796 F.3d 1165
9th Cir.2015Background
- Metro (King County) operates bus advertising governed by a 2012 transit advertising policy that pre-screens ads and forbids categories including false/misleading, demeaning/disparaging, and harmful/disruptive to transit.
- After approving a similar State Department ad, Metro received complaints and re-evaluated; the State Department withdrew its ad before reevaluation concluded.
- Plaintiffs (American Freedom Defense Initiative, Geller and Spencer) submitted an exterior-bus ad stating: “The FBI Is Offering Up To $25 Million Reward If You Help Capture One Of These Jihadis,” which Metro rejected as violating the policy (sections 6.2.4, 6.2.8, 6.2.9).
- Plaintiffs sued under 42 U.S.C. § 1983 claiming First Amendment, equal protection, and due process violations and sought a preliminary injunction to force Metro to run the ad; the district court denied the injunction.
- On interlocutory appeal, the Ninth Circuit applied SeaMAC precedent, treated bus ad space as a nonpublic forum, and focused its analysis on whether Metro’s accuracy-based rejection was reasonable and viewpoint neutral.
- The court concluded the ad contained objectively false statements (FBI vs. State Department; $25M vs. at most $5M for those pictured), Metro’s rejection for falsity was reasonable and viewpoint neutral, and Plaintiffs failed to meet Winter factors for a preliminary injunction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Forum classification: Is bus exterior ad space a public forum? | AFDI contends ad space is a designated public forum requiring strict scrutiny of content restrictions. | Metro contends ad space is a nonpublic forum and may impose reasonable, viewpoint-neutral limits. | Nonpublic forum. Metro’s policy and practice show intent to limit forum; SeaMAC controls. |
| Validity of falsity restriction: Is Metro’s ban on false/misleading ads reasonable? | AFDI argues restriction threatens protected speech and truth judgments can be subjective. | Metro argues falsity restriction is reasonable given captive audience and safety/efficiency purpose; some statements are objectively false. | Reasonable. Ban tailored to forum purpose; two prominent statements were demonstrably false, so restriction meets SeaMAC criteria. |
| Viewpoint neutrality: Was the rejection motivated by viewpoint discrimination? | AFDI implies Metro targeted the ad for its political viewpoint. | Metro contends enforcement is neutral and applied to other views and false ads. | Viewpoint neutral. No record evidence Metro would have tolerated identical falsity from a different viewpoint. |
| Preliminary injunction: Should AFDI get mandatory injunction ordering Metro to run ad? | AFDI asserts irreparable harm and public interest because of First Amendment injury. | Metro argues mandatory injunction is disfavored, alternatives to bus ads exist, and Winter factors unmet. | Denied. Plaintiffs failed to show likelihood of success and Winter factors (irreparable harm, balance, public interest) not satisfied; mandatory relief especially disfavored. |
Key Cases Cited
- SeaMAC v. King County, 781 F.3d 489 (9th Cir. 2015) (holding Metro’s bus ad space is a nonpublic forum and upholding rejection under disruption/accuracy standard)
- Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008) (four-factor test for preliminary injunctions)
- New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (constitutional limits on punishing false statements about public officials)
- Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 789 (1985) (forum analysis and government intent to create a forum)
- Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) (captive audience concept and limits on access to nonpublic forums)
- Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015) (forum characterization and content control implications)
- Int'l Soc'y for Krishna Consciousness of Cal., Inc. v. City of Los Angeles, 764 F.3d 1044 (9th Cir. 2014) (reasonableness of restrictions in captive-audience transit/airport contexts)
- Vivid Entm't, LLC v. Fielding, 774 F.3d 566 (9th Cir. 2014) (First Amendment claim does not automatically satisfy Winter factors)
- Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873 (9th Cir. 2009) (mandatory injunctions are disfavored and require extreme harm)
- Cogswell v. City of Seattle, 347 F.3d 809 (9th Cir. 2003) (availability of alternative fora undermines injunction claims)