Censorship

How the D.C. Transit Authority's Public-Safety Rationale for Rejecting an Ad Threatens Public Safety

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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.

SUPPORT ISRAEL

DEFEAT JIHAD

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.  

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  1. Jeez. If this weren’t so depressing, I’d start my photo dump.

    Seriously, my point for last night stands — there’s no conceivable reason at all for transit authorities of any sort to exist. Who the fuck made these people king, anyway?

    1. Isn’t the photo dump supposed to be a stimulant? You know, the opposite of a depressant.

      1. Yeah, but this sort of shit kills the mood. I think I’ll wait for the PM Links, or something.

  2. “fighting words,” defined by the Supreme Court as speech so offensive that it “tend[s] to incite an immediate breach of the peace.”

    From the constitution:

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech*, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    Except for “fighting words”

    See, it is right there in the constitution, plain as day.

    1. But the Peace, Ptah, the peace!

      Would you rather live in a world of chaotic conflicting narratives and arguments about facts and culture, or would you rather live in a peaceful world free of conflict? Like being in some wonderful coma.

      1. Some of the best sex is born of passionate confrontations.

        A world without that would blow.

        1. There is some truth to this.

      2. Would you rather live in a world of chaotic conflicting narratives and arguments about facts and culture, or would you rather live in a peaceful world free of conflict? Like being in some wonderful coma.

        I would rather live in a world where judges actually followed the constitution, without making exceptions to it by pulling shit out of their asses. I can handle the chaos, the arguments, and as RPA says below, the sex from passionate confrontations. I would actually look forward to the last ;-]

        1. And nothing gets those passionate, rage-inducing rants and confrontations going like authoritarian judges and stupid shit pulled by big-city transit authority bullies. That’s why it’s sometimes good to have pinko girlfriends — they’re on the opposite side of the issue.

    2. See, it is right there in the constitution, plain as day.

      Right after the exception for commercial speech, and right before the one for obscene speech.

      1. Fine print, right?

        1. Emanations and penumbras, duh.

  3. How do we square this with the idea that nativity scenes don’t belong on government property out of establishment concerns, either?

    1. Nativity scenes are OK if you also allow competing displays, like a Festivus pole or something. Sort of the same idea of content-neutrality I guess.

      1. Somebody needs to fund a pro-Muslim/anti-Israel ad and see what the MTA does. This is bullshit. The 1A says ‘shall make no law” for just this type of bullshit.

        1. Don’t be silly. It’s not the same, because Israel is BAD BAD BAD and Islam is a religion of peace.

          Which seems better for our PROGRESSIvE AND GREAT DEMOCRACY?

        2. Somebody needs to fund a pro-Muslim/anti-Israel ad and see what the MTA does.

          That’s the genius of the “fighting words” ban. It only elevates the views and opinions of the violent.

          Because Jews aren’t going around blowing shit up, anti-Jew posters are A-OK.

          Because Islamists are goin around blowing shit up, anti-Islamist posters are banned.

          The punch line, of course, is that the very groups in need of opposition are the ones protected from being opposed.

          1. In any case, as Geller notes, there is no “hate speech” exception to the First Amendment

            Wait until this gets appealed to the supremes. THEN we will have the hate speech exception. You know, to go with all the other exceptions.

          2. “Because Islamists are goin around blowing shit up, anti-Islamist posters are banned.”

            I thought we decided that the assassination of our ambassador in Benghazi wasn’t really over the YouTube video.

            1. Apparently, the MTA disagrees.

              Unless the violence the MTA banned the poster over was the spray painting. I don’t know they were ever terribly clear.

              1. Obama’s bullshit strikes again!

                I’m sure the MTA thinks that if the president says something is true, then I guess it must be true…

                I’m tellin’ y’all, the whole Democratic Party, and half the government too, has turned into a personality cult surrounding Obama. If Obama says it, it’s hadith!

                Another excellent reason to throw Obama out on his ass come November.

    2. I don’t see anything to square.

      1. Can’t say I’m crazy about my tax dollars going to provide a forum for people to bash someone’s religion, just like I’m not crazy about the government using my tax dollars to provide a forum for people to promote their religion by way of a nativity scene, etc.

        If it’s not okay to promote a religion on government property, why would it be okay to bash one?

        I get Nicole’s idea…although I’m not sure I understand how atheists can participate in a group Nativity/Chanukah/Ramadan/Wicca Solstice/Kwanza scene. But it still seems to me like the government should probably just stay out of the whole religion promoting/bashing and race promoting/bashing business altogether.

        1. That’s why the nonreligious put up things like Festivus poles or whatever they do for the Flying Spaghetti Monster.

          I don’t think it’s a great way to have the rules go but that is how various court rulings have ended the situation up.

          Of course, in some places the public fora for holiday decorations are mysteriously rescinded when someone does want to put up a less desireable decoration.

          1. Of course, in some places the public fora for holiday decorations are mysteriously rescinded when someone does want to put up a less desireable decoration.

            Funny how that works, eh? But the religious always play the persecution card and accuse atheists of ruining things for everyone else.

        2. Ken, I can’t speak for Nicole, but I think she’s talking about religious groups which want to display seasonal devotional stuff (ie, nativity scenes) on public property, as opposed to government initiating said displays (ie, Alabama SC Justice Roy Moore’s Ten Commandments shrine in the Alabama Judicial Building).

          I’m not really happy about the private groups’ displays, but it is public property. The FA also allows Atheists to have their own displays, but that puts us in the same category of public insecurity as the religious groups who somehow feel that they need a government imprimatur to validate their faith. Or something.

          1. Oh, derp. Sorry, Nicole, didn’t see your response before I posted mine.

            1. No worries. Yeah, I was focused on this side of the issue because Ken said “nativity scenes don’t belong on government property,” which isn’t the same as establishment concerns about paying for them.

              Shit like this…is part of why I’m an anarchist. Next best solution is db’s below.

    3. Require that the government lease all needed property from private owners.

      1. That would be awesome. Especially when state/municipal governments come up short on the rent.

        1. And because it’s awesome, there’s precisely zero chance it’ll ever happen.

  4. I’m not sure that Geller is really that overwrought in her analysis. I will agree that she does usually go way over the top in making her points, but the de-pantsing of the constitution by Collyer in arguing that speech that might offend muslims is illegal because they might blow some shit up over it is a giant flashing red warning light that something is rotten in the state of Denmark.

    The First Amendment doesn’t say “free speech unless someone gets mad about it”.

    This is beyond “troubling”, this is very very no good awful bad reasoning on the part of a US DISTRICT COURT JUDGE.

    1. The First Amendment doesn’t say “free speech unless someone gets mad about it”.

      Our rights exist regardless of whether they make things easy for the government, or they don’t really exist at all.

    2. This is beyond “troubling”, this is very very no good awful bad reasoning on the part of a US DISTRICT COURT JUDGE.

      I know. Surprising she hasn’t been elevated to SCOTUS.

  5. Freedom? That is a worship word, Yang worship. You will not *speak* it!

  6. Judge Dean, hearing this motion:

    J DEAN: Could the attorney for the transit authority point out to the court where the First Amendment authorizes the state to ban an ad because it might contain “fighting words”?

    WMATA LAWYER: [Peanuts adult wah wah wah sound effect]

    J DEAN: I’m quite aware of Justice Holmes’ views on the subject, and I note that he is not presiding over this hearing. I am asking you to direct the court’s attention to the textual basis for your argument.

    In the absence of any such basis, I really have no choice but to grant the AFDI motion. And to award them court costs and legal fees.

    1. Oh, I want to be your bailiff.

      1. I’d be own bailiff. Sorry.

        Somebody wants to get all up in Judge Dean’s grill, he gets to say hello to Judge Dean’s li’l friend.

  7. The sign doesn’t denigrate Muslims and so can’t actually be hate speech, because it denigrates Jihad. Not all Muslims are violent Jihadists. In fact the vast majority aren’t.

    Hamas and Islamic Jihad are known to throw people they don’t like off the top of buildings. Savage seems like an apt description of such acts.

    1. Yeah. They should kill the people they don’t like* (along with their families) with remotely piloted drones like civilized people.

      *Well, someone who looks like he guy they don’t like.

      1. Throwing one’s political enemies off of buildings is not same as a drone attack against terrorists that kills innocents.

        … but yeah, if you want to call drone attacks against terrorists that end up killing innocents savage… call it that. And make all the posters you want for it.

        Our drone attacks don’t make Hamas’ or Islamic Jihad’s act any less savage.

  8. “If the goal of preventing violence justifies censorship in these cases, it also would justify censorship in privately owned forums, such as signs on front lawns or in store windows.”

    Well that is truly frightening.

  9. “The implication is that if the goal of preventing violence justifies censorship in these cases, it also would justify censorship in privately owned forums, such as signs on front lawns or in store windows.”

    ok, reasonoids… for those who live in the 2nd circuit or DC Circuit!!!! How about making a copy of the ad and posting it in your front yard or front window. See the hilarity that ensuses!
    i am sure AFDI would have no problem with people posting a copy of the ad on their property, but you could check just to be safe.

    Would your homeowner’s association throw a tizzy fit? Neighbors? Local CAIR? etc. I’d actually be curious to see what would happen if somebody posted this ad in their front yard or window.

    I’d be willing to bet that when push came to shove, your right to post this ad would be upheld, fighting words doctrine aside. Of course one difference between a sign in a lawn and in a MTA property is that the latter involves a “captive audience” so to speak,and there are a few other differences, but imo the court is basically kludging here. What they are saying is (really) “the bill of rights isn’t a death warrant. as long as these savages will riot, murder, etc. over this shit, we will find an excuse to limit display of same… constitution be damned” – and it would be nice if they had the sack to admit that .

  10. Is jihadi (mujahedeen?) a protected class for hate speech anyway? The way it was written, it can only suggest opposition to Muslims who engage in religiously-motivated violence.

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