American Freedom Defense v. King County

Defendant King County’s public transit agency, Metro,

operates an extensive public transportation system in the

greater Seattle metropolitan area, with the primary purpose of

providing safe and reliable public transportation. Like many

transit agencies, Metro finances its operations in part by

selling advertising space, including on the exteriors of its

buses. Advertisements must meet guidelines specified in

Metro’s transit advertising policy. In 2013, Metro rejected an

advertisement submitted by Plaintiff American Freedom

Defense Initiative, a nonprofit entity headed by Plaintiffs

Pamela Geller and Robert Spencer, because Metro concluded

that the ad failed to meet the guidelines. Plaintiffs declined

to discuss the rejection with Metro and, instead, filed this

4 AFDI V. KING COUNTY

action under 42 U.S.C. § 1983. Arguing that Metro’s

rejection violated the First Amendment, Plaintiffs sought a

preliminary injunction requiring Metro to publish the ad. The

district court denied the motion, and Plaintiffs filed this

interlocutory appeal. Because we conclude that the district

court did not abuse its discretion, Friends of the Wild Swan v.

Weber, 767 F.3d 936, 942 (9th Cir. 2014), we affirm.

FACTUAL AND PROCEDURAL HISTORY

Metro’s 2012 transit advertising policy, which was in

effect at all times relevant to this appeal, requires that ads on

Metro’s buses meet certain substantive criteria. In general,

advertisements are allowed unless they fall within one of the

following eleven categories listed in section 6.2 of the policy:

1. Political campaign speech

2. Tobacco, alcohol, firearms, and adultrelated

products and services

3. Sexual or excretory subject matter

4. False or misleading

5. Copyright, trademark, or otherwise

unlawful

6. Illegal activity

7. Profanity and violence

8. Demeaning or disparaging

AFDI V. KING COUNTY 5

9. Harmful or disruptive to transit system

10. Lights, noise, and special effects

11. Unsafe transit behavior

Metro enforces the criteria by screening advertisements for

compliance with the policy.

In 2013, the United States Department of State submitted

the following advertisement:

Metro reviewed the advertisement, concluded that it met the

transit advertising policy’s substantive criteria and,

accordingly, approved it for display on the exterior of Metro’s

buses.

After the ad began appearing on bus exteriors, Metro

received a small number of complaints from the public,

including from a member of Congress and at least two

community leaders. The complaints characterized the ad as

offensive and expressed concerns that the ad would increase

mistreatment of racial, ethnic, and religious minorities who

have a similar appearance or name to the persons shown in

the ad. In response to the complaints, Metro began a process

of reevaluating its approval of the ad. Before that

reevaluation concluded, the State Department voluntarily

retracted the ad.

6 AFDI V. KING COUNTY

The next month, Plaintiffs submitted their own

advertisement, which is very similar—but not identical—to

the State Department’s ad:

Metro rejected the ad because, in Metro’s view, it failed to

comply with sections 6.2.4, 6.2.8, and 6.2.9 of the transit

advertising policy. Those provisions prohibit advertisements

that are false or misleading, demeaning or disparaging, or

harmful or disruptive to the transit system.

Plaintiffs then filed this action under 42 U.S.C. § 1983.

Plaintiffs allege that Metro’s rejection of the ad violated their

constitutional rights of free speech, equal protection, and due

process. Plaintiffs moved for a preliminary injunction on the

ground that they are likely to prevail on their First

Amendment claim. The district court denied the motion,

concluding that Plaintiffs had established none of the

requirements for a preliminary injunction. Plaintiffs timely

filed this interlocutory appeal.

We initially deferred submission pending this court’s

resolution of Seattle Mideast Awareness Campaign

(“SeaMAC”) v. King County, 781 F.3d 489 (9th Cir. 2015).

After that decision upheld Metro’s rejection of a public-issue

advertisement under an earlier version of Metro’s advertising

policy, we ordered supplemental briefing on the effect of that

case. We now affirm.

AFDI V. KING COUNTY 7

DISCUSSION

“A plaintiff seeking a preliminary injunction must

establish that he is likely to succeed on the merits, that he is

likely to suffer irreparable harm in the absence of preliminary

relief, that the balance of equities tips in his favor, and that an

injunction is in the public interest.” Winter v. Natural Res.

Def. Council, Inc., 555 U.S. 7, 20 (2008).

A. Likelihood of Success on the Merits

Plaintiffs argue that they are likely to prevail on the

merits of their claim that Metro’s rejection of the ad violated

the First Amendment’s guarantee of the freedom of speech.

Our recent decision in SeaMAC guides our analysis. That

case concerned Metro’s rejection of a proposed anti-Israel

advertisement under an earlier version of Metro’s transit

advertising policy. SeaMAC, 781 F.3d at 493–95. Metro had

rejected the ad, in part on the ground that the ad was harmful

or disruptive to the transit system. Id. at 493 & n.1, 495.

SeaMAC sued under 42 U.S.C. § 1983, alleging a violation

of the First Amendment. Id. at 495. The district court

granted summary judgment to King County, and SeaMAC

appealed. Id.

We first considered, at great length, the type of forum that

Metro had created on the exteriors of its buses. Id. at 495–99.

We held that Metro had created only a nonpublic forum and

not a designated public forum.1 Id. at 498. We clarified that,

1 We noted in SeaMAC that the Supreme Court and this court have used

the terms “limited public forum” and “nonpublic forum” interchangeably

to describe areas that fall short of a classification that warrants heightened

scrutiny. 781 F.3d at 496 n.2. Noting that “[t]he label doesn’t matter,” we

8 AFDI V. KING COUNTY

even in a nonpublic forum, the government may not impose

“whatever arbitrary or discriminatory restrictions on speech

it desires[;] . . . any subject-matter or speaker-based

limitations must still be reasonable and viewpoint neutral.”

Id. at 499. We then held that Metro’s application of the

prohibition against ads considered harmful or disruptive to

the transit system met both requirements. Id.

Under the heading of the “reasonableness” requirement,

SeaMAC rejected three separate arguments that are relevant

here. First, we held that the standard was reasonable “in light

of the purpose served by the forum” because the intended

purpose of Metro’s buses “is to provide safe and reliable

public transportation,” and prohibiting harm or disruption to

that purpose is reasonable. Id. at 499–500. Second, we held

that the standard is “sufficiently definite and objective to

prevent arbitrary or discriminatory enforcement by County

officials,” chiefly because the standard is tied to an

objectively measurable criterion: whether the ad caused harm

or disruption to the transit system. Id. at 500. Third, we held

that we must ensure that the perceived threat to the transit

system was legitimate: “We must independently review the

record, without deference to the threat assessment made by

County officials, to determine whether it shows that the

asserted risks were real.” Id. at 500–01 (internal quotation

marks and brackets omitted). In that regard, we agreed with

Metro’s assessment of disruption to the transit system

chose to use the term “limited public forum.” Id. We agree that the label

is immaterial, because the relevant question is whether we apply

heightened scrutiny. But, in light of the Supreme Court’s recent decision

in Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239

(2015), the proper term likely is “nonpublic forum.” See id. at 2250–51

(discussing the types of fora). For that reason, we use the term “nonpublic

forum.”

AFDI V. KING COUNTY 9

because of the significant number, and serious nature, of the

threats that Metro had received. Id. at 501; see id. at 494–95

(detailing the threats Metro received and their effect on

Metro’s operations). Finally, we held that Metro’s rejection

of the proposed ad was viewpoint neutral, primarily because

Metro decided to reject all pending ads on the topic, both pro-

Israel and pro-Palestine. Id. at 501–03.

Turning to the case at hand, Plaintiffs first contend that

the advertising space on buses is a designated public forum.

We disagree. As noted above, we held in SeaMAC that the ad

space under the earlier version of Metro’s transit advertising

policy was a nonpublic forum only. The earlier policy and

the 2012 policy differ slightly, but those differences either

confirm that Metro intended to create a nonpublic forum or

have no effect on the forum analysis.

In conducting the forum analysis, “we focus on the

government’s intent.” Id. at 496. The 2012 policy states, in

a lengthy section dedicated to addressing the type of forum

created, that “the County does not intend its acceptance of

transit advertising to convert [its ad spaces] into open public

forums.” See Cornelius v. NAACP Legal Def. & Educ. Fund,

Inc., 473 U.S. 789, 803 (1985) (“We will not find that a

public forum has been created in the face of clear evidence of

a contrary intent . . . .”); see also Ark. Educ. Television

Comm’n v. Forbes, 523 U.S. 666, 680 (1998) (holding that,

“with the exception of traditional public fora, the government

retains the choice of whether to designate its property as a

forum for specified classes of speakers”). Additionally, all

three of the factors discussed by SeaMAC are identical under

the earlier and current policies: (1) Metro adopted a prescreening

process (the policy at issue); (2) Metro has rejected

a range of proposed ads, including other public-issue ads; and

10 AFDI V. KING COUNTY

(3) the nature of the government property—space on buses

whose primary purpose is to provide safe and efficient public

transportation—suggests a nonpublic forum. SeaMAC,

781 F.3d at 497–98; see also Walker, 135 S. Ct. at 2251

(holding that the fact that “the State exercises final authority

over [content] . . . militates against a determination that Texas

has created a public forum”). Accordingly, we conclude that

the advertising space on Metro’s buses under the 2012 transit

advertising policy is a nonpublic forum.

Because it has created a nonpublic forum only, Metro’s

rejection of Plaintiffs’ advertisement must be reasonable and

viewpoint neutral. SeaMAC, 781 F.3d at 499. Metro rejected

Plaintiffs’ advertisement in part because it concluded that the

ad violated section 6.2.4 of the 2012 policy. That section

prohibits advertisements in the following category:

False or Misleading. Any material 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.

The first “reasonableness” criterion asks whether that

standard is reasonable “in light of the purpose served by the

forum.” SeaMAC, 781 F.3d at 499 (internal quotation marks

omitted). The purpose of Metro’s transit system is to provide

safe and efficient public transportation to its customers.

Public transit riders are, by necessity, a “captive audience.”

Lehman v. City of Shaker Heights, 418 U.S. 298, 302 (1974)

(four-justice plurality) (internal quotation marks omitted); id.

at 307 (Douglas, J., concurring); see also Children of the

Rosary v. City of Phoenix, 154 F.3d 972, 977 (9th Cir. 1998)

(holding that this concern applies to advertisements on bus

AFDI V. KING COUNTY 11

exteriors). Metro has an interest in preventing the

dissemination of false information to a captive audience that

it has created by providing public transit services. Rules

designed to avoid “imposing upon a captive audience” further

a “reasonable legislative objective[]” in a nonpublic forum.

Lehman, 418 U.S. at 304. Accordingly, Metro’s prohibition

on false ads likely is sufficiently reasonable in light of the

purpose served by Metro’s buses. See Int’l Soc’y for Krishna

Consciousness of Cal., Inc. v. City of Los Angeles, 764 F.3d

1044, 1052 (9th Cir. 2014) (holding that a prohibition on the

in-person solicitation of funds from airport travelers in a

nonpublic forum was reasonable given the “risk of deceit”);

see also Cornelius, 473 U.S. at 808 (“The Government’s

decision to restrict access to a nonpublic forum need only be

reasonable; it need not be the most reasonable or the only

reasonable limitation.”).

The second reasonableness criterion is that the standard

must be “sufficiently definite and objective to prevent

arbitrary or discriminatory enforcement by County officials.”

SeaMAC, 781 F.3d at 500. Plaintiffs properly point out that

truth or falsity may often be in the eye of the beholder. For

example, whether God exists can be considered a question of

metaphysics or personal belief. Whatever merit that

observation has in the abstract, however, there are also some

subjects that can be assessed for factual accuracy.

This case provides a good example. Plaintiffs’ proposed

ad states, in prominent text: “The FBI Is Offering Up To $25

Million Reward If You Help Capture One Of These Jihadis.”

That statement is demonstrably and indisputably false. The

FBI is not offering a reward up to $25 million for the capture

of one of the pictured terrorists. The FBI is not offering

rewards at all, and the State Department offers a reward of at

12 AFDI V. KING COUNTY

most $5 million, not $25 million, for the capture of one of the

pictured terrorists.2

Plaintiffs do not, and cannot, refute those basic facts.

Instead, Plaintiffs speculate that the factual inaccuracies are

not relevant because, for example, someone calling the FBI

to collect a reward will likely be directed to the State

Department. In addition to being speculative, Plaintiffs’

assertions are beside the point. It is indisputable that

Plaintiffs’ proposed ad is plainly inaccurate as a simple

matter of fact. As applied here, then, section 6.2.4 likely is

“sufficiently definite and objective to prevent arbitrary or

discriminatory enforcement by County officials.” SeaMAC,

781 F.3d at 500.

For the same reasons, the third “reasonableness”

criterion—whether an independent review of the record

supports Metro’s conclusion that the ad is false—also is met.

As just explained, two prominent statements in Plaintiffs’

proposed advertisement are indisputably false.

The Supreme Court’s decision in New York Times v.

Sullivan, 376 U.S. 254 (1964), is not to the contrary. In that

case, the Court held that the government could not punish

false private speech about “the official conduct of public

officials.” Id. at 268. New York Times does not bear on

whether the government may prohibit demonstrably false

statements in a nonpublic forum created by the government.

King County could not, of course, extend its prohibition on

false speech to, for example, traditional public fora or private

2 The State Department does offer a reward up to $25 million for the

capture of some persons, but not for one of the persons pictured in

Plaintiffs’ ad.

AFDI V. KING COUNTY 13

publications. But Plaintiffs have not cited—and we have not

found—any case suggesting that the holding of New York

Times applies to reasonable restrictions in a nonpublic forum.

We decline to do so here. Because Metro’s application of the

accuracy standard likely meets all three “reasonableness”

criteria announced in SeaMAC, we hold that Metro’s rejection

of the ad for inaccuracy likely was reasonable.

Finally, we conclude that Metro’s rejection of the ad for

inaccuracy likely was viewpoint neutral. Nothing in the

record suggests either that Metro would have accepted the ad

with the same inaccuracy if only the ad had expressed a

different viewpoint or that Metro has accepted other ads

containing false statements.

In sum, we agree with the district court that Plaintiffs

have not demonstrated a likelihood of success on the merits,

because Metro’s rejection of the ad on the ground of falsity

likely was reasonable and viewpoint neutral. But we

emphasize the limited nature of our holding, which applies

only to objectively and demonstrably false statements where

the circumstances of the case do not give rise to an inference

of unreasonableness or viewpoint-based discrimination.

In that regard, we note that a hypothetical rejection of an

ad for a trivial inaccuracy might give rise to an inference that

the rejection was, in fact, unreasonable or viewpoint-based.

For example, an advertisement stating in a chart that, in a

given year, 963 abortions had been performed when, in fact,

the correct number was 964 could, depending on all the

circumstances, suggest an unreasonable or viewpoint-based

rejection. The grounds of the rejection here, however, do not

raise those concerns. The ad states in prominent text that the

FBI offers a reward of up to $25 million. There is a

14 AFDI V. KING COUNTY

considerable difference between the FBI, which operates

under the jurisdiction of the Department of Justice, and the

State Department, a separate federal agency; and the

difference between $5 million and $25 million—five times as

much—is not de minimis or irrelevant.

Similarly, we note that rejections surviving constitutional

scrutiny will, in most if not all cases, concern advertisements

that can be corrected easily. Here, for example, Plaintiffs

could have submitted a corrected advertisement that

substituted “The State Department” for “The FBI” and “$5

million” for “$25 million”—or fixed the factual inaccuracies

in countless other ways. An unreasonable response by Metro

to an advertiser’s attempt to correct factual inaccuracies could

give rise to an inference of unreasonableness or viewpointbased

conduct. Here, however, Plaintiffs declined to discuss

the rejection with Metro and chose to stand on their factually

inaccurate ad.

On this record, we find no inference of unreasonableness

or viewpoint-based conduct by Metro. Accordingly, we

conclude that Plaintiffs have not established a likelihood of

success on the merits with respect to Metro’s rejection of the

ad on the ground that it was false. We need not, and do not,

reach Metro’s other reasons for rejecting the ad. See

SeaMAC, 781 F.3d at 499 (“We conclude that the County’s

application of [one policy provision] was reasonable and

viewpoint neutral, and therefore have no occasion to address

the validity of [another policy provision].”).

B. The Remaining Three Winter Factors

To warrant a preliminary injunction, Plaintiffs must

demonstrate not only a likelihood of success but also

AFDI V. KING COUNTY 15

irreparable harm, a favorable balance of equities, and a

finding that an injunction is in the public interest. Winter,

555 U.S. at 20. Both before the district court and before us,

Plaintiffs have argued only that those three requirements are

met because, in their view, they have shown a likelihood of

success on the merits. Because we concluded above that

Plaintiffs have not demonstrated a likelihood of success, their

argument necessarily fails.

But even if Plaintiffs had demonstrated some likelihood

of success, they nevertheless would not be entitled to a

preliminary injunction. We recently reiterated that, “although

a First Amendment claim certainly raises the specter of

irreparable harm and public interest considerations, proving

the likelihood of such a claim is not enough to satisfy

Winter.” Vivid Entm’t, LLC v. Fielding, 774 F.3d 566, 577

(9th Cir. 2014) (internal quotation marks omitted). Here,

Plaintiffs cannot satisfy Winter, even if they had shown a

likelihood of success.

Plaintiffs seek to alter the status quo ante by obtaining an

order requiring Metro to publish an ad previously

unpublished. Accordingly, they seek a “mandatory

injunction.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma

GmbH & Co., 571 F.3d 873, 878–79 (9th Cir. 2009).

Mandatory injunctions are “particularly disfavored.” Id. at

879 (internal quotation marks omitted). “In general,

mandatory injunctions are not granted unless extreme or very

serious damage will result and are not issued in doubtful

cases . . . .” Id. (internal quotation marks omitted).

Plaintiffs cannot meet that high bar, because the district

court’s denial of a preliminary injunction constrains

Plaintiffs’ speech in only a small way: They cannot express

16 AFDI V. KING COUNTY

their message on the sides of Metro’s buses while this case is

pending. Nothing in the district court’s denial of a

preliminary injunction prevents Plaintiffs from displaying the

same ad in many alternative fora, for example, on Seattle

billboards, in Seattle newspapers, on Seattle television

stations, on Seattle buses run by companies other than Metro,

or in many venues in other cities. The availability of

alternative fora for Plaintiffs’ speech weighs against the

issuance of a preliminary injunction. Cf. Cornelius, 473 U.S.

at 809 (“The First Amendment does not demand unrestricted

access to a nonpublic forum merely because use of that forum

may be the most efficient means of delivering the speaker’s

message.”); Cogswell v. City of Seattle, 347 F.3d 809, 818

(9th Cir. 2003) (“Cogswell and other candidates have not

been unreasonably censored because they have other forums

for campaigning where they are able to communicate material

limited by the restriction on this forum.”). In sum, even if

Plaintiffs had demonstrated some likelihood of success on the

merits, they still would not have been entitled to a

preliminary injunction because they have not shown that

“extreme or very serious damage will result” from the denial

of a preliminary injunction. Marlyn Nutraceuticals, 571 F.3d

at 879.

AFFIRMED