American Freedom Defense Initiative v. King County, 092718 FED9, 17-35897

Docket Nº:17-35897
Opinion Judge:GRABER, CIRCUIT JUDGE.
Party Name:American Freedom Defense Initiative; Pamela Geller; Robert Spencer, Plaintiffs-Appellants, v. King County, Defendant-Appellee.
Attorney: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 Attorn...
Judge Panel:Before: Michael Daly Hawkins, Susan P. Graber, and Ronald M. Gould, Circuit Judges.
Case Date:September 27, 2018
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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American Freedom Defense Initiative; Pamela Geller; Robert Spencer, Plaintiffs-Appellants,

v.

King County, Defendant-Appellee.

No. 17-35897

United States Court of Appeals, Ninth Circuit

September 27, 2018

Argued and Submitted August 29, 2018 Seattle, Washington

Appeal from the United States District Court D.C. No. 2:13-cv-01804-RAJ for the Western District of Washington Richard A. Jones, District Judge, Presiding

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.

SUMMARY[*]

Civil Rights

The panel affirmed in part and reversed in part the district court's summary judgment in an action brought under 42 U.S.C. § 1983 alleging that King County unconstitutionally refused to display plaintiffs' submitted ads concerning global terrorism on the exterior of its public buses.

King County accepts ads for public display unless they contain certain categories of prohibited content, including false statements, disparaging material, and content that may disrupt the transit system. Plaintiffs 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.

The panel first determined that the County's bus advertising program was a nonpublic forum. The panel held that 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. The panel further held that the County's rejection of the revised ad did not withstand scrutiny. Applying Matal v. Tam, 137 S.Ct. 1744 (2017), the panel held that the County's disparagement standard discriminates, on its face, on the basis of viewpoint. Finally, the panel held that the disruption standard was facially valid but that, on this record, the County unreasonably applied the standard to plaintiffs' ad.

OPINION

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, 137 S.Ct. 1744 (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:

(Image Omitted)

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:

(Image Omitted)

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...

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