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Ninth Circuit Holds County’s Advertising Restriction on “Disparaging Material” Unconstitutional

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By Justin K. Powley and David G. Barker

The Ninth Circuit held yesterday in American Freedom Defense Initiative v. King County that a county’s advertising program on public buses that rejected advertisements on the basis of disparaging material violates the First Amendment’s free speech clause and therefore is unconstitutional.

King County provides public transportation in the Seattle metropolitan area and sells advertising space on the exterior of public buses. The County generally accepts all advertisements that do not contain prohibited content, including: false statements, disparaging material, or content that may disrupt the transit system. American Freedom Defense Initiative submitted a proposed advertisement titled “FACES OF GLOBAL TERRORISM,” which the County rejected as violating each of these three categories of prohibited content. The principal question on appeal to the Ninth Circuit was whether the County’s three prohibited categories of advertisements were reasonable and viewpoint neutral under the First Amendment.

The court held that the false statements and disruption categories are viewpoint neutral with standards that are reasonable in light of the purpose of the transit system.  Regarding disruption specifically, the court held that no “reasonably prudent person would reasonably foresee harm to the transit system from Plaintiffs’ ad.”

Applying the Supreme Court’s decision in Matal v. Tam, the court concluded that the County’s disparaging material category facially discriminates on the basis of viewpoint and therefore is unconstitutional under the First Amendment. In Matal, the Supreme Court held that offensive speech is a viewpoint and that the government engages in viewpoint discrimination when it suppresses speech on the ground that the speech offends. Similar to the clause at issue in Matal, the Ninth Circuit held that the County’s disparaging material category requires rejection of an advertisement solely because it offends: “Giving offense is a viewpoint, so Metro’s disparagement clause discriminates, on its face, on the basis of viewpoint.”