D.C. Transit Authority Claimed Controversial Ads Might Cause People to Fall Off Subway Platforms

ade3AFDI ad DC 600x400 D.C. Transit Authority Claimed Controversial Ads Might Cause People to Fall Off Subway Platforms

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 Agency’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 for me 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.”

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D.C. Transit Authority Claimed Controversial Ads Might Cause People to Fall Off Subway Platforms

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