County’s Refusal to Run Anti-Terrorist Bus Ad Unconstitutional, Federal Court Rules
Earlier this year, the U.S. Court of Appeals for the Ninth Circuit held that a Washington county violated the First Amendment by refusing to run an anti-terrorism ad on the side of a public bus. The Ninth Circuit has jurisdiction over several states’ courts including the district courts in Alaska, Arizona, California, and Hawaii.
The Background
The matter involved a lawsuit filed by the American Freedom Defense Initiative (AFDI) against King County Metro (KCM). KCM had refused to run an advertisement featuring images of people who were exclusively of Middle Eastern and Asian descent that were placed directly under the words “Faces of Global Terrorism.” The AFDI modeled this advertisement after a similar one from 2013 that was run by the U.S. Department of State in the metro system. After receiving complaints from the general public of racial profiling in the community, the ads were taken down.
KCM has three requirements for advertisements that are placed on their transit system:
● The ad cannot make false statements
● The ad cannot contain disparaging or demeaning content
● The ad cannot foreseeably disrupt or cause harm to the transit system.
The first ad submitted by AFDI was rejected by KCM on the basis that it contained false statements. That initial ad claimed the FBI was offering a substantial reward for the capture of “these jihadis.” The AFDI removed the false statement and resubmitted, but was rejected a second time by the KCM for content and disruption.
The Decision
When analyzing the case, the Ninth Circuit noted that because KCM’s advertising is a nonpublic forum strict scrutiny does not apply. Instead, KCM’s rejection of AFDI’s advertisements must be reasonable and viewpoint neutral to be lawful. The court reasoned that given offense is a viewpoint, KCM’s non-disparagement criteria discriminates on the basis of view point on its face. KCM argued the non-disparagement criteria for its ads applies equally to all that are proposed; in other words, none may give offense regardless of the ad’s content. The court found, however, that because no one may express a particular viewpoint – in other words, the regulation does not allow for others to a viewpoint that gives offense – the regulation is viewpoint discriminatory.
The Ninth Circuit remanded the case to the district court for further proceedings. The case is American Freedom Defense Initiative v. King County.
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