‘Jihadi Reward’ Case|Won’t Go to SCOTUS

WASHINGTON (CN) - An anti-Muslim group failed Monday to secure a Supreme Court audience for its free-speech case, triggering complaints from two conservative justices.

"I see no sound reason to shy away from this First Amendment case," Justice Clarence Thomas wrote, joined by Justice Samuel Alito. "It raises an important constitutional question on which there is an acknowledged and well-developed division among the Courts of Appeals. One of this court's most basic functions is to resolve this kind of question."

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."

Since the FBI was not actually offering up any reward at all for the capture of any of the pictured terrorists, however, King County saw the ad as problematic.

The closest truth would be saying the State Department was offering a reward of at most $5 million for the capture of one of the pictured terrorists, court records show.

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. That rejected State Department campaign meanwhile 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.

This past summer, citing related precedent, the Ninth Circuit upheld King County's decision not to run the AFDI's ad.

The Supreme Court's refusal to take up the case Monday inspired lament from Thomas and Alito, who said transit authorities need clarification on whether their ad spaces constitute public forums where content-based restrictions on advertising are prohionited.

"Whether public transit advertising spaces are designated or limited public forums determines what speech millions of Americans will - or will not - encounter during their commutes," Thomas wrote, adding that the AFDI's case "offers an ideal opportunity to bring clarity to an important area of First Amendment law."

Thomas notes that King County has approved many controversial political ads in the past, including ones from anti-abortion groups and various groups with different opinions on turmoil in the Middle East.

"In the large portions of this country encompassed by the Second, Sixth, Seventh, and D.C. Circuits, AFDI's ad would likely have met a different fate," Thomas wrote. "In those circuits, accepting a wide array of political and issue-related ads demonstrates that the government intended to create a designated (rather than limited) public forum because 'political advertisements ... [are] the hallmark of a public forum.'

"In those circuits, transit authorities that open their ad spaces to political messages must provide compelling justifications for restricting ads, and must narrowly tailor any restrictions to those justifications," Thomas added.

The Ninth Circuit gives transit authorities far more leeway to restrict speech, however, according to the dissent, which notes the same is true of the First Circuit.

Thomas said "materially similar public transit advertising programs should not face such different First Amendment constraints based on geographical happenstance."

"This case would allow us to resolve that division," he added.

For Thomas the politically charged nature of the subject "is all the more reason to grant review."

"Many of the court's landmark First Amendment decisions have involved contentious speech in times of national turmoil," the dissent continues, citing attempts to prosecute man who wore a jacket in court that read "F - the Draft" during the Vietnam War.

Also in the 60s, the court considered "whether a public school could punish students who wear black armbands as symbols of antiwar protest," Thomas wrote.

The Westboro Baptist Church meanwhile defended their funeral-protesting practices at the Supreme Court just four years ago.

In addition to animal-crush videos, the justices have also looked at license plates adorned by the Confederate flag, Thomas added.

Categorizing the AFDI as a hate group, the Southern Poverty Law Center has the group's president, Pamela Geller, "the anti-Muslim movement's most flamboyant figurehead."

In May 2015, Geller invited controversial Dutch politician Geert Wilders to an art exhibit in Texas offering cash prizes for depictions of Muhammad. At that exhibit, two gunmen were killed after they opened fire outside the event

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