County's Decision to Reject Controversial Ad Did Not Violate the First Amendment

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Rejecting a First Amendment challenge, a county can choose to not run an advertisement on its own bus system if it might cause vandalism and violence, the Ninth Circuit U.S. Court of Appeals held this week. The court determined that the county created only a “limited public forum” with bus advertisements, and that its decision to reject a controversial ad was both reasonable and viewpoint neutral. The decision indicates that local agencies have some flexibility in controlling a limited “public forum,” and emphasizes that the First Amendment permits reasonable regulation when justified by a strong government interest in preserving public safety.

In Seattle Mideast Awareness Campaign v. King County, the Seattle Mideast Awareness Campaign submitted an advertisement to run on King County Metro buses in the Seattle metropolitan area decrying America’s support of Israel. After initially accepting the ad, the County revoked its approval amid threats of violence and vandalism it feared would disrupt the bus system. The County has a policy restricting advertising content, which prohibited things like ads for alcohol and tobacco or those promoting illegal activities or containing obscene, deceptive, misleading or defamatory material. The policy also contained two “civility clauses,” which together prohibited material that would foreseeably result in disruption of the transportation system or incite a response that threatened public safety. Though it initially approved of the ad, the County withdrew approval after a wave of protests, threats of violence and expressions of fear from its customers and transit employees. At the same time, the County rejected two pro-Israel ads submitted in response.

The Ninth Circuit affirmed the district court’s summary judgment in favor of King County by determining that the County created only a “limited public forum.” The case hinged on a question of which type of “public forum” the County had created in its bus advertising program. The United States Supreme Court has classified forums into three categories:

  • traditional public forums (such as streets, sidewalks or public parks);
  • designated public forums (created when the government intends to make property that has not traditionally been open to assembly and debate “generally available” for “expressive use by the general public or by a particular class of speakers, but which the government may close whenever it chooses) and
  • limited public forums (where the government intends to grant only “selective access” by imposing either speaker-based or subject-matter restrictions).

Because the restriction here was reasonable in light of the forum’s purpose as a mode of public transportation and was viewpoint neutral (the County chose to reject ads that were both anti-Israel and anti-Palestine), the court held the County’s decision did not violate the First Amendment. Local agencies with similar advertising programs in place should pay heed to the court’s reasoning here, and ensure their policies create only a “limited public forum” if they intend to restrict certain forms of expression. Local agencies should also carefully document the existence of facts indicating a threat to public safety and order as a basis for rejecting expression of certain viewpoints.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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