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9th Cir. Breaks With Others, Allows Ban in Anti-Israel Ad Case

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By Casey C. Sullivan, Esq. on March 23, 2015 12:55 PM

Seattle's prohibition of bus-side advertisements criticizing funding of the Israeli military doesn't violate the advertisers' free speech, the Ninth Circuit ruled last Wednesday. The ads, sponsored by the Seattle Mideast Awareness Campaign, had originally been accepted by the bus authority, but were rejected after public controversy. The ads were to read "Israeli War Crimes -- Your Tax Dollars at Work."

The Ninth Circuit's finding that the bus program was a limited public forum breaks from rulings in other courts. The Sixth, Third, Second, Seventh and D.C. Circuits have all found similar transit advertising programs to be designated public forums, with significantly strong free speech rights.

Bus Advertising Programs A Limited Public Forum

The bus authority, King County's Metro bus system, claimed running the ads would likely result in vandalism and violence, disrupting the bus system. SeaMAC argued that it had a First Amendment right to use the buses to promote its message, an argument rejected by the Ninth Circuit.

The Ninth Circuit based its logic on the First Amendment public forum doctrine. It found, unsurprisingly, that the bus advertising programs were not a "traditional public forum," open to free communication and debate. Neither were they designated forums, generally available for public use. Rather, they are a limited forum, subject to government regulations, including categorical subject-matter restrictions.

The court's conclusion stands in sharp contrast with the holdings of five other circuits. The court argued that, should municipalities be required to accept "virtually all political speech," they would simply not allow any political speech whatsoever. The persistence of transit advertising in the five circuits which have required greater speech access may undermine the court's reasoning, however.

No Arbitrary or Discriminatory Restrictions

The government may regulate the subject matter of speech in limited public forums only for reasonable and viewpoint neutral reasons. The standards used to exclude speech must be definite and objective. King County rejected the ads on the basis that they were "objectionable under contemporary community standards" and likely to result in harm, disruption or interference with the transit system. Though prohibiting violating community standards alone would be unconstitutionally vague, the court found that relying on reasonably foreseeable disruption was a clear, reasonable and non-discriminatory standard.

SeaMac, which had been represented by the ACLU of Washington, has not announced whether it will appeal the decision.

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