How New York City Buses Are Becoming Vehicles for Hateful Speech
Last week, the federal courts chalked up another victory for the defense of American freedom—or, rather, for the American Freedom Defense Initiative. Judge John Koeltl of the Southern District of New York ruled that the MTA must display an advertisement known as “the ‘Killing Jews’ advertisement.”
“Killing Jews” (the court’s abbreviation, not mine) is a response to an ad campaign run by the Council on American-Islamic Relations about the concept of “lesser jihad.” As part of its #MyJihad ad campaign to “take back Islam from Muslim and anti-Muslim Extremists Alike,” that group ran a series of ads attempting to promote tolerance and understanding of the concept of “jihad,” or “struggle.” In response, the American Freedom Defense Initiative developed a series of ads with quotes from Islamic extremists, including the one from “Hamas MTV” at issue in the most recent case: “Killing Jews is Worship that draws us close to Allah.” MTA refused to run the ad, and the group sued.
The “Killing Jews” case is the latest result of a flurry of litigation activity from the American Freedom Defense Initiative, a nonprofit organization “dedicated to freedom of speech, freedom of conscience, and individual rights under the law.” Judging by its lively federal court docket, the organization takes its responsibility to exercise its free speech rights very seriously: this is its third suit against the MTA and its ninth against a transit authority.
In practice, the group—which is run by Pamela Geller, a right-wing activist—is largely devoted to creating incendiary ads for display on public transportation, then litigating when transit authorities shy away from accepting the ads. “Killing Jews” thus joins the pantheon of offensive advertising that the group has placed on public transit around the country, teaching everybody an important lesson about the First Amendment and causing innocent commuters’ eyes to bleed. Beyond their utility at getting travelers from point A to point B, Geller has noted that “[Buses] are a very effective form of advertising,” adding, “I like the bus purely as a marketing vehicle.”
The last time I checked, buses are not purely marketing vehicles. But every transit authority has its own advertising policy, and how the First Amendment applies to those ads depends on the jurisdiction. In New York, MTA advertising space is a “designated public forum.” This means that the sides of MTA buses are opened by the government for use by the public for expressive activity.
Because the government has chosen to allow political and expressive speech in this forum, content-based restrictions on that speech—which, intuitively, regulate speech based on what it says—are subject to exacting scrutiny by the courts. But not every jurisdiction recognizes transit advertising as a public forum, so the standard of review is less strict in other locations. As a result, the group hasn’t been uniformly successful, although its track record is pretty impressive.
This is the organization’s third victory against the MTA. The first was a bit anticlimactic: in 2010, it bought space for its “Original Ground Zero Mosque Bus Advertisement” from the MTA. This ad “has at one side a picture of the Twin Towers aflame with a plane headed toward them. On the opposite side of the banner is a tower with a crescent moon and star. The text between the two buildings is: ‘Why There?’” MTA’s ad agent, CBS Outdoor, rejected the ad. After the Initiative sued, MTA backed down, ran the ad, and the group dismissed its lawsuit.
In 2011, it came back to MTA with its “Savages” ad. The ad read: “In any war between the civilized man and the savage, support the civilized man. / Support Israel / Defeat Jihad.” The MTA again rejected the ad, this time on the basis that it was “demeaning,” and the group again sued. (It’s worth noting that until this episode, the MTA had a lackadaisical approach to advertisers: it had never before rejected an ad as demeaning, which explains why the letter from Isabel to Dr. Zizmor continues to run, year after year.) The court applied the most exacting level of First Amendment scrutiny—“strict in theory, fatal in fact”—to hold that MTA’s bar on “demeaning” speech violated the First Amendment. Another win for freedom!
Though known for its libertine ways, the MTA is by no means the only transportation authority in the country that’s been saddled with these ads. The group also successfully sued the Washington Metropolitan Area Transit Authority in 2012 for the right to run the “Savages” ad. And in March of this year, it prevailed against the Southeastern Pennsylvania Transportation Authority in federal court in Philadelphia, winning the right to run another, separate, advertisement displaying a picture of Hitler meeting Haj Amin al-Husseini and advocating an end to U.S. aid to “Islamic countries.”
As impact litigation goes, the group’s record isn’t too shabby. But, sadly for liberty, the defense of American freedom hasn’t been as robust throughout the country. In Boston, where freedom was invented, it has been unable to prevail against the Massachusetts Bay Transportation Authority, because advertising space on Boston transit is not a public forum. This result, which is based on a 2004 ruling, was upheld on appeal in March. In Michigan, an injunction requiring a suburban transportation authority to run what the court called the Initiative’s “fatwa advertisement” was reversed on appeal in 2012, again because the advertising space is not a public forum.
And in the repressive enclave of Seattle, where transit ad space is merely a “limited” public forum, a federal district judge rejected the organization’s request to compel the bus system to display an ad last year. That case was also the only time the group has drawn support from another civil liberties organization: the ACLU of Washington. (Other organizations are understandably gun-shy about supporting hateful bigotry, even though hateful bigotry is the grandest tradition of free speech.) The group is appealing that decision in the namby-pamby liberal Ninth Circuit; oral argument will take place in June.
In case you’re curious, none of these rulings address the fact that buses in Boston, Detroit, and Seattle bear a striking resemblance to those in New York, Philadelphia, and Washington, D.C. But the kerfuffle over the group’s ads is a great example of a classic lesson of constitutional law: First Amendment protection matters most to the speech we hate, and the answer to speech is more speech, no matter what jurisdiction you’re in.
Also, a downright weird amount of First Amendment litigation is being brought by an organization that fights only for the right to say disparaging things about Muslims. So there you go.
Hannah Bloch-Wehba is an attorney and writer working on free expression, tech, and privacy issues in the public interest.
Above: Anti-Islamic blogger Pamela Geller speaks at a conference she organized entitled “Stop Islamization of America” in New York on Sept. 11, 2012. Photo via AP.