“Keeping It” in Seattle: Flunking the Duty To Stand Up To Anti-Speech Bullies

Could it be time for an “Everybody Beat on Israel Day”?

Count me out. Still, there is finally an instructive example of bullies who don’t embrace radical Islam causing First Amendment timidity, and raising ethical issues too.

Seattle’s Department of Transportation sells advertising on city buses. When the “Seattle Mideast Awareness Campaign” bought space to condemn Israel’s policies with ads headlined,‘Israeli War Crimes: Your Tax Dollars at Work’ featuring a picture of children next to a bomb-damaged building,” the Department was flooded with protests by Jews and Israel supporters. Most of them were stern, indignant or argumentative, but about 25 conveyed an intention to disrupt or vandalize buses,take violent measures, or suggested that bus riders would soon be at risk.” Some examples:

  • “If you want to see how tough Jews can be, then go ahead and run those despicable ads and we’ll see who has the last word on this. If you run these ads, we will work together with our Jewish friends and others to shut Metro down.”
  • “I think I will organize a group to riot at your bus stops.”
  • “I will personally throw paint at any such sign, and stand and wait for prosecution –- I want a forum in court!”

The Department then canceled the ad contract, and after the group sued, the federal District Court  held that city’s refusal to run the ad was constitutional, because city policy appropriately allowed Seattle to reject ads that are…

“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” or that are “directed at a person or group” and are “so insulting, degrading or offensive as to be reasonably foreseeable that [they] will incite or produce imminent lawless action in the form of retaliation, vandalism or other breach of public safety, peace and order.”

This policy could be reasonably applied to this ad, the court said, because “The threats of violence and disruption from members of the public … led bus drivers and law-enforcement officials to express safety concerns.”

I might not have accepted the ad in the first place. A political advertisement can be controversial, but when the political view appears to be aimed, or will be widely perceived as being aimed, at a particular ethnic, racial or religious group in the community (in this case, Seattle’s Jews), then it isn’t clearly unreasonable to decide that a city bus may not be the best place for it. Even interpreting the Seattle standards to be First Amendment compliant, however, this is a close call. Criticizing Israel’s policies regarding Palestinians may offend many people, but it is a legitimate activity that our government engages in itself from time to time.

Once the Seattle ad was accepted, though, it created a First Amendment Catch-22 to hold that threats by those who object to the message create a justification for taking it reversing the decision. As First Amendment expert Eugene Volokh, who flagged the episode, wrote…

“The message is clear: If you want to stop speech that you dislike, just send a few threatening messages and you’ll win. You don’t actually need to act violently, and risk punishment for that. You could send the threats anonymously, in a way that makes it quite unlikely that you’ll be punished. In fact, it might well be that — as in this case — the agency will not even try to get you punished. (“[N]one of the threatening communications were referred to law enforcement.”) The very fact that the speech suppressors here weren’t that awful just makes the speech suppression itself even more dangerous. Indeed, might the thugs in this case have learned this very lesson from past incidents where threats have led to the suppression of speech? And what will future thugs learn? What speech, whether pro-Israel, anti-Israel, pro-atheism, anti-Islam, pro-Christianity, pro-animal-research, or whatever else will be immune?”

I can answer that last question, and so can you: nothing will be immune.

It is cowardly and hypocritical for the suits at Comedy Central, which is proudly and supposedly defiantly in the feather-ruffling and speaking truth to power business, to censor a joke in “South Park” because of fanatic Muslim death threats. They, like all Americans and American organizations, media, businesses and associations, have the citizens’ duty to respect and stand up for free expression when it is threatened. Our governments, however, have an even greater duty. They must actively protect our Constitutional rights, and not meekly devise ways to justify or excuse their inhibition and infringement when it is inconveneient, expensive or politically risky. The Nazis who applied for a permit to march in Skokie in 1977 were likely to be inciting lawless action; they were aiming their march against a group, and their message was extremely offensive to the comminity. Still, the Illinois courts ruled that the government could not use fear of violence as an excuse to deny them on the basis of their message.

Threats like those received by Seattle’s Department of Transportation must be given no weight or persuasive power when the rights of free speech and assembly are at stake. We have heard much fear and criticism expressed by misguided voices on the Right that the popular uprisings in Africa and the Middle East threaten “stability” and “order” and “predictability.” Well, democracy is often disorderly, unstable and unpredictable. Although it is politically incorrect to say so, it took a special breed to embrace the challenges of democracy in America three centuries ago, with the frontier-bred orneriness, independence, idealism, optimism, courage and conviction to accept all the messiness and conflict that can and must accompany it. Recoiling from the battlements of freedom because some—Professor Volokh properly calls them “thugs”— threaten disruption and violence gives such tactics power and legitimacy they do not deserve, and is nothing less than an abdication of the government’s obligation to do what is necessary to preserve our values.

It is said that after the Declaration of Independence was announced, an acquaintance of Benjamin Franklin inquired of him, “Well, Doctor, what have we got—a Republic or a Monarchy?”

“A Republic, if you can keep it,” the sage replied.

Keeping it requires state, municipal and national government officials who resolve to protect free speech and free speakers against threats and intimidation, and not avoid conflict by suppressing the opinions that provoke them. That is their duty, and if government officials don’t have the stomach for it, they should step aside for someone who does.

[Those who are interested in this case should read Professor Volokh’s post and the lively comments that followed it, here.]

12 thoughts on ““Keeping It” in Seattle: Flunking the Duty To Stand Up To Anti-Speech Bullies

  1. First of all, the city was stupid and negligent to not have an ad policy for what is appropriate and not appropriate to advertise on city buses. If “an ad that singles out an ethnic or racial group for criticism” isn’t on that list, some people at the Seattle Transit Authority need to be fired. Once accepted, however, they needed to run the ad for the time specified (and if someone signed a contract to put that on buses for an entire year, they need to be fired too).
    Second, you knew when you took that ad that you were going to get criticized. You knew when you put ads on buses for anything, you were going to get criticized. A mere twenty-five complaints vaguely or explicitly threatening violence doesn’t seem like a lot for Seattle. I would think you could get a similar amount by advertising McDonald’s™ Happy Meals. I could get more violent threats than that in any town over 500 by writing to the editor suggesting the school drop football to save enough money to buy books for the math classes (which currently don’t have any in my town).

    In other words, fulfill your (bad) contract and take the just criticism for your action. Denounce threats of violence as a curb to free speech and get on with life as usual.

    • What was bad about the contract?

      Why do you think the city doesn’t have a policy about acceptability of ads, especially when it’s quoted above?

      This is a situation where some censorship is allowed, but the city has a content neutral policy. This ad did not overstep the bounds by any reasonable standards. Denying it would have been an issue originally. It’s an even worse issue now.

      • I agree. Sure, the issue may be touchier than some other foreign policy, human rights issues, but a “no knocking Israel” policy on the illegitimate grounds that criticism of Israel is per se anti-Semitic (the cousin of claims that if you criticize Obama, Rangel or Holder, you’re a racist) is indefensible. (I wrote that I might choose not to run the ad under the current law…but I think the current law stinks. I’d run the ad.)

        • You, clearly are an anti-semite. Once something has been called anti-semitic, it’s clearly anti-semitic to defend it. That’s just basic reasoning! You can’t even do it if your Jewish. Then you’re just one o’ dem dere “self hating Jews,” doncha know?

  2. It is a city bus. My reasoning is maybe a little more pragmatic, and a little less First Amendment. The job of the city bus is to transport people from one place to another. It should not be a flashpoint for protests that might hinder that mission. In any large city, there are a lot of flashpoint issues that can lead to picketing and mildly violent action (throwing paint balloons, etc). Although regrettable, many legitimate billboard messages would result in those actions if placed on a city bus. I think people should stand up and fight for the First Amendment principles that are being trounced in this case. I just don’t think the city should force public transportation riders to fight that battle every day just to get to work.

    • That still leaves the central problem, that whether a message is liable to disrupt the transportation as determined by the people who want to suppress speech. If they want to male Girl Scout Cookie ads too disruptive, all they have to do is issue some credible threats.

  3. I was introduced to a term years ago in the writings of the estimable Nat Hentoff. He referred to cancelling a speech or demonstration because of fears that violence might ensue as a result of it going forward as the “heckler’s veto.” (I cannot recall, however, whether Hentoff coined the term or was simply quoting it.) It is so precisely descriptive of what’s going on in cases of that sort, that it has stuck with me ever since.

  4. That is the problem with selling ads on the buses. It isn’t supposed to be a rolling billboard or a bastion of free speech. It is supposed to be transportation. If they are going to sell ads on the bus that disrupt that process, then it is defeating the purpose. If you had ads at a subway station that were gathering protests day after day that made it difficult or impossible to actually use the subway station, then you should move the ads elsewhere. Imagine if they keep the ads on the buses. The next ad has a picture of Mohammed and the text “Islam = Genocide”. Then the next inflammatory ad appears. Do you want to have to ride on the rolling protest target every day? If you want to have the ad war, fine. Just don’t do it on the buses.

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