Antitrust Law Daily Wrap Up, ADVERTISING—S.D. N.Y.: Transit authority’s rejection of controversial ad violated advertiser’s First Amendment rights, (Apr 23, 2015)

By Michael Menzhuber, J.D., LL.M.

The Metropolitan Transportation Authority’s (MTA) refusal to provide advertising space to the American Freedom Defense Initiate (AFDI) for their politically and religiously charged advertisement, referred to as the “Killing Jews ad,” was a violation of the organization’s First Amendment rights. The federal district court New York City determined that the ad was “protected” speech under the First Amendment and that concerns that the ad would incite or provoke violence or an immediate breach of the peace were unsupported and speculative (American Freedom Defense Initiative v. Metropolitan Transportation Authority, April 20, 2015, Koeltl, J..).

Background. The MTA allows advertising on its subway, commuter rail, and bus systems. However, it has a standard that prohibits advertising that “contains material the display of which the MTA reasonable 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.”

During the summer of 2014, AFDI submitted an advertisement that it requested be displayed on MTA buses. The ad (Killing Jews ad) portrayed a menacing-looking man, whose head and face was most 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 Killing Jews 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 AFDI filed a civil rights complaint, alleging that the MTA’s refusal to run the Killing Jews ad violated the First Amendment and requesting that the court order the MTA to display the ad.

In considering AFDI’s request for a preliminary injunction, the court noted the requirement that the plaintiff establish: (1) that there be would be a likelihood of success on the merits; (2) that the balance of equities tips in the plaintiff’s favor; and (3) that granting the preliminary injunction would be in the public interest.

Likelihood of success. In order to determine the likelihood of success on the merits, the court was required to analyze: (1) whether the ad constitutes protected speech under the First Amendment; (2) if so, the nature of the forum to which the MTA is limiting access; and (3) whether the justifications for the restriction satisfy the appropriate standard of review. Because the MTA conceded that advertising space on their buses constituted a public forum and that their refusal to run the Killing Jew ad was based on its content, the only issue for the court was whether the ad was protected speech under the First Amendment.

The MTA contended that they permissibly excluded the Killing Jews ad because it fell into two separate categories of unprotected speech: “fighting words” and “incitement of violence or lawlessness.” The court acknowledged the MTA’s concerns but determined that they were unsupported and speculative and, under the First Amendment, the fear of spontaneous attack, without more, could not override individuals’ freedom of expression. Consequently, the Killing Jews ad was protected speech under the First Amendment.

The court further determined that the MTA was not protecting public safety and furthering a compelling state interest by not allowing the ad on the buses because the MTA’s security concerns were speculative. The exclusion of the ad was not narrowly-tailored to address the MTA’s security concerns because it could have run the ad with adjacent disclaimers or counter-advertisements expressing disagreement with the ad and/or explaining its context.

Balancing of Equities and Public Interest. The court held that both the balance of equities and the public interest in the case favored granting the preliminary injunction. It determined that the MTA’s concern of a global and local threat of terrorism was a generalized fear, only tangentially connected to the Killing Jew ad, and did not outweigh the public interest in protecting First Amendment rights.

The case number is No. 14 Cv 7928 (JGK),

Attorneys: David Eliezer Yerushalmi (American Freedom Law Center) for American Freedom Defense Initiative. Peter Andrew Sistrom for the Metropolitan Transporation Authority.

Companies: American Freedom Defense Initiative; Metropolitan Transportation Authority

Cases: Advertising NewYorkNews