In the case at hand, the American Freedom Defense Initiative sought to run advertising in King County, Wash., that displayed the names and headshots of 16 purported terrorists.
Beneath those images, the ads state prominently: “The FBI Is Offering Up To $25 Million Reward If You Help Capture One Of These Jihadis.”
For King County, the problem was this “statement is demonstrably and indisputably false,” according to the Ninth Circuit’s ruling.
“The FBI is not offering a reward up to $25 million for the capture of one of the pictured terrorists,” Judge Susan Graber wrote for the court. “The FBI is not offering rewards at all, and the State Department offers a reward of at most $5 million, not $25 million, for the capture of one of the pictured terrorists.”
Rather than refuting “those basic facts,” however, the AFDI and its heads, Pamela Geller and Robert Spencer, tried to argue that the FBI might refer any reward queries to the State Department.
Graber called such arguments speculative and “beside the point.”
“It is indisputable that Plaintiffs’ proposed ad is plainly inaccurate as a simple matter of fact,” the ruling states.
The AFDI had submitted the ad after the State Department voluntarily retracted a similar campaign in Seattle amid concerns that minorities who look like the people pictured or share their names might face undue harm.
Unlike the AFDI’s ad, the State Department’s made no mention of a reward.
When King County’s public transit agency, Metro, rejected the AFDI’s ad for conflicting with its ban on “false or misleading” ads, the AFDI filed suit without even discussing the rejection with Metro.
A federal judge denied the AFDI a preliminary injunction, prompting the current appeal to the Ninth Circuit.
The court deferred the matter pending its resolution of a similar case involving a different group’s plan to run advertising in Washington against Israel’s military policy.
After finally looking at the AFDI’s case, Graber rejected its claim that the refusal to run its ad amounts to “viewpoint-based discrimination.”
Such might be the case, Graber said, if Metro rejected an ad for a “trivial” inaccuracy – for example, if an ad was rejected for stating that 963 abortions had been performed in a given year when the correct number was 964.
“The grounds of the rejection here, however, do not raise those concerns,” Graber said.
In addition to the “considerable difference between the FBI … and the State Department,” Graber scoffed that “the difference between $5 million and $25 million — five times as much – is not de minimis or irrelevant.”
Rejections that survive constitutional scrutiny usually concern advertisements that can be easily corrected, but here the AFDI “declined to discuss the rejection with Metro and chose to stand on their factually inaccurate ad,” according to the ruling.
Since the AFDI has alternate fora in Seattle fors its advertising — such as billboards, newspapers and television stations – its demands for an injunction are not justified, the court found.
The AFDI’s attorney, David Yerushalmi of Chandler, Ariz., said in an email that the court “has the forum issue wrong.”
“Like the First Circuit, the Ninth Circuit believes a transit authority may allow all sorts of controversial speech and still treat the ad space as a limited public forum, which in effect allows the government to decide what is good speech and what is bad speech, as long as the government can muster up some reasonable explanation,” Yerushalmi said.
“But there is always some reason for government censorship – that doesn’t make it right or constitutional,” he added.
King County’s counsel has not returned a request for comment on Wednesday.
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