Eugene Volokh, Washington Post on AFDI v MTA SCOTUS Dissent: “Justices Thomas and Alito urge court to decide First Amendment”

ByPamela Geller on March 8, 2016
16 Comments
fbi afdi ad

Make no mistake — we amended our suit (more here) to correct the “factual errors,” and we will go back. The error in our ad was that we implied the reward for the capture of an FBI terrorism suspect was paid for by the FBI when in fact, the reward is paid by the State Department’s Reward for Justice program. We corrected the ad and we were still rejected. Seattle Kings Transit Authority said our ad (an FBI wanted poster) was disparaging to Muslims. Truth is disparaging to Muslims. Got that?

We refiled our lawsuit. We will be back.

Some justices might have concluded that there were extra factors in the case that made it a suboptimal vehicle for resolving the legal issue; for instance, they might have thought that the case was unduly complicated by the extra question whether the government should be able to bar factually erroneous statements on its property, whether that property is a designated public forum or a nonpublic forum. But the two justices’ statement that they are interested in clarifying the designated public forum vs. nonpublic forum/limited public forum line should embolden other litigants to bring up the matter again, hoping that in their case they can pick up two extra votes.

Volokh in the Washington Post weighs in on the SCOTUS dissent on our free speech lawsuit yesterday,

The Volokh Conspiracy, Washington Post
Justices Thomas and Alito urge court to decide First Amendment rules applicable to bus advertising
By Eugene Volokh March 7, 2016

FBI Seattle Global Terrorisl ad censorship

In American Freedom Defense Initiative v. King County, the U.S. Court of Appeals for the 9th Circuit held that advertising spaces on government-owned buses are “nonpublic fora,” from which the government may exclude ads based on reasonable and viewpoint-neutral criteria. And the particular ad involved there (shown above), the court held, could be excluded because it contained factual errors:

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.

(For more on that decision, see this post.)

This morning, the U.S. Supreme Court declined to review the case, but Justice Clarence Thomas dissented from that “denial of certiorari,” joined by Justice Samuel A. Alito Jr. Lower courts are split, Thomas argued, on an important question: When a city transit agency opens up advertising space for a wide range of political messages, does this create (1) a “designated public forum” — in which the government generally can’t discriminate based on the content of speech — or (2) a “nonpublic forum” (or a “limited public forum,” which is in practice largely equivalent to a nonpublic forum) in which the government may impose content-based but viewpoint-neutral and reasonable restrictions? And the Supreme Court should have stepped in, he argued, to resolve the split:

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.” In 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.

In the First and Ninth Circuits, however, transit authorities have far more leeway to restrict speech. There, “a transit agency’s decision to allow the display of controversial advertising does not in and of itself establish a designated public forum.” As the Ninth Circuit acknowledged, this approach conflicts with the approaches of “other courts [that] have held that similar transit advertising programs constitute designated public forums.” Materially similar public transit advertising programs should not face such different First Amendment constraints based on geographical happenstance.

This case would allow us to resolve that division. King County’s advertising restrictions cannot pass muster if the transit advertising space is a designated public forum. King County bans ads that it deems “false or misleading,” but this Court considers broad, content-based restrictions on false statements in political messages to be generally impermissible. See United States v. Alvarez (2012). King County’s prohibitions on “demeaning and disparaging” ads, or ads that could disrupt the transit system by alienating riders, are also problematic content-based restrictions. King County may wish to protect captive riders’ sensibilities, but “‘we are often “captives” outside the sanctuary of the home and subject to objectionable speech.’” Cohen v. California (1971). The government cannot automatically “shut off discourse solely to protect others from hearing it.”

To be sure, this case involves speech that some may consider offensive, on a politically charged subject. That is all the more reason to grant review. “[A] principal function of free speech . . . is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” Texas v. Johnson (1989).

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. 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, and whether a public school could punish students who wear black armbands as symbols of antiwar protest. 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; whether the First Amendment protects videos that depict women crushing small animals to death to satisfy viewers’ sexual fetishes; and whether States can reject Confederate-flag license plates.

I see no sound reason to shy away from this First Amendment case. It raises an important constitutional question on which there is an acknowledged and well-developed division among the Courts of Appeals. One of this Court’s most basic functions is to resolve this kind of question. I respectfully dissent from the denial of certiorari.

As the Supreme Court has repeatedly stated, its decision to deny review has no precedential value. (Of course, dissents from such decision have no such value, either.) Some justices might have concluded that there were extra factors in the case that made it a suboptimal vehicle for resolving the legal issue; for instance, they might have thought that the case was unduly complicated by the extra question whether the government should be able to bar factually erroneous statements on its property, whether that property is a designated public forum or a nonpublic forum. But the two justices’ statement that they are interested in clarifying the designated public forum vs. nonpublic forum/limited public forum line should embolden other litigants to bring up the matter again, hoping that in their case they can pick up two extra votes.

Note also that the law is quite clear that this sort of bus advertising program has to be at least viewpoint-neutral; the question is whether content-based but viewpoint-neutral restrictions on political ads in such programs are constitutional.

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Comments at Atlas Shrugs are unmoderated. Posts using foul language, as well as abusive, hateful, libelous and genocidal posts, will be deleted if seen. However, if a comment remains on the site, it in no way constitutes an endorsement by Pamela Geller of the sentiments contained therein.

  • DemocracyRules

    Pamela:
    This JPost article refers directly to your struggle against NY transit. And the group featured in the article succeeded in getting Muslim stereotype ads onto the NY transit.
    “Humorous ads targeting Muslim stereotypes debut on NYC subway”
    http://www.jpost.com/Not-Just-News/WATCH-Humorous-ads-targeting-Muslim-stereotypes-debut-on-NYC-subway-447216?

    Since the new court ruling cited in the article, you may now succeed with your ads in NY.

  • wilypagan

    Anyone thinking of voting for Cruz should watch this video: http://linkis.com/www.youtube.com/752ng

  • Mahou Shoujo

    “Illegitimi non carborundum”

    • The origional roger

      Does that mean “don’t let the sand paper grind you down with the emery cloth ?

      • Mahou Shoujo

        Not exactly it roughly translates as “Don’t let the bastards wear you down”.

  • Michael Copeland

    How about “Countering Violent Extremism” as a heading?

    • Ichabod Crain

      We need some insight on how to counter CVE.

  • BoWhetstone

    it is past time that americans let the jihadist muslim what we think, how we feel
    but Obama’s transformed America will imprison those who speak their thoughts.
    not much the little person can do except get trained, get armed and keep your eyes peeled. be prepared to use lethal force to protect yourself and loves ones.
    hell– it’s like the wild west days- shootout at the ok corral every time you get gas- if it isn’t blm murderers it’s the head choppers.
    small arms training is a good biz to be in these days==Kentucky certifies trainers–and to get a carry gun permit–you MUST pay the trainer or you cant get the permit

  • Jennifer Therese Williams

    Letter from a female physician in Munich, Germany – sending a message to the world . . . . . .

    Surprise, surprise! (I, JENNIFER AM RE-POSTING THIS LETTER!}

    Yesterday, at the hospital we had a meeting about how the situation here and at the other Munich hospitals is unsustainable. Clinics cannot handle emergencies, so they are starting to send everything to the hospitals.

    Many Muslims are refusing treatment by female staff and, we, women, are refusing to go among those animals, especially from Africa. Relations between the staff and migrants are going from bad to worse. Since last weekend, migrants going to the hospitals must be accompanied by police with K-9 units.

    Many migrants have AIDS, syphilis, open TB and many exotic diseases that we, in Europe, do not know how to treat them. If they receive a prescription in the pharmacy, they learn they have to pay cash. This leads to unbelievable outbursts, especially when it is about drugs for the children. They abandon the children with pharmacy staff with the words: “So, cure them here yourselves!” So the police are not just guarding the clinics and hospitals, but also large pharmacies.

    Truly we said openly: Where are all those who had welcomed in front of TV cameras, with signs at train stations?! Yes, for now, the border has been closed, but a million of them are already here and we will definitely not be able to get rid of them.

    Until now, the number of unemployed in Germany was 2.2 million. Now it will be at least 3.5 million. Most of these people are completely unemployable. A bare minimum of them have any education. What is more, their women usually do not work at all. I estimate that one in ten is pregnant. Hundreds of thousands of them have brought along infants and little kids under six, many emaciated and neglected. If this continues and German re-opens its borders, I’m going home to the Czech Republic. Nobody can keep me here in this situation, not even double the salary than at home. I went to Germany, not to Africa or the Middle East.

    Even the professor who heads our department told us how sad it makes him to see the cleaning woman, who for 800 Euros cleans every day for years, and then meets young men in the hallways who just wait with their hand outstretched, want everything for free, and when they don’t get it they throw a fit.

    I really don’t need this! But I’m afraid that if I return, that at some point it will be the same in the Czech Republic. If the Germans, with their nature cannot handle this, there in Czechia it would be total chaos. Nobody who has not come in contact with them has no idea what kind of animals they are, especially the ones from Africa, and how Muslims act superior to our staff, regarding their religious accommodation.

    For now, the local hospital staff has not come down with the diseases they brought here, but, with so many hundreds of patients every day – this is just a question of time.

    In a hospital near the Rhine, migrants attacked the staff with knives after they had handed over an 8-month-old on the brink of death, which they had dragged across half of Europe for three months. The child died in two days, despite having received top care at one of the best pediatric clinics in Germany. The physician had to undergo surgery and two nurses are laid up in the ICU. Nobody has been punished.

    The local press is forbidden to write about it, so we know about it through email. What would have happened to a German if he had stabbed a doctor and nurses with a knife? Or if he had flung his own syphilis-infected urine into a nurse’s face and so threatened her with infection? At a minimum he’d go straight to jail and later to court. With these people – so far, nothing has happened.

    And so I ask, where are all those greeters and receivers from the train stations? Sitting pretty at home, enjoying their non-profits and looking forward to more trains and their next batch of cash from acting like greeters at the stations. If it were up to me I would round up all these greeters and bring them here first to our hospital’s emergency ward, as attendants. Then, into one building with the migrants so they can look after them there themselves, without armed police, without police dogs who today are in every hospital here in Bavaria, and without medical help.

    Is this “situation” coming to America?

    • The origional roger

      Yes, it will come to the US if there is not some giant upheaval to stop it.

    • Steve

      What will it take for this stuff to sink in. There are attempts at damage control but now its so far along that generations will be damaged by the traitors who allowed it to happen.

    • joker

      First of all Germany will witness this year something not seen before (subject Merkel) and for the rest walk in any hospital with muzzrats with an UZI.

  • The origional roger

    I particularly liked this ad because it reinforces to the partially informed public the direct link between terrorism and Islam, and I suppose it is for this reason that it is so feared of the Authorities.

  • DemocracyRules

    First they came for the ranchers, but I didn’t speak up, because I wasn’t a rancher.
    The Leftist term for a prosperous agrarian is: ‘Kulak’. Stalin liquidated many millions of them.

    Five FBI agents under investigation for shots fired during deadly Oregon roadblock
    http://www.washingtontimes.com/news/2016/mar/8/robert-finicum-oregon-occupiers-killing-justified/

    • DemocracyRules

      The Thick Plottens in Oregon: Manner of death: homicide. I think the FBI does not have everyone under their control in Oregon right now.

  • El Cid

    The error, Pamela, is material and affects your credibility which is a serious matter because you have an important voice in the USA today! As a supporter, with all humility and respect, I would like to see you do better.

    On the other hand, any posting of the “Apartheid” libel should be attacked on the same grounds. Factually wrong!