Antitrust Law Daily Wrap Up, ADVERTISING—S.D.N.Y.: New York MTA bans political ads, evades injunction in controversial case, (Jun 23, 2015)

By Greg Hammond, J.D.

The New York Metropolitan Transportation Authority (MTA) has escaped a preliminary injunction, enjoining the authority from enforcing its policy to prohibit a controversial advertisement, described by the federal district court in New York City as the “Killing Jews ad.” Following a finding that the MTA’s original policy violated the First Amendment, the authority revised its regulations, prohibiting the display of all political advertisements on MTA property and rendering the preliminary injunction moot (American Freedom Defense Initiative v. Metropolitan Transportation Authority, June 19, 2015, Koeltl, J.).

The MTA allows advertising on its subway, commuter rail, and bus systems. However, it previously had a standard that prohibited advertising that “contains material the display of which the MTA reasonably foresees would imminently incite or provoke violence or other immediate breach of the peace, and so harm, disrupt, or interfere with safe, efficient, and orderly transit operations.”

Plaintiff American Freedom Defense Initiative (AFDI) submitted an advertisement that it requested be displayed on MTA buses. The ad portrayed a “menacing-looking man,” whose head and face was mostly covered by a head scarf, and contained a purported quote from “Hamas MTV”: “Killing Jews is Worship that draws us closer to Allah.” The ad also contained a disclaimer that it was sponsored by AFDI and that it did not imply MTA’s endorsement of the views expressed in the ad.

The MTA ultimately rejected the ad after its director of security determined that it advocated violent attacks on Jewish people and that it was reasonably foreseeable that the ad would incite or provoke violence. The district court granted AFDI’s motion for preliminary injunction, enjoining the MTA’s enforcement of its policy to prohibit the ad. The MTA subsequently amended its regulations to prohibit the display of all political advertisements on MTA property and moved to dissolve the preliminary injunction order, arguing that the prior claims for injunctive relief are moot because they were directed at the MTA’s exclusion of the ad under a different regulation.

Preliminary injunction moot. The court agreed with the defendants that the plaintiffs’ request for injunctive relief in this case is now moot. Specifically, it determined that there is no reason to think that, having revised its regulations through proper procedures, the MTA has any intention of returning to its enforcement of the prior regulations, particularly in light of the court’s previous finding that the MTA’s “incitement of violence” standard is unconstitutional as applied to the ad in question.

AFDI argued that its claim is not moot for three reasons: (1) the new policy remains unconstitutional; (2) the defendants amended their policy only to suppress AFDI’s views; and (3) AFDI acquired vested rights under the court’s previous order.

The court rejected all three of AFDI’s arguments, first finding it likely that the exclusion of all political ads has converted the MTA’s advertising space from a designated public forum to a limited public forum or a nonpublic forum, and that the court’s standard of review has consequently become more lenient than the strict scrutiny applied in the preliminary injunction order. AFDI’s argument that the new policy is unconstitutional should be brought in an amended complaint, the court noted, which the plaintiff has not yet done.

AFDI’s argument that it acquired vested rights under state law after the court initially granted preliminary injunction also was unavailing, according to the court, as AFDI failed to provide any case under New York law where an applicant acquired a vested right to run an advertisement on public property.

Lastly, AFDI’s claim that the MTA’s amendment of its policy was motivated by a desire to suppress AFDI’s speech in particular was rejected. The court noted that if a new policy is an otherwise constitutional blanket ban of political advertising, a purported illicit motive by the MTA may not be sufficient to invalidate it. No law requires public transit agencies to accept political ads as a matter of course, and the court declined to impose its own views on what type of forum the MTA should create. The original request for injunctive relief was consequently found moot, and the MTA’s motion to dissolve the preliminary injunction order was granted.

The case number is 14 Cv. 7928 (JGK).

Attorneys: David Eliezer Yerushalmi (American Freedom Law Center) for American Freedom Defense Initiative. Eric Joel Feder (Davis Wright Tremaine LLP) for Metropolitan Transportation Authority.

Companies: American Freedom Defense Initiative; Metropolitan Transportation Authority

Cases: Advertising NewYorkNews