[vc_row][vc_column][vc_column_text]Q: I work on an environmental campaign related to water and wildlife habitat. I have attempted to place ads on buses and/or at bus stops managed by County Transit and the Transit Authority.
County Transit denied our ads based on their content, which they determined includes “issue advocacy” which is not allowed under their recently-revised advertising policy (this policy excludes all advertisements that do not promote “commercial transactions”).
The Transit Authority has simply ignored all of my attempts to get ads approved or denied. I have spent two months trying to get a response from them one way or the other, with no answer or acknowledgement.[/vc_column_text][ult_buttons btn_title=”Exercise your right to know! Ask FAC’s Legal Hotline your own question!” btn_link=”url:http%3A%2F%2Ffacelementor.wpengine.com%2Flegal-hotline||” btn_align=”ubtn-center” btn_size=”ubtn-custom” btn_width=”630″ btn_height=”70″ btn_padding_left=”10″ btn_padding_top=”10″ btn_bg_color=”#00ade5″ icon=”Defaults-desktop” icon_size=”42″ icon_color=”#000000″ btn_icon_pos=”ubtn-sep-icon-at-left” btn_border_style=”outset” btn_color_border=”rgba(244,244,244,0.37)” btn_color_border_hover=”#ffffff” btn_border_size=”5″ btn_radius=”5″ btn_shadow=”shd-bottom” btn_shadow_color=”#a8a8a8″ btn_shadow_size=”5″ btn_shadow_click=”enable” enable_tooltip=”yes” tooltip_text=”It’s FREE!” tooltip_pos=”top” btn_font_family=”font_family:Raleway|font_call:Raleway” btn_font_style=”font-weight:bold;” btn_font_size=”14″][vc_column_text]A: The issues you describe are similar to those currently under review by the Ninth Circuit Court of Appeals in American Freedom Defense Initiative v. King County, which has been briefed and argued, but has not yet been decided by the Ninth Circuit. In that case, which stems from the Western District of Washington, the plaintiff organization wanted to place ads showing the “faces of global terrorism” on city buses, and was denied.
The organization sued the transit authority for injunctive relief, their preliminary injunction was denied by the trial court, and they appealed to the 9th Circuit. Here’s the case summary from the Western District of Washington, and you can also find pleadings and other information about the case on the American Freedom Law Center’s website.
In denying the plaintiff’s motion for a preliminary injunction, the district court found that the transit authority had created a “limited public forum” in permitting advertising on the sides of its buses, and therefore any restrictions on such advertisements only needed to be reasonable and viewpoint neutral. Am. Freedom Def. Initiative v. King Cnty., 2014 WL 345245, *3 (W.D. Wash. Jan. 30, 2014).
Per the agency’s advertising guidelines, it denied the advertisement at issue – basically mug shots of wanted terrorists from around the globe, with the promise of a large money reward from the FBI for helping capture any one of the terrorists. Id. at *2-3.
The district court found the agency’s restrictions on advertising to be reasonable (the restrictions did not allow for advertising that was false or misleading, demeaning or disparaging, or harmful or disruptive to the transit system), and its decision to reject the plaintiffs’ advertising to be viewpoint neutral. Id. at *5-7.
The transit authority rejected the advertising based on its determination that it contained false or misleading content in connection with the amount of the reward offered for information leading to the capture of any of the pictured terrorists, as well as the federal agency that is offering such a reward, as well as its determination that the ad used the term “jihadi” in a misleading way. Id. at *6-7.
The court accepted the transit authority’s reasons for rejecting the advertisement, and determined the plaintiffs had not demonstrated they were likely to prevail on the merits. Id. at *7.
You might also want to review Seattle Mideast Awareness Campaign v. King County, 781 F.3d 489 (9th Cir. 2015), another recently decided Ninth Circuit case in which the court of appeals upheld the county’s restrictions to its bus advertising program as reasonable and viewpoint neutral.
As you can see, analysis into whether the First Amendment was violated is highly fact specific. You might want to keep tabs on how the Ninth Circuit rules in the AFDI case, as it may give you an idea as to whether Transit Authority and County Transit policies of rejecting any advertisement that it views as an “issues” advertisement, or non-commercial ad, would withstand constitutional scrutiny.
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.[/vc_column_text][/vc_column][/vc_row]