MANHATTAN (CN) – Though its intentions may have been “entirely laudable,” New York City’s transit authority trampled the First Amendment in rejecting advertisements that labeled Israel’s opponents as “savages,” a federal judge ruled.
In 2011, the American Defense Freedom Initiative (AFDI) and blogger Pamela Geller sought to pay the Metropolitan Transit Authority $25,000 for a 30-day, 318-ad campaign for Israel.
Against a backdrop of photographs depicting Muslims and Nazis during World War II, the first proposed bus ad stated: “In any war between the civilized man and the savage, support the civilized man. Support Israel. Defeat Islamic Jihad.”
Citing a policy against demeaning people on the basis of religion, national origin or ancestry, the MTA rejected this ad as offensive. It similarly rejected a revised copy that omitted the background photos and the word “Islamic.”
In its lawsuit for an injunction, the AFDI claimed that “savages” referred only to violent jihadists, not Muslims in general.
Though U.S. District Judge Paul Engelmayer found Friday that the ad does indeed target Muslims, he said it also constitutes “core political speech” entitled to the “highest level of protection under the First Amendment.”
“To be sure, there are likely adherents to Jihad who are non-Muslims, such that the ad can literally be read to assail as savages all adherents to Jihad regardless of their religion – much as there assuredly are many adherents to Islam who do not accept Jihad, at least when defined as a violent crusade against enemies generally, or against Israel specifically,” the 35-page order states. “But, realistically, when it is read as a reasonable person would, the AFDI ad plainly depicts Muslims – the primary adherents to this tenet of Islam – as ‘savages.'”
“The ad expresses AFDI’s pro-Israel perspective on the Israeli/Palestinian conflict in the Middle East, and implicitly calls for a pro-Israel U.S. foreign policy with regard to that conflict,” Engelmayer added.
MTA policy loopholes permit ads that demean people who do not fall into narrow categories of race, color, creed, religion or gender, the judge found.
“To illustrate the point concretely, under MTA’s no-demeaning standard, an advertiser willing to pay for the privilege is today at liberty to place a demeaning ad on the side or back of a city bus that states any of the following: ‘Southerners are bigots’; ‘Upper West Siders are elitist snobs’; ‘Fat people are slobs’; ‘Blondes are bimbos’; ‘Lawyers are sleazebags’; or ‘The store clerks at Gristedes are rude and lazy,'” the order states. “The regulation also does not prohibit an ad that expresses: ‘Democrats are communists’; ‘Republicans are heartless’; or ‘Tea Party adherents are barbaric.’ The standard would also countenance an ad that argues: ‘Proponents [or opponents] of the new health care law are brain-damaged.’ Strikingly, as MTA conceded at argument, its no-demeaning standard currently permits a bus ad even to target an individual private citizen for abuse in the most vile of terms. For example: ‘John Doe is a child-abuser’; ‘Jane Doe runs a Ponzi scheme’; or ‘My neighbors, the Does, are horrible parents.'”
Despite his findings, Engelmayer praised the MTA’s intentions.
“In holding today that MTA’s no-demeaning standard violates the First Amendment, the court does not impugn in the slightest the motives of MTA and its officials – either those who put the standard into place or those who applied it to the AFDI Ad,” the order states. “Quite the contrary: From the testimony and evidence, it is apparent that, in promulgating and applying the no-demeaning standard, MTA has aspired to hold ads on public buses to a standard of civility. Its goal of preventing ads on city bus exteriors from being used as a medium for abuse and division in this diverse metropolis is entirely laudable.”
“However, it is well-settled that, where a violation of the First Amendment is concerned, the government’s benign, even noble, intentions are no cure,” he added.
Revising MTA rules to screen offensive ads does not have to deplete ad revenue for the “cash-strapped” agency, the court found.
“Today’s ruling does not disable city authorities from adopting rules that hold ads and commentary on the exteriors of buses to a standard of civility,” Engelmayer wrote. “And in resolving this case on the narrow ground that the no-demeaning standard as currently drafted is impermissibly content-based, the Court pointedly does not reach any of the broader grounds for invalidation urged by AFDI under the First Amendment. Today’s ruling instead leaves – and is intended to leave – MTA the latitude to investigate and experiment with alternative mechanisms for using ad space on the exteriors of city buses productively, profitably, and constitutionally, while ensuring that this space is not used as a tool for disparagement and division.”
MTA spokesman Charles Seaton said in an email that the agency is taking the judge’s recommendation seriously.
“The MTA continues to review Judge Engelmayer’s lengthy decision and is evaluating its existing advertising standards in light of the court’s ruling,” Seaton wrote.