American Freedom Defense Initiative v. MTA

AFDIAFLC Co-Founders and Senior Counsel David Yerushalmi and Robert Muise, on behalf of the American Freedom Defense Initiative (AFDI), Pamela Geller, and Robert Spencer, filed a federal civil rights lawsuit in the U.S. District Court for the Southern District of New York against the New York Metropolitan Transit Authority (MTA) for violating their First Amendment right to freedom of speech.

At issue in the lawsuit is AFDI’s pro-Israel advertisement, which was rejected by the MTA.  The MTA claimed that the advertisement violated its policy against displaying “images or information that demean an individual or group of individuals on account of race, color, religion, national origin, ancestry, gender, age, disability or sexual orientation.”  However, as a governmental agency, MTA is mandated to comply with federal and state laws, including the First and Fourteenth Amendments to the United States Constitution, which prohibit the government from making viewpoint-based restrictions on speech.

By policy and practice, MTA has intentionally dedicated its advertising space on its vehicles, including its public buses, to expressive conduct.  Pursuant to this longstanding policy, MTA has permitted a wide variety of commercial, noncommercial, public-service, public-issue, political, and religious advertisements on the outside of its vehicles.  For example, MTA permitted a religious group, Muslims for Peace, to run an advertisement on 90 public buses.  The advertisement stated, “Muslims for Peace, Love for All, Hatred for None . . . WHY ISLAM.”  The MTA permitted an atheist group, the Big Apple Coalition of Reason, to display an advertisement stating, “A million New Yorkers are good without God.  Are you?”  Recently, the MTA permitted the display of a pro-Palestine / anti-Israel advertisement stating, “End U.S. military aid to Israel.” This ad was displayed at MTA subway stations throughout the City.

This past September, AFDI submitted its proposed advertisement to CBS Outdoor, which acts as the advertising agent for MTA.  The pro-Israel advertisement states as follows:

Pro-Israel Advertisement

AFDI’s pro-Israel advertisement is political speech in direct response to the pro-Palestine / anti-Israel advertisement.  The anti-Israeli advertisement suggests that Israel’s military is the impediment to peace between the Israelis and Palestinians and that U.S. military aid to Israel also acts as an impediment to peace between the Israelis and Palestinians.  In other words, the anti-Israel advertisement blames Israel, its military, and U.S. military aid to Israel as the cause of Palestinian terror directed against innocent civilians in Israel and abroad.

AFDI’s advertisement presents the message that there is no comparison or equivalence between savage civilian-targeting violence and Israel’s civilized struggle for survival in a part of the world where civilized behavior is overshadowed by terrorism and despotism.

On September 21, 2011, CBS Outdoor, acting on behalf of MTA, informed AFDI by email that MTA had rejected the advertisement copy on the grounds that it violated its demeaning speech policy.  The MTA’s rejection concluded with an invitation to AFDI to modify its message in some way so as to be acceptable to MTA.

By email on September 22, 2011, AFDI, through legal counsel, rejected MTA’s invitation to modify their speech and requested a “formal and final determination.”  AFDI’s response made clear that the pro-Israel advertisement did not violate MTA’s demeaning policy and that MTA’s use of the policy to prohibit AFDI’s message violated the First Amendment.

On September 23, 2011, CBS Outdoor, acting on behalf of MTA, informed AFDI that MTA had formally and finally rejected the pro-Israel advertisement on the grounds that it violated MTA’s demeaning speech policy.

Through the lawsuit, AFDI challenges MTA’s censorship, which is effectively editing and thus suppressing the viewpoint AFDI is attempting to express in its message.  That viewpoint is that U.S. foreign policy supporting Israel in the face of savage violence is the correct moral, political, and strategic choice for the leader of the Free World.

This wasn’t the first time that AFLC attorneys had to sue the MTA for violating the First Amendment.  The MTA had previously sought to ban an advertisement that opposed the building of a mosque at ground zero.  After AFLC attorneys sued, the MTA backed down.

UPDATE (January 31, 2012): Motion for a preliminary injunction to halt speech restriction filed in federal court.

UPDATE (March 17, 2012): The judge assigned to our case has ordered a hearing on our motion for a preliminary injunction to be held on April 3, 2012 at 10:00 am at the federal courthouse in Brooklyn, New York.

UPDATE (March 22, 2012): We filed our reply brief in support of our motion for a preliminary injunction.  You can read that brief here.

UPDATE (July 22, 2012): Federal Judge Paul A. Engelmayer ruled that the MTA’s restriction on “demeaning” speech was unconstitutional and granted AFLC’s motion for a preliminary injunction. You can read the judge’s opinion and order here.

UPDATE (August 14, 2012): The MTA has appealed the judge’s ruling in New York and is requesting that the court issue a stay of its order allowing the anti-Jihad ad to run on MTA buses.  You can read AFLC’s letter to the court opposing the stay here.

UPDATE (August 29, 2012): In a blistering opinion, Federal Judge Paul A. Engelmayer denied the MTA’s stay request pending appeal and entered a final order in favor of AFLC on all claims.  Read that order here.  The ads ran and the MTA paid our attorneys’ fees.  Case closed.