Israel and Palestine on the sides of buses
In 2010 King County Metro refused to accept bus advertising from a pro-Palestinian organization. There ensued a chorus of shouting, including charges that the ads were anti-Jewish, then an American Civil Liberties Union lawsuit against Metro, a judge's ruling for Metro, then an appeal. Now news comes from the other side of the country: a federal judge in New York City has ruled that the transit authority there cannot reject pro-Israel bus ads under its current policy, even though the ads are demeaning to Muslims.
The proposed sign for buses here was: “Israeli war crimes: Your tax dollars at work.” The proposed sign in New York was: “In any war between the civilized man and the savage, support the civilized man. Support Israel. Defeat Islamic jihad.” Whether you agree with these signs is not the issue. It is what policies a government-owned bus line can have, if any, that allows it to reject either of the ads.
A private company could reject either ad, or both, without having to give a reason. But bus companies have not been private for decades. They are part of the government.
Since 1997, New York’s Metropolitan Transit Authority had a policy to reject any ad “demeaning on the basis of race, color, religion, national origin, ancestry, gender, age, disability or sexual orientation.” It decided that the “civilized man and the savage” ad was demeaning to Muslims and rejected it. Federal Judge Paul Engelmayer agreed that the ad demeaned Muslims. He didn’t agree with the policy, however, because it rejected ads demeaning to some groups but “permits all other demeaning ads.” Said the court:
“Under MTA’s no-demeaning standard, an advertiser willing to pay for the privilege is today at liberty to place a demeaning ad on the side or back of a city bus that states any of the following: ‘Southerners are bigots,’ ‘Upper West Siders are elitist snobs,’ ‘Fat people are slobs,’ ‘Blondes are bimbos,’ ‘Lawyers are sleazebags,’ or ‘The store clerks at Grestedes are rude and lazy.’ ” Said the court, “By differentiating between which people or groups can and cannot be demeaned on the exterior of a city bus, MTA’s no-demeaning standard discriminates based on content.”
Where does that leave King County Metro? Metro declined to talk about it because of the appeal to the Ninth Circuit. But a look at Metro’s policy shows that it is different from the MTA’s.
Metro has a "Transit Advertising Policy," dated Jan. 12, 2012. It declares that Metro wants to sell ads to increase revenue, not to provide “open forums for public discourse and debate.” It declines ads that would cause its employees to waste time, spend resources, or put the public at any risk. Along that vein, the county declines “advertising that contains material that disparages... ridicules or mocks, is abusive or hostile to, or debases the dignity or stature of any individual, group of individuals or entity.”
Notice the difference in policies. Metro doesn’t pick and choose the groups to protect from disparagement. It protects them all. I asked Bruce Johnson of Davis Wright Tremaine about this. He is Seattle’s preeminent attorney regarding commercial speech and the First Amendment. He said he thought Metro should be safe with that policy. But at the moment, it’s up to the Ninth Circuit.
All this legal reasoning is designed to protect government bus companies. For the public, the result is a lack of political spice in bus ads and a less robust political discourse. King County Metro won't even take bus ads for candidates for the King County Superior Court. As a patron, I would rather see a wider range of ads. I don't think the ad, “Israeli war crimes: Your tax dollars at work” is objectionable. It criticizes a government, not a religion. The other one I think is in bad taste, though I think it could fairly easily be put into acceptable form by not implying that Muslims are savages.
Achenblog by Joel Achenbach
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