"Killing Jews is Worship" poster can't be denied space on NYC buses

|The Volokh Conspiracy |

The American Freedom Defense Initiative, a pro-Israel advocacy organization known for its public criticism of Islam, won a legal victory against the NYC Metropolitan Transportation Authority (MTA) a couple of days ago when Judge Koetel of the SDNY ordered the MTA to display an advertisement submitted by AFDI on the backs of MTA buses. The advertisement (which can be seen by scrolling down here) portrayed, in the court's words,

"… a menacing-looking man whose head and face are mostly covered by a head scarf. The ad includes a quote from 'Hamas MTV': 'Killing Jews is Worship that draws us close to Allah.' Underneath the quote, the ad stated: "That's His Jihad. What's yours?"

The ad, obviously, isn't meant to advocate the use of force against Jews, but rather to criticize Hamas and radical Islam, and to parody a campaign run by the Council on American-Islamic Relations (CAIR), a Muslim advocacy group. CAIR's "My Jihad" campaign "sought to portray the Islamic concept of lesser jihad, or individual and personal struggle, by depicting Muslim individuals with positive messages. One typical ad states, "'#MyJihad is to build friendships across the aisle.' What's yours?"

The MTA had excluded the ad, based on its policy of refusing to accept any ad that "contains material the display of which the MTA reasonably foresees would imminently incite or provoke violence or other immediate breach of the peace, and so harm, disrupt, or interfere with safe, efficient, and orderly transit operations."

The court, however, held that the exclusion violated AFDI's First Amendment rights. The court rejected the MTA's arguments that the ad fell outside the protection of the First Amendment under the doctrine of "fighting words" or "incitement":

[T]he ad in question plainly does not contain "fighting words." Although the ad may be jarring to some and offensive to others, the defendants have not shown that the ad's recitation of the quote from Hamas TV would tend to incite an "immediate breach of the peace."

The defendants also cannot point to any objective evidence to support their concerns that the advertisement is an imminent incitement of violence.

Therefore, the MTA had to show that its content-based restriction on speech in a public forum was justified with reference to "a compelling government interest" and "narrowly drawn to serve that interest." The court held that it could do neither.

Prior restraints on protected speech are subject to a "heavy presumption" against their constitutional validity. The defendants have not satisfied their burden in this case by reference to generalized security concerns unconnected to the advertisement at issue in this case.

Moreover, the defendants' exclusion of the Killing Jews ad is not narrowly tailored to achieve their security interests. Rather than banning an advertisement outright, the transit authorities could run the disputed advertisement with adjacent disclaimers, or counter-advertisements, expressing disagreement with the ad and/or explaining its context

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