May government reject political ads from its property, because it concludes they're false?

|The Volokh Conspiracy |

Government agencies often sell advertising space, for instance on buses. May an agency exclude political ads on the grounds that those ads allegedly contain false statements, including on broad questions of history, science, the interpretation of controversial historical documents, and so on? No, said a federal district court in American Freedom Defense Initiative v. Southeastern Pennsylvania Transportation Authority (E.D. Pa. Nov. 25, 2014).

The case involved this ad:


The ad was originally rejected based on a SEPTA policy that barred "[a]dvertising that tends to disparage or ridicule any person or group of persons on the basis of race, religious belief, age, sex, alienage, national origin, sickness or disability"; there was no policy barring political ads that contained allegedly false statements. But when AFDI sued, SEPTA argued that the court shouldn't order it to accept the ad, because the ad was false (and that this falsehood is what made it "disparag[ing]"): Relying on its expert, SEPTA argued that (1) the Koran doesn't actually convey hatred of Jews but only "othering" of Jews, (2) and Haj Amin al-Husseini, the Grand Mufti of Jerusalem from 1921 to 1937, wasn't actually the leader of the world's Muslims.

The district court, though, concluded that the expert report (by Prof. Jamal J. Elias) should be excluded, because the alleged truth or falsity of these assertions was irrelevant to whether they were protected by the First Amendment—and to whether the government could exclude them from the advertising space:

Long standing Supreme Court precedent instructs that political speech does not lose First Amendment protection simply because the listener believes that it is false or disagrees with the message it advances. Allowing the state to restrict political speech based on an assessment that it is false or inaccurate, offends First Amendment principles.

[Footnote: Defendants assert that because SEPTA "made no law prohibiting speech of any sort" that Plaintiffs' speech is not chilled. This argument is unavailing because state actions capable of violating the First Amendment are not confined to legislative prohibitions. SEPTA is a state actor.] …

[T]he advertisement at issue here is exactly the sort of political expression that lies at the heart of the First Amendment. For example, the advertisement's statement "Islamic Jew-Hatred: It's in the Quran. Two Thirds of All U.S. Aid Goes to Islamic Countries," constitutes political expression and reflects Plaintiffs' interpretation of a religious text. This speech is thus entitled to even greater First Amendment protection than the speech at issue in [United States v. Alvarez, the Stolen Valor Act case].

Indeed, the speech in question is protected under the reasoning embraced by each of the three opinions in Alvarez. Justice Kennedy and Breyer both reaffirmed that falsity alone does not strip speech of First Amendment protections. Even under the reasoning of Justice Alito's dissenting opinion, Plaintiff's political speech is protected, regardless of its alleged falsity as Justice Alito clearly indicated that the government may not be the arbiter of truth in matters of public concern such as religion and history.

In light of the precedent discussed above, I find that First Amendment principles apply to the advertisement at issue regardless of its alleged falsity. Consequently, Dr. Elias' conclusions regarding the advertisement's veracity are not relevant and will be excluded from the preliminary injunction hearing….

I'm not sure whether this analysis is entirely right. Advertising space such as this is likely to be seen as a nonpublic forum or a limited public forum, in either of which the government may impose reasonable, viewpoint-neutral restrictions. (See, e.g., Lehman v. City of Shaker Heights (1974), a plurality opinion but one that has been accepted by majorities on the Court since then.) If the government wants to insist that ads that it carries on its buses be accurate, and implements this policy viewpoint-neutrally, I think there's a plausible argument that it may do so, even if it means evaluating the accuracy of historical assertions.

Nonetheless, I don't think this argument is available to SEPTA, for two reasons:

1. The policy that SEPTA is appealing to is not viewpoint-neutral. R.A.V. v. City of St. Paul (1992) held that a ban on "fighting words" that "arouse[] anger, alarm or resentment in others on the basis of race, color, creed, religion or gender" is viewpoint-discriminatory, so that even though a total ban on all fighting words would be constitutional, this viewpoint-based ban is not.

Likewise, even if it's fine for SEPTA to exclude all ads that contain false factual statements, it's still unconstitutional to exclude ads that contain false factual statements that "tend[] to disparage or ridicule any person or group of persons on the basis of race, religious belief, age, sex, alienage, national origin, sickness or disability." Such a selective exclusion is a viewpoint-based restriction, and viewpoint-based restrictions are impermissible even in limited public fora and nonpublic fora.

2. Moreover, the question whether the Koran contains "Jew-hatred" isn't even a factual question as such. (Contrast this with, for instance, the question whether a particular translation of the Koran contains a particular piece of text, which likely would be a factual question.) The question is a matter of how language from the Koran should be evaluated and understood, and whether the language can fairly be labeled "hatred" or is merely "othering" or whatever else. That, I think, isn't a matter of fact, but of opinion.

The question whether al-Husseini was "the leader of the Muslim world" might also qualify as an opinion rather than a factual assertion. (Again, contrast this with, say, the question whether al-Husseini cooperated in specific ways with the Nazis, which likely would be a factual question.) I'm not as certain about that: It may be that al-Husseini had next to no influence with the bulk of the world's Muslim population, for instance if he was influential only with some Arab Muslims, and if even in the 1930s most Muslims were non-Arabs in British India, Indonesia, West Africa, and the like; and perhaps this lack of broad influence is so clear that labeling him "the leader of the Muslim world" could be treated as false, to the point that the government could choose to exclude such a statement from its buses. But my tentative sense is that this is nonetheless better labeled a matter of interpretation and opinion—and, in any event, for reasons given in item 1 above, SEPTA should still lose even as to this statement, even if this statement is treated as factually false.

Finally, one could certainly argue that the government should be able to pick and choose what ads it allows, even in viewpoint-based ways—whether to avoid alienating some customers or to avoid conveying ideas that government officials think are evil or factually unsupported. But that's just not the legal rule that the Court has adopted; when the government opens up space for a wide range of speakers, the Court has repeatedly held that the government needs to act viewpoint-neutrally.