Last Friday, the American Freedom Law Center (AFLC) filed a second federal civil rights lawsuit in the United States District Court for the District of Massachusetts against the Massachusetts Bay Transportation Authority (MBTA) for rejecting a pro-Israel advertisement that raises awareness about violent jihad.
The proposed advertisement – which states, “In any war between the civilized man and the savage, support the civilized man. Defeat violent jihad. Support Israel” – was submitted by the American Freedom Defense Initiative (AFDI), a pro-Israel advocacy organization, and its executive director, Pamela Geller.
Yesterday, AFLC filed a motion for a preliminary injunction and accompanying memorandum in the case, asking the court to immediately order the MBTA to run the advertisement. This latest lawsuit is yet another round in AFLC’s constitutional challenge to the MBTA’s advertising guidelines.
In October 2013, AFDI, in response to an offensive anti-Israel / pro-Palestine advertisement that the MBTA accepted for display, submitted an advertisement that stated: “In any war between the civilized man and the savage, support the civilized man. Support Israel. Defeat jihad.”
The MBTA rejected the advertisement because it believed that the use of the noun “savage” demeaned all Muslims and Palestinians because “war” might not be violent war and “jihad” might refer to a Muslim’s duty of introspection and self-improvement rather than violent acts of terrorism.
As a result, on November 6, AFLC filed a federal lawsuit and a motion for a preliminary injunction, arguing that the MBTA’s censorship of the advertisement violated the First Amendment. In his decision, Judge Nathaniel Gorton made clear that, viewed most reasonably, the AFDI’s advertisement did not demean all Muslims or Palestinians, but rather labeled violent jihadists as savages. However, the court ruled that in light of a prior controlling decision from the U.S. Court of Appeals for the First Circuit, the MBTA’s reasoning need not be the most reasonable, just a reasonable interpretation. As such, the court grudgingly denied the motion for a preliminary injunction. AFLC immediately appealed the ruling, in effect seeking to test the First Circuit’s prior precedent.
Immediately thereafter, AFDI proposed a new advertisement to test the outer limits and internal consistency of this vague and patently subjective “civility” standard. This new advertisement modified the original advertisement by replacing the noun “savage” with the adjective phrase “those engaged in savage acts” and “Defeat Jihad” with “Defeat Violent Jihad.”
The MBTA accepted the advertisement, thus escalating the dispute into a battle of nuanced semantics.
On January 8, in response to the MBTA’s acceptance of the new advertisement, AFDI pressed the point further and submitted another advertisement, this time replacing “those engaged in savage acts” with “savage” – the noun from the original advertisement – while leaving intact the modified and clarified “violent jihad.”
The MBTA rejected this third revised proposed advertisement – without any real explanation how it accepted the second advertisement but not this third revision – thus prompting this latest federal lawsuit.
David Yerushalmi, AFLC Co-Founder and Senior Counsel, commented:
“The MBTA’s incoherent distinction between an advertisement that labels violent jihadists as savages as impermissibly demeaning speech and an advertisement that labels violent jihadists as ‘those who engage in savage acts’ as permissible speech proves our point all along. A government bureaucrat, even a committee of bureaucrats, should not be in the business of measuring and censoring ‘civility’ as a speech restriction. While we as private citizens might have our own notions of civility, when government enters the picture you have created the quagmire that is government-approved political correctness.”
Robert Muise, Co-Founder and Senior Counsel of AFLC, added:
“The MBTA claimed that it was not engaging in impermissible viewpoint discrimination when it rejected the first advertisement. However, censoring this last advertisement has exposed its discriminatory motives. Indeed, it is remarkable the extent to which MBTA officials go to play these legal gymnastics at the expense of taxpayer money, and, ultimately, the First Amendment.”
“The sad truth is that MBTA officials simply do not like our clients and their politically incorrect viewpoint about the dangers of sharia-adherent Islam. Consequently, they are willing to violate the Constitution rather than let our clients express their message.”