The ACLU of Washington, a regular litigant in free speech lawsuits, says the county's decision to pull 12 controversial anti-Israel bus ads and declare a moratorium on non-commercial advertisement violates the law.
"What they've done so far is illegal," says Kathleen Taylor, executive director of the ACLU of Washington. She says that the county went afoul by accepting money and then refusing to post the ads after they proved controversial. "They've changed their policy after accepting ad revenue and are now retroactively applying this new policy. I don't know what they're thinking. I'm really disappointed in Dow Constantine." Furthermore, Taylor says the county policy to refuse noncommercial ads may violate free-speech rights.
At issue is a December 23 decision by King County executive Dow Constantine to refuse to post 12 advertisements criticizing "Israeli War Crimes" on the sides of Metro buses. The ads, purchased by the Seattle Mideast Awareness Campaign, were slated to run this week. But Constantine pulled the posters after King County Council member Peter von Reichbauer complained that the ads would incite anti-Semitic violence. The ads triggered a national outcry that included at least 500 calls and emails to King County Metro and plans for at least two counter ad campaigns.
"The county should rethink its decision [to pull the ads]," says Taylor, whose organization has been in contact with the Seattle Mideast Awareness Campaign. Meanwhile, "Our lawyers are sharpening their knives," she says.
In addition to blocking the ads, last week Constantine issued a 30-day moratorium on all non-commercial bus advertising while the county considers a new policy. Apparently trying to address concerns that a continued ban may violate the First Amendment, Constantine wrote last week in a statement, “Further work during the coming weeks will help determine what constitutionally-valid policy is best." In the meantime, he continued, “We cannot and would not favor one point of view over another, so the entire category of non-commercial advertising will be eliminated until a permanent policy can be completed that I can propose to the King County Council for adoption."
Under the current moratorium, KC Metro would reject advertising that read "Read Books! They're Good for You!" or "Please Don't Shake That Baby!"
These are innocuous examples, sure, but if you're going to accept advertising, particularly as a government agency, that means accepting advertising that's not palatable to everybody all the time—including politically charged ads. By issuing a temporary moratorium on all non-commercial ads, Constantine has effectively closed off one of the most affordable, ubiquitous advertising options for agencies that do good work—like the American Lung Association, Meow Cat Rescue, Child Care Resources of King County, the Millionaire's Club—and at least 81 other nonprofits, government agencies, and political campaigns took non-commercial ads in 2010, according to KC Metro spokeswoman Linda Thielke. Thielke says that KC Metro took in $479,000 from these non-commercial ads (out of $5.5 million in Metro ad revenue). It may seem like a relatively small part of the pie, but that's still a half-million dollars in annual revenue diverted from an agency that's gearing up for a massive deficit in its 2011-2012 budget.
"The response to speech you don't like is more speech," says Taylor. "It's really sad that a county named after Martin Luther King wants to place commercial speech above political speech," says Taylor. "Everything is controversial until people get used to it."
The ACLU, while apparently preparing for a lawsuit if need be, says it is trying to work with Constantine's office to draft a permanent ad policy by the end of January.