On Tuesday, Judge Koeltl, a federal judge for the Southern District of New York, ordered the Metropolitan Transportation Authority (“MTA”) to display on its buses an advertisement, which criticizes Hamas and radical Islam, as protected speech under the First Amendment. The politically controversial ad was submitted by the American Freedom Defense Initiative (“AFDI”), a pro-Israel group. The ad had previously run in Chicago and San Francisco in early 2013 without inciting violence.
As described in Judge Koeltl’s decision, the MTA had refused the ad based on advertising standards adopted in 2012, specifically MTA Standard § (a)(x), which prohibits advertisements that “could incite or provoke violence or other immediate breach of the peace and so harm, disrupt, or interfere with safe, efficient, and orderly transit operations.” This language invokes two categories of unprotected speech previously defined by the U.S. Supreme Court: “fighting words,” in Chaplinky v. New Hampshire, 315 U.S. 568, 572 (1942), and incitement of violence or lawlessness, in Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). The MTA Security Director, Raymond Diaz, concluded that the ad submitted by the AFDI promoted violent attacks on Jewish people, and that it was reasonably foreseeable that the ad would incite violence in violation of the above standard.
The AFDI intended the ads as a counter to a “My Jihad” campaign run by the Council on American-Islamic Relations, which depicted Muslim individuals with positive messages, such as “‘#MyJihad is to build friendships across the aisle.’ What’s yours?”. The AFDI ads mimicked this structure and include Islamic extremist quotes or acts of violence, with the text “That’s #My Jihad. What’s yours?”.
Judge Koeltl first found that advertising space on the side of MTA buses is a “designated public forum,” where content-based restrictions on expression must be analyzed under strict scrutiny, the highest burden for a government (or state agency) to satisfy. The MTA conceded that the refusal to display the ads at issue was based on their content. However, Judge Koeltl found that the content in the AFDI ad did not constitute “fighting words” nor “the advocacy of the use of force” and therefore is afforded the highest level of protection under the First Amendment. The court then held that the standard cited in MTA Standard § (a)(x) failed to satisfy the requirements of strict scrutiny.
More via the Washington Post.