This week, thanks to a federal injunction issued last Friday, controversial pro-Israel, anti-jihad ads sponsored by the American Freedom Defense Initiative (AFDI) began running in the Washington, D.C., subway system. U.S. District Judge Rosemary Collyer, who said an opinion explaining her reasoning will be available soon, evidently was not persuaded by the Washington Metropolitan Area Transit Authority's argument that the ads—which urge people to "support Israel" and "defeat jihad," thereby siding with "the civilized man" rather than "the savage"—might "expose passengers to terrorism." Since the U.S. Court of Appeals for the D.C. Circuit has said WMATA's advertising space qualifies as a "designated public forum," this fear of violence would have to count as "a compelling governmental interest" that could be served only by rejecting the AFDI ads. But the only evidence WMATA offered to back up its concern, aside from protests in other countries by Muslims angry about a YouTube video mocking their prophet, was a single email message in broken English threatening a violent response to the anti-jihad posters.
Collyer was even less impressed by WMATA's claim that AFDI's message amounted to "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 ("damned fascist" and "damned racketeer") shouted directly at a city marshal, rather different from a controversial political ad. In any case, the Court never again used this doctrine to uphold a conviction, raising the question of whether it is still viable.
Yet the "fighting words" doctrine appears to be the inspiration for the ad rule adopted by New York's Metropolitan Transportation Authority (MTA) after it unsuccessfully tried to prevent the AFDI ads from appearing in that city's transit system by declaring them "demeaning" to Muslims. The new rule bars ads that the MTA "reasonably foresees would imminently incite or provoke violence or other immediate breach of the peace." Contrary to my initial report (subsequently corrected), MTA spokesman Adam Lisberg says the AFDI ads "are in compliance with our revised standards," meaning that, notwithstanding what WMATA claimed in D.C., they don't "present an actual threat to our customers and employees." The question remains: What sort of ad would? Is this new rule purely theoretical, a cover for the MTA's embarrassing First Amendment defeat? If it has any practical implications at all, it can only empower violent protesters (and censorious MTA bureaucrats) by making freedom of speech hinge on the anticipated reactions of the touchiest bystanders.
Speaking of which, the executive director of the Council on American-Islamic Relations, Muneer Awad, tells CNN, "We're trying to make sure MTA has policies to discourage hate speech," adding, "These hate ads are part of a larger problem." The AFDI, of course, disputes that its ads (which it says condemn violent advocates of jihad, as opposed to Muslims generally) constitute hate speech. In any case, the message of the First Amendment litigation in New York and D.C. is that public transit authorities, once they decide to sell space for political ads, have no business excluding messages they consider demeaning or hateful. As the MTA concedes in a press release, "A cost of opening our ad space to a variety of viewpoints on matters of public concern is that we cannot readily close that space to certain advertisements on account of their expression of divisive or even venomous messages." It adds that "in our enlightened civil democracy, the answer to distasteful and uncivil speech is more, and more civilized, speech." If only public officials did not need courts to remind them of this well-established principle.
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