Thugs Win Again
Eugene Volokh ? February 25, 2011 4:07 pm
This time they are pro-Israel thugs as opposed to extremist Muslim thugs (and various other thugs), but thugs are thugs. Here?s what happened; I quote Seattle Mideast Awareness Campaign v. King County (W.D. Wash, decided last Friday): The county Department of Transportation in Seattle sells advertising on buses; the Seattle Mideast Awareness Campaign bought space for an anti-Israel ads: ?The proposed ad read ?Israeli War Crimes: Your Tax Dollars at Work,? and featured a picture of children next to a bomb-damaged building.? When this hit the news, the Department got lots of objections, including ?four [messages that] suggest[ed] an intention to disrupt or vandalize buses, four [that] communicate[d] violent intentions, [and] approximately twenty [that] express[ed] concern for rider safety.? The first two categories consisted of these messages:
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 am a law-abiding citizen that would have no qualms defacing the message if given the opportunity. I will also be glad to form a peaceful, human blockade of buses that I help pay for that are promoting racist messages.
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!
AN ATTY WHO SAYS THE SIGNS ARE PERMITTED UNDER THE FIRST AMENDMENT IS FORCING ME TO CONDUCT VIOLENCE JUST TO PROVE THAT I AM REALLY UPSET AT THESE HORRIBLE WORLD WAR2 KINDS OF HATRED SIGNS.
Maybe you should take note that you just ?incited? ME to anger all the way from Austin, Texas! You want WAR against the Jewish people??? YOU GOT IT!
YOU ARE TRULLY (sic) DISGUSTING AND DESPICABLE??..AND JUST REMEMBER ?KARMA? what comes around goes around!!! Oh, and by the way, if you dumb asses at the King County Metro pull more shit!! We will be on you like stink on a monkey!!! CAUSE GUESS WHAT, WE JEWS ARE NOT THE SAME AS THE JEWS OF EUROPE DURING THE SECOND WORLD WAR!! WE GET PISSED OFF, WE TAKE ACTION!!!
SO HELP ME GOD I BETTER NOT SEE ONE OF THOSE ADS ON A BUS. I MIGHT NOT BE ABLE TO CONTROL MYSELF. IM NOT SURE. SEATTLE = NAZI?S.
Now not all these messages clearly threaten violence or vandalism, but at least some do. And while that?s not the level of thuggery involved in actually acting violently, it?s bad enough. (The court also mentioned that ?a security guard found photographs of
severely injured people and buses destroyed by explosives, with ?No to bus ads for Muslim terrorists? written across the top, shoved under the door at the Metro Customer Service Center,? but it?s not clear to me whether this was a threat to attack Department buses, or a photo of an Israeli bus destroyed by Palestinian terrorists, used as an argument that the Israelis are sinned against rather than sinning.)
The Department then canceled the ad contract, partly based on these messages. And the federal District Court held that the action was likely constitutional, because the ad violated city policy that excluded 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, the court said, was viewpoint-neutral and reasonable, when applied to this ad, because ?The threats of violence and disruption from members of the public ... led bus drivers and law-enforcement officials to express safety concerns.?
Now on the one hand I sympathize with the Department?s safety concerns, and its desire to protect passengers. But on the other hand, behavior that gets rewarded ? here, the making of threats ? gets repeated.
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?
Now perhaps the Department?s and the court?s reasoning might be limited to speech that is in a ?limited public forum,? and might exclude speech ina traditional public forum, such as a park or sidewalk, or speech on private property where the property owner is willing to allow the speech. In such cases, the government may not suppress speech (or even impose mild extra costs on the speech) because of the threat of violent retaliation. See Forsyth County v. Nationalist Movement (1992). But this still means that thuggish threats would suffice to suppress speech not just on buses, but in libraries or city buildings that are open to civic group meetings, in university buildings that are open to student groups, and so on.
Nor can the Department?s and the court?s rationale be limited to speech on buses or other transportation systems, on the theory that those places are especially vulnerable to an attack that could kill many people, and that can?t be constantly protected by the police. After all, nothing says that thugs need to threaten to attack the offending speech; the next time, for instance, there?s a controversial speech in some city building ? however well-protected the building might be ? the thugs could threaten to attack city buses in retaliation for the speech. Exactly the same argument for suppressing the speech, for fear of violent retaliation, could then be made.
Note also that this is not the same as the question whether government agencies should be free to refuse to run political ads that they think are wrongheaded, or likely to offend paying customers. The current precedents generally do not allow such restrictions on ads, even when the ad is on government property, but one could make plausible arguments against those precedents.
Here, though, the problem is not just that the government may refuse to run offensive ads; it?s that it is creating an incentive to threaten violence ? and even to commit violence, though as I mentioned it seems like a few threats might well be enough. It?s contributing to a society where thuggery gets results, and that?s a society where there will be more and more thuggery.
For a likely less thug-friendly approach, see Sonnier v. Crain (5th Cir. 2010)/
http://volokh.com/2011/02/25/thugs-win-again/
