Am. Freedom Defense Initiative v. King County , 904 F.3d 1126 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMERICAN FREEDOM DEFENSE No. 17-35897
INITIATIVE; PAMELA GELLER;
ROBERT SPENCER, D.C. No.
Plaintiffs-Appellants, 2:13-cv-01804-RAJ
v.
OPINION
KING COUNTY,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Argued and Submitted August 29, 2018
Seattle, Washington
Filed September 27, 2018
Before: Michael Daly Hawkins, Susan P. Graber,
and Ronald M. Gould, Circuit Judges.
Opinion by Judge Graber
2 AFDI V. KING COUNTY
SUMMARY*
Civil Rights
The panel affirmed in part and reversed in part the district
court’s summary judgment in an action brought under
42 U.S.C. § 1983 alleging that King County
unconstitutionally refused to display plaintiffs’ submitted ads
concerning global terrorism on the exterior of its public
buses.
King County accepts ads for public display unless they
contain certain categories of prohibited content, including
false statements, disparaging material, and content that may
disrupt the transit system. Plaintiffs submitted an ad
concerning global terrorism that contained, in the County’s
view, all three types of prohibited content. Plaintiffs then
submitted a revised, factually accurate ad, which the County
rejected under the remaining two categories.
The panel first determined that the County’s bus
advertising program was a nonpublic forum. The panel held
that the County permissibly rejected the factually inaccurate
ad because the First Amendment does not require the County
to display patently false content in a nonpublic forum. The
panel further held that the County’s rejection of the revised ad
did not withstand scrutiny. Applying Matal v. Tam, 137 S.
Ct. 1744 (2017), the panel held that the County’s
disparagement standard discriminates, on its face, on the
basis of viewpoint. Finally, the panel held that the disruption
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
AFDI V. KING COUNTY 3
standard was facially valid but that, on this record, the County
unreasonably applied the standard to plaintiffs’ ad.
COUNSEL
Robert Joseph Muise (argued), American Freedom Law
Center, Ann Arbor, Michigan; David Yerushalmi, American
Freedom Law Center, Washington, D.C.; for Plaintiffs-
Appellants.
David J. Hackett (argued), Senior Deputy Prosecuting
Attorney, Civil Division Appellate Chair, King County
Prosecuting Attorney’s Office, Seattle, Washington, for
Defendant-Appellee.
Eugene Volokh, Attorney; Matthew Delbridge, Terran Hause,
and Cheannie Kha, Law Students; Scott & Cyan Banister
First Amendment Clinic, UCLA School of Law, Los Angeles,
California; for Amicus Curiae Pennsylvania Center for the
First Amendment.
OPINION
GRABER, Circuit Judge:
King County provides public transportation in the greater
Seattle metropolitan area. The County finances its transit
operations in part by selling advertising space on the exterior
of buses. Although many municipalities restrict advertising
to commercial publicity, King County accepts all ads that do
not contain specified categories of prohibited content. This
case requires us to consider three of those categories: false
4 AFDI V. KING COUNTY
statements, disparaging material, and content that may disrupt
the transit system. Plaintiffs American Freedom Defense
Initiative, Pamela Geller, and Robert Spencer submitted an ad
concerning global terrorism that contained, in the County’s
view, all three types of prohibited content. Plaintiffs then
submitted a revised, factually accurate ad, which the County
rejected under the remaining two categories. Plaintiffs
brought this action under 42 U.S.C. § 1983, alleging that the
County unconstitutionally refused to display their ads. The
district court granted summary judgment to the County, and
Plaintiffs timely appeal.
Reviewing de novo, Dutta v. State Farm Mut. Auto. Ins.
Co., 895 F.3d 1166, 1171 (9th Cir. 2018), we affirm in part
and reverse in part. The County permissibly rejected the
factually inaccurate ad because the First Amendment does not
require the County to display patently false content in a
nonpublic forum. But the County’s rejection of the revised
ad does not withstand scrutiny. Applying Matal v. Tam,
137 S. Ct. 1744 (2017), we hold that the County’s
disparagement standard discriminates, on its face, on the
basis of viewpoint. Finally, the disruption standard is facially
valid but, on this record, we conclude that the County
unreasonably applied the standard to Plaintiffs’ ad.
FACTUAL AND PROCEDURAL HISTORY
In 2013, the United States Department of State submitted
the following ad to King County’s transit agency, Metro:
AFDI V. KING COUNTY 5
Metro approved the ad without fanfare, and it appeared on
Metro’s buses for nearly three weeks starting on June 6, 2013.
The ad eventually drew the attention of a few members of the
public. Metro received two letters from community leaders
expressing concern that the ads would lead to more hate
crimes, a letter from a member of Congress along the same
lines, and two complaints from Metro-area residents who
worried that the ads were “incendiary” and “inflammatory.”
Metro began a process of reevaluating its approval but, before
the reevaluation concluded, the State Department voluntarily
retracted the ad.1
About a month later, Plaintiffs submitted their own ad,
modeled on the State Department’s placard:
Metro rejected Plaintiffs’ ad, concluding that it failed to
comply with three substantive criteria of Metro’s transit
advertising policy. In Metro’s view, the ad made false
statements; it contained demeaning or disparaging content;
and it foreseeably would harm or disrupt the transit system.
1
In August 2013, the American Civil Liberties Union of Washington
hosted a meeting at which community members expressed concern that
the State Department’s now-retracted ad “left viewers with the false
impression that the look of terrorism is exclusive to people of Middle
Eastern and Asian descent and that people of Middle Eastern or South
Asian descent should be feared and that the particular use of imagery in
the ads promoted stereotyping.”
6 AFDI V. KING COUNTY
Metro’s advertising policy prohibits all three categories of
content (and eight additional categories not at issue here).
Plaintiffs then filed this action, under 42 U.S.C. § 1983,
alleging that Metro’s rejection of the ad violated the First and
Fourteenth Amendments. The district court denied Plaintiffs’
motion for a preliminary injunction, and Plaintiffs appealed.
In a published opinion, we affirmed the district court’s denial
of a preliminary injunction. Am. Freedom Def. Initiative v.
King County (AFDI), 796 F.3d 1165, 1173 (9th Cir. 2015).
We held that Metro’s transit advertising program is a
nonpublic forum and that, accordingly, Metro’s substantive
criteria must be reasonable and viewpoint neutral. Id. at
1169–70. We assessed the factual accuracy of the ad as
follows:
Plaintiffs’ proposed ad states, in prominent
text: “The FBI Is Offering Up To $25 Million
Reward If You Help Capture One Of These
Jihadis.” That statement is demonstrably and
indisputably false. The FBI is not offering a
reward up to $25 million for the capture of
one of the pictured terrorists. The FBI is not
offering rewards at all, and the State
Department offers a reward of at most
$5 million, not $25 million, for the capture of
one of the pictured terrorists. Plaintiffs do
not, and cannot, refute those basic facts.
Id. at 1171 (footnote and paragraph break omitted). We
concluded that Metro’s application of its falsity prohibition
was likely both reasonable and viewpoint neutral. Id. at
1171–72. The false statements were indisputable, patent, and
AFDI V. KING COUNTY 7
easily correctable, undermining any argument that Metro
secretly harbored an unconstitutional motive. Id. We
expressly declined to assess Metro’s other two grounds for
rejection: disparagement and disruption to the transit system.
Id. at 1172. Because Plaintiffs were unlikely to succeed on
the merits and because the other relevant factors disfavored
a preliminary injunction, we concluded that the district court
did not abuse its discretion in declining to issue a preliminary
injunction. Id. at 1172–73.
After our decision, Plaintiffs submitted for approval a
revised ad:
The revised version is substantially the same as the original,
but it no longer includes false statements. Metro rejected the
new ad on two grounds: disparagement and disruption to the
transit system. Plaintiffs filed an amended complaint,
challenging Metro’s rejection of both the original and revised
ads as a violation of their right to free speech under the First
Amendment.2 After discovery, the parties filed cross-motions
2
In their amended complaint, as in the original complaint, Plaintiffs
alleged that Metro’s rejection also violated their rights under the
Fourteenth Amendment. On appeal, Plaintiffs briefly mention those
claims as issues presented for review, but Plaintiffs do not substantiate the
assertions with adequate briefing. Accordingly, those claims are waived.
See, e.g., Maldonado v. Morales, 556 F.3d 1037, 1048 n.4 (9th Cir. 2009)
(“Arguments made in passing and inadequately briefed are waived.”);
Retlaw Broad. Co. v. NLRB, 53 F.3d 1002, 1005 n.1 (9th Cir. 1995)
8 AFDI V. KING COUNTY
for summary judgment. The district court granted summary
judgment to the County on all counts, and Plaintiffs timely
appeal.
DISCUSSION
Metro’s bus advertising program is a nonpublic forum
(also called a limited public forum). AFDI, 796 F.3d at 1170;
Seattle Mideast Awareness Campaign v. King County
(SeaMAC), 781 F.3d 489, 498 (9th Cir. 2015). Accordingly,
strict scrutiny does not apply; instead, “Metro’s rejection of
Plaintiffs’ advertisement[s] must be reasonable and viewpoint
neutral.” AFDI, 796 F.3d at 1170. We assess the
reasonableness of a rejection in three ways: (1) by asking
whether the rejection is reasonable in light of the forum’s
purpose; (2) by asking whether Metro’s standard is
sufficiently definite and objective to prevent arbitrary or
discriminatory enforcement by County officials; and (3) by
reviewing the record independently to determine whether the
record supports Metro’s conclusion. Id. at 1169–71. In
considering viewpoint neutrality, we determine whether
Metro’s standard discriminates, on its face or as applied to the
specific ad, on the basis of viewpoint. Id. at 1171.
A. Falsity Standard
The falsity clause in Metro’s transit advertising policy
states that Metro will reject any ad that is:
(“Although the issue . . . is summarily mentioned in [the appellant’s]
opening brief, it has not been fully briefed, and we therefore decline to
address it.”).
AFDI V. KING COUNTY 9
False or Misleading. Any material that is or
that the sponsor reasonably should have
known is false, fraudulent, misleading,
deceptive or would constitute a tort of
defamation or invasion of privacy.
In the earlier appeal, we explained at length why Plaintiffs
were unlikely to succeed on their challenge to Metro’s
rejection of their original, factually inaccurate ad. We held
that the falsity standard, facially and as applied to Plaintiffs’
ad, was likely both reasonable and viewpoint neutral. Id. at
1170–72. Having reviewed the full factual record and having
carefully considered the parties’ arguments, we adopt our
earlier, tentative analysis as our final analysis: The falsity
standard meets constitutional scrutiny, both facially and as
applied.
Falsity is a reasonable standard in light of the purpose of
the transit system. Id. at 1170. The falsity standard is
definite and objective, at least as applied to Plaintiffs’
patently false ad. Id. at 1170–71. The record supports
Metro’s conclusion because Plaintiffs cannot—and do
not—argue that the ad is accurate. Id. at 1171. Finally, the
rejection was viewpoint neutral because nothing in the record
suggests that Metro would accept the same inaccuracy in a
different ad or that Metro has accepted other ads containing
false statements. Id. In sum, Metro permissibly rejected
Plaintiffs’ original ad on the ground of falsity, and we need
not reach the other two grounds for its rejection. Id. at 1172;
accord SeaMAC, 781 F.3d at 499. We therefore affirm the
district court’s grant of summary judgment to the County on
Plaintiffs’ challenge to Metro’s rejection of their original ad.
10 AFDI V. KING COUNTY
Because Metro rejected Plaintiffs’ revised ad on the
grounds of disparagement and disruption, we next consider
those standards.
B. Disparagement Standard
The disparagement clause in Metro’s transit advertising
policy states that Metro will reject any ad that is:
Demeaning or Disparaging. Advertising that
contains material that demeans or disparages
an individual, group of individuals or entity.
For purposes of determining whether an
advertisement contains such material, the
County will determine whether a reasonably
prudent person, knowledgeable of the
County’s ridership and using prevailing
community standards, would believe that the
advertisement 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.
Applying the Supreme Court’s decision in Matal, we
conclude that Metro’s disparagement standard discriminates,
on its face, on the basis of viewpoint.
In Matal, the Supreme Court considered a challenge to the
Lanham Act’s disparagement clause: “This provision
prohibits the registration of a trademark ‘which may
disparage . . . persons, living or dead, institutions, beliefs, or
national symbols, or bring them into contempt, or disrepute.’”
137 S. Ct. at 1753 (quoting 15 U.S.C. § 1052(a)). The
plaintiff had sought registration for the name of his band,
AFDI V. KING COUNTY 11
“The Slants,” which is a derogatory term for Asian-
Americans that the plaintiff sought to “reclaim.” Id. at 1754.
A trademark official denied registration on the ground of
disparagement, and the plaintiff filed suit. Id.The Court held unanimously that the disparagement
clause is facially invalid under the Free Speech Clause of the
First Amendment. Two four-Justice opinions characterized
some of the sub-issues differently. But all eight Justices
(Justice Gorsuch was recused) held that offensive speech is,
itself, a viewpoint and that the government engages in
viewpoint discrimination when it suppresses speech on the
ground that the speech offends. See, e.g., id. at 1751(plurality) (“[T]his provision violates the Free Speech Clause
of the First Amendment. It offends a bedrock First
Amendment principle: Speech may not be banned on the
ground that it expresses ideas that offend.”); id. at 1763(plurality) (“Giving offense is a viewpoint.”); id. at 1766(Kennedy, J., concurring) (“Within that category [of persons
and other things described in the statute], an applicant may
register a positive or benign mark but not a derogatory one.
The law thus reflects the Government’s disapproval of a
subset of messages it finds offensive. This is the essence of
viewpoint discrimination.”).
Matal applies with full force to the disparagement clause
here. No material textual difference distinguishes Metro’s
disparagement clause from the trademark provision at issue
in Matal. Metro’s disparagement clause, like the Lanham
Act’s disparagement clause, requires the rejection of an ad
solely because it offends. Giving offense is a viewpoint, so
Metro’s disparagement clause discriminates, on its face, on
the basis of viewpoint.
12 AFDI V. KING COUNTY
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
Matal plurality wrote:
To be sure, the clause evenhandedly prohibits
disparagement of all groups. It applies
equally to marks that damn Democrats and
Republicans, capitalists and socialists, and
those arrayed on both sides of every possible
issue. It denies registration to any mark that
is offensive to a substantial percentage of the
members of any group. But in the sense
relevant here, that is viewpoint
discrimination: Giving offense is a viewpoint.
Id. at 1763 (plurality). And Justice Kennedy wrote:
[The government] argues, to begin with, that
the law is viewpoint neutral because it applies
in equal measure to any trademark that
demeans or offends. This misses the point. A
subject that is first defined by content and
then regulated or censored by mandating only
one sort of comment is not viewpoint neutral.
To prohibit all sides from criticizing their
opponents makes a law more viewpoint based,
not less so.
Id. at 1766 (Kennedy, J., concurring).
AFDI V. KING COUNTY 13
It is true that this case involves a nonpublic forum, where
the government generally has more leeway to restrict speech.
But it is settled law that, in a nonpublic forum, regulations
must be reasonable and viewpoint neutral. E.g., Cornelius v.
NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 806
(1985). In a nonpublic forum, “the government 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.” Id. We have noted that, in some
instances, “[t]he line between an acceptable subject matter
limitation and unconstitutional viewpoint discrimination is
not a bright one.” Cogswell v. City of Seattle, 347 F.3d 809,
815 (9th Cir. 2003). But we have little difficulty drawing the
line here. Metro accepts ads on a wide range of subject
matters, including terrorism, but denies access to Plaintiffs
and anyone else if the proposed ad offends. We cannot
conclude that the appropriate limitation on subject matter is
“offensive speech” any more than we could conclude that an
appropriate limitation on subject matter is “pro-life speech”
or “pro-choice speech.” All of those limitations exclude
speech solely on the basis of viewpoint—an impermissible
restriction in a nonpublic forum (as in other contexts). See
Wandering Dago, Inc. v. Destito, 879 F.3d 20, 30 (2d Cir.
2018) (“By rejecting [the plaintiff’s] application only on the
ground of its [offensive] branding, defendants impermissibly
discriminated against [the plaintiff’s] viewpoint and therefore
ran afoul of the First Amendment, whether [the plaintiff’s]
speech is categorized as commercial speech, speech in a
public forum, or speech in a nonpublic forum.” (citing Matal,
137 S. Ct. 1744)).
This case thus fundamentally differs from other First
Amendment precedents on which the County relies, because
the purported limitation on subject matter—
14 AFDI V. KING COUNTY
disparagement—facially discriminates on the basis of
viewpoint. In Cogswell, 347 F.3d at 811, we considered
Seattle’s requirement that a candidate limit statements in a
voter’s pamphlet to statements about himself or herself. We
upheld the regulation “[b]ecause Seattle has not restricted
viewpoints on candidate self-discussion, the subject matter
included in the forum.” Id. at 816. Unlike disparagement,
which is itself a viewpoint according to Matal, candidate self-
discussion is facially viewpoint neutral.
The same analysis applies to the Supreme Court’s
decision in Arkansas Educational Television Commission v.
Forbes, 523 U.S. 666, 682–83 (1998). There, the Court
considered a candidate debate limited to candidates who had
generated a sufficient level of public interest. The Court held
that the restriction was viewpoint neutral because it was
“beyond dispute that [the plaintiff candidate] was excluded
not because of his viewpoint but because he had generated no
appreciable public interest.” Id. at 682. Unlike
disparagement, the level of public interest in a candidate is
viewpoint neutral.
Similarly, in Cornelius, 473 U.S. at 811–12, the Court
considered a public charity drive’s exclusion of certain types
of organizations. The Court accepted that “a decision to
exclude all advocacy groups, regardless of political or
philosophical orientation, is by definition viewpoint neutral”
and that “[e]xclusion of groups advocating the use of
litigation is not viewpoint-based . . . because litigation is a
means of promoting a viewpoint, not a viewpoint in itself.”
Id. Metro emphasizes the Court’s distinction between “a
means of promoting a viewpoint” and “a viewpoint in itself.”
Metro asserts that, like the viewpoint-neutral restrictions on
advocacy and litigation in Cornelius, Metro’s disparagement
AFDI V. KING COUNTY 15
clause similarly restricts only a means of promoting a
viewpoint, not the underlying viewpoint. But unlike
viewpoint-neutral restrictions on advocacy and litigation, a
disparagement restriction is itself viewpoint discriminatory
on its face, under Matal, even if the restriction also can be
considered a limitation on the means of expressing an
underlying viewpoint.
In sum, Metro’s disparagement clause discriminates, on
its face, on the basis of viewpoint. The disparagement clause
therefore cannot serve as a constitutionally valid basis for
rejecting Plaintiffs’ revised ad.3 We therefore turn to Metro’s
alternative reason to reject the revised ad: feared disruption
to the transit system.
C. Disruption Standard
The disruption clause in Metro’s transit advertising policy
states that Metro will reject any ad that is:
Harmful or Disruptive to Transit System.
Advertising that contains material that is so
objectionable as to be reasonably foreseeable
that it will result in harm to, disruption of or
interference with the transportation system.
For purposes of determining whether an
advertisement contains such material, the
County will determine whether a reasonably
prudent person, knowledgeable of the
County’s ridership and using prevailing
3
“Because the restriction is viewpoint discriminatory, we need not
decide whether it is unreasonable in light of the purposes served by the
forum.” Good News Club v. Milford Cent. Sch., 533 U.S. 98, 107 (2001).
16 AFDI V. KING COUNTY
community standards, would believe that the
material is so objectionable that it is
reasonably foreseeable that it will result in
harm to, disruption of or interference with the
transportation system.
We previously upheld, as constitutionally valid on its face, an
earlier version of the disruption clause. SeaMAC, 781 F.3d
at 499–503. Although Metro made some minor changes to
the clause after we decided SeaMAC, none affects the
clause’s facial constitutionality. As explained below, the
present version of the disruption clause, like the earlier one,
survives facial scrutiny.
The clause is reasonable in light of the forum’s purpose
because “[a]ny speech that will foreseeably result in harm to,
disruption of, or interference with the transportation system
is, by definition, incompatible with the buses’ intended
purpose”: “safe and reliable public transportation.” Id. at
500. The standard is also “sufficiently definite and objective
to prevent arbitrary or discriminatory enforcement by County
officials.” Id. The clause’s “ultimate criterion is an objective
one: reasonably foreseeable harm to, disruption of, or
interference with the transportation system. Thus, we are not
left with the specter of a ‘standardless standard’ whose
application will be immune from meaningful judicial
review.” Id. (quoting Hopper v. City of Pasco, 241 F.3d
1067, 1080 (9th Cir. 2001)). Finally, the disruption clause
“[o]n its face . . . is viewpoint neutral: It excludes all
ads—whatever their viewpoint—that may foreseeably result
in harm to, disruption of, or interference with the
transportation system.” Id. at 501–02.
AFDI V. KING COUNTY 17
We emphasize that Matal does not affect the facial
constitutionality of the disruption clause. Although Matal
instructs that Metro may not discriminate solely on the basis
of viewpoint, the disruption clause discriminates on the
permissible, viewpoint-neutral, and objective criterion of
disruption to the transit system. That is, whether or not an ad
is offensive (under a “reasonably prudent person” standard or
otherwise), Metro may reject an ad if harm to the transit
system is reasonably foreseeable.
Metro’s rejection, however, must be borne out by the
record: “We must independently review the record, without
deference to the threat assessment made by County officials,
to determine whether it shows that the asserted risks were
real.” SeaMAC, 781 F.3d at 500–01 (internal quotation marks
and brackets omitted). Here, Metro submitted an expert’s
report describing the invidious nature of ads that depict only
persons of a certain race or ethnicity as terrorists. Such ads
may perpetuate harmful stereotypes and may upset riders
which, in turn, may cause a decrease in ridership. Metro has
concluded that, accordingly, it is reasonably foreseeable that
Plaintiffs’ ad will harm the transit system.
Determining whether it is “reasonably foreseeable” that
the transit system will be harmed necessarily requires some
level of speculation, and Metro’s analysis has some
foundation. Here, though, we have an unusual opportunity to
test Metro’s hypothesis. Metro approved a very similar
ad—the State Department’s own “Faces of Global Terrorism”
ad—which actually ran for a period of nearly three weeks.
During that time, Metro received a small number of
complaints and expressions of concern, but Metro’s transit
system did not experience any harm, disruption, or
18 AFDI V. KING COUNTY
interference.4 Metro’s concerns about Plaintiffs’ ad apply
equally to the State Department’s ad, and Metro has not
explained why it fears harm to the transit system from
Plaintiffs’ ad when no harm at all resulted from displaying
the State Department’s ad. Applying the disruption standard
without deference to Metro’s assessment, we cannot conclude
that a reasonably prudent person would reasonably foresee
harm to the transit system from Plaintiffs’ ad. Accordingly,
we hold that Metro’s rejection of Plaintiffs’ revised ad on the
ground of disruption to the transit system was unreasonable.
Because neither of Metro’s reasons for rejecting
Plaintiffs’ revised ad withstands First Amendment scrutiny,
we reverse the district court’s grant of summary judgment to
the County and remand with instructions to enter summary
judgment for Plaintiffs on this claim. We stress that the First
Amendment does not require Metro to tolerate harm to the
transit system. If the situation changes such that Metro
reasonably fears harm, then it may reject, or cancel its
approval of, Plaintiffs’ ad.
AFFIRMED in part; REVERSED in part and
REMANDED with instructions. The parties shall bear their
own costs on appeal.
4
The problematic nature of the State Department’s ad escaped the
attention of Metro’s professional staff whose job is to review ads for
conformity with the policy. Indeed, the person who approved the ad has
been involved in the transit advertising program for more than 30 years,
and she has reviewed submissions for precisely this type of problem
“throughout [her] tenure.” She approved the ad without concern until,
after receiving letters from community members, she “eventually came to
understand” its troublesome nature.