The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The American Freedom Defensive Initiative, which has been highly critical of Islam, tried to buy space for this ad on Seattle buses:
The King County public transit agency (Metro) rejected the ad, concluding that it violated Metro policies against ads "that are false or misleading, demeaning or disparaging, or harmful or disruptive to the transit system." Yesterday, the U.S. Court of Appeals for the Ninth Circuit upheld this decision, on the grounds that the ad was factually false (some paragraph breaks added):
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. 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." …
[W]e 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.
The court also concluded that, where the government has opened up space on its own buses for advertising, the New York Times Co. v. Sullivan rules—which govern the government's imposing civil or criminal liability on speech on private property (or in "traditional public fora," like sidewalks or parks)—don't apply. On such property, the court concluded, speech restrictions only had to be reasonable and viewpoint-neutral; excluding false statements was reasonable, and "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." The court closed the First Amendment analysis by saying that "We need not, and do not, reach Metro's other reasons for rejecting the ad."
I'm not sure I would have reached this result, given that one of the reasons Metro gave for excluding the ad—that it was "demeaning or disparaging," presumably to Muslims—strikes me as viewpoint-based, and suggests that Metro might indeed have overlooked the errors in the ad if the viewpoint were different. I also think that part of the Ninth Circuit's analysis, which turned on the theory that riders are a "captive audience" to the ads, isn't quite sound. But setting that aside, I think the main legal conclusion, which is that the government may exclude false and verifiable statements from its own "nonpublic forum" property, is likely correct.
I also think the court was right to "emphasize the limited nature of [the] 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." Consider, for instance, part of the district judge's analysis, which the Ninth Circuit did not rely on (paragraph break added):
Finally, the term "jihadis" has varying meanings. While many individuals have conflated the terms jihad and terrorism, the term "jihad" has several meanings, including:
(1) "a holy war waged on behalf of Islam as a religious duty" [footnote: This appears to be the definition of the term that AFDI invokes in referring to terrorists as jihadi.]; (2) "a personal struggle in devotion to Islam especially involving spiritual discipline"; (3) "a crusade for a principle or belief"; (4) "(among Muslims) a war or struggle against unbelievers"; (5) "(also greater jihad) Islam the spiritual struggle within oneself against sin." See Merriam-Webster, http://www.merriam-webster.com/dictionary/jihad (last visited Jan. 15, 2014); Oxford English Dictionary, http://english.oxforddictionaries.com/definition/jihad?region=us (last visited Jan. 15, 2014); see also Dkt. # 13 (Desmond Decl.) ¶ 26 ("By my understanding of the term, the concept of 'jihad' refers not only to physical struggles, but more importantly, to the inner struggle by a believer to fulfill his religious duties to Islam.").
Additionally, there is no dispute that each of the individuals included in Exhibit C to Geller's declaration engaged in terrorist activities. However, there is no evidence before the court that any of the individuals pictured in the ad referred to themselves as "jihadis" or performed the terrorist acts in the name of "jihad," as opposed to any other reason. Accordingly, the court finds that the ad's use of the term "jihadis" to mean terrorist is likely misleading.
[Footnote: For the same reasons, the court also notes that it is likely that a reasonably prudent person would believe that the AFDI ad contains material that is abusive or hostile to, or debases the dignity of stature of practitioners of the Muslim faith who are not terrorists and take their sacred duty of "jihad" (the personal or spiritual struggle) seriously.]
If government agencies could reject political speech in nonpublic fora based on such claims that the speech is "misleading," then they could neuter sharp advocacy on virtually any subject—of course, likely focusing on sharp advocacy that they disagree with. (Such bans on misleading speech are allowed when it comes to commercial advertising, but this is one way in which commercial advertising is more subject to restriction than other speech, including political speech.) Political debate is chock full of terms with multiple possible meanings: "democratic," "sexist," "racist," "pro-life," "pro-choice," "war on women," "bullying," "natural," "civil rights," "equality," and myriad others. Indeed, political debate is often all about stressing one possible definition of such a term, or one application of such a term, to the exclusion of others.
The district judge thought that such an attempt to get people to associate "jihadi" exclusively with definition 1 rather with the other definitions was "misleading." But allowing the government to police such uses of words—whether as to "jihadi" or anything else—would make a mockery of the "viewpoint-neutrality" requirement. And the same is true if the government were allowed to pick apart a political speaker's quite plausible conjectures, here that these terrorists were actually motivated by Islamic holy war, or elsewhere that some supposed racist or sexist was actually motivated by racial or sexual hostility.
(Incidentally, if the judge had looked up not "jihad," but the actual term that the ad used, "jihadi," he would have found that the Oxford definition was "A person involved in a jihad; an Islamic militant." Likewise, if the judge had looked up "jihadi" in dictionary.com, which is based on the Random House, he would have found the only definition being "an Islamic fundamentalist who participates in or supports jihad, especially armed and violent confrontation." But my argument would apply even if "jihadi" were seen as having the definitions that the judge points to.)
The Ninth Circuit, as I said, didn't rely on the district judge's argument about "jihadi," and limited its holding "to objectively and demonstrably false statements." I hope that future decisions make clear that bans on "misleading" political speech, even in nonpublic fora, are too vague and prone to viewpoint discrimination to be permissible.
For an interesting recent case dealing with this question, see AFDI v. Southeastern Pennsylvania Transit Authority, in which a bus system rejected another American Freedom Defense Initiative ad:
SEPTA argued that the ad was false, because (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. But the district court in that case held that SEPTA's exclusion of the ad violated the First Amendment, because
[P]olitical 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.
I think that is an overstatement, and the Ninth Circuit's contrary approach is correct. But I also think that the alleged falsehoods in the ad in AFDI v. SEPTA are actually matters of opinion and characterization, not "objectively and demonstrably false statements," for reasons I discussed here; the result on the facts in AFDI v. SEPTA thus seems to me to be right, even if the more general legal principle adopted by that court is mistaken.
Thanks to How Appealing for the pointer.