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`Cite as: 577 U. S. ____ (2016)
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`THOMAS, J., dissenting
`SUPREME COURT OF THE UNITED STATES
`AMERICAN FREEDOM DEFENSE INITIATIVE, ET AL.
`v. KING COUNTY, WASHINGTON
`ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
`STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
`No. 15–584 Decided March 7, 2016
` The petition for a writ of certiorari is denied.
` JUSTICE THOMAS, with whom JUSTICE ALITO joins, dis-
`senting from the denial of certiorari.
` The First Amendment prohibits the government from
`“abridging the freedom of speech.” But the Court has
`struggled with how that guarantee applies when private
`speech occurs on government property. We have afforded
`private speech different levels of protection depending on
`the forum in which it occurs. See Pleasant Grove City v.
`Summum, 555 U. S. 460, 469–470 (2009). In a “traditional
`public forum”—namely, public streets or parks—speech
`restrictions must be “narrowly tailored to serve a compel-
`ling government interest.” Id., at 469. That same stand-
`ard governs speech restrictions within a “ ‘designated
`public forum,’ ” which exists “if government property that
`has not traditionally been regarded as a public forum is
`intentionally opened up for that purpose.” Ibid. But if the
`government creates a limited public forum (also called a
`nonpublic forum)—namely, “a forum that is limited to use
`by certain groups or dedicated solely to the discussion of
`certain subjects”—then speech restrictions need only be
`“reasonable and viewpoint neutral.” Id., at 470.
` Distinguishing between designated and limited public
`forums has proved difficult. We have said that whether
`the government created a designated public forum de-
`pends on its intent—as evidenced by its “policy and prac-
`tice” and “the nature of the [government] property and its
`compatibility with expressive activity.” Cornelius v.
`NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788,
`
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`AMERICAN FREEDOM DEFENSE INITIATIVE v.
`KING COUNTY
`THOMAS, J., dissenting
`802 (1985). But what this guidance means has bedeviled
`federal courts.
` This case involves a type of forum that has prompted
`especially stark divisions among federal courts of appeals:
`advertising in public transit spaces. A plurality of this
`Court has concluded that a public transit authority that
`categorically prohibits advertising
`involving political
`speech does not create a designated public forum. Lehman
`v. Shaker Heights, 418 U. S. 298, 300–302 (1974). But
`many transit authorities have instead opened their adver-
`tising spaces to a wide array of political speech, and courts
`of appeals are divided on what type of forum this creates.
`Transit authorities in Chicago, Detroit, New York City,
`and Washington, D. C., are bound by rulings that classify
`their ad spaces as designated public forums and, thus,
`prohibit content-based restrictions on advertising. Transit
`authorities in Boston—and, in this case, Seattle—are
`similarly open to political speech, yet can freely restrict
`speech based on its content. Whether public transit ad-
`vertising spaces are designated or limited public forums
`determines what speech millions of Americans will—or
`will not—encounter during their commutes.
` This case offers an ideal opportunity to bring clarity to
`an important area of First Amendment law. In the deci-
`sion below, the U. S. Court of Appeals for the Ninth Cir-
`cuit held that Seattle public transit advertising space is a
`limited public forum. The court then allowed the transit
`authority to exclude ads submitted by the American Free-
`dom Defense Initiative (AFDI)—petitioner here—by apply-
`ing content-based advertising restrictions. I would have
`granted certiorari.
`
`I
` King County, Washington, operates a public transit
`system that provides transportation to hundreds of thou-
`sands of riders in and around Seattle. Like many transit
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`Cite as: 577 U. S. ____ (2016)
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`THOMAS, J., dissenting
`authorities, King County’s transit system funds itself in
`part by selling advertising space on its buses and other
`property. And, like many transit authorities, King County
`subjects proposed ads to a preapproval process. Its policy
`for evaluating ads prohibits political campaign advertis-
`ing, but allows other political messages. Political mes-
`sages, however, cannot be displayed if the county deems
`them “false or misleading,” “demeaning and disparaging,” or a
`risk to the orderly operation of the transit system. 2014
`WL 345245, *4 (WD Wash., Jan. 30, 2014).
` King County has approved many controversial political
`ads. Transit bus exteriors have proclaimed “Save Gaza!
`Justice for all.” Riders have encountered ads urging
`women to visit a pro-life crisis pregnancy center to discuss
`abortion alternatives. Ads have championed “Equal
`Rights for Palestinians[:] The Way to Peace,” and an-
`nounced, “The Palestinian Authority Is Calling For A Jew-
`Free State[:] Equal Rights for Jews.” King County even
`initially accepted an ad that would have emblazoned
`“Israeli War Crimes[,] Your Tax Dollars At Work” on
`buses—before withdrawing that acceptance based on
`threats of violence. See Seattle Mideast Awareness Cam-
`paign v. King County, 781 F. 3d 489, 494 (CA9 2015)
`(SeaMAC).
` In 2013, the State Department and the Federal Bureau
`of Investigation (FBI) launched a campaign to encourage
`anyone in Seattle—an international travel hub—to report
`information about wanted terrorists. To that end, the
`State Department submitted ads for King County’s ap-
`proval to run on bus exteriors.
` Consistent with a campaign aimed at soliciting infor-
`mation about wanted terrorists, one ad displayed the
`names and faces of 16 wanted terrorists beneath the
`words “Faces of Global Terrorism.” Appendix, infra. The
`bottom of this ad announced: “Stop a Terrorist. Save
`Lives. Up to $25 Million Reward.” Ibid. The ad included
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`AMERICAN FREEDOM DEFENSE INITIATIVE v.
`KING COUNTY
`THOMAS, J., dissenting
`contact information for the Rewards for Justice Program,
`which offers substantial monetary rewards for information
`helping to locate wanted terrorists. See ibid. King
`County’s Transit Advertising Program Project Manager
`interpreted the ad as a conventional “ ‘wanted poster’ ” and
`approved it. Record in No. 2:13–CV–01804 (WD Wash.)
`(Record), Doc. 14, pp. 4–5 (Shinbo decl.). The ad started
`appearing on buses in June 2013. Ibid.
` King County then received a “small” number of com-
`plaints. Id., at 6. Faultfinders complained that juxtapos-
`ing the words “Faces of Global Terrorism” next to “pictures
`of persons of color with Muslim-sounding names . . . sug-
`gested that all similar persons were dangerous terrorists,”
`and that “just to depict men of certain races is . . . incendi-
`ary itself.” Ibid. (internal quotation marks omitted). A
`Seattle-area U. S. Congressman echoed these objections.
`The State Department voluntarily withdrew the ad.
` Weeks later, petitioner AFDI—an advocacy group that
`seeks to convey its views on terrorism by buying public
`transit ad space—submitted a proposed ad. See Appendix,
`infra. Like the State Department ad, AFDI’s ad was
`captioned “Faces of Global Terrorism.” Ibid. And like the
`State Department ad, AFDI’s ad displayed the same 16
`photos of wanted terrorists, with their names beneath. At
`the bottom of the ad, AFDI included slightly different text.
`Whereas the State Department ad concluded “Stop a
`Terrorist. Save Lives. Up to $25 Million Reward,” AFDI’s
`ad concluded: “AFDI Wants You to Stop a Terrorist. The
`FBI Is Offering Up To $25 Million Reward If You Help
`Capture One Of These Jihadis.” Ibid.
` King County rejected AFDI’s ad as inconsistent with its
`policy. First, King County deemed the ad “false or mis-
`leading,” because the Government was not offering a $25
`million reward for any depicted terrorist, and because the
`State Department, not the FBI, offers the rewards. Rec-
`ord, Doc. 13, pp. 7–8 (Desmond decl.). Second, King
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`THOMAS, J., dissenting
`County considered the ad “demeaning and disparaging” to
`minorities “by equating their dress and skin color with
`terrorists” and by misusing the term “jihadi.” Id., at 8.
`Third, King County believed that the ad could “interfere
`with operation of the Metro transit system” because the ad
`could alienate riders and discomfort staff. Id., at 9.
` AFDI sued, but the District Court rejected AFDI’s First
`Amendment challenge. It reasoned that the transit sys-
`tem’s advertising space was a limited public forum, and
`that King County’s restrictions were reasonable and view-
`point neutral. 2014 WL 345245, at *4–*7. The Ninth
`Circuit affirmed. It agreed that King County’s transit ad
`space was a limited public forum, and considered the
`rejection of AFDI’s ad as “false or misleading” to be rea-
`sonable and viewpoint neutral. 796 F. 3d 1165, 1168–1172
`(2015). It did not reach King County’s other rationales.
`Ibid.
`
`II
` In the large portions of this country encompassed by the
`Second, Sixth, Seventh, and D. C. Circuits, AFDI’s ad
`would likely have met a different fate. In those Circuits,
`accepting a wide array of political and issue-related ads
`demonstrates that the government intended to create a
`designated (rather than limited) public forum because
`“political advertisements . . . [are] the hallmark of a public
`forum.” AFDI v. Suburban Mobility Auth. for Regional
`Transp., 698 F. 3d 885, 890 (CA6 2012).* In those Cir-
`——————
`* Accord, New York Magazine v. Metropolitan Transp. Auth., 136
`F. 3d 123, 130 (CA2 1998) (“[T]he advertising space on the outside of
`[transit] buses is a designated public forum, because the [authority]
`accepts both political and commercial advertising”); Lebron v. Washing-
`ton Metropolitan Area Transit Auth., 749 F. 2d 893, 896, and n. 6
`(CADC 1984) (“[T]he Authority here, by accepting political advertising,
`has made its subway stations into public fora”); Air Line Pilots Assn.
`Int’l v. Department of Aviation of Chicago, 45 F. 3d 1144, 1152–1154,
`and n. 7 (CA7 1995) (focusing on “whether or to what extent ‘political’
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`AMERICAN FREEDOM DEFENSE INITIATIVE v.
`KING COUNTY
`THOMAS, J., dissenting
`cuits, transit authorities that open their ad spaces to
`political messages must provide compelling justifications
`for restricting ads, and must narrowly tailor any re-
`strictions to those justifications.
` In the First and Ninth Circuits, however, transit au-
`thorities have far more leeway to restrict speech. There,
`“a transit agency’s decision to allow the display of contro-
`versial advertising does not in and of itself establish a
`designated public forum.” AFDI v. Massachusetts Bay
`Transp. Auth., 781 F. 3d 571, 580 (CA1 2015); see Sea-
`MAC, 781 F. 3d, at 498–499 (similar); see also 796 F. 3d,
`at 1168 (decision below, relying on SeaMAC). As the
`Ninth Circuit acknowledged, this approach conflicts with
`the approaches of “other courts [that] have held that simi-
`lar transit advertising programs constitute designated
`public forums.” SeaMAC, supra, at 498–499. Materially
`similar public transit advertising programs should not
`face such different First Amendment constraints based on
`geographical happenstance.
` This case would allow us to resolve that division. King
`County’s advertising restrictions cannot pass muster if the
`transit advertising space is a designated public forum.
`King County bans ads that it deems “false or misleading,”
`but this Court considers broad, content-based restrictions
`on false statements in political messages to be generally
`impermissible. See United States v. Alvarez, 567 U. S.
`___, ___–___ (2012) (plurality opinion) (slip op., at 5–6); see
`id., at ___–___ (BREYER, J., concurring in judgment) (slip
`op., at 8–10). King County’s prohibitions on “demeaning
`and disparaging” ads, or ads that could disrupt the transit
`system by alienating riders, are also problematic content-
`based restrictions. King County may wish to protect
`——————
`advertisements have been permitted in the past”); Planned Parenthood
`Assn./Chicago Area v. Chicago Transit Auth., 767 F. 2d 1225, 1232
`(CA7 1985) (similar).
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`Cite as: 577 U. S. ____ (2016)
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`THOMAS, J., dissenting
`captive riders’ sensibilities, but “ ‘we are often “captives”
`outside the sanctuary of the home and subject to objec-
`tionable speech.’ ” Cohen v. California, 403 U. S. 15, 21
`(1971). The government cannot automatically “shut off
`discourse solely to protect others from hearing it.” Ibid.
` To be sure, this case involves speech that some may
`consider offensive, on a politically charged subject. That is
`all the more reason to grant review. “[A] principal func-
`tion of free speech . . . is to invite dispute. It may indeed
`best serve its high purpose when it induces a condition of
`unrest, creates dissatisfaction with conditions as they are,
`or even stirs people to anger.” Texas v. Johnson, 491 U. S.
`397, 408–409 (1989) (internal quotation marks omitted).
` Many of the Court’s landmark First Amendment deci-
`sions have involved contentious speech in times of na-
`tional turmoil. When some States branded the civil rights
`movement a threat to public order, the Court decided
`whether protesters against segregation could be punished
`for purportedly disrupting the peace. E.g., Cox v. Louisi-
`ana, 379 U. S. 536, 537–538 (1965). When the Nation was
`divided over the Vietnam War, the Court decided whether
`the First Amendment prohibits the Government from
`prosecuting a man for wearing a “ ‘ “F— the Draft” ’ ” jacket
`in a courthouse, Cohen, supra, at 16, and whether a public
`school could punish students who wear black armbands as
`symbols of antiwar protest, Tinker v. Des Moines Inde-
`pendent Community School Dist., 393 U. S. 503, 504
`(1969). More recently, we have decided whether protest-
`ers can brandish signs proclaiming “ ‘God Hates Fags’ ”
`and “ ‘God Hates the USA/Thank God for 9/11’ ” outside a
`soldier’s funeral, Snyder v. Phelps, 562 U. S. 443, 447–448
`(2011); whether the First Amendment protects videos that
`depict women crushing small animals to death to satisfy
`viewers’ sexual fetishes, United States v. Stevens, 559
`U. S. 460, 464–466 (2010); and whether States can reject
`Confederate-flag license plates, Walker v. Texas Div., Sons
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`AMERICAN FREEDOM DEFENSE INITIATIVE v.
`KING COUNTY
`THOMAS, J., dissenting
`of Confederate Veterans, Inc., 576 U. S. ___, ___ (2015)
`(slip op., at 1).
` I see no sound reason to shy away from this First
`Amendment case. It raises an important constitutional
`question on which there is an acknowledged and well-
`developed division among the Courts of Appeals. One of
`this Court’s most basic functions is to resolve this kind
`of question. I respectfully dissent from the denial of
`certiorari.
`
`
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`Cite as: 577 U. S. ____ (2016)
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`THOMAS, J., dissenting
`Appendix to THOMAS, J., dissenting
`APPENDIX
`
`
`9
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`
`The top image is the State Department’s “Faces of Global Terrorism”
`advertisement, which King County approved and allowed to run on its
`buses. The bottom image is AFDI’s “Faces of Global Terrorism” adver-
`tisement, which King County rejected.