On April 21, a federal court ruled that New York City’s Metropolitan Transportation Authority (MTA) violated the First Amendment by refusing to run the “Hamas Killing Jews” advertisement displayed below and must therefore display the advertisement on MTA buses.
The ad’s sponsors, Pamela Geller, Robert Spencer, and the American Freedom Defense Initiative (AFDI), sought to run the advertisement on MTA buses last August, but the MTA refused, claiming that Muslims in New York might understand the ad to be advocating violence, thereby inciting them to murder Jews as Islamic worship.
The American Freedom Law Center (AFLC) promptly filed a federal civil rights lawsuit against the MTA for refusing to run the ad. The lawsuit was filed in the United States District Court for the Southern District of New York on behalf of the advertisement’s sponsors. AFLC also filed a motion for preliminary injunction, asking U.S. District Court Judge John G. Koeltl to issue an order forcing the MTA to display the ad even in advance of a final ruling since the MTA’s conduct was a transparent and egregious violation of AFDI’s free speech rights protected by the First Amendment.
On March 24, 2015, the court held a five-hour-long hearing that included live testimony from MTA employees, including the MTA’s director of security, Raymond Diaz, followed by oral argument. The court’s ruling granting the preliminary injunction was issued today. In his opinion, Judge Koeltl made clear that the MTA’s refusal to run the “Hamas Killing Jews” advertisement was a blatant violation of the First Amendment and that the MTA’s claim that the advertisement advocated violence or was likely to incite violence was “thoroughly unpersuasive,” particularly in light of the fact that the same ad had run earlier in Chicago and San Francisco without incident.
Judge Koeltl continued along this line:
The defendants [the MTA and its top executives] contend that the advertisement could be read as urging a subset of Islamic extremists to follow Hamas’s command, but if that group is as violent and radicalized as the defendants contend, presumably they would not need a bus advertisement to remind them of Hamas’s interpretation of the Quran. . . . It strains credulity to believe that New Yorkers would be incited to violence by ads that did not incite residents of Chicago and San Francisco to similar acts. This is not to minimize the terror threats to New York City, but those threats do not arise from these fleeting advertisements.
In arguing that granting the injunction is against the public interest, the defendants point to the global and local threat posed by terrorism. But as explained throughout this opinion, such generalized fears, only tangentially connected to the ad in question, do not outweigh the public interest in protecting First Amendment rights.
David Yerushalmi, AFLC Co-Founder and Senior Counsel, commented:
Judge Koeltl’s well-written and considered opinion sends a loud and clear message to Islamic terrorists around the globe as well as to those government bureaucrats who believe that Sharia’s blasphemy laws are an exception to the First Amendment. And that message is this: America’s liberties will not give way to Islamic terror threats nor to government bureaucrats who are quick to cast aside our liberties for fear of offending Muslims.
Robert Muise, AFLC Co-Founder and Senior Counsel, added,
Under the First Amendment, the government is not permitted to impose special prohibitions on speech out of fear that some members of the public might react violently to its content. Quite simply, the First Amendment knows no heckler’s veto. This opinion forcefully confirms this fundamental principle of First Amendment jurisprudence.
If the MTA was able to get away with this obvious ploy to manufacture a threat when this ad has already run without incident in Chicago and San Francisco for months, it could use this sort of pretext to shut down all unwanted speech. This would not only make a mockery of the First Amendment, it would actually encourage the thuggery and violence the MTA claimed it fears.
AFLC has now won two federal lawsuits against the MTA, one against the Washington, D.C. transit authority, and one against the Philadelphia transit authority on behalf of its clients, Pamela Geller, Robert Spencer, and AFDI. Cases are still pending in Detroit, Boston, and Seattle.