A changed Supreme Court on Monday let stand the Seattle-area transit agency’s rejection of a controversial ad that some had called anti-Muslim.
Over the dissents of two conservative justices, the court declined to hear a challenge from the ad’s sponsors at the American Freedom Defense Initiative. The decision upheld lower courts that had sided with Washington’s King County, while also hinting at another impact from the death last month of Justice Antonin Scalia.
“This case involves speech that some may consider offensive, on a politically charged subject,”’ Justice Clarence Thomas noted in a dissent. “That is all the more reason to grant review.”
Justice Samuel Alito agreed. It takes four justices, though, for the court to grant a petition and hear a case. An intriguing but unanswerable question is whether Scalia, who was forceful both as a conservative and as a free-speech advocate, would have swayed enough colleagues to hear the case.
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.
Supreme Court Justice Clarence Thomas
Underscoring the case’s potential heat, the written dissent from Thomas and Alito was the only one of its kind out of the 150-plus other petititions rejected Monday. The court’s majority, following standard practice, did not issue written explanations for the rejections.
“I see no sound reason to shy away from this First Amendment case,” Thomas wrote. “It raises an important constitutional question on which there is an acknowledged and well-developed decision among the courts of appeal.”
The rejected ad, headlined “Faces of Global Terrorism,” displayed 16 photographs of wanted terrorism suspects. All had “Muslim-sounding names,” critics subsequently reported.
“AFDI wants you to stop a terrorist,” the proposed advertisement said. “The FBI is offering up to $25 million reward if you help capture one of these jihadis.”
The American Freedom Defense Initiative says on its website that it “acts against the treason being committed by national, state and local government officials, the mainstream media and others in their capitulation to the global jihad and Islamic supremacism,” among other goals.
The privately sponsored ad, in turn, resembled one previously prepared as part of a State Department and FBI campaign that included rewards for information. The State Department yanked these ads from the exteriors of buses in 2013 following complaints from Rep. Jim McDermott, D-Seattle, and others.
King County Metro Transit officials, though they had accepted the federal government’s ad for use on the region’s Metro transit system, concluded that the similar-seeming privately funded ads demeaned minorities “by equating their dress and skin color with terrorists.”
The county’s transit advertising policy spells out certain prohibited categories, which include “demeaning or disparaging” or false statements as well as those that are “harmful or disruptive to the transit system.”
“In order to protect Metro’s proprietary interest in providing a high-quality transit experience, advertisers must engage in civil and respectful discourse appropriate to the environment and community standards,” King County attorneys said in a brief.
A trial judge and the 9th U.S. Circuit Court of Appeals sided with King County, citing in part inaccurate assertions in the ad.