                  Cite as: 577 U. S. ____ (2016)          1

                     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,
2       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
                 Cite as: 577 U. S. ____ (2016)            3

                    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
4       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’
6        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).
                 Cite as: 577 U. S. ____ (2016)            7

                    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
8      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.
                   Cite as: 577 U. S. ____ (2016)                 9

                      THOMAS
                 Appendix     , J., dissenting
                          to THOMAS   , J., dissenting

                           APPENDIX




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.
