Antitrust Law Daily Wrap Up, ADVERTISING—9th Cir.: AFDI stalled in attempt to advertise on government buses, (Aug 13, 2015)

By Michael Menzhuber, J.D., LL.M.

In an action by the American Freedom Defense Initiative (AFDI) against King County, Washington, over its public transit agency’s rejection of a “Faces of Global Terrorism” advertisement on its buses, the district court properly denied AFDI’s motion for a preliminary injunction to require the ad to be displayed. The U.S. Court of Appeals in San Francisco determined that the requirements for granting a preliminary injunction were not met because AFDI had not demonstrated a likelihood of success on the merits and irreparable harm (American Freedom Defense Initiative v. King County, August 12, 2015, Graber, S.).

Background. Metro, King County’s public transit agency, ran a revenue-based advertising program to generate supplemental financial support which included the selling of advertising space on the exterior of its buses. One such advertisement was a “Faces of Global Terrorism” advertisement submitted by the United States Department of State. After the ad began appearing, Metro started to receive complaints that the ad was offensive and created the potential for mistreatment of racial, ethnic, and religious minorities. Metro began a process of reevaluating its approval of the ad. Before the reevaluation had been completed, the State Department voluntarily retracted the ad.

AFDI then submitted its own version of the “Faces of Global Terrorism” advertisement. Metro rejected the ad because it violated its advertising policy provisions which prohibited advertising that was false or misleading, demeaning or disparaging, or harmful or disruptive to the transit system.

AFDI declined to discuss the rejection with Metro and filed an action that alleged that Metro’s rejection of the ad violated the First Amendment. The plaintiffs also filed a motion for a preliminary injunction that would require Metro publish the ad. The district court, after concluding that none of the requirements for a preliminary injunction had been established, denied the motion.

Likelihood of Success on the Merits. In affirming the district court’s decision to deny the plaintiff’s motion for a preliminary injunction, the appeals court determined that the plaintiffs were not likely to prevail on the merits of its claim that Metro’s rejection of the ad violated its First Amendment right to free speech. The appeals court determined that the advertising space on Metro’s buses was a nonpublic forum because it had previously had held that the ad space, under an earlier version of Metro’s transit advertising policy, was a nonpublic forum. Seattle Midwest Awareness Compaign (“SeaMAC) v. King County, 781 F.3d 489 (2015). Because Metro created a nonpublic forum, its rejection of AFDI’s ads needed to be “reasonable” and “viewpoint neutral.”

The appeals court determined that Metro’s rejection of AFDI’s ad was “reasonable” because the three criteria for “reasonableness” was met. Metro rejected the ad, in part, because it concluded that the ad violated section 6.2.4 of its advertising policy which prohibited false or misleading advertising. The appeals court determined that the “false or misleading” standard was “reasonable”, in light of the purpose served by the forum, because Metro had an interest in preventing the dissemination of false information to a captive audience that it had created by providing public transit services.

The appeals court also determined that the “false or misleading” standard was sufficiently definite and objective to prevent arbitrary or discriminatory enforcement by County officials because AFDI’s proposed ad was demonstrably and indisputably false. The ad stated that the FBI was offering a reward of up to $25 million was available for the capture of one of the pictured terrorists. However, the FBI was not offering a reward and the State Department reward offered was up to $5 million.

The third “reasonableness” criterion, whether an independent review of the record supported Metro’s conclusion that the ad was false, was also met because the two prominent statements in the AFDI’s ad were indisputably false.

The appeals court also determined that Metro’s rejection of AFDI’s ad was “viewpoint neutral” because nothing in the record suggested either that: (1) Metro would have accepted the ad with the same inaccuracy if only the ad had expressed a different viewpoint; or (2) Metro had accepted other ads that contained false statements.

Remaining Factors for Preliminary Injunction. In addition to demonstrating a likelihood of success on the merits, a plaintiff must establish: (1) irreparable harm if the preliminary injunction is denied; (2) the balance of equities tip in favor of the plaintiff; and (3) the injunction is in the public interest. The plaintiffs argued that these requirements were met because, in its view, they had shown a likelihood of success on the merits. The appeals court, however, determined that this argument failed because it had concluded that the plaintiffs had not demonstrated a likelihood of success on the merits.

The appeals court also concluded that, even if the plaintiffs had demonstrated some likelihood of success on the merits, they would not be entitled to a preliminary injunction. In effect, the plaintiffs were seeking a mandatory injunction because they sought to alter the status quo by obtaining an order requiring Metro to publish an ad previously unpublished. The appeals court noted that mandatory injunctions are not granted unless extreme or very serious damage would result and are not issued in doubtful cases. It then determined that the plaintiffs could not meet this high because the district court’s denial of their preliminary injunction only slightly constrained their speech. The appeals court reached this conclusion because nothing in the denial of their preliminary injunction prevented the plaintiffs from displaying the ad in alternate forums.

The case number is No. 14-35095.

Attorneys: Robert Joseph Muise (American Freedom Law Center) for American Freedom Defense Initiative. Linda Montecucco Gallagher, King County Prosecuting Attorney's Office, for King County.

Companies: American Freedom Defense Initiative

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