A three-judge panel of the 9th U.S. Circuit Court of Appeals has given a thumbs down to censorship of an ad called “Faces of Global Terrorism.”
The years-long lawsuit is over an ad based on an image created by the State Department that previously was run on county buses in the Seattle area.
The ad was submitted to King County Metro Transit by Pamela Geller, Robert Spencer and their organization, the American Freedom Defense Initiative.
It first was rejected on a long list of grounds, including that some of its statements were inaccurate.
The statements were corrected, but King County Metro Transit still rejected it on the grounds that it disparaged some people and might disrupt the system.
Those are both lofty ideals, but unconstitutional in this case, the court ruled.
“We conclude that Metro’s disparagement standard discriminates, on its face, on the basis of viewpoint,” the panel explained. The ruling said Metro requires the refusal of ads that disparage people, but “giving offense is a viewpoint, so Metro’s disparagement clause discriminates.”
As for the disruption?
The transit system previously had run the largely similar ad presented by the State Department, with no ill effects.
“It is settled law that, in a nonpublic forum, regulations must be reasonable and viewpoint neutral,” the court said. “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.”
The lawsuit was filed by the American Freedom Law Center in the United States District Court for the Western District of Washington at Seattle on behalf of Geller, Spencer and AFDI.
The ad at issue was modeled after an advertisement submitted by the federal government and accepted for display by the county in 2013. The State Department ad depicted the “Faces of Global Terrorism” in an effort to “stop a terrorist” and “save lives.” The advertisement offered an “up to $25 million reward” for helping to capture one of the FBI’s most wanted terrorists.
The terrorists in the ad were found on the FBI’s most wanted global terrorists list.
At the time, the list included pictures and “wanted posters” for 32 terrorists. Of the 32 listed terrorists, 30 were individuals with Muslim names or were wanted for terrorism related to organizations conducting terrorist acts in the name of Islam.
When the government ended its ad, Geller, Spencer and their organization resubmitted the image and message.
AFLC co-founder Robert Muise explained: “This is an important victory for free speech. Too often we are seeing government officials restricting speech based on claims that it is demeaning, disparaging, or offensive. The First Amendment does not allow such censorship, as the Ninth Circuit’s opinion makes clear.
“Under the First Amendment, the government is not permitted to impose special prohibitions on speakers who express views on disfavored subjects or on the basis of hostility towards the messenger or the underlying message expressed.”
AFLC Senior Counsel David Yerushalmi said: “It is clear from the record and the Ninth Circuit’s decision that King County, which initially accepted the federal government’s ad only to have the feds pull the ad for fear of offending Muslims, is suffering from the debilitating disease of political correctness. And there is little doubt that County officials also dislike the messenger – our clients – who are doing a great service by alerting all Americans to the dangers of sharia and its followers.”
Similar lawsuits also have been filed against transit systems in New York, Philadelphia and Washington, D.C.
“In each of those cases, the transit authorities were forced to pay substantial legal fees to AFLC. In Chicago, the transit authority initially refused to run an AFDI ‘anti-jihad’ ad, only to capitulate after stating in a letter that while transit authority officials considered the ad ‘morally reprehensible,’ they were aware of AFLC’s successful litigation,” AFLC said.
Geller, who immediately announced a campaign to fund placement of the ads now, said the AFDI ad was a virtual copy of the one from the FBI.
“The cowards at Seattle King Metro refused to run the ad, claiming that it was disparaging to Muslims. Reality is disparaging to Muslims?” she wondered.
At one point earlier in the case, several members of the U.S. Supreme Court sounded off.
Justices Clarence Thomas and Samuel Alito pointed out that such censorship would give different jurisdictions of the nation different standards to determine free speech.
“The First Amendment prohibits the government from ‘abridging the freedom of speech.’ But the court has struggled with how that guarantee applies when private speech occurs on government property,” they wrote.
They explain that in a “traditional public forum,” such as a park or public street, there are allowed minimal limits on speech. And with a “designated public forum,” it’s the same.
“But if the government creates a limited public forum – (also called a nonpublic forum) – namely, ‘a forum that is limited to use by certain groups or dedicated solely to the discussion of certain subjects’ – then speech restrictions need only be ‘reasonable and viewpoint neutral,'” they wrote.
Therein lies the problem, they said, because courts have been inconsistent on the definitions.
“Transit authorities in Chicago, Detroit, New York City, and Washington, D.C., are bound by rulings that classify their ad spaces as designated public forums and, thus, prohibit content-based restrictions on advertising. Transit authorities in Boston – and, in this case, Seattle – are similarly open to political speech, yet can freely restrict speech based on its content.”
At the time, they wrote, “Whether public transit advertising spaces are designated or limited public forums determines what speech millions of Americans will – or will not – encounter during their commutes.”