Does the First Amendment require a public transit system to run an ad alerting riders to the “Faces of Global Terrorism”? No, concluded a federal district court last month. The case, which remains on appeal, comprises the latest salvo in a years-long battle between the American Freedom Defense Initiative (AFDI), a nonprofit specializing in creating and litigating advertisements decrying the “Islamization of America,” and King County Metro Transit (Metro), the Seattle area’s mass transportation system.
After AFDI submitted what Metro rejected as a false and misleading advertisement, and the Ninth Circuit refused to overturn a district court order denying AFDI’s request for a preliminary injunction, AFDI returned with a new version of its ad. That latest iteration again featured headshots of wanted terrorists below the words “Faces of Global Terrorism,” and Metro again declined to run it, citing its policy against ads that demean or disparage particular groups of people. Such ads, Metro believes, tend to harm or disrupt its goal of running a safe and efficient transit system, and Metro suggested to AFDI some ways in which it could change the ad to comply with its policy. AFDI responded to those suggestions with a lawsuit claiming Metro’s advertising policy restriction violated the First Amendment.
On the parties’ cross motions for summary judgment, the district court rejected AFDI’s position. AFDI having conceded that Metro’s advertising space constituted a “nonpublic forum” in which the agency’s policy restrictions need only be reasonable and viewpoint-neutral, the court considered (1) whether Metro’s prohibition on demeaning and disparaging was reasonable in light of the transit system’s purpose; (2) whether the terms “demeaning” and “disparaging” offered regulators sufficient guidance; and (3) whether the policy actually advanced its stated purpose. The court thought it clear that Metro’s policy served its ends with sufficient particularity, and moreover concluded that, because Metro had indicated its willingness to run the ad with several modifications to its tone, AFDI could not prove viewpoint discrimination. Thus, the court granted summary judgment in Metro’s favor.
We will continue to follow this case to the extent it continues to develop on appeal.