complaints, Metro began a process of reevaluating its approval of the ad. Before that reevaluation concluded, the State Department voluntarily retracted the ad.
The next month, Plaintiffs submitted their own advertisement, which is very similar—but not identical—to the State Department's ad:
Metro rejected the ad because, in Metro's view, it failed to comply with sections 6.2.4, 6.2.8, and 6.2.9 of the transit advertising policy. Those provisions prohibit advertisements that are false or misleading, demeaning or disparaging, or harmful or disruptive to the transit system.
Plaintiffs then filed this action under 42 U.S.C. § 1983. Plaintiffs allege that Metro's rejection of the ad violated their constitutional rights of free speech, equal protection, and due process. Plaintiffs moved for a preliminary injunction on the ground that they are likely to prevail on their First Amendment claim. The district court denied the motion, concluding that Plaintiffs had established none of the requirements for a preliminary injunction. Plaintiffs timely filed this interlocutory appeal.
We initially deferred submission pending this court's resolution of Seattle Mideast Awareness Campaign (“SeaMAC”) v. King County, 781 F.3d 489 (9th Cir.2015). After that decision upheld Metro's rejection of a public-issue advertisement under an earlier version of Metro's advertising policy, we ordered supplemental briefing on the effect of that case. We now affirm.
“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).
Plaintiffs argue that they are likely to prevail on the merits of their claim that Metro's rejection of the ad violated the First Amendment's guarantee of the freedom of speech. Our recent decision in SeaMAC guides our analysis. That case concerned Metro's rejection of a proposed anti-Israel advertisement under an earlier version of Metro's transit advertising policy. SeaMAC, 781 F.3d at 493–95. Metro had rejected the ad, in part on the ground that the ad was harmful or disruptive to the transit system. Id. at 493 & n. 1, 495. SeaMAC sued under 42 U.S.C. § 1983, alleging a violation of the First Amendment. Id. at 495. The district court granted summary judgment to King County, and SeaMAC appealed. Id.
We first considered, at great length, the type of forum that Metro had created on the exteriors of its buses. Id. at 495–99. We held that Metro had created only a nonpublic forum and not a designated public forum.1 Id. at 498. We clarified that, even in a nonpublic forum, the government may not impose “whatever arbitrary or discriminatory restrictions on speech it desires[;] ... any subject-matter or speaker-based limitations must still be reasonable and viewpoint neutral.” Id. at 499. We then held that Metro's application of the prohibition against ads considered harmful or disruptive to the transit system met both requirements. Id.
Under the heading of the “reasonableness” requirement, SeaMAC rejected three separate arguments that are relevant here. First, we held that the standard was reasonable “in light of the purpose served by the forum” because the intended purpose of Metro's buses “is to provide safe and reliable public transportation,” and prohibiting harm or disruption to that purpose is reasonable. Id. at 499–500. Second, we held that the standard is “sufficiently definite and objective to prevent arbitrary or discriminatory enforcement by County officials,” chiefly because the standard is tied to an objectively measurable criterion: whether the ad caused harm or disruption to the transit system. Id. at 500. Third, we held that we must ensure that the perceived threat to the transit system was legitimate: “We must independently review the record, without deference to the threat assessment made by County officials, to determine whether it shows that the asserted risks were real.”Id. at 500–01 (internal quotation marks and brackets omitted). In that regard, we agreed with Metro's assessment of disruption to the transit system because of the significant number, and serious nature, of the threats that Metro had received. Id. at 501 ; see id. at 494–95 (). Finally, we held that Metro's rejection of the proposed ad was viewpoint neutral, primarily because Metro decided to reject all pending ads on the topic, both pro-Israel and pro-Palestine. Id. at 501–03.
Turning to the case at hand, Plaintiffs first contend that the advertising space on buses is a designated public forum. We disagree. As noted above, we held in SeaMAC that the ad space under the earlier version of Metro's transit advertising policy was a nonpublic forum only. The earlier policy and the 2012 policy differ slightly, but those differences either confirm that Metro intended to create a nonpublic forum or have no effect on the forum analysis.
In conducting the forum analysis, “we focus on the government's intent.” Id. at 496. The 2012 policy states, in a lengthy section dedicated to addressing the type of forum created, that “the County does not intend its acceptance of transit advertising to convert [its ad spaces] into open public forums.” See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 803, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985) (); see also Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666, 680, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998) (). Additionally, all three of the factors discussed by SeaMAC are identical under the earlier and current policies: (1) Metro adopted a pre-screening process (the policy at issue); (2) Metro has rejected a range of proposed ads, including other...
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