AFLC Files Reply Brief in Appeal of Court Order that Allowed MTA to Sidestep an Injunction and Censor Pamela Geller’s Ad

On October 9, 2015, lawyers for Pamela Geller, Robert Spencer, and their non-profit organization, American Freedom Defense Initiative (AFDI), filed their reply brief in their appeal to the U.S. Court of Appeals for the Second Circuit, appealing 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.

Anti-Jihad Ad

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 (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 addresses “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), 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.

After AFLC appealed the district court’s decision that permitted the MTA to continue its unlawful censorship of AFDI’s “Hamas Killing Jews” ad and just two days before AFLC filed its reply brief, a different federal judge from the same 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.

This judicial hypocrisy was exposed when the judge in that case inappropriately 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.  In their reply brief, AFLC lawyers termed this Islam-centered pandering as “pathetic.”

David Yerushalmi, AFLC Co-Founder and Senior Counsel, explained,

“There is no question that the court’s decision in our case was wrong and an affront to the First Amendment.  And while we fully agree on First Amendment grounds with the court’s recent decision requiring the MTA to run the pro-Islam ad submitted by some Muslim comedians, the judge’s language calling our clients’ ads ‘hate speech’ and an example of Islamophobia was not only irresponsibly ‘pathetic,’ it was impertinent.”

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 engage in this sort of First Amendment gamesmanship.”

Muise added,

“And of course the reasoning in the recent pro-Islam decision does not only apply to what that district court judge pathetically described as ‘Islamophobia’; it applies equally as well to our clients’ ad, which shows Islam’s hatred of Jews, lest the courts themselves become guilty of the viewpoint discrimination that they claim to denounce.  But I won’t hold my breath.”

AFLC has now won two federal lawsuits against the MTA, in addition to 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, Washington, D.C., and Seattle.