United States District Court, W.D. Washington, Seattle
HONORABLE RICHARD A. JONES JUDGE
matter comes before the Court on the parties'
cross-motions for summary judgment. Dkt. ## 56,
57.For the reasons that follow, the Court
GRANTS Defendant King County's
("the County") motion (Dkt. # 57) and
DENIES Plaintiffs American Freedom Defense
Initiative (AFDI), Pamela Geller, and Robert Spencer's
(collectively "AFDI" or "Plaintiffs")
motion (Dkt. # 56).
January 30, 2014, the Court denied AFDI's motion for a
preliminary injunction. Dkt. # 27. AFDI appealed that Order.
Dkt. # 28. The United States Court of Appeals for the Ninth
Circuit affirmed the Court's Order denying the motion for
a preliminary injunction. Am. Freedom Def. Initiative v.
King Cty., 796 F.3d 1165 (9th Cir. 2015)
("AFDIF). AFDI unsuccessfully petitioned the
Supreme Court for review of the Ninth Circuit's decision.
Dkt. ## 43, 44.
light of the Ninth Circuit's ruling, AFDI submitted a
second advertisement to the County. In this advertisement,
AFDI attempted to cure the false and misleading language that
had appeared in its first advertisement. However, AFDI
maintained the same basic format: the advertisement was
captioned, "Faces of Global Terrorism, " followed
by a list of headshots of wanted terrorists. Dkt. # 48
(Amended Complaint) at ¶ 47.
County's Department of Transportation ("Metro")
rejected the second advertisement, explaining that the
"Faces of Global Terrorism" theme was disparaging
and demeaning toward a group of individuals and therefore
would be harmful or disruptive to the transit system. Dkt. #
60 at 20. Metro suggested ways in which AFDI could edit its
advertisement to preserve its message while bringing it into
compliance with Metro's standards. Id. AFDI did
not propose a third version of the advertisement, and instead
filed its Amended Complaint. Dkt. # 48 (Amended Complaint).
parties are now before the Court on their cross motions for
summary judgment. Dkt. ## 56, 57.
judgment is appropriate if there is no genuine dispute as to
any material fact and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving
party bears the initial burden of demonstrating the absence
of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Where the moving
party will have the burden of proof at trial, it must
affirmatively demonstrate that no reasonable trier of fact
could find other than for the moving party. Soremekun v.
Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.
2007). On an issue where the nonmoving party will bear the
burden of proof at trial, the moving party can prevail merely
by pointing out to the district court that there is an
absence of evidence to support the non-moving party's
case. Celotex Corp., 477 U.S. at 325. If
the moving party meets the initial burden, the opposing party
must set forth specific facts showing that there is a genuine
issue of fact for trial in order to defeat the motion.
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986). The court must view the evidence in the
light most favorable to the nonmoving party and draw all
reasonable inferences in that party's favor. Reeves
v. Sanderson Plumbing Prods., 530 U.S. 133, 150-51
First Amendment claim analysis regarding free speech on
government-owned property is now familiar to the parties.
Briefly, the Court must determine the nature of the forum and
then must apply the appropriate scrutiny to the speech
restrictions. Cornelius v. NAACP Legal Def. & Educ.
Fund, Inc., A13 U.S. 788, 797 (1985) ("Assuming
that such solicitation is protected speech, we must identify
the nature of the forum, because the extent to which the
Government may limit access depends on whether the forum is
public or nonpublic").
forum at issue in this matter is a nonpublic forum. Dkt. ##
56 at 15 (AFDI concedes that the forum at issue is a
nonpublic forum), 64 at 13 (same); see also AFDI I,
796 F.3d at 1169 (finding that "the ad space under the
earlier version of Metro's transit advertising policy was
a nonpublic forum only."), Seattle Mideast Awareness
Campaign v. King Cty. ("SeaMAC), 781 F.3d 489, 497
(9th Cir. 2015) (finding that Metro's bus advertising
program created a "limited, rather than a designated,
public form."). "Control over access to a nonpublic
forum can be based on subject matter and speaker identity so
long as the distinctions drawn are reasonable in light of the
purpose served by the forum and are viewpoint neutral."
Cornelius, 473 U.S. at 806.
Defendant's restrictions are reasonable.
"decision to restrict access to a nonpublic forum need
only be reasonable; it need not be the most reasonable or the
only reasonable limitation." Cornelius, 473
U.S. at 808 (emphasis omitted). A speech restriction in a
nonpublic forum is reasonable if (1) "the limitation is
consistent with preserving the property for the purpose to
which it is dedicated, " DiLoreto v. Downey
UnifiedSch. Dist. Bd. of Educ,196 F.3d 958, 967 (9th
Cir. 1999); (2) it is "based on a standard that is
definite and objective, " SeaMAC, ...