Am Freedom Defense Initiative v. King County , 796 F.3d 1165 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMERICAN FREEDOM DEFENSE No. 14-35095
INITIATIVE; PAMELA GELLER;
ROBERT SPENCER, D.C. No.
Plaintiffs-Appellants, 2:13-cv-01804-
RAJ
v.
KING COUNTY, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Argued June 15, 2015
Resubmitted August 5, 2015
San Francisco, California
Filed August 12, 2015
Before: Michael Daly Hawkins, Susan P. Graber,
and Ronald M. Gould, Circuit Judges.
Opinion by Judge Graber
2 AFDI V. KING COUNTY
SUMMARY*
Civil Rights
The panel affirmed the district court’s denial of a
preliminary injunction in an action brought under 42 U.S.C.
§ 1983 by plaintiffs, American Freedom Defense Initiative
and two individuals, after King County’s public transit
agency, Metro, rejected plaintiffs’ “Faces of Global
Terrorism” advertisement, which plaintiffs sought to have
displayed on the exterior of Metro’s buses.
Applying Seattle Mideast Awareness Campaign v. King
County, 781 F.3d 489 (9th Cir. 2015), the panel first held that
plaintiffs had not demonstrated a likelihood of success on
their claim that Metro’s rejection of their ad violated the First
Amendment’s guarantee of the freedom of speech. The panel
held that the advertising space on buses under the 2012 transit
advertising policy was a nonpublic forum, and that Metro’s
rejection of plaintiffs’ ad, on the ground that it was false,
likely was reasonable and viewpoint neutral.
The panel also held that plaintiffs had not demonstrated
irreparable harm. The panel determined that the district
court’s denial of a preliminary injunction constrained
plaintiffs’ speech in only a small way: they cannot express
their message on the sides of Metro’s buses while their case
is pending. The panel stated that nothing in the district
court’s denial of a preliminary injunction prevented plaintiffs
from displaying the same ad in many alternative fora.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
AFDI V. KING COUNTY 3
COUNSEL
Robert Joseph Muise (argued), American Freedom Law
Center, Ann Arbor, Michigan; and David Yerushalmi,
American Freedom Law Center, Washington, D.C., for
Plaintiffs-Appellants.
David J. Hackett (argued) and Linda M. Gallagher, Senior
Deputy Prosecuting Attorneys, Seattle, Washington, for
Defendant-Appellee.
Sarah A. Dunne, Legal Director, and La Rond M. Baker,
ACLU of Washington Foundation; and Venkat
Balasubramani, Focal PLLC, Seattle Washington, for Amicus
Curiae American Civil Liberties Union of Washington.
OPINION
GRABER, Circuit Judge:
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 adult-
related 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 pre-
screening 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 viewpoint-
based 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.