Ads and the First Amendment: A Public Crisis

By Tanner Bowen

Tanner Bowen is a freshman at the University of Pennsylvania studying business.

The First Amendment is often cited as one of the most controversial yet most sacredly guarded rights of the United States Constitution. Even today, after numerous cases of litigation that have redefined our understanding of this fundamental right, the government’s ability to possibly restrict it is still hotly debated, as the Seattle Midwest Awareness Campaign (SeaMAC) discovered.

SeaMAC is a non-profit organization based in Washington State that is opposed to US support of Israel. In late 2010, SeaMAC applied for an advertisement spot on the Metro City Buses in Seattle for four weeks. The ad simply stated: “ISRAELI WAR CRIMES/YOUR TAX DOLLARS AT WORK/www.Stop30Billion-Seattle.org.” Although this ad was unequivocally controversial, it did not initially violate any of the Metro’s restrictions against profanity or any other defamatory or inappropriate content. Thus, King County approved the ad and intended to let it run until a local television broadcast picked up the story. 

After the story broke, a stream of emails poured into the Metro office threatening to either vandalize the buses or prevent them from running. King County’s Executive pulled the ad, stating that it violated Section 6.4(D) and 6.4(E) of their policies, which banned any material that could interfere with the running of the transportation system or incite lawless behavior. SeaMAC felt that its rights had been violated and sued King County for First Amendment discrimination. The Ninth US Court of Appeals picked up the case, and ruled in fact that the county’s decision to reject the ad was not a First Amendment violation.  

The first distinction that the Ninth Circuit had to determine was whether King County had created a public forum when they allowed advertisements to run on their buses. This is an important detail, since it is unconstitutional to limit freedom of speech in traditional or designated public forums without passing under strict scrutiny. [1] In the opinion of Circuit Judge Paul Watford, offering bus advertisements for sale to the public actually created a limited public forum. As compared to traditional public forums like sidewalks or designated forums that the government specifically sets up for public speech, the ability to run ads on city buses has historically been limited and subjected to higher scrutiny from entities like Metro, LLC.

Next, it was necessary to decide whether the censorship of the advertisement was reasonable. The Ninth Circuit pointed out that the primary goal of the Metro Transport System was to provide “safe and reliable public transportation.” The numerous threats of potentially destroying the buses or preventing them from running seemed literal instead of speculative and thus warranted King County’s decision to cut the ad in the public's best interest.

Finally, the Court had to determine whether the government's restriction of free speech in a limited public forum was viewpoint neutral. In this case, King County had a long history of denying applications to ads that did not meet their criteria. In addition, after the news story about the ad broke, some Jewish groups subsequently submitted applications for advertisements of their own alerting individuals that their tax dollars were going towards “Palestinian War Crimes.” However, the strongest evidence in favor of King County was that they completely censored the topic of the Israeli-Palestinian issue on both sides of the aisle. As Judge Watford pointed out in his opinion, “To be sure, excluding all speech on a particular subject—whatever the viewpoint expressed—is content discrimination, but it’s not viewpoint discrimination.”

In a case reminiscent of Tinker vs. Des Moines (the “black armband” case), the Ninth Circuit reminds us that the government can limit our freedom of speech if the speech could lead to “substantial disruption.” [2] As the dissent in the case pointed out, however, it is a rather fine line to consider when dealing with peoples’ rights.  It is also not obvious if actions such as this one are truly examples of the “heckler’s veto” in forcing the government to limit others’ right to free speech. Regardless of the various opinions on this particular case, it is safe to assume that we will continue to have these discussions about the implications of these rights and “public safety” for many more years to come.


[1] Pleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009).
[2] Tinker v. Des Moines Independent Community School District,  393 U.S. 503 (1969).

Photo Credit: Wikimedia Commons User Joe Mabel

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