US judge allows 'Killing Jews' ad on NYC buses: free speech or defamation?

City officials say that the message displayed by the American Freedom Defense Initiative ad is hateful and divisive, but First Amendment lawyers say it cannot be legally banned.

On Tuesday, a federal judge in Manhattan ordered that the Metropolitan Transportation Authority (MTA) display a controversial ad from a pro-Israel group on buses. The MTA declined to run the ad last year, saying that its message could incite violence and terrorism. Now, United States District Court Judge John Koeltl ruled that the ad qualified as protected speech, and granted a preliminary injunction ordering that the transportation authority run it.

The advertisement is paid for by the self-proclaimed human rights group, the American Freedom Defense Initiative (AFDI), and was meant to parody a campaign by the Council on American Islamic Relations (CAIR) called "My Jihad.” CAIR’s website states that the My Jihad campaign aims to “take back Islam from Muslim and anti-Muslim extremists alike.” The AFDI ad, meanwhile, shows a menacing looking man wearing a scarf around his head and face. A quote to the man’s right attributed to "Hamas MTV" says, "Killing Jews is worship that draws us close to Allah." Below the quote the ad reads: "That's His Jihad. What's yours?"

MTA officials said that the ad could be misinterpreted as a call to violence against Jews, and thus could be banned by an exception to the First Amendment that restricts speech inciting imminent violence.

In his ruling, Judge Koeltl said ,"[T]here is no evidence that seeing one of these advertisements on the back of a bus would be sufficient to trigger a violent reaction. Therefore, these ads — offensive as they may be — are still entitled to First Amendment protection.”

Civil liberties scholars largely agree that the court’s decision to order the MTA to run the ad is in line with First Amendment law.

“The city has no policy that says no political speech, or no speech that demeans a particular group," says Eugene Volokh, professor of First Amendment law at UCLA’s School of Law. "The policy they have is that it cannot incite imminent violence. There is a First Amendment exception for speech that is intended to incite imminent violence. That was the argument the MTA used, and the court said no ‘there is no basis for thinking that. This is highly speculative and implausible.’ The city also argued that there was a risk of vandalizing or attacking the buses, but the court said there is no real evidence. That is something most courts would agree on. The decision is within the mainstream.” 

City officials say that the message displayed by the AFDI ad is hateful and divisive.

“These hateful messages serve only to divide and stigmatize when we should be coming together as one city,” Monica Klein, a spokeswoman for Mayor Bill de Blasio, said in a statement. “While those behind these ads only display their irresponsible intolerance, the rest of us who may be forced to view them can take comfort in the knowledge that we share a better, loftier and nobler view of humanity.”

Both the Southern Poverty Law Center and the Anti-Defamation League have labeled the AFDI as an anti-Muslim group that promotes “anti-Islam hate.”

But First Amendment lawyers point out that no matter how controversial the group’s message, it cannot be legally banned.

“There is a very strong principle in First Amendment law that protects against viewpoint discrimination," says Professor Vincent Blasi, Corliss Lamont Professor of Civil Liberties at Columbia Law School. "When a message is directed at a general audience, it is protected. If the speech is directed at a specific person, then it could be considered harassment. But the judge is almost certainly right in regards to First Amendment law.” 

“If you are singling out a person or identifiable group, usually one of two things could lead to that being restricted: it’s done as a form of personal harassment or stalking, or it’s a sensitive environment, for example, in a classroom. I could say as a professor ‘change your tone or your language’ in my classroom. But in this case it is contrasted to speech on the street corner, which is unrestricted speech.”

The AFDI previously sued the MTA in 2012 over another ad the agency eventually had to run.

The previous advertisement pictured Nazi dictator Adolf Hitler sitting with his “staunch ally” Haj Amin al-Husseini, the Palestinian nationalist and grand mufti of Jerusalem who allied himself with the Third Reich during World War II.

In that case, a federal judge ruled that the authority had violated the group’s First Amendment rights by banning the ad.

In March, a judge ruled that Philadelphia transit authority was legally required to run a different AFDI ad. In response, the city's transit authority has banned all public issue, political, and noncommercial ads going forward.

However, there have been some cases when transportation authorities were able to restrict the display of certain messages, legal experts point out.

In April, a federal appeals court upheld a lower court decision that the Massachusetts Bay Transportation Authority could prohibit any ad considered “demeaning or disparaging” to individuals or groups.

The decision was made after the MBTA decided to remove ads referring to Palestinians as “savages.” In that case, the court ruled that because the MBTA’s ban was related to the type of content and not to the viewpoint of the content, it was permissible, Professor Volokh explains.

A content-based restriction, for example, would specify that the speech in an ad cannot mention politics at all. A viewpoint-based restriction would prohibit only those political ads that portray a specific viewpoint or ideology.    

"Though courts agree that ad restrictions must be viewpoint-neutral, there is a disagreement between courts over whether ad restrictions must also be content-neutral. In the case of the MBTA, the First Circuit said the restriction was fine because it bans all demeaning language, not, for instance, language that demeans based on race, or any other specific demeaning viewpoint,” says Volokh.

This ruling did not apply to the case in New York because the MTA has no restriction on content other than that which incites imminent violence.

Now, Pamela Geller, president of the AFDI, says she will pay for at least 50 MTA buses to carry the controversial posters.

“This is a triumph for liberty and free speech,” Ms. Geller tweeted.

A MTA spokesman, Adam Lisberg, said in a statement that the agency was disappointed by the ruling and would review its options.