In American Freedom Defense Initiative v. King County, published August 12, 2015, the 9th Circuit Court of Appeals affirmed a district court decision denying the plaintiff organization a preliminary injunction directing the defendant county's public transit agency to display the organization's advertisement on the exterior of the agency's buses. The State Department had submitted an ad to the agency depicting several faces, calling them "The Faces of Global Terrorism," listing names, and stating, "Stop a terrorist. Save lives. Up to $25 million reward." The agency received complaints from the public about the ad, including concerns that it might increase mistreatment of minorities. The agency began reevaluating the ad, and the State Department pulled it. The plaintiff organization then submitted an almost identical ad, featuring the same headline and photos. It stated, "The FBI is offering up to $25 million reward if you help capture one of these jihadis." This information was false; the State Department, not the FBI, was offering the reward, and the maximum reward for capturing any one of the pictured persons was $5 million. The agency rejected the ad, on the ground (among others) that it was false.
The 9th Circuit noted that it had previously ruled that advertising on the buses was a nonpublic forum. As such, restrictions on advertising accepted did not violate the 1st Amendment if they were reasonable and viewpoint neutral. Barring ads that contain objectively and demonstrably false statements, where the circumstances of the case do not give rise to an inference of unreasonableness or viewpoint-based discrimination, is both reasonable and viewpoint neutral. The court limited its holding to misstatements of fact that can be corrected. It also noted that rejecting advertisements based on trivial misstatements might, depending on circumstances, violate the 1st Amendment.
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