904 F.3d 1126
9th Cir.2018Background
- King County Metro operates a nonpublic forum for bus exterior advertising and bars ads falling into categories including falsity, disparagement, and disruption to the transit system.
- Plaintiffs (American Freedom Defense Initiative, Pamela Geller, Robert Spencer) submitted an ad modeled on a U.S. State Department “Faces of Global Terrorism” placard; Metro initially approved the State Dept. ad, which ran briefly and drew a few public complaints but no measurable transit disruption.
- Metro rejected Plaintiffs’ original ad as patently false (it overstated FBI/State Department rewards), disparaging, and foreseeably disruptive; the Ninth Circuit previously upheld the falsity rejection at the preliminary-injunction stage and treated Metro’s forum as nonpublic.
- Plaintiffs then submitted a revised ad that corrected the factual inaccuracies; Metro rejected the revised ad solely under its disparagement and disruption standards.
- District court granted summary judgment to King County on all claims; Plaintiffs appealed. The Ninth Circuit reviews reasonableness and viewpoint neutrality for nonpublic-forum restrictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of falsity prohibition | Falsity clause is an invalid prior restraint on speech | Falsity prohibition is reasonable/objective to protect forum purpose | Court: Falsity clause is constitutional as applied to Plaintiffs’ patently false original ad; County permissibly rejected it |
| Validity of disparagement prohibition | Disparagement clause is viewpoint-discriminatory (suppresses offensive speech) | Disparagement bans are content/objective-based and applied evenhandedly to all viewpoints | Court: Disparagement clause is facially viewpoint-discriminatory under Matal and cannot justify rejecting the revised ad |
| Validity of disruption prohibition (facial) | Disruption clause is overbroad/standardless | Clause is objective (foreseeable harm/disruption) and tied to forum purpose | Court: Disruption clause facially valid and viewpoint neutral |
| Application of disruption standard to revised ad | No reasonable basis to foresee harm; similar State Dept. ad caused no disruption | Metro reasonably feared harm given community reactions and stereotyping risks | Court: On this record, Metro unreasonably applied the disruption standard to Plaintiffs’ revised ad; reversal for Plaintiffs |
Key Cases Cited
- Am. Freedom Def. Initiative v. King County, 796 F.3d 1165 (9th Cir. 2015) (prior panel decision treating Metro as nonpublic forum and upholding falsity rejection at preliminary stage)
- Seattle Mideast Awareness Campaign v. King County, 781 F.3d 489 (9th Cir. 2015) (upholding facial constitutionality of earlier disruption clause)
- Matal v. Tam, 137 S. Ct. 1744 (2017) (disparagement prohibition is viewpoint discriminatory; giving offense is a viewpoint)
- Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985) (limits on nonpublic forum must be reasonable and viewpoint neutral)
- Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001) (government may not deny access solely to suppress a speaker's viewpoint)