Thursday, March 19, 2015
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Ninth Circuit Upholds Agency’s Decision to Ban Anti-Israel Bus Ad
By KENNETH OFGANG, Staff Writer
The agency that runs public transit in the Seattle area did not violate the First Amendment when it banned an anti-Israel group from running an ad on the sides of buses, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
King County officials reasonably concluded that running the ad would place the buses at risk of vandalism and the drivers and passengers at risk of violence, Judge Paul Watford wrote for a divided panel, even though both the contractor who oversees the advertising program and the county had initially accepted the ad.
The court upheld a ruling by U.S. District Judge Richard Jones, who granted the county’s motion for summary judgment after concluding that the sides of buses on the Metro system are a “limited,” rather than a “designated” public forum, meaning that a more deferential standard is applied in reviewing a First Amendment challenge. Jones said the decision not to allow the ads was reasonable and viewpoint-neutral.
Public Firestorm
Jones based his ruling on evidence that the initial 2010 decision to allow the ads, sponsored by the Seattle Mideast Awareness Campaign and reading “ISRAELI WAR CRIMES YOUR TAX DOLLARS AT WORK,” provoked a firestorm of public reaction.
Photos depicting dead or injured bus passengers appeared under the door of a transportation authority service center, bus drivers told their union president they wouldn’t drive buses displaying the ads, a Jewish parent questioned whether a child wearing a yarmulke might be attacked while riding the bus home from school, and thousands of emails—many threatening violence—poured into a call center that used to receiving no more than 80 communications a day, according to evidence cited by the Ninth Circuit panel.
While Metro officials consulted with the sheriff and the U.S. attorney, both of whom voiced concerns about the ads, two pro-Israel groups proposed to run ads reading “PALESTINIAN WAR CRIMES YOUR TAX DOLLARS AT WORK” and “IN ANY WAR BETWEEN THE CIVILIZED MAN AND THE SAVAGE, SUPPORT THE CIVILIZED MAN. Support Israel, Defeat Islamic Jihad.”
The county eventually rejected all of the ads, and adopted a policy barring all viewpoint-related advertising.
Forum Analysis
Watford, writing for the Ninth Circuit, agreed with the district judge’s forum analysis, while acknowledging that several other circuits disagree. He also agreed with Jones’ analysis of the viewpoint-discrimination and reasonableness issues.
“Because the county simultaneously rejected all of the proposed ads on the Israeli-Palestinian conflict - from opposing viewpoints - no reasonable jury could find that it engaged in viewpoint discrimination,” Watford said. He was joined by Judge Alex Kozinski.
In dissent, Judge Morgan Christen argued that the sides of the buses were, and the county intended that they be, a designated forum, so the district judge should have applied strict scrutiny. The case should be sent back to the district court for further factfinding, she said.
“This is not to pre-judge the outcome of the case,” she elaborated. “The safety of public transit systems is of paramount importance, and it may be that credible threats created a compelling state interest. But it also may be that the County inappropriately bowed to a “heckler’s veto” and suppressed speech that should have been protected.”
The case is Seattle Mideast Awareness Campaign v. King County, 11-35914.
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