D.C. Transit Authority Claimed Controversial Ads Might Cause People to Fall Off Subway Platforms

U.S. District Judge Rosemary Collyer, who earlier this month issued a preliminary injunction ordering the Washington Metropolitan Area Transit Authority (WMATA) to start running the American Freedom Defense Initiative's controversial anti-jihad ads, recently released an opinion in which she explains her reasoning. Although Collyer reaches the correct result, she seems (as AFDI Executive Director Pamela Geller suggested) insufficiently skeptical of WMATA's public-safety rationale for rejecting the ads and so keen to condemn AFDI's message that she dwells on a dubious, constitutionally irrelevant distinction between "hate speech" and "political speech." The fact that Geller sided with AFDI despite her antipathy toward the group and her sympathy toward WMATA illustrates the First Amendment's strength. At the same time, her reasoning may encourage future, more "narrowly tailored" attempts at censorship.

"In any war between the civilized man and the savage, support the civilized man," the AFDI ad says, paraphrasing Ayn Rand. "Support Israel. Defeat jihad." Collyer easily rejected WMATA's argument that the message could be banned as "fighting words," a doctrine that the Supreme Court has used only once to uphold a speech restriction, in the context of insults spoken to someone in person and likely to elicit a violent response. "As a message communicated in advertising space," she writes, "Plaintiffs' speech does not meet the Court's description of this category of unprotected speech." Collyer also immedately saw through WMATA's claim that its decision to indefinitely "postpone" placement of the ads was a content-neutral "time, place, or manner" restriction. Since WMATA's concerns about the ad clearly were related to its message, she says, its ban must survive "strict scrutiny," meaning that it must be "necessary to serve a compelling state interest" and "narrowly drawn to achieve that end."

That determination virtually assured AFDI's victory, since (as Collyer notes) "content-based restrictions can rarely pass constitutional review." In fact, she writes, "neither party points to a case concerning a content-based restriction where the Supreme Court concluded that the government had a compelling interest and the restriction could be approved because it was sufficiently narrowly tailored." Collyer nevertheless goes through the motions, saying "the Court easily concludes that WMATA's concern for the safety of its passengers and employees constituted a compelling government interest." After initially accepting the ad based on its lawyer's advice that the message was constitutionally protected, WMATA changed its mind when "violence erupted abroad in response to the American-made amateur movie trailer...that depicted the Prophet Mohammad in scandalous ways."

What, you might ask, does that have to do with a subway ad in Washington, D.C.? Collyer explains that "WMATA cited two ways in which the ad could threaten public safety: (1) inter-passenger disputes on subway platforms that could result in passengers falling into the tracks or (2) a terrorist attack." Collyer mentions no evidence supporting the first fear, which gives new meaning to the phrase "third rail of American politics." As for the second concern, the only evidence of a terrorist threat was a general warning from the Department of Homeland Security following the Innocence of Muslims riots and the Transportation Security Administration's opinion that "WMATA’s Metrorail system is a unique target because of its close association with the federal government." The AFDI ads have run in San Francisco and New York City without violence, except for one case of spray-paint vandalism.

It is therefore hard to see how Collyer "easily concludes" that WMATA's concerns are compelling. They seem farfetched, if not fanciful, to me. In any event, it is dangerous to suggest that riots in other countries or the possibly violent responses of hypothetical passers-by can justify censorship of political speech. In the end, Collyer concludes that, while WMATA had "rational concerns," its method of addressing them was too broad because "it provided no sensible timeframe after which the delay [in displaying the ads] would expire" and failed to consider narrower solutions such as changing the location of the ads (to avoid the dreaded platform fights in close proximity to "energized tracks") or running them wiith disclaimers expressing WMATA's "disagreement" with AFDI's message. (WMATA, which started displaying the ads on October 8 in compliance with Collyer's preliminary injunction, is using a more neutral disclaimer: "This is a paid advertisement sponsored by [sponsor]. The advertising space is a designated public forum and does not imply WMATA's endorsement of any views expressed.")

Collyer herself goes out of her way to emphasize that she does not like what AFDI has to say, calling it "a combination of political speech in favor of Israel and hate speech directed to Muslims." She uses the phrase "hate speech," which she also deployed at an October 4 hearing, twice more in her opinion. The description is debatable: AFDI insists it is not condemning Muslims in general, just violent extremists. In any case, as Collyer admits, "It is unnecessary to decide whether the advertisement is predominantly one type of speech or the other," because "the First Amendment protects speech from government intrusion in either case." Then why bring up this distinction at all, except to show that Collyer, unlike Pamela Geller, is a decent, right-thinking person? As Collyer notes, "the First Amendment protects obnoxious and offensive speech." Indeed, "some might say that the Amendment’s protections are needed more strongly for such speech."

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  • Tman||

    Why is Collyer so adamant about inserting her opinion of the ads in question in to the discussion?

    The fuck does it have to do with ANYTHING? This is a farking U.S. District Judge fer chrissakes.

    Just terrible.

  • mad libertarian guy||

    Why are those who have fits when even mild statements in support of Christianity are uttered so eager to protect the interests of radical Islamists?

    The whole anti-religion/atheist regime of the left is a charade; they aren't anti-religion, they are anti-Christian because they see Xianity as the religion of the redneck from flyover country.

  • BigT||

    Libs suffer from a giant, all-encompassing guilt complex. They think every issue reveals an underlying evil of Western society - male, white , Xtian, capitalist, individualist, etc. for which we ALL must atone.

    Ironically, this can be characterized as Xtianity run amuck.

  • Paleo-ConAvenger||

    The left hates the West, and Christianity is undoubtedly, in their mind, a tenant of Western Civilization.

  • pmains||

    I rent my extra room to tenants. I believe in the tenets of free market capitalism.

  • Paleo-ConAvenger||

    Argh. I'm usually the grammar/spelling Nazi. Youz make me sadz.

  • Tonio||

    The whole anti-religion/atheist regime of the left is a charade; they aren't anti-religion, they are anti-Christian...

    Ok, with those vague generalizations ("those who have fits")and straw men you're 100% correct.

  • Metazoan||

    Frankly, I don't really care either way what any of these signs say. I can just ignore them. Personally, I think they are pretty stupid. But so what?

    And I am an agnostic who thinks bickering over which religion is correct is a fool's game.

  • SIV||

    The gft that keeps on giving:

    On August 1, 2002, Collyer was nominated by President George W. Bush to a seat on the United States District Court for the District of Columbia vacated by Thomas Penfield Jackson. Collyer was confirmed by the United States Senate on November 14, 2002, and received commission on November 15, 2002.

  • ||

    Why can't judicial opinions simply be a few setences long? Example:

    "In the matter of American Freedom Defense Initiative v. Washington Metropolitan Area Transit Authority: Amendment 1,'Congress shall make NO LAW abridging the freedom of speech...'

    English, motherfucker, do you speak it? This court orders WMATA to run the ad as promised in the contract between WMATA and FDI."

  • Jordan||

    I've often wondered the same thing.

  • Rich||

    Beautiful.

  • Brutus||

    She wants to show that she's on the side of the angels for the chablis and brie set, not to mention the Semtex and ball bearings set.

  • Xenocles||

    Someone should put a sticker that says "vandalism" over the stickers.

  • BlogimiDei||

    I love John "Bluto" Blutarsky's college shirt that simply says "College"

  • Xenocles||

    An enterprising fellow alum of mine put out a shirt that says "Not College"

  • ||

    It seems the Train Man might have a compelling interest.

  • Rich||

    inter-passenger disputes on subway platforms that could result in passengers falling into the tracks

    Oh, bite me! A *funny* ad could result in passengers falling into the tracks due to uncontrollable laughter.

  • Eduard van Haalen||

    "Have you ji-had enough of these terrorists? Call Netahyahu and ask him to drop a nuke down Al-Quaeda's shorts."

  • OldMexican||

    D.C. Transit Authority Claimed Controversial Ads Might Cause People to Fall Off Subway Platforms

    Ok, NOW I've heard everything!

  • sloopyinca||

    D.C. Transit Authority Claimed Controversial Ads Might Cause People to Fall Off Subway Platforms

    This is the dumbest shit I've heard since that boyfucker Mann came up with his "hockey stick" bullshit.

  • johnl||

    Did they carry the add for Mama Mia with Amanda Seyfried smiling holding flowers on the beach? This is the problem with women judges, that Collyer honestly believes that "blah jihad blah blah" is so distracting that people might walk in front of trains, while Seyfried is blah blah.

  • MisterDamage||

    "... obnoxious and offensive speech." Indeed, "some might say that the Amendment’s protections are needed more strongly for such speech."

    I'm not certain what other kinds of speech have ever been suppressed.

  • LTC(ret) John||

    "The fact that Geller sided with AFDI despite her antipathy toward the group and her sympathy toward WMATA..."

    Odd, and here the article told me Geller was a part of the AFDI.

    /snark off.

  • Tonio||

    inter-passenger disputes on subway platforms that could result in passengers falling into the tracks

    This is the most dangerous part of that. Government always uses the most blatant, bullshit, pants-wetting rationale for killing rights. In a truly just world every WMATA spokescritter would be mercilessly badgered about this during every press conference and interview until the authoritay issued a complete retraction and apology.

  • tagtann||

    lol thats just downright crazy dude.

    www.Anon-Whiz.tk

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