BOSTON (CN) – A pro-Israel group whose advertising campaign describes its Muslim foes as savages failed to land a victory in the 1st Circuit, which found the ads disparaging.
Upholding a federal judge’s ruling, the appeals court said Monday that the Massachusetts Bay Transportation Authority was within its rights to refuse to run the American Freedom Defense Initiative’s take on the Israeli-Palestinian conflict.
The group and its leader, a blogger named Pamela Geller who notes that America’s oldest Republican club honored her as the “American Patriot of the Year,” became entangled with the MBTA back in 2013.
That October, greater Boston’s buses, trains and transit stations ran a different group’s advertising that emphasized how the United Nations classifies “4.7 million Palestinians … as refugees.”
Geller’s group soon submitted its own advertising to the MBTA, a modified quotation from the political theorist Ayn Rand that it had already tried run in New York and Washington , D.C.
The ad, which the group wanted to run in 10 transit stations, read: “In any war between the civilized man and the savage, support the civilized man. Support Israel defeat Jihad.”
In rejecting the paid advertisement, however, the MBTA noted that its guidelines prohibit “advertisement[s] contain[ing] material that demeans or disparages an individual or group of individuals.”
A federal judge then denied the AFDI an injunction, noting that the references to “jihad” and “savage[s],” could reasonably be construed to demean or disparage Muslims or Palestinians, rather than to take aim only at terrorist acts.
A revised ad for which the group obtained MBTA approval later included subtle differences such as saying “savage acts” rather than “the savage.”
The AFDI nevertheless revised the ad a third time to again juxtapose the “civilized man” and the “savage.”
When the transit authority rejected the latest revision based on its guidelines, the AFDI filed suit again for another injunction and again lost, with the District Court this time criticizing the group’s “gamesmanship.”
The 1st Circuit ruled Monday against AFDI on both cases, which were consolidated because of their common issues.
It said that the AFDI missed the mark in arguing that the transit authority showed that it will permit speech on controversial of issues by running the earlier ads on Palestinian refugees.
Though the AFDI called it incongruous for a nonpublic forum to permit such controversial advertising, the 1st Circuit said this history “does not in and of itself establish a designated public forum.”
There is new precedent for this decision from the 9th Circuit, which recently sided with Seattle in barring controversial advertisements there, the court found.
“The MBTA may therefore restrict the content of the advertisements it accepts for display so long as such restrictions are not viewpoint-based and are reasonable in light of the purposes for which the forum was established,” the opinion by Judge David Barron states.
In refusing to delve into the “linguistic and grammatical distinctions” that the wording of the ads presented, the panel concluded that it would be hard to know if those distinctions would be meaningful to the public.
Judge Norman Stahl meanwhile wrote separately that he believed the MBTA engaged in viewpoint discrimination and acted unreasonably in rejecting the third advertisement.
The judge took issue in particular with the circuit precedent on which his colleagues relied, Ridley v. Massachusetts Bay Transportation Authority, a 2004 decision that Stahl believes “was wrongly decided.”
“The MBTA seeks to maximize the financial returns it can receive from the use of its facilities for advertising,” he wrote. “Having accepted virtually all advertisements with an eye toward filling its coffers, the MBTA’s attempt to then limit submitted speech which some officials deem unacceptable is violative of the First Amendment.”
This week’s decision comes just days after a hearing in Manhattan that pitted the AFDI against New York City’s transit authority.
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