(CN) - Seattle activists barred from criticizing Israeli military policy on buses amid a wave of public backlash failed to secure a 9th Circuit reversal.
Seattle Mideast Awareness Campaign had proposed the advertisements to King County in October 2010, seeking 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."
Though King's Department of Transportation approved the ad, which was set to run on 12 buses for four weeks between December 2010 and January 2011, the county suffered backlash when reports on the ads ran in local media 10 days before the campaign.
Officials said eight complaints to the county suggested either 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, King County claimed.
Another allegedly said: "You want WAR against the Jewish people??? YOU GOT IT!"
The Metro Customer Service Center also received photos of the aftermath of terrorist attacks on buses with the names of county officials and "NO TO BUS ADS FOR MUSLIM TERRORISTS" scrawled on the photos.
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.
King County Executive Dow Constantine intervened then, banning 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 the county won summary judgment against the group's lawsuit in October 2011.
U.S. District Judge Richard Jones found that the county's decision to exclude the ad was reasonable and viewpoint neutral.
It has been nearly three years since attorneys for the activists told a panel of the 9th Circuit in Seattle that the county gave in to a "heckler's veto."
The federal appeals court affirmed 2-1 for the county Wednesday, agreeing that the decision to ban the ads was reasonable and viewpoint neutral.
In designating the side of a Metro bus a limited forum for the purposes of the free-speech analysis, the judges noted that they "would ... be reluctant to infer that the county intended to open the sides of Metro buses to all comers absent clear indications of such an intent."
Affirming for King "does not mean the government may impose whatever arbitrary or discriminatory restrictions on speech it desires," the ruling continues, noting that an entity like the county must have reasonable and viewpoint neutral reasons for its limitations.
In this case, however, Metro proved there was a real threat of disruption from the ads, as evidenced by threats to vandalize and block Metro buses, the court found.
That King rejected all ads related to the Israeli-Palestinian conflict after the controversy "negates any reasonable inference of viewpoint discrimination," the ruling states.
"To be sure, excluding all speech on a particular subject - whatever the viewpoint expressed - is content discrimination, but it's not viewpoint discrimination," Judge Paul Watford wrote for the majority, joined by Judge Alex Kozinski.
"Content discrimination is generally forbidden in a traditional or designated public forum, but it's permissible in a limited public forum, which is what we are dealing with here."
In her dissent, Judge Morgan Christen notes that she and the majority "part ways at the starting line" because the county intended the sides of its buses to be designated public forums.
Christen agreed with the activists that King may have given in to a "heckler's veto" here by suppressing protected speech.
"Metro's actual history of accepting ads for a variety of political subjects, whether controversial or not, demonstrates that the County created a designated public forum," Christen wrote.
The judge noted, for instance, that in 2009 Metro ran a pro-atheist ad on its buses reading "Yes, Virginia ... There Is No God."
Christen also called the county's civility clauses "infinitely amorphous."
"The county's attempt to distinguish the other ads related to the Middle East controversy boils down to the fact that the previous ads did not spark public outcry," Christen wrote.
"If this is the most salient distinction, then it is plain that Metro's civility clauses amount to a memorialization of a heckler's veto and a content-driven suppression of speech."
On Friday, the 9th Circuit ordered the parties in a similar case, American Freedom Defense Initiative v. King County, to brief the court on how its ruling affects their arguments.
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