Public transit is enough of an adventure already.

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A Little Too Much Free Speech on the Crosstown Bus

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Can the government limit nasty political ads on public buses? Great question. Just not one the Supreme Court will be answering this year.

On Monday the justices refused to address it in a case arising from ads considered Islamophobic by the Seattle public transit authority. Justice Clarence Thomas, joined by Justice Samuel Alito, dissented from the court's refusal to hear the case. His reasoning -- and the implicit logic behind the denial of certiorari by the court -- sheds light on a truly fascinating and important problem in free-speech law.

King County Metro Transit allows political ads on its buses. But it reserves the right to review the ads before posting them, and to reject ads that it considers “false or misleading,” “demeaning and disparaging,” or a “risk to the orderly operation of the transit system.” In 2013, Metro approved an ad produced and paid for by the U.S. State Department depicting 16 wanted terrorists. The ad read, in part: “Stop a Terrorist. Save Lives. Up to $25 Million Reward.”

Shortly thereafter, a private group, the American Freedom Defense Initiative, submitted an ad that copied the images from the State Department ad but stated that “The FBI Is Offering Up To $25 Million Reward If You Help Capture One Of These Jihadis.”

Metro turned this one down.

It said the ad was false because the State Department, not the FBI, was offering the reward, and because there actually wasn't a $25 million award for any of the terrorists pictured.

Metro also said that the ad demeaned Arabs or Muslims “by equating their dress and skin color with terrorists” and misusing the term “jihadi,” and that it might alienate riders and upset staff.

The American Freedom Defense Initiative sued -- and here's where the law gets interesting. If you speak in what the courts consider a traditional public forum, like a public park, then any restriction on your content will be scrutinized strictly by the courts. In practice, that means any restriction will almost always be struck down as violating your free-speech rights.

If the government takes a space that hasn't traditionally been a public forum, but designates it for public speech, the same strict scrutiny applies. Such a space is referred to as a “designated public forum.” The lawsuit argued that Metro’s buses had been so designated.

But the Supreme Court recognizes yet a third category of public forum, known as a limited public forum. A limited public forum exists when the government has designated a forum that is “limited to use by certain groups or dedicated solely to the discussion of certain subjects.”

In such a limited public forum, the rules are different. There, the government may restrict speech by content so long as it doesn't discriminate based on the viewpoint of the speech. Thus, for example, a public transport system couldn't accept only ads promoting Republicans or only ads promoting Democrats. But it could choose not to display political ads at all -- or it could restrict political ads to those that are true and not demeaning.

Metro argued that ads on its public buses are a limited public forum, not a designated public forum. The U.S. Court of Appeals for the Ninth Circuit agreed. By denying cert and refusing to take the case, the Supreme Court left that judgment intact.

But as Thomas pointed out, there’s a strange patchwork of practices around the country with respect to what the courts of appeal consider to count as a limited public forum. Public buses in New York City, Philadelphia and Chicago, for example, have all been held to be designated public forums in which all political speech must be permitted. The Boston-area MBTA, however, has been held to have established only a limited public forum.

The justices generally agree to take a case when there's a split among the circuit courts of appeal. So why weren’t at least four justices prepared to take the Seattle case?

The court doesn't have to explain its reasons for denying cert. In this case, there’s a plausible technical excuse, namely that each transit authority has slightly different rules. As a result, the determination of what counts as a designated public forum and what as a limited public forum is fact-specific, meaning the varying opinions from the circuit courts of appeal may not actually conflict.

The court doesn't like to take cases that turn on fact-specific determinations. In the lingo of the law-clerk memoranda that are written to help the justices decide what cases to take, such cases are known as “fact-bound.” The court’s idea is that it's hard to set a general precedent in a fact-bound case.

Arguably, the public transit cases are fact-bound. But Thomas is onto something. His dissent points out that it makes little sense for different transit authorities across the country to be bound by different rules. That leads to a profusion of litigation, which in turn makes free speech look like a patchwork quilt rather than a uniform national standard.

The unspoken reason the justices may not want to take a public-transit case is that free-speech doctrine is becoming worrisomely absolute.   If they took the case, the justices might well end up holding that all public buses count as designated public forums -- meaning transit authorities would have to allow no advertising or almost any advertising. And let's be candid here: On a crowded bus at 7 a.m. on a Monday, does anyone really want to face that much free speech? I didn't think so.

  1. I know, I know: Your tax dollars paid for this?

  2. The big number is reserved for Ayman al-Zawahiri, now that bin Laden is dead.

  3. In last year’s Texas license plate case, the court had to say that the license plates were actually government speech -- a doubtful decision given the explicit branding. Thomas provided a fifth vote for the liberals, in my view because he didn't like the Confederate battle flag appearing on a license plate.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Philip Gray at philipgray@bloomberg.net