Ninth Circuit Upholds Rejection of Anti-Israel Ad on Metro Bus

Steven D. Schwinn, John Marshall Law School

The Ninth Circuit this week upheld a county's decision to reject an ad critical of Israel (and U.S. support for Israel) on the side of a Metro bus against a First Amendment challenge. The ruling says that the bus side is a limited public forum, subject to a lower level of scrutiny--a holding at odds with holdings in other circuits in similar cases--and concluded that the county's rejection of the ad met that lower standard.

We posted just last week on SEPTA's (Southeastern Pennsylvania) rejection of an anti-Muslim ad--and a district judge's ruling that the rejection violated the First Amendment. Here's our post on a federal case out of New York going the same way; and here's our post on the Sixth Circuit, moving in the opposite direction.

King County, Washington, which runs Metro's bus advertising program through a contract with a private company, has a policy that prohibits ads with certain content (ads for alcohol and tobacco, adult movies, video games for mature audiences, and the like). The policy also has two catch-all "civility clauses" that prohibit material that would foreseebly result in disruption of the transportation system or incite a response that threatens public safety.

SeaMAC, a non-profit opposed to U.S. support for Israel, proposed a Metro ad that read:

ISRAELI WAR CRIMES

YOUR TAX DOLLARS AT WORK

www.Stop30Billion-Seattle.org

The county initially approved the ad. But a local television report on the ad provoked a massive hostile, even threatening, response, which overwhelmed the Metro call center and employees' e-mails and caused many customers to express safety concerns.

Soon after the story ran, but before Metro ran SeaMAC's ad, two pro-Israeli groups submitted their own ads:

PALESTINIAN WAR CRIMES

YOUR TAX DOLLARS AT WORK

And (with a picture of Hitler):

IN ANY WAR BETWEEN THE CIVILIZED MAN AND THE SAVAGE,

SUPPORT THE CIVILIZED MAN

Given the hostile reaction to SeaMAC's ad, the county rejected both groups' ads under one of the civility clauses, and SeaMAC sued.

The Ninth Circuit ruled that the side of Metro buses was a limited public forum (not a public forum or designated public forum), based on the pre-screening process for ads, the county's prior implementation (it had not categorically accepted ads, and it had rejected some), and the nature of the side of a bus (the purpose of which was to raise revenue through ad sales).

The court recognized that this put it at odds with other circuits that have held that bus sides were a designated public forum (subject to strict scrutiny). But it said that those courts made a mistake:

Some of those courts, in our view, mistakenly concluded that if the government opens a forum and is willing to accept political speech, it has necessarily signaled an intent to create a designated public forum. Neither the First Amendment nor the Supreme Court's public forum precedent impose that categorical rule.

The court went on to rule that the county's decision was reasonable and viewpoint neutral, and therefore valid.

The dissent argued that the sides of Metro's buses were a designated public forum, subject to strict scrutiny, that the civility clause gave the county too much discretion, and that the county's decision (in light of the hostile reaction to SeaMAC's ad) raised heckler veto problems. The dissent would have remanded the case for determination whether the county's decision satisfied strict scrutiny.