The legal battle over AFDI/SIOA Anti-Muslim Ads

by Sheila Musaji

We have published a number of articles (beginning in September of 2011) on the current controversy over a series of ads being published in public spaces by the hate groups AFDI/SIOA.  These articles include many sources and references regarding discussion of different aspects of this controversy:

- Pamela Geller: A Tale of Two Bus Ads
- A Tale of Three Bigoted Ads
- Pamela Geller & Robert Spencer announce new “Islamorealism” anti-Islam ad
- Bus Ads: Of Savages and Idiots
- 17,000+ “Islamic terrorist” attacks exist only in fevered Islamophobic brains
- Freedom of speech does not include freedom from condemnation of that speech
- Pamela Geller Does Not Understand Freedom of Speech
- American Muslims and Arabs respond to the ads.
- All extremists are “savages” and “civilized men” need to counter the hate
- How Muslims understand the term “jihad”
- Is vandalism an appropriate free speech response to hate speech? .
- The legal battle over AFDI/SIOA Anti-Muslim Ads
- American Jews Are Speaking Out Against Anti-Muslim Ads

The Legal Battle

“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.”  First Amendment of the Constitution of the United States.

In San Francisco, the SF MTA said that it will run the ad, but condemns the content, and they will donate the money they receive from AFDI/SIOA to a public education campaign by the San Francisco Human Rights Commission, and Muni will go one step further by placing their own signage next to the SIOA ad saying, “Muni doesn’t support this message.”. They also said that they will review their ad policy going forward.  SF MUNI also began running ads next to these ads stating “FMTA policy prohibits discrimination based on national origin, religion, and other characteristics and condemns statements that describe any group as ‘savages’.”

When the “savage” ad was first submitted to the NY MTA,  was rejected on the grounds that it was “demeaning”, and AFDI/SION filed a lawsuit.  A NY judge ruled that the ads are protected speech under the First Amendment, and therefore could run.  This was because the MTA accepts non commercial ads, and the wording of its’ policy and the meaning of “demeaning” are open to various interpretations.  The judge’s ruling said that the policy, as it was currently written, would permit some forms of demeaning speech while disallowing others.  So, in the case of the AFDI/SIOA ads, this effectively created an improper restriction on their rights under the First Amendment. The judge gave the the transit authority 30 days to consider rewording its’ advertising policy.  The ads began running.

Now, the NY MTA has issued new guidelines and amended its’ advertising policy after an 8-to-0 vote at a board meeting.  Under the new guidelines they will still allow non-commercial advertising, but each such ad must include a disclaimer.  The new guidelines will not apply to the AFDI/SIOA (or any other) ads currently posted but will be applied to all future ad submissions.  The disclaimer on all non-commercial ads will read: “This is a paid advertisement sponsored by [Sponsor]. The display of this advertisement does not imply MTA’s endorsement of any views expressed.”  

The section of the new guidelines that would specifically be applicable to ads such as the AFDI/SIOA ads is section x which reads:  ” x.  The advertisement, or any information contained in it, is directly adverse to the commercial or administrative interests of the MTA or is harmful to the morale of MTA employees or contains material the display of which the MTA reasonably foresees would 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 Gothamist reports that in a statement, the MTA also left the door open for further restrictions as the situation warrants:

To be clear, the MTA does not believe the First Amendment compels the MTA to open up its ad spaces in this way to a wide range of expressive communications. MTA could, for example, adopt a narrower commercially oriented ad policy, one that limited the range of ads it will display to those selling a product or service, and by doing so, avoid having to run demeaning or divisive ads such as the AFDI ad that resulted in litigation.

But the MTA for decades has permitted its ad spaces to serve a broader communicative function than mere commercial advertising, and the Board, today reaffirms that tradition of tolerating a wide spectrum of types of ads, including ads that express views on a wide range of public matters.

With that choice also come First Amendment limitations that constrain the MTA’s ability to disallow particular ads because their messages are uncivil or divisive. We had thought this did not mean having to run divisive ads that demeaned others, but the recent litigation tells us otherwise.

The MTA guidelines may or may not have corrected any ambiguities in order to withstand any legal challenges.  And, it is certain that there will be further legal challenges.  Personally, since these venues are all public transportation, I wish that they would simply change their policy to state that they will not accept any non-commercial advertising. 

Pamela Geller (the co-director along with Robert Spencer of the AFDI/SIOA) has said that “the fact is that our ads are running, and based on this new ruling, I intend to expand and increase my New York buy.  She also said: “If they block us, we’ll sue again.  The only thing that the AFDI/SIOA is accomplishing with this constant pushing of the limits of free speech to include hate speech is that, sadly, in the end it is likely that the free speech of everyone will be limited. 

Here is the full text of the new MTA standards:

Advertising Standards for Licensed Properties of the Metropolitan Transportation Authority The following Standards shall apply to all licenses for the installation, display and maintenance of advertising on designated properties and facilities operated by the Metropolitan Transportation Authority and/or its operating agencies (collectively, the “MTA”).

(a) Limitations Upon Advertisements. The licensee (“advertising contractor”) shall not display or maintain any advertisement that falls within one or more of the following categories:

i. The advertisement proposes a commercial transaction, and the advertisement or information contained in it is false, misleading or deceptive.
ii.  The advertisement or information contained in it promotes unlawful or illegal goods, services or activities.
iii.  The advertisement or information contained in it implies or declares an endorsement by the MTA of any service, product or point of view without prior written authorization of the MTA.
iv.  The advertisement depicts or describes in a patently offensive manner sexual or excretory activities so as to satisfy the definition of obscene material as contained in New York Penal Law § 235.00 (attached as Exhibit 1), as such provision maybe amended, modified or supplemented from time to time.
v.  The advertisement contains an image or description, which, if sold or loaned to a minor for monetary consideration with knowledge of its character and content,would give rise to a violation of New York Penal Law § 235.21 (attached as Exhibit 2; see also Exhibit 3 (New York Penal Law § 235.20 (definitions of terms))), as such provision may be amended, modified or supplemented from time to time.
vi.  The advertisement contains an image or description which, if displayed in a transportation facility with knowledge of its character and content, would give rise to a violation of New York Penal Law § 245.11 (attached as Exhibit 4; see also Exhibit 5 (New York Penal Law § 245.10 (definitions of terms))), as such provision may be amended, modified or supplemented from time to time.
vii.  The advertisement, or any information contained in it, is libelous or violates New York Civil Rights Law § 50 (attached as Exhibit 6), as such provision may be amended, modified or supplemented from time to time.
viii.  The advertisement proposes a commercial transaction, and promotes tobacco or tobacco-related products.
ix.  The advertisement contains an image of a person, who appears to be a minor, in sexually suggestive dress, pose, or context.
x.  The advertisement, or any information contained in it, is directly adverse to the commercial or administrative interests of the MTA or is harmful to the morale of MTA employees or contains material the display of which the MTA reasonably foresees would incite or provoke violence or other immediate breach of the peace,and so harm, disrupt, or interfere with safe, efficient, and orderly transit operations.
xi.  The advertisement contains images or information that are so violent, frightening,or otherwise disturbing as to be harmful to minors.
xii.  The advertisement promotes an escort service, dating service, or sexually oriented business.

(b) Additional Provisions Relating to Advertisements. To avoid identification of MTA with messages or images contained within advertisements displayed on MTA properties and to avoid the appearance of MTA endorsement of products, services, events, orviewpoints promoted by advertisers, the following shall apply:

i.  Advertisements shall readily and unambiguously identify the person, corporation,or entity paying for the advertisement and an advertiser may be required toinclude in the advertisement a statement explicitly doing so.
ii.  An advertisement that primarily or predominately expresses or advocates a viewpoint on a political, moral, or religious issue or related matter shall include, the following statement: “This is a paid advertisement sponsored by [].The display of this advertisement does not imply MTA’s endorsement of any views expressed.”
iii.  MTA and its advertising contractors may require that an advertisement that promotes a commercial transaction also incorporate language to avoid the appearance of MTA endorsement.
iv.  The MTA Director of Real Estate shall adopt (and may amend from time to time)guidelines for the sizes, placements, and formats of each type of statement required to be included in advertisements pursuant to Sections (b)(i), (ii), and (iii)above.
v.  Notwithstanding Section (b)(i) above, MTA and the advertising contractor may permit the display of “Teaser ads” promoting a commercial transaction that do not readily and unambiguously identify the sponsor, provided a similar number of follow up advertisements that do readily and unambiguously identify the sponsor are posted within a time specified by MTA or the advertising contractor.

(c) Review of Advertisements. MTA advertising contractors shall review each advertisement submitted for installation, display and maintenance on MTA properties and facilities to determine whether the advertisement falls within, or may fall within, one or more of the categories set forth in Section (a) of these Standards or fails to comply with the additional provisions relating to advertisements set forth in Section (b) of these Standards. If an MTA advertising contractor determines that an advertisement falls within or may fall within one or more of the categories set forth in Section (a) of these Standards:

i.  The MTA advertising contractor shall promptly notify the MTA, through a designated MTA Contract Administrator, of its determination and the reason(s)for its determination.
ii.  Upon receipt of such notification, the MTA shall advise the advertising contract or whether the MTA concurs in the advertising contractor’s determination concerning the advertisement.
iii.  In the event that the MTA concurs in the determination of the advertising contractor, the advertising contractor may, in consultation with the MTA Contract Administrator or his designee, discuss with the advertiser one or more revisions to the advertisement, in order to bring the advertisement into conformity with the Standards. The advertiser shall then have the option of submitting a revised advertisement for review in accordance with these procedures.
iv.  In the event that the advertising contractor and the advertiser do not reach agreement with regard to a revision of the advertisement, or in the event that the advertising contractor determines that no appropriate revision would bring the advertisement into conformity with the Standards, the advertiser may request that the advertising contractor obtain a formal determination from the MTA Contract Administrator or his designee. In reaching a formal determination, the MTA Contract Administrator or his designee may consider any materials submitted by the advertiser, and may consult with the advertising contractor, or with the MTA General Counsel, the Executive Director, the Chairman of the Board, or the irrespective designees.
v.  The MTA Contract Administrator shall promptly provide the advertising contractor with a written notice of the formal determination, and the advertising contractor shall relay the formal determination to the advertiser. The MTA’s formal determination shall be final.

UPDATE 10/9/2012

Ken Paulson, President of the First Amendment Center has written an article Cities may not screen transit ads by viewpoint discussing the most recent legal issues being raised:

A second federal judge has ruled that a metropolitan transit system must accept controversial ads that call for support for Israel and the defeat of “jihad.”

U.S. District Judge Rosemary Collyer on Oct. 5 ruled that the Metro system in Washington, D.C., must accept ads that say, “In any war between the civilized man and the savage, support the civilized man. Support Israel. Defeat Jihad.” Collyer’s decision follows a similar ruling by U.S. District Judge Paul Engelmayer that the New York City subway system must run the ads because their content is protected by the First Amendment.

The two decisions were not surprising, but they do reinforce a core principle of the First Amendment: Governments may not discriminate against viewpoints with which they disagree or which make them uncomfortable. City transportation systems are government entities, and as such, cannot limit freedom of speech. Governments may, however, set guidelines for the content of ads as long as they don’t discriminate against opinions. That means a metro system could turn down all nonprofit or political ads, but it must be consistent in rejecting all ads in those categories. It can’t pick and choose.

Once government gets into the business of posting political material, it creates a public forum and all who are willing to pay the cost of display have a right to share their views.

Some who have attempted to limit the controversial ads argue that they’re not protected by the First Amendment because they fall under the “fighting words” exemption – particularly given the global unrest caused by the “Innocence of Muslims” video on YouTube. Under the “fighting words” doctrine, government can limit speech that is likely to incite immediate violence or retaliation. That’s a very narrow exception and not likely to apply to a printed ad on the wall of a subway station.

Indeed, unlawful reaction to the ads in New York and San Francisco has been limited to some defacing, a fairly common occurrence in major cities regardless of the message.

Abdul Yasar, a New York subway passenger and observant Muslim, told the Associated Press that the ads shouldn’t be posted. But then he noted: “If this is a free country, they have the right to do this … and then Muslims have the right to put up their own ad.”

That would mean more speech, not suppressed speech, and no damage to the Constitution.

Originally published 9/29/2012