Seattle Mideast Awareness Campaign v. King County ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SEATTLE MIDEAST AWARENESS No. 11-35914
CAMPAIGN, a Washington non-profit
corporation, D.C. No.
Plaintiff-Appellant, 2:11-cv-00094-
RAJ
v.
KING COUNTY, a municipal
corporation,
Defendant-Appellee.
SEATTLE MIDEAST AWARENESS No. 11-35931
CAMPAIGN, a Washington non-profit
corporation, D.C. No.
Plaintiff-Appellee, 2:11-cv-00094-
RAJ
v.
KING COUNTY, a municipal OPINION
corporation,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
2 SEATTLE MIDEAST AWARENESS CAMPAIGN V. KING CNTY.
Argued and Submitted
October 3, 2012—Spokane, Washington
Filed March 18, 2015
Before: Alex Kozinski, Morgan Christen,
and Paul J. Watford, Circuit Judges.
Opinion by Judge Watford;
Dissent by Judge Christen
SUMMARY*
Civil Rights
The panel affirmed the district court’s summary judgment
in favor of King County, and dismissed as moot the County’s
conditional cross appeal in an action brought pursuant to 42
U.S.C. § 1983 by the Seattle Mideast Awareness Campaign
alleging a violation of its First Amendment rights.
The Seattle Mideast Awareness Campaign, a non-profit
organization whose goal is to bring attention to Israeli-
Palestinian relations, proposed to display an advertisement
opposing the United States government’s financial support
for Israel on King County Metro buses in the Seattle
metropolitan area. After initially accepting the ad, the
County revoked its approval, concluding that displaying the
ad would likely result in vandalism and violence disruptive
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SEATTLE MIDEAST AWARENESS CAMPAIGN V. KING CNTY. 3
to the bus system. The panel first held that King County
created a limited public forum when it opened the sides of
Metro buses to advertising from outside speakers. The panel
then held that the County’s decision to reject the ad was both
reasonable and viewpoint neutral, and thus did not violate the
First Amendment.
Dissenting, Judge Christen stated that in her view the
County’s policy and practice unmistakably demonstrated an
intent to create a designated public forum on its Metro bus
exteriors. Judge Christen would remand for the district court
to determine in the first instance whether genuine issues of
material fact existed under the appropriate level of scrutiny,
i.e., whether the County’s safety concerns justified
cancellation of the ad.
COUNSEL
Venkat Balasubramani (argued), Focal PLLC, Seattle,
Washington; Jeffrey C. Grant, Skellenger Bender, P.S.,
Seattle, Washington; Sarah A. Dunne, Vanessa T. Hernandez,
M. Rose Spidell, La Rond Marie Baker, ACLU of
Washington Foundation, Seattle, Washington, for Plaintiffs-
Appellants.
Endel R. Kolde (argued), Daniel T. Satterberg, Cynthia S.C.
Gannett, Jennifer Ritchie, King County Prosecutor’s Office,
Seattle, Washington, for Defendant-Appellee.
Steven A. Reisler, Steven A. Reisler, PLLC, Seattle,
Washington, for Amicus Curiae National Lawyers Guild-
Seattle Chapter.
4 SEATTLE MIDEAST AWARENESS CAMPAIGN V. KING CNTY.
OPINION
WATFORD, Circuit Judge:
The Seattle Mideast Awareness Campaign (SeaMAC)
submitted an advertisement to run on King County Metro
buses in the Seattle metropolitan area. After initially
accepting the ad, the County revoked its approval, concluding
that displaying the ad would likely result in vandalism and
violence disruptive to the bus system. We are asked to decide
whether the County’s action violated SeaMAC’s First
Amendment rights.
I
King County runs Metro, a public mass transit system
serving hundreds of thousands of passengers in and around
Seattle each day. Metro’s mission is to provide safe and
reliable transportation for its customers. Like many public
transit agencies, Metro helps finance its operations through an
advertising program, which allows advertisers to purchase ad
space on the exterior of Metro buses.
The County runs Metro’s bus advertising program
through a contract with Titan Outdoor LLC. The contract
contains a policy restricting advertising content. At the time
of the events leading to this appeal, that policy prohibited ads
for alcohol and tobacco products; ads for adult movies, video
games rated for mature audiences, and other adult products
and services; ads promoting illegal activity; depictions of
minors or those who appear to be minors engaging in sexual
activities; ads containing flashing lights or other features that
might undermine safe operation of the buses or distract other
drivers; and obscene, deceptive, misleading, or defamatory
SEATTLE MIDEAST AWARENESS CAMPAIGN V. KING CNTY. 5
material. The policy also contained two “civility clauses,”
§§ 6.4(D) and 6.4(E). Together, these clauses prohibited
material that would foreseeably result in disruption of the
transportation system or incite a response that threatens
public safety.1
Metro required Titan to enforce these content restrictions
by individually pre-screening each ad. Titan routinely
rejected ads that failed to comply with the restrictions, most
commonly the prohibition on ads for alcohol and tobacco
products. In close cases, Titan sought guidance from County
officials, who then independently reviewed the proposed ad.
Before this case, County officials had invoked § 6.4(D) on
only one occasion, when they directed Titan to reject a series
of ads with messages such as “NAZI MEDICAL ABUSE
COMMITTED FOR 15 YEARS; State Hate Committed By
Elected Officials & Doctors.”
In late 2010, SeaMAC, a non-profit organization opposed
to United States support for Israel, proposed a Metro ad that
read:
1
Section 6.4(D) prohibited: “Any material that is so objectionable under
contemporary community standards as to be reasonably foreseeable that
it will result in harm to, disruption of, or interference with the
transportation system.”
Section 6.4(E) prohibited: “Any material directed at a person or
group that is so insulting, degrading or offensive as to be reasonably
foreseeable that it will incite or produce imminent lawless action in the
form of retaliation, vandalism or other breach of public safety, peace and
order.”
6 SEATTLE MIDEAST AWARENESS CAMPAIGN V. KING CNTY.
ISRAELI WAR CRIMES
YOUR TAX DOLLARS AT WORK
www.Stop30Billion-Seattle.org
Titan initially approved the ad, but because it considered the
ad “controversial,” the company sent a copy to County
officials, who also approved the ad. Those officials in turn
forwarded the ad to the King County Executive, who agreed
that while the ad was controversial, it did not violate Metro’s
bus advertising policy. Titan slated the ad to run on 12 Metro
buses for four weeks, beginning in the last week of 2010.
SeaMAC’s contract with Titan, however, provided that the ad
could still be withdrawn if the County disapproved it.
Before the ad ran, a local television station broadcast a
news story about the ad’s approval, which provoked an
unprecedented, hostile response. Metro’s Call Center,
accustomed to managing an average of 50 to 80 emails per
day, received 6,000 emails over the span of ten days, almost
all of them urging the County to pull the ad. The messages
varied in tenor, but several expressed an intent to vandalize
buses or disrupt service. For example, one message said:
“AN ATTY WHO SAYS THE SIGNS ARE PERMITTED
UNDER THE FIRST AMENDMENT IS FORCING ME TO
CONDUCT VIOLENCE JUST TO PROVE THAT I AM
REALLY UPSET AT THESE HORRIBLE WORLD WAR2
KINDS OF HATRED SIGNS.” Another stated, “I think I
will organize a group to ‘riot’ at your bus stops.” Metro’s
Call Center also received a deluge of angry telephone calls.
One repeat caller promised to block a tunnel to stop buses
from running, while another said that “Jews would take
physical action” to prevent the ads from going up.
SEATTLE MIDEAST AWARENESS CAMPAIGN V. KING CNTY. 7
A few days after the story ran, photographs depicting
dead or injured bus passengers and damaged buses—the
aftermath of apparent terrorist attacks—appeared under the
door of the Metro Customer Service Center. The names of
County officials and the phrase “NO TO BUS ADS FOR
MUSLIM TERRORISTS” were scrawled across them. The
Metro Deputy Director interpreted these photos as “a threat
of harm toward Metro or an expression of outrage over the
SeaMAC ad, or both.”
Not all of the feedback expressed anger. Many customers
expressed safety concerns, fearing, for example, “racially
motivated attacks on Jewish and Israeli riders.” The mother
of a 13-year-old boy asked whether her son, who wore a
yarmulke and rode the bus home from school several times a
week, would be able to ride safely. A blind woman, who
relied on the bus system as her only means of transportation,
said she agreed with SeaMAC’s “agenda,” but wanted the ad
pulled so she could travel without fear of violence. Metro bus
drivers also expressed safety concerns. Some refused to drive
buses displaying the ad; others asked the union president to
stop the ad because they feared it would put them “in harm’s
way.”
As the uproar mounted, Metro employees became unable
to read or listen to each message, much less respond to all of
them. Metro officials tried to identify the most disturbing
emails and phone calls for purposes of investigation by law
enforcement. This process brought Metro’s internal
operations to a halt. The Call Center had to set aside
customer inquiries of the more routine sort, while the Deputy
Director could not use her flooded email account to do any
other work. Metro Transit Police and the Operations Section
of Metro began planning for a potentially violent and
8 SEATTLE MIDEAST AWARENESS CAMPAIGN V. KING CNTY.
disruptive reaction to SeaMAC’s ad, a reaction they
anticipated would be targeted at buses and their passengers.
That threat wasn’t covered by the existing security protocol
because, as Metro’s Operations Manager stated, it represented
“a totally new and different situation that we [had not]
confronted before.” The bus drivers’ concerns added to these
operational challenges.
Four days after the news story broke (but before
SeaMAC’s ad was scheduled to run), two pro-Israel
groups—the Horowitz Freedom Center (HFC) and the
American Freedom Defense Initiative/Stop Islamization of
America (AFDI)—entered the fray by submitting their own
ads. The HFC ad read:
PALESTINIAN WAR CRIMES
YOUR TAX DOLLARS AT WORK
One version depicted a burning bus, while the other showed
injured, bloody passengers in a damaged bus. The AFDI ads
contained seven different images, including one of Adolf
Hitler, along with the text:
IN ANY WAR BETWEEN THE CIVILIZED MAN AND
THE SAVAGE, SUPPORT THE CIVILIZED MAN.
Support Israel, Defeat Islamic Jihad
SeaMAC’s ad, and the counter-ads, were thus pending before
the County at the same time.
Shortly thereafter, the King County Sheriff contacted the
King County Executive to advise against running the
SeaMAC ad. She worried that “buses, and bus-passengers,
were vulnerable to spontaneous, emotion driven attacks, like
SEATTLE MIDEAST AWARENESS CAMPAIGN V. KING CNTY. 9
thrown rocks or bricks.” Seeking advice, the County
Executive contacted the United States Attorney for the
Western District of Washington, who advised caution in light
of the fact that public transit systems were “targets of choice”
for terrorists.
After unsuccessfully asking SeaMAC to withdraw its
proposed ad, the County Executive withdrew his approval of
SeaMAC’s ad and, at the same time, rejected the HFC and
AFDI ads. The County Executive explained that “the context
had changed dramatically” and that all of the pending ads on
the Israeli-Palestinian conflict were non-compliant with
§§ 6.4(D) and 6.4(E). Metro simultaneously revised its
advertising policy to exclude all political or ideological ads
from that point forward.
SeaMAC sued the County under 42 U.S.C. § 1983,
alleging a violation of its First Amendment rights. The
district court denied SeaMAC’s motion for a preliminary
injunction requiring the County to run its ad, and SeaMAC
chose not to take an interlocutory appeal. Following
discovery, the district court granted the County’s motion for
summary judgment, reasoning that the County’s exclusion of
SeaMAC’s ad did not violate the First Amendment because
Metro’s bus advertising program created a limited public
forum and the County’s decision to exclude the ad was
reasonable and viewpoint neutral.
II
SeaMAC contends it has a First Amendment right to use
government property—the sides of Metro buses—to promote
its message. To resolve that issue, we must first determine
10 SEATTLE MIDEAST AWARENESS CAMPAIGN V. KING CNTY.
whether the sides of Metro buses are a forum for public
expression and, if so, which type of forum.
The parties agree that Metro’s bus advertising program
creates a forum of some sort, as the County has opened the
sides of Metro buses to speakers other than the government
itself. See Pleasant Grove City, Utah v. Summum, 555 U.S.
460, 469 (2009). The more difficult question is determining
which type of forum the County has created. The Supreme
Court has classified forums into three categories: traditional
public forums, designated public forums, and limited public
forums. Int’l Soc’y for Krishna Consciousness, Inc. v. Lee
(ISKCON), 505 U.S. 672, 678–79 (1992).2 In traditional and
designated public forums, content-based restrictions on
speech are prohibited, unless they satisfy strict scrutiny.
Pleasant Grove, 555 U.S. at 469–70. In limited public
forums, content-based restrictions are permissible, as long as
they are reasonable and viewpoint neutral. See id. at 470.
Metro’s bus advertising program isn’t a traditional public
forum. That category encompasses places like “streets and
parks which have immemorially been held in trust for the use
of the public and, time out of mind, have been used for
purposes of assembly, communicating thoughts between
citizens, and discussing public questions.” Perry Educ. Ass’n
v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983)
2
We will refer to this last category as “limited public forums,” Christian
Legal Soc’y Chapter of Univ. of Cal., Hastings Coll. of Law v. Martinez,
561 U.S. 661, 679 n.11 (2010), although in past cases they’ve sometimes
been labeled “nonpublic” forums. E.g., Arkansas Educ. Television
Comm’n v. Forbes, 523 U.S. 666, 677 (1998); Hopper v. City of Pasco,
241 F.3d 1067, 1074 (9th Cir. 2001). The label doesn’t matter, because
the same level of First Amendment scrutiny applies to all forums that
aren’t traditional or designated public forums.
SEATTLE MIDEAST AWARENESS CAMPAIGN V. KING CNTY. 11
(internal quotation marks omitted). The question, then, is
whether Metro’s bus advertising program is a designated
public forum. If not, the rules governing limited public
forums apply.
The government creates a designated public forum when
it intends to make property that hasn’t traditionally been open
to assembly and debate “generally available” for “expressive
use by the general public or by a particular class of speakers.”
Arkansas Educ. Television Comm’n v. Forbes, 523 U.S. 666,
677–78 (1998). The defining characteristic of a designated
public forum is that it’s open to the same “indiscriminate
use,” Perry, 460 U.S. at 47, and “almost unfettered access,”
Forbes, 523 U.S. at 678, that exist in a traditional public
forum. The principal difference between traditional and
designated public forums is that the government may close a
designated public forum whenever it chooses, but it may not
close a traditional public forum to expressive activity
altogether. Perry, 460 U.S. at 45–46. Otherwise, the two are
treated the same: When the government creates a designated
public forum by imbuing its property with the “essential
attributes of a traditional public forum,” Pleasant Grove,
555 U.S. at 469, it is “bound by the same standards as apply
in a traditional public forum.” Perry, 460 U.S. at 46.
To determine whether the government has imbued its
property with the essential attributes of a traditional public
forum, we focus on the government’s intent. Cornelius v.
NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802
(1985). The government does not create a designated public
forum through inaction or by permitting only limited
discourse. Id. Instead, the government must intend to grant
“general access” to its property for expressive use, either by
the general public or by a particular class of speakers.
12 SEATTLE MIDEAST AWARENESS CAMPAIGN V. KING CNTY.
Forbes, 523 U.S. at 679; see also Widmar v. Vincent,
454 U.S. 263, 267–68 (1981) (designated public forum
created for student groups). In contrast, when the
government intends to grant only “selective access,” by
imposing either speaker-based or subject-matter limitations,
it has created a limited public forum. Forbes, 523 U.S. at
679; Cornelius, 473 U.S. at 806.
We rely on several factors to gauge the government’s
intent. Cornelius, 473 U.S. at 802. We look first to the terms
of any policy the government has adopted to govern access to
the forum. Id. If the government requires speakers seeking
access to obtain permission, under pre-established guidelines
that impose speaker-based or subject-matter limitations, the
government generally intends to create a limited, rather than
a designated, public forum. Forbes, 523 U.S. at 679–80;
Cornelius, 473 U.S. at 804; Perry, 460 U.S. at 47. Granting
selective access in that fashion negates any suggestion that
the government intends to open its property to the
“indiscriminate use by all or part of the general public”
necessary to create a designated public forum. Hills v.
Scottsdale Unified Sch. Dist. No. 48, 329 F.3d 1044, 1050
(9th Cir. 2003) (per curiam); see also Forbes, 523 U.S. at
679; Perry, 460 U.S. at 47.
Two other factors help us ascertain the government’s
intent. If the government has adopted a policy governing
access to the forum, we examine how that policy has been
implemented in practice. Cornelius, 473 U.S. at 802. If the
policy requires speakers to obtain permission under
guidelines whose terms are routinely ignored, such that in
practice permission is granted “as a matter of course to all
who seek [it],” the government may have created a designated
public forum. Perry, 460 U.S. at 47. We also take into
SEATTLE MIDEAST AWARENESS CAMPAIGN V. KING CNTY. 13
account the nature of the government property at issue.
Cornelius, 473 U.S. at 802. If the property is “designed for
and dedicated to expressive activities,” id. at 802–03, courts
will more readily infer the intent to create a designated public
forum. See Southeastern Promotions, Ltd. v. Conrad,
420 U.S. 546, 555 (1975) (municipal theater). On the other
hand, if the property is used primarily as part of a
government-run commercial enterprise, and the expressive
activities the government permits are only incidental to that
use, that fact tends to support finding a limited public forum.
See ISKCON, 505 U.S. at 682 (airport terminal); Lehman v.
City of Shaker Heights, 418 U.S. 298, 303 (1974) (public
transit system).
Applying these three factors here, we think it’s clear the
County intended to create a limited, rather than a designated,
public forum. First, the County adopted a formal policy
requiring everyone seeking access to Metro’s bus advertising
program to obtain permission through a pre-screening
process. The policy established fixed guidelines that imposed
categorical subject-matter limitations, excluding (for
example) ads for alcohol and tobacco products and ads for
adult-oriented products and services. Collectively, the
policy’s exclusions indicate that the County intended to grant
only “selective access,” rather than “almost unfettered
access,” to its bus advertising program. Forbes, 523 U.S. at678–79.
Second, the County’s implementation of the policy
confirms its intent to grant only selective access. The record
establishes that the County pre-screened all proposed ads and
consistently rejected ads that were non-compliant. No
evidence suggests that, notwithstanding the formal terms of
its policy, the County granted permission “as a matter of
14 SEATTLE MIDEAST AWARENESS CAMPAIGN V. KING CNTY.
course to all who seek [it].” Perry, 460 U.S. at 47. That fact
distinguishes this case from Hopper v. City of Pasco,
241 F.3d 1067 (9th Cir. 2001), where we held that the city
had created a designated public forum for the display of
artwork at Pasco’s city hall. There, the city “retained no
substantive control over the content of the arts program” and
had never previously excluded a work for any reason, even
though some of the accepted works didn’t comply with the
city’s policy. Id. at 1078. Here, in contrast, the undisputed
evidence establishes that the County has consistently rejected
proposed ads that fail to comply with the bus advertising
program’s subject-matter limitations. “By consistently
limiting ads it saw as in violation of its policy,” the County
“evidenced its intent not to create a designated public forum.”
Ridley v. Massachusetts Bay Transp. Auth., 390 F.3d 65, 78
(1st Cir. 2004); see also Arizona Life Coal. Inc. v. Stanton,
515 F.3d 956, 970 (9th Cir. 2008).
When analyzing implementation of the County’s access
policy at this stage of the analysis, we focus on the County’s
enforcement of the policy as a whole, not just the specific
provision invoked to exclude the ads at issue. We are asking
whether the forum as a whole is a designated public forum,
not whether § 6.4(D) itself has created one. Thus, that the
County had rejected proposed ads under § 6.4(D) on only one
prior occasion is not determinative. For forum-classification
purposes, the relevant question is whether the County has
granted generalized access to the forum as a matter of course
by routinely accepting even non-compliant ads,
notwithstanding the terms of its access policy. No evidence
in the record supports that conclusion here.
Finally, the third factor—the nature of the government
property—also supports the conclusion that the County
SEATTLE MIDEAST AWARENESS CAMPAIGN V. KING CNTY. 15
intended to create a limited public forum. The principal
purpose of the bus advertising program is to generate revenue
for the bus system. The expressive activities the city permits
are therefore “incidental to the provision of public
transportation,” and “a part of the commercial venture.”
Lehman, 418 U.S. at 303 (plurality opinion). As with any
business, when the government is engaged in commerce,
“allowing certain expressive activity might harm advertising
sales or tarnish business reputation.” Hopper, 241 F.3d at
1081. For that reason, use of the property as part of a
commercial enterprise is generally incompatible with
granting the public unfettered access for expressive activities.
See Cornelius, 473 U.S. at 804. We would therefore 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. See id. We find none here.
We thus hold that Metro’s bus advertising program is a
limited public forum. We recognize that other courts have
held that similar transit advertising programs constitute
designated public forums.3 Some of those courts, in our view,
mistakenly concluded that if the government opens a forum
and is willing to accept political speech, it has necessarily
signaled an intent to create a designated public forum. See,
e.g., New York Magazine v. Metropolitan Transp. Auth.,
136 F.3d 123, 130 (2d Cir. 1998); Lebron v. Washington
Metro. Area Transit Auth., 749 F.2d 893, 896 & n.6 (D.C.
3
See, e.g., United Food & Commercial Workers Union, Local 1099 v.
Southwest Ohio Reg’l Transit Auth., 163 F.3d 341 (6th Cir. 1998);
Christ’s Bride Ministries, Inc. v. Southeastern Penn. Transp. Auth.,
148 F.3d 242 (3d Cir. 1998); New York Magazine v. Metropolitan Transp.
Auth., 136 F.3d 123 (2d Cir. 1998); Planned Parenthood Ass’n/Chicago
Area v. Chicago Transit Auth., 767 F.2d 1225 (7th Cir. 1985); Lebron v.
Washington Metro. Area Transit Auth., 749 F.2d 893 (D.C. Cir. 1984).
16 SEATTLE MIDEAST AWARENESS CAMPAIGN V. KING CNTY.
Cir. 1984). Neither the First Amendment nor the Supreme
Court’s public forum precedents impose that categorical rule.
Any such rule would undermine the Court’s efforts to
“encourage the government to open its property to some
expressive activity in cases where, if faced with an all-or-
nothing choice, it might not open the property at all.” Forbes,
523 U.S. at 680. Municipalities faced with the prospect of
having to accept virtually all political speech if they accept
any—regardless of the level of disruption caused—will
simply close the forum to political speech altogether. First
Amendment interests would not be furthered by putting
municipalities to that all-or-nothing choice. Doing so would
“result in less speech, not more”—exactly what the Court’s
public forum precedents seek to avoid. Id.Our holding that the sides of Metro buses are a limited
public forum does not mean the government may impose
whatever arbitrary or discriminatory restrictions on speech it
desires. As discussed in the next section, for the period in
which the government elects to keep open the limited public
forum, any subject-matter or speaker-based limitations must
still be reasonable and viewpoint neutral.
III
Having concluded that Metro’s bus advertising program
is a limited public forum, we must next decide whether the
subject-matter limitation invoked to exclude SeaMAC’s ad is
valid. The County justified exclusion of the ad under
§§ 6.4(D) and 6.4(E) of its access policy. We conclude that
the County’s application of § 6.4(D) was reasonable and
viewpoint neutral, and therefore have no occasion to address
the validity of § 6.4(E).
SEATTLE MIDEAST AWARENESS CAMPAIGN V. KING CNTY. 17
A
A subject-matter or speaker-based exclusion must meet
two requirements to be reasonable in a limited public forum.
First, it must be “reasonable in light of the purpose served by
the forum.” Cornelius, 473 U.S. at 806. This requirement
focuses on whether the exclusion is consistent with “limiting
[the] forum to activities compatible with the intended purpose
of the property.” Perry, 460 U.S. at 49; see also DiLoreto v.
Downey Unified Sch. Dist. Bd. of Educ., 196 F.3d 958, 967
(9th Cir. 1999). Second, exclusions must be based on a
standard that is definite and objective. That requirement has
been developed most prominently in the context of time,
place, and manner restrictions in traditional public forums,
see, e.g., Forsyth Cnty., Ga. v. Nationalist Movement,
505 U.S. 123, 132–33 (1992); Shuttlesworth v. City of
Birmingham, 394 U.S. 147, 150–51 (1969), but it applies with
equal force in this context. See Hopper, 241 F.3d at 1077.
Section 6.4(D) meets both requirements. It excludes
speech that “is so objectionable under contemporary
community standards as to be reasonably foreseeable that it
will result in harm to, disruption of, or interference with the
transportation system.” That exclusion is consistent with
limiting the bus advertising program to speech that is
“compatible with the intended purpose of the property.”
Perry, 460 U.S. at 49. The intended purpose of the property
at issue here—Metro buses—is to provide safe and reliable
public transportation. Any speech that will foreseeably result
in harm to, disruption of, or interference with the
transportation system is, by definition, incompatible with the
buses’ intended purpose. See Children of the Rosary v. City
of Phoenix, 154 F.3d 972, 979 (9th Cir. 1998). Restrictions
on speech that will foreseeably disrupt the intended function
18 SEATTLE MIDEAST AWARENESS CAMPAIGN V. KING CNTY.
of government property have generally been held reasonable
in limited public forums. See, e.g., ISKCON, 505 U.S. at
683–84; United States v. Kokinda, 497 U.S. 720, 732–33
(1990) (plurality opinion); Perry, 460 U.S. at 51–52 & n.12.
We see no justification for refusing to apply that general rule
here.
The standard established by § 6.4(D) is also sufficiently
definite and objective to prevent arbitrary or discriminatory
enforcement by County officials. The Supreme Court has
held an analogous standard (albeit one developed in a
different First Amendment context) sufficiently definite and
objective to pass constitutional muster. In Tinker v. Des
Moines Independent Community School District, 393 U.S.
503 (1969), the Court concluded that school officials may
exclude student speech if the speech could reasonably lead to
“substantial disruption of or material interference with school
activities.” Id. at 514. That standard is constitutionally
adequate to limit the discretion of school officials, the Court
later held, because “the prohibited disturbances are easily
measured by their impact on the normal activities of the
school.” Grayned v. City of Rockford, 408 U.S. 104, 112
(1972). We think the same can be said of § 6.4(D). Because
its standard is tied to disruption of or interference with the
normal operations of the transit system, § 6.4(D) supplies
courts with a sufficiently definite and objective benchmark
against which to judge the “disruption” assessments made by
County officials.
We acknowledge that, standing alone, § 6.4(D)’s
reference to material that is “objectionable under
contemporary community standards” would be too vague and
subjective to be constitutionally applied. But, as we observed
in Hopper, “community standards of decency” may play a
SEATTLE MIDEAST AWARENESS CAMPAIGN V. KING CNTY. 19
role in the regulation of limited public forums, so long as
such standards are “reduced to objective criteria set out in
advance.” 241 F.3d at 1080. Section 6.4(D)’s ultimate
criterion is an objective one: reasonably foreseeable harm to,
disruption of, or interference with the transportation system.
Thus, we are not left with the specter of a “standardless
standard” whose application will be immune from meaningful
judicial review. Id.SeaMAC contends that the County’s application of
§ 6.4(D) is unconstitutional because SeaMAC’s proposed ad
does not actually violate § 6.4(D). In particular, SeaMAC
argues that the threat of disruption posed by its ad was merely
“speculative,” and that the County’s attempts to organize a
law enforcement response plan indicated any threat could
have been “neutralized.” We must independently review the
record, without deference to the threat assessment made by
County officials, to determine whether it “show[s] that the
asserted risks were real.” Sammartano v. First Judicial Dist.
Court, 303 F.3d 959, 967 (9th Cir. 2002), abrogated on other
grounds by Winter v. Natural Res. Def. Council, Inc.,
555 U.S. 7 (2008).
We agree with the district court that the threat of
disruption here was real rather than speculative. The County
identified three types of potential disruption, each of which is
supported by the record: (1) vandalism, violence, or other acts
endangering passengers and preventing the buses from
running; (2) reduced ridership because of public fear of such
endangerment; and (3) substantial resource diversion from
Metro’s day-to-day operations. As discussed earlier, the
County received numerous threats to vandalize or block
Metro buses, which were sufficiently credible to cause Metro
to seek the advice of law enforcement. In addition, riders and
20 SEATTLE MIDEAST AWARENESS CAMPAIGN V. KING CNTY.
drivers threatened not to ride or drive, citing legitimate safety
concerns generated by the negative reaction to SeaMAC’s
proposed ad. And Metro had to divert substantial resources
away from its normal day-to-day operations in order to
address those safety concerns. Taken together, we think these
facts establish that, if permitted to run, SeaMAC’s ad would
foreseeably have resulted in “harm to, disruption of, or
interference with the transportation system,” as § 6.4(D)
requires.4
The record does not support SeaMAC’s alternative
contention that the threat of disruption could have been
neutralized by implementation of a law enforcement response
plan. But even if SeaMAC were right on that score, it would
not change the outcome. We do not apply a least restrictive
means test in this context. See Sammartano, 303 F.3d at 967.
“The Government’s decision to restrict access to a nonpublic
forum need only be reasonable; it need not be the most
reasonable or the only reasonable limitation.” Cornelius,
473 U.S. at 808. We believe the County’s decision to reject
SeaMAC’s ad was indeed reasonable, given the serious threat
of disruption running the ad would have posed.
SeaMAC argues that there are material factual disputes as
to the seriousness of the disruption threat, but that argument
4
That the anticipated disruption had not actually materialized by the
time the County acted is irrelevant. Section 6.4(D) requires only a
“reasonably foreseeable” threat of disruption, a standard that is
constitutionally permissible in this context. The government may not
manufacture a fear of disruption as a pretext to censor speech it dislikes.
But where the threat of disruption is real, the government “need not wait
until havoc is wreaked” before excluding potentially disruptive speech
from a limited public forum. Cornelius, 473 U.S. at 810; see also Perry,
460 U.S. at 52 n.12.
SEATTLE MIDEAST AWARENESS CAMPAIGN V. KING CNTY. 21
misapprehends the summary judgment standard. All agree as
to the existence and content of the calls and emails the
County received and the operational burdens they imposed.
The disputes that exist relate not to the facts, but to the legal
conclusions to be drawn from those facts. See Ridley,
390 F.3d at 71. The district court correctly concluded that the
County’s exclusion of SeaMAC’s proposed ad was
reasonable as a matter of law.
B
In addition to being reasonable, the government’s
exclusion of speech from a limited public forum must be
viewpoint neutral. Pleasant Grove, 555 U.S. at 470. On its
face, at least, § 6.4(D) is viewpoint neutral: It excludes all
ads—whatever their viewpoint—that may foreseeably result
in harm to, disruption of, or interference with the
transportation system. But that does not foreclose SeaMAC’s
claim that the County applied § 6.4(D) in a viewpoint-
discriminatory manner. See Rosenbaum v. City & Cnty. of
San Francisco, 484 F.3d 1142, 1158 (9th Cir. 2007).
Prevailing on this as-applied claim requires evidence that the
government intended to “suppress expression merely because
public officials oppose the speaker’s view.” Perry, 460 U.S.
at 46; see also Cornelius, 473 U.S. at 806. After carefully
reviewing the record, we conclude that no reasonable jury
could find that County officials rejected SeaMAC’s ad
because they opposed SeaMAC’s views on the Israeli-
Palestinian conflict.
We begin by recapping the sequence of events that led to
the County’s rejection of SeaMAC’s ad. A local news
broadcast about SeaMAC’s proposed ad sparked an intense
controversy that became the subject of international attention.
22 SEATTLE MIDEAST AWARENESS CAMPAIGN V. KING CNTY.
This materially increased the risk of physical violence and
consequent harm to Metro buses and their passengers. Four
days after the publicity surrounding SeaMAC’s proposed ad
began, two pro-Israel groups—HFC and AFDI—proposed
inflammatory counter-ads of their own promoting the
opposite viewpoint of SeaMAC’s ad. Faced with the choice
between protecting the bus system and displaying competing
ads on a conflict that has provoked deadly violence, the
County simultaneously rejected all pending ads on the Israeli-
Palestinian conflict pursuant to § 6.4(D). As the County
Executive explained, he rejected all the ads “at the same
time” because, in his view, the counter-ads were “at least as
likely to elicit a response that would result in harm to our
transit system as the SeaMAC ad.” In effect, the County
decided that, given the threat of disruption posed to the transit
system, the County could not safely run ads on either side of
the Israeli-Palestinian conflict.
The County’s decision to reject SeaMAC’s ad as part of
a single, blanket decision to reject all submitted ads on the
Israeli-Palestinian conflict negates any reasonable inference
of viewpoint discrimination. To be sure, excluding all speech
on a particular subject—whatever the viewpoint expressed—
is content discrimination, but it’s not viewpoint
discrimination. 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. Kokinda, 497 U.S. at 735 (plurality
opinion); Cornelius, 473 U.S. at 809–10; Perry, 460 U.S. at
52. In a limited public forum, the government may impose
content-based restrictions on speech as a “means of ‘insuring
peace’” and “avoiding controversy that would disrupt” the
business of the forum. Cornelius, 473 U.S. at 809–10. That
is all the County did here.
SEATTLE MIDEAST AWARENESS CAMPAIGN V. KING CNTY. 23
The “heckler’s veto” concerns raised by the dissent would
be troubling in a traditional or designated public forum, but
they do not carry the same weight in a limited public forum.
Excluding speech based on “an anticipated disorderly or
violent reaction of the audience” is a form of content
discrimination, generally forbidden in a traditional or
designated public forum. Rosenbaum, 484 F.3d at 1158. In
a limited public forum, however, what’s forbidden is
viewpoint discrimination, not content discrimination. That
does not mean “heckler’s veto” concerns have no relevance
in a limited public forum: A claimed fear of hostile audience
reaction could be used as a mere pretext for suppressing
expression because public officials oppose the speaker’s point
of view. That might be the case, for example, where the
asserted fears of a hostile audience reaction are speculative
and lack substance, or where speech on only one side of a
contentious debate is suppressed.
As we have explained, in this case the County’s fears
were real and substantial, and the County rejected speech
from opposing sides of the Israeli-Palestinian conflict. In
addition, Metro had previously run ads with the same
viewpoint as SeaMAC’s ad, when doing so had not presented
a reasonably foreseeable threat of disruption. These facts
confirm that the County’s asserted fear of disruption was not
used as a mere pretext for discriminating against SeaMAC
because of the point of view it wished to express.
Because the County simultaneously rejected all of the
proposed ads on the Israeli-Palestinian conflict—from
opposing viewpoints—no reasonable jury could find that it
engaged in viewpoint discrimination. The record instead
supports a viewpoint-neutral content-based limitation, which
the County imposed after scrupulously considering whether
24 SEATTLE MIDEAST AWARENESS CAMPAIGN V. KING CNTY.
it could “have this public discussion take place in a way that
didn’t present the dangers [it was] seeing.”
* * *
King County created a limited public forum when it
opened the sides of Metro buses to advertising from outside
speakers. The County’s decision to reject SeaMAC’s ad was
both reasonable and viewpoint neutral, and thus did not
violate the First Amendment. We affirm the district court’s
entry of summary judgment in the County’s favor, and
dismiss the County’s conditional cross-appeal as moot.
AFFIRMED in part; DISMISSED in part.
CHRISTEN, Circuit Judge, dissenting:
The majority and I part ways at the starting line. In my
view, the district court erred by concluding that King County
created only a limited public forum. The County’s policy and
practice unmistakably demonstrate an intent to create a
designated public forum on its Metro bus exteriors.
Accordingly, the First Amendment requires that the County’s
decision to restrict SeaMAC’s speech must be necessary to
serve a compelling state interest and narrowly drawn; in other
words, it must survive strict scrutiny. This is not to pre-judge
the outcome of the case. The safety of public transit systems
is of paramount importance, and it may be that credible
threats created a compelling state interest. But it also may be
that the County inappropriately bowed to a “heckler’s veto”
and suppressed speech that should have been protected. To
faithfully apply our precedent to the actual facts established
SEATTLE MIDEAST AWARENESS CAMPAIGN V. KING CNTY. 25
by the record, we should remand for the district court to
determine in the first instance whether genuine issues of
material fact exist under the appropriate level of scrutiny, i.e.,
whether the County’s safety concerns justified cancellation of
the ad.
The outcome of this dispute hinges on whether the
County created a designated public forum or a limited public
forum. The essential question in differentiating between the
types of fora is what the government intended at the time it
opened the forum, not when it closed it. We must consider
the government’s policy and practice to glean its intent.
Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S.
788, 802 (1985).
I. Metro’s policy establishes the County’s intent to
create a designated public forum.
A policy that makes government property “generally
available to a certain class of speakers” signals an intent to
create a designated public forum, whereas a policy that
“reserve[s] eligibility for access . . . to a particular class of
speakers, whose members must then, as individuals, obtain
permission” signals an intent to create a limited public forum.
Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 679
(1998) (internal quotation marks omitted). The operative
inquiry in this case is not, as the majority suggests, whether
Metro’s policy makes its buses generally available to all
advertisements, but rather whether it makes its buses
generally available to noncommercial, political
advertisements. See id. at 680 (“[W]ith the exception of
traditional public fora, the government retains the choice of
whether to designate its property as a forum for specified
classes of speakers.”).
26 SEATTLE MIDEAST AWARENESS CAMPAIGN V. KING CNTY.
Although Metro’s policy required all proposed ads to be
screened, Metro had no standards, written or otherwise, to
guide application of the subjective restriction on
“objectionable” and “offensive” content contained in its
“civility clauses.” This fact alone strongly suggests that the
County created a designated public forum. See Hopper v.
City of Pasco, 241 F.3d 1067, 1077 (9th Cir. 2001)
(“Standards for inclusion and exclusion in a limited public
forum must be unambiguous and definite . . . .” (alteration
and internal quotation marks omitted)). Metro’s civility
clauses are so broad and permit so much official discretion
that they cannot validly serve a “selective” function for
purposes of forum analysis. See Forsyth Cnty., Ga. v.
Nationalist Movement, 505 U.S. 123, 130 (1992)
(government scheme regulating competing uses of a public
forum “may not delegate overly broad licensing discretion to
a government official”); Planned Parenthood Ass’n/Chi. Area
v. Chi. Transit Auth., 767 F.2d 1225, 1230 (7th Cir. 1985)
(“We question whether a regulation of speech that has as its
touchstone a government official’s subjective view that the
speech is ‘controversial’ could ever pass constitutional
muster.”). What is even more troubling is that Metro’s
guidelines actually invite a heckler’s veto by expressly
authorizing the censorship of speech whenever it is
“reasonably foreseeable” that there will be strong objections.1
1
In this case, many of the most vehement objections appear to have
been expressed anonymously over the telephone or Internet. It requires
little risk or effort to express threats and vitriol through such faceless and
frequently traceless communications. To quote the popular Seattle
hip-hop artist Macklemore: “Have you read the YouTube comments
lately?”—it’s easy to hide “behind the keys of a message board” or
similarly anonymous medium. I do not discount the possibility that Metro
received credible threats, but whether the threats were credible is best left
SEATTLE MIDEAST AWARENESS CAMPAIGN V. KING CNTY. 27
The majority emphasizes that SeaMAC’s ad and the
counter ads were “pending before the County at the same
time” and “rejected . . . ‘at the same time.’” To the contrary,
the record is crystal clear that SeaMAC’s ad was approved by
Titan, Metro officials, and the King County Executive. It was
only after SeaMAC’s ad had been accepted and objections
were received that the County reversed its decision and
refused to run SeaMAC’s ad. When it made that decision, it
also decided to reject the counter ads proffered in response to
SeaMAC’s ad.
The County reversed its initial approval of SeaMAC’s ad
because of continued negative publicity and angry responses.
When the controversy began, the Metro Transit Police
reviewed SeaMAC’s ad and settled on a “mid-range” plan to
address any security issues it might cause. Metro’s general
manager concurred in the police proposal, stating that it
“looks like a good plan of action.” Only when the
controversy failed to die down after a few days did the
County change its tune. Whether the County had compelling
reasons for reversing itself remains an open question.
Metro’s contract with Titan permitted Titan to sell ad
space for almost any ad of a controversial or political nature,
thereby demonstrating an intent to grant general, not
selective, access. See Forbes, 523 U.S. at 679. Metro’s
patently subjective policy with respect to such ads—the
subjective nature of which was clearly evidenced in the
acceptance and subsequent rejection of SeaMAC’s
ad—distinguishes this case from other transit agency cases
addressing clear policies excluding political, religious, or
to law enforcement authorities; it is not relevant to what type of forum
Metro created.
28 SEATTLE MIDEAST AWARENESS CAMPAIGN V. KING CNTY.
noncommercial advertising. See, e.g., Lehman v. City of
Shaker Heights, 418 U.S. 298, 299–300 (1974) (ban on
political advertising); Am. Freedom Def. Initiative v.
Suburban Mobility Auth. for Reg’l Transp. (SMART),
698 F.3d 885, 890–92 (6th Cir. 2012) (same); Children of the
Rosary v. City of Phoenix, 154 F.3d 972, 976–78 (9th Cir.
1998) (ban on noncommercial advertising). The majority’s
holding impermissibly allows the County to create a
designated public forum for purposes of selling ad space, and
then engage in discretionary, content-driven evaluation of
speech on an ad hoc basis by invoking its infinitely
amorphous “civility clauses.”
II. Metro’s consistent application of the policy establishes
the County’s intent to create a designated public
forum.
Even if Metro’s policy could be described as
demonstrating an intent to create a limited forum, controlling
case law would still require us to determine whether, in
practice, Metro consistently enforced its civility clauses. See
Hopper, 241 F.3d at 1075 (“[A]n abstract policy statement
purporting to restrict access to a forum is not enough. What
matters is what the government actually does—specifically,
whether it consistently enforces the restrictions on use of the
forum that it adopted.”). The history of Metro’s actual
practices undeniably reveals an intent to create a designated
public forum.
Metro’s advertising program project manager, who has
worked for the County since 1985, declared that it was not “a
goal of the [advertising program] to create an open forum for
public debate,” but she tellingly acknowledged that Metro
“has always accepted noncommercial advertising, including
SEATTLE MIDEAST AWARENESS CAMPAIGN V. KING CNTY. 29
candidates for elected office, ballot measures, and ‘cause’
advertising.” See United Food & Commercial Workers
Union, Local 1099 v. Sw. Ohio Reg’l Transit Auth., 163 F.3d
341, 355 (6th Cir. 1998) (“[A] governmental entity may not
avoid First Amendment scrutiny simply by declaring that it
is not creating a public forum . . . .”). The advertising
program manager defined a “public issue” (“cause”)
advertisement as one that “conveys . . . a particularized
message of a social, religious, ideological or philosophical
nature,” “lacks a commercial purpose,” and therefore “is
primarily public communication” (emphasis added). The
advertising program manager also acknowledged that Metro
“accepted noncommercial advertising generally” (emphasis
added). For example, in 2009 Metro ran a pro-atheism ad
(“YES, VIRGINIA . . . THERE IS NO GOD”) that generated
a large number of comments.
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. See
DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ., 196 F.3d
958, 967 (9th Cir. 1999) (distinguishing school district’s
practice of excluding political, religious, or controversial
public issue advertising from cases where “the city or transit
authority controlling the bus sign advertisements historically
accepted advertisements on a wide variety of subjects”); N.Y.
Magazine v. Metro. Transp. Auth., 136 F.3d 123, 130 (2d Cir.
1998) (“Allowing political speech . . . evidences a general
intent to open a space for discourse . . . .”); Planned
Parenthood, 767 F.2d at 1232 (transit agency’s history of
accepting political ads and wide variety of controversial
public issue ads indicated intent to create public forum). In
addition to its longstanding practice of generally accepting
“cause” advertising, Metro approved three prior controversial
30 SEATTLE MIDEAST AWARENESS CAMPAIGN V. KING CNTY.
ads specifically relating to the Middle East conflict. One ad,
sponsored by the Arab American Community Coalition,
stated “SAVE GAZA!” Another stated, “END SIEGE OF
GAZA!” A third ad, sponsored by the Jewish Federation of
Greater Seattle, stated “THOUSANDS HAVE FALLEN IN
PURSUIT OF PEACE, Remember Israel’s soldiers and
victims of terror. Join us in a moment of Silence on April 28
at 11:00 am.” 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. 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.
The majority observes that Titan rejected proposed ads
that did not comply with the contract. But the record does not
support the majority’s assertion that such rejection was
“routine,” and when ads were rejected, it was usually based
on the policy’s separate and specific restriction on alcohol
and tobacco content. Despite its supposedly selective
screening process, it appears that Metro had rejected only one
set of ads under the civility clauses prior to this case.
In 2009, pursuant to the civility clauses, Metro directed
Titan to reject a proposed series of ads submitted by “Citizens
for Home Safety.” These ads included language like “HATE
CRIMES COMMITTED BY CULTS ARE DESTROYING
THE USA” and “NAZI MEDICAL ABUSE COMMITTED
FOR 15 YEARS: State Hate Committed by Elected Officials
& Doctors.” The sponsors of this set of ads ended up
withdrawing their application before it was formally denied.
There is no evidence of Metro ever rejecting any other ad
under the civility clauses in the 30-plus-year history of its
advertising program. On the County’s motion for summary
SEATTLE MIDEAST AWARENESS CAMPAIGN V. KING CNTY. 31
judgment, the district court should have weighed this single
example against the ads Metro did accept, drawing all
appropriate inferences in SeaMAC’s favor. Consideration of
these ads tips the balance sharply toward the conclusion that
the County created a designated public forum.
The argument that Metro’s advertising policy was
consistently applied is also severely undermined by the
undisputed facts leading up to the cancellation of the
SeaMAC ad. Metro’s advertising program manager initially
approved the ad. It was then forwarded to Metro’s General
Manager, who also approved it as consistent with Metro’s
policy. Finally, the ad was sent to the King County
Executive, who “recognized that [the ad] was potentially
offensive to some of the community,” but “didn’t feel that it
rose to the level of violating [Metro’s civility] policy.” In
other words, it was approved at all levels in the County.
The County adhered to its opinion that the ad was
compliant with Metro’s policy for a period of time even after
a local television news station ran a story about the ad that
provoked complaints from the public. Only when the
heckling became louder did the County reverse itself.
Notably, the reversal came after the Metro Transit Police had
reviewed the ad and adopted a mid-range security plan it
considered sufficient to handle any potential disruptions.2
2
The majority asserts the potential disruption “wasn’t covered by the
existing security protocol because, as Metro’s Operations Manager stated,
it represented ‘a totally new and different situation that we [had not]
confronted before.’” But Metro’s Operation Manager made this statement
in the course of explaining that Metro did not have any pre-existing
“security plan for dealing with a disruption that had to do with a public
demonstration of some sort that had to do with what was on a bus.” Metro
32 SEATTLE MIDEAST AWARENESS CAMPAIGN V. KING CNTY.
One of the virtues of a consistently-applied rule is knowing
how it will be applied in the future. If SeaMAC’s ad had
actually run afoul of a consistently applied policy, as the
majority opines, surely it would not have made it past three
separate gatekeepers.
Perhaps recognizing that there is no actual track record of
consistent application of the civility clauses, the majority
argues that the court should “focus on the County’s
enforcement of the policy as a whole, not just the specific
provision invoked to exclude the ads at issue.” But the other
policy restrictions were narrow and specific, and applying
them did not require the County to look beyond the content
of the ad. They prohibited the promotion or depiction of
subjects like alcohol and tobacco, adult entertainment or
services, sexual or excretory activities, and material that is
false or defamatory. Allowing the County to piggyback its
ambiguous disruption and civility standards on its consistent
rejection of alcohol and tobacco ads opens a back door to
official arbitrariness and a heckler’s veto. With regard to the
civility clauses, the only consistent practice demonstrated by
the record in this case is Metro’s historically consistent
practice of allowing virtually any political ad. This well-
established pattern “trump[s] the general rule that no public
forum is created when the government requires speakers to
obtain permission before engaging in expressive activity in
the forum.” Hopper, 241 F.3d at 1077 (discussing Christ’s
Bride Ministries, Inc. v. Se. Pa. Transp. Auth., 148 F.3d 242,
252–55 (3d Cir. 1998)).
crafted a plan specifically for SeaMAC’s ad, which Metro’s Operations
Manager believed was sufficient to handle any potential disruptions.
SEATTLE MIDEAST AWARENESS CAMPAIGN V. KING CNTY. 33
The Third Circuit’s opinion in Christ’s Bride is
particularly instructive. There, a transit agency removed a
poster that declared “Women Who Choose Abortion Suffer
More & Deadlier Breast Cancer” after it received numerous
complaints, including a letter from the Assistant Secretary of
Health in the U.S. Department of Health and Human Services
stating that the ad was misleading and inaccurate. 148 F.3d
at 245–46. The transit authority’s policy restricted “libelous,
slanderous, or obscene advertising,” and reserved the right to
remove any advertising material that was later deemed
“material[ly] objectionable.” Id. at 250–51. The transit
agency claimed it had not created a public forum because its
written policy retained for it the sole discretion to reject or
remove ads it found objectionable. Id. at 251. But the Third
Circuit begged to differ, noting the transit authority had
accepted “a broad range of advertisements for display,”
including two prior ads favoring reproductive rights. Id. at
251–52. Additionally, though the main purpose of the
advertising program in Christ’s Bride was to generate
revenue, the record showed a secondary goal of “promoting
‘awareness’ of social issues and ‘providing a catalyst for
change.’” Id. at 249. Given the transit authority’s “practice
of permitting virtually unlimited access to the forum,” the
Third Circuit ruled the transit authority had created a
designated public forum. Id. at 252.
This case closely parallels Christ’s Bride. Like the transit
authority there, Metro’s “written policies . . . specifically
provide for the exclusion of only a very narrow category of
ads,” and Metro’s “goals of generating revenues through the
sale of ad space” and its “practice of permitting virtually
unlimited access to the forum” plainly establish that the
County created a designated public forum. Id. After
litigation was initiated, Metro’s General Manager declared
34 SEATTLE MIDEAST AWARENESS CAMPAIGN V. KING CNTY.
that “[i]t has never been a part of Metro’s mission to provide
a forum for public debate, especially on non-transit issues,”
but the record also includes a February 2009 email from a
Titan representative that speaks volumes about the historic
application of the policy. The representative was one of a
handful of individuals responsible for responding to the
controversy. The email, on which Metro’s advertising
program manager was copied, succinctly explains that
Metro’s restrictions “are there to allow the freedom and
opportunity for all organizations and associations either
political or non-profit to benefit from using transit as a form
of advertising their ‘cause’” (emphasis added). Post-
litigation declarations aside, Metro’s history of actually
allowing virtually unfettered access to anyone willing to
purchase advertising space on its bus exteriors establishes
that the County intended to open its government property to
public discourse, without the specific restrictions constitutive
of a limited public forum.
III. The nature of the forum does not compel a
contrary conclusion.
The purpose of a public bus system is to provide an
efficient and orderly means of public transportation; unlike a
public park, buses are not necessarily the type of government
property traditionally used for expressive activity. But
according to Metro’s advertising program manager, the
predominant purpose of the advertising program Metro chose
to create was to “generate revenue for Metro,” and Metro
decided to accept “noncommercial advertising, including
candidates for elected office, ballot measures, and ‘cause’
advertising.” See N.Y. Magazine, 136 F.3d at 130 (holding
that because MTA generally accepted both commercial and
political speech, the outside of MTA buses was a designated
SEATTLE MIDEAST AWARENESS CAMPAIGN V. KING CNTY. 35
public forum).3 There is nothing about selling ad space on
the exterior of Metro buses that is inconsistent with the
traditional use of Metro’s buses. Unlike judicial or municipal
buildings where expressive activity could interfere with
courtrooms or security, see, e.g., Sammartano v. First
Judicial Dist. Ct., 303 F.3d 959, 966 (9th Cir. 2002), the
record here contains no evidence that allowing expressive
activity interfered with Metro’s ability to operate as a transit
authority. In fact, it appears Metro was able to maximize its
ability to generate revenue to benefit the transit system by
opening up its advertising program to noncommercial
advertising.
I agree with the majority that the First Amendment does
not require a “categorical rule” designating a public forum
wherever the government has permitted some political
speech. The County could have allowed political campaign
advertising but not “cause” advertising, as many other transit
agencies have chosen to do. But when a government entity
3
In American Freedom Defense Initiative v. Washington Metropolitan
Area Transit Authority, 898 F. Supp. 2d 73 (D.D.C. 2012), the plaintiff
contracted with the transit authority to display a similar ad to the
counter-ad at issue here that said: “In any war between the civilized man
and the savage, support the civilized man. Support Israel. Defeat Jihad.”
Id. at 75. The transit authority indefinitely postponed the ad after a video
disgracing the prophet Mohammed led to anti-American violence in
several countries. Id. at 77. The district court noted that the D.C. Circuit
previously held that the transit authority had converted its subway stations
into public fora by accepting other political advertising. Id. at 79 n.6
(citing Lebron v. Wash . Metro. Area Transit Auth., 749 F.2d 893, 896
(D.C. Cir. 1984)). The district court, applying strict scrutiny, concluded
that the transit authority’s concerns of passenger and employee safety
were compelling, but the transit authority’s failure to consider alternatives
“plus the open-ended and purely subjective duration of its postponement
were not narrowly tailored as required.” Id. at 76.
36 SEATTLE MIDEAST AWARENESS CAMPAIGN V. KING CNTY.
decides to permit a “wide array of political and public-issue
speech,” including controversial political advertising, it
cannot escape the conclusion that it has opened the forum for
such speech generally, and it may not close the forum, after
the fact, to justify a content-based rejection of speech. See
United Food, 163 F.3d at 355.
The majority’s view seems to be that the government may
“elect[] to keep open” a designated public forum or a limited
public forum for as long as it sees fit, and close such a forum
“whenever it chooses.” I agree that outside of traditional
public fora, the government may choose not to permit certain
categories of speech on its property, but it must make that
choice up front. The court’s opinion suggests the government
may open and shut a forum, willy-nilly, in response to public
uproar—a particularly dangerous precedent in light of
modern technology. Emails, text messages, and tweets can
zing through the airwaves to and from countless devices in a
matter of seconds, generating scores of impetuous responses
just as fast. Given today’s modern and often anonymous
communication technology, public outcry can be frequent and
fleeting. Granting the government license to close a forum it
previously made open in response to such outcry confers
broad power on hecklers to stamp out protected speech they
find objectionable.
The First Amendment by no means puts the government
in a straightjacket; an essential aspect of the designated public
forum is that the government may adopt specific,
consistently-applied limitations, such as permitting only
commercial ads. But properly applied, First Amendment
doctrine plays a fundamental role in restraining the
government from picking and choosing which speech is
“uncivil,” or from succumbing to a heckler’s veto. This was
SEATTLE MIDEAST AWARENESS CAMPAIGN V. KING CNTY. 37
the logic behind well-reasoned decisions from other circuits
like N.Y. Magazine, Planned Parenthood, and Christ’s Bride,
with which this court professes accord, see Children of the
Rosary, 154 F.3d at 978, but from which the majority opinion
now distances itself.
Viewing the evidence in the light most favorable to
SeaMAC, it is clear that even if Metro initially intended to
limit access to its bus exteriors, it abandoned that intent by
allowing ads on controversial subjects “as a ‘matter of
course.’” Christ’s Bride, 148 F.3d at 254. Because we
should remand for the district court apply strict scrutiny in the
first instance, I respectfully dissent.