A three-judge panel of the Ninth Circuit has ruled that Seattle violated the First Amendment by banning “disparaging” ads on city buses.
American Freedom Defense Initiative v. King County involved the submission of an advertisement for Seattle city buses that depicted mugshots of terrorists, predominately of Middle Eastern and Asian descent, with the slogan “Faces of Global Terrorism.” After the city rejected the ad, deeming it to contain disparaging content, plaintiffs filed a § 1983 claim for the violation of their right to free speech under the First Amendment. After losing summary judgment, they appealed.
Relying on the Supreme Court’s unanimous decision last year in Matal v. Tam – which as reported here, struck down a federal ban on the registration of “disparaging” trademarks – the Ninth Circuit followed suit with the Seattle transit advertising policy. Reasoning that “Matal applies with full force” in this instance, the Ninth Circuit held that Seattle’s disparagement standard discriminates based on viewpoint because offensive speech is itself a viewpoint.
Although it reversed and remanded the case for entry of summary judgment in plaintiff’s favor, the Ninth Circuit stressed that the First Amendment does not require Seattle to tolerate harm to its transit system, leaving open the possibility that the city may reject or cancel approval of the ad if it reasonably fears harm.