In a stunning 2-1 decision the 9th Circuit Court of Appeals upheld a discriminatory 2011 ruling in favor of King County Metro Transit’s refusal to run Seattle Mideast Awareness Campaign (SeaMAC) bus ads “Israeli War Crimes: Your Tax Dollars at Work,” in violation of SeaMAC’s 1st amendment right to free speech.

I spoke with SeaMAC’s Ed Mast on Friday and asked him what the group’s next move will be. Upbeat as always, even after waiting almost 3 years for the courts decision, he expressed they had not had time to plan their next move yet or talk to the ACLU who represented SeaMAC in the appeal of the 2011 ruling.

I asked Mast if doing nothing was an option. His response was swift and unwavering: “No. Not doing anything is not an option at all.”

The ongoing saga began when King County Metro approved SeaMAC’s ads in 2010 and then abruptly canceled the contract before the ads were displayed. The Metro claimed that threats of vandalism, including the warning that “Jews would take physical action” against the ads, could disrupt transit service. Since then the county metro system has claimed to take a “viewpoint neutral” policy of rejecting all ads relating to Israel/Palestine as part of an effort to ban debate of public issues in bus ads, but it undertook a “quiet policy change” to accommodate ads by Islamophobe Pamela Geller. The court’s decision supports this double standard which has in practice endorsed Geller’s views while censoring SeaMAC’s.

Mast doesn’t believe SeaMAC has been shown evenhanded treatment by the county:

“We have not been treated fairly by King County, since this case’s inception. King Country Metro has accepted ads by Pam Geller, and turned down another of our ads telling us it was factually incorrect which it is not. One particular ad, “The Palestinian Authority Is Calling for a Jew-Free State” is not a factual claim. We asked them ‘Show us what you have looked at’, and it was propaganda! They ran it anyway.

We subsequently ran other ads, print ads with a Palestinian face, ‘Not allowed to ride on Israel segregated buses’ and they rejected it — said it was factually untrue and might cause disruption. We showed them Human Rights Watch reports, UN reports, B’tselm reports and they still rejected it. The courts have not treated us fairly either.”

The Los Angeles Times skewered the courts decision saying the “federal appeals court wrongly [has] ratified” the lower courts decision; “The 9th Circuit got this one wrong.” Citing dissenting Federal Judge Morgan Christen:

the majority “suggests the government may open and shut a forum, willy-nilly, in response to public uproar — a particularly dangerous precedent in light of modern technology.” Christen said the 9th Circuit should have sent the case back to the trial court to determine whether safety concerns supported the county’s action. ……

A transit agency isn’t required by the Constitution to sell advertising to proponents of various causes…But once an agency decides to turn its buses into public forums, the 1st Amendment prevents it from declaring an entire subject off-limits because it wants to avoid controversy. The 9th Circuit got this one wrong.

I asked Mast to address what the Times referenced as a “troubling aspect of the decision — a heckler’s veto” to shadowy protesters.” He responded asking why King County “took all those supposed threats, quotes, as credible but not credible enough to investigate or take any law enforcement action. They are applying their own rules unfairly, randomly, and unequally. We’ve seen law enforcement take action against a lot less. Currently we have ads running in 3 other cities without disruption.”

Mast concluded, “This is bad for free speech and bad for Palestine. They, the courts, have no business making decisions when there are still factual disputes with King County. They are in the wrong side of history. We think King County has a lot to answer for, the court is letting them off the hook but we’re not.”