Tomorrow morning (January 15, 2016), David Yerushalmi, Senior Counsel at the American Freedom Law Center, will present oral argument before the U.S. Court of Appeals for the Second Circuit, which is located in New York City, on behalf of Pamela Geller, Robert Spencer, and their non-profit organization, American Freedom Defense Initiative (AFDI), in their appeal of a federal district court’s ruling that “dissolved” the court’s earlier order requiring the New York City’s Metropolitan Transportation Authority (MTA) to run Geller’s “Hamas Killing Jews” advertisement displayed below.
Judge John G. Koeltl, presiding in the United States District Court for the Southern District of New York in downtown Manhattan, had earlier ruled on April 20, 2015 that the MTA’s refusal to run the ad (the MTA claimed that Muslims in New York might understand the ad to be advocating violence and would therefore incite them to murder Jews as Islamic worship) was unconstitutional. In fact, Judge Koetl ruled that there was no evidence of any threat of violence.
The court stayed (i.e., postponed) the enforcement of its order for 30 days to give the MTA time to appeal or to work out the logistics of running the ad. The MTA did neither. Instead, it convened a public board meeting at which MTA board member Charles Moerdler ranted incoherently about hate speech and Geller’s newly proposed ads designed to expose wealthy Jews who supported boycotting, divesting, and sanctioning Israel—what is referred to as the BDS movement.
At the conclusion of the meeting, the board voted to change the MTA ad policy by excluding ads that address “disputed” issues, all in the guise of a “no political ad” prohibition. On the heels of that decision, the MTA filed a motion to “dissolve” the court’s previous order to run the Hamas Killing Jews ad on the grounds that the MTA was no longer applying the “incitement” provision, but rather its new “no political message” provision.  The district court granted that motion.
The American Freedom Law Center (AFLC), which represents Geller, Spencer, and AFDI, opposed the motion on numerous grounds, not the least of which was that the MTA’s conduct was and continues to be in bad faith and a transparent effort to silence Geller’s criticism of Islamic terrorism and the media bias against Israel.
After AFLC filed its appeal, a different federal judge from the same district court ruled that the MTA was using the “no political message” prohibition arbitrarily and ordered the MTA to run a pro-Muslim/pro-Islam ad. The judicial hypocrisy was exposed when the judge in that case improperly labelled quite legitimate criticism of Islam and jihad as “Islamophobia,” a term practically invented by the Muslim Brotherhood to place any criticism of Islam’s global violence and misogyny socially and politically off-limits.
Yerushalmi, who will be arguing the case tomorrow morning, explained,
“The outcome of this appeal will determine whether we regard the First Amendment as a serious restraint on government action or whether this fundamental right is conditioned upon, and thus susceptible to, the government’s delay and manipulation of the political system to avoid its proscriptions. Indeed, this appeal is important for all freedom loving Americans because the government—the MTA in this case—should not be permitted to engage in this sort of First Amendment gamesmanship.”
The argument is scheduled for 10:00 a.m. on January 15, 2016, before Chief Judge Katzmann, Circuit Judge Kearse, and District Judge Scholfield, sitting by designation. It will be held in the 17th Floor Courtroom, Room 1703, Thurgood Marshall U.S. Courthouse, 40 Foley Square, New York City.