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:
[Dow] Constantine testified in a deposition that the concerns of bus drivers were given particular attention: "The bus driver memo was one document that sat on my desk for that time and I looked at [it] a number of times, because I was really concerned about the disruption that would be caused by bus drivers refusing to come in, because of their concern for their safety." Bus drivers refusing to drive their assigned routes would make it reasonably foreseeable that Metro service would be disrupted, and this potential disruption would not necessarily depend on the credibility of the threats received from the public.
Under the circumstances, Jones found that King County's action had been both viewpoint-neutral and reasonable.
SeaMAC's Ed Mast says that when he and his colleagues spoke with county officials last year about the ad, "they didn't talk to us mostly about the threats. They talked to us mostly about the trouble" that the blizzard of email was causing them. Being considered more trouble than they're worth isn't an unusual experience for SeaMAC members. After the bus ads were rejected, the group bought space on a commercial billboard. But after a week of complaints, the billboard ad came down, too. "Many of us working on equal rights for Palestinians have experienced this for years and years and years," Mast says. "We have a history of leaving censorship in our wake."
Still, what's the point of an appeal? The 9th Circuit probably won't rule for a year. The bus signs were pulled a year ago. What does SeaMAC want? Controversy in and about the Middle East won't vanish any time soon, Mast says, and if Metro's decision stands, the whole topic will remain off-limits. SeaMAC figures that U.S. policy toward the conflict and U.S. coverage of the conflict have been exceedingly one-sided. SeaMAC wants to use mainstream media to educate people about the other side. "Our argument is that these ads must be run," he says; "this exact ad."
If you take Metro's alleged fear of violence or vandalism at face value, the whole bus sign incident was encouragingly ecumenical: You don't have to be Muslim to intimidate people expressing a message you don't like. On the other hand, it's a discouraging comment on Metro security: The police in Seattle and the rest of King County can't protect Metro buses.
Maybe that's just reality. How could you guard a dozen buses dispersed throughout the entire county? And how could you protect, say, 137,000 referendum petition signers dispersed through the entire state from threats or harassment?
That is an implicit question in the R-71 case. But the explicit question before the U.S. District Court last month was whether or not those petition-signers ran any credible risk of threats or harassment in the first place. The court decided they did not.
Two years ago, the legislature passed Senate Bill 5688, which in the United States Supreme Court's words "expand(ed) the rights and responsibilities' of state-registered domestic partners, including same-sex domestic partners.” The legislation said that "state registered domestic partners shall be treated the same as married spouses" and that "the terms spouse, marriage, marital, husband, wife, widow, widower, next of kin, and family shall be interpreted as applying equally to state-registered domestic partnerships."
Protect Marriage Washington immediately started collecting names on a petition for a referendum to repeal the law. R-71 apeared on the November 2009 ballot. Voters rejected the domestic partnership law 53 percent to 47 percent. But by Aug. 20 of that year, Secretary of State Sam Reed "had received requests for copies of the R–71 petition from an individual and four entities, including Washington Coalition for Open Government (WCOG) and Washington Families Standing Together (WFST) . . . Two entities, WhoSigned.org and Know-ThyNeighbor.org, issued a joint press release stating their intention to post the names of the R–71 petition signers online, in a searchable format."
Protect Marriage Washington asked a federal court to enjoin Reed from releasing the names. The District Court granted a preliminary injunction. The 9th U.S. Circuit Court of Appeals reversed that decision. The Supreme Court heard oral arguments last April. The plaintiffs had originally argued both the general case (disclosing signers' names always violates the First Amendment), and the specific (disclosing signers' names violates the First Amendment in this case). But the lower courts had ruled only on the general question, so that's the only question the Supreme Court decided.
The Supreme Court ruled for the state on the general issue: Disclosing the names of petition signers does not, as a rule, violate the First Amendment. It sent the case back to district court for a ruling on the particular issue: Would disclosing the names of people who signed this specific petition violate their First Amendment rights?
Both sides moved for summary judgement, which last month the court granted in favor of the state. The Secretary of State started releasing the names. The losing side asked the 9th Circuit for an injunction against release. The 9th Circuit issued a temporary injunction until the district court had time to decide about a permanent one.
But realistically, the cat is already out of the bag. To read the names on a petition, one no longer drives to Olympia and pores through stacks of paper. One merely sends in $15 and gets all the names on a DVD. Thirty-four people had already done so by the time the 9th Circuit issued its temporary injunction. If any one of those people shares the names . . . well, you know: Whatever happens in the halls of justice from now on, that cat is not going back inside.
It's hard to imagine that the district court — or any other court — will rule against disclosure. In last month's ruling, the court thorooughly demolished the R-71 side's claims. Confronted with what passed for evidence of potential threats or harassment, the district court basically said, "you've gotta be kidding." The court pointed out that courts have shielded names from disclosure only if the people belonged to some small minority group vulnerable to retaliation: members of the NAACP in Alabama or of the Socialist Workers Party. The signers of R-71 did not constitute either a coherent group or a small, vulnerable minority. The court noted that the referendum won 838,842 votes, which added up to nearly half the total — so that its backers were hardly in similarly vulnerable positions.
U.S. District Judge Benjamin H. Settle explained that:
[I]n each of the cases where a court upheld an as-applied challenge to the disclosure laws, the party or organization making the challenge established that their constitutional right to associate freely would be illegally infringed upon should disclosure be ordered. Here, it is not clear that the R-71 signers have actually sought to associate with each other in a constitutionally protected manner. However, even if the Court considered the R-71 supporters to be such a group or organization, [the plaintiff] has not and cannot with any credibility analogize their situation to that of a small group of rank and file members of the SWP or the NAACP.
Even if the signers had qualified as a group, the court noted that there was no real evidence that the petitioners, referred to as John Doe et al. in the case, faced any kind of coercion: "Doe has provided the Court with a mountain of anecdotal evidence from around the country that offers merely a speculative possibility of threats, harassment, or reprisals." The people that Doe did trot out as examples hardly made much of a case. One "is a known public supporter of R-71. He has announced his opposition to same-sex marriage in an internet video, and signed the R-71 petition publicly." Another "gathered signatures for R-71 in public locations and waved an R-71 banner in a high- traffic area with approximately seventy other people." None could provide credible evidence they they had been threatened or harassed becaused they had signed petitions.
One may suspect, somewhat cynically, that threats aren't really the issue, that both sides have been a bit disingenuous, that the backers of R-71 feared and opponents hoped that if the names became public during the campaign, a fear of social disapproval would keep some people from signing. And indeed, it might have. But so what?
The Supreme Court certainly didn't lose any sleep over that. "There are laws against threats and intimidation; [but] harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self governance," Justice Antonin Scalia (yes, Scalia) wrote last year in his Doe v. Reed concurrence. "Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed."