Today (June 22, 2015), lawyers for Pamela Geller, Robert Spencer, and their non-profit organization, American Freedom Defense Initiative (AFDI), filed a notice of appeal to the U.S. Court of Appeals for the Second Circuit, appealing a federal district court’s ruling last Friday 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 that the MTA’s refusal to run the ad, claiming 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 all speech that, according to MTA officials, addressed “disputed” causes and issues. 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 a “no political message” provision. The district court granted that motion.
The American Freedom Law Center (AFLC), a national, nonprofit Judeo-Christian law firm, which represents Pamela Geller, Robert 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.
Judge Koeltl issued his ruling granting the MTA’s motion and thus dissolving the order requiring the MTA to run the ad on Friday afternoon.
David Yerushalmi, AFLC Co-Founder and Senior Counsel, explained,
“We believe strongly that the court has misread the First Amendment law regarding limited public fora and thus applied the wrong, less exacting standard. We have two options at this time. Accept this ruling and amend our complaint to challenge the MTA’s new policy of restricting political ads, or appeal this decision now directly to the Second Circuit. As I said publicly after the court’s ruling Friday, we have no intention to allow any grass to grow under this ruling. We filed our notice of appeal this morning.”
Robert Muise, AFLC Co-Founder and Senior Counsel, added,
“This appeal is important for all freedom loving Americans because the government should not be permitted to violate the First Amendment and then on the heels of an adverse court decision simply modify its rules to avoid the consequences of its unlawful behavior.”
“If we can’t get the Second Circuit to protect the First Amendment through this appeal, then we will consider Supreme Court review. This issue is that important.”
AFLC has now won two federal lawsuits against the MTA, one against the Washington, D.C. transit authority, and one against the Philadelphia transit authority on behalf of its clients, Pamela Geller, Robert Spencer, and AFDI. Cases are still pending in Detroit, Boston, and Seattle.