The recent firebombing that destroyed the offices of the satirical Paris weekly Charlie Hebdo for printing a cover cartoon of the prophet Mohammed and naming him as its guest editor (the image has now been distributed as an insert with the left-wing paper Liberation) makes it clear — as did last year's decision by Comedy Central to censor an episode of South Park depicting Mohammed after Muslim radicals threatened reprisals — that freedom of speech doesn't mean a whole hell of a lot unless government protects the speaker. No protection, and any bunch of bullies or hecklers, not to mention arsonists or suicide bombers, can shut him up.
If government doesn't protect the speakers and/or the inamimate bearers of messages, all bets are off. That is the common thread between the Metro bus sign case that has just been appealed to the 9th Circuit and the Referendum 71 case that has already been through the U.S. Supreme Court and is currently in federal district court once again.
Last December, the Seattle Middle East Awareness Committee (SeaMAC) bought space on 12 Metro buses for ads that said, "Israeli War Crimes. Your Tax Dollars at Work." Titan Outdoor, the company that handled Metro's bus advertising, approved the ads, as did King County officials, and took SeaMac's money. The ads were timed for the second anniversary of the Israel Defense Forces' 2008-2009 operation in Gaza. Once the planned ads got media coverage, indignant phone calls and emails — some 6,000 of them — bombarded King County Executive Dow Constantine and other politicians. Constantine decided not to run the ads. SeaMAC got its money back. The group, represented by the ACLU, then tried and failed to get a temporary federal injunction requiring King County to run the bus ads. In February, the federal district court said no. SeaMAC also asked the court for a permanent injunction, claiming that Metro had violated the First Amendment. Last month, the court granted summary judgement to King County. SeaMAC has appealed to the 9th U.S. Circuit Court of Appeals.
The side of a Metro bus is considered a limited public forum. Any government act limiting speech in that forum must be viewpoint-neutral and reasonable under the circumstances. Metro, of course, argued that it's decision had been both. It had received credible threats of violence and vandalism. It feared for the safety of its buses and passengers and its ability to keep buses on schedule.
In February, when SeaMac tried to get an injunction, Keith Ervin reported in The Seattle Times that King County Senior Deputy Prosecuting Attorney Endel Kolde said " 'tone, volume and content' of complaints, along with warnings from law enforcement, led the county to conclude the ad could lead to service disruptions." The report continued about the concerns of officials, as described by Kolde:
"They believed there would be blocked buses, they believed there would be vandalism of buses, they believed there were drivers who would have refused to drive," he said. After terrorist attacks on rail passengers in London and Madrid, Kolde said, attacks on Metro riders couldn't be ruled out. "We live in a context where it is just a matter of time before a public transportation system becomes a subject of terror attack."
SeaMAC used an expert wtiness who had spent 28 years with the FBI and served on joint terrorism task forces for New York and Puget Sound. He examined email and other messages King County had received and concluded that they did not suggest a credible threat. His testimony didn't sway Judge Richard A. Jones in the U.S. District Court. Even if he was right about the emails, the court decided last month, he hadn't addressed King County Sheriff Sue Rahr's assessment that running the ads would pose an "unreasonable risk," or altered the fact that the county might face service disruptions because frightened drivers refused to drive buses carrying those signs. "Even if the communications received did not constitute prosecutable crimes themselves ... ," the court observed, "the fact that, for example, some bus drivers refused to drive buses displaying the SeaMAC advertisement made it reasonable to conclude that a disruption to service would occur." The court continued:
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