Antitrust Law Daily Wrap Up, ADVERTISING—W.D. Wash.: Advertising on government buses must be reasonable and viewpoint neutral, (Jan 31, 2014)

By Jody Coultas, J.D.

The American Freedom Defense Initiative (AFDI) was denied a preliminary injunction in a First Amendment claim regarding free speech on government property filed against King County, Washington, the federal district court in Seattle has held (American Freedom Defense Initiative v. King County, January 30, 2014, Jones, R.).

King County’s Department of Transportation ran a revenue-based 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 United States 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. AFDI submitted its own version of the “Faces of Global Terrorism” advertisement, but King County rejected the ad because it violated its advertising policy. Specifically, the ad violated the policy’s “viewpoint neutral restrictions,” which prohibited political campaign speech, and advertising that was false or misleading, demeaning or disparaging, or harmful or disruptive to the transit system.

When considering a First Amendment claim regarding free speech on government-owned property, the court must identify whether the forum is public or nonpublic. In a public forum, a speech exclusion must be “necessary to serve a compelling state interest and the exclusion [must be] narrowly drawn to achieve that interest.” When the government intentionally opens a nontraditional forum for public discourse, it creates a designated public forum. In a limited public forum, a subcategory of a designated public forum, speech restrictions must be “viewpoint neutral and reasonable in light of the purpose served by the forum.”

King County’s policy and practice indicated an intention to create a limited public forum, according to the court. A policy and consistent application of that policy must be present in order to establish that a government intended to create a limited public forum. The Ninth Circuit has found exterior advertising space on buses to be a limited public forum where a city consistently enforces a policy of restricting advertising on its buses to commercial advertising. King County had accepted and rejected ads on varying sides of the Israeli-Palestinian conflict, despite the politicized nature of the subject matter. However, the fact that political or controversial advertising had been allowed did not change the fact that King County consistently subjected all potential advertisements to the civility provisions to ensure that the advertisements were not false or misleading, demeaning or disparaging, or harmful or disruptive to the transit system. Additionally, a few instances of imperfect enforcement of a restriction did not preclude an agency from rejecting subsequent ads that violate its standard. King County’s policies and application of those policies indicated the intention to create a limited public forum.

The civility and interference with service restrictions in the advertising policy were reasonable, according to the court. Speech restrictions in limited public forums are acceptable as long as they are reasonable and viewpoint neutral. The purpose of King County’s advertising program was to generate revenue. The advertising restrictions promoted the safety, reliability, and quality of the public transit system. Such restrictions were reasonable.

The court held that AFDI failed to show that it was likely to prevail on the merits of its case. A government entity violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject. Both terrorism advertisements provided a similar anti-terrorism, stop-a-terrorist viewpoint, but the AFDI ad also contained false, misleading, demeaning, and/or disparaging content. AFDI’s use of the term “jihadis” to mean terrorist was likely misleading because none of the individuals pictured in the ad referred to themselves as “jihadis” or performed the terrorist acts in the name of “jihad,” as opposed to any other reason. Also, the ad’s statement that a reward of up to $25 million was available for capturing an individual pictured was false and misleading because none of the rewards for the individuals pictured amounted to $25 million.

The case is No. C13-1804RAJ.

Attorneys: David Yerushalmi (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

Cases: Advertising WashingtonNews