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.