The First Amendment protects an organization that wants to run ads with images of alleged terrorists on public buses, the U.S. Court of Appeals, Ninth Circuit has ruled, reversing a Washington federal court judge.
In 2013, the U.S. Department of State submitted an ad to Metro, King County’s transit agency, featuring head shots of more than a dozen alleged terrorists. Metro approved the “Faces of Global Terrorism” ad and it ran on Seattle buses for almost three weeks. The State Department voluntarily retracted the ad after complaints from community leaders, residents and lawmakers that the ads were “incendiary” and “inflammatory.”
Roughly one month later, the American Freedom Defense Initiative submitted its own ad modeled on the State Department’s version. Metro rejected the ad based on its failure to comply with three substantive criteria of its transit advertising policy. First and foremost, the ad contained a false statement that “The FBI Is Offering Up To $25 Million Reward If You Help Capture One Of These Jihadis.”
A federal court judge upheld Metro’s rejection and the group tried again, submitting a second ad that again featured the headshots but changed the reward statement to read: “Rewards for Justice: Stop a Terrorist. Save Lives.”
Again, Metro rejected the ad, this time relying on two categories of prohibited content: disparaging material and content that may disrupt the transit system. The organization responded with an amended complaint, and both parties moved for summary judgment. The district court sided with the transit agency, but the federal appellate panel reversed.
Metro’s rejection of the advertisement must be reasonable and viewpoint-neutral, the court explained, but neither the disparagement standard nor the disruption standard met these requirements.
The transit advertising policy states that Metro will reject any ad on the following basis: “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 that ridicules or mocks, is abusive or hostile to, or debases the dignity or stature of any individual, group of individuals or entity.”
Relying on the Supreme Court’s decision in Matal v. Tam—where the unanimous justices struck down Section 2(a) of the Lanham Act, which prohibited trademark registration of disparaging marks—the Ninth Circuit similarly found Metro’s disparagement standard discriminatory on the basis of viewpoint.
“Matal applies with full force to the disparagement clause here,” the panel wrote. “Metro’s disparagement clause, like the Lanham Act’s disparagement clause, requires the rejection of an ad solely because it offends. Giving offense is a viewpoint, so Metro’s disparagement clause discriminates, on its face, on the basis of viewpoint.”
Although Metro emphasized that the disparagement clause applied equally to all proposed ads, “the fact that no one may express a particular viewpoint—here, giving offense—does not alter the viewpoint-discriminatory nature of the regulation,” the court said.
The court reached the same conclusion with regard to the agency’s disruption standard, which states that Metro will reject any ad on the following basis: “Harmful or Disruptive to the Transit System. Advertising that contains material that is so objectionable as to be reasonably foreseeable that it will result in harm to, disruption of or interference with the transportation system. 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 material is so objectionable that it is reasonably foreseeable that it will result in harm to, disruption of or interference with the transportation system.”
Although the clause survived a facial challenge, the Ninth Circuit noted that experience belied Metro’s contention that harm to the transit system was reasonably foreseeable based on the prior run of the State Department advertisement.
“Metro received a small number of complaints and expressions of concern, but Metro’s transit system did not experience any harm, disruption or interference,” the court wrote. “Applying the disruption standard … we cannot conclude that a reasonably prudent person would reasonably foresee harm to the transit system from Plaintiffs’ ad. Accordingly, we hold that Metro’s rejection of Plaintiffs’ revised ad on the ground of disruption to the transit system was unreasonable.”
Holding that neither of the agency’s reasons for rejecting the revised ad withstood First Amendment scrutiny, the panel reversed summary judgment in favor of the transit agency.
To read the opinion in American Freedom Defense Initiative v. King County, click here.
Why it matters: The Ninth Circuit relied heavily on the Supreme Court’s opinion in Matal, finding that the disparagement clause in the transit agency’s policy mirrored Section 2(a) of the Lanham Act that was struck down by the justices. However, the decision stands in contrast to an opinion from the D.C. Circuit involving as plaintiff the same organization, which was seeking to run an ad on District of Columbia transit featuring a “Draw Muhammad” contest. Finding the D.C. transit authority’s policy content-neutral, the federal appellate panel upheld its rejection of the ad earlier this year.