Antitrust Law Daily Wrap Up, ADVERTISING NEWS: High Court asked to review county’s rejection of controversial public ad, (Nov 9, 2015)

By Greg Hammond, J.D.

The American Freedom Defense Initiative is seeking Supreme Court review of a decision by the U.S. Court of Appeals in San Francisco that affirmed denial of preliminary injunction in an action where King County, Washington, rejected a “Faces of Global Terrorism” advertisement on its buses. In its petition, American Freedom claims that the appellate court’s decision conflicts with the majority of other federal courts of appeal; the County’s “false or misleading” ad restriction violates the First Amendment; and the appellate court’s decision finding that American Freedom failed to demonstrate irreparable harm threatens to undermine First Amendment protections (American Freedom Defense Initiative v. King County, Dkt. 15-584).

King County’s Department of Transportation ran an advertising program to generate supplemental financial support, including the selling of advertising space on the exterior of its buses. One such advertisement was a “Faces of Global Terrorism” advertisement submitted by the U.S. Department of State. The State Department received numerous complaints that the advertisement was demeaning and disparaging to Muslims and people of color, and replaced the ad. American Freedom submitted its own version of the “Faces of Global Terrorism” advertisement, but King County rejected the ad because it violated its advertising policy’s “viewpoint neutral restrictions,” which prohibit political campaign speech and advertising that is false or misleading, demeaning or disparaging, or harmful or disruptive to the transit system.

The federal district court in Seattle denied American Freedom’s motion for a preliminary injunction that would require the Department of Transportation to publish the ad, concluding that none of the requirements for a preliminary injunction had been established. The U.S. Court of Appeals in San Francisco affirmed, finding that American Freedom failed to demonstrate a likelihood of success on the merits and irreparable harm.

The questions presented are: (1) Whether King County created a public forum by accepting for display on its property a wide array of controversial political and public-issue ads, including ads that address the same subject matter as Petitioners’ anti-terrorism ad, and thus violated the First Amendment by rejecting Petitioners’ ad based on its message; (2) Regardless of the nature of the forum, whether King County’s rejection of Petitioners’ advertisement based on a claim that this public-issue ad was false or misleading violates the First Amendment; and (3) Whether Petitioners must demonstrate that there are no alternative ways to express their public-issue message in order for the court to find irreparable harm based on King County’s rejection of their ad.

American Freedom filed a similar petition in July 2015 in American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority (Dkt. 15-141). In that action, American Freedom is challenging a decision by the U.S. Court of Appeals in Boston, affirming denial of American Freedom’s request for preliminary injunctions on the grounds that Massachusetts Bay Transportation Authority’s advertising space is a limited public forum and that its restrictions on American Freedom’s speech were reasonable and viewpoint neutral.

Attorneys: Robert Joseph Muise (American Freedom Law Center) for American Freedom Defense Initiative.

Companies: American Freedom Defense Initiative

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