The U.S. Supreme Court denied certiorari in the case of American Freedom Defense Initiative v. King County, 577 U.S. ____ (2016), meaning that there were not four justices who agreed to review the case.  Although the Court does not have to offer justifications for such decisions, it may have wanted to wait until a replacement was named for Justice Antonin Scalia. Justice Clarence Thomas, however, dissented from this denial and was joined by Justice Samuel Alito.

The case arose from Seattle, Washington, and involved advertising on the public transit system, which serves hundreds of thousands of riders. The system sells advertising subject to preapproval. Although it has accepted advertisements from a variety of political perspectives, it encountered criticism when it ran an advertisement from the State Department and the Federal Bureau of Investigation that posted pictures of 16 wanted international terrorists, many of Middle Eastern descent, and offered a reward for their capture. After the State Department voluntarily withdrew the ads, the American Freedom Defense Initiative (AFDI) attempted to place similar ads, which the county rejected as false or misleading, demeaning, and possibly discomfiting. The district court rejected this suit on the basis that the space was a “limited public forum” and that the system’s restrictions “reasonable and view-point neutral,” and the 9th U.S. Circuit Court of Appeals affirmed.

In arguing that the Supreme Court should have taken the case, Justice Thomas observed that the 2nd, 6th, 7th, and D.C. Circuits had all ruled in similar situations that such advertising spaces were “designated” rather than “limited” public forums and that the government would accordingly have to provide “compelling” justifications for suppressing ads that were “narrowly tailored” to this end. By contrast, the 1st and 9th Circuits had concluded that they were limited public forums where the government only needed to show that its restrictions were reasonable and viewpoint neutral (a lesser standard). Thomas accordingly thought it would be appropriate for the Supreme Court to resolve such difficulties. He observed that if the public forum doctrine were applied, as he seemed to believe that it should be, then Seattle’s regulations were likely unconstitutional.

Acknowledging that the speech at issue was contentious, Thomas said that the Court had upheld similar examples of such speech in cases involving civil rights, opposition to the Civil War, protests against gays, videos involving cruelty to animals, and Confederate license plates.

Send Feedback on this article