Supreme Court

Does the 1st Amendment Apply to Political Ads in Public Transit Systems? SCOTUS Refuses to Weigh In, Clarence Thomas Dissents

Supreme Court declines to hear arguments in American Freedom Defense Initiative v. King County.

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Credit: C-SPAN

The U.S. Supreme Court today declined to take up a First Amendment case out of Seattle which asked whether the government may refuse to run certain political ads in a public transit system due to the political content of those ads. Writing in dissent, Justice Clarence Thomas, joined by Justice Samuel Alito, faulted his colleagues for refusing to take the case and thereby failing "to bring clarity to an important area of First Amendment law."

At issue in American Freedom Defense Initiative v. King County is the Seattle metropolitan area transit authority's decision to refuse to run an advertisement that featured the faces of 16 terrorists wanted by the federal government accompanied by their names and the message, "AFDI Wants You to Stop a Terrorist. The FBI Is Offering Up To $25 Million Reward If You Help Capture One Of These Jihadis." AFDI is a conservative nonprofit headed by Pamela Geller and Robert Spencer. According to county officials, the group's proposed message is "false or misleading" because the State Department, not the FBI, has offered the reward. The advertisement was also rejected on the grounds that it would be "demeaning and disparaging" to Muslims "by equating their dress and skin color with terrorists."

If the same message had been written on a placard and that placard had been displayed on a Seattle street or in a Seattle park, any government attempt to silence or restrict the message would be subjected to exacting judicial scrutiny under the First Amendment. That's because the Supreme Court has long recognized that the First Amendment stands as a bulwark when the government tries to restrict speech in a "traditional public forum," such as public streets or public parks.

The Supreme Court has taken a different approach, however, when it comes to other types of government property. In June 2015, for example, in Walker v. Sons of Confederate Veterans, the Court ruled that the Texas Department of Motor Vehicles did not violate the Constitution when it refused to create a specialty licensing plate bearing the image of the Confederate battle flag. License plates, the Court said, do not qualify as designated public forums.

What about public transit systems? In the present case, the U.S. Court of Appeals for the 9th Circuit ruled in favor of the Seattle-area system and its rejection of the controversial "wanted poster" ad. As the 9th Circuit observed, the plaintiffs "contend that the advertising space on buses is a designated public forum. We disagree."

Yet several other federal circuits have reached the opposite conclusion. According to the U.S. Court of Appeals for the District of Columbia Circuit, for example, once a public transit authority decides to accept "political advertising" it "has converted its subway stations into public fora." At that point, the D.C. Circuit argued, the First Amendment kicks in.

In other words, the First Amendment currently applies differently in some parts of the country versus others in the context of government restrictions on political advertisements in public transit systems. It was this circuit split that apparently captured the interest of Justice Clarence Thomas.

"Materially similar public transit advertising programs should not face such different First Amendment constraints based on geographical happenstance," Thomas wrote today. In Thomas' view, the Supreme Court had no business "shy[ing] away from this First Amendment case. It raises an important constitutional question on which there is an acknowledged and well-developed division among the Courts of Appeals. One of this Court"s most basic functions," Thomas declared, "is to resolve this kind of question."

Justice Thomas' dissent from denial of certiorari in American Freedom Defense Initiative v. King County is available here.

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  1. According to county officials, the group’s proposed message is “false or misleading” because the State Department, not the FBI, has offered the reward.

    The greenbacks spend the same either way. Methinks it’s more the second reason.

  2. Would the transit agency have approved the ad if it had congratulated the jihadis for being so precious?

    AFDI Wants You to Congratulate a Terrorist. The FBI Is Offering Up To $25 Million Reward If You Help Capture One Of These Jihadis.

    1. In that case it would not be viewpoint neutral, so I think the plaintiffs would have had a better chance had SCOTUS granted cert.

  3. It seems to me that the local government might have an ability to select what speech appears on the buses. It already does so by charging for the ability to post your speech on the bus.

    That said, I think its also fair to say that, once they allow political speech, they can’t well discriminate about which political speech.

    1. Right. The transit authority would probably argue that ads on public buses are “government speech,” but IIRC there’s SCOTUS precedent that establishes they are in fact a designated public forum and therefore must be viewpoint neutral. I think the 9th Cir. is wrong here (no surprise – they are one of the most overturned circuits in the country).

      1. The transit authority would probably argue that ads on public buses are “government speech,” but IIRC there’s SCOTUS precedent that establishes they are in fact a designated public forum and therefore must be viewpoint neutral.

        Literally the whole point of this article is that there is not yet such a SCOTUS precedent.

        1. I swear there is some SCOTUS case from the 1970s (but I’m having trouble finding it) that at least touches on this issue. In any case, I think it’s absurd to conclude that ad space on public buses is not some kind of public forum.

          1. Damn, I didn’t RC. The case I was thinking of is Lehman v. City of Shaker Heights, which held that the ad space in public buses was reasonably restricted to “commercial” advertising.

    2. But they have to discriminate, don’t they? I mean, assuming there is a greater demand for ad space than there is a supply, they have to decide which among several advertisers gets the spot for that time period.

      1. You could still challenge it based on enforcement (i.e., they discriminate based on viewpoint, not based on economics/scarcity of resource), though the government would not have to meet as a high a standard as strict scrutiny.

        1. If for whatever reason they can’t raise the price, then they can choose by sortition.

          1. And that would survive under rational basis, but I don’t think it would under heightened scrutiny.

      2. Setting a price for a scarce good is not the same as making a selection based on content or viewpoint.

        1. I’m talking about selection above the price mechanism. Even at a set price there will be multiple contenders for the same ad space, and the MTA will have to decide between Northrup-Grumman or Irish’s brownshirt and pointy-hood outlet. Since its a government entity, wouldn’t any choice it makes be inherently political?

          1. I don’t think it would matter because some kind of heightened scrutiny would apply if ad space on public transit is a designated public forum. Of course, MTA could get around the rule by simply refusing to run ads that either praise or condemn Islamic terrorism, since then the restriction would be viewpoint neutral even though it is content-based.

          2. Since its a government entity, wouldn’t any choice it makes be inherently political?

            Practically speaking, yes. But the courts still entertain the farcical notion that some branches of government are apolitical.

          3. wouldn’t any choice it makes be inherently political?

            Are you asking if any choice in the examples you gave, or any choice period? I’m not sure I see a political choice between Beacon Plumbing and Verne Fonk insurance agency.

            I’m also not sure how the ‘choice’ is made. Do they ‘reject’ advertising from anyone, or do you simply get space as it’s available?

            1. I can think of plenty of legitimate businesses they probably refuse. Strip clubs, for example.

              1. From what I understand, they can refuse strip club ads, but they can’t refuse pro-strip club political messages if they allow anti-strip club political messages.

          4. The fact that there are two bidders suggests to me only that the price needs to be raised.

      3. Raising the price so that demand more closely meets with supply is not usually considered discriminatory.

      4. As long as they are running ads for other government orgs, like the “click it or ticket” folks, then no. I assume they get those ads for free or at a vastly discounted rate.

    3. Something tells me that if this was a town in the Midwest and the ad was, say, an abortion clinic ad, this would we going down exactly opposite, with the liberals bitching about free speech and the conservatives bringing up property rights.

      1. So change the ad to read

        These terrorists are Wanted for bombing abortion clinics.

        Seattle eats it up.

  4. And many of these transportation providers are multi-jurisdiction “authorities,” things with all the power of government, but none of the accountability. DC Metrorail and its parent WMATA spans Virginia, DC and Maryland. And they have a real police force with police powers which they used to handcuff kids for chewing gum on the subway. Something which I believe Justice Thomas had absolutely no problem with.

  5. I’m curious to know which part of the Constitution it is that gives the government the power to designate public forums.

  6. I believe the government can decline to run ads in their transit system; but once accepted, they must be run by 1st Amendment rules.

  7. Someday, a lot of people on the left are going to notice that the government is enjoying all the protections of a corporation with none of the accountability of one.

    On that day, they will stop bleating about evil corporations and start talking about evil governments. And unicorns will walk the streets shitting rainbows.

    1. They will blame the same corporation that poisoned Flint’s water and ruined Baltimore’s public schools.

      1. Those things are all the fault of Republicans who insist on giving tax breaks to the super-wealthy at the expense of the water supply and the schools. This is because Republicans hate the children, they hate women, they hate minorities, they hate everyone except rich, white men.

    2. Nah. It’s principals, not principles. The left only gives a shit about the government doing bad things when the other team is in charge. When their team is in charge they take great pride in watching their team do bad things. Remember that most people on the left don’t give a shit about anything as petty as morality. Winning is what counts. If that means they must lie, cheat, steal, and do otherwise immoral things to get their way, then so be it. But when the other guy does it it’s the end of the world.

  8. “According to county officials, the group’s proposed message is “false or misleading” because the State Department, not the FBI, has offered the reward. The advertisement was also rejected on the grounds that it would be “demeaning and disparaging” to Muslims “by equating their dress and skin color with terrorists.””

    So their argument is a) an award does exist, but this is ‘misleading’ because you named the wrong agency and b) because these Muslims are actual terrorists, all Muslims will be offended if we point out these guys are terrorists.

    Furthermore, if it’s ‘demeaning to Muslims’ to mention that these guys have prices on their heads, how is it not demeaning to Muslims that the State Department put prices on their heads in the first place?

    1. Furthermore, if it’s ‘demeaning to Muslims’ to mention that these guys have prices on their heads, how is it not demeaning to Muslims that the State Department put prices on their heads in the first place?

      I’m sure the Seattle officials think it is, they just don’t have any power to stop it.

    2. if anything, Muslims ought be offended and insulted at being treated like children. But this is official Seattle and leftists being leftists where minority groups are concerned.

    3. So if you live in the Old West and the US Marshall puts up a wanted poster with a 1000 dollar ree-ward for Yosemite Sam, everyone with a mustache should be offended?

    4. Would it be OK if they only depicted the ones with caucasian skin and wearing western outfits?

      1. OMFG click the link and marvel that it goes on for paragraph after numbing paragraph.

    1. My favorite quote from the article:

      “This is an edited version of my MA thesis…”

      The author fails to disclose if s/he actually received an MA after submitting this drek.

  9. Didn’t they already go through this crap in NYC where somebody objected to the anti-muslim political ads so they just stopped accepting non-commercial ads?

  10. feelings disguised as policy.

    The advertisement was also rejected on the grounds that it would be “demeaning and disparaging” to Muslims “by equating their dress and skin color with terrorists.”
    Islam has been equated with terrorism by the actions of the jihadists. I’m guessing even the most peaceful Muslim in the country is aware of that and will not go into a pearl-clutching fit and cry about hurt feelings.

    1. Kind of like Hilary’s sentiment that we need to make the criticism of teachers go away rather than the reasons the teaching procession may be criticized. The bad apples make the others look and feel bad so pretend they do not exist.

      1. It drives me crazy when people use the bad apples analogy without bothering to follow through on the implications of it. If you don’t remove the bad apples from the barrel, then they spoil the rest.

        1. THIS. It seems that people think that analogy means that if there are a few bad apples, then the whole barrel of apples is bad because people won’t select apples from the barrel. In other words, a few bad apples spoil the bunch because of perception. So a few bad Muslims make the rest of the Muslims look bad.

          As you mentioned, a few bad apples in the barrel, can speed up the process of spoiling the rest of the apples in the barrel. So to apply this analogy, a few bad Muslims are ruining Islam from within. Not because the rest of the world thinks it is bad, but because those bad Muslims actually make Islam bad.

  11. This case probably got the ad more eyeballs than if it had been put up on buses.

    Copious free advertising. Way to go Pam!

  12. “In other words, the First Amendment currently applies differently in some parts of the country versus others in the context of government restrictions on political advertisements in public transit systems.”

    Imagine the fun this poses on transit systems that cross Circuit lines.

    Even more reason why cert. should have been granted.

    1. Other than Amtrak, is there a transit system that crosses Circuit lines? I know there are some that cross state lines, like the LIRR or the DC system mentioned above, but I’m not sure that there’s one that extends far enough to cross Circuit Court jurisdictions.

  13. New Jersey Transit crosses from New York (2d Cir) to New Jersey (3d Cir). Likewise, NJ-NY Port Authority Rail.

    The D.C. Subway crosses from the District (DC Cir) to Virginia and Maryland (4th Cir).

    That’s just off the top of my head.

    1. This should have been a response to dschwar.

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