Pamela Geller, executive director of the American Freedom Defense Initiative (AFDI), offers an overheated but nevertheless alarming account of yesterday's hearing in her case challenging the Washington Metropolitan Area Transit Authority's rejection of AFDI's pro-Israel, anti-jihad subway ad. The ad reads as follows:
IN ANY WAR BETWEEN THE CIVILIZED MAN AND THE SAVAGE, SUPPORT THE CIVILIZED MAN.
WMATA initially accepted the ad, then changed its mind following the recent violent protests in Muslim countries by people upset about (among other things) Innocence of Muslims, the Muhammad-mocking YouTube video. The authority cited "security and safety" concerns, worrying that the AFDI ad might "expose passengers to terrorism." The task for WMATA lawyer Philip Straub at yesterday's hearing was to make the case that such fears constitute a "compelling governmental interest" and that banning the ad is "narrowly tailored" to serve that interest. Geller reports that Traub tried to escape this burden by arguing that the ad's message constitutes "fighting words," defined by the Supreme Court in the 1942 case Chaplinsky v. New Hampshire as "those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace." The "fighting words" at issue in Chaplinsky were epithets shouted directly at a city marshal, and the Court never again used this doctrine to uphold a conviction. U.S. District Judge Rosemary Collyer was not receptive to the "fighting words" argument, saying there is little evidence to support the idea that the AFDI ad would have an immediate effect like the one imagined in Chaplinsky. Geller notes that the ad has been displayed in New York and San Francisco "without incident," except for a single act of spray-paint vandalism in New York by Egyptian-American journalist Mona Eltahawy.
Although Collyer shot down Straub's "fighting words" claim, Geller nevertheless concluded that the judge (who did not rule yesterday on AFDI's request for an injunction) was looking for an excuse to uphold the ad ban. Geller says that when AFDI's lawyer, Robert Muise of the American Freedom Law Center, argued that the safety threat imagined by WMATA was purely speculative, Collyer replied, "No threat? Where have you been?" The implication—that riots in other countries can justify censorship here—is troubling, to say the least. According to Geller and Muise, the only evidence that the ad might provoke violence in the D.C. subway system is a single emailed threat. If that is enough to justify suppressing a political message, people who cannot abide speech with which they disagree have a very easy way to circumvent the First Amendment.
Even more troubling, Geller says Collyer suggested, contrary to the conclusion reached by U.S. District Judge Paul Engelmayer in New York, that the AFDI ad does not represent "core political speech." Here is Geller's quotation of Collyer: "I see hate speech. When you defend this ad as core political speech, I have a problem with that." If the judge said anything like that (I am waiting to hear from Muise and WMATA's press office regarding Geller's quotations [see update below]), her point is puzzling. There is no reason why the AFDI ad can't be both hate speech (because it supposedly denigrates Muslims) and core political speech (because it recommends a particular position regarding the Israeli-Palestinian conflict). In any case, as Geller notes, there is no "hate speech" exception to the First Amendment.
Geller, as seems to be her wont, overstates matters when she declares that "free speech is in its death throes." But her hyperbole should not distract civil libertarians from the very real threat posed by WMATA's rationale for rejecting her ad, which is similar to the new rule recently adopted by New York's Metropolitan Transportation Authority, barring messages that it "reasonably foresees would imminently incite or provoke violence or other immediate breach of the peace." In both of these cases, the anticipated violent response of especially touchy people overrides the First Amendment rights of controversial speakers. Such a heckler's veto is not only open-ended, potentially justifying censorship of any speech deemed to be provocative; it is itself a threat to public safety, encouraging violence (or at least threats of violence) as a way of eliminating offensive messages.
Addendum: In the D.C. Circuit and the 2nd Circuit (which includes New York), the ad space overseen by WMATA and the MTA qualifies as a "designated public forum," meaning that content-based restrictions on the ads are subject to the highest level of constitutional scrutiny. The implication is that if the goal of preventing violence justifies censorship in these cases, it also could justify censorship in privately owned forums, such as signs on front lawns or in store windows, which might trigger a violent response from indignant passers-by.
Update: Muise confirms the gist of Geller's quotes from the hearing. He too was puzzled by Collyer's constitutionally irrelevant reference to "hate speech." He hopes to see an order from her today, and he worries about the message that upholding the ad ban would send to future hecklers-cum-censors, saying, "It really encourages the people who advocate violence."
Update II: Contrary to Pamela Geller's fears, Judge Collyer today issued a preliminary injunction ordering WMATA to begin displaying the AFDI ads by Monday. Collyer says she will issue an opinion explaining her reasoning soon.