Antitrust Law Daily Wrap Up, TOP STORY—E.D. Pa.: Pennsylvania rejects “Islamic Jew-Hatred” ad, violates First Amendment, (Mar 12, 2015)

By Greg Hammond, J.D.

The Southeastern Pennsylvania Transportation Authority (SEPTA) violated the First Amendment rights of the American Freedom Defense Initiative (AFDI), by refusing advertising space for a politically and religiously charged advertisement concerning “Islamic Jew-Hatred.” The federal district court in Philadelphia granted preliminary injunction in favor of AFDI, finding that AFDI demonstrated a likelihood of success on the merits of its First Amendment claim, that it suffered irreparable injury, and that the public interest favors the protection of a party’s constitutional rights (American Freedom Defense Initiative v. Southeastern Pennsylvania Transportation Authority, March 11, 2015, Goldberg, M.).

Background. SEPTA allows advertising on its stations, vehicles, and products, but has an “anti-disparagement standard” that prohibits “advertising that tends to disparage or ridicule any person or group of persons on the basis of race, religious belief, age, sex, alienage, national origin, sickness or disability.”

In May 2014, AFDI submitted an advertisement that it requested be displayed on SEPTA buses, stating, “Islamic Jew-Hatred: It’s in the Quran. Two Thirds of All US Aid Goes to Islamic Countries. Stop the Hate. End All Aid to Islamic Countries.” The ad also displays an image of Adolf Hitler meeting with Haj Amin al-Husseini, with the caption, “Adolf Hitler and his staunch ally, the leader of the Muslim world, Haj Amin al-Husseini.”

SEPTA ultimately rejected the advertisement on the basis that it did not comply with the anti-disparagement standard. AFDI consequently filed a civil rights action, alleging claims under the First and Fourteenth Amendments of the United States Constitution. The case was before the court on AFDI’s motion for preliminary injunction, requesting that the court enjoin enforcement of the anti-disparagement standard and order SEPTA to display the advertisement.

Likelihood of success. In order to determine if AFDI established a 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 created by SEPTA’s advertising space and the appropriate level of scrutiny; and (3) whether the anti-disparagement standard survives the applicable level of scrutiny.

First, the court determined that the ad contains statements concerning foreign aid and references to the Quran, which squarely involves political expression and interpretation of a religious text—both of which are protected speech. Second, the court found that SEPTA’s advertising space constitutes a designated public forum, because SEPTA’s acceptance of political and public issue speech—previously concerning teacher seniority, fracking, and contraceptive use—demonstrated a general intent to open the forum for expression.

The anti-disparagement standard was next determined to be content-based, which could only survive constitutional scrutiny if the standard is necessary to serve a compelling state interest. The court concluded that SEPTA’s anti-disparagement standard would have the same “beneficial effect” even if its prohibition was not limited to specific enumerated groups. Consequently, the standard’s content-based restriction was not necessary to achieve whatever compelling state interest SEPTA might claim as justification. The standard therefore did not survive strict scrutiny and AFDI was deemed likely to succeed on the merits of its First Amendment claim.

The court additionally noted that the anti-disparagement standard goes beyond content discrimination to actual viewpoint discrimination, because the standard prohibits expression which disparages certain groups, but allows speech that praises those same groups. The restriction was therefore deemed viewpoint based and unconstitutional regardless of the nature of the forum.

Irreparable harm, public interest. AFDI also established irreparable harm, because loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury, the court found. In addition, the interest in vindicating First Amendment freedoms outweighed any harm that might befall SEPTA by granting preliminary injunction. Lastly, the court concluded that the public interest favors granting the requested injunctive relief, because it is always in the public interest to prevent violations of a party’s constitutional rights. The motion for preliminary injunction was therefore granted.

The case number is 2:14-cv-5335.

Attorneys: David Yerushalmi (American Freedom Law Center) and Jason P. Gosselin (Drinker Biddle & Reath LLP) for American Freedom Defense Initiative. David A. Schumacher (Buchanan Ingersoll & Rooney PC) for Southeastern Pennsylvania Transportation Authority.

Companies: American Freedom Defense Initiative; Southeastern Pennsylvania Transportation Authority

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