American Freedom Defense Initiative v. King County

King County provides public transportation in the greater

Seattle metropolitan area. The County finances its transit

operations in part by selling advertising space on the exterior

of buses. Although many municipalities restrict advertising

to commercial publicity, King County accepts all ads that do

not contain specified categories of prohibited content. This

case requires us to consider three of those categories: false

4 AFDI V. KING COUNTY

statements, disparaging material, and content that may disrupt

the transit system. Plaintiffs American Freedom Defense

Initiative, Pamela Geller, and Robert Spencer submitted an ad

concerning global terrorism that contained, in the County’s

view, all three types of prohibited content. Plaintiffs then

submitted a revised, factually accurate ad, which the County

rejected under the remaining two categories. Plaintiffs

brought this action under 42 U.S.C. § 1983, alleging that the

County unconstitutionally refused to display their ads. The

district court granted summary judgment to the County, and

Plaintiffs timely appeal.

Reviewing de novo, Dutta v. State Farm Mut. Auto. Ins.

Co., 895 F.3d 1166, 1171 (9th Cir. 2018), we affirm in part

and reverse in part. 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. But the County’s rejection of the revised

ad does not withstand scrutiny. Applying Matal v. Tam,

137 S. Ct. 1744 (2017), we hold that the County’s

disparagement standard discriminates, on its face, on the

basis of viewpoint. Finally, the disruption standard is facially

valid but, on this record, we conclude that the County

unreasonably applied the standard to Plaintiffs’ ad.

FACTUAL AND PROCEDURAL HISTORY

In 2013, the United States Department of State submitted

the following ad to King County’s transit agency, Metro:

AFDI V. KING COUNTY 5

Metro approved the ad without fanfare, and it appeared on

Metro’s buses for nearly three weeks starting on June 6, 2013.

The ad eventually drew the attention of a few members of the

public. Metro received two letters from community leaders

expressing concern that the ads would lead to more hate

crimes, a letter from a member of Congress along the same

lines, and two complaints from Metro-area residents who

worried that the ads were “incendiary” and “inflammatory.”

Metro began a process of reevaluating its approval but, before

the reevaluation concluded, the State Department voluntarily

retracted the ad.1

About a month later, Plaintiffs submitted their own ad,

modeled on the State Department’s placard:

Metro rejected Plaintiffs’ ad, concluding that it failed to

comply with three substantive criteria of Metro’s transit

advertising policy. In Metro’s view, the ad made false

statements; it contained demeaning or disparaging content;

and it foreseeably would harm or disrupt the transit system.

1 In August 2013, the American Civil Liberties Union of Washington

hosted a meeting at which community members expressed concern that

the State Department’s now-retracted ad “left viewers with the false

impression that the look of terrorism is exclusive to people of Middle

Eastern and Asian descent and that people of Middle Eastern or South

Asian descent should be feared and that the particular use of imagery in

the ads promoted stereotyping.”

6 AFDI V. KING COUNTY

Metro’s advertising policy prohibits all three categories of

content (and eight additional categories not at issue here).

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

alleging that Metro’s rejection of the ad violated the First and

Fourteenth Amendments. The district court denied Plaintiffs’

motion for a preliminary injunction, and Plaintiffs appealed.

In a published opinion, we affirmed the district court’s denial

of a preliminary injunction. Am. Freedom Def. Initiative v.

King County (AFDI), 796 F.3d 1165, 1173 (9th Cir. 2015).

We held that Metro’s transit advertising program is a

nonpublic forum and that, accordingly, Metro’s substantive

criteria must be reasonable and viewpoint neutral. Id. at

1169–70. We assessed the factual accuracy of the ad as

follows:

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 most

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

one of the pictured terrorists. Plaintiffs do

not, and cannot, refute those basic facts.

Id. at 1171 (footnote and paragraph break omitted). We

concluded that Metro’s application of its falsity prohibition

was likely both reasonable and viewpoint neutral. Id. at

1171–72. The false statements were indisputable, patent, and

AFDI V. KING COUNTY 7

easily correctable, undermining any argument that Metro

secretly harbored an unconstitutional motive. Id. We

expressly declined to assess Metro’s other two grounds for

rejection: disparagement and disruption to the transit system.

Id. at 1172. Because Plaintiffs were unlikely to succeed on

the merits and because the other relevant factors disfavored

a preliminary injunction, we concluded that the district court

did not abuse its discretion in declining to issue a preliminary

injunction. Id. at 1172–73.

After our decision, Plaintiffs submitted for approval a

revised ad:

The revised version is substantially the same as the original,

but it no longer includes false statements. Metro rejected the

new ad on two grounds: disparagement and disruption to the

transit system. Plaintiffs filed an amended complaint,

challenging Metro’s rejection of both the original and revised

ads as a violation of their right to free speech under the First

Amendment.2 After discovery, the parties filed cross-motions

2 In their amended complaint, as in the original complaint, Plaintiffs

alleged that Metro’s rejection also violated their rights under the

Fourteenth Amendment. On appeal, Plaintiffs briefly mention those

claims as issues presented for review, but Plaintiffs do not substantiate the

assertions with adequate briefing. Accordingly, those claims are waived.

See, e.g., Maldonado v. Morales, 556 F.3d 1037, 1048 n.4 (9th Cir. 2009)

(“Arguments made in passing and inadequately briefed are waived.”);

Retlaw Broad. Co. v. NLRB, 53 F.3d 1002, 1005 n.1 (9th Cir. 1995)

8 AFDI V. KING COUNTY

for summary judgment. The district court granted summary

judgment to the County on all counts, and Plaintiffs timely

appeal.

DISCUSSION

Metro’s bus advertising program is a nonpublic forum

(also called a limited public forum). AFDI, 796 F.3d at 1170;

Seattle Mideast Awareness Campaign v. King County

(SeaMAC), 781 F.3d 489, 498 (9th Cir. 2015). Accordingly,

strict scrutiny does not apply; instead, “Metro’s rejection of

Plaintiffs’ advertisement[s] must be reasonable and viewpoint

neutral.” AFDI, 796 F.3d at 1170. We assess the

reasonableness of a rejection in three ways: (1) by asking

whether the rejection is reasonable in light of the forum’s

purpose; (2) by asking whether Metro’s standard is

sufficiently definite and objective to prevent arbitrary or

discriminatory enforcement by County officials; and (3) by

reviewing the record independently to determine whether the

record supports Metro’s conclusion. Id. at 1169–71. In

considering viewpoint neutrality, we determine whether

Metro’s standard discriminates, on its face or as applied to the

specific ad, on the basis of viewpoint. Id. at 1171.

A. Falsity Standard

The falsity clause in Metro’s transit advertising policy

states that Metro will reject any ad that is:

(“Although the issue . . . is summarily mentioned in [the appellant’s]

opening brief, it has not been fully briefed, and we therefore decline to

address it.”).

AFDI V. KING COUNTY 9

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.

In the earlier appeal, we explained at length why Plaintiffs

were unlikely to succeed on their challenge to Metro’s

rejection of their original, factually inaccurate ad. We held

that the falsity standard, facially and as applied to Plaintiffs’

ad, was likely both reasonable and viewpoint neutral. Id. at

1170–72. Having reviewed the full factual record and having

carefully considered the parties’ arguments, we adopt our

earlier, tentative analysis as our final analysis: The falsity

standard meets constitutional scrutiny, both facially and as

applied.

Falsity is a reasonable standard in light of the purpose of

the transit system. Id. at 1170. The falsity standard is

definite and objective, at least as applied to Plaintiffs’

patently false ad. Id. at 1170–71. The record supports

Metro’s conclusion because Plaintiffs cannot—and do

not—argue that the ad is accurate. Id. at 1171. Finally, the

rejection was viewpoint neutral because nothing in the record

suggests that Metro would accept the same inaccuracy in a

different ad or that Metro has accepted other ads containing

false statements. Id. In sum, Metro permissibly rejected

Plaintiffs’ original ad on the ground of falsity, and we need

not reach the other two grounds for its rejection. Id. at 1172;

accord SeaMAC, 781 F.3d at 499. We therefore affirm the

district court’s grant of summary judgment to the County on

Plaintiffs’ challenge to Metro’s rejection of their original ad.

10 AFDI V. KING COUNTY

Because Metro rejected Plaintiffs’ revised ad on the

grounds of disparagement and disruption, we next consider

those standards.

B. Disparagement Standard

The disparagement clause in Metro’s transit advertising

policy states that Metro will reject any ad that is:

Demeaning or Disparaging. Advertising that

contains material that demeans or disparages

an individual, group of individuals or entity.

For purposes of determining whether an

advertisement contains such material, the

County will determine whether a reasonably

prudent person, knowledgeable of the

County’s ridership and using prevailing

community standards, would believe that the

advertisement 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.

Applying the Supreme Court’s decision in Matal, we

conclude that Metro’s disparagement standard discriminates,

on its face, on the basis of viewpoint.

In Matal, the Supreme Court considered a challenge to the

Lanham Act’s disparagement clause: “This provision

prohibits the registration of a trademark ‘which may

disparage . . . persons, living or dead, institutions, beliefs, or

national symbols, or bring them into contempt, or disrepute.’”

137 S. Ct. at 1753 (quoting 15 U.S.C. § 1052(a)). The

plaintiff had sought registration for the name of his band,

AFDI V. KING COUNTY 11

“The Slants,” which is a derogatory term for Asian-

Americans that the plaintiff sought to “reclaim.” Id. at 1754.

A trademark official denied registration on the ground of

disparagement, and the plaintiff filed suit. Id.

The Court held unanimously that the disparagement

clause is facially invalid under the Free Speech Clause of the

First Amendment. Two four-Justice opinions characterized

some of the sub-issues differently. But all eight Justices

(Justice Gorsuch was recused) held 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. See, e.g., id. at 1751

(plurality) (“[T]his provision violates the Free Speech Clause

of the First Amendment. It offends a bedrock First

Amendment principle: Speech may not be banned on the

ground that it expresses ideas that offend.”); id. at 1763

(plurality) (“Giving offense is a viewpoint.”); id. at 1766

(Kennedy, J., concurring) (“Within that category [of persons

and other things described in the statute], an applicant may

register a positive or benign mark but not a derogatory one.

The law thus reflects the Government’s disapproval of a

subset of messages it finds offensive. This is the essence of

viewpoint discrimination.”).

Matal applies with full force to the disparagement clause

here. No material textual difference distinguishes Metro’s

disparagement clause from the trademark provision at issue

in Matal. Metro’s disparagement clause, like the Lanham

Act’s disparagement clause, requires the rejection of an ad

solely because it offends. Giving offense is a viewpoint, so

Metro’s disparagement clause discriminates, on its face, on

the basis of viewpoint.

12 AFDI V. KING COUNTY

Metro emphasizes that the disparagement clause applies

equally to all proposed ads: none may give offense,

regardless of its content. But the fact that no one may express

a particular viewpoint—here, giving offense—does not alter

the viewpoint-discriminatory nature of the regulation. The

Matal plurality wrote:

To be sure, the clause evenhandedly prohibits

disparagement of all groups. It applies

equally to marks that damn Democrats and

Republicans, capitalists and socialists, and

those arrayed on both sides of every possible

issue. It denies registration to any mark that

is offensive to a substantial percentage of the

members of any group. But in the sense

relevant here, that is viewpoint

discrimination: Giving offense is a viewpoint.

Id. at 1763 (plurality). And Justice Kennedy wrote:

[The government] argues, to begin with, that

the law is viewpoint neutral because it applies

in equal measure to any trademark that

demeans or offends. This misses the point. A

subject that is first defined by content and

then regulated or censored by mandating only

one sort of comment is not viewpoint neutral.

To prohibit all sides from criticizing their

opponents makes a law more viewpoint based,

not less so.

Id. at 1766 (Kennedy, J., concurring).

AFDI V. KING COUNTY 13

It is true that this case involves a nonpublic forum, where

the government generally has more leeway to restrict speech.

But it is settled law that, in a nonpublic forum, regulations

must be reasonable and viewpoint neutral. E.g., Cornelius v.

NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 806

(1985). In a nonpublic forum, “the 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.” Id. We have noted that, in some

instances, “[t]he line between an acceptable subject matter

limitation and unconstitutional viewpoint discrimination is

not a bright one.” Cogswell v. City of Seattle, 347 F.3d 809,

815 (9th Cir. 2003). But we have little difficulty drawing the

line here. Metro accepts ads on a wide range of subject

matters, including terrorism, but denies access to Plaintiffs

and anyone else if the proposed ad offends. We cannot

conclude that the appropriate limitation on subject matter is

“offensive speech” any more than we could conclude that an

appropriate limitation on subject matter is “pro-life speech”

or “pro-choice speech.” All of those limitations exclude

speech solely on the basis of viewpoint—an impermissible

restriction in a nonpublic forum (as in other contexts). See

Wandering Dago, Inc. v. Destito, 879 F.3d 20, 30 (2d Cir.

2018) (“By rejecting [the plaintiff’s] application only on the

ground of its [offensive] branding, defendants impermissibly

discriminated against [the plaintiff’s] viewpoint and therefore

ran afoul of the First Amendment, whether [the plaintiff’s]

speech is categorized as commercial speech, speech in a

public forum, or speech in a nonpublic forum.” (citing Matal,

137 S. Ct. 1744)).

This case thus fundamentally differs from other First

Amendment precedents on which the County relies, because

the purported limitation on subject matter—

14 AFDI V. KING COUNTY

disparagement—facially discriminates on the basis of

viewpoint. In Cogswell, 347 F.3d at 811, we considered

Seattle’s requirement that a candidate limit statements in a

voter’s pamphlet to statements about himself or herself. We

upheld the regulation “[b]ecause Seattle has not restricted

viewpoints on candidate self-discussion, the subject matter

included in the forum.” Id. at 816. Unlike disparagement,

which is itself a viewpoint according to Matal, candidate selfdiscussion

is facially viewpoint neutral.

The same analysis applies to the Supreme Court’s

decision in Arkansas Educational Television Commission v.

Forbes, 523 U.S. 666, 682–83 (1998). There, the Court

considered a candidate debate limited to candidates who had

generated a sufficient level of public interest. The Court held

that the restriction was viewpoint neutral because it was

“beyond dispute that [the plaintiff candidate] was excluded

not because of his viewpoint but because he had generated no

appreciable public interest.” Id. at 682. Unlike

disparagement, the level of public interest in a candidate is

viewpoint neutral.

Similarly, in Cornelius, 473 U.S. at 811–12, the Court

considered a public charity drive’s exclusion of certain types

of organizations. The Court accepted that “a decision to

exclude all advocacy groups, regardless of political or

philosophical orientation, is by definition viewpoint neutral”

and that “[e]xclusion of groups advocating the use of

litigation is not viewpoint-based . . . because litigation is a

means of promoting a viewpoint, not a viewpoint in itself.”

Id. Metro emphasizes the Court’s distinction between “a

means of promoting a viewpoint” and “a viewpoint in itself.”

Metro asserts that, like the viewpoint-neutral restrictions on

advocacy and litigation in Cornelius, Metro’s disparagement

AFDI V. KING COUNTY 15

clause similarly restricts only a means of promoting a

viewpoint, not the underlying viewpoint. But unlike

viewpoint-neutral restrictions on advocacy and litigation, a

disparagement restriction is itself viewpoint discriminatory

on its face, under Matal, even if the restriction also can be

considered a limitation on the means of expressing an

underlying viewpoint.

In sum, Metro’s disparagement clause discriminates, on

its face, on the basis of viewpoint. The disparagement clause

therefore cannot serve as a constitutionally valid basis for

rejecting Plaintiffs’ revised ad.3 We therefore turn to Metro’s

alternative reason to reject the revised ad: feared disruption

to the transit system.

C. Disruption Standard

The disruption clause in Metro’s transit advertising policy

states that Metro will reject any ad that is:

Harmful or Disruptive to Transit System.

Advertising that contains 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.

For purposes of determining whether an

advertisement contains such material, the

County will determine whether a reasonably

prudent person, knowledgeable of the

County’s ridership and using prevailing

3 “Because the restriction is viewpoint discriminatory, we need not

decide whether it is unreasonable in light of the purposes served by the

forum.” Good News Club v. Milford Cent. Sch., 533 U.S. 98, 107 (2001).

16 AFDI V. KING COUNTY

community standards, would believe that the

material is so objectionable that it is

reasonably foreseeable that it will result in

harm to, disruption of or interference with the

transportation system.

We previously upheld, as constitutionally valid on its face, an

earlier version of the disruption clause. SeaMAC, 781 F.3d

at 499–503. Although Metro made some minor changes to

the clause after we decided SeaMAC, none affects the

clause’s facial constitutionality. As explained below, the

present version of the disruption clause, like the earlier one,

survives facial scrutiny.

The clause is reasonable in light of the forum’s purpose

because “[a]ny speech that will foreseeably result in harm to,

disruption of, or interference with the transportation system

is, by definition, incompatible with the buses’ intended

purpose”: “safe and reliable public transportation.” Id. at

500. The standard is also “sufficiently definite and objective

to prevent arbitrary or discriminatory enforcement by County

officials.” Id. The clause’s “ultimate criterion is an objective

one: reasonably foreseeable harm to, disruption of, or

interference with the transportation system. Thus, we are not

left with the specter of a ‘standardless standard’ whose

application will be immune from meaningful judicial

review.” Id. (quoting Hopper v. City of Pasco, 241 F.3d

1067, 1080 (9th Cir. 2001)). Finally, the disruption clause

“[o]n its face . . . is viewpoint neutral: It excludes all

ads—whatever their viewpoint—that may foreseeably result

in harm to, disruption of, or interference with the

transportation system.” Id. at 501–02.

AFDI V. KING COUNTY 17

We emphasize that Matal does not affect the facial

constitutionality of the disruption clause. Although Matal

instructs that Metro may not discriminate solely on the basis

of viewpoint, the disruption clause discriminates on the

permissible, viewpoint-neutral, and objective criterion of

disruption to the transit system. That is, whether or not an ad

is offensive (under a “reasonably prudent person” standard or

otherwise), Metro may reject an ad if harm to the transit

system is reasonably foreseeable.

Metro’s rejection, however, must be borne out by the

record: “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.” SeaMAC, 781 F.3d at 500–01 (internal quotation marks

and brackets omitted). Here, Metro submitted an expert’s

report describing the invidious nature of ads that depict only

persons of a certain race or ethnicity as terrorists. Such ads

may perpetuate harmful stereotypes and may upset riders

which, in turn, may cause a decrease in ridership. Metro has

concluded that, accordingly, it is reasonably foreseeable that

Plaintiffs’ ad will harm the transit system.

Determining whether it is “reasonably foreseeable” that

the transit system will be harmed necessarily requires some

level of speculation, and Metro’s analysis has some

foundation. Here, though, we have an unusual opportunity to

test Metro’s hypothesis. Metro approved a very similar

ad—the State Department’s own “Faces of Global Terrorism”

ad—which actually ran for a period of nearly three weeks.

During that time, Metro received a small number of

complaints and expressions of concern, but Metro’s transit

system did not experience any harm, disruption, or

18 AFDI V. KING COUNTY

interference.4 Metro’s concerns about Plaintiffs’ ad apply

equally to the State Department’s ad, and Metro has not

explained why it fears harm to the transit system from

Plaintiffs’ ad when no harm at all resulted from displaying

the State Department’s ad. Applying the disruption standard

without deference to Metro’s assessment, we cannot conclude

that a reasonably prudent person would reasonably foresee

harm to the transit system from Plaintiffs’ ad. Accordingly,

we hold that Metro’s rejection of Plaintiffs’ revised ad on the

ground of disruption to the transit system was unreasonable.

Because neither of Metro’s reasons for rejecting

Plaintiffs’ revised ad withstands First Amendment scrutiny,

we reverse the district court’s grant of summary judgment to

the County and remand with instructions to enter summary

judgment for Plaintiffs on this claim. We stress that the First

Amendment does not require Metro to tolerate harm to the

transit system. If the situation changes such that Metro

reasonably fears harm, then it may reject, or cancel its

approval of, Plaintiffs’ ad.



* * *



4 The problematic nature of the State Department’s ad escaped the

attention of Metro’s professional staff whose job is to review ads for

conformity with the policy. Indeed, the person who approved the ad has

been involved in the transit advertising program for more than 30 years,

and she has reviewed submissions for precisely this type of problem

“throughout [her] tenure.” She approved the ad without concern until,

after receiving letters from community members, she “eventually came to

understand” its troublesome nature.

AFFIRMED in part; REVERSED in part and

REMANDED with instructions. The parties shall bear their

own costs on appeal.