A federal judge has invalidated a New York City Metropolitan Transit Authority ban on a pro-Israel, anti-Jihad poster, because the standard the MTA applied — whether an advertisement was “demeaning” to certain groups — was unconstitutional because it discriminated on the basis of content of speech in what the court found to be a public forum.

The opinion is embedded at the bottom of this post.

Via NY Times (h/t reader Frank):

A federal judge in Manhattan ruled on Friday that the Metropolitan Transportation Authority violated the First Amendment rights of a pro-Israel advocacy group when it rejected advertisements the group wanted to place on city buses because the agency said the ads contained demeaning language.

The group, the American Freedom Defense Initiative, had wanted to place text-only advertisements that said, “In any war between the civilized man and the savage, support the civilized man.”

Then, between two Stars of David, the advertisement said: “Support Israel. Defeat Jihad.”

The group is run by Pam Geller, who posted a copy of the poster along with her report of the court victory:

The ban on the poster by the MTA was based on the following advertising standard, as quoted in the Court opinion:

The prohibition relevant to this case is the one on ads which demean an individual or group on account of “race, color, religion, national origin, ancestry, gender, age, disability or sexual orientation.” ….

Elaborating on the basis for rejecting the AFDI Ad, Rosen [of MTA] stated that the use of “savage” and “Jihad” to identify those who fail to support Israel “demeans a group (or groups) of individuals on account of their religion, national origin, or ancestry, including Palestinians or other Arabs or Muslims who do not share AFDI’s views on Israel.”

The Judge found that the ad did violate the MTA’s standard:

In the Court’s view, MTA reasonably read the AFDI Ad to target as “savages” persons who adhere to Islam, i.e., Muslims.

But the Court found the standard to be unconstitutional because it discriminated based on the content of speech in what the court found to be a public forum :

As a threshold matter, the Court notes that the AFDI Ad is not only protected speech—it is core political speech. The Ad expresses AFDI’s pro-Israel perspective on the Israeli/Palestinian conflict in the Middle East, and implicitly calls for a pro-Israel U.S. foreign policy with regard to that conflict….

It proscribes ads that demean a person or group on account of one of nine enumerated subjects: “race, color, religion,
national origin, ancestry, gender, age, disability or sexual orientation.” But, outside of these “specified disfavored topics,” R.A.V., 505 U.S. at 391, MTA’s standard permits all other demeaning ads.

… MTA’s standard permits ads that demean individuals or groups based on a host of circumstances and characteristics—including place of residence, personal history, education, occupation or employment, physical characteristics (other than disability), political affiliation, union membership, point of view, or behavior….

To illustrate the point concretely, under MTA’s no-demeaning standard, an advertiser willing to pay for the privilege is today at liberty to place a demeaning ad on the side or back of a city bus that states any of the following: “Southerners are bigots”; “Upper West Siders are elitist snobs”; “Fat people are slobs”; “Blondes are bimbos”; “Lawyers are sleazebags”; or “The store clerks at Gristedes are rude and lazy.” The regulation also does not prohibit an ad that expresses: “Democrats are communists”; “Republicans are heartless”; or “Tea Party adherents are barbaric.” The standard would also countenance an ad that argues: “Proponents [or opponents] of the new health care law are brain-damaged.” Strikingly, as MTA conceded at argument, its no-demeaning standard currently permits a bus ad even to target an individual private citizen for abuse in the most vile of terms….

By differentiating between which people or groups can and cannot be demeaned on the exterior of a city bus, MTA’s no-demeaning standard, like St. Paul’s ordinance, discriminates based on content….

Whatever weight might be assigned to the governmental interest in banning demeaning speech on the exterior of New York City buses on an even-handed basis, there is no good reason for protecting some individuals and groups, but not others, from such abuse. MTA’s nodemeaning standard, as currently formulated, is, therefore, inconsistent with the First Amendment.

The opinion expressly leaves open the possibility that the MTA could ban the poster, but only if it applied the standards uniformly.

American Freedom Defense Initiative v MTA – Opinion July 20 2012


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