Seattle Mideast Awareness Campaign v. King County

Decisions to reject ads that threaten the transportation system’s mission to provide safe and reliable transportation for its customers, must be both reasonable and viewpoint neutral in order to comply with the First Amendment rights of those seeking to run the ad.

King County Metro mass transit system decided to open the sides of its buses to ad space through a contract with Titan Outdoor LLC. The contract contained a policy that rejected any ad that could undermine the safe operation of the buses, including “material that would foreseeably result in disruption of the transportation system or incite a response that threatens public safety.” The Seattle Mideast Awareness Campaign (“SeaMAC”) is a non-profit organization opposed to United States support for Israel. SeaMAC proposed an ad that was initially approved by the County and Titan. After approval, Titan received numerous calls and emails, which caused worry about running the ad. Metro’s Operations manager stated that the threat was not covered by the existing security protocol because it represented “a totally new and different situation” not confronted by Metro before. The ad was rejected by Titan, and SeaMAC sued the County alleging violation of its First Amendment rights. The district court granted the County’s motion for summary judgment. The district court concluded 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. On appeal, the Ninth Circuit agreed with the district court, noting that the intended purpose of the property at issue here - Metro buses - is to provide safe and reliable public transportation, and 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. The panel also dismissed the County's conditional cross-appeal as moot. AFFIRMED in part; DISMISSED in part.