On October 7, 2013, the American Freedom Law Center (AFLC) filed a federal civil rights lawsuit in Washington federal court on behalf of the American Freedom Defense Initiative (AFDI) and its co-founders, Pamela Geller and Robert Spencer, against King County, Washington, for refusing to run an anti-terrorism advertisement on its public transportation vehicles, which displayed photographs of global terrorists from the FBI’s most wanted list.
King County, Washington’s public transportation authority, also known as Metro, offers a broad range of public transportation services across King County, including the City of Seattle. In 2012, Metro operated about 220 bus and trolley routes that provided 115.4 million passenger trips. As a revenue source, King County allows the display of advertisements on its Metro public transportation vehicles.
In June 2013, King County displayed an advertisement submitted by the federal government that depicted the “Faces of Global Terrorism.” The advertisement, which was part of an effort to “stop a terrorist” and “save lives,” offered “up to $25 million reward” for helping to capture one of the FBI’s most wanted terrorists. The advertisement appeared as follows:
The terrorists identified in the advertisement are also found on the FBI’s most wanted global terrorist list, which is posted on the FBI’s website. This list includes pictures and “wanted posters” for thirty-two terrorists. Of the thirty-two listed terrorists, thirty are individuals with Muslim names and/or are wanted for terrorism related to organizations conducting terrorist acts in the name of Islam.
Not long after the advertisement was displayed, politically correct politicians and Muslim advocacy groups complained that the list of wanted global terrorists pictured in the advertisement appeared to include mostly Muslim terrorists, which they found to be offensive. As a result of the complaints, the federal government terminated the advertisement campaign.
On July 30, 2013, Pamela Geller and Robert Spencer, who were appalled that the federal government caved into the complaints at the expense of American national security, submitted their own advertisement to King County on behalf of their organization, the American Freedom Defense Initiative (AFDI), which is a national human rights organization that raises awareness about the threat of sharia-adherent Islam and terrorism. AFDI’s advertisement included the same pictures, names, and message as the government’s advertisement.
The AFDI advertisement appears as follows:
Despite having previously accepted the federal government’s “Faces of Global Terrorism” advertisement, on August 15, 2013, King Count rejected AFDI’s advertisement, claiming that it violated their advertising guidelines.
Specifically, King Country claimed that the advertisement contained:
(1) “[M]aterial 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”; (2) “material that demeans or disparages an individual, group of individuals or entity”; and (3) “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” in violation of the County’s Transit Advertising Policy.
As a result of King County’s decision to reject AFDI’s advertisement, AFLC filed a federal civil rights lawsuit on October 7, 2013, against King County. In its complaint, AFLC alleged that the County violated the Constitution on several counts. Specifically:
- The County violated the First Amendment free speech rights of AFDI, Geller, and Spencer
- The County violated the equal protection guarantee of the Fourteenth Amendment by denying AFDI, Geller, and Spencer access to a forum for their speech based on the content and viewpoint of their message; and
- The County violated the Due Process Clause of the Fourteenth Amendment in that the County’s speech restriction is unconstitutionally vague and it grants government officials unbridled discretion to restrict speech that they dislike.
In addition, AFLC also pointed out King County has frequently displayed controversial advertisements in the past. For example, in 2009, King County permitted the display of a highly politicized advertisement to “Save Gaza.” And in 2010, King County permitted the display of a controversial advertisement, “ISRAELI WAR CRIMES: YOUR TAX DOLLARS AT WORK.”
In short, King County’s prior restraint on AFLC’s clients’ speech is clearly unconstitutional. Under the First Amendment, the government is not permitted to impose special prohibitions on speakers who express views on disfavored subjects or because of hostility towards the messenger or the underlying message expressed.
AFLC’s lawsuit was filed in the United States District Court for the Western District of Washington at Seattle. AFLC also intends to promptly file a motion for a preliminary injunction, asking the court to enter an order permitting the immediate display of the AFDI advertisement.
First Amended Complaint
After the district court denied AFDI’s request for a preliminary injunction, AFLC appealed that ruling to the U.S. Court of Appeals for the Ninth Circuit. The Ninth Circuit affirmed the denial based on the claim that AFDI’s advertisement was “false and misleading.” AFLC then sought review in the U.S. Supreme Court. The Court denied the petition, but Justice Thomas, joined by Justice Alito, took the remarkable step of writing a dissent from the denial. Justice Thomas wrote, in part:
This case would allow us to resolve that division [among the federal circuits regarding the display of advertisements on public transit authority property]. King County’s advertising restrictions cannot pass muster if the transit advertising space is a designated public forum. King County bans ads that it deems “false or misleading,” but this Court considers broad, content-based restrictions on false statements in political messages to be generally impermissible. See United States v. Alvarez, 567 U.S. __, __-__, (2012) (plurality opinion) (slip op., at 5-6); see id., at __-__ (BREYER, J., concurring in judgment) (slip op., at 8-10). King County’s prohibitions on “demeaning and disparaging” ads, or ads that could disrupt the transit system by alienating riders, are also problematic content-based restrictions. King County may wish to protect captive riders’ sensibilities, but “‘we are often “captives” outside the sanctuary of the home and subject to objectionable speech.’” Cohen v. California, 403 U.S. 15, 21 (1971). The government cannot automatically “shut off discourse solely to protect others from hearing it.” Ibid. . . . I see no sound reason to shy away from this First Amendment case. It raises an important constitutional question on which there is an acknowledged and well-developed division among the Courts of Appeals. One of this Court’s most basic functions is to resolve this kind of question. I respectfully dissent from the denial of certiorari.
Following this denial, AFDI revised the ad to remove any claim whatsoever that the ad was “false and misleading.” The revised ad appears below:
King County rejected the revised ad, claiming that it was “demeaning and disparaging,” and that it would likely cause disruption to the transit authority. As a result, on April 29, 2016, AFLC filed a First Amended Complaint.
It is likely that this case will wind its way back up to the U.S. Supreme Court once again.
CASE UPDATE (October 10, 2013): AFLC filed a motion for preliminary injunction, asking the federal court in Seattle, Washington, to order the King County transit authorities to display the advertisement immediately, pending the outcome of the litigation.
CASE UPDATE (January 27, 2014): AFLC presented oral argument in support of its motion for a preliminary injunction.
CASE UPDATE (March 7, 2014): AFLC filed its opening brief in the United States Court of Appeals for the Ninth Circuit.
CASE UPDATE (April 28, 2014): AFLC filed its reply brief in the Ninth Circuit.
CASE UPDATE (April 10, 2015): AFLC filed a supplemental brief in the Ninth Circuit.
CASE UPDATE (November 2, 2015): AFLC filed a petition for a writ of certiorari in the U.S. Supreme Court.
CASE UPDATE (January 5, 2016): AFLC filed its reply in support of the petition for a writ of certiorari in the U.S. Supreme Court.
CASE UPDATE (March 7, 2016): The U.S. Supreme Court denied AFLC’s petition, but Justice Thomas, joined by Justice Alito, wrote a dissent from that denial.
CASE UPDATE: Following the denial of cert, AFDI submitted a revised ad, which King County also rejected. AFLC promptly filed an amended complaint. Following discovery, the district court once again ruled in favor of King County. We filed an immediate appeal. You can read our opening brief here and our reply brief here. Oral argument is scheduled before the Ninth Circuit in Seattle, Washington on August 29, 2018.
CASE UPDATE (September 27, 2018): The Ninth Circuit unanimously ruled in our favor, holding that King County’s rejection of AFDI’s revised ad violated the First Amendment.