American Freedom Defense Initiative v. MTA III

On October 1, 2014, AFLC filed a civil rights lawsuit in the U.S. District Court for the Southern District of New York against the New York Metropolitan Transportation Authority (“MTA”), the Chairman and Chief Executive Officer of the MTA, and the Director of the MTA Real Estate Department, on behalf of the American Freedom Defense Initiative (AFDI), Pamela Geller, and Robert Spencer for refusing to run AFDI’s “Hamas Killing Jews” advertisement on the MTA’s advertising space.

On August 25, 2014, Howard Marcus, a representative from CBS Outdoor—the advertising agent for the MTA—emailed Geller and informed her that the MTA agreed to display three of the four advertisements AFDI had submitted for approval.  The Marcus email, however, informed Geller that the MTA had rejected the Hamas Killing Jews Advertisement on the grounds that “it is reasonably foreseeable that, due to material contained in it, its display would imminently incite or provoke violence or other immediate breach of the peace and so harm, disrupt, or interfere with safe, efficient, and orderly transportation operations.”   

The censored Hamas Killing Jews Advertisement states, in relevant part, the following: “‘Killing Jews is Worship that draws us close to Allah.’ – Hamas TV.  That’s His Jihad.  What’s yours?”

Hamas TV--Killing Jews Ad

The message of the Hamas Killing Jews Advertisement is timely in light of the ongoing terrorism conducted by Hamas operatives against Israeli civilians in the name of Islamic jihad.  Moreover, the Israel / Palestinian conflict has recently drawn intense international media attention as Hamas regularly used human shields (mostly women and children) to protect its rockets from Israel’s defense forces while the Islamic terrorist organization continues its deadly attacks against Jews in Israel.

Indeed, AFDI has displayed the Hamas Killing Jews Advertisement in other major cities throughout the United States, including Chicago and San Francisco, and there have been no acts of violence or other lawlessness caused by or attributed to the advertisement.

The Hamas Killing Jews Advertisement on its face is a quote from Hamas MTV along with commentary from AFDI that counters the claims made by the Council on American-Islamic Relations (CAIR) and other Muslim Brotherhood organizations and sympathizers in the United States that jihad is simply a form of non-violent, spiritual introspection for Muslims.  Indeed, the passive advertisement itself, as evidenced from within its four corners, does not advocate for the use of force or of law violation, is not directed to inciting or producing imminent lawless action, and, as the undisputed facts demonstrate, is not likely to incite or produce such action.

On September 22, 2014, the MTA formally rejected the Hamas Killing Jews Advertisement in a final written determination.  In an email from Kenneth S. Pober, General Manager of CBS Outdoor, to AFLC Co-Founder and Senior Counsel David Yerushalmi, Pober appended a formal written rejection of the Hamas Killing Jews Advertisement.

The MTA Final Determination reads in relevant part:

Dear Mr. Yerushalmi:

CBS Outdoor Group Inc. (CBS) has forwarded to me your demand for a formal determination concerning an advertisement that your client, American Freedom Defense Initiative (AFDI), submitted to it recently for display in September on New York City Transit Authority buses. . . .

Like CBS, the MTA initially concluded in mid-August that this “Killing Jews” ad in its current form—and AFDI has refused CBS’s invitation to consider revising its proposed ad—does not conform to the MTA’s advertising standards, specifically Section (a)(x), which addresses proposed advertisements that might incite or provoke violence.  Having now fully considered your two emails of August 29 and September 8, 2014, which CBS forwarded, the MTA continues to believe that it is reasonably foreseeable that the display of the “Killing Jews” ad in its current form at this time would “imminently incite or provoke violence or other immediate breach of the peace, and so harm, disrupt, or interfere with safe, efficient, and orderly transportation operations.”  Accordingly, we are unwilling to allow its display on New York City Transit buses.

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Following procedures adopted by the MTA to implement this standard, Ray Diaz, the MTA’s Director of Safety and Security, undertook a security assessment of AFDI’s four proposed ads.  Three of the ads he concluded did not advocate violence and thus did not risk inciting or provoking violence, and those ads are expected to run later this month (along with the three additional ads proposed by AFDI in the meantime).

Diaz concluded, however, that, since most reasonable observers would interpret the “Killing Jews” ad as urging direct, violent attacks on Jews, it was reasonably foreseeable, especially given the current turmoil in the Middle East, most especially in Gaza and Syria and Iraq, and the heightened security concerns in New York City, that its display now would “imminently incite or provoke violence or other immediate breach of the peace, and so harm, disrupt, or interfere with safe, efficient, and orderly transportation operations.”

The MTA recognizes that the “Killing Jews” ad was part of a series of AFDI ads that parodied other ads sponsored by the Council on American-Islamic Relations (CAIR) that had been displayed on buses in other cities, including Chicago and San Francisco.  Those ads—part of what CAIR called its “MyJihad” ads—were intended to show, according to CAIR, that jihad is a concept of individual and personal struggle, rather than violent conflict or terrorism. AFDI’s parody ads were intended to refute CAIR’s “MyJihad” ads by showing, according to AFDI’s Executive Director, Pamela Geller, “how jihadists use the texts and teachings of Islam to justify violence and supremacism.”

But the CAIR “MyJihad” ads have never run in New York City.  Without that crucial context, most people who saw AFDI’s “Killing Jews” ad on a New York City Transit bus would not interpret it as a parody of CAIR’s “MyJihad” ads, and not to be taken at face value. Instead, most reasonable New Yorkers would interpret the “Killing Jews” ad as urging Muslims to kill Jews as a matter of religious obligation.  Although the required disclaimer would identify the ad’s sponsor as AFDI, not Hamas, that is likely insufficient, by itself, to alert observers that the “Killing Jews” ad and its command to kill Jews should not be taken at face value, given AFDI’s obscurity and its vague name. . . .

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Very truly yours,

Jeffrey B. Rosen

Director, Real Estate

As set forth in the Complaint filed in this case, the MTA’s assertion that some number of New Yorkers (presumably Muslims), upon viewing the Hamas Killing Jews Advertisement on MTA buses, would rise up imminently to violently attack Jews in response to the Hamas quotation is illogical and without factual support.

As noted, the Hamas Killing Jews Advertisement ran in Chicago for approximately one month beginning on February 22, 2013, and similarly for approximately one month in San Francisco beginning on March 11, 2013.  No physical disturbance, violence, or even vandalism was reported by transit or city authorities resulting from those displays.

The CAIR “MyJihad” advertisements referenced in the MTA Security Assessment also ran in Chicago and San Francisco for approximately one month, but several months earlier than the respective Hamas Killing Jews Advertisements in those cities.

According to the expressed logic of the MTA Security Assessment, a Muslim would likely be incited to imminent violence in New York City because the Hamas Killing Jews Advertisement will be running without a CAIR “MyJihad” advertisement appearing months earlier to set the parodic context.

The MTA Security Assessment’s logic is that the same violent New York Muslims transposed to Chicago and San Francisco would not be similarly incited by the Hamas Killing Jews Advertisement in those cities because they would rationally recall the CAIR “MyJihad” advertisements that ran several months earlier and inform themselves that on this occasion the Hamas Killing Jews Advertisement is just parody.

Moreover, the MTA Security Assessment does not account for the violent and incitable Muslims in Chicago or San Francisco who noted the Hamas Killing Jews Advertisement but were not aware of the CAIR “MyJihad” Advertisements—possibly because they had been out of town or had failed to notice the earlier advertisements—yet failed to react violently to the Hamas Killing Jews Advertisements.

The underlying and faulty premise of the MTA Security Assessment, which the MTA relies upon to conclude that its speech restriction survives strict scrutiny under the First Amendment, is based upon either (1) the naked assumption that context will always be present and cognizable to the violent and incitable Muslim as long as the CAIR “MyJihad” advertisements runs several months earlier or (2) that violent and incitable Muslims are the kinds of people that are capable of placing—and, indeed, willing to place—parody in context, thereby resisting the impulse to act violently based upon viewing the Hamas Killing Jews Advertisement.

Notwithstanding the MTA’s fear of violent Muslims who would likely be incited to imminent violence from the appearance of the Hamas Killing Jews Advertisement, the MTA issued a press release with a large image of the Hamas Killing Jews Advertisement in an apparent effort to get out in front of the story and provide the public with its rationale for the rejection of the AFDI advertisement.

Consequently, despite its security assessment, the MTA felt sufficiently confident that all of the press outlets that might respond to the press release and publish a story with a picture of the Hamas Killing Jews Advertisement would do so with just the right amount of context to inhibit the jihadi impulses lurking in New York City, lest the MTA and the press be guilty of the same incitement conjured up by the MTA Security Assessment.

As alleged in the Complaint, the MTA’s application of its Advertising Standards as a basis to reject the Hamas Killing Jews Advertisement is a pretext to censor AFDI’s message because MTA officials oppose AFDI’s view on Islam.  Thus, the MTA’s decision to reject the Hamas Killing Jews Advertisement was motivated by a discriminatory animus against AFDI and its views on Islam.

Moreover, the MTA’s speech restriction is based on the perceived negative response that AFDI’s message might receive from certain viewers based on its content and viewpoint.  However, a viewer’s reaction to speech is not a content-neutral basis for regulation.  This is known as a “heckler’s veto,” which is impermissible under the First Amendment.

Under the First Amendment, speech cannot be punished or banned, simply because it might offend a hostile mob.  By censoring AFDI’s’ speech because of its message, the MTA is punishing speech based on its content and viewpoint.

The Complaint alleges that the MTA’s content- and viewpoint-based, prior restraint on AFDI’s speech violates the First and Fourteenth Amendments to the U.S. Constitution.

CASE UPDATE (November 28, 2014): AFLC filed a motion for preliminary injunction, asking the court to order the MTA to display AFDI’s advertisement.

CASE UPDATE (January 22, 2015): AFLC filed its reply brief in support of its motion for preliminary injunction.

CASE UPDATE (April 21, 2015): Federal court granted AFLC’s motion for preliminary injunction, ordering the MTA to display the ad.

CASE UPDATE (August 21, 2015): AFLC filed its opening brief in the Second Circuit.

CASE UPDATE (October 9, 2015): AFLC filed its reply brief in the Second Circuit.

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