The U.S. Court of Appeals for the Ninth Circuit heard oral arguments in a lawsuit seeking to uphold a non-profit group’s free speech rights on public buses. The hearing is open to the public and is being held at Gonzaga University School of Law, Barbieri Courtroom, 721 N. Cincinnati St. in Spokane, beginning at 1:00 pm.
Represented by the ACLU of Washington, the Seattle Middle East Awareness Campaign (SeaMAC) is challenging King County’s cancellation of a paid bus ad expressing SeaMAC’s views on actions of the Israeli government regarding Palestinians. The lawsuit (SeaMAC v. King County) says that King County’s refusal to allow the ad on Metro buses violated the group’s First Amendment rights.
“In a free and democratic society, we cannot allow the government to suppress lawful speech,” said Kathleen Taylor, ACLU of Washington executive director. “We should keep in mind that mild speech doesn’t need protection. It is when we are faced with controversial speech, speech that is upsetting to some people, that support of the First Amendment is most important,” added Taylor.
The Seattle Mideast Awareness Campaign, a nonprofit grassroots organization that seeks to educate the public about U.S. policy on the Israel-Palestinian conflict, intended to place a paid advertisement on the outside of King County Metro buses. The ad’s text read “Israeli War Crimes: Your Tax Dollars at Work.”
SeaMAC submitted the ad in October, 2010 to Titan Outdoor LLC, the company that handles advertising on Metro buses. Titan informed SeaMAC a month later that the ad had been approved and accepted for placement on Metro buses. SeaMAC signed a contract to run the ad and paid Titan. The ad was scheduled to run on 12 Metro buses for four weeks.
King County had a long-established practice of publishing on its buses a wide variety and spectrum of ads containing non-commercial speech. For example, paid ads related to the conflict between Israelis and Palestinians in Gaza previously have run on Metro buses, as have ads with atheist messages. The SeaMAC ad was submitted and approved under King County’s written Advertising Policy concerning its practices and procedures of placing paid ads on buses.
The prospect of the ad generated an outpouring of strong opposition. On December 23, 2010, King County announced that the county now would not permit the ad to run. The county also announced that its existing Advertising Policy was no longer in effect and that it was immediately implementing a new interim policy. Later that day Titan formally notified SeaMAC that the previously accepted ad had been cancelled.
In January 2011, the ACLU of Washington filed suit on behalf of SeaMAC in U.S. District Court seeking a declaration that King County’s decision not to publish the ad violated the First Amendment and an order that the county publish the ad as originally promised. In October the district court granted a motion for summary judgment by the county and rejected the lawsuit. The dismissal is being appealed to the Ninth Circuit.
“The county acted improperly in cancelling the contract to run the ads. When government accepts paid ads to run on public buses, it cannot refuse to run an ad because it stirs controversy. The cancellation of SeaMAC’s ad amounted to censorship,” said ACLU-WA legal director Sarah Dunne.
Representing SeaMAC are ACLU-WA cooperating attorneys Venkat Balasubramani of Focal PLLC and Jeffrey Grant of Skellenger Bender, PS, and ACLU-WA staff attorneys Sarah Dunne and La Rond Baker.
In another case involving free speech rights on buses, a federal judge in New York City in July ruled 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.”
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.”