Subway speech wars: The MTA vs. the First Amendment

by Post Editorial Board
New York Post
April 25, 2015

https://www.legal-project.org/4406/subway-speech-wars-the-mta-vs-the-first-amendment

Manhattan Federal Judge John Koeltl has more regard for New Yorkers than either the Metropolitan Transportation Authority or Mayor de Blasio.

Now the MTA reportedly may try to ban all political ads as a way around the judge — proving that the agency doesn't understand the First Amendment, either.

Koeltl last week dismissed as "thoroughly unpersuasive" the MTA's insistence that a highly provocative subway ad by an outspoken anti-Muslim activist would provoke violence and should be banned.

Pamela Geller and her American Freedom Defense Initiative have generated tons of controversy with their confrontational ad campaigns.

Three years ago, another federal judge ruled that the ads were protected speech and that the MTA couldn't block them with its policies on bus and subway ads it considers offensive.

The one exception: Advertising that might provoke violence.

Which was precisely what the MTA claimed about an ad with a quote from Hamas TV: "Killing Jews is Worship that draws us close to Allah," and the tag line: "That's his jihad. What's yours?"

But as Judge Koeltl noted, the exact same ad, which parodies a campaign by the Council on American-Islamic Relations, has run in San Francisco and Chicago without any violent incidents.

MTA officials, he ruled, "underestimate the tolerant quality of New Yorkers and overestimate the potential impact of these fleeting advertisements."

Besides which, he added, even "the fear of such spontaneous attacks, without more [evidence], cannot override individuals' rights to free expression."

That's a concept the mayor doesn't seem to get, either. Even after Koeltl's ruling, he called the ads "outrageous, inflammatory and wrong" and proclaimed that they "have no place in New York City or anywhere."

Judge Koeltl, fortunately, understands what the First Amendment means: The way to counter something you consider to be hate speech is to fight back with more speech — not suppression.

receive the latest by email: subscribe to the legal project's free mailing list