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Free Speech Means Protecting Controversial Speech

A vibrant democratic society prizes freedom of speech. Its government does not try to protect the public from messages that some people find offensive or disturbing.  President Obama asserted this principle before the United Nations General Assembly saying, "…in a diverse society, efforts to restrict speech can quickly become a tool to silence critics and oppress minorities.”

Another timely reminder comes from a federal judge in New York City who ruled this summer that the transportation authority had violated the free speech rights of a pro-Israel group by refusing to run a bus ad. The ad read, “In any war between the civilized man and the savage, support the civilized man.” A tag line appearing between two Stars of David says: “Support Israel. Defeat Jihad.”  It sounds like the flip side of the coin in Washington where anti-Israel ads were banned.

While the NY transportation authority said the ad violated its ban on ads that are demeaning on the basis of race, color, religion, national origin, ancestry, gender, age, disability or sexual orientation, Judge Paul Engelmayer ruled that a “no-demeaning” standard is inconsistent with the First Amendment.  The judge noted that in expressing a perspective on the Israeli/Palestinian conflict and taking a stance on U.S. foreign policy, the ad is “not only protected speech – it is core political speech” and is “afforded the highest level of protection under the First Amendment.”

Here in Washington State, a similar case is underway. On Wednesday, October 3, ACLU-WA will present oral arguments to the 9th U.S. Circuit Court of Appeals sitting in Spokane to uphold the speech rights of the Seattle Mideast Awareness Campaign (SeaMAC), an organization opposed to the U.S. stance on the Israel-Palestine conflict.

In October 2010, SeaMAC submitted an ad for the outside of King County Metro buses, with its text reading “Israeli War Crimes: Your Tax Dollars at Work.”  The ad was approved under King County’s policy for bus ads, and SeaMAC signed a contract to run the ad and paid for it.

King County had previously published a variety of bus ads containing advocacy ads, including ads related to the conflict between Israelis and Palestinians. However, the prospect of SeaMAC’s ad generated strong opposition, including some vague threats.  In December 2010, King County officials announced they were cancelling the contract to run the ad, citing security concerns and possible service disruptions. The county also announced that its existing advertising policy would no longer be in effect and it would implement a new policy.

Certainly, security concerns are important in King County, and at least as important in New York City. Nevertheless, the controversial ads ran there.

As Americans, we really need to practice what we preach. We can’t let government suppress speech even though some of us hate it. We can’t support free speech abroad and not at home.  In New York, a federal judge confirmed that basic American principle. It will be interesting to learn whether the 9th Circuit Court of Appeals shares that view.  Will the court allow people to be silenced because of vague concerns that someone might do something?

Oral arguments for this case are open to the public and will be held on Oct. 3 at Gonzaga University School of Law, Barbieri Courtroom, 721 N. Cincinnati St. in Spokane, beginning at 1:00 pm. Check with the law school for details about attending  the hearing.


Similar Case in Michigan

The ACLU of Michigan is representing an anti-Zionist plaintiff in a similar bus advertising case in the 6th Circuit.

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