A recent decision from the Ninth Circuit U.S. Court of Appeals offers a key reminder for public agencies: Even within a nonpublic forum, an individual’s and/or community’s Constitutionally protected freedom of speech cannot be infringed solely based upon the disparaging or offensive nature of the speech.
The appellate court held that when King County, in north-central Washington state, refused to display an advertisement related to global terrorism on public buses, it violated the First Amendment — even though the County determined the ad contained disparaging content and might disrupt the transit system.
In its opinion, the court of appeals held that the County’s bus advertising program was, for First Amendment purposes, a nonpublic (or limited public) forum where the government generally has more leeway to restrict speech, provided that regulations are reasonable and viewpoint neutral.
Ad Deemed Disparaging and Rejected
The provider of public transportation throughout Seattle’s metropolitan area, King County pays, in part, for its operation, by accepting ads for public display. The County will, however, refuse ads containing banned content, such as false statements, disparaging material or material that could disrupt the transit system.
In 2013, the U.S. Department of State submitted an ad concerning global terrorism to King County’s transit agency, King County Metro. The ad, depicting the photographs and names of 16 alleged terrorists, was entitled “Faces of Global Terrorism” and included information on how to report to authorities. Metro approved the ad and it ran on the County’s buses for nearly three weeks in June 2013 with little fanfare.
Eventually, the ad drew the attention of area residents, community leaders and a member of Congress, some of who wrote the ads were “incendiary” and “inflammatory” and would lead to an increase in hate crimes. While Metro reevaluated the ad’s approval, the State Department voluntarily retracted it.
Soon after, the American Freedom Defense Initiative submitted a near-identical ad fashioned after the pulled State Department advertisement. The County rejected the ad, concluding it contained three forms of prohibited content. AFDI corrected the ad’s factual inaccuracies and resubmitted it. The ad was again rejected, this time on two grounds: disparagement and its potential to disrupt the transit system.
Metro’s transit advertising policy defines disparaging and demeaning advertisements as those which a reasonably prudent 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.”
This policy is at the heart of the 5-year-old case.
After the revised ad’s rejection, AFDI sued alleging the County violated AFDI’s freedom of speech. The lower court granted summary judgment in favor of the County. That decision was appealed.
Regulations Held to Unlawfully Discriminate on the Basis of Viewpoint
The Ninth Circuit held that, while the County could lawfully prohibit ads containing false statements, its ban on disparaging content unlawfully discriminated against specific viewpoints expressed through speech. The Court also held the County’s prohibition of disruptive content, while valid on its face, was arbitrarily applied to AFDI’s ad.
“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,” Judge Susan P. Garber wrote in the opinion. “But the County’s rejection of the revised ad does not withstand scrutiny … we hold that the County’s disparagement standard discriminates … on the basis of viewpoint.”
Applying the standard established in the 2017 U.S. Supreme Court case Matal v. Tam, the Ninth Circuit held that a government entity cannot prohibit speech simply because it is offensive. The court clarified 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.”
Metro emphasized its disparagement clause is applied equally to all proposed ads — noting, regardless of content, none may give offense — but the court held the fact no one may express a particular viewpoint, in this case giving offense, did not change the viewpoint-discriminatory nature of the regulation.
When examining the County’s defense that the ad could cause a transit-system disruption, the court found its policy to be reasonable and viewpoint neutral, but that it was unreasonably applied to AFDI’s ad. The court rejected the County’s argument that the ad could perpetuate harmful stereotypes and upset riders — thereby causing a decrease in ridership, because it only portrayed persons of a certain race as terrorists.
Since Metro experienced no disruptions during the State Department ad’s three-week run on city buses, the Court concluded such harm from AFDI’s ad was not reasonably foreseeable.
The court reversed the lower court ruling, holding that neither of the County’s reasons for rejecting the revised ad withstood First Amendment scrutiny. Summary judgment was awarded to AFDI.
The takeaway for public agencies: Speech, even in a limited-public forum, where an agency would generally have more control, cannot be barred simply because it’s found to be offensive or disparaging.
In light of this decision, public agencies should review their advertising policies to ensure that they do not prohibit content based on the viewpoint that is expressed. While public agencies may still prohibit entire categories of speech, such as political ads, or ads depicting acts of violence, they cannot prohibit an advertisement just because it expresses a certain viewpoint regarding otherwise-permitted content.
This article first appeared on PublicCEO.com on Nov. 28, 2018. Republished with permission.