Initiative v. King Cnty.

Counsel

The First Amendment prohibits the government from "abridging the freedom of speech." But the Court has struggled with how that guarantee applies when private speech occurs on government property. We have afforded private speech different levels of protection depending on the forum in which it occurs. See Pleasant Grove City v. Summum, 555 U.S. 460, 469-470, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009). In a "traditional public forum"-namely, public streets or parks-speech restrictions must be "narrowly tailored to serve a compelling government interest." Id., at 469, 129 S.Ct. 1125. That same standard governs speech restrictions within a " 'designated public forum,' " which exists "if government property that has not traditionally been regarded as a public forum is intentionally opened up for that purpose." Ibid. But if the government creates a limited public forum (also called a nonpublic forum)-namely, "a forum that is limited to use by certain groups or dedicated solely to the discussion of certain subjects"-then speech restrictions need only be "reasonable and viewpoint neutral." Id., at 470, 129 S.Ct. 1125., This case offers an ideal opportunity to bring clarity to an important area of First Amendment law. In the decision below, the U.S. Court of Appeals for the Ninth Circuit held that Seattle public transit advertising space is a limited public forum. The court then allowed the transit authority to exclude ads submitted by the American Freedom Defense Initiative (AFDI)-petitioner here-by applying content-based advertising restrictions. I would have granted certiorari., King County, Washington, operates a public transit system that provides transportation to hundreds of thousands of riders in and around Seattle. Like many transit authorities, King County's transit system funds itself in part by selling advertising space on its buses and other property. And, like many transit authorities, King County subjects proposed ads to a preapproval process. Its policy for evaluating ads prohibits political campaign advertising, but allows other political messages. Political messages, however, cannot be displayed if the county deems them "false or misleading," "demeaning and disparaging," or a risk to the orderly operation of the transit system. 2014 WL 345245, *4 (W.D.Wash., Jan. 30, 2014)., King County has approved many controversial political ads. Transit bus exteriors have proclaimed "Save Gaza! Justice for all." Riders have encountered ads urging women to visit a pro-life crisis pregnancy center to discuss abortion alternatives. Ads have championed "Equal Rights for Palestinians[:] The Way to Peace," and announced, "The Palestinian Authority Is Calling For A Jew-Free State[:] Equal Rights for Jews." King County even initially accepted an ad that would have emblazoned "Israeli War Crimes[,] Your Tax Dollars At Work" on buses-before withdrawing that acceptance based on threats of violence. See Seattle Mideast Awareness Campaign v. King County, 781 F.3d 489, 494 (C.A.9 2015) (SeaMAC )., In 2013, the State Department and the Federal Bureau of Investigation (FBI) launched a campaign to encourage anyone in Seattle-an international travel hub-to report information about wanted terrorists. To that end, the State Department submitted ads for King County's approval to run on bus exteriors., Consistent with a campaign aimed at soliciting information about wanted terrorists, one ad displayed the names and faces of 16 wanted terrorists beneath the words "Faces of Global Terrorism." Appendix, infra . The bottom of this ad announced: "Stop a Terrorist. Save Lives. Up to $25 Million Reward." Ibid. The ad included contact information for the Rewards for Justice Program, which offers substantial monetary rewards for information helping to locate wanted terrorists. See ibid., King County rejected AFDI's ad as inconsistent with its policy. First, King County deemed the ad "false or misleading," because the Government was not offering a $25 million reward for any depicted terrorist, and because the State Department, not the FBI, offers the rewards. Record, Doc. 13, pp. 7-8 (Desmond decl.). Second, King County considered the ad "demeaning and disparaging" to minorities "by equating their dress and skin color with terrorists" and by misusing the term "jihadi." Id., at 8. Third, King County believed that the ad could "interfere with operation of the Metro transit system" because the ad could alienate riders and discomfort staff. Id., at 9., In the large portions of this country encompassed by the Second, Sixth, Seventh, and D.C. Circuits, AFDI's ad would likely have met a different fate. In those Circuits, accepting a wide array of political and issue-related ads demonstrates that the government intended to create a designated (rather than limited) public forum because "political advertisements ... [are] the hallmark of a public forum." AFDI v. Suburban Mobility Auth. for Regional Transp., 698 F.3d 885, 890 (C.A.6 2012).*, *1025In those Circuits, transit authorities that open their ad spaces to political messages must provide compelling justifications for restricting ads, and must narrowly tailor any restrictions to those justifications., Many of the Court's landmark First Amendment decisions have involved contentious speech in times of national turmoil. When some States branded the civil rights movement a threat to public order, the Court decided whether protesters against segregation could be punished for purportedly disrupting the peace. E.g., Cox v. Louisiana, 379 U.S. 536, 537-538, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965). When the Nation was divided over the Vietnam War, the Court decided whether the First Amendment prohibits the Government from prosecuting a man for wearing a " ' "F- the Draft" ' " jacket in a courthouse, Cohen, supra, at 16, 91 S.Ct. 1780 and whether a public school could punish *1026students who wear black armbands as symbols of antiwar protest, Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 504, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). More recently, we have decided whether protesters can brandish signs proclaiming " 'God Hates Fags' " and " 'God Hates the USA/Thank God for 9/11' " outside a soldier's funeral, Snyder v. Phelps, 562 U.S. 443, 447-448, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011) ; whether the First Amendment protects videos that depict women crushing small animals to death to satisfy viewers' sexual fetishes, United States v. Stevens, 559 U.S. 460, 464-466, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) ; and whether States can reject Confederate-flag license plates, Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. ----, ----, 135 S.Ct. 2239, 2243-2244, 192 L.Ed.2d 274 (2015).