Anti-Muslim Ad Ban Upheld by 2nd Circuit

MANHATTAN (CN) - New York City's ban on advertisements with the slogan "Killing Jews is Worship" is legal, as the city no longer accepts political advertisements, the Second Circuit ruled on Thursday.

The ads, which were paid for by the American Freedom Defense Initiative and submitted for approval in 2014, shows a picture of a man draped in a Palestinian keffiyeh next to a quotation attributed to Hamas MTV.

The quotation, which was translated from a music video by militants that was broadcast in the Gaza strip, states "killing Jews is worship that draws us closer to Allah."

Underneath the quote the ad stated: "That's His Jihad. What's yours?"

The Metropolitan Transportation Authority attempted to block the group from displaying the ads, claiming they would incite violence. The AFDI then filed a lawsuit claiming violation of its First Amendment rights.

A federal judge ruled last year that there was no public safety threat in the advertising campaign, holding the city had produced no objective evidence it would "incite imminent violence."

The MTA's policy for years has been to accept paid advertisements from both businesses and non-profits for display in subway stations and on buses. Any ad was welcome, under that policy, a long as it was not misleading, did not promote illegal activity, wasn't obscene, and would not be expected to incite violence.

In response to the lawsuit, MTA's board of directors voted to amend its standards to include advertisements that were considered "political in nature" among the prohibitions.

Due to the policy change, the lawsuit and the injunction are now moot, according to the Second Circuit ruling.

"We are convinced that the MTA has altered its conduct in a manner sufficient to present a fundamentally different controversy," Chief U.S. Circuit Judge Robert Katzmann wrote, noting that AFDI is free to submit new advertisements for MTA approval.

"AFDI suffers no ongoing harm from or lingering effect of the MTA's initial rejection of the ad," Katzmann wrote. "Any restriction on AFDI's speech at this time is a consequence of the MTA's new advertising policy, not a relic of its old one."

The question now becomes whether the MTA's ban on political advertisements similarly violates free speech, but such a question would not be answered today by the court. "AFDI is, of course, free to challenge the MTA's new advertising standards, but it must do so through an amended complaint," Katzmann said.

An MTA spokesman praised the Second Circuit's ruling.

Attorney David Yerushalmi, who represents AFDI, said he was disappointed in the ruling but that AFDI would either submit a new advertisement or file a new complaint to challenge the MTA's policy. "You can rest assured my clients are not done with the MTA," he told Courthouse News.

Yerushalmi added that the MTA already has had trouble with its new advertisement policy, citing a pending settlement with a pair of Muslim comedians who tried to post subway advertisements promoting their documentary "The Muslims are Coming." A federal judge ruled in October that he MTA would have to accept the advertisements since they were commercial in nature.

AFDI's advertisements were likely a dig at a similar "My Jihad" ad campaign by the Council on American-Islamic Relations which featured a number of Muslims talking about their particular jihads in life, like staying physically fit or building friendships.

The campaign was an attempt to rebrand the word "jihad," which has become associated with terrorism and Islamist fundamentalism.

The Southern Poverty Law Center, which categorizes AFDI as a hate group, has called its President Pamela Geller "the anti-Muslim movement's most flamboyant figurehead."

In May 2015, Geller invited controversial Dutch politician Geert Wilders to an art exhibit in Texas offering cash prizes for depictions of Muhammad. At that exhibit, two gunmen were killed after they opened fire outside the event.

Follow @NickRummell

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