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I No. 14-35095 in the UNITED STATES No. 14-35095 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT AMERICAN FREEDOM DEFENSE INITIATIVE; PAMELA GELLER; and ROBERT SPENCER Appellants, v. KING COUNTY Appellee, ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON CASE NO. 2:13-cv-01804-RAJ (HON. RICHARD A. JONES) PROPOSED AMICUS CURIAE BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON VENKAT BALASUBRAMANI SARAH A. DUNNE Focal PLLC Legal Director 800 Fifth Avenue Suite 4100 LA ROND M. BAKER Seattle, WA 98104-3100 Staff Attorney Telephone: (206) 529-4827 ACLU of Washington Foundation 901 Fifth Avenue Suite 630 Seattle, WA 98164 Telephone: (206) 624-2184 i CORPORATE DISCLOSURE STATEMENT Pursuant to FRAP 26.1, the American Civil Liberties Union of Washington certifies that it is a Washington non-profit corporation. It has no parent corporations, and no publicly held company owns 10 percent or more of its stock. ii STATEMENT OF COMPLIANCE WITH FED. R. APP. P. 29(C)(5) No party’s counsel authored this brief in whole or in part. No party or party’s counsel contributed money that was intended to fund preparing or submitting this brief. And no person other than the American Civil Liberties Union of Washington, its members, or its counsel contributed money that was intended to fund preparing or submitting this brief. iii TABLE OF CONTENTS CORPORATE DISCLOSURE STATEMENT .................................................... ii STATEMENT OF COMPLIANCE WITH FED. R. APP. P. 29(C)(5) ............ iii I. INTRODUCTION ............................................................................................. 1 II. FACTUAL BACKGROUND ........................................................................... 2 III. PROCEDURAL BACKGROUND ............................................................... 3 IV. ARGUMENT .................................................................................................. 4 A. Viewpoint Discrimination is Offensive to the First Amendment in Both Designated and Limited Public Forums. ............................................................... 4 B. Sections 6.2.4, 6.2.8, and 6.2.9 of King County’s Transit Advertising Policy Are Facially Invalid and Violate the First Amendment. ................................... 6 1. Section 6.2.4 Is As an Impermissible Restriction of Political Speech. ...... 6 a. The government may not act as a “truth board” and policies that allow such are in violation of the First Amendment. ...................................................... 6 b. The policy’s restriction on “false” and “misleading” speech in a forum that allows for political and social issue speech creates an impermissible risk of viewpoint discrimination and is unreasonable. ....................................... 7 2. Section 6.2.9 of King County’s Ad Policy Invites a Heckler’s Veto and Creates an Impermissible Risk of Viewpoint Discrimination. ............................... 9 a. Restricting speech that may offend third parties is not a viewpoint neutral restriction on speech ......................................................................................................... 9 b. Utilizing “community standards” to determine whether speech is sufficiently offensive to warrant does not comport with the First Amendment…………………………………………………………………11 3. Section 6.2.8 of King County’s Ad Policy is a Vague Restriction that Invites Viewpoint Discrimination. ............................................................................... 12 V. CONCLUSION ................................................................................................15 iv TABLE OF AUTHORITIES Cases Abrams v. United States, 250 U.S. 616 (1919) .......................................................... 7 Airline Pilots Ass’n, Intern. v. Department of Aviation of City of Chicago, 45 F.3d 1157 ......................................................................................................................12 Am. Freedom Def. Initiative v. Metro. Transp. Auth., 880 F. Supp. 2d 456 (S.D.N.Y. 2012) ....................................................................................................14 Bd. Of Regents v. Southworth, 529 U.S. 217 (2000) ...............................................12 Berger v. City of Seattle, 569 F.3d 1029 (9th Cir. 2009) ........................................... 1 Board of Educ. v. Mergens, 496 U.S. 226 (1990)...................................................... 5 Chicago Acorn v. Metro. Pier and Exposition, 150 F.3d 695 (7th Cir. 1998) ........10 Child Evangelism Fellowship of Md., Inc. v. Montgomery Cnty. Pub. Schs., 457 F.3d 376 (4th Cir. 2006) ......................................................................................... 5 Christ's Bride Ministries, Inc. v. SEPTA, 148 F.3d 242 (3rd Cir. 1998) .................13 Cinevision Corp. v. City of Burbank, 745 F.2d 560 (9th Cir.1984) ....................5, 13 City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750 (1988) ......................... 5 Cornelius v. NAACP Legal Def. & Educ. Fund., 473 U.S. 788 (1985)..................... 4 Erickson v. City of Topeka, 209 F. Supp. 2d 1131 (D. Kan. 2002) .........................10 Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992) .................. 9, 10, 11 Hopper v. City of Pasco, 241 F.3d 1067 (9th Cir. 2001) ................................. passim Kaahumanu v. Hawaii, 682 F.3d 789 (9th Cir. 2012) ...........................................4, 5 Lebron v. National Railroad Passenger Corporation (Amtrak), 69 F.3d 658 ........12 Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011 (9th Cir. 2009) ....................................................................................................................... 6 Miller v California, 413 U.S. 15 (1973) ........................................................... 12, 14 v New York Times Co. v. Sullivan, 376 U.S. 254 (1964) ..........................................6, 7 Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U.S. 37 (1983) ..................... 5 Reno v. Am. Civil Liberties Union, 521 U.S. 844 (1997) ........................................12 Ridley v. Massachusetts Bay Transportation Authority, 390 F.3d 65 (1st Cir. 2004) ..............................................................................................................................13 Robb v. Hungerbeeler, 370 F.3d 737 (8th Cir. 2004) ..............................................10 Rosenberger v. University of Virginia, 515 U.S. 819 (1995) .................................... 5 Sammartano v. First Judicial District Court, 303 F. 3d 959 (9th Cir. 2002) ............ 9 Seattle Affiliate of the Oct. 22nd Coal. to Stop Police Brutality, Repression, & the Criminalization of a Generation v. City of Seattle, 550 F.3d 788 (9th Cir. 2008)………..……………………………………………………………………6 Seattle Mideast Awareness Campaign v. King County, Nos. 11-35914 & 11-35931 (9th Cir.) ................................................................................................................. 1 State v 119 Vote No! Comm., 135 Wash.2d 618, 957 P.2d 691 (Wash. 1998) ......... 7 Terminiello v. City of Chicago, 337 U.S. 1 (1949) .................................................... 9 Thomas v. Collins, 323 U.S. 516 (1945) .................................................................... 7 United Food & Commercial Workers Union v. Southwest Ohio Reg’l Transit, 163 F.3d 341 (6th Cir. 1998) ...................................................................................6, 11 United States v. Alvarez, 132 S.Ct. 2537 (2012) ...................................................3, 7 Working Washington v. Central Puget Sound Regional Transit Authority, No. 12- 35622, 533 Fed. Appx. 716 (9th Cir. 2013) ........................................................... 1 vi IDENTITY AND INTEREST OF AMICUS The ACLU is a nonpartisan, nonprofit organization, with over 20,000 members, that is dedicated to the preservation of civil liberties. To defend free speech the ACLU has participated as counsel or amicus in many First Amendment matters before this Court including other transit advertising and forum-related First Amendment cases. See, e.g., Berger v. City of Seattle, 569 F.3d 1029, 1034 (9th Cir. 2009). The ACLU of Washington Foundation has also participated as counsel in many First Amendment matters before this Court, including other transit advertising and forum-related First Amendment cases. See, e.g., Seattle Mideast Awareness Campaign v. King County, Nos. 11-35914 & 11-35931 (9th Cir.) (argued October 3, 2012; appeal pending); Working Washington v. Central Puget Sound Regional Transit Authority, No. 12-35622 533 Fed. Appx. 716, 717 (9th Cir. 2013); Hopper v. City of Pasco, 241 F.3d 1067, 1069 (9th Cir. 2001). I. INTRODUCTION The ACLU of Washington is a statewide, nonpartisan, nonprofit organization with over 20,000 members dedicated to the preservation and defense of constitutional rights and civil liberties within the state of Washington. From its inception, the ACLU has been a staunch supporter of the freedom of speech, as such the ACLU submits this amicus curiae brief analyzing the constitutional infirmities of King County’s transit advertising policy because it chills protected speech and allows King County to arbitrarily pick and choose the messages it will run in its transit advertising forum, which is anathema to the First Amendment. 1 II. FACTUAL BACKGROUND King County has sold advertising space on its buses since 1978. (ER 30). From 1978 until December 23, 2010, King
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