Federal appeals court finds Washington county’s refusal to run anti-terrorist bus ad unconstitutional

Federal appeals court finds Washington county’s refusal to run anti-terrorist bus ad unconstitutional

The US Court of Appeals for the Ninth Circuit [official website] on Thursday found [opinion, PDF] a Washington county violated the First Amendment [text] when it refused to run an anti-terrorism advertisement on the side of a bus.

The American Freedom Defense Initiative (AFDI) [advocacy website] sued King County Metro for refusing to run an ad featuring photographs of people exclusively of Middle Eastern and Asian descent below the words “Faces of Global Terrorism.” AFDI modeled its ad after a similar one run by the US Department of State [official website] in 2013. The State Department removed their advertisement from the metro system after complaints of racial profiling from the community.

King County Metro has three criteria for advertisements on their transit system: the ad must not make false statements, must not contain demeaning or disparaging content, nor can it foreseeably cause harm or disrupt the transit system. AFDI’s first ad was rejected on the basis that it contained false statements as the placard claimed the FBI was offering a substantial reward for the capture “of these jihadis.” After removing the false statement, AFDI’s second attempt was denied for content and disruption.

The court stated that because the metro’s advertising is a nonpublic forum, “strict scrutiny does not apply; instead, ‘Metro’s rejection of Plaintiffs’ advertisement[s] must be reasonable and viewpoint neutral.” Judge Susan Graber, writing for the unanimous three-judge panel, explained:

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.

The case was remanded to the district court for further proceedings.