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American Freedom Defense Initiative v. King County

United States District Court, W.D. Washington, Seattle

November 2, 2017

KING COUNTY, Defendant.



         This matter comes before the Court on the parties' cross-motions for summary judgment. Dkt. ## 56, 57.[1]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).

         I. BACKGROUND

         On 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.

         In 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.

         The 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).

         The parties are now before the Court on their cross motions for summary judgment. Dkt. ## 56, 57.


         Summary 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 (2000).


         The 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").

         The 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.

         A. Defendant's restrictions are reasonable.

         The "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, ...

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