On Thursday of last week (7/16), the federal court hearing the case against the New York City’s Metropolitan Transportation Authority (MTA) for illegally refusing to display an anti-jihad advertisement granted the plaintiffs, Pamela Geller, Robert Spencer, and their non-profit organization, American Freedom Defense Initiative (AFDI), partial summary judgment and ordered the MTA to pay nominal damages. The court’s finding of liability and award of damages also opens the door for Geller and her co-plaintiffs to recover their legal fees and costs from the City’s transit authority. The controversial anti-jihad ad, referred to in the case as the “Hamas Killing Jews” advertisement, is 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 out of fear that Muslims in New York might understand the ad to be advocating violence and would therefore rise up to murder Jews as Islamic worship, was unconstitutional. In fact, Judge Koetl ruled that there was no evidence of any threat of violence. Based on these findings, Judge Koeltl ordered the MTA to display the ad immediately, even before the court’s final judgment.
The court did, however, stay (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 support the BDS (boycott, divestiture, and sanction) movement against Israel.
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 requiring it 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. Judge Koeltl accepted the MTA’s argument and rescinded his earlier order requiring the MTA to run the ad.
The American Freedom Law Center (AFLC), lawyers for Geller and her co-plaintiffs, immediately appealed to the U.S. Court of Appeals for the Second Circuit Judge Koeltl’s decision to dissolve the earlier order requiring the MTA to run the Hamas Killing Jews ad. Just last Friday, the Second Circuit granted AFLC’s motion to expedite the appeal.
Not waiting for the appeal on the injunction issue to wind its way through the appellate process, AFLC also immediately asked the district court to grant its clients judgment against the MTA for its initial decision to refuse to display the ad on the grounds of incitement—i.e., that it would spur violence, a claim the court flatly rejected. Initially, the MTA opposed AFLC’s request, claiming that it was premature. However, at the hearing on the matter, the MTA capitulated and agreed to a court finding that the MTA was liable for violating Geller’s, Spencer’s, and AFDI’s First Amendment right to free speech and further agreed to pay nominal damages.
An award for even nominal damages allows AFLC to seek reimbursement of its legal fees as the “prevailing party,” which will likely be in excess of $100,000.
David Yerushalmi, AFLC Co-Founder and Senior Counsel, explained,
“The MTA has long been a serial violator of the First Amendment—at least when it involves pro-Israel, anti-jihad speech. The MTA will pay for this conduct just as it has in the past. Moreover, we fully intend to win the appeal and force the MTA to actually run the Hamas Killing Jews ad. The MTA and its board should not be permitted to play musical chairs with its ad policy just because they don’t like Ms. Geller’s viewpoint.”
Robert Muise, AFLC Co-Founder and Senior Counsel, added,
“It is remarkable the lengths that government officials will go to try and silence Ms. Geller’s anti-jihad message. But I can assure you that we are more determined to defend the First Amendment against such politically-correct censorship.”
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, with a new case recently filed in Washington D.C.