The primary purpose of municipal buses is to transport passengers, not to serve as billboards on wheels. But if a transit agency decides to allow issue advertising on its vehicles, it shouldn't be able to pick and choose on the basis of the subject matter. That's what Seattle's transit system did when it canceled ads that criticized U.S. support for “Israeli war crimes.” Now a federal appeals court wrongly has ratified that decision.
In 2010, the Seattle Mideast Awareness Campaign submitted an ad to run on King County Metro buses that read “Israeli War Crimes: Your Tax Dollars at Work.” The ad was accepted, but before it could be displayed protesters alerted by a TV report flooded the agency with emails, some threatening vandalism or violence. One message warned that “Jews would take physical action” to prevent the ads from being posted.
Meanwhile, pro-Israel groups submitted their own ads, which referred to “Palestinian war crimes” and included depictions of a burning bus and bloody passengers. At that point, the county executive decided to bar any ads relating to the Israeli-Palestinian conflict, concluding that it was reasonably foreseeable that they would lead to “harm to, disruption of, or interference with the transportation system.”
That decision was upheld this week by a 2-1 decision of the U.S. 9th Circuit Court of Appeals. Writing for the panel, Judge Paul J. Watford said that the transit agency's decision to bar any ads relating to the Arab-Israeli conflict was acceptable under the 1st Amendment because it was “viewpoint neutral.”
Yet, as Watford conceded, other courts in similar cases have ruled that when a transit agency allows advertisements it must adhere to a more protective “content neutral” policy. Under a content neutral policy, a city that banned ads about Israel (pro or con) would likewise have to ban ads about Russia, Iran or the federal budget. Permitting cities to exclude messages about a particular topic would mean that those who care deeply about “acceptable” subjects have an unfair advantage in the marketplace of ideas.
The other troubling aspect of the decision is that it gives what lawyers call a “heckler's veto” to shadowy protesters. In a dissent, Judge Morgan Christen said that the majority “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.” Christen said the 9th Circuit should have sent the case back to the trial court to determine whether safety concerns supported the county's action.
A transit agency isn't required by the Constitution to sell advertising to proponents of various causes. (A Los Angeles County Metropolitan Transportation Authority spokesman suggested that ads about Israel would run afoul of its rules against “messages that are political in nature.”) But once an agency decides to turn its buses into public forums, the 1st Amendment prevents it from declaring an entire subject off-limits because it wants to avoid controversy. The 9th Circuit got this one wrong.