New York Federal Court Orders MTA to Run Advertisement Opposing Jihad

by Mike Mintz on July 31, 2012 · 0 comments

in Constitutional Law,Legal News and Trends,Litigation

Recently a federal district judge in New York ruled that New York’s Metropolitan Transportation Authority’s restriction on “demeaning” speech was violative of the U.S. Constitution. See American Freedom Defense Initiative v. Metropolitan Transportation Authority, No. 11-cv-6774 (S.D.N.Y. 2012)

Specifically, the MTA refused to run an advertisement that was anti-jihad. The ad stated “In Any War Between the Civilized Man and the Savage, Support the Civilized Man. Support Israel. Defeat Jihad.”  The ad had been set to run on the exterior of 318 of its buses for one month.  The MTA justified its refusal by claiming that the ad violated the MTA’s policy against displaying “images or information that demean an individual or group of individuals on account of race, color, religion, national origin, ancestry, gender…” The ad referred to Israel’s enemies “as savages who engaged in jihad”.

The court found the MTA’s standards regarding which speech it found acceptable violated the First Amendment because the MTA, a governmental agency, was being selective in terms of the type of politically controversial and even demeaning speech it allowed to run on ads placed on its vehicles.  The MTA inexplicably drew the line at speech that demeaned specific groups or individuals only if they fit within the MTA’s protected classes, here, Muslims embracing “savage jihad”.

The court relied on a 1998 2nd Circuit opinion New York Magazine v. MTA in which the court concluded that the ad space on public buses should be considered a public forum.  Moreover, the court reasoned, since the ad contained “core political speech” it was entitled to the “highest level of protection under the First Amendment”.  The MTA incorrectly differentiated between people and groups based on whether it found the speech demeaning, thereby discriminating based on the speech’s content.  The court noted that the “demeaning” standard the MTA employs does allow for demeaning statements on a host of other topics, just not this one. The court faulted this selective standard.

The court’s preliminary injunction preventing the MTA from enforcing their discriminatory standard is set to go into effect in thirty days.

The lawsuit had been filed by the American Freedom Law Center (AFLC) on behalf of the American Freedom Defense Initiative (AFDI).

This advertisement   came on the heels of an anti-Israel ad that the MTA did display on its property by a pro-Palestinian group.    The Palestinian ad claimed that they were on the side of “peace and   justice”.As senior   counsel of AFLC noted, a governmental agency, which is clearly subject to the   requirements and prohibitions of the Constitution, cannot cherry pick which   ads or messages it allows on a specific subject based on their content or   viewpoint.  That is a fundamental basis   of the First Amendment.  The First   Amendment is not designed to protect merely polite, politically correct   speech that does not offend anyone.  If   it did, it would not have any teeth.    The First Amendment was specifically crafted to protect those who   challenge the status quo or accepted beliefs.    In this case, the First Amendment protects those attacking the   accepted “political orthodoxy” by referring to “sharia-mandated jihad”   against Christians and Jews who “occupy” any part of the world that Islam   claims for itself.Counsel for   AFLC went on to draw an analogy between the FBI’s and U.S. military’s refusal   to investigate connections between radical Islam’s support of jihad and   violence and their “political censorship” and Major Hasan’s ability to carry   on a dialogue with the known terrorist Anwar al-Awlaki until Hasan acted on   jihad’s principles and murdered 13 Americans and wounded another 29.Before the   court issued its ruling on the case, it held an evidentiary hearing in which   AFLC’s counsel cross-examined the MTA official in charge of advertisements   for two hours. The hearing was then followed by oral argument.

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