Seattle Mideast Awareness Campaign v. King Cnty.

781 F.3d 489

SEATTLE MIDEAST AWARENESS CAMPAIGN, a Washington non-profit corporation, Plaintiff–Appellant

v.KING COUNTY, a municipal corporation, Defendant–Appellee.

Seattle Mideast Awareness Campaign, a Washington non-profit corporation, Plaintiff–Appellee

v.King County, a municipal corporation, Defendant–Appellant.

Nos. 11–35914

11–35931.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 3, 2012.

Filed March 18, 2015.

Venkat Balasubramani (argued), Focal PLLC, Seattle, WA; Jeffrey C. Grant, Skellenger Bender, P.S., Seattle, WA; Sarah A. Dunne, Vanessa T. Hernandez, M. Rose Spidell, La Rond Marie Baker, ACLU of Washington Foundation, Seattle, WA, for Plaintiffs–Appellants.

Endel R. Kolde (argued), Daniel T. Satterberg, Cynthia S.C. Gannett, Jennifer Ritchie, King County Prosecutor's Office, Seattle, WA, for Defendant–Appellee.

Steven A. Reisler, Steven A. Reisler, PLLC, Seattle, WA, for Amicus Curiae National Lawyers Guild–Seattle Chapter.

Appeal from the United States District Court for the Western District of Washington, Richard A. Jones, District Judge, Presiding. D.C. No. 2:11–cv–00094–RAJ.

Before: ALEX KOZINSKI, MORGAN CHRISTEN, and PAUL J. WATFORD, Circuit Judges.

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 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:

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.

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 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 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 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...