A federal appeals court decided 2-1 Wednesday that a transit agency in the Seattle metropolitan area did not violate free speech rights by refusing to accept an anti-Israel advertisement.
The U.S. 9th Circuit Court of Appeals upheld a district judge’s decision in favor of the King County
"ISRAELI WAR CRIMES," read the ad, submitted in late 2010 by a group called the Seattle Mideast Awareness Campaign. "YOUR TAX DOLLARS AT WORK."
News of the county's approval provoked an uproar. Critics swamped the transit agency's call center with angry emails. Some of the protesters threatened to vandalize or disrupt service if the ad was carried. Others said they feared that the controversy would make the buses unsafe. The controversy attracted international attention.
Two pro-Israeli groups then decided to submit their own ads, which carried images of bloodied bus passengers and a burning bus.
"IN ANY WAR BETWEEN THE CIVILIZED MAN AND THE SAVAGE, SUPPORT THE CIVILIZED MAN," one of the pro-Israel ads said.
Photographs of dead and injured bus passengers were left under the door of the Metro Customer Service Center. Scrawled across the pictures, there was a message: "NO TO BUS ADS FOR MUSLIM TERRORISTS."
In revoking approval for the anti-Israel ads, the county decided that no advertising related to the Israeli-Palestinian conflict would be permitted. The anti-Israel group challenged the decision as a violation of freedom of speech.
Judge Paul J. Watford, writing for the 9th Circuit, said the county officials genuinely feared that public safety was at risk.
"Municipalities faced with the prospect of having to accept virtually all political speech if they accept any — regardless of the level of disruption caused — will simply close the forum to political speech altogether," said Watford, an Obama appointee.
The majority concluded that no reasonable jury would find discrimination because the county rejected all ads related to the controversy.
In a dissent, Judge Morgan Christen, also an Obama appointee, said the 9th Circuit should have sent the case back to the trial court to determine whether safety concerns justified the county's action.
"The court's opinion suggests the government may open and shut a forum, willy-nilly, in response to public uproar — a particularly dangerous precedent in light of modern technology," wrote Christen.
She said emails, text messages and tweets can generate impetuous responses that may be fleeting.
"Granting the government license to close a forum it previously made open in response to such outcry confers broad power on hecklers to stamp out protected speech they find objectionable," Christen said.