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9th Circuit Hears Fight for Anti-Israel Bus Ads

SPOKANE, Wash. (CN) - Activists told the 9th Circuit that Seattle gave into a "heckler veto" by removing advertisements that criticized Israel's military policies.

In October 2010, the nonprofit Seattle Mideast Awareness Campaign proposed advertisements that would run on the city's Metro buses to commemorate the two-year anniversary of Israel's military campaign in Gaza. The proposed ad showed a picture of children next to a bombed-out building with the text "Israeli War Crimes: Your Tax Dollars at Work."

The King County Department of Transportation approved the ad, which was set to run on 12 buses for four weeks between December 2010 and January 2011.

But reports on the ads that ran in local media 10 days before the campaign launched caused a number of negative phone calls and emails to inundate the county.

Officials said eight of the messages either suggested threats to vandalize buses or act violently, and 20 messages expressed concern for rider safety.

"I am a law-abiding citizen that would have no qualms defacing the message if given the opportunity," one such message said, according to King County.

Another allegedly said: "You want WAR against the Jewish people??? YOU GOT IT!"

With a week to go before the ads would run, two other groups submitted pro-Israel campaigns. One of the ads showed a burning bus with the text "Palestinian War Crimes - Your Tax Dollars at Work," and another showed Muslim people with Nazi flags.

Amid uproar on both sides, King County Executive Dow Constantine banned both the original ads and counter-ads, saying "service disruptions, civil disobedience, and lawless and violent actions had become reasonably foreseeable."

The Seattle Mideast Awareness Campaign failed to get an injunction, and U.S. District Judge Richard Jones granted the county summary judgment in October 2011.

"The court concludes that King County's decision to reject the SeaMAC advertisement was a viewpoint-neutral and reasonable restriction in a limited public forum," he wrote.

On appeal, SeaMAC said its claims for damages and equitable relief are still in dispute, though King County no longer accepts advocacy ads on its bus system.

Its attorney, Venkat Balasubramani, said King County gave into a "heckler's veto" and that the county did not have a viewpoint-neutral basis for refusing the ads.

Sitting on a three-judge panel for the appeal, Judge Paul Watford posed a hypothetical scenario in which the ads had provoked a violent response from the public, and buses were being "attacked left and right."

The judge asked if the county would be free to pull the ads after an attack had occurred. Balasubramani responded that it is not viewpoint-neutral to tie audience reaction to the decision.

"Whether the concern is from bus drivers or from the government fearing disruption, it's still tied to audience reaction from people who oppose the message," Balasubramani said.

But Watford pressed on that it would be viewpoint-neutral to remove an ad, regardless of its message, if there was a legitimate threat to disrupt bus services.

"The only evidence I see that this is a mere pretext for viewpoint discrimination is that they wouldn't run the counter-ads," Judge Watford said. "And that seems to me, if anything, that this truly was viewpoint-neutral."

Balasubramani said King County officials might not have actually viewed the bus ad as a threat, but were more concerned about not offending people.

King County's attorney, Endel Kolde, compared First Amendment cases to archaeology, where "context is everything."

Chief Judge Alex Kozinski interrupted Kolde to pose a hypothetical scenario involving a controversial political rally planned in Seattle. At this event, people from around the country would come to oppose the message.

He asked if the county could deny a permit for that rally because it would be too expensive for the city to manage.

Kolde said a sidewalk or public park is a traditional public forum, while a bus is a limited public forum held to a different standard.

The attorney struggled, however, to explain why a bus is not a designated public forum.

Judge Morgan Christen told Kolde that "a subjective mushy policy [based on] whatever offends people is no policy at all."

Kozinski noted that, unlike an ad depicting an aborted fetus that would "make people retch when they see it," people objected to the message of SeaMAC's ad, which "strikes at the core of the First Amendment."

Kolde urged the court to view the issue in context and said the ad "targeted a group in a manner intended to be offensive and incendiary."

Accusing Israel of war crimes invokes the Holocaust because the term "war crimes" in a judicial context was widely used after the Nuremburg Trials, Kolde argued.

"Using this type of terminology with respect to Israel or Israelis was calculated to provoke a strong response," the attorney said.

Judge Christen said that argument made her agree with SeaMAC's contention that King County gave into a "heckler's veto" because officials were worried about upsetting people.

"A whole lot of transit authorities have objective rules for no non-commercial speech," Christen said. "That's not the policy adopted by Metro."

In comparing SeaMAC ads to other ads that King County had previously rejected, Kolde emphasized that others in the group had provoked actual threats of violence.

Citing Occupy Wall Street, Kozinski mentioned the ease in which people can use the Internet to mobilize "large groups of people to do fairly disruptive things."

Christen added that the Internet "makes the heckler's veto on steroids so easy."

Kozinski became snippy as Kolde said that people did not want to be subjected to the ads on the bus.

"They don't allow iPads on buses in Seattle?" he asked. "They don't allow newspapers? Books? Chatting with the person next to you? They have to stare at the ads?"

Kolde said it is reasonable to be concerned that a government or a bus passenger may be viewed as endorsing a type of speech.

In his one-minute rebuttal, SeaMAC attorney Balasubramani said: "There is still a core factual dispute in this case about the level of disruption."

He noted that King County officials had never viewed the response to the ad as a terrorist threat of any kind, and said the trial court should have evaluated what kinds of threats would justify pulling the ad.

"There's not even a dispute that it was some kind of localized threat at best, or threats from some far-flung Internet hecklers who couldn't have even come to King County to do anything," Balasubramani said.

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