Antitrust Law Daily Wrap Up, ADVERTISING—9th Cir.: Exclusion of anti-Israel ad from buses did not violate First Amendment rights, (Mar 20, 2015)

By Greg Hammond, J.D.

King County, Washington did not violate Seattle Mideast Awareness Campaign’s First Amendment rights when it withdrew approval of the non-profit organization’s advertisement concerning the funding of Israeli war crimes. In affirming the lower court’s order granting summary judgment in favor of King County, the U.S. Court of Appeals in Pasadena, California determined that the County created a limited public forum when it opened the sides of Metro buses to advertising from outside speakers, and that the County’s decision to reject the ad was reasonable and viewpoint neutral (Seattle Mideast Awareness Campaign v. King County, March 18, 2015, Watford, P.).

Background. King County initially approved Seattle Mideast Awareness Campaign’s (SMAC) advertisement, which stated, “ISREALI WAR CRIMES YOUR TAX DOLLARS AT WORK www.Stop30Billion-Seattle.org.” After a local television station broadcast a news story about the ad’s approval, however, there was a hostile response, including anger, threats, and photographs depicting dead or injured bus passengers and damaged buses. Two pro-Israel groups subsequently submitted their own ads that were similarly controversial. The County withdrew its approval of SMAC’s ad and, at the same time, rejected the two pro-Israel ads, explaining that the “context had changed dramatically” and that all of the ads on the Israeli-Palestinian conflict were non-compliant with the “civility clauses” of the County’s policy restricting advertising content.

The district court granted the County’s motion for summary judgment, and SMAC timely appealed.

Limited public forum. The court agreed that the County intended to create a limited forum, because: (1) the County adopted a formal policy requiring everyone seeking access to Metro's bus advertising program to obtain permission through a pre-screening process, and the County established fixed guidelines imposing categorical subject-matter limitations; (2) the County’s implementation of the policy confirmed its intent to grant only selective access, as it pre-screened all proposed ads and consistently rejected ads that were non-compliant; and (3) the principal purpose of the bus advertising program was to generate revenue for the bus system, so the expressive activities the city allowed were “incidental” to the provision of public transportation.

Reasonable, viewpoint neutral. Because the advertising program was deemed a limited public forum, the court was required to determine whether the County’s application of the “civility clauses” was reasonable and viewpoint neutral. Section 6.4(D) of the policy essentially excludes any speech that will foreseeably result in harm to, disruption of, or interference with the transportation system. The court agreed that the threat of disruption in this case, including vandalism, violence, reduced ridership, and substantial resource diversion, was real rather than speculative. Consequently, the County’s decision to reject SMAC’s ad was reasonable, given the serious threat of disruption running the ad would have posed.

The court also concluded that no reasonable jury could find that SMAC’s ad was rejected because County officials opposed SMAC’s views on the Israeli-Palestinian conflict. Specifically, the County’s decision to reject SMAC’s ad, along with all other Israeli-Palestinian conflict ads, negated any reasonable inference of viewpoint discrimination.

Dissent. Justice Christen dissented, finding that King County’s policy and practice demonstrated an intent to create a designated public forum, not a limited public forum, on its Metro bus exteriors. Consequently, to Christen, the First Amendment requires that the County’s decision to restrict SMAC’s speech must be necessary to serve a compelling state interest and must be narrowly drawn. The case should therefore have been remanded for the lower court to determine whether genuine issues of material fact exist under strict scrutiny, according to Christen’s dissent.

The case number is 11-35914.

Attorneys: Venkat Balasubramani (Focal PLLC), Jeffrey C. Grant (Skellenger Bender, P.S.), and Sarah A. Dunne (ACLU of Washington Foundation) for Seattle Mideast Awareness Campaign. Endel R. Kolde, King County Prosecutor’s Office, for King County, Washington.

Companies: Seattle Mideast Awareness Campaign

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