A group run by the woman who organized the Prophet Muhammad cartoon contest that sparked a shooting last weekend in Texas has a right to display an anti-Muslim advertisement on city buses, a federal judge in Manhattan has ruled.
The Metropolitan Transportation Authority cannot refuse to run an ad submitted by the American Freedom Defense Initiative (AFDI), an advocacy organization headed by Pamela Geller, a New York blogger who took to denouncing Islam following the 9/11 attacks.
The ad, which began with a quote from “Hamas MTV” and stated “Killing Jews is worship that draws us closer to Allah. That’s his Jihad. What’s yours?” qualifies as speech protected by the First Amendment, according to the court, which held that the MTA cannot decline to run it based solely on a fear that the ad might incite violence.
“While the court is sensitive to the MTA’s security concerns, the defendants have not presented any objective evidence that the Killing Jews advertisement would be likely to incite imminent violence,” wrote U.S. District Judge John Koeltl in a ruling published Friday. “The defendants have restricted it based on its content without a compelling interest or a response narrowly tailored to achieving any such interest.”
The ad at issue was among at least four advertisements that the group submitted to the MTA last summer for display on buses and at subway entrances. The agency approved three of the ads but rejected the “Killing Jews” ad, concluding that it advocated attacks on Jews and that it was reasonably foreseeable the ad would provoke violence.
AFDI sued, claiming that the ad parodied an advertising campaign carried out in 2012 and 2013 by the Council on American-Islamic Relations, a civil rights advocacy group that sought to depict Muslims with positive messages, including “#MyJihad is to build friendships across the aisle. What’s yours?”
In court papers, MTA acknowledge that AFDI’s ad had appeared on buses in Chicago and San Francisco in 2013 without triggering acts of violence. Still, MTA’s director of security testified that although the likelihood of incitement was “hard to quantify in percentages” the ad—particularly the line “What is yours?—could spur people to act violently.
In determining whether the ad constitutes constitutionally protected speech, the court rejected the MTA’s contention that the content fell into the category of so-called fighting words—words that the US Supreme Court has found that by their very utterance tend to incite an immediate breach of the peace or to inflict injury—and therefore are not protected by the First Amendment.
The court also concluded that the ad was unlikely to produce so-called imminent lawless action that would authorize the government to forbid the ad as harmful.
According to the court, the MTA failed to present evidence of a threat to public safety sufficient to justify the restriction of the ad based on its content. “There is no evidence of any violent response to this same advertisement when it ran in Chicago and San Francisco, or even to any similar ad in any city,” wrote Koeltl.
“In order to show that the Killing Jews ad falls outside of the First Amendment’s protection, the defendants must make some objective showing that this ad is directed at producing and likely to product such violent actions,” he added. “The defendants have made no such showing.”
Geller, who achieved notoriety five years ago for battling a mosque and Islamic cultural center that its founders planned to build in Lower Manhattan, has a record of courting controversy. The Southern Poverty Law Center lists AFDI as an active anti-Muslim group.
For its part, AFDI says it aims to preserve “freedom of speech, freedom of religion and equal rights for all.”