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."