AFDI sought to run an advertisement that was nearly identical to a U.S. State Department advertisement. Source: American Freedom Law Center.

In a case that has been percolating for more than five years and which we reported on last year, the Ninth Circuit Court of Appeals reversed a district court order granting summary judgment in favor of King County, Washington, finding that the county’s bus advertising policy and rejection of a proposed advertisement violated the First Amendment.  The Ninth Circuit had previously affirmed the district court’s order denying a preliminary injunction to the plaintiff, American Freedom Defense Initiative, a nonprofit concerned with the “Islamization of America.”  The advertisements that AFDI desired to run showed the faces of individuals on the nation’s “most wanted” list of jihadists.

For purposes of brevity, the facts and prior disposition of the case can be found in our earlier post.

In its analysis, the Ninth Circuit confirmed that advertising space on King County’s public buses constitutes a nonpublic forum, thus requiring the Seattle bus system’s advertising policy to be reasonable in light of the purposes of the forum, and viewpoint neutral.  The Ninth Circuit clarified that reasonableness is measured by reviewing the forum’s purpose, whether the standards for rejecting an advertisement are definite and objective, and by an independent review of the record.

The court found that the transit operator’s policies prohibiting false or misleading advertising were reasonable.  However, it disagreed that the policy prohibiting demeaning or disparaging advertising was viewpoint neutral.  Citing to the Supreme Court’s 2017 decision in Matal v. Tam, which held a similar prohibition to be viewpoint based, the court found offensive speech is, by its nature, expressive of a particular viewpoint and thus a prohibition on such speech is not viewpoint neutral.  And while the court found that the transit operator’s policy prohibiting advertising that would be disruptive to its transit service was viewpoint neutral and facially reasonable, it found the transit operator’s rejection of AFDI’s advertising to be unreasonable.  Namely, the court pointed to a U.S. State Department advertisement run by the transit operator that showed faces of global terrorists that was nearly identical to the advertisement rejected by the operator.  Because the bus system could not demonstrate harm to its operations from the State Department advertisement, the court found that the rejection of AFDI’s advertising was unreasonable.

Am. Freedom Defense Initiative v. King Cnty., 904 F.3d 1126 (9th Cir. 2018).

The advertisement that the Freethought Society wished to place on Lackawanna County buses. Source: ACLU of Pennsylvania.

In a decision last month, an atheist group lost its challenge to an advertising policy promulgated by the transit system for Lackawanna County, Pennsylvania, COLTS, that prohibited, among other things, religious messages.  Following a trial, a federal district court found in favor of the transit agency, on the grounds that its advertising space was a limited public forum and the policy was viewpoint neutral.  The decision follows several recent decisions that have found transit advertising policies constitutional.

Beginning in 2012, the atheist group, the Freethought Society of Northeastern Pennsylvania, sought to place advertising on buses owned by COLTS.  The Society’s initial advertising attempt was blocked by COLTS on the ground that its advertisement was controversial, in violation of the agency’s advertising policy.  The transit agency rejected similar advertisements submitted in 2013 and 2014 as well, even after COLTS changed its advertising policy to more explicitly prohibit political or religious messages. Continue Reading In Another Transit Advertising Case, Federal District Court Upholds “No Religion” Policy

Last December, we reported on a federal district court’s denial of a motion for preliminary injunction relating to the Archdiocese of Washington’s unsuccessful efforts to post Christmas-season advertising on transit vehicles owned and operated by the Washington Metropolitan Area Transit Authority.  Unfortunately for the Archdiocese, Christmas did not come in July either.  Last week, the federal Court of Appeals for the D.C. Circuit affirmed the denial of preliminary injunctive relief.

The facts of the case are available on our post regarding the district court’s decision.

On appeal, the appellate court (which included as a panelist Supreme Court nominee Judge Kavanaugh) agreed with the district court.  First, the court agreed that the advertising space on WMATA transit vehicles constitutes a non-public forum, where the government can exercise greater control over content yet must adhere to requirements of viewpoint neutrality and reasonableness.  In so ruling, the D.C. Circuit joins a majority of federal appeals courts that have now ruled that transit advertising spaces are non-public fora. Continue Reading No Christmas in July for Archdiocese of Washington; Appeals Court Affirms Denial of Preliminary Injunction

A copy of one of the advertisements that the Archdiocese of Washington intended to place on WMATA buses. Source: Archdiocese of Washington.

The Catholic Church’s efforts to “Keep Christ in Christmas” have been stymied by a District of Columbia judge this holiday season.  Earlier this month, the federal district court in Washington rejected a request by the Archdiocese of Washington to enjoin the Washington Metropolitan Transit Authority’s enforcement of its transit advertising policy.  The Archdiocese wished to display, during the holiday season, an advertisement on WMATA transit vehicles that contained the language “Find the Perfect Gift” and a religious image.  The advertisement was intended to encourage readers to remember the religious underpinnings of Christmas.  WMATA rejected the advertisement because it violated the authority’s rule prohibiting advertising that advocates or opposes religion. Continue Reading Reason for the Season? D.C. Court Upholds Transit Authority’s Rejection of Religious Holiday Advertising

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 Continue Reading First Amendment Still Doesn’t Require Seattle Transit System to Run “Faces of Global Terrorism” Ad

A Spokane Transit Authority bus. Source: Spokane Public Radio.

The union representing Spokane Transit Authority employees will have an opportunity to continue its challenge to the STA’s bus advertising policy, now that a federal court has denied the transit authority’s motion to dismiss.

Like many transit agencies, the STA has an advertising policy.  Until November 2016, the STA delegated administration and enforcement of the policy to an advertising contractor called ooh Media LLC.  The policy allows “Commercial and Promotional Advertising” and “Public Service Announcements.”  Commercial and promotional advertising includes general commercial advertisements for products, services, events, and the like.  Public service announcements are required to meet three criteria: the sponsor must be a governmental or 501(c)(3) nonprofit entity, the announcement must relate to one of five topics (including public health, safety or personal well-being, family or child social services, broad-based contribution campaigns, or services for low-income people or persons with disabilities), and the announcement may not include a commercial message.  The policy also prohibits deceptive advertising, political speech, or ideological or religious messages. Continue Reading Labor Union’s Challenge to Spokane Bus Advertising Rules Moves Forward

The advertisement above was proposed to be placed in the Philadelphia airport. Source: ACLU of Pennsylvania.

In August, the Third Circuit Court of Appeals affirmed a lower court decision holding that the Philadelphia airport’s advertising policy was unreasonable in light of the purposes of the advertising space, in violation of the First Amendment.  The airport had previously enacted a policy that prohibited the display of any noncommercial advertising in city-owned advertising space.

The challenge was brought by the National Association for the Advancement of Colored People (NAACP), which wanted to place an advertisement in the airport that read “Welcome to America, home to 5% of the world’s people and 25% of the world’s prisoners.  Let’s build a better America together.  NAACP.org/smartandsafe.”  The city rejected the advertisement.

The appeals court assumed for purposes of argument that the city’s airport advertising space was a limited public forum, but found that the advertising policy was not reasonable.  The city’s purported interests in the prohibition of noncommercial advertising were to raise revenue and to avoid controversy in the airport.  The court found that the prohibition on noncommercial advertising did not reasonably advance either goal, because there was no evidence that the restriction on noncommercial advertising would advance the airport’s revenue goals and the airport was otherwise full of televisions and newsstands that already contained noncommercial speech that could be controversial.

The Third Circuit’s analysis is interesting in several respects.  The court undertook a long, detailed analysis of the litigation burdens in a limited public forum case.  Philadelphia argued that the court should analyze the policy under the rational basis standard of review, where the burden of proof is on the plaintiff to demonstrate that the government’s policy was not rationally related to a legitimate governmental interest.  However, the court, relying on several Supreme Court decisions, found that because the case addressed a fundamental right—the freedom of speech—the burden of proving that the policy was reasonable in light of the purposes of the forum was on the city.  This approach to burdens in limited public forum cases imposes a higher standard on the government to ensure that a regulation is actually reasonable.

The court also went into a lengthy discussion about how the city could meet its burden in this instance.  Again relying on prior Supreme Court precedent, the court found that a government need not back up every conclusion regarding speech in a limited forum with evidence, but some record evidence could be appropriate in helping the city to meet its burden.  Noting the holding in United States v. Kokinda, the court indicated that common sense and historical experience can also underlie a government policy restricting certain speech from a limited public forum.  With respect to the Philadelphia airport advertising policy, the court found that the city had provided neither record evidence nor any common sense rationale for the noncommercial speech prohibition.  In particular, the court focused on the deposition of one of the airport’s managers, who admitted in his deposition that the noncommercial ban did not actually do anything to further the city’s interest in revenue and could not establish how the ban actually helped travelers avoid potentially offensive content.

This decision follows two other recent cases out of Chicago and Fort Wayne that have also held advertising policies in limited public fora to be unreasonable.

N.A.A.C.P. v. City of Philadelphia, 834 F.3d 435 (3d Cir. 2016).

Above, an advertisement that Women’s Health Link wished to place on the side of Citilink buses in Fort Wayne. Source: Alliance Defending Freedom.

In a case that we reported on earlier this year, last month, the Seventh Circuit Court of Appeals reversed an Indiana district court’s grant of summary judgment to the Fort Wayne public transit system, Citilink, holding that the transit company’s rejection of an advertisement for a healthcare organization was unreasonable in light of Citilink’s advertising policy. Continue Reading Seventh Circuit Finds Fort Wayne Bus Advertising Policy Unreasonable

A women’s health counseling service was denied in its efforts to advertise on buses operated by the Fort Wayne, Indiana public bus system.  The bus system’s advertising policy prohibited noncommercial advertising of any nature but allows the display of public service announcements.  The federal district court found that the bus advertising space constituted a nonpublic forum, and that the policy and its implementation by the bus system were viewpoint neutral, and thus there was no First Amendment violation.

Women’s Health Link, Inc. v. Fort Wayne Pub. Transp. Corp., ___ F. Supp. 3d ___, 2016 WL 67288 (N.D. Ind. Jan. 5, 2016)