Court docs: Motion for summary judgment in AFDI free speech case against Seattle

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Here are the documents our world-class legal team at the American Freedom Law Center has just filed in our lawsuit challenging the sharia enforcement and denial of our free speech rights by Seattle authorities who are actually claiming that a poster depicting the FBI’s most wanted criminals is disparaging to Muslims because all the most wanted criminals are Islamic jihad terrorists.

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Case 2:13-cv-01804-RAJ Document 56 Filed 03/07/17 Page 1 of 26

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE

AMERICAN FREEDOM DEFENSE INITIATIVE; PAMELA GELLER; and ROBERT SPENCER,

Plaintiffs,

KING COUNTY, Defendant.

Case No. 2:13-cv-01804-RAJ

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

[Fed. R. Civ. P. 56]

NOTE ON MOTION CALENDAR: MARCH 31, 2017

ORAL ARGUMENT REQUESTED

THE HONORABLE RICHARD A. JONES

-v.-

Plaintiffs American Freedom Defense Initiative (“AFDI”), Pamela Geller, and Robert Spencer (“Plaintiffs”), by and through their undersigned counsel, hereby move this Court for summary judgment. Fed. R. Civ. P. 56. As set forth below, there is no genuine dispute as to any material fact and Plaintiffs are entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). At a minimum, Plaintiffs are entitled to partial summary judgment on their claims related to the rejection of AFDI Ad II.

In support of this motion, Plaintiffs rely upon the pleadings and papers of record, as well as their brief filed with this motion. Counsel for the parties held a conference on March 3, 2017, to discuss the substance of this motion. No resolution was reached. Accordingly, Plaintiffs respectfully request that the Court grant this motion and enter judgment in their favor on all claims, or in the alternative, partial summary judgment on their claims related to AFDI Ad II.

PLS.’ MOT. FOR SUMM. J. – 1 – Case No. 2:13-cv-01804-RAJ

STEPHEN PIDGEON Attorney at Law, P.S. 3002 Colby Avenue, Suite 306 Everett, Washington 98201 (425) 605-4774

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Case 2:13-cv-01804-RAJ Document 56 Filed 03/07/17 Page 2 of 26

STATEMENT OF UNDISPUTED MATERIAL FACTS A. The Parties.

Plaintiffs Geller and Spencer co-founded AFDI, which is a nonprofit organization that is incorporated under New Hampshire law. Plaintiff Geller is the president of AFDI, and Plaintiff Spencer is the vice president. AFDI is a nonprofit organization that exercises its right to freedom of speech by, inter alia, purchasing advertising space on transit authority property in major cities throughout the United States, including Seattle, Washington. AFDI purchases these ads to express its message on current events and public issues, particularly including issues involving global terrorism (“AFDI’s advertising campaign”). Plaintiffs Geller and Spencer engage in free speech activity through the various projects of AFDI, including AFDI’s advertising campaign. (Geller Decl. in Supp. of Mot. for Summ. J. ¶¶ 2, 3 at Ex. 1) (hereinafter “Geller MSJ Decl.”).

Defendant King County (“County”) is a municipal corporation. It operates a public transportation system (“Metro”) “which is responsible for providing public transportation services throughout all of King County, including the Seattle metropolitan area.” (Desmond Decl. ¶ 5 [Dkt. # 13, ECF p. 2]). “Metro operates 235 bus routes,” serving “approximately 400,000” passengers daily. (Desmond Decl. ¶ 6 [Dkt. # 13, ECF p. 2]).

B. The County’s Transit Advertising Policy.

The County leases space on its Metro property, including on the exterior of its buses, for use as advertising space. (Gannon Dep. at 13:1-15; 16:9-17]).1 Pursuant to its Transit Advertising Policy,2 the County does not limit advertising to just commercial advertising. (Gannon Dep. at 34:21-24). Rather, the County accepts a wide variety of noncommercial and

1 Rob Gannon, the General Manager for King County Metro Transit, was designated by the County to testify on its behalf pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure. (Gannon Dep. at 9-11, Ex. 14 [Rule 30(b)(6) Deposition Notice]). Mr. Gannon’s deposition excerpts and associated exhibits are attached as Exhibit A to the declaration of Robert J. Muise at Exhibit 2.

2 (Gannon Dep. at 13-14, Ex. 6 [Transit Advertising Policy]).

PLS.’ MOT. FOR SUMM. J. – 2 – Case No. 2:13-cv-01804-RAJ

STEPHEN PIDGEON Attorney at Law, P.S. 3002 Colby Avenue, Suite 306 Everett, Washington 98201 (425) 605-4774

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Case 2:13-cv-01804-RAJ Document 56 Filed 03/07/17 Page 3 of 26

commercial advertisements for display on its advertising space, including political advertisements (with one exception: political campaign speech) and advertisements that address controversial issues. (Gannon Dep. at 34:25 to 35:1-13). The relevant and current policy was adopted in 2012, and it modified the prior policy so that it is now permissible for advertisers such as Plaintiffs “to present advertising expressing or advocating an opinion, position or viewpoint on matters of public debate about economic, political, religious, or social issues.” (Gannon Dep. 81:6-24). To that end, the County has leased its advertising space for political and social commentary ads covering a broad spectrum of political views and ideas, including ads on global terrorism, a permissible subject matter under the policy. (See Gannon Dep. at 36:3-9).

Pursuant to the Transit Advertising Policy, all potential ads are first reviewed by the advertising contractor, and if the advertising contractor believes based upon his or her reading of the policy that an ad is compliant, then the ad is displayed. The County does not provide any instruction to the advertising contractor as to how the policy should be applied beyond providing the contractor with copies of the policy itself. (Gannon Dep. at 30:20-25 to 31:1-7). If the advertising contractor has a question about compliance, then the ad is forwarded to the advertising program manager for further review. (Gannon Dep. at 33:1-25 to 34:1-19, Ex. 6 [Transit Advertising Policy]). The advertising program manager then has discretion to either make a decision about an ad or to forward the ad to the general manager for his final determination. (Gannon Dep. at 21:10-25 to 22:1-23, Ex. 6 [Transit Advertising Policy]).

The Transit Advertising Policy (Exhibit 6) is the entirety of the policy, meaning that there are no other aspects of the policy that might have a definitional section or that might have some other description of how the policy is to be understood and applied. (Gannon Dep. at 66:12-18).

Two of the restrictions at issue in this case (6.2.8 and 6.2.9) contain “standards” referring to “knowledge[] of the County’s ridership” and “prevailing community standards.” When asked to explain how these standards apply—understanding that speech restrictions must be based on

PLS.’ MOT. FOR SUMM. J. – 3 – Case No. 2:13-cv-01804-RAJ

STEPHEN PIDGEON Attorney at Law, P.S. 3002 Colby Avenue, Suite 306 Everett, Washington 98201 (425) 605-4774

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Case 2:13-cv-01804-RAJ Document 56 Filed 03/07/17 Page 4 of 26

definite, objective standards as a matter of law (see infra)—the County’s Rule 30(b)(6) witness explained, in relevant part, that the “prevailing community standards” set forth in the policy is “that community understanding a standard that [it] believes the advertisement would contain material that ridicules or mocks, is abusive or hostile to, or debases the dignity or stature of any individual, group of individuals or entity.” (Gannon Dep. at 68:1-9). Nowhere else in the policy does the County define what those community standards are. (Gannon Dep. at 68:21-23).

Most telling (and dispositive) was the following admission by the County’s witness:

Q. Are there any objective standards for determining whether or not something ridicules or mocks, is abusive or hostile to, or debases another individual or group? MR. HACKETT: Objection, calls for a legal conclusion.3
THE WITNESS: There are no standards contained in this policy.

(Gannon Dep. at 69:13-20) (emphasis added).

When asked to further explain how to apply “knowledge of the County’s ridership” as set forth in the policy, the County’s witness testified as follows:

Q: * * * Is there a certain percentage of the ridership that this is referring to, or can you explain what it means by knowledge of the County’s ridership?
A. Knowledge of the County’s ridership means what it says, an understanding of the customers who engage the transit system for purposes of public transportation. Q. Do you know what percentage of the County’s ridership would be demeaned or disparaged by AFDI Advertisement No. 1, which is Exhibit 4?

A. I do not know an exact percentage. Q. Do you have even an estimate?
A. I do not have an estimate, no.

(Gannon Dep. at 66:19-25 to 67:1-8).

C. Examples of Ads Accepted under the County’s Transit Advertising Policy.

Pursuant to its Transit Advertising Policy, the County leased its advertising space for an ad sponsored by the State Department that addressed the subject matter of global terrorism. (Gannon Dep. at 36:10-18; 38:4-8). The State Department ad appeared as follows:

3 This objection is baseless, and this admission is fatal to the County (which is likely why the objection was made in the first instance).

PLS.’ MOT. FOR SUMM. J. Case No. 2:13-cv-01804-RAJ

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STEPHEN PIDGEON Attorney at Law, P.S. 3002 Colby Avenue, Suite 306 Everett, Washington 98201 (425) 605-4774

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Case 2:13-cv-01804-RAJ Document 56 Filed 03/07/17 Page 5 of 26

(Gannon Dep. at 18:21-25, Ex. 3).
The State Department ad was accepted for display by the County, and it ran from June 6,

2013 to June 25, 2013. (Gannon Dep. at 39:24-25 to 40:1-2). The ad was eventually pulled by the State Department. (Shinbo Decl. ¶ 18 [Dkt. #14, ECF p. 7]).

The “faces” of global terrorism depicted in the State Department ad came directly from the FBI’s most wanted global terrorists list. Of the thirty-two listed terrorists at the time, thirty were individuals with Muslim names and / or were wanted for terrorism related to organizations conducting terrorist acts in the name of Islam. (Geller MSJ Decl. ¶¶ 19-21, Ex. A). The two non-Islamic terrorists listed were Daniel Andreas San Diego, who has ties to animal rights extremist groups, and Joanne Deborah Chesimard, an escaped murderer who was part of a revolutionary extremist organization known as the Black Liberation Party. (Geller MSJ Decl. ¶ 21). Consequently, the FBI’s list did not “include[] individuals . . . associated with other religions,” as Congressman Jim McDermott suggested in a June 9, 2013, letter to Robert Mueller, the director of the FBI, in which he complains about the State Department ad. (See Shinbo Decl. ¶ 16, Ex. F [McDermott Ltr.] [Dkt. # 14, ECF pp. 6-7, 37-39] [complaining that "individuals of other races and associated with other religions and causes” are "missing from this campaign”]). Thus, contrary to the Congressman’s complaint, such “faces” were not “missing from this campaign”—such “faces” did not exist. Moreover, the State Department ad (and AFDI Ad I) included the picture of Jehad Serwan Mostafa—a U.S.-born, brown-haired, blue-eyed, Caucasian terrorist—the only one of the thirty-two listed. (Geller MSJ Decl. ¶ 35, Ex. J). Consequently, contrary to the Congressman’s letter, “other races” were also included.

Shortly after the State Department pulled its “Faces of Global Terrorism” ad, it submitted

PLS.’ MOT. FOR SUMM. J. – 5 – Case No. 2:13-cv-01804-RAJ

STEPHEN PIDGEON Attorney at Law, P.S. 3002 Colby Avenue, Suite 306 Everett, Washington 98201 (425) 605-4774

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Case 2:13-cv-01804-RAJ Document 56 Filed 03/07/17 Page 6 of 26

an ad that stated, “The most important reason to stop a terrorist isn’t the reward. Stop a terrorist. Save lives.” This ad included images of five children. (Shinbo Decl. ¶ 18, Ex. H [rep[replacement ad]t[Dkt. # 14, ECF pp. 7, 43-44]p>

In addition to accepting ads that address global terrorism, the County has accepted numerous ads addressing the controversial Israeli / Palestinian conflict. For example, the County accepted in 2012 and 2013 ads expressing controversial political messages such as “I’m a Palestinian. Equal Rights for All,” “Equal Rights for Palestinians. The Way to Peace,” “Share the Land. Palestinian Refugees Have the Right to Return. Equal Rights for Palestinians.,” and “The Palestinian Authority Is Calling For A Jew-Free State Equal Rights For Jews.” (Shinbo Decl. ¶ 9, Ex. A [Isr[Israeli / Palestinian ads]t[Dkt. # 14, ECF pp. 3-4, 11-17]p>

D. AFDI Ad I.

Pursuant to the County’s Transit Advertising Policy, and particularly in light of the fact that the County permitted and displayed the State Department ad, AFDI submitted for approval on or about July 30, 2013, the following ad (“AFDI Ad I”):

(Gannon Dep. at 19:10-22, Ex. 4 [AFD[AFDI Ad I]ller MSJ Decl. ¶ 25). AFDI Ad I includes the identical pictures and names of the wanted global terrorists that appeared in the State Department ad. But of course, AFDI is not a government agency, and this advertisement is not a commercial advertisement, as the County concedes. (Gannon Dep. at 35:18-21 [agr[agreeing that the ad is not a commercial ad]his is a political ad conveying a political message. (Gannon Dep. at 36:1-2 [“["I think it is reasonable to review these ads and consider them to have a political message.”]nd it was submitted as a protest to the State Department’s politically correct decision to withdraw its advertisement. (Geller MSJ Decl. ¶ 36). In short, as the County admits, this ad is

PLS.’ MOT. FOR SUMM. J. – 6 – Case No. 2:13-cv-01804-RAJ

STEPHEN PIDGEON Attorney at Law, P.S. 3002 Colby Avenue, Suite 306 Everett, Washington 98201 (425) 605-4774

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Case 2:13-cv-01804-RAJ Document 56 Filed 03/07/17 Page 7 of 26

political speech. (Gannon Dep. at 35:22-25 to 36:1-2). And while AFDI Ad I was “political” speech, it nevertheless conveyed a message that was not materially false for several reasons. First, AFDI Ad I was clear and unambiguous—it expressly used the term “jihadis” to refer to the Islamic terrorist depicted in the ad. (See Ex. 3 [“If["If You Help Capture One Of These Jihadis”]sequently, it is error to conclude, as the County does here, that this ad is misleading because it “suggest[s] that[s]l jihadis are terrorists.” (Gannon Dep. at 61:1-3). It does no such thing. (See Gannon at 60:11-19 [admitti[admitting that the term "jihadi” is in reference to the individuals listed on the FBI’s most wanted terrorist list]ver, a simple search of the term “jihad” on the Rewards for Justice website demonstrates that this term appears on the government’s website and is used in the context of referring to Islamic terrorism or Islamic terrorist organizations. (Geller MSJ Decl. ¶ 29, Ex. F; see also ¶¶ 27, 28, Exs. D, E [defining [defining "jihad’] the Rewards for Justice program authorizes the Secretary of State to offer rewards “up to $25 million” for capturing a terrorist on the most wanted terrorist list. The amounts can change based on the circumstances. (Geller MSJ Decl. ¶¶ 31, 32, Ex. G). Third, the rewards are “offered” through the FBI’s website, which encourages those who may have information leading to the capture of a most wanted global terrorist (and thus seeking a reward) to contact the FBI. (Geller MSJ Decl. ¶¶ 33, 34, Exs. H, I). In fact, Rewards for Justice ads themselves similarly instruct people who have such information and who could be eligible for an award under the program to contact the FBI directly. One such ad states as follows:

The United States is offering substantial rewards for information that would help locate terrorists or that could prevent terrorism from occurring here or abroad. But we need your help. Your information could save lives and you could be eligible for a reward and relocation. Please visit www.RewardsForJustice.net to submit a confidential tip or contact the FBI or your local law enforcement agency.

(Geller MSJ Decl. ¶ 33, Ex. H) (emphasis added). Even Congressman McDermott understood that the FBI had a central (if not the preeminent) role in the Rewards for Justice program, as his letter was written to the Director of the FBI and not to the Secretary of State or anyone in the

PLS.’ MOT. FOR SUMM. J. – 7 – Case No. 2:13-cv-01804-RAJ

STEPHEN PIDGEON Attorney at Law, P.S. 3002 Colby Avenue, Suite 306 Everett, Washington 98201 (425) 605-4774

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Case 2:13-cv-01804-RAJ Document 56 Filed 03/07/17 Page 8 of 26

State Department. (Shinbo Decl. ¶ 16, Ex. F [McDermott L[McDermott Ltr.] [Dkt. # 14, ECF pp. 6-7, 37-39]lly, and as noted, AFDI Ad I included the “face” of Jehad Serwan Mostafa—a U.S.-born, Caucasian terrorist—the only one of the thirty-two listed. (See Geller MSJ Decl. ¶ 35, Ex. J; see also Gannon Dep. at 62:19-25 to 63:1-7 [acknowledgi[acknowledging that he did not know "as a point of fact” that one of the listed terrorists on AFDI Ad I was Caucasian but admitting that

"It would begin to make a difference, yes”] August 15, 2013, the County rejected AFDI Ad I on the following grounds:

Based on our current advertising policy, the American Freedom Defense Initiative ad, “FACES OF GLOBAL TERRORISM”, cannot be accepted. The advertisement does not comply with Subsections 6.2.4, 6.2.8 and 6.2.9, set forth below.

6.2.4 False or Misleading. Any material that is or that the sponsor reasonably should have known is false, fraudulent, misleading, deceptive or would constitute a tort of defamation or invasion of privacy.

6.2.8 Demeaning or Disparaging. Advertising that contains material that demeans or disparages an individual, group of individuals or entity. For purposes of determining whether an advertisement contains such material, the County will determine whether a reasonably prudent person, knowledgeable of the County’s ridership and using prevailing community standards, would believe that the advertisement contains material that ridicules or mocks, is abusive or hostile to, or debases the dignity or stature of any individual, group of individuals or entity.

6.2.9 Harmful or Disruptive to Transit System. Advertising that contains material that is so objectionable as to be reasonably foreseeable that it will result in harm to, disruption of or interference with the transportation system. For purposes of determining whether an advertisement contains such material, the County will determine whether a reasonably prudent person, knowledgeable of the County’s ridership and using prevailing community standards, would believe that the material is so objectionable that it is reasonably foreseeable that it will result in harm to, disruption of or interference with the transportation system.

(Geller MSJ Decl.¶¶ 38-40; Gannon Dep. at 54:10-25 to 55:1-6]). According to the County, there were two “elements that were deemed to be false or misleading, one referring to the amount of the reward, and the other being the use of the term ‘jihadis.’” (Gannon Dep. 55:7-25 to 56:1- 5; see also id. at 57:24-25 to 58:1-6 [acknowledging t[acknowledging that the State Department Ad said "Up to $25 million reward,” but not knowing if any of the individuals listed on the ad would command

PLS.’ MOT. FOR SUMM. J. – 8 – Case No. 2:13-cv-01804-RAJ

STEPHEN PIDGEON Attorney at Law, P.S. 3002 Colby Avenue, Suite 306 Everett, Washington 98201 (425) 605-4774

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Case 2:13-cv-01804-RAJ Document 56 Filed 03/07/17 Page 9 of 26

a $25 million reward for his capture] according to the County, it was not “demeaning or disparaging” under the policy “to show these pictures of the most wanted global terrorists with their names.” (Gannon Dep. at 63:24-25 to 64:1-3). And there is no dispute that these were actual pictures and names of people listed on the FBI’s terrorist list. (Gannon Dep. at 64:4-7). The County also admits that Plaintiffs did not selectively exclude people of different religions or races from this ad. (Gannon Dep. at 64:8-21).

E. AFDI Ad II.

In response to the County’s rejection of AFDI Ad I, Plaintiffs modified their ad and submitted to the County’s advertising contractor the following ad for approval (“AFDI Ad II”):

(Geller MSJ Decl. ¶¶ 41, 42; Gannon Dep. at 72:5-10, Ex. 5 [AFDI Ad II]).4

contractor the official response from the County rejecting AFDI Ad II:

Pamela: Please see below form (sic) King County in regard to the proposed Faces of Global Terrorism ad. Thank you. Scott.

Dear Mr. Goldsmith,

Based on our current advertising policy, the American Freedom Defense Initiative (AFDI) ad, “FACES OF GLOBAL TERRIORISM” (sic), submitted and shown in your September 18, 2015 email cannot be accepted. The advertisements do not comply with Subsections 6.2.8 and 6.2.9 set forth below.

6.2.8 Demeaning or Disparaging. Advertising that contains material that demeans or disparages an individual, group of individuals or entity. For purposes of determining whether an advertisement contains such material, the County will determine whether a reasonably prudent person, knowledgeable of the County’s ridership and using prevailing community standards, would believe that the

4 AFDI Ad II did not include the “face” of Jehad Serwan Mostafa, the Caucasian terrorist.

PLS.’ MOT. FOR SUMM. J. – 9 – Case No. 2:13-cv-01804-RAJ

STEPHEN PIDGEON Attorney at Law, P.S. 3002 Colby Avenue, Suite 306 Everett, Washington 98201 (425) 605-4774

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Case 2:13-cv-01804-RAJ Document 56 Filed 03/07/17 Page 10 of 26

advertisement contains material that ridicules or mocks, is abusive or hostile to, or debases the dignity or stature of any individual, group of individuals or entity.

6.2.9 Harmful or Disruptive to Transit System. Advertising that contains material that is so objectionable as to be reasonably foreseeable that it will result in harm to, disruption of or interference with the transportation system. For purposes of determining whether an advertisement contains such material, the County will determine whether a reasonably prudent person, knowledgeable of the County’s ridership and using prevailing community standards, would believe that the material is so objectionable that it is reasonably foreseeable that it will result in harm to, disruption of or interference with the transportation system.

In the ongoing litigation with AFDI, we have explained the problems with AFDI’s use of the “Faces of Global Terrorism” motif under Metro’s Transit Advertising Policy. We remain willing to discuss other ways for AFDI to communicate its “catch a terrorist” message in our nonpublic forum. For example, AFDI may want to re-caption the ad “Most Wanted Global Terrorists” or “Wanted for Global Terrorism”—both of which would comply with our advertising policy by removing the demeaning and disparaging aspect of the current ad copy. Please communicate to AFDI our willingness to accept revised ad copy that comply with the advertising policy.

For your reference, I have attached a copy of Metro’s Transit Advertising Policy.

(Geller MSJ Decl. ¶ 43-44, Ex. K; Gannon Dep. at 72:20-23, Ex. 15 [AFDI Ad II reject[AFDI Ad II rejection email]. Consequently, the County did not consider this ad “false or misleading.” (Gannon Dep. at 73:2-5). Moreover, the County did not object to the “faces” on the advertisement; the County only objected to the view that these “faces” are the “Faces of Global Terrorism.” (Gannon Dep. at 75:25 to 76:1-13 [“Q. Okay. So if["Q. Okay. So if we changed ‘Faces of Global Terrorism,’ as we just went through, to ‘Most Wanted Global Terrorists’ or ‘Wanted for Global Terrorism,’ everything else remaining equal, the ad would comply with the policy. Correct? A. That is correct.”]idence of Disruption or Harm.

Because AFDI Ads I and II never ran on the County’s advertising space, there is no evidence of any violence being conducted against any transit advertising property as a result of these ads, there is no evidence of a diversion of substantial resources of the County as a result of these ads, and there is no evidence that these ads caused any disruption whatsoever to the transit

PLS.’ MOT. FOR SUMM. J. – 10 – Case No. 2:13-cv-01804-RAJ

STEPHEN PIDGEON Attorney at Law, P.S. 3002 Colby Avenue, Suite 306 Everett, Washington 98201 (425) 605-4774

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Case 2:13-cv-01804-RAJ Document 56 Filed 03/07/17 Page 11 of 26

system.5 (Gannon Dep. at 36:24-25 to 37:1-17). Moreover, the State Department ad ran on the County’s busses from June 6, 2013 to June 25, 2013 (nearly 3 weeks), and the County received only a “small volume” of complaints, and these complaints were mostly from a politician and advocacy groups. (Shinbo Decl. ¶ 15, [“[T]he complaint ["[T]was small. . . .”], Ex. F [Congressman McDermott[Congressman McDermott Ltr.] Communi[Arab American Community Coalition Ltr.]rring to an email[referring to an email from the "Executive Director of Council on American-Islamic Relations (CAIR – WA)”], 3[Dkt. # 14, ECF pp. 6, 37-42]e, reduced ridership, or a substantial diversion of resources—just a handful of complaints, mostly from political partisans. ARGUMENT

I. Summary Judgment Standard.

“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56. And “when simultaneous cross-motions for summary judgment on the same claim are before the court, the court must consider the appropriate evidentiary material identified and submitted in support of both motions, and in opposition to both motions, before ruling on each of them.” Fair Hous. Council v. Riverside Two, 249 F.3d 1132, 1134 (9th Cir. 2001).
II. This Court’s Prior Ruling Is Not “Law of the Case.”

A preliminary decision on a request for an injunction is not binding at trial on the merits or, as here, when deciding a motion for summary judgment, and thus does not constitute the “law

5 This highlights the problem with prior restraints on speech. See infra Sec. III.
6 The County’s Rule 30(b)(6) witness testified that while he could not “cite an exact number of complaints,” he believed that there were “between eight and ten complaints [that] were received thr[that]ultiple channels, including e-mail, telephone; and in addition, there was a community meeting [held at the offices of [held at the offices of the Washington ACLU, see Shinbo Decl. ¶ 21 (Dkt. # 14, ECF p. 8)]aints or at least concerns were expressed about the advertisement.” (Gannon Dep. at 48:4-12). The witness agreed, however, that this was a “small” volume of complaints. (Gannon Dep. 48:24-25 to 49:1- 2). Indeed, when you consider the County’s ridership is approximately 400,000 people a day, the volume is microscopic.

PLS.’ MOT. FOR SUMM. J. Case No. 2:13-cv-01804-RAJ

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STEPHEN PIDGEON Attorney at Law, P.S. 3002 Colby Avenue, Suite 306 Everett, Washington 98201 (425) 605-4774

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refusal to accept [Plaintiffs’ advertise[Plaintiffs’ advertisements][their] content is a cle[their]rior restraint.”

ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.”

Case 2:13-cv-01804-RAJ Document 56 Filed 03/07/17 Page 12 of 26

of the case.” University of Tex. v. Camenisch, 451 U.S. 390, 395 (1981) (“[T]he findings of fact a[T]conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits.”); Wilcox v. United States, 888 F.2d 1111, 1114 (6th Cir. 1989) (holding that the trial court’s denial of a preliminary injunction did not establish the law of the case with respect to the court’s subsequent summary judgment determination); Technical Publ’g Co. v. Lebhar- Friedman, Inc., 729 F.2d 1136, 1139 (7th Cir. 1984) (“A factual finding made in connection with a preliminary injunction is not binding” on a motion for summary judgment); City of Angoon v. Hodel, 803 F.2d 1016, 1024, n.4 (9th Cir. 1986) (determinations corresponding to a preliminary injunction do not constitute law of the case). Applying the “law of the case” doctrine in such circumstances constitutes reversible error. Wilcox, 888 F.2d at 1114.

III. Analysis of Plaintiffs’ Constitutional Claims.

To resolve Plaintiffs’ First Amendment claim, the Court must (1) determine whether Plaintiffs’ advertisements are protected speech; (2) conduct a forum analysis as to the forum in question to determine the proper constitutional standard to apply; and then (3) determine whether the County’s speech restriction comports with the applicable standard. Am. Freedom Def. Initiative v. Metro. Transp. Auth., 880 F. Supp. 2d 456, 466 (S.D.N.Y. 2012) (analyzing a free speech claim in “three parts”); see generally Seattle Mideast Awareness Campaign v. King Cnty., 781 F.3d 489 (9th Cir. 2015) (evaluating a First Amendment claim by conducting a forum analysis and applying the appropriate standard) (hereinafter “SeaMAC”).

Moreover, the County’s “
F.2d 893, 896 (D.C. Cir. 1984) (Bork, J.). And “[a]
Books, Inc. v. S[a]ivan, 372 U.S. 58, 70 (1963) (collecting cases). This is important because the

PLS.’ MOT. FOR SUMM. J. – 12 – Case No. 2:13-cv-01804-RAJ

STEPHEN PIDGEON Attorney at Law, P.S. 3002 Colby Avenue, Suite 306 Everett, Washington 98201 (425) 605-4774

Lebron v. Wash. Metro. Area Transit Auth., 749 Bantam

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County must come forward with clear evidence demonstrating that it restrictions are justified in this case. No such evidence exists. (See, e.g. Gannon Dep. at 36:24-25 to 37:1-17).

A. Plaintiffs’ Advertisement Is Protected Speech.

Signs posted on government transit advertising space constitute protected speech under the First Amendment. United Food & Commercial Workers Union, Local 1099 v. Sw. Ohio Reg’l Transit Auth., 163 F.3d 341 (6th Cir. 1998) (hereinafter “United Food”); see also SeaMAC, 781 F.3d 489. This question is not at issue here.

B. The County Created a Forum for Plaintiffs’ Speech.

“The [Supreme] Court has adop[Supreme]um analysis as a means of determining when the Government’s interest in limiting the use of its property to its intended purpose outweighs the interest of those wishing to use the property for [expressive] purposes.[expressive]v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 800 (1985). Forum analysis has traditionally divided government property into three categories: traditional public forums, designated public forums, and nonpublic forums. Cornelius, 473 U.S. at 800. Once the forum is identified, the court must then determine whether the speech restriction is justified by the requisite standard. Id.

A designated public forum exists when the government intentionally opens its property for expressive activity. Perry Educ. Ass’n v. Perry Local Educators, 460 U.S. 37, 44 (1983). As the Supreme Court stated, “[A] public forum may be [A]ated by government designation of a place or channel of communication for use by the public at large for assembly and speech, for use by certain speakers, or for the discussion of certain subjects.” Cornelius, 473 U.S. at 802.

In a designated public forum, restrictions on speech are subject to strict scrutiny. Id. at 800. Thus, “speakers can be excluded from a public forum only when the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest. . . .” Id. (stating that this standard applies in a designated forum as well).

At the opposite end of the spectrum is the nonpublic forum. The nonpublic forum is

PLS.’ MOT. FOR SUMM. J. – 13 – Case No. 2:13-cv-01804-RAJ

STEPHEN PIDGEON Attorney at Law, P.S. 3002 Colby Avenue, Suite 306 Everett, Washington 98201 (425) 605-4774

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“[p]ublic property which [p]not by tradition or designation a forum for public communication.” Perry Educ. Ass’n, 460 U.S. at 46. In a nonpublic forum, the government “may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.” Id. Thus, in a nonpublic forum, a speech restriction must be reasonable and viewpoint neutral to pass constitutional muster. Id. And the “reasonableness” requirement in the First Amendment context is not a pushover. As stated by the Ninth Circuit:

The “reasonableness” requirement for restrictions on speech in a nonpublic forum requires more of a showing than does the traditional rational basis test; i.e., it is not the same as establishing that the regulation is rationally related to a legitimate governmental objective, as might be the case for the typical exercise of the government’s police power. There must be evidence in the record to support a determination that the restriction is reasonable. That is, there must be evidence that the restriction reasonably fulfills a legitimate need.

Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 966-67 (9th Cir. 2002), abrogated on other grounds by Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008) (emphasis added). As demonstrated further below, the County’s prior restraints fail this test.

The Ninth Circuit previously recognized a “limited public forum,” which it considered a “sub-category of the designated public forum.” See Flint v. Dennison, 488 F.3d 816, 830-31 (9th Cir. 2007) (describing a “limited public forum” as “a type of nonpublic forum that the government has intentionally opened to certain groups or to certain topics”) (internal citations and quotations omitted). In a “limited public forum, strict scrutiny is accorded . . . to restrictions on speech that falls within the designated category for which the forum has been opened.” Hotel Emples. & Rest. Emples. Union, Local 100 v. City of N.Y. Dep’t of Parks & Rec., 311 F.3d 534, 545 (2d Cir. 2002). Here, the forum is open to paying advertisers (the “certain group[]”) and to advertisements addressing global terrorism (the “certain topic”). Consequently, under a proper limited public forum analysis, because Plaintiffs (paying advertisers) want to display an advertisement on a permissible topic (global terrorism), the County’s restrictions are subject to

PLS.’ MOT. FOR SUMM. J. – 14 – Case No. 2:13-cv-01804-RAJ

STEPHEN PIDGEON Attorney at Law, P.S. 3002 Colby Avenue, Suite 306 Everett, Washington 98201 (425) 605-4774

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strict scrutiny. See id. The Ninth Circuit, however, has backed away from this approach and considers a limited public forum to be the same as a “nonpublic” forum.7

There is little doubt that under the facts of this case, the Second, Third, Sixth, Seventh, and D.C. Circuits would hold that the forum is a public forum, thereby subjecting the County’s content-based restrictions to strict scrutiny,8 whereas the First9 and Ninth Circuits would not.

The Ninth Circuit joined the First Circuit in its approach to the forum question in SeaMAC, where a divided panel held that the County’s bus advertising space was a limited public forum (actually, a nonpublic forum, see supra n.7) even where the transit authority accepted controversial political ads, thus furthering the circuit split. See SeaMAC, 781 F.3d at 498.

While the majority of the federal appeals courts that have addressed the forum question presented here disagree with the Ninth Circuit, Plaintiffs acknowledge that this Court is bound to follow the Ninth Circuit’s minority approach. Plaintiffs hereby preserve the forum issue for appeal and potential en banc review or U.S. Supreme Court consideration.

Nonetheless, at the end of the day, the County’s prior restraints on Plaintiffs’ speech do not survive constitutional muster even in a limited (or nonpublic) forum, as demonstrated below.

C. The County’s Prior Restraints Cannot Survive Constitutional Scrutiny. 1. The County’s Prior Restraints Are Viewpoint Based.

The County’s prior restraints on Plaintiffs’ speech are viewpoint based facially and as applied. Viewpoint discrimination is an egregious form of content discrimination that is

7 In American Freedom Defense Initiative v. King County, 796 F.3d 1165, 1169 n.1 (9th Cir. 2015), the court stated that in light of the Supreme Court’s decision in Walker v. Texas Division, Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015), “the proper term likely is ‘nonpublic forum.’ . . . For that reason, we use the term ‘nonpublic forum.’”

8 See N.Y. Magazine v. Metro. Transp. Auth., 136 F.3d 123 (2d Cir. 1998) (holding that the transit authority’s advertising space was a designated public forum); Christ’s Bride Ministries, Inc. v. Se. Penn. Transp. Auth., 148 F.3d 242 (3d Cir. 1998); United Food, 163 F.3d 341 (6th Cir. 1998); Planned Parenthood Ass’n/Chicago Area v. Chi. Transit Auth., 767 F.2d 1225 (7th Cir. 1985); Lebron v. Wash. Metro. Area Transit Auth., 749 F.2d 893 (D.C. Cir. 1984).

9 Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65 (1st Cir. 2004).

PLS.’ MOT. FOR SUMM. J. – 15 – Case No. 2:13-cv-01804-RAJ

STEPHEN PIDGEON Attorney at Law, P.S. 3002 Colby Avenue, Suite 306 Everett, Washington 98201 (425) 605-4774

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prohibited in all forums. See Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995). “The principle that has emerged from [Supreme Court] cases is[Supreme Court] Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.” Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 394 (1993) (internal quotations and citation omitted). “When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant.” Rosenberger, 515 U.S. at 829 (emphasis added).

Consequently, when speech “fall[s] within an acceptable[s]bject matter otherwise included in the forum, the State may not legitimately exclude it from the forum based on the viewpoint of the speaker.” Cogswell v. City of Seattle, 347 F.3d 809, 815 (9th Cir. 2003) (emphasis added). Thus, viewpoint discrimination occurs when the government “denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject.” Cornelius, 473 U.S. at 806 (emphasis added).

In Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819 (1995), for example, the Court concluded that the challenged restriction was viewpoint based. In doing so, the Court stated that “[t]he prohibited perspec[t]e, not the general subject matter, resulted in the refusal to make third-party payments, for the subjects discussed were otherwise within the approved category of publications.” Id. at 831.

As the Court further explained:

The dissent’s assertion that no viewpoint discrimination occurs because the Guidelines discriminate against an entire class of viewpoints reflects an insupportable assumption that all debate is bipolar and that antireligious speech is the only response to religious speech. Our understanding of the complex and multifaceted nature of public discourse has not embraced such a contrived description of the marketplace of ideas. If the topic of debate is, for example, racism, then exclusion of several views on that problem is just as offensive to the First Amendment as exclusion of only one. It is as objectionable to exclude both a theistic and an atheistic perspective on the debate as it is to exclude one, the other, or yet another political, economic, or social viewpoint. The dissent’s declaration

PLS.’ MOT. FOR SUMM. J. – 16 – Case No. 2:13-cv-01804-RAJ

STEPHEN PIDGEON Attorney at Law, P.S. 3002 Colby Avenue, Suite 306 Everett, Washington 98201 (425) 605-4774

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a State may not prohibit only that commercial advertising that depicts men in a demeaning fashion” without violating the First

Amendment);

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that debate is not skewed so long as multiple voices are silenced is simply wrong; the debate is skewed in multiple ways.

Id. at 831-32 (emphasis added).
Here, there is no dispute, and indeed, the County admits, that the subject matter of

Plaintiffs’ ads (global terrorism) is permissible. (Gannon Dep. at 36:3-9). Indeed, even the display of the “faces” of global terrorists as found on the FBI’s most wanted list and included in Plaintiffs’ ads is permissible. What is not permissible under the County’s policy is Plaintiffs’ viewpoint regarding this subject matter: that these faces are the “Faces of Global Terrorism.” This is classic viewpoint discrimination, which is prohibited in all forums. There is no escaping this conclusion. It is compelled by controlling law. See Rosenberger, 515 U.S. at 830-31; Cornelius, 473 U.S. at 806; see also Good News Club v. Milford Cent. Sch. Dist., 533 U.S. 98, 107-08 (2001) (finding that a public school’s exclusion of a Christian club from meeting on its school grounds discriminated on the basis of viewpoint because the school permitted non- religious groups “pertaining to the welfare of the community” to meet at the school). And it also demonstrates why Plaintiffs should prevail on their equal protection claim. See Police Dept. of the City of Chi. v. Mosley, 408 U.S. 92, 96 (1972) (“[U]nder the Equal Protec[U]n Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views.”).

This conclusion is further buttressed by the County’s enforcement of a policy that is itself viewpoint based (i.e., the restriction on “demeaning or disparaging” speech). See Rosenberger, 515 U.S. at 830-31; R.A.V., 505 U.S. at 389 (stating that “

see also Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65, 100 (1st Cir. 2004) (Torruella, J., dissenting) (“The government cannot allow dissemination of one viewpoint that it finds inoffensive or bland, and prohibit the dissemination of another viewpoint that it finds

PLS.’ MOT. FOR SUMM. J. – 17 – Case No. 2:13-cv-01804-RAJ

STEPHEN PIDGEON Attorney at Law, P.S. 3002 Colby Avenue, Suite 306 Everett, Washington 98201 (425) 605-4774

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offensive or ‘demeaning,’ . . . . Such distinctions are viewpoint based, not merely reasonable content restrictions.”).

In Ridley v. Massachusetts Bay Transportation Authority, 390 F.3d 65 (1st Cir. 2004),

the court held that the transit authority’s restriction on certain advertisements that were critical

of laws prohibiting drug use were viewpoint based. The MBTA asserted that the restriction was

viewpoint neutral, arguing that a similar message could run if a different manner of expression

was used. The court rejected the argument, stating,

The MBTA’s concession means simply that it will run advertisements which do not attract attention but will exercise its veto power over advertisements which are designed to be effective in delivering a message. Viewpoint discrimination concerns arise when the government intentionally tilts the playing field for speech; reducing the effectiveness of a message, as opposed to repressing it entirely, thus may be an alternative form of viewpoint discrimination.

Ridley, 300 F.3d at 88 (emphasis added).
Thus, attempting to “reduc[e] the effectiveness of[e]message” or the thrust of its

meaning—even if the entire message itself is not prohibited—is a form of viewpoint discrimination. The fact that the County has engaged in viewpoint discrimination was laid bare by its admission that AFDI Ad II would be acceptable if Plaintiffs changed the caption (and thus the viewpoint of the message) from “Faces of Global Terrorism” to “Most Wanted Global Terrorists” or “Wanted for Global Terrorism,” leaving all else the same. It is not possible to conclude that this is anything but viewpoint discrimination in violation of the Constitution.

Indeed, the suppression of this viewpoint is also the very basis for the County’s assertion that the advertisements would somehow cause disruption. As demonstrated below, there is no evidence whatsoever of the type of disruption (violence, reduced ridership, substantial diversion of resources) that would permit this type of censorship. None.

2. The Transit Advertising Policy Permits Subjective Application.

In its order denying Plaintiffs’ motion for a preliminary injunction, this Court noted with concern “that this case presents a close question and the court has grave concerns about

PLS.’ MOT. FOR SUMM. J. – 18 – Case No. 2:13-cv-01804-RAJ

STEPHEN PIDGEON Attorney at Law, P.S. 3002 Colby Avenue, Suite 306 Everett, Washington 98201 (425) 605-4774

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defendant’s Policy where application of the civility provisions appear to be somewhat of a moving target.” (Order at 8 n.1 [Dkt. # 27, ECF p. 8]). [Dkt. # 27, ECF p. 8]ealized and, as noted above, laid bare by how the County applied its Transit Advertising Policy in this case.

As noted by the Supreme Court, “the danger of censorship and of abridgment of our precious First Amendment freedoms is too great where officials have unbridled discretion over a forum’s use.” Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 553 (1975). Thus, “[t]he absence of clear s[t]dards guiding the discretion of the public official vested with the authority to enforce the enactment invites abuse by enabling the official to administer the policy on the basis of impermissible factors.” United Food, 163 F.3d at 359; Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123, 130 (1992) (“A government regulation that allows arbitrary application . . . has the potential for becoming a means of suppressing a particular point of view.”).

Consequently, a speech restriction “offends the First Amendment when it grants a public official ‘unbridled discretion’ such that the official’s decision to limit speech is not constrained by objective criteria, but may rest on ‘ambiguous and subjective reasons.’” United Food, 163 F.3d at 359 (quoting Desert Outdoor Adver., Inc. v. City of Moreno Valley, 103 F.3d 814, 818 (9th Cir. 1996)) (emphasis added). Such restrictions also offend the due process clause of the Fourteenth Amendment. Grayned v. City of Rockford, 408 U.S. 104, 108 (1972) (“It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.”); United Food, 163 F.3d at 358-59 (same).

Here, the County’s proffered bases for restricting Plaintiffs’ speech are not based on any objective criteria, but, instead, allow for ambiguous and subjective reasons for restricting speech in violation of the First and Fourteenth Amendments. Indeed, in reality, the dressed-up disguise of objectivity merely hides a viewpoint-based censorship of speech (and speaker) with which the County does not agree or simply does not like. The way in which the County handled AFDI Ad II—admitting that the pictures (and names associated with them) were permissible but stating

PLS.’ MOT. FOR SUMM. J. – 19 – Case No. 2:13-cv-01804-RAJ

STEPHEN PIDGEON Attorney at Law, P.S. 3002 Colby Avenue, Suite 306 Everett, Washington 98201 (425) 605-4774

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that the “Faces of Global Terrorism” message was not—is dispositive (in addition to the County’s witness admitting that no objective standards exist [Gannon Dep. at 69:13-20[Gannon Dep. at 69:13-20]d I included the only picture of a U.S.-born, Caucasian terrorist listed on the FBI’s most wanted list, and that picture was not on AFDI Ad II. In short, there are no objective criteria that explain why the County rejected Plaintiffs’ ads, only a subjective dislike of Plaintiffs’ message.

SeaMac is both instructional and distinguishable.

SeaMAC contends that the County’s application of § 6.4(D) is unconstitutional because SeaMAC’s proposed ad does not actually violate § 6.4(D). In particular, SeaMAC argues that the threat of disruption posed by its ad was merely “speculative,” and that the County’s attempts to organize a law enforcement response plan indicated any threat could have been “neutralized.” We must independently review the record, without deference to the threat assessment made by County officials, to determine whether it “show[s] that the asserted ri[s] were real.” Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 967 (9th Cir. 2002), abrogated on other grounds by Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008).

We agree with the district court that the threat of disruption here was real rather than speculative. The County identified three types of potential disruption, each of which is supported by the record: (1) vandalism, violence, or other acts endangering passengers and preventing the buses from running; (2) reduced ridership because of public fear of such endangerment; and (3) substantial resource diversion from Metro’s day-to-day operations. As discussed earlier, the County received numerous threats to vandalize or block Metro buses, which were sufficiently credible to cause Metro to seek the advice of law enforcement. In addition, riders and drivers threatened not to ride or drive, citing legitimate safety concerns generated by the negative reaction to SeaMAC’s proposed ad. And Metro had to divert substantial resources away from its normal day-to-day operations in order to address those safety concerns. Taken together, we think these facts establish that, if permitted to run, SeaMAC’s ad would foreseeably have resulted in “harm to, disruption of, or interference with the transportation system,” as § 6.4(D) requires.

SeaMAC, 781 F.3d at 500-01 (emphasis added); see also Am. Freedom Def. Initiative v. King Cnty., 796 F.3d 1165, 1169 (9th Cir. 2015) (explaining its holding in SeaMAC and stating that “we agreed with Metro’s assessment of disruption to the transit system because of the significant number, and serious nature, of the threats that Metro had received”) (emphasis added).

In this case, there is no such evidence of vandalism, reduced ridership, or substantial

PLS.’ MOT. FOR SUMM. J. – 20 – Case No. 2:13-cv-01804-RAJ

STEPHEN PIDGEON Attorney at Law, P.S. 3002 Colby Avenue, Suite 306 Everett, Washington 98201 (425) 605-4774

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resource diversion supported by the record. None. At best, in light of the County’s experience with the State Department’s ad (an experience that is not entirely compatible because it is certainly likely that the State Department ad would cause more complaints because it represents the position of the federal government and not the position of an outspoken advocacy group like AFDI), there was a “small volume” of complaints, and these complaints were largely from a politician and advocacy groups.

Indeed, this case fits squarely within the words of caution expressed by the Ninth Circuit:

A claimed fear of hostile audience reaction could be used as a mere pretext for suppressing expression because public officials oppose the speaker’s point of view. That might be the case, for example, where the asserted fears of a hostile audience reaction are speculative and lack substance, or where speech on only one side of a contentious debate is suppressed.

SeaMAC, 781 F.3d at 502-03 (emphasis added).

In upholding the County’s restriction on speech that “is so objectionable under contemporary community standards as to be reasonably foreseeable that it will result in harm to, disruption of, or interference with the transportation system,” the SeaMAC panel relied upon Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). See SeaMAC at 781 F.3d at 500. The panel noted that an analogous standard was upheld in Tinker where the Court “concluded that school officials may exclude student speech if the speech could reasonably lead to ‘substantial disruption of or material interference with school activities.’” Id. (quoting Tinker, 393 U.S. at 514). Accordingly, the SeaMAC panel concluded that the County’s speech restriction was valid because it “is tied to disruption of or interference with the normal operations of the transit system,” thereby “suppl[ying] courts with a suf[ying]tly definite and objective benchmark against which to judge the ‘disruption’ assessments made by County officials.” Id. Therefore, pursuant to SeaMAC, in order for the County to apply this standard consistent with the Constitution, the disruption or interference must be real.

Applying the rationale in Tinker, “[i]n order for the State[i]n the person of govern[in the person of government

PLS.’ MOT. FOR SUMM. J. – 21 – Case No. 2:13-cv-01804-RAJ

STEPHEN PIDGEON Attorney at Law, P.S. 3002 Colby Avenue, Suite 306 Everett, Washington 98201 (425) 605-4774

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transit officials]of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would materially and substantially interfere with the [normal operations of th[normal operations of the transit system] be sustained.” See Tinker, 393 U.S. at 509 (internal quotations omitted) (emphasis added).

Consequently, the “discomfort and unpleasantness” that might accompany Plaintiffs’ “unpopular viewpoint” cannot serve as the basis for suppressing it. And there is no evidence that Plaintiffs’ advertisement has caused (or will cause) material and substantial interference (let alone any interference) with the normal operations of the transit system.

As the Supreme Court observed in Tinker (with slight paraphrasing):

[I]n our system, undiffe[I]tiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken [or message displayed] t[or message displayed]views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk[;] and our history says[;]at it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans who grow up and live

in this relatively permissive, often disputatious, society.

Tinker, 393 U.S. at 508-09. This firm commitment to protecting the freedom of speech as expressed in Tinker is even more pertinent here since “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings,” Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 682 (1986), such as the “setting” at issue in this case.

3. The County’s Prior Restraints Are Not Reasonable.

Reasonableness is evaluated “in light of the purpose of the forum and all the surrounding circumstances.” Cornelius, 473 U.S. at 809; see also Brown v. Cal. Dep’t of Transp., 321 F.3d 1217, 1222-23 (9th Cir. 2003) (preliminarily enjoining California DOT’s policy of permitting the display of American flags, but prohibiting the display of all other banners and signs on

PLS.’ MOT. FOR SUMM. J. – 22 – Case No. 2:13-cv-01804-RAJ

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highway overpass fences, a nonpublic forum, concluding, inter alia, that the “proffered justification” for the restriction was “patently unreasonable”). And “there must be evidence that the restriction reasonably fulfills a legitimate need.” Sammartano, 303 F.3d at 967. The County’s prior restraints fail this test.

The County proffers three justifications for its prior restraint on AFDI Ad I: (1) the advertisement contains “material that is or that the sponsor reasonably should have known is false, fraudulent, misleading, deceptive or would constitute a tort of defamation or invasion of privacy”; (2) the advertisement “contains material that demeans or disparages an individual, group of individuals or entity”; and (3) the advertisement “contains material that is so objectionable as to be reasonably foreseeable that it will result in harm to, disruption of or interference with the transportation system.” And the County proffers two justifications for its prior restraint on AFDI Ad II: (1) the advertisement “contains material that demeans or disparages an individual, group of individuals or entity”; and (2) the advertisement “contains material that is so objectionable as to be reasonably foreseeable that it will result in harm to, disruption of or interference with the transportation system.” However, in light of the purpose of the forum and all the surrounding circumstances, these justifications are patently unreasonable.

There is nothing false, defamatory, demeaning, or disparaging about a private party conveying a political message that displays factually correct information about global terrorists—information that is made available to the public by the federal government no less. Indeed, this is the very same information that was included on an advertisement that the County had previously accepted.10 For similar reasons, there is no basis (reasonable or otherwise) for claiming that Plaintiffs’ advertisement “contains material that is so objectionable as to be reasonably foreseeable” that it will harm, disrupt, or interfere with the County’s transportation

10 Any reasonable viewer of AFDI Ads I and II would also conclude that these ads are sponsored by Plaintiffs and not the federal government.

PLS.’ MOT. FOR SUMM. J. Case No. 2:13-cv-01804-RAJ

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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.” Am. Freedom Def. Initiative v. King Cnty.,

136 S. Ct. 1022, 1025 (2016) (Thomas, J., dissenting) (citing

“prior administrative restraint of distinctively political messages on the basis of their alleged

deceptiveness is unheard-of—and deservedly so.” Lebron, 749 F.2d at 898-99 (Bork, J.); (“

CONCLUSION

For the foregoing reasons, Plaintiffs respectfully request that the Court grant this motion, enter judgment in Plaintiffs’ favor, and enjoin the County’s prior restraints on Plaintiffs’ speech, thereby permitting the display of Plaintiffs’ advertisements on the County’s buses. In the alternative, Plaintiffs request that the Court grant partial summary judgment in Plaintiffs’ favor with regard to the County’s prior restraint on AFDI Advertisement II.

Case 2:13-cv-01804-RAJ Document 56 Filed 03/07/17 Page 24 of 26

system in any way—nor has the County proffered any facts to support such a basis so as to justify its prior restraints. In sum, regardless of the nature of the forum, the County’s prior restraints on Plaintiffs’ speech are unreasonable.

4. It Is Error to Apply a Falsity Standard on Political Speech.

On March 7, 2016, the U.S. Supreme Court denied review of Plaintiffs’ petition for writ of certiorari, with Justice Thomas, joined by Justice Alito, writing a dissent from the denial. In that dissent, Justice Thomas stated, in relevant part: “

United States v. Alvarez, 132 S. Ct. 2537 (2012)) (emphasis added). Judge Bork echoed this sentiment, observing that a

N.Y. Times Co. v. Sullivan, 376 U.S. 254, 271 (1964) Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth—whether administered by judges, juries, or administrative officials . . . .”). Because the County admits that AFDI Ad I was a political message, it is impermissible under the First

Amendment to restrict it based on a “false and misleading” speech restriction.

PLS.’ MOT. FOR SUMM. J. – 24 – Case No. 2:13-cv-01804-RAJ

STEPHEN PIDGEON Attorney at Law, P.S. 3002 Colby Avenue, Suite 306 Everett, Washington 98201 (425) 605-4774

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Document 56 Filed 03/07/17 Page 25 of 26

Respectfully submitted,
AMERICAN FREEDOM LAW CENTER

/s/ Robert J. Muise
Robert J. Muise, Esq.* (MI P62849)
P.O. Box 131098
Ann Arbor, Michigan 48113 rmuise@americanfreedomlawcenter.org Tel: (734) 635-3756; Fax: (801) 760-3901

/s/ David Yerushalmi
David Yerushalmi, Esq.* (DC # 978179) 1901 Pennsylvania Avenue NW, Suite 201 Washington, D.C. 20001 david.yerushalmi@verizon.net
Tel: (646) 262-0500;Fax: (801) 760-3901

*Admitted pro hac vice.
Stephen Pidgeon Attorney at Law, P.S.

Stephen Pidgeon, Esq. WSBA # 25265 Attorney at Law, P.S.
3002 Colby Avenue, Suite 306 Everett, Washington 98201 attorney@stephenpidgeon.com

Tel: (425) 605-4774; Fax: (425) 818-5371

PLS.’ MOT. FOR SUMM. J. Case No. 2:13-cv-01804-RAJ

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STEPHEN PIDGEON Attorney at Law, P.S. 3002 Colby Avenue, Suite 306 Everett, Washington 98201 (425) 605-4774

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CERTIFICATE OF SERVICE

I hereby certify that on March 7, 2017, a copy of the foregoing was filed electronically. Notice of this filing will be sent to all parties for whom counsel has entered an appearance by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s system. I further certify that a copy of the foregoing has been served by ordinary U.S. mail upon all parties for whom counsel has not yet entered an appearance electronically: none.

Respectfully submitted,

/s/ Robert J. Muise Robert J. Muise, Esq.

*Admitted pro hac vice.

PLS.’ MOT. FOR SUMM. J. Case No. 2:13-cv-01804-RAJ

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STEPHEN PIDGEON Attorney at Law, P.S. 3002 Colby Avenue, Suite 306 Everett, Washington 98201 (425) 605-4774

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EXHIBIT 1

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE

AMERICAN FREEDOM DEFENSE INITIATIVE; PAMELA GELLER; and ROBERT SPENCER,

Plaintiffs,

-v.-

KING COUNTY, Defendant.

Case No. 2:13-cv-01804-RAJ

DECLARATION OF
PAMELA GELLER IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

THE HONORABLE RICHARD A. JONES

I, Pamela Geller, make this declaration pursuant to 28 U.S.C. § 1746 and based upon my personal knowledge and upon verifiable public information.

  1. I am an adult citizen of the United States and a plaintiff in this case.
  2. I, along with Robert Spencer, who is also a plaintiff in this case, co-founded the

American Freedom Defense Initiative (“AFDI”). I am currently the president of AFDI, and Mr. Spencer is the vice president.

3. AFDI is a nonprofit organization that is incorporated under the laws of the State of New Hampshire. AFDI is also a plaintiff in this case.

4. Mr. Spencer and I engage in free speech activity through various projects of AFDI. One such project is the posting of advertisements on the advertising space of various government transportation agencies throughout the United States, including the Transit Division

GELLER DECL./MOT. FOR SUMM. J. – 1 – Case No. 2:13-cv-01804-RAJ

STEPHEN PIDGEON Attorney at Law, P.S.

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of the King County Department of Transportation (“King County Metro Transit”), which operates buses throughout King County, Washington.

5. AFDI is an advocacy organization dedicated to freedom of speech, freedom of conscience, individual rights, and equality of all before the law.

6. AFDI achieves its objective through a variety of lawful means, including through the exercise of its right to freedom of speech under the U.S. Constitution.

7. AFDI exercises its right to freedom of speech and promotes its objectives by, inter alia, purchasing advertising space on transit authority property in major cities throughout the United States, including Seattle, Washington. AFDI purchases these advertisements to express its message on current events and public issues, particularly including issues involving global terrorism (hereinafter referred to as “AFDI’s advertising campaign”).

8. Defendant King County (“County”) is a municipal corporation. In the performance of its governmental duties, the County operates a public transit system (King County Metro Transit).

  1. The County leases space on the exterior of its buses for use as advertising space.
  2. The County accepts noncommercial and commercial advertisements for display

on its advertising space.

11. The County accepts noncommercial public service, public issue, and political issue advertisements, including advertisements on controversial issues, for display on its advertising space.

12. The County has leased its advertising space for political and social commentary advertisements covering a broad spectrum of political views and ideas, including ads addressing the controversial and highly contentious Israeli – Palestinian conflict.

13. Under the current Transit Advertising Policy—which is the same policy the County applied to reject our advertisements at issue in this case—the County accepted in 2012

GELLER DECL./MOT. FOR SUMM. J. – 2 – Case No. 2:13-cv-01804-RAJ

STEPHEN PIDGEON Attorney at Law, P.S.

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and 2013 advertisements expressing controversial political messages such as “I’m a Palestinian. Equal Rights for All,” “Equal Rights for Palestinians. The Way to Peace,” “Share the Land. Palestinian Refugees Have the Right to Return. Equal Rights for Palestinians.,” and “The Palestinian Authority Is Calling For A Jew-Free State, Equal Rights For Jews.” (Dkt. # 14 at ECF pp. 12 to17).

14. Based upon published reports and information developed in this case, in June 2013, the State Department displayed on the County’s transit advertising space an advertisement addressing global terrorism. A true and accurate copy of the State Department ad appears as follows:

15. Based upon reports and information developed during this case, the State Department ad was displayed on the County’s buses from June 6, 2013 to June 25, 2013.

16. According to press reports and information developed during this case, the federal government decided to terminate its “Faces of Global Terrorism” ad campaign after receiving complaints from a politician and advocacy groups that the list of wanted global terrorists pictured in the advertisement appeared to include mostly Muslim terrorists.

17. For example, Congressman Jim McDermott complained about the ad to Robert Mueller, the director of the FBI, in a letter dated June 19, 2013. (Dkt. # 14 at ECF p. 38). In that letter, Congressman McDermott stated, in relevant part, “I agree that civilian vigilance is important to the fight against extremism. Representing terrorists, however, from only one ethnic or religious group, promotes stereotypes and ignores other forms of extremism. The FBI’s Most Wanted Terrorist List includes individuals of other races and associated with other religions and

GELLER DECL./MOT. FOR SUMM. J. – 3 – Case No. 2:13-cv-01804-RAJ

STEPHEN PIDGEON Attorney at Law, P.S.

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causes, but their faces are missing from this campaign.”

  1. Congressman McDermott’s objection was factually incorrect.
  2. The FBI publishes a listing of the most wanted global terrorists on its website.

That listing in its current form is located at: https://www.fbi.gov/wanted/wanted_terrorists (“FBI Terrorist List”).

20. At the time of Congressman McDermott’s objection, the FBI Terrorist List included pictures and “wanted posters” for thirty-two terrorists. Of the thirty-two listed terrorists, thirty were individuals with Muslim names and/or were wanted for terrorism related to organizations conducting terrorist acts in the name of Islam. A true and accurate copy of this listing is attached to this declaration as Exhibit A.

21. Of the two non-Islamic terrorists, one (Daniel Andreas San Diego) has ties to animal rights extremist groups and the other (Joanne Deborah Chesimard) is an escaped murderer who was part of a revolutionary extremist organization known as the Black Liberation Party. The only religion represented on the FBI Terrorist List is Islam.

22. The FBI Terrorist List currently includes pictures and “wanted posters” for twenty-eight terrorists. https://www.fbi.gov/wanted/wanted_terrorists (last visited February 27, 2017). Of the twenty-eight terrorists currently listed, twenty-six are individuals with Muslim names and/or are wanted for terrorism related to organizations conducting terrorist acts in the name of Islam. The other two non-Islamic terrorist are, once again, Daniel Andreas San Diego and Joanne Deborah Chesimard. Attached as Exhibit B to this declaration is a true and accurate screenshot of the twenty-eight listed terrorists.

23. The Rewards for Justice listing of individuals who are “Wanted for Terrorism” currently lists sixty-six terrorists, and virtually every one of these terrorists are individuals with Muslim names and/or are wanted for terrorism related to organizations conducting terrorist acts in the name of Islam. The listing is located at https://www.rewardsforjustice.net/english/most-

GELLER DECL./MOT. FOR SUMM. J. – 4 – Case No. 2:13-cv-01804-RAJ

STEPHEN PIDGEON Attorney at Law, P.S.

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wanted/all-regions.html (last visited on February 27, 2017). A true and accurate copy of this listing is attached to this declaration as Exhibit C.

24. Pursuant to the County’s Transit Advertising Policy and particularly in light of the fact that the County permitted and displayed the State Department ad, AFDI submitted for approval on or about July 30, 2013, an advertisement that was substantively similar to the State Department ad (“AFDI Ad I”).

  1. AFDI Ad I appears as follows:
  2. AFDI Ad I included the identical pictures and names of the wanted global

terrorists that appeared in the State Department ad.

27. AFDI Ad I uses the term “jihadis” to refer to the terrorists listed in the ad (“One of These Jihadis”) because these terrorists are committing acts of violence in the name of Islam. A Google search for the definition of “jihad” reveals the top definition as follows: “a struggle or fight against the enemies of Islam.” The example provided is as follows: “he declared a jihad against the infidels.” A true and accurate copy of a screenshot of the Google search “jihad define” is attached to this declaration as Exhibit D.

28. Additionally, the “Wanted for Terrorism” listing for “Abubakar Shekau” states that he “is the leader of Jama’atu Ahl as-Sunnah il-Da’awati wal-Jihad, more commonly known as Boko Haram. Boko Haram, which means ‘Western education is forbidden,’ is a Nigeria-based terrorist organization that seeks to overthrow the current Nigerian government and replace it with a regime based on Islamic law.” As another example, the listing for “Abu Ubaidah (Direye)” states that “[h]e is believed to subs[h]be to Godane’s view that al-Shabaab is more than a Somali

GELLER DECL./MOT. FOR SUMM. J. – 5 – Case No. 2:13-cv-01804-RAJ

STEPHEN PIDGEON Attorney at Law, P.S.

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nationalist movement and instead is one front in al-Qaida’s global jihad.” And yet another example, among many others, is the listing for “Abu Mohammed Al-Adnani,” which states that he “is ISIL’s main conduit for the dissemination of official messages, including ISIL’s declaration of the creation of an Islamic Caliphate.” (emphasis added). True and accurate copies of the “Wanted” posters of these jihadis from the Rewards for Justice program website are attached to this declaration as Exhibit E.

29. A true and accurate copy of the results of a search of the Rewards for Justice website using the term “jihad” is attached to this declaration as Exhibit F.

30. Consequently, the State Department’s “Faces of Global Terrorism” ad is, in fact, an accurate representation of the “faces” of those who engage in terrorist acts around the world and here in the United States, and so too are the “faces” represented in the AFDI advertisements submitted for display in this case. Moreover, it is factually accurate to refer to these terrorists as “jihadis.”

31. Per the federal government, “The Rewards for Justice program continues to be one of the most valuable U.S. Government assets in the fight against international terrorism. Established by the 1984 Act to Combat International Terrorism, Public Law 98-533, the Program is administered by the U.S. Department of State’s Bureau of Diplomatic Security. Under this program, the Secretary of State may authorize rewards for information that leads to the arrest or conviction of anyone who plans, commits, or attempts international terrorist acts against U.S. persons or property, that prevents such acts from occurring in the first place, that leads to the location of a key terrorist leader, or that disrupts terrorism financing. The Secretary is authorized to pay a reward greater than $25 million if he/she determines that a greater amount is necessary to combat terrorism or to defend the United States against terrorist acts. Since the inception of the Rewards for Justice program in 1984, the United States Government has paid more than $125 million to over 80 people who provided actionable information that put terrorists behind bars or

GELLER DECL./MOT. FOR SUMM. J. – 6 – Case No. 2:13-cv-01804-RAJ

STEPHEN PIDGEON Attorney at Law, P.S.

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prevented acts of international terrorism worldwide.” https://www.rewardsforjustice.net/english/about-rfj/program-overview.html (last visited February 28, 2017) (emphasis added). A true and accurate copy of the “Program Overview” is attached to this declaration as Exhibit G.

32. Consequently, per the Rewards for Justice program website, the amount of a reward can change based on the circumstances. In fact, the Secretary of State “is authorized to pay a reward greater than $25 million if he/she determines that a greater amount is necessary.”

33. The Rewards for Justice program also directs people to the FBI if they have

information and believe they could be eligible for a reward. For example, the following Rewards

for Justice program advertisement is available to the public:

The United States is offering substantial rewards for information that would help locate terrorists or that could prevent terrorism from occurring here or abroad. But we need your help. Your information could save lives and you could be eligible for a reward and relocation. Please visit www.RewardsForJustice.net to submit a confidential tip or contact the FBI or your local law enforcement agency. (emphasis added).

A true and accurate copy of this ad is attached to this declaration as Exhibit H.
34. Additionally, the reward “offers” are also posted on the FBI’s website. A true and accurate copy of a page from the FBI’s website titled, “New Rewards Offered,” is attached to

this declaration as Exhibit I.
35. One of the individuals included on the State Department ad and on AFDI Ad I is

Jehad Serwan Mostafa—a U.S.-born, brown-haired, blue-eyed, Caucasian terrorist—the only one of the thirty-two listed at the time. A true and accurate copy of the “Wanted” poster for Jehad Serwan Mostafa is attached to this declaration as Exhibit J.

36. AFD Ad I presents a political message, and it was submitted for display because the State Department made a decision based on political correctness—and not based on national security or the truth about global terrorism—to pull its ad.

GELLER DECL./MOT. FOR SUMM. J. – 7 – Case No. 2:13-cv-01804-RAJ

STEPHEN PIDGEON Attorney at Law, P.S.

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37. The message of AFDI Ad I is very timely in light of current world events where global terrorists are engaging in violent jihad against America’s national security interests throughout the world and at home.

38. On August 15, 2013, AFDI’s attorney, David Yerushalmi of the American Freedom Law Center, received an email from Mr. Scott Goldsmith, Esq., the executive vice president and chief commercial officer of Titan Outdoor LLC (a/k/a Titan360 and Titan) (hereinafter “Titan”), the advertising contractor working for and on behalf of the County to lease advertising space on the County’s buses. A true and accurate copy of this email, received by me in my capacity as custodian of AFDI’s business records and as a business record in the ordinary course of business, is accurately reproduced as follows:

From: Scott Goldsmith [mailto:Scott.Goldsmith@[mailto:Scott.Goldsmith@titan360.com]15, 2013 3:02 PM
To: david.yerushalmi@verizon.net
Cc: rmuise@americanfreedomlawcenter.org

Subject: AFDI proposed ad “FACES OF GLOBAL TERRORISM” cannot be accepted.

David: Please see below. I am available to discuss. Thank you. Scott.

Scott E. Goldsmith, Esq.

EVP & Chief Commercial Officer 100 Park Avenue
New York, NY 10017
T (212) 891-5688

F (212) 418-1082 scott.goldsmith@titan360.com TITAN
titan360.com

From: Sharron Shinbo <Sharron.Shinbo@kingcounty.gov>
Date: Thursday, August 15, 2013 2:38 PM
To: Scott Goldsmith <Scott.Goldsmith@titan360.com>
Cc: Don Allman <Don.Allman@titan360.com>, Pamela Quadros <Pamela.Quadros@titan360.com>

Subject: AFDI proposed ad “FACES OF GLOBAL TERRORISM” cannot be accepted

GELLER DECL./MOT. FOR SUMM. J. Case No. 2:13-cv-01804-RAJ

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STEPHEN PIDGEON Attorney at Law, P.S.

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Dear Mr. Goldsmith,

Based on our current advertising policy, the American Freedom Defense Initiative ad, “FACES OF GLOBAL TERRORISM”, cannot be accepted. The advertisement does not comply with Subsections 6.2.4, 6.2.8 and 6.2.9, set forth below.

6.2.4 False or Misleading. Any material that is or that the sponsor reasonably should have known is false, fraudulent, misleading, deceptive or would constitute a tort of defamation or invasion of privacy.

6.2.8 Demeaning or Disparaging. Advertising that contains material that demeans or disparages an individual, group of individuals or entity. For purposes of determining whether an advertisement contains such material, the County will determine whether a reasonably prudent person, knowledgeable of the County’s ridership and using prevailing community standards, would believe that the advertisement contains material that ridicules or mocks, is abusive or hostile to, or debases the dignity or stature of any individual, group of individuals or entity.

6.2.9 Harmful or Disruptive to Transit System. Advertising that contains material that is so objectionable as to be reasonably foreseeable that it will result in harm to, disruption of or interference with the transportation system. For purposes of determining whether an advertisement contains such material, the County will determine whether a reasonably prudent person, knowledgeable of the County’s ridership and using prevailing community standards, would believe that the material is so objectionable that it is reasonably foreseeable that it will result in harm to, disruption of or interference with the transportation system.

For your reference, I have attached a copy of Metro’s Transit Advertising Policy.

39.
thereby restrict AFDI’s, Robert Spencer’s, and my speech.

This email represented the final decision by the County to reject AFDI Ad I and

40. Attached to the email was a document titled, Transit Advertising Policy, which is the County’s current policy on advertising. A true and accurate copy of this policy has been marked and identified during the course of depositions in this case as Exhibit 6.

41. In response to the County’s rejection of AFDI Ad I, we modified our advertisement as follows (“AFDI Ad II”):

GELLER DECL./MOT. FOR SUMM. J. Case No. 2:13-cv-01804-RAJ

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STEPHEN PIDGEON Attorney at Law, P.S.

3002 Colby Avenue, Suite 306 Everett, Washington 98201 (425) 605-4774

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42. Our revised advertisement (AFDI Ad II), was submitted for display on the County’s transit advertising space on or about September 18, 2015.

43. On or about October 4, 2015, I received via email from Mr. Goldsmith the official response from the County rejecting AFDI Ad II. The official rejection stated as follows:

Pamela: Please see below form (sic) King County in regard to the proposed Faces of Global Terrorism ad. Thank you. Scott.

Dear Mr. Goldsmith,

Based on our current advertising policy, the American Freedom Defense Initiative (AFDI) ad, “FACES OF GLOBAL TERRIORISM” (sic), submitted and shown in your September 18, 2015 email cannot be accepted. The advertisements do not comply with Subsections 6.2.8 and 6.2.9 set forth below.

6.2.8 Demeaning or Disparaging. Advertising that contains material that demeans or disparages an individual, group of individuals or entity. For purposes of determining whether an advertisement contains such material, the County will determine whether a reasonably prudent person, knowledgeable of the County’s ridership and using prevailing community standards, would believe that the advertisement contains material that ridicules or mocks, is abusive or hostile to, or debases the dignity or stature of any individual, group of individuals or entity.

6.2.9 Harmful or Disruptive to Transit System. Advertising that contains material that is so objectionable as to be reasonably foreseeable that it will result in harm to, disruption of or interference with the transportation system. For purposes of determining whether an advertisement contains such material, the County will determine whether a reasonably prudent person, knowledgeable of the County’s ridership and using prevailing community standards, would believe that the material is so objectionable that it is reasonably foreseeable that it will result in harm to, disruption of or interference with the transportation system.

In the ongoing litigation with AFDI, we have explained the problems with AFDI’s use of the “Faces of Global Terrorism” motif under Metro’s Transit Advertising Policy. We remain willing to discuss other ways for AFDI to communicate its

GELLER DECL./MOT. FOR SUMM. J. – 10 – Case No. 2:13-cv-01804-RAJ

STEPHEN PIDGEON Attorney at Law, P.S.

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“catch a terrorist” message in our nonpublic forum. For example, AFDI may want to re-caption the ad “Most Wanted Global Terrorists” or “Wanted for Global Terrorism”—both of which would comply with our advertising policy by removing the demeaning and disparaging aspect of the current ad copy. Please communicate to AFDI our willingness to accept revised ad copy that comply with the advertising policy.

For your reference, I have attached a copy of Metro’s Transit Advertising Policy.
44. A true and accurate copy of this rejection email has been marked and identified

during the course of depositions in this case as Exhibit 15, and a true and accurate copy of this email is attached to this declaration as Exhibit K.

45. The policy attached to the October 4, 2015 email was the same policy utilized by the County to reject AFDI Ad I. As noted previously, a true and accurate copy of this policy has been marked and identified during the course of depositions in this case as Exhibit 6.

46. The County’s rejection of AFDI Ads I and II caused irreparable harm to AFDI, Mr. Spencer and me in that, aside from the loss of our First Amendment freedoms caused by the rejections themselves, there are no other comparable forums available for our speech. That is, there are no other forums available that would permit us to reach our target audience—the commuting public, which is the very same group of people who are most likely to observe, and thus be in a position to help stop, an act of terrorism. Additionally, there are no other forums available to us that would allow us express our messages to our target audience with the same impact and effect as the display of AFDI Ads I and II on the County’s buses, which function as mobile billboards. There are no other such forums available to us in Seattle, Washington.

I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct.

Executed on the 1st day of March, 2017.

_______________________ Pamela Geller

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GELLER DECL./MOT. FOR SUMM. J. Case No. 2:13-cv-01804-RAJ

STEPHEN PIDGEON Attorney at Law, P.S.

3002 Colby Avenue, Suite 306 Everett, Washington 98201 (425) 605-4774

Case 2:13-cv-01804-RAJ Document 56-1 Filed 03/07/17 Page 13 of 41

EXHIBIT A

FBI — Most Wanted Terrorists Page 1 of 3

Case 2:13-cv-01804-RAJ

Document 56-1

Filed 03/07/17

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Home • Most Wanted • Most Wanted Terrorists

Most Wanted Terrorists

ABDUL RAHMAN YASIN

HAKIMULLAH MEHSUD

DANIEL ANDREAS SAN DIEGO

JOANNE DEBORAH CHESIMARD

ADAM YAHIYE GADAHN

FAOUZI MOHAMAD AYOUB

JEHAD SERWAN MOSTAFA

JABER A. ELBANEH

JAMEL AHMED MOHAMMED ALI AL-BADAWI

JAMAL SAEED ABDUL RAHIM

OMAR SHAFIK HAMMAMI

ALI SAED BIN ALI EL-HOORIE

ISNILON TOTONI HAPILON

ADNAN G. EL SHUKRIJUMAH

ABD AL AZIZ AWDA

http://www.fbi.gov/wanted/wanted_terrorists/@@wanted-group-listing 9/3/2013

FBI — Most Wanted Terrorists

Case 2:13-cv-01804-RAJ

IBRAHIM SALIH MOHAMMED AL YACOUB

ALI ATWA

HUSAYN MUHAMMAD AL-UMARI

MUHAMMAD AHMED AL-MUNAWAR

AYMAN AL-ZAWAHIRI

ABDULLAH AHMED ABDULLAH

RAMADAN ABDULLAH MOHAMMAD SHALLAH

HASAN IZZ-AL-DIN

MOHAMMED ALI HAMADEI

ABDELKARIM HUSSEIN MOHAMED AL-NASSER

AHMAD IBRAHIM AL-MUGHASSIL

SAIF AL-ADEL

ANAS AL-LIBY

WADOUD MUHAMMAD HAFIZ AL-TURKI

MUHAMMAD ABDULLAH KHALIL HUSSAIN AR-RAHAYYAL

ZULKIFLI ABDHIR

RADDULAN SAHIRON

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Document 56-1

Filed 03/07/17

The alleged terrorists on this list have been indicted by sitting Federal Grand Juries in various jurisdictions in the United States for the crimes reflected on their wanted posters. Evidence was gathered and presented to the Grand Juries, which led to their being charged. The indictments currently listed on the posters allow them to be arrested and brought to justice. Future indictments may be handed down as various investigations proceed in connection to other terrorist incidents, for example, the terrorist attacks on September 11, 2001.

The Rewards for Justice program, administered by the United States Department of State’s Bureau of Diplomatic Security, offers rewards for information leading to the arrest of many of these terrorists.

http://www.fbi.gov/wanted/wanted_terrorists/@@wanted-group-listing 9/3/2013

FBI — Most Wanted Terrorists Page 3 of 3

Case 2:13-cv-01804-RAJ Document 56-1 Filed 03/07/17 Page 16 of 41

It is also important to note that these individuals will remain wanted in connection with their alleged crimes until such time as the charges are dropped or when credible physical evidence is obtained, which proves

with 100% accuracy, that they are deceased.

Accessibility|eRulemaking|Freedom ofInformationAct|LegalNotices|LegalPoliciesandDisclaimers|Links|PrivacyPolicy|USA.gov|WhiteHouse FBI.govisan officialsiteoftheU.S.governm ent,U.S.Departm entofJustice

Close

http://www.fbi.gov/wanted/wanted_terrorists/@@wanted-group-listing 9/3/2013

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EXHIBIT B

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EXHIBIT C

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EXHIBIT D

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Document 56-1

Filed 03/07/17

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EXHIBIT E

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EXHIBIT F

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EXHIBIT G

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EXHIBIT H

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Doc-6

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EXHIBIT I

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Doc-5

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EXHIBIT J

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EXHIBIT K

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EXHIBIT 2

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Case 2:13-cv-01804-RAJ Document 56-2 Filed 03/07/17 Page 2 of 61

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE

AMERICAN FREEDOM DEFENSE INITIATIVE; PAMELA GELLER; and ROBERT SPENCER,

Plaintiffs,

-v.-

KING COUNTY, Defendant.

Case No. 2:13-cv-01804-RAJ

DECLARATION OF
ROBERT J. MUISE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

THE HONORABLE RICHARD A. JONES

I, Robert J. Muise, make this declaration pursuant to 28 U.S.C. § 1746 and based upon my personal knowledge and upon verifiable public information.

  1. I am an adult citizen of the United States and counsel for Plaintiffs in this case.
  2. I am familiar with the pleadings and papers of record, including the deposition

transcripts and associated exhibits.

  1. The parties agreed to number the deposition exhibits sequentially.
  2. Attached to this declaration as Exhibit A are true and accurate excerpts from the

deposition of Rob Gannon, the witness identified by Defendant King County to testify on its behalf pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure.

5. The numbered deposition exhibits included with Exhibit A are true and accurate copies of the exhibits referenced in the deposition of Mr. Gannon. These exhibits include the

MUISE DECL./MOT. FOR SUMM. J; – 1 – Case No. 2:13-cv-01804-RAJ

STEPHEN PIDGEON Attorney at Law, P.S.

3002 Colby Avenue, Suite 306 Everett, Washington 98201 (425) 605-4774

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Case 2:13-cv-01804-RAJ Document 56-2 Filed 03/07/17 Page 3 of 61

following: a copy of the “Faces of Global Terrorism” ad submitted by the State Department (Exhibit 3); a copy of Plaintiffs’ first advertisement, referred to in these proceedings as AFDI Advertisement I or AFDI Ad I (Exhibit 4); a copy of Plaintiffs’ second advertisement, referred to in these proceedings as AFDI Advertisement II or AFDI Ad II (Exhibit 5); a copy of Defendant King County’s Transit Advertising Policy (Exhibit 6), which is the policy at issue in this case; a copy of the deposition notice (amended) of Defendant King County pursuant to Rule 30(b)(6) (Exhibit 14); and a copy of the email setting forth the bases for Defendant King County’s rejection of AFDI Ad II (Exhibit 15).

I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct.

Executed on the 2d day of March, 2017.

/s/ Robert J. Muise Robert J. Muise, Esq.

MUISE DECL./MOT. FOR SUMM. J; Case No. 2:13-cv-01804-RAJ

– 2 –

STEPHEN PIDGEON Attorney at Law, P.S.

3002 Colby Avenue, Suite 306 Everett, Washington 98201 (425) 605-4774

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EXHIBIT A

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Rob Gannon 30(b)(6) – February 3, 2017 1

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON

AT SEATTLE _________________________________________________________

AMERICAN FREEDOM DEFENSE ) INITIATIVE, PAMELA GELLER, ) and ROBERT SPENCER, )

) Plaintiffs, )

) No. 2:13-cv-01804-RAJ )
)

KING COUNTY, ) ) Defendant. )

_________________________________________________________

DEPOSITION UPON ORAL EXAMINATION OF ROB GANNON AS A RULE 30(b)(6) DESIGNEE OF KING COUNTY

_________________________________________________________

600 University Street, Suite 320 Seattle, Washington

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DATE: Friday, February 3, 2017
REPORTED BY: Donald W. McKay, RMR, CRR, CCR 3237

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Rob Gannon 30(b)(6) – February 3, 2017 9

A. Not that I recall at this time.

Q. Did you discuss this deposition with anyone outside of your counsel?

A. In order to be prepared to attend this, I had to let my assistant and my chief of staff know that I would be in a deposition today. I let my supervisor know that I would be in a deposition today. I let my deputy general manager know that I would be in a deposition today, because he will have primary operational responsibility for the transit agency.

Q. Did you discuss anything substantively about the contents of your deposition with anyone outside of counsel?

A. The transit advertising program manager, Sharron Shinbo, was in the meetings with counsel.

MR. MUISE: I’d ask the court reporter if he could hand to the witness what we’ll be marking as Exhibit No. 14, since we’re marking exhibits sequentially during the course of all the depositions. It’s captioned, “Plaintiffs’ Amended Notice of Deposition of Defendant King County.” I’d ask the court reporter to do that. And the witness, when you have that document in front of you, if you could just give me the signal.

(Exhibit 14 marked for identification.)

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Rob Gannon 30(b)(6) – February 3, 2017 10 1 BY MR. MUISE:

Q. Sir, have you seen this document prior to today? A. It will take me a moment to review it before I answer that question.
Q. Please review then.

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  1. 8  was
  2. 9  preparatory materials.

A. (Complies).
Having reviewed this document, I recall that it

among the documents in the large binder of

  1. 10  Q. You’ll see that the notice for this deposition
  2. 11  that we are taking today was amended because we moved it
  3. 12  to this date due to a scheduling conflict as noted in
  4. 13  the first paragraph. And pursuant to this notice, the
  5. 14  plaintiffs requested that the County designate a person
  6. 15  who would testify on its behalf as to the matters listed
  7. 16  on page two of this amended deposition notice, and the
  8. 17  County designated you as that witness. Is that your
  9. 18  understanding, sir?
  10. 19  A. Yes.
  11. 20  Q. So you understand that your testimony today is
  12. 21  not your personal testimony, but the testimony of King
  13. 22  County pursuant to what is Federal Rule of Procedure
  14. 23  30(b)(6). Do you understand that, sir?
  15. 24  A. Yes.
  16. 25  Q. If you look at the notice — and again, pageBienenstock Court Reporting & Video
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Rob Gannon 30(b)(6) – February 3, 2017 11

two, where it lists the categories about which you’ve been designated to testify about — do you see those listed as Nos. 1 through 3, sir?

A. Ido.

Q. Are you prepared to testify on behalf of the County as to these subject matters?

A. Could you repeat your question.

Q. My question is, are you prepared to testify today as to those subject matters listed in the amended deposition notice, Exhibit No. 14, as found on page two?

A. What do you mean by “prepared”? Could I ask that question, please.

Q. Surely. As I believe you agreed to, that you were designated by the County to be the witness who will testify on its behalf as to those subject matters listed on page two, and I just want to confirm with you that you are, in fact, prepared to do so.

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A. Q.

I believe I am prepared to do so, yes. Thank you.
Sir, what is your current position with the

County? Just a clarification, when I’m referring to the County, I’m referring to King County. You understand that. Right, sir?

A. I do understand that, yes.
Q. So my question is, what is your current position

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Q. transit

A. Q.

Rob Gannon 30(b)(6) – February 3, 2017 13

And the County permits advertising on its system; isn’t that correct?
Yes.
What locations are available to an advertiser? MR. HACKETT: Objection, vague. If you could —

Case 2:13-cv-01804-RAJ Document 56-2 Filed 03/07/17 Page 9 of 61

you’re talking about the transit system. MR. MUISE: Exactly.

BY MR. MUISE:
Q. I’ll clarify, sir. What locations on the

transit advertising system are available to outside advertisers?

A. There are designated areas on our buses that are available to advertisers. There are areas in our Downtown Seattle transit tunnel that are available to advertisers.

Q. The areas in the downtown transit tunnel, are they posters that go on the wall? Are they dioramas? Kiosks? What type of advertising is over there?

A. May I look at our Transit Advertising Policy? MR. MUISE: Certainly. And for the record, it

has already previously been marked as Exhibit No. 6. The court reporter, if you could hand the

witness

believe

Exhibit No. 6.
MR. HACKETT: Robert, for the record, I don’t the court reporter has the official exhibits, so

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Rob Gannon 30(b)(6) – February 3, 2017 14

I’m handing him the copies — MR. MUISE: He should.

MR. HACKETT: Oh, does he?

MR. MUISE: Yes, I sent him the ones I was going to be using.

MR. HACKETT: I’m talking about the one through thirteen.

MR. MUISE: He has the ones I’m going to be using and six is one of them.

MR. HACKETT: All right. Well, I will take my notebook back. I was just going to let you know I printed off all the ones from the court reporter. So if you do have ones that you didn’t anticipate using, I’ve got them here.

MR. MUISE: Okay. Thank you.

(Previously marked Exhibit 6 referenced.) BY MR. MUISE:

Q. You wanted to look at the Transit Advertising Policy, Exhibit No. 6, to perhaps help you refresh your recollection as to what areas are available for advertising in the downtown transit tunnel. Is that fair?

A. Yes, I have the document in front of me and I am reviewing it.

If you could repeat your question, I am prepared

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Rob Gannon 30(b)(6) – February 3, 2017 16

  1. 1  Q. Does the county transit authority own any
  2. 2  billboards that are available for advertising?
  3. 3  A. If, by “billboards,” you mean something other
  4. 4  than I’ve already described as available on our buses,
  5. 5  our facilities, or our railcars, or from personal
  6. 6  experience having been in the transit tunnel, I do not
  7. 7  know of any billboard that Metro Transit offers for
  8. 8  advertising space.
  9. 9  Q. The advertising that is offered by the county
  10. 10  transit authority is paid advertising. Is that correct?

A. Yes.
Q. And this advertising is a source of revenue for County. Is that right?
A. Yes.
Q. Does that revenue go to the transit authority’s

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  1. 16  budget or does it go into a general county budget?
  2. 17  A. It goes into the transit authority’s budget.
  3. 18  Q. Does the transit authority offer any free
  4. 19  advertising, like, for example, for non-profit
  5. 20  organizations or public service messages or the
  6. 21  government?
  7. 22  A. As the general manager, I do not know the answer
  8. 23  to that question. I would rely on our transit
  9. 24  advertising program manager to provide that level of
  10. 25  detail to me.

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Rob Gannon 30(b)(6) – February 3, 2017 18

I have two core functions with respect to the transit advertising policy. The overarching function is I’m responsible, in conjunction with the transit advertising program manager, for the overall implementation of the Transit Advertising Policy. And at the request of the transit advertising program manager, I may approve or reject any proposed advertising that requires my review.

MR. MUISE: So I’m going to ask the court reporter if he can hand you three exhibits that were previously marked, Exhibit Nos. 3, 4, and 5. Mr. McKay, they should be color prints of advertisements.

(Previously marked Exhibit 3 referenced.) (Previously marked Exhibit 4 referenced.) (Previously marked Exhibit 5 referenced.)

BY MR. MUISE:
Q. Sir, the court reporter has handed you what has

been previously marked as Exhibits 3, 4, and 5. Do you see those?

A. Yes.

Q. Okay. Exhibit 3, I’ll represent to you — you can correct me if I’m wrong — is an advertisement submitted to the county transit authority by the State Department. Is that your understanding, sir?

A. Yes.

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Q. And this advertisement actually ran for a period of time on the transit authority advertising space. Is that right, sir?

A. Yes. As I recall, that is correct.

Q. If it’s okay with you, through the course of this deposition, I’ll refer to this simply as the State Department ad. Is that okay?

Case 2:13-cv-01804-RAJ Document 56-2 Filed 03/07/17 Page 13 of 61

A. Q.

I have no concerns with that description.
Very good.
And if you could look at Exhibit No. 4. Do you

recognize this as one of the ads submitted by my client to the transit authority advertising space that was rejected by the county transit authority? Do you recognize that as one of those ads, sir?

A. Yes, I recognize this ad.

Q. And this is one of the ads that’s at issue in this litigation. Is that right, sir?

A. As I understand this litigation, yes.

Q. And if it’s okay with you, I’ll refer to this throughout this deposition as AFDI Ad 1. Is that okay with you, sir?

A. That’s

Q. Okay. recognize this

okay with me.
If you look at Exhibit No. 5, do you
as a subsequent ad that was submitted by

my client through the King County transit authority for

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Rob Gannon 30(b)(6) – February 3, 2017 21

Q. Absolutely. Again, that’s the Transit Advertising Policy. Right, sir?

A. That is correct.
Could I ask you to repeat your question.
MR. MUISE: Court reporter, could you read it

back, please.
(Question read by the reporter.) THE WITNESS: No.

BY MR. MUISE:
Q. Do you know if the general manager was involved

in the decision to reject either of my clients’ ads at issue in this litigation, AFDI Ad No. 1 and/or AFDI Ad No. 2?

A. Yes. As I recall, the general manager was involved in that decision.

Q. In both decisions, sir?
A. Could you repeat that question.
Q. Yes. I was asking about the two advertisements

that were rejected, AFDI Advertisement 1 and AFDI Advertisement 2. I wanted to clarify whether the general manager was involved in denying both advertisements.

A. As I recall, the general manager was involved in each of those decisions.

Q. Now, you already testified that there is no

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listing of standards or circumstances when a general manager’s decision on an advertisement may be sought. But what are the types of circumstances that would trigger the general manager getting involved in deciding whether to accept an advertisement for display?

A. There is only one set of circumstances that would involve — that would activate the general manager’s involvement in the decision-making process, and that is a request from the transit advertising program manager.

Q. Okay. And what circumstances are there that would trigger such a request by the program manager?

A. May I refer to Exhibit 6, the Transit Advertising Policy?

Q. Yes.

A. The transit advertising program manager utilizes her discretion to decide when to bring an advertisement forward to the general manager for consideration.

Q. What type of criteria guide that discretion?

A. Under the Transit Advertising Policy, the transit advertising program manager reviews the proposed advertisement for compliance with the guidelines set forth in the Transit Advertising Policy.

Q. Okay. You said that not every time that she or he would conduct that review, do they request a general

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Rob Gannon 30(b)(6) – February 3, 2017 30

program manager; isn’t that correct?
A. That is correct.
Q. So if you read this the way it’s written, it

appears to be sequential, meaning the transit advertising contractor will make a first review; and if they determine that it is acceptable, then it’s acceptable; if they determine it’s not acceptable, then it moves to 7.2. Is that a fair reading of this policy, sir?

A. That is not my reading of the policy.

Q. What is your understanding of how the policy actually operates in practice?

A. I read the policy and understand it in practice that 7.2 comes into play in all cases. The transit advertising program manager will review the proposed advertisement for compliance with the guidelines set forth in this policy and will direct the transit advertising contractor as to whether the proposed advertisement will be accepted.

Q. Do you know if anyone from the County trains your transit advertising contractor on how your advertising policy should be applied?

A. What do you mean by “trains”?

Q. Do they provide — let me put it this way: Do you provide any instruction to them beyond providing

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them copies of the Transit Advertising Policy, Exhibit 6?

A. And by “you,” you mean the County. Is that correct?

Case 2:13-cv-01804-RAJ Document 56-2 Filed 03/07/17 Page 17 of 61

Q.

A. provide

moment.

Exactly. Yes.
To my knowledge and understanding, we do not training as you describe it.
MR. MUISE: Let’s just go off the record for a

(Discussion off the record.)

MR. MUISE: Let’s go back on the record. BY MR. MUISE:

Q. Sir, you understand that you’re still testifying under oath?

A. Ido.

Q. We were asking you some questions about
Exhibit No. 6, which is the Transit Advertising Policy. This policy was the policy that was in place when the County rejected my client’s two advertisements at issue, that being AFDI Advertisement 1 and 2. Is that correct?

A. Yes. That’s correct.

Q. And we were talking about — previously, I had some questions about the procedures, and it’s
Section 7.0 in the Transit Advertising Policy. Is that correct, sir?

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Rob Gannon 30(b)(6) – February 3, 2017 33

MR. MUISE: So I would request the court reporter to hand you what has been previously marked as a document in this case, document No. 14, the Declaration of Sharron Shinbo in Support of King County’s Brief in Opposition to Motion for Preliminary Injunction. It’s listed as one of 54 pages.

So if he can put that in front of you and let me know when you have it.

(Previously marked Document 14 referenced.)

THE WITNESS: I have it. BY MR. MUISE:

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one for

Q. I understand from your testimony that this is of the documents that you reviewed in preparation this deposition. Is that right, sir?
A. That is correct.

Q. I’m going to refer you to paragraph eight of this declaration. It’s on page three of 54. Let me know when you get there.

A. I am there.

Q. In paragraph eight, it says, “All potential creatives or proposed ads are screened by Titan, and if there is a question about compliance with the Transit Advertising Policy, they are passed through to me for further evaluation.” Do you see that?

A. I do see that.

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Q. And the Titan referred to here in paragraph eight would be the transit advertising contractor that’s referred to in Part 7.0, Procedures, of the advertising policy. Is that right?

A. That’s correct.

Q. So going back again to my question about procedures, based on the sworn testimony here of
Ms. Shinbo, it would appear, as I had asked, that the transit advertising contractor does the initial review; and only if they find that it’s not in compliance, then they push it up to the transit advertising program manager. Is that correct?

Case 2:13-cv-01804-RAJ Document 56-2 Filed 03/07/17 Page 19 of 61

A. full?

Q. A.

May I take a moment to read paragraph eight in

Yes.
Could you repeat your question. MR. MUISE: Mr. McKay. (Question read by the reporter.) THE WITNESS: That is correct.

BY MR. MUISE:
Q. Sir, regarding the Transit Advertising Policy,

the policy, itself, does not limit advertising to just commercial advertising. Is that correct?

A. That is correct.
Q. The advertising policy permits, for example,

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advertisements that convey non-commercial messages.
A. I’m sorry. That sounded like a statement. Was

there a question that you wanted me to answer?
Q. Yes. It was a question. The advertising policy

permits non-commercial advertising. Is that correct? A. That is correct.
Q. It permits advertisements that address

controversial issues; isn’t that correct?
A. That is correct.
Q. It permits advertisements that address political

issues with the one exception being political campaign speech. Is that right, sir?

A. Yes. That is correct.

Q. Looking at my client’s advertisements that are at issue here — and those are at Exhibit 4 and 5 — if you could put those in front of you, sir.

A. I have those advertisements in front of me.

Q. Would it be fair to say that neither of these advertisements are commercial advertisements?

A. I would say that that is a fair understanding, yes.

Q. Would you characterize both of these advertisements as conveying a political message?

A. May I pause to refer to the policy? Q. Yes, sir.

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A. I think it is reasonable to review these ads and consider them to have a political message.

Q. Would it be also reasonable to conclude that the subject matter of both ads is global terrorism?

A. Yes.

Q. And global terrorism is not a subject matter that is excluded by the advertising policy. Is that right, sir?

A. That’s correct.

Q. Would you take a moment and look at the advertisement that’s marked as Exhibit No. 3, we’ve been referring to as the State Department advertisement. Do you have it in front of you, sir?

A. I have that ad in front of me, yes, and I have reviewed this ad.

Q. Thank you. Is it fair to say that the subject matter of this advertisement is global terrorism?

A. Yes.

Q. Sir, it’s your understanding that my client, American Freedom Defense Initiative — we’ve been referring to them as AFDI — is a non-profit organization?

A. I am not well familiar with the status of AFDI.

Q. It’s your understanding that my client’s two ads at issue here, AFDI Advertisements No. 1 and 2, never

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ran on the transit authority’s advertising space. Is that correct?

A. Yes. That is correct.

Q. Consequently, because these ads were never displayed, you don’t have any evidence of any violence being conducted against any transit advertising property as a result of these ads; do you?

A.Idonot.

Q. And because these ads never ran, you don’t have any evidence of a diversion of substantial resources of the Transit Advertising Policy — excuse me — advertising agency because of these ads. Is that right?

A. That is right.

Q. And because these ads never ran, you don’t have any evidence that these ads caused any disruption whatsoever to the transit system. Is that right?

A. That is right.

Q. Do you know if there were any surveys conducted by the transit authority regarding what the majority of its ridership would — strike that.

Have there been any polls taken or market research done to determine what your ridership would consider about either of these advertisements should they run on the transit advertising space?

A. I can only speak to what I know of surveys

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Rob Gannon 30(b)(6) – February 3, 2017 38

  1. 1  potentially conducted by King County Metro Transit, and
  2. 2  to my knowledge, there have not been surveys run on this
  3. 3  particular set of proposed ads.
  4. 4  Q. Sir, if you look at Exhibit 3 again, the State
  5. 5  Department advertisement, is it your understanding that
  6. 6  this advertisement actually ran on the transit
  7. 7  advertising space for a period of time?
  8. 8  A. Yes. That is my understanding.
  9. 9  Q. What is the general period of time — I’m asking
  10. 10  generally about the advertising policy and its
  11. 11  application — what is the general period of time in
  12. 12  which an advertisement will be displayed on the transit
  13. 13  advertising space? Is it one week? Two weeks? Three
  14. 14  weeks? Is there a standard or is it just depending on

15 the 16

  1. 17  our
  2. 18  standard. In my capacity as general manager, I would
  3. 19  say it depends on the intention of the entity proposing
  4. 20  the advertisement and how long they’re willing to pay to
  5. 21  have the advertisement posted under the Transit

advertiser?
A. I am not intimately familiar with the details of advertising contract, so I do not know if there is a

  1. 22  Advertising Policy.
  2. 23  Q. Do you have any sense of what a standard time
  3. 24  frame is? Seven days? Fourteen days? Any idea?
  4. 25  A. That is a level of detail I would rely on myBienenstock Court Reporting & Video
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Rob Gannon 30(b)(6) – February 3, 2017 39

  1. 1  advertising program manager to understand, so I do not
  2. 2  have even a general sense of whether it’s seven days or
  3. 3  14 days.
  4. 4  Q. Or perhaps longer or shorter. Right?
  5. 5  A. (No response).
  6. 6  Q. Is that right, sir?
  7. 7  A. That is correct.
  8. 8  Q. It could be longer than 14 days. You just don’t
  9. 9  know. I want to make sure I understood your answer.
  10. 10  You’re not sure what the terms are of the contract in
  11. 11  terms of length of display. Is that fair?
  12. 12  A. That is a fair characterization, yes.
  13. 13  Q. Looking at the State Department ad, Exhibit
  14. 14  No. 3, is it your understanding that it ran from
  15. 15  June 6th of 2013 to June 25th of 2013?
  16. 16  A. I would need to refer to the specific document
  17. 17  related to this ad to verify those dates.
  18. 18  Q. If you want to look at the Shinbo declaration,
  19. 19  which was Document No. 14, it might help you either
  20. 20  confirm or refresh your recollection. And I would point
  21. 21  you to paragraph Nos. 13 and 18.
  22. 22  A. If you can restate your question, I’m now
  23. 23  prepared to answer.
  24. 24  Q. Is it your understanding that the State
  25. 25  Department ad ran on the transit advertising spaceBienenstock Court Reporting & Video
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beginning on June 6, 2013 and ending on June 25th, 2013? A. That is my understanding.
Q. And during that time, was there any evidence of

vandalism, violence, or other acts endangering passengers and preventing the County’s buses from running on account of this ad, the State Department ad?

A. Without reviewing a record of all incidents that occurred during that period of time, I cannot state definitively that there were no incidents.

Q. Do you recall, in your preparation for the deposition today, seeing any evidence of vandalism, violence, or other acts endangering passengers and preventing county buses from running on account of the State Department ad?

A. I do not recall any from my preparation.

Q. Do you recall, in your preparation for your testimony today, seeing any evidence of a reduced ridership because of any public fear of such vandalism, violence, or other acts endangering passengers?

MR. HACKETT: I’m going to object that the FBI ad is beyond the scope of the three questions that are asked, unless you have specific documents you want to refer him to.

MR. MUISE: It’s not beyond the scope. I’m asking him. He’s the one that prepared for the

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Rob Gannon 30(b)(6) – February 3, 2017 48

  1. 1  types of channels used to express those complaints
  2. 2  relative to the ad.
  3. 3  Q. Okay. What is your correction, sir?
  4. 4  A. So to the degree I was speculating, it was on my
  5. 5  ability to recollect what was in the declaration of the
  6. 6  advertising program manager, Sharron Shinbo. I still
  7. 7  cannot cite an exact number of complaints, but I would
  8. 8  say between eight and ten complaints were received
  9. 9  through multiple channels, including e-mail, telephone;
  10. 10  and in addition, there was a community meeting where a
  11. 11  number of complaints or at least concerns were expressed
  12. 12  about the advertisement.
  13. 13  Q. Was anybody from the transit authority at this
  14. 14  community meeting?

A. It’s my understanding that yes, somebody from transit authority was at that community meeting. Q. Who was it?
A. I do not know specifically.

15
16 the 17
18
19

  1. 20  held?
  2. 21  A. I do not know the specific date, but it would
  3. 22  have been held during the period that the ad was run and
  4. 23  during the time we were receiving these complaints.
  5. 24  Q. In her declaration, Ms. Shinbo described the
  6. 25  volume of complaints as, quote, “small,” unquote. Would

Q. Do you know when that community meeting was

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Rob Gannon 30(b)(6) – February 3, 2017 49

agree with that assessment?
A. Yes.
Q. Describe what you mean by “reputational harm.” A. Metro Transit is a large public-facing transit

  1. 5  agency, encountering many millions of people each and
  2. 6  every day. We work hard to maintain a brand that is
  3. 7  positive and encourages people to ride on our system.
  4. 8  When negative events occur, that can directly or
  5. 9  indirectly impact the perceived value of our brand and
  6. 10  the quality of our service. So, as a general statement,
  7. 11  I’m concerned about any and all negative issues that may
  8. 12  occur and detract from the value of our brand and the
  9. 13  way our customers view the services we provide to a very
  10. 14  large community.
  11. 15  Q. Now, with that said, you testified previously
  12. 16  that there is no prohibition on ads that are
  13. 17  controversial. Correct?
  14. 18  A. That is correct.
  15. 19  Q. And no prohibition on political messages.
  16. 20  Correct?
  17. 21  A. That is correct, except as noted in the Transit
  18. 22  Advertising Policy.
  19. 23  Q. And that’s with campaign advertisements
  20. 24  specifically. Correct?
  21. 25  A. Correct.Bienenstock Court Reporting & Video
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take the Shinbo declaration — if you brought other documents that would help you to testify about the application of your policy to AFDI Advertisement No. 1 and 2 — then I think we’ll be able speed up this deposition.

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So let’s go off the record. (Discussion off the record.) MR. MUISE: Let’s go back on

BY MR. MUISE:
Q. Sir, you’re still testifying

the record.

under oath.
The question we left off before the break was

the question for all the bases that the County used to reject AFDI Advertisement No. 1. And my understanding is you’re referring to a document to refresh your recollection as to those bases. Is that correct?

A. That’s correct.

Q. And the document you’re referring to is Exhibit K in the Shinbo declaration, which is actually pages 49 and 50 of Document 14, the specific document beginning on page 50 of the declaration, page 49 being just the exhibit marking. Is that correct?

A. That’s correct.

Q. So what were the bases that the County used to reject AFDI Advertisement No. 1?

A. The County used three bases, all related or

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stemming directly from the Transit Advertising Policy. They were Item 6.2.4, that the material in the ad was false or misleading; Item 6.2.8, that the advertising contained material that was demeaning or disparaging; and Item 6.2.9, that in the view of the transit agency, it would be harmful or disruptive to the transit system.

Q. Looking at that first basis that you’ve established, 6.2.4, false and misleading, what was it about AFDI Advertisement 1 that was false or misleading in violation of that provision of the Transit Advertising Policy?

A. As I understand, there were at least two elements that were deemed to be false or misleading, one referring to the amount of the reward, and the other being the use of the term “jihadis.”

Q. What was false about the amount of the reward?

A. The statement related to the FBI offering a reward.

Q. What was false about that?

A. In Advertisement No. 1, in AFDI No. 1, the statement reads, the FBI is offering up to $25 million reward if you help capture one of those faces. That was not accurate.

Q. What was inaccurate about it?
A. Based on our evaluation, no one individual was

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Rob Gannon 30(b)(6) – February 3, 2017 56 1 worth $25 million reward on the FBI’s website.

Q. Based on your evaluation, did you determine that Rewards for Justice allowed for rewards of up to million?
A. Yes.

2

  1. 3  the
  2. 4  $25

5 6

  1. 7  evaluation, that the award amounts for any particular
  2. 8  individual could adjust depending on any particular
  3. 9  circumstance?

Q. Was it your understanding, based on your

  1. 10  A. I did not review to figure out whether awards —
  2. 11  rewards would be adjusted. We evaluated the ad and
  3. 12  determined that the statement was not accurate, because
  4. 13  there was no single individual listed that was worth
  5. 14  $25 million reward.
  6. 15  Q. Isn’t it true that one of these individuals,
  7. 16  based on the program, could eventually result in an
  8. 17  award of up to $25 million, which is what the State
  9. 18  Department authorizes?
  10. 19  A. That is not my understanding.
  11. 20  Q. Look at Exhibit 3, which is the State Department
  12. 21  ad.
  13. 22  A. I’m now looking at this ad.
  14. 23  Q. Let me ask you this: Is there anything about
  15. 24  this ad that was false or misleading as determined by
  16. 25  the County?Bienenstock Court Reporting & Video
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A. As best I can recall, this ad was withdrawn before we were ever able to render such a conclusion. Q. But it actually ran on your advertising space

from June 6th to June 25th of 2013. Is that right? A. That’s correct.
Q. So when it ran during that period of time of

June 6th to June 25th of 2013, there was no determination by the County that anything in this ad was false or misleading; isn’t that correct?

Case 2:13-cv-01804-RAJ Document 56-2 Filed 03/07/17 Page 31 of 61

$25

A. That’s correct.
Q. And on this advertisement, it says, “Up to million reward.” Do you see that?
A. I do see that portion of the sentence, yes. Q. And do you know if any of the faces listed on

this advertisement, at the time this ad was run, you could receive up to a $25 million reward for stopping them?

A. Our review led us to conclude that no single individual listed was worth the $25 million reward.

Q. So I’m asking you about Exhibit 3, the State Department ad.

A. I’m sorry. Please restate your question, then. I thought you were referring to Exhibit No. 4.

Q. I was still on Exhibit 3 where it says, “Up to $25 million reward.” Do you see that, sir? The State

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Department ad.
A. I do. “Up to $25 million reward.”
Q. Right. Do you know if any of those individuals

listed on the State Department ad, you could receive a $25 million reward for that person’s capture?

A. Idonot.

Q. So going back to AFDI Ad 1, Plaintiff’s Exhibit No. 4, do you have any understanding as to whether or not the amount of the awards for individuals can adjustment either upward or downward, depending on the circumstances at the time?

MR. HACKETT: Objection, asked and answered.

THE WITNESS: I do not. BY MR. MUISE:

Q. It’s your understanding, though, that the Rewards for Justice program, the government is authorized to provide awards of up to $25 million for individuals.

MR. HACKETT: Objection, asked and answered

again.

THE WITNESS: That is my understanding of the program, generally.

BY MR. MUISE:
Q. You mentioned about the term “jihadis.” You

said that was part of the determination that was false

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A. Because as we evaluated AFDI No. 1, we came to understand the term “jihadi” as part of something that was false or misleading. Our evaluation was limited to what is on this particular proposed ad. Had the word —

Q. And — I’m sorry.
MR. HACKETT: Go ahead, if you need to.
THE WITNESS: The word “jihadi” does not appear

on Plaintiff’s Exhibit No. 3, the Faces of Global Terrorism ad, the State Department ad.
BY MR. MUISE:

Q. If you look at AFDI Advertisement No. 1, Exhibit 4, the term “jihadi” is in the context of the Faces of Global Terrorism advertisement; is it not?

A. It is.

Q. And it’s in reference to the individuals who are listed in the FBI’s most wanted global terrorists list; isn’t it?

A. In the context of this ad, yes, that is its reference.

Q. So in the context of this ad, its reference is more closely associated with the understanding of jihadi as those who commit terrorist acts. Isn’t that a fair assessment, sir?

A. I think it is one fair assessment, but it is also a misleading assessment.

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Q. How is it misleading?

A. This ad would suggest that all jihadis are terrorists, and all jihadis are not terrorists.

Q. So this ad is referring to one of these jihadis, listing those individuals on the FBI’s terrorist list; is it not?

A. I think I’ve answered this question, but that is the context of this advertisement, yes.

MR. HACKETT: Counsel, we are around lunch here. So whenever you want to let us take a lunch break, let us know.

MR. MUISE: Let me finish up a little bit more on this line of questioning and then we’ll break for lunch.
BY MR. MUISE:

Q. Sir, refer back to Exhibit No. 6, the advertising policy. And in reference to AFDI ads, you’ve again stated three reasons, false and misleading. We discussed the first one. And the two items that you said were false and misleading is the fact of the up to $25 million reward and the use of the term “jihadis.” Is that correct?

A. That’s correct.

Q. And the other bases that you said was demeaning or disparaging. Is that correct?

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Rob Gannon 30(b)(6) – February 3, 2017 62

  1. 1  A. That’s correct.
  2. 2  Q. How is this ad, AFDI Ad No. 1, demeaning or
  3. 3  disparaging?
  4. 4  A. We viewed this ad to be demeaning and
  5. 5  disparaging to Muslims or people of color, because all
  6. 6  of the faces listed under that headline were people of
  7. 7  color or had names that appeared to be foreign born or
  8. 8  associated with Islam.
  9. 9  Q. Are any of these pictures that are listed on
  10. 10  this advertisement pictures of individuals who are not
  11. 11  wanted for global terrorism by the FBI?

A. To my knowledge, no.
Q. Do you know what percentage of your ridership Muslims?
A. I do not know, nor do we collect that data.
Q. Do you know what percentage of your ridership non-Caucasian?
A. I do not know the exact percentage.
Q. Do you know if one of the individuals listed or

12
13
14 are 15
16
17 are 18
19

  1. 20  pictured in this Faces of Global Terrorism is, in fact,
  2. 21  a Caucasian?
  3. 22  A. I do not know that as a point of fact, no.
  4. 23  Q. Would it make a difference if one of these
  5. 24  individuals depicted here was, in fact, an American-born
  6. 25  Caucasian individual?

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Rob Gannon 30(b)(6) – February 3, 2017 63

A. You’ll have to clarify your question. I don’t understand what you mean by “would it make a difference.”

Q. Well, correct me if I’m wrong. I thought your testimony was that these were all people of color and Muslims, so it was demeaning and disparaging because that’s what’s portrayed in this advertisement.

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A.

It would begin to make a difference, yes. MR. MUISE: David, let’s go off the record. MR. HACKETT: Okay.
(Lunch recess taken from 12:04 to 12:49.) MR. MUISE: Let’s go back on the record.

E X A M I N A T I O N (continued) BY MR. MUISE:

Q. Sir, you understand you’re still under oath? A. I do understand.
Q. When we left off before the break, as we were

talking about AFDI Advertisement No. 1, Exhibit 4, we were running through the bases for the County’s rejection of the ad. We spoke about the false and misleading, and we were talking about the demeaning or disparaging bases for rejecting. So I’m going to pick up from there.

Looking at AFDI Ad No. 1, is it demeaning or disparaging under the advertising policy just to show

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Rob Gannon 30(b)(6) – February 3, 2017 64

these pictures of the most wanted global terrorists with their names?

A. If I understand your question, the answer is no.

Q. And you don’t dispute that these are actual pictures and names of people who are listed on the FBI’s most wanted global terrorists list; do you?

A. I do not dispute that.

Q. Do you have any reason to believe that my client selectively excluded anyone from appearing on this advertisement that appears on the list?

A. I didn’t quite understand the middle of your sentence. Did you say deliberately excluded?

Q. Selectively excluded individuals from the list from appearing on the advertisement. For example, if you look at Congressman McDermott’s letter, he’s complaining that there is not a proper representation of other faiths, other races, and so forth. Do you have any evidence that any of these — that there was a selective exclusion of people from different religions or races from this advertisement?

A. No.

Q. You probably recall, from looking at the record evidence — I think, at the time this was submitted, there were 32 names on the most wanted global terrorists list, and there was one of those who apparently didn’t

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Q. Do you have any reason to believe that these individuals that are listed on AFDI 1 is not a fair representation of individuals that are listed on the FBI’s most wanted global terrorists list?

A. No, I do not.

Q. Looking at Exhibit No. 6 — I’m going to go to your policy, the Transit Advertising Policy. Turn to page six where it cites the demeaning or disparaging standard. If I can draw your attention there, I’ve got some questions about the standards. Are you there, sir?

A. I’m there.

Q. Just generally, the advertising policy that’s contained in this Exhibit 6, is this the entirety of the policy? Meaning are there other aspects of the policy that might have a definitional section or might have some other description of how the policy is put into effect, or is this Exhibit 6 the entirety of the policy?

A. Exhibit 6 is the entirety of the policy.

Q. Turning to page six of Exhibit 6, the demeaning or disparaging standard, it refers to knowledge of the County’s ridership. Is there a certain percentage of the ridership that this is referring to, or can you explain what it means by knowledge of the County’s ridership?

A. Knowledge of the County’s ridership means what

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it says, an understanding of the customers who engage the transit system for purposes of public transportation.

Q. Do you know what percentage of the County’s ridership would be demeaned or disparaged by AFDI Advertisement No. 1, which is Exhibit 4?

A. I do not know an exact percentage.
Q. Do you have even an estimate?
A. I do not have an estimate, no.
Q. The percentage of ridership that would be

demeaned or disparaged, is that a way that you apply this particular standard?

A. Yes. Maybe I could ask you to repeat your question, please.

Q. The one that you just answered yes to?

A. Let me ask you this: Will you repeat the question, and I will either correct or confirm my answer.

MR. MUISE: I’ll ask the court reporter to read back the last question, and if that’s not the one you’re referring to, I’ll try to recall what the one prior to that was.

(Question read by the reporter.)

THE WITNESS: So I’ll amend my answer, yes, it is a part of the way we would apply this standard.
BY MR. MUISE:

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Rob Gannon 30(b)(6) – February 3, 2017 68

Q. Okay. With regard to prevailing community standards, what does that refer to?

A. I think prevailing community standards is best understood by what follows in the Transit Advertising Policy, in that it would be that community understanding a standard that believes the advertisement would contain material that ridicules or mocks, is abusive or hostile to, or debases the dignity or stature of any individual, group of individuals or entity.

Q. Is there anywhere in this Exhibit 6 that defines further what community standards are referred to here in this restriction?

MR. HACKETT: Objection, asked and answered.

THE WITNESS: I would answer that a similar statement is made in Section 6.2.9.
BY MR. MUISE:

Q. They just repeat the same statement. Is that right?

A. Yes. It makes a reference to community standards.

Q. Is there anywhere else in this policy where it defines what those community standards are?

A. No. Nowhere else in this policy.

Q. You referred to the fact that the ad needs to be — for the ad to be demeaning or disparaging, would

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ridicule or mock, be abusive or hostile to, or debase the dignity or stature of any individual, group or individuals or entity. Is that right?

A. That’s correct.

Q. Is there anywhere in this policy that it defines what it means to ridicule or mock, be abusive or hostile to, or debase the dignity or stature of any individual, group of individuals or entity?

MR. HACKETT: Objection, asked and answered.

THE WITNESS: I think that that is contained in 6.2.8 and nowhere else.

BY MR. MUISE:
Q. Are there any objective standards for

determining whether or not something ridicules or mocks, is abusive or hostile to, or debases another individual or group?

MR. HACKETT: Objection, calls for a legal conclusion.

THE WITNESS: There are no standards contained in this policy.

BY MR. MUISE:
Q. With regard to my client’s advertisement, AFDI

Advertisement No. 1, surely my clients do not believe that it ridicules or mocks, is abusive or hostile to, or debases the dignity or stature of any individual or

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disrupt the transit system?
A. AFDI 1, Exhibit No. 4, did not cause harm or

disruption to the transit system because we denied placing it on any of the available advertising space.

Q. Okay. Let’s switch to AFDI Advertisement No. 2, which is Exhibit 5.

A. I have that exhibit in front of me.

Q. This advertisement was rejected by the County. Correct?

A. That is correct.

Q. What were the bases for rejecting this advertisement?

And to help us out here, if I can have the court reporter hand you what I have marked as document No. 2, and we’ll mark this as Exhibit 15. I think that’s the next exhibit.

(Exhibit 15 marked for identification.)

THE WITNESS: I have Exhibit 15 in front of me. BY MR. MUISE:

Q. I’ll ask you, does Exhibit 15 represent the bases for King County’s rejection of AFDI Advertisement No. 2, Exhibit 5?

A. It does represent the bases, yes.

Q. Are there any bases beyond those listed here in Exhibit 15 for denying AFDI Advertisement No. 2?

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Rob Gannon 30(b)(6) – February 3, 2017 73

  1. 1  A. There were no additional bases used.
  2. 2  Q. So it appears that the County does not consider
  3. 3  AFDI Advertisement No. 2 to be false and misleading. Is
  4. 4  that correct?
  5. 5  A. That’s correct.
  6. 6  Q. Looking at AFDI Advertisement No. 2, what was it
  7. 7  about AFDI Advertisement No. 2 that the County
  8. 8  considered to be demeaning or disparaging?
  9. 9  A. So I’ll preface this remark by saying that the
  10. 10  declarations of Sharron Shinbo and Kevin Desmond
  11. 11  accurately reflect the reasons why we denied this ad.
  12. 12  And I was not involved directly in that decision, but
  13. 13  speaking now, I would say we denied this ad because it
  14. 14  was demeaning and disparaging, because it had the
  15. 15  potential to be harmful and disruptive to the transit
  16. 16  system, for the same reasons, setting aside false or
  17. 17  misleading, that we rejected AFDI No. 1. That is, it
  18. 18  portrayed a group of people of color, under the banner,
  19. 19  the words, Faces of Global Terrorism, suggesting that
  20. 20  people of color, with foreign-sounding names, associated
  21. 21  with the religion of Islam, are all terrorists.
  22. 22  Q. Sir, you’re aware that this advertisement was
  23. 23  submitted and rejected after Mr. Desmond and Ms. Shinbo
  24. 24  had submitted their declarations in the case dealing
  25. 25  with AFDI Advertisement No. 1.Bienenstock Court Reporting & Video
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Rob Gannon 30(b)(6) – February 3, 2017 75

Global Terrorists” or “Wanted for Global Terrorism.” Do you see that, sir?

A. I do see that, yes.

Q. So with those two changes or with either one of those changes, changing “Faces of Global Terrorism” to “Most Wanted Global Terrorists,” or changing “Faces of Global Terrorism” to “Wanted for Global Terrorism,” this advertisement would comply with the Transit Advertising Policy. Correct?

A. That is correct.

Q. So the fact that you had these pictures with these faces and these names wasn’t a basis for rejecting either as demeaning or disparaging or harmful or disruptive to the transit system. Is that correct?

A. The pictures of the faces alone were not the reason for the rejection of the ad.

Q. Not just the pictures and the faces alone, but with the names listed as well. Correct?

A. Yes. That is correct.

Q. So the objection to this ad is the “Faces of Global Terrorism” title of it; isn’t that correct?

A. It is not correct. It is the combination of the banner phrase, “Faces of Global Terrorism,” suspended over those selected faces and those selected names.

Q. Okay. So if we changed “Faces of Global

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Rob Gannon 30(b)(6) – February 3, 2017 76

Terrorism,” as we just went through, to “Most Wanted Global Terrorists” or “Wanted for Global Terrorism,” everything else remaining equal, the ad would comply with the policy. Correct?

A. That is correct.

Q. So if we changed this ad by just removing “Faces of Global Terrorism” and everything else is the same, would that violate the policy?

Case 2:13-cv-01804-RAJ Document 56-2 Filed 03/07/17 Page 45 of 61

A.

Q. Is that

A. policy.

I do not believe it would.
You do not believe it would violate the policy. right?
Correct. I do not believe it would violate the

MR. MUISE: David, actually, I’d like to take — maybe we can take an in-place break and go off the record. This might have sped things up here quite a bit.

Actually, let’s do this, David, if we could: Let’s take a ten-minute break. I just want to review and see if I missed something on any of these additional documents that I might want to ask, and I think we might be able to wrap this thing up relatively quickly. Does that work for you?

good.

MR. HACKETT: Yes. That works for me. Sounds

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Rob Gannon 30(b)(6) – February 3, 2017 81

policy in place at the time.
Q. And that was 2011. If you look at Exhibit 6 —

because I just want to make a comparison to where we are today.

A. Okay.

Q. Exhibit 6, as you testified, is the current Transit Advertising Policy. Correct?

A. Yes.

Q. And it’s the advertising policy that was applied to reject my client’s ads at issue, AFDI 1, AFDI 2. Correct?

A. That’s correct.

Q. And by adopting this policy in 2012, the County removed the restriction stated in Exhibit 17 regarding public issue advertising. Is that correct?

A. That is correct.

Q. So under the current advertising policy as expressed in Exhibit 6, it is permissible to advertise — excuse me — to present advertising expressing or advocating an opinion, position or viewpoint on matters of public debate about economic, political, religious, or social issues. Is that correct?

A. Yes.
MR. MUISE: David, I have no further questions.

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Case 2:13-cv-01804-RAJ Document 56-2 Filed 03/07/17 Page 47 of 61

PLAINTIFF’S 3 ¥ EXHIBIT NO. ,

FOR IDENTlF1CAnON
I DlJ:11 It =t-RPTllf\”‘l

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Case 2:13-cv-01804-RAJ Document 56-2 Filed 03/07/17 Page 49 of 61

PLAINTIFF’S {“- EXHIBIT

IOlNTJACAnON ‘olJ!1It RPTII:A-r

1.0

2.0

SUBJECT TITLE: King Connty Department of Transportation, Transit Division, Transit Advertising Policy

  1. 1.1  EFFECTIVE DATE: January 12, 2012
  2. 1.2  TYPE OF AenON: Superseding CON 1-1 (D-P)
  3. 1.3  KEY WORDS: (1) Transit; (2) Advertising

PURPOSE:

Case 2:13-cv-01804-RAJ Document 56-2 Filed 03/07/17 Page 50 of 61

Contract 5506032 Exhibit C

King County
Department Policies and Procedures

King.County

T’irk

TRANSIT ADVERTISING POLICY

Depal tmel1tiloisuiTlg Ageney
King County of Trdnsportatiatl, Transit Division

AA l A , \ , Kevin Desmond, Transit General Manager

Docummt Cude No,

CON 1-1-1 (D-P)

2.1

2.2

KingConnlyTransitSystem. TheKingCountyDepartmentofTransportation, through its Transit Division, operates one of the largest bus systems in the natiun, one that includes more than 225 bus rautes throughout the County, with nearly 9,000 bus stops and more than 130 park-and-ride facilities connecting riders with those routes. The transit system is a vital component orthe broad spectrum ofpublic services the County provides. The County’s transit advertising program is intended to’ generate revenue to support the transit system.

Advertising as Revenue Source. The COlmty’s transit operations are funded by a combination of federal, slate and local funds, including grants and ta.'{es, as well as fare box revenue. Advertising revenues are an inlportant additional source o f revenue thatSlIppOrtstransitoperations. TheConnty’sfundamentalpurposeinaccepting transit advertising is to generate revenue to augment the Transit DivisioQS operatiug budget.

The primary plll’pose of tbe County’s transit system is to provide safe and efficient public transportation within its service area. Consistent with this pnrpose, U,C CO.lUlty places great imp0l1ance on maintaining seCUIe, safe, comforlable and convenient Transit Facilities and Transit Vehicles in order to, amongolher things consistent with the provision of ell’ective and reliable public transportation, retsin existiog ridcrs and attracl new users of public transit services (KCC 28.96.020 and .2(0). To generate additional revenue while also accomplishing tbe primary objectives of transit

1

PLAINTIFF’SI iIII EXHIBITNO. tV

Transit Advertising Policy

General Department Policies & Procedures

“‘”

January 12, 2012

Case 2:13-cv-01804-RAJ Document 56-2

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Contract 5506032 Exhibit C

King County Department of Transportation, Transit Division EffectiveDate: January12,2012

Transit Advertising Policy

CON 1-1-1 (D-P) Page2of8

operations, the County will accept advertising on its Transit Facilities and Transit Vehicles only if such advertising complies with this Advertising Policy.

2.3 Limited Public FOllnn Status. The County’s acceptance oftransit advertising does not providc or create a general public fonun for expressive activities. In keeping with its proprietary function as a provider ofpublic transportation, and consistent with KCC 28.96.020 and .210, the County does not intend its acceptance oftransit advertising to convert its Transit Vehicles or Transit Facilities into open public forums for public discourse and debate. Rather, as noted, the County’s f,mdamental pUl]Jose and intent is to accept advertising as an additional means ofgenerating revenue to support its transit operations. In furtherance ofthat discreet and limited objective, the County retains

– – – – – strict-control over the-nature of-the ads accepted-for posting-on -orin i t s T r a n s i t – – – – – Vehicles and Transit Facilities and maintains its advertising space as a limited public fonun.

In the County’s experience, certain types ofadvertisements interfere with the program’s primarypmposeofgeneratingrevenuetobenefitthetransitsystem. Thispolicy advances the advertising program’s revenue-generating objective by prohibiting advertisements that could detract from that goal by creating substantial-controversy, interfering with and diverting resources -from transit operations, and/or posing significant risks ofharm, inconvenience, or annoyance to transit passengers, operators andvehicles. SU<:hadvertisementscreateanenvironmentthatisnotconduciveto achieving increased revenue for the benefit ofthe transit system or to preserving and enhancingthesecurity,safety,comfortandconvenienceofitsoperations. The viewpoint nentral restrictions in this policy thus foster the mamtenance o f a professional advertising environment that maximizes advertising revenue.

This policy is intended to provide clear guidance as to the types o f advertisements that will allow the County to generate revenue and enhance trallSit operations by ful:lilling the following goals and objectives:

• .

Maximizing advertiaing revenue;
Preventing the appearance of favoritism by the County;
Preventing the risk ofimposing demeaning or disparaging views on a captive audience;
Maintaining a position of neutrality on controversial issues;
Preserving the marketingpote.ntial o f the advertising space by avoiding content that the commnnity could view as demeaning, disparaging, Objectionable, inappropriate or harmfut to members ofthe public generally or to minors in particular;
Maximizing ridership;
Avoiding claims ofdiscrimination and maintaining a non-discrinilnatory environment for riders;

Preventing any harm or abuse fuat may result from mnning demeaning, disparaging or objectionable advertisements;

2

,

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Contract 5506032 Exhibit C

King County Department of Transportation, Transit Division EffectiveDate: Jannary12,2012

Transit Advertising Policy

CON 1-1-1 (D-P) Page3of8

3.·0

4.0

ORGANIZATIONS AFFECTED: King County Department of Transportation, Transit Division

REFERENCES:

  1. 4.1  Transit Code ofConduct, chapter 28.96 KCC
  2. 4.2  Public Transit Defmitions, chapter 28.92 KCC

43 KingCountyCharterSection320.20: Providesthatthecountyexecutive”shallhave the power to assign duties to administrative offices and executive departments which aTe not specifiCliUy assigned bythis charter or ordinance….”

4.4 ExecLltivePolicylProcedures No. INF 7-lD-1 (AEP): Approval and Routing Procedures for General Department Policies/Procedures (D-P’s) and Departrnent Work Procedures (0-W)

2.4

2.5

Reduci.ng the diversion o f resources from transit operations that is caused by demeaning, disparaging, objectionable, inappropriate or harmful advertisements.

The Connty’s Transit Facilities and Transit Vehicles are a limited public forum and, as such, the County will accept only that advertising that fans within the categories o f acceptable advertising specified iuthis viewpoint neutral policy and that satisfies all other access requirements and restrictions provided herein.

The County reserves the right to suspend, modify or revoke the applioation o f any o f _the standards inthisPolicyas.it-decms.necessaryto comply-with·legal·mandates;to–

accormnodate its primary transportation function, or to fulfill the goals and objectives identifiedabove. AlloftheprovisionsinthisPolicyshanbedeemedseverable.

ApplicationofPolicy. ThisTransitAdvertisingPolicyappliestothepostingofall new advertisements on Transit Facilities and Transit Vehicles on or after the Effective Date. Anyadvertisementswhichwouldbeprohibitedunderthispolicy,butwhich were posted prrrsuant to the terms of a fully executed advertising contract prior to the Effective Date ofthis policy, will be allowed to remain posted for the duration of that contract.

DisclaimerofEndorsement. TheCounty’sacceptanceofauadvertisementdoesnot constitute express or implied endorsement of tile content or message oftile advertisement, including any person, organization, products, se!vices, information or viewpoints contained therein, or ofthe advertisement sponsodtself. This endorsement disclaimer extends to and includes content that may be found via internet addresses, quick response (QR) codes, and telephone numbers that may appear in posted ads and

that direct viewers to external sources ofinformation.

3

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Contract 5506032 Exhibit C

King County Department ofTransportation, ‘Transit Division EffectiveDate: January12,2012

5.0 DEFINlTIONS:

. Transit Advertising Policy

CON 1-1-1 (D-P) Page4of8

  1. 5.1  TransitFacilities. TransitFacilitiesincludethedowntowllSeattletransittemnel(KeC 28.92.190), transit tunnet mezzanine areas (KGG 28.92.200) and transittnnnel platfonn areas (KGG 28.92.210).
  2. 5.2  TransitVehicles. ‘TransitVehiclesincludealltransitpassengerbuses,trolleysand street railcars.

6.0 POIJCIES:

6.1

Pennitled Advertising Content: The following classes ofadvertising are authorized on or in Transit Facilities and Transit Vehicles:

  1. 6.1.1  General Allowance fur Advertising, Advertising that does not include any material that qualifies as Prohibited Advertising under Subsection 6.2 oftbis Advertising Policy.
  2. 6.1.2  King County Transit Advertising, The COllUty bas the right to display advertising sponsored by the King County Transit Division to prolUote the King County Transit System or any of the functions or programs carried out by the Transit Division.

ProhibitedAdvertisingContent: AdvertisingisprohibitedonorinTransitFacilities and Transit Vehicles if it includes any oftbe following content:

6.2.1 Political Campaign Speech. Advertising that promotes, or opposes a political party, the election of any candidate or group of candidates for federal, state or local govenunent offices, or initiatives, referendums or other ballot measures.

6:2.2 Prohibited Products, Services or Activities. Any advertising that (i) promotes or depicts the sale, rental, or use of; participation in, or images of the following products, services or activities; or (ti) that uses brand names, trademarks, slogans or other material that are identifiable with such products, services or activities:

6.2

(a)

(b)

Tobacco. Tobacco products, including but not limited to cigarettes, cigars, and smokeless (e.g., chewing) tobacco;

Alcohol. Beer, wine, distilled spirits or any alcoholic beverage

licensed and regolated under Washington law, however, this
. prohibition shall not prohibit advertising that includes the namc

of a restaurant that is open to minors;

4

.-

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Contract 5506032 Exhibit C

KIDg County Department ofTransportation, Transit Division EffectiveDate: Jauuary12,2012

Transit Advertising Policy

CON 1-1-1 (D-P) Page5of8

6.2.3

Sexual and/or Excretory Sllbject Maller. Any advertising that contains or involves any material that describes, depicts or represents sexual or excretory organs or activities in a way:

6.2.4

6.2.5

For purposes of this subsection, “sexual or excretoryorgaus” shall mean and include the male or female pubic area, anus, buttocks, genitalia, or any portion ofthe areola or nipple of the female breast and “sexual or excretory activities” shall mean and include actual or simulated sex acts of every natnre (including but not limited to touching of one’s own or another’s clothed or unclothed sexual 01′ excretory organs), urination and defecation.

False or Misleading. Any material thai is or that the sponsor reasonably should have known is false, fraudulent, misleading, deceptive or would constitute a tortofdefamation orinvasionofptlvacy.

CopYright, Trademark or Otberwise Unlawful. Advertising that contains any material that is au infringement o f copyright, trademark or service mark, or is othelWise unlawful or illegal.

(c)

(d)

(e)

(1)

Firearms. Fli·eam)s.ammuuitionorotherfireanus-related products.

Adult!MatureRatedFilms,TelevisionorVideoGames. Adult films rated “X” or “NC-17 “, television rated ”MA” or video gamesrated or’MJ’;

AdultEntertainmentFacilities. Adultbookstores,adullvideo stores, uude dance clubs and other adult entertainment establishments;

— —
OtherAdUltServices. Adnlttelephoneservices,adultinternet

siles and escort services.

(a)

(b)

(c)

that the average adnlt person, applying contemporary commuuity standards, would find, when considered as a whole, appeals to the prurient interest ofminors in sex; or

which is patently offensive to contemporary standards in the adult community as a whole with respect to what is suitable material fur minors to see; or

that depicts, or reasonably appears to depict, a person under the age of eighteen (18) exhibiting his or her sexual or excretory organs or engaging in sexual or excretory activities.

5

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Contract 5506032 Exhibit C

King County Department of Transportation, Transit Division EffectiveDate: January12,2012

Transit Advertising Policy

CON 1-1-1 (D-P) Page6of8

6.3

  1. 6.2.6  Illegal Activity. Any advertising that promotes any activity or product that is illegal under federal, state or local law.
  2. 6.2.7  Profanity and Violence. Advertising that contains any profane language, or portrays images or descriptions o f graphic violence, including dead, mutilated or disfigured human beings or animals, the act o f killing, mutilating or disfiguring human beings at animals, or intentional infliction ofpain or violent action towards or upon a person or animal,
  3. 6.2.8  Demeaning or Disparaging. Advertising that contains material that denleaIlB or disparages an individual, group ofindividuals or entity. For purposes of

–determining whethenrrnrdvcrtl’senRnt containssucn mateJlal;tlfeCounty will— determine whether a reasonably prudent person, knowledgeable ofthe County’s ridership and using prevailing commlUuty standards, would believe that the advertisement contains material that ridicules or mocks, is abusive or hostile

to, or debases the dignity or stature of any individual, group o f individuals o r entity.

6.2.9 Harmful or Disruptive to Transit System. Advertising that contains material that is so objectionable as to be reasonably foreseeable that it will result in harmto,disruptionoforinterferencewiththetransportationsystem. For purposes o f determining whether an advertisement contains such material, the County will det6l1Iline whether a reasonably prudent person, knowledgeable o f the County’s ridership and nsing prevailing community standards, would believe that the material is so objectionable that it is reasonably fureseeable

that it will result in hann to, disruption of or interference with the transportation system.

6.2.10 Ligbts,NoiseandSpecialEffects. Flashinglights,selmdmakers,mirrorsor other special effects that interfere with the safe operation of the bus or the safety of bus riders, drivers of other vehicles or the public at large.

6.2.11 Unsafe Transit Behayior. Any advertisement that encourages or depicts unsafe behavior with respect to transit-related activities, stlch as non-use o f nonnal safety precautions in awaiting, boarding, riding upon or debarking from transit vehicles.

Additional Requirements:

6.3.1 Sponsor Attribution and Contact Information. Any advertising in which the identity ofthe sponsor is not readily and unambiguously identifiable must include the following phrase to identify the sponsor in clearly visible letters (no smaller than 72 point type fur exteriors and 24 point type for interiors):

Paid for hy .

_

6

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Contract 5506032 Exhibit C

King Cowlty Department of Transportation, Transit Division EffectiveDate: January12,2012

Transit Advertising Policy

CON I.i-] (D-P) Page7of8

7.0 PROCEDURES: Action By:

Transit Advertising Contractor-

7.1 All proposed transit advertising mllst be Sllbmitted to the –Transit-Advertising ContrnetorfOrinitial conij>liance

review. TheTransitAdvertisingContractorwillpmfoml a preliminary evaluation ofthe submission to assess its compliance with this policy.. If, during its preliminary review o f a proposed advertisement, the Transit Advertising Contractor is unable to lllJlke a compliance detcnnination, it will forward the submission to the Transit Advertising Program Manager for further evaluation. TheTransitAdvertisingContractormayat

any time discuss with the entity proposing the advertisement one or more revisions to an advertisement, which. i f undertaken, would bring the advertisement into confonnitywith tbis Advertising Policy. The Transit Advertising Contractor will immediately remove any advertisement that the Transit Division at any time directs it to remove.

7.2 The Transit Advertising Program Manager will review the proposed advertisement for compliance with the guidelines set forth in this policy and will direct the Transit Advertising Contractor as to whether 11m proposed advertisement will be accepted. In 1I1e discretion of the Transit Advertising Program Manager,

any proposed transit advertising may be submitted to the Transit Division General Manager for review.

7.3 The Transit Division General Manager shall condnct a fmalreview ofproposed advertising at the request ofllie Transit Advertising Program Manager. The decision of the Transit Division General Manager to approve or reject any proposed advertising shall he final.

7.4 The Transit Advertising Program Manager or the Transit Division General Manager may coosuit with other appropriate County employees, including the COlmty’s

Transit Advertising Progranl Manager

Transit Division General Manager

Transit Advertising Program Manager and Transit Division General

“Teaser ads” lhat do not identifY the sponsor will, however, be allowed so long as a similar number offollow up advertisements are posted within eight weeks ofthe initial teasel’ ads that do identify the sponsor ofthose initial ads.

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Case 2:13-cv-01804-RAJ Document 56-2 Filed 03/07/17 Page 57 of 61

Contract 5506032 Exhibit C

King County Department ofTrallSpOltation, Transit Division Effective Date: January 12, 2012

ActionBv:

Transit Advertising Policy

CON 1-1-1 (D-P) Page 8 of8

Manager legal counsel, at any time during the review process.

8.0 RESPONSIDILITIES: TheTransitAdvatisingProgllImManagerandTransitDivision General Manager are responsible for the implementation ofthis Transit Advertising Policy,

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II

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASIDNGTON AT SEATTLE

Case 2:13-cv-01804-RAJ

Document 56-2 Filed 03/07/17 Page 58 of 61

AMERICAN FREEDOM DEFENSE INITIATIVE; PAMELA GELLER; and ROBERT SPENCER,

Plaintiffs,

-v.-

KING COUNTY, Defendant.

Case No.2: 13-cv-01804-RAJ

PLAINTIFFS’ AMENDED NOTICE OF DEPOSITION OF DEFENDANT KING COUNTY

[Fed. R. Civ. P. 30(b)(6[Fed. R. Civ. P. 30(b)(6)]class="layoutArea">

PLEASE TAKE NOTICE that pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure, Plaintiffs will take the deposition upon oral examination of Defendant King County on Friday, February 3, 2017 at 9:30 a.m., before an officer authorized to administer oaths at 600 University Street, Suite 320, Seattle, Washington 98101. Said deposition will be conducted by remote means and recorded by stenographic means. It will continue until adjourned. This examination will be subject to further continuance from time to time and place to place until completed.

Plaintiffs hereby request that Defendant King County (“County”) designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf as to the following matters:

PLS: AM. NOTICE OF DEP. OF KING CNTY.

– 1 .- * EXHIBIT

i 14. 11<. “‘ul \ O ” f I

Stephen Pidgeon, Esq. Old Federal Building 3002 Colby Avenue, Suite 306 Everett, Washington 9820 I (425) 605-4774

THE HONORABLE RICHARD A. JONES

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issue in this litigation and the evidence used to establish, confirm, or otherwise support these factors/facts.

3. All documents produced by the County, including testimony regarding the document’s foundation, authentication, and factual context in which it applies.

You are invited to attend and cross-examine the witness. Respectfully submitted,

AMERICAN FREEDOM LAW CENTER

By: lsi Robert J. Muise
Robert J. Muise, Esq.* (MI P62849)
P.O. Box 131098
Ann Arbor, Michigan 48113 rmuise@americanfreedomlawcenter.org Tel: (734) 635-3756; Fax: (801) 760-3901

David Yerushalmi, Esq.* (DC # 978179) 1901 Pennsylvania Avenue NW, Suite 201 Washington, D.C. 20006 dyerushalmi@americanfreedomlawcenter.org Tel: (646) 262-0500; Fax: (801) 760-3901 *Admitted pro hac vice

Stephen Pidgeon Attorney at Law, P.S.

Stephen Pidgeon, Esq. WSBA # 25265 3002 Colby Avenue, Suite 306
Everett, Washington 98201
Tel: (425) 605-4774; Fax: (425) 818-5371

Case 2:13-cv-01804-RAJ Document 56-2 Filed 03/07/17 Page 59 of 61

1. The County’s Transit Advertising Policy, as referenced in the First Amended Complaint (Doc. No. 48), and its application to advertisements presented for display on the County’s transit advertising space, specifically including its application to reject Plaintiffs’ advertisements at issue in this litigation.

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PLS.’ AM. NOTICE OF DEP. OF KING CNTY.

– 2 –

Stephen Pidgeon, Esq. Old Federal Building 3002 Colby Avenue, Suite 306

Everett, Washington 98201 (425) 605-4774

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CERTIFICA TE OF SERVICE
1 hereby certifY that on January 23, 2017, a copy of the foregoing was served on

Defendant’s counsel via email pursuant to the written agreement o f the parties. AMERICAN FREEDOM LAW CENTER

Case 2:13-cv-01804-RAJ Document 56-2 Filed 03/07/17 Page 60 of 61

PLS.’ AM. NOTICE OF DEP. OF KING CNTY.

– 3 –

Stephen Pidgeon, Esq. Old Federal Building 3002 Colby Avenue, Suite 306

Everett, Washington 98201 (425) 605-4774

/s/ Robert J. Muise Robert J. Muise, Esq.

From:

Sent:

To:

Cc:
Subject: Attachments:

Scott Goldsmith <Scott.Goldsmith@intersection.com>
Sunday, October 04, 2015 10:53 AM
dyerushalmi@americanfreedomlawcenter.org; Pamela Geller (writeatlas@aol.com) ‘Robert Muise AFLC
Faces of Global Terrorism Ad – KCM Response
King County Ad Policy.pdf

Case 2:13-cv-01804-RAJ Document 56-2 Filed 03/07/17 Page 61 of 61

Pamela: Please see below form King County in regard to the proposed Faces of Global Terrorism ad. Thank you. Scott.

Dear Mr. Goldsmith,

Based on our current advertising policy, the American Freedom Defense Initiative (AFDI) ad, “FACES OF GLOBAL TERRIORISM “, submitted and shown in your September 18,2015 email cannot be accepted. The advertisements do not comply with Subsections 6.2.8 and 6.2.9 set forth below.

6.2.8 Demeaning or Disparaging. Advertising that contains material that demeans or disparages an individual, group of individuals or entity. For purposes of determining whether an advertisement contains such material, the County will determine whether a reasonably prudent person, knowledgeable of the County’s ridership and using prevailing community standards, would believe that the advertisement contains material that ridicules or mocks, is abusive or hostile to, or debases the dignity or stature of any individual, group of individuals or

entity.

6.2.9 Harmful or Disruptive to Transit System. Advertising that contains material that is so objectionable as to be reasonably foreseeable that it will result in harm to, disruption of or interference with the transportation system. For purposes of determining whether an advertisement contains such material, the County will determine whether a reasonably prudent person, knowledgeable of the County’s ridership and using prevailing community standards, would believe that the material is so objectionable that it is reasonably foreseeable that it will result in harm to, disruption of or interference with the transportation system.

In the ongoing litigation with AFDI, we have explained the problems with AFDl’s use of the “Faces of Global Terrorism” motif under Metro’s Transit Advertising Policy. We remain willing to discuss other ways for AFDI to communicate its “catch a terrorist” message in our nonpublic forum. For example, AFDI may want to reo caption the ad “Most Wanted Global Terrorists” or “Wanted for Global Terrorism” – both of which would comply with our advertising policy by removing the demeaning and disparaging aspect of the current ad copy. Please communicate to AFDI our willingness to accept revised ad copy that comply with the advertising policy.

For your reference, I have attached a copy of Metro’s Transit Advertising Policy.

Scott E. Goldsmith PICSIl!I..:,H. [nlers\’.\.-

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  • Bill

    These governmental Moooslim enablers will always try to thwart free speech by unconstitutionally rejecting ADFI’s ads on content-based criteria. They always succeed in delaying the ads, a tactic used to make the ads untimely, but they will lose in the end. Unfortunately, punitive damages are not available against a municipality, and paying ADFI’s reasonable attorney’s fees is not enough of a deterrent to stop those that want to open the floodgate to Muslim terrorists on our shores.

  • AlgorithmicAnalyst

    I read the whole thing (just kidding :)

  • Amethyst_2012

    People are soooo ignorant about the koran. Perhaps Pamela should make up signs with true verses of the koran. Such as “kill the infidels and non muslims wherever you find them”. Do you think that would wake up the sleeping public?? Just asking.

    • pogee

      They’ve done that, and had the same unconstitutional barriers put up against them. I believe other places include New York City, Boston, and Philadelphia. We’re going the way of the dodo, if this keeps up. I fear for my grandchildren! Pamela, we love you!!!

      • Amethyst_2012

        Perhaps with Trump in power now, that can be changed. Who knows maybe the Trump Team will post those posters under the Health Act.

  • The Profit MoeHamHead

    First of all this was a pain to decipher. There are at leat 2 and maybe even as many as 3 letters to words missing along the ENTIRE right hand of the text.
    That being said it sickens me to read just how much energy the county has spent fighting AFDI’s efforts to educate the American public about the very real threat of domestic terrorism. I hope they prevail with their call for summary judgement and get their ads finally displayed.

    .

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