Legal Alerts Oct 10, 2018

Public Bus Ad Gets a Free Ride

County Cannot Prohibit Ad Content Solely Because it’s Disparaging or Potentially Disruptive, Ninth Circuit Holds

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A county violated the First Amendment by refusing to display an advertisement related to global terrorism on its public buses, the U.S. Ninth Circuit Court of Appeals held. The case is an important reminder to public agencies that even within a nonpublic forum, such as advertising space on the agency’s property, agencies cannot prohibit speech simply because it is disparaging or offensive.
 
King County provides public transportation in the greater Seattle metropolitan area. The County accepts advertisements for public display on its buses unless the ads contain certain types of prohibited content, including false statements, disparaging material or content that may disrupt the transit system. The American Freedom Defense Initiative submitted an ad to the County concerning global terrorism. The ad depicted 16 photos of faces, with the title “Faces of Global Terrorism,” and included information about how to report terrorists. The County rejected the ad, concluding that it contained all three types of prohibited content mentioned above. AFDI then corrected certain factual inaccuracies, and re-submitted the ad. The County again rejected the ad, concluding that it contained disparaging material and content that may disrupt the transit system. AFDI then sued the County, alleging that the County’s rejection of the revised ad violated AFDI’s freedom of speech under the First Amendment. The lower court granted summary judgment in favor of the County.  
 
In an opinion filed Sept. 27, the appellate court determined that the County’s bus advertising program was a “nonpublic forum” for First Amendment purposes, meaning the County’s ad regulations must be reasonable and viewpoint neutral. The court held that, under this standard, the County could lawfully prohibit ads that contain false statements. However, the court concluded that the County’s prohibition on disparaging content unlawfully discriminates on the basis of viewpoint, and that the prohibition of disruptive content, while valid on its face, was unreasonably applied to AFDI’s ad.
 
The County’s policy defines disparaging content as that which a reasonable person would believe “contains material that ridicules or mocks, is abusive or hostile to, or debases the dignity or stature of any individual, group of individuals or entity.” The court, applying the standard established in the 2017 U.S. Supreme Court case of Matal v. Tam, explained that a government entity cannot prohibit speech simply because it is offensive. To do so is to discriminate on the basis of viewpoint because offensive speech is, itself, a viewpoint.
 
The County defined content as disruptive to the transit system if a reasonable person would find the material “so objectionable that it is reasonably foreseeable that it will result in harm to, disruption of or interference with the transportation system.” The court held that this standard is reasonable and viewpoint neutral, but that the County unreasonably applied the standard to AFDI’s ad. The court rejected the County’s argument that the ad could perpetuate harmful stereotypes and upset riders, and thereby cause a decrease in ridership, because it only portrayed persons of a certain race as terrorists. The court concluded such harm from AFDI’s ad was not reasonably foreseeable because the County experienced no disruption at all during the three weeks in which a similar “Faces of Global Terrorism” ad, submitted by the U.S. State Department, was displayed on County buses.
 
The court reversed the lower court’s ruling as to the revised ad, holding that neither of the County’s reasons for rejecting the ad withstands First Amendment scrutiny. The court awarded summary judgment to AFDI.
 
For more information about this decision and how it may impact your agency, please contact the author of this Legal Alert listed at the right in the firm’s Municipal Law practice group or your BB&K attorney.
 
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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

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