“Lawfare” and the Freedom of Speech

LawfareThis post is intended to be an empirical data point in the demonstration of the good and proper use of offensive lawfare—the work of AFLC. Two weeks ago yesterday, we published this post explaining that the San Francisco transit authority had agreed to run AFDI’s (Pamela Geller’s and Robert Spencer’s organization) “Jew Hatred in the Quran” ad (after first refusing to do so) only after AFLC got involved and AFLC’s Co-Founder and Senior Counsel David Yerushalmi informed them that AFLC would be filing a federal complaint if SFMTA (“MUNI”) did not reverse itself. In short order, SFMTA not only reversed itself, but compensated our client by discounting the price to run the ad by $10,000.

Then, of course, there was Paris and the attack on the most basic liberty in a free society.  And there were millions in France and smaller numbers even in D.C. on Sunday marching for liberty—that is, marching for free speech without necessarily agreeing with the speech in question. Shamefully, the Obama administration was a no-show. And there was the American media still not running the quite newsworthy pictures of the cartoons—even today.  And there remains the silence that is the story not run by the main stream media about one woman, a Charlie Hebdo journalist, who was murdered not because she was a woman and the only woman among the Charlie Hebdo journalists murdered, but because she was a Jew.  And the deli targeted precisely because it was a Jewish deli on the eve of the Jewish Sabbath—its busiest hours.

Almost at that very moment, the “Jew Hatred in the Quran” ad goes up in San Francisco.  It gets substantial media coverage as you can well imagine. It forces the uncomfortable discussions necessary in a free society for evaluation and re-evaluation of public policy; the questioning of the PC status quo.

We point all this out and ask you to take just a moment and watch the local CBS news clip (https://www.youtube.com/watch?v=wFNAWcCb-9g with its classic slant) forced to confront the reality of a public discourse being driven by a simple ad. What we wish to point out to you comes at the very end of the clip when the news anchor asked the on-the-scene reporter (at 1:33) if MUNI was planning on keeping these “truly controversial ads” up? The reporter provided SFMTA’s answer:

“The ads are staying up [because] if they did not keep these ads up, it almost certainly would end up in a lawsuit.”

And what is really meant is a lawsuit SFMTA would lose even if they won. (For the record, to date, we have brought 8 such lawsuits – 3 in NY; 1 in D.C.; 2 in Boston; 1 in Philly; 1 in Detroit; 1 in Seattle; we have won 2 by decision [NY and DC]; we won 1 by capitulation in NY because the day after we filed, MTA ran the ad; 1 in Detroit, 1 in NYC, and 1 in Philly are pending in federal trial court; 3 are now in the US Courts of Appeals for the 1st and 9th Circuits.  We’ve lost none.)

This is the power of the policy work we do every day in the courts.  That is to say, lawfare works because you may “win” not only with a judgment in your favor and thus force a policy change by verdict or court ruling, but also with just the threat of a lawsuit by having a track record that demonstrates to government bureaucrats and even to Muslim Brotherhood operatives that you will “almost certainly” litigate aggressively and with great competency.  This “almost certainty” threat that AFLC will draw lawfare blood and run you through the ringer is the demonstrable effect of lawfare or policy-driven litigation.  San Francisco is not the only transit authority to have capitulated and said so publicly.  The general counsel to Chicago’s transit authority literally wrote us a letter after we threatened litigation saying so expressly. NY’s MTA conceded as much as well. A Florida transit authority paid our client not to sue and accepted our condition that all non-commercial ads be prohibited—thus preventing the CAIR ads our client’s proposed ads were meant to counter.

And as we have noted above, it goes beyond bus ads and government agencies. CAIR, the Muslim Brotherhood’s tip of the spear in the US, subpoenaed neighbors in a small Michigan town and threatened them with legal process for just showing up at a zoning meeting to raise traffic concerns over a mega-Mosque expansion in their neighborhood.  We took CAIR to federal court on their behalf, quashed the subpoenas, and won a sanction for attorneys’ fees.  Last year, a CAIR operative sued 4 counterterrorism experts (Stephen Coughlin, John Guadolo, and Patrick Poole, among them) for defamation for a second time after we forced a dismissal a year earlier but dismissed the lawsuit with prejudice after we threatened the plaintiff and his lawyer with a motion for sanctions.  Another defamation lawsuit by a CAIR-linked lawyer in Ohio suing Pamela Geller for $10 million was dismissed with prejudiced after we filed a massive motion for summary judgment.

Our point here, once again, is to demonstrate why policy issues must be fought in the courts—not exclusively by any means, or even primarily—but fought nonetheless.  When this work is done consistently, at the highest level of competency and professionalism, liberty’s enemies in and out of the court system take notice and respond accordingly.  Some of the most liberal of judges in the federal courts have praised our work and AFLC’s Senior Counsel Muise and Yerushalmi specifically. Uniquely, courts provide a leveling of the playing field where even hostile judges are forced to confront in the quite public domain facts and legal arguments even as they apply their transparent ideological biases.  They also know that these biases will be challenged on appeal until there is no challenge left.  This battle wears on the ideologues in and out of the system and emboldens Jane and John Q. Public that while their voices may or may not be heard in the electoral outer chambers or in the smoke-filled public policy inner chambers, they will be heard in our courts.

For those of you who have supported our work in the past, we appreciate your efforts in making our efforts possible.  For those of you who have yet to lend a hand, we would like to think this post will go some distance in enticing you to join our efforts.