[Note: This post has been corrected. Material that has been revised is in boldface.]
As Tim Cavanaugh noted last week, New York City's Metropolitan Transportation Authority (MTA) has revised its guidelines for bus and subway ads after a controversy over an ad that urges the public to side with "the civilized man" rather than "the savage" by "support[ing] Israel" and "defeat[ing] jihad." The MTA had been forced to accept the Ayn Rand–quoting ad, sponsored by Pamela Geller's American Freedom Defense Initiative (AFDI), when a federal judge ruled that the excuse for rejecting it—that it "demeaned" people based on religion, ancestry, or national origin—was constitutionally invalid. Although the AFDI ads have not been banned and will be running through this month, the MTA's new rule—banning ads it "reasonably foresees would imminently incite or provoke violence or other immediate breach of the peace”—poses an even bigger threat to freedom of speech, embracing a heckler's veto by basing censorship decisions on subjective predictions of people's hostile reactions to controversial opinions.
In a July 20 ruling, U.S. District Judge Paul Engelmayer described the AFDI ad as "core political speech," expressing "a pro-Israel perspective on the Israeli/Palestinian conflict" in response to "political ads on the same subject that have appeared in the same space." He noted that the U.S. Court of Appeals for the 2nd Circuit (which includes New York) has deemed the MTA's advertising space a "designated public forum," meaning that content-based restrictions are subject to strict scrutiny. Engelmayer concluded that the MTA's regulation—which banned ads that "demean an individual or group of individuals on account of race, color, religion, national origin, ancestry, gender, age, disability or sexual orientation"—failed that test:
Under MTA’s no-demeaning standard, an advertiser willing to pay for the privilege is today at liberty to place a demeaning ad on the side or back of a city bus that states any of the following: "Southerners are bigots"; "Upper West Siders are elitist snobs"; "Fat people are slobs"; "Blondes are bimbos"; "Lawyers are sleazebags"; or "The store clerks at Gristedes are rude and lazy." The regulation also does not prohibit an ad that expresses: "Democrats are communists"; "Republicans are heartless"; or "Tea Party adherents are barbaric." The standard would also countenance an ad that argues: "Proponents [or opponents] of the new health care law are brain-damaged." Strikingly, as MTA conceded at argument, its no-demeaning standard currently permits a bus ad even to target an individual private citizen for abuse in the most vile of terms. For example: "John Doe is a child-abuser"; "Jane Doe runs a Ponzi scheme"; or "My neighbors, the Does, are horrible parents."...
Under that regulation, an ad on a public bus may not call a person or group "savage" based on his or her religion or nationality, or because the person or group falls within the other seven proscribed categories delineated in the regulation. But such an ad may otherwise call another person or group a "savage" or "savages" on any other basis—because they are a neighbor, a family, a school, an employer, an employee, a company, a union, a community group, a charity, an interest group, a believer in a cause, or a political foe....
MTA does not offer any justification for selectively allowing demeaning speech to appear on the exterior of its buses, let alone demonstrate that its content-based restriction on transit advertising is narrowly tailored to serve a compelling governmental interest, as is necessary to survive strict scrutiny.
Last Thursday the MTA's board unanimously replaced this arbitrarily narrow policy with an alarmingly broad one that empowers people who react violently to perceived insults. Instead of banning the AFDI ad because it demeans Muslims, the MTA will now reject any ad that, in the MTA's view, is likely to "imminently incite or provoke violence or other immediate breach of the peace." In other words, the MTA is implicitly endorsing the "demeaning" message it tried to suppress, agreeing that people offended by the AFDI ad are apt to act like savages—by vandalizing the signs, for example. Indeed, the logic of this new policy suggests that people can get rid of speech they don't like by painting over or tearing down a poster or two, thereby triggering a system-wide ban, since such vandalism would be clear evidence that an ad tends to incite lawless behavior. [An MTA spokesman says the AFDI ads "are in compliance with our revised standards."]
It is hard to see how this new ad rule can be upheld, given the dim view that the Supreme Court takes of regulations that allow "a single, private actor to unilaterally silence a speaker even as to willing listeners." The MTA policy compounds the dangers posed by the heckler's veto because it does not even require an actual breach of the peace—just a supposedly "reasonable" prediction of one. The authority's judgments about which messages are unacceptably provocative are likely to be influenced by the political prejudices of the people making the decisions.
The Washington Metropolitian Area Transit Authority (WMATA) also has rejected the AFDI ad (after initially accepting it), citing concerns about "security and safety" in light of violent protests against The Innocence of Muslims. WMATA worried that the ads might "expose passengers to terrorism and threaten their safety"—a rationale (the terrorist's veto) similar to the MTA's (the vandal's veto). Tomorrow U.S. District Court Judge Rosemary M. Collyer is scheduled to hear the AFDI's arguments for an injunction against WMATA's decision.