Terrorist Bus Ad Is Protected Free Speech, Ninth Circuit Finds

SEATTLE (CN) – A Washington county violated an anti-Muslim group’s free speech rights when it refused to run bus ads displaying the names and headshots of 16 purported terrorists, the Ninth Circuit ruled Thursday.

“We cannot conclude that the appropriate limitation on subject matter is ‘offensive speech’ any more than we could conclude that an appropriate limitation on subject matter is ‘pro-life speech’ or ‘pro-choice speech.’ All of those limitations exclude speech solely on the basis of viewpoint—an impermissible restriction in a nonpublic forum,” U.S. Circuit Judge Susan Graber wrote for the unanimous three-judge panel.

The American Freedom Defense Initiative (AFDI) sued King County Metro after the public transit agency rejected a display ad claiming to show the “Faces of Global Terrorism.” The slogan ran above photographs of people exclusively of Middle Eastern and Asian descent.

The AFDI modeled the placard on a State Department ad that ran on King County buses for three weeks before the department voluntarily removed it due to community concerns over racial profiling.

King County rejected AFDI’s first ad for violating three criteria of Metro’s advertising policy – making false statements, containing demeaning or disparaging content, and potentially harming or disrupting the transit system.

AFDI submitted a revised ad, removing the false statement, “The FBI Is Offering Up To $25 Million Reward If You Help Capture One Of These Jihadis.”

King County rejected the ad again for content and disruption, which is when the AFDI sued for violation of the First and Fourteenth Amendments.

When the Western District of Washington federal court ruled in the county’s favor, the AFDI appealed to the Ninth Circuit.

The three-judge appellate panel found King County unconstitutionally refused to display the ads on the exterior of its public buses.

Because the Metro’s transit advertising program is a nonpublic forum, the panel found criteria must be reasonable and viewpoint-neutral. Metro’s falsity standard is reasonable, but its disparagement clause discriminates on the basis of viewpoint, according to the ruling.

“Giving offense is a viewpoint, so Metro’s disparagement clause discriminates, on its face, on the basis of viewpoint. Metro emphasizes that the disparagement clause applies equally to all proposed ads: none may give offense, regardless of its content. But the fact that no one may express a particular viewpoint—here, giving offense—does not alter the viewpoint-discriminatory nature of the regulation,” Graber wrote in the 18-page opinion.

The government has more leeway to restrict speech in a nonpublic forum, but the regulations must still be reasonable and viewpoint-neutral, according to the ruling.

The panel also rejected Metro’s reasoning that the ad would be disruptive to transit, citing the similar State Department ad that ran for three weeks without causing any interference. However, the Ninth Circuit determined the disruption clause is constitutional.

“We stress that the First Amendment does not require Metro to tolerate harm to the transit system. If the situation changes such that Metro reasonably fears harm, then it may reject, or cancel its approval of, plaintiffs’ ad,” Graber wrote.

The panel sent the case back to the district court for further proceedings.

U.S. Circuit Judges Michael Hawkins and Ronald Gould also sat on the panel.


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