Free Speech Victory in America's Capital

Pursuant to an October 5, 2012 preliminary injunction, the Washington Metropolitan Area Transit Authority (WMATA) met a 5 p.m. deadline on the following Monday, October 8, to place four pro-Israel, anti-jihad advertisements in the metro stations of U Street, Georgia Avenue, Takoma Park, and Glenmont.  The placement followed an October 4, 2012 hearing in Courtroom Eight of the United States District Court for the District of Columbia concerning WMATA's demand for a delay in posting the political advertisements.  Notable from a legal perspective was the shallowness of the arguments proffered against recognized rights of free speech under the United States Constitution's First Amendment. 

Under review was an advertisement by the American Freedom Defense Initiative (AFDI) with the statement: "In any war between the civilized man and the savage, support the civilized man.  Support Israel.  Defeat Jihad."  As a legal brief ("Plaintiffs' Reply in Support of Motion for Temporary Restraining Order/Preliminary Injunction," hereafter "Plaintiff's Reply") submitted on behalf of AFDI noted, the advertisement paraphrases statements by noted objectivist writer Ayn Rand.  Both in 1974 and later on a 1979 episode of Bill Donohue's talk show, Rand compared Israel's Arab enemies to "savages" and, on the Donohue show, discussed Arab use of terrorism against Israeli civilians.  One of AFDI's founders, Pamela Geller, named her website "Atlas Shrugs," in honor of Rand.  AFDI's advertisement has already survived legal challenges and significant controversy to appear on the public transit systems of New York City and San Francisco.

Robert J. Muise of the American Freedom Law Center (AFLC) represented AFDI.  (AFDI has been an AFLC client in past cases, including the successful suit to force New York City's Metropolitan Transit Authority [MTA] to accept the "Defeat Jihad" signs.)  As AFLC's complaint recounted, AFDI paid $5,600 to place four signs in WMATA subway stations for the period September 24-October 21, 2012.  Such placement responded to a prior "Anti-Israel Advertisement" accepted by WMATA proclaiming, "End U.S. military aid to Israel."  E-mails on September 18, 2012, though, informed Geller of a postponement "to a future date to be determined" because of WMATA's "concern for the security of their passengers" in light of the "situations happening around the world at this time."

AFLC's complaint condemned WMATA's censorship of AFDI's "core political speech on the basis" of a "viewpoint" considered "critical of Islam, critical of jihad, or supportive of Israel in light of these 'world events.'"  As another AFLC legal brief ("Notice of Motion and Motion for Temporary Restraining Order/Preliminary Injunction," hereafter "Notice of Motion") noted, a federal district court in New York City overruling the MTA's attempt to block the AFDI advertisement there had ruled that the "AFDI Ad is not only protected speech-it is core political speech."  The Notice of Motion stressed the importance of such political speech under United States Supreme Court precedents such as Connick v. Myers (1983).  This decision held that "speech on public issues occupies the 'highest rung of the hierarchy of First Amendment values,' and is entitled to special protection."  The Notice of Motion cited as well the 1982 Supreme Court opinion NAACP v. Claiborne Hardware Co. to the effect that speech "concerning public affairs is ... the essence of self-government."

WMATA's censorship stemmed, according to AFLC's complaint, from the "perceived negative response" that AFDI's "message might receive from certain viewers based on its content."  Yet the Notice of Motion cited the Supreme Court's 1992 condemnation of the proverbial "heckler's veto" in Forsyth County. v. Nationalist Movement with the observation that speech cannot "punished or banned, simply because it might offend a hostile mob."  Even the WMATA's legal brief ("Defendant's Memorandum of Points and Authorities in Opposition to Plaintiffs' Motion for Preliminary Injunction," hereafter "Defendant's Memorandum") e-mailed by Muise to the author, agreed that the "law does not allow for a 'heckler's veto'."  Furthermore, as the Plaintiff's Reply argued, WMATA censorship would merely have the effect of "emboldening the hecklers." 

The Defendant's Memorandum, however, sought to explain away WMATA's opposition to the AFDI advertisement as a mere delay, given that WMATA had "indicated that it will conduct a reassessment of the situation" and was willing to post the advertisement beginning on November 1.  While AFDI considered their advertisements timely because of worldwide, often violent Muslim protests against the Innocence of Muslims internet trailer, WMATA, in contrast, "felt strongly" that safety "required a reassessment of the AFDI Ad's inflammatory language in light of the Video's depiction of the prophet Muhammad and Muslims as violent, barbaric and uncivilized, or in other words, as savages."  WMATA merely wanted a "cooling off period" and "to avoid igniting the current tinderbox."

The Plaintiff's Reply, though, rejected the subordination of AFDI's assessment of the advertisement's timeliness to WMATA's assessment of the advertisement's improper timing.  "Imagine," argued the brief, "the government telling the Washington Post that it could write a story critical of presidential candidate Mitt Romney based on comments he made at a fundraising event, but that the newspaper couldn't run the story until after the election in November for fear that it might upset TEA Party supporters."  As the Notice of Motion noted, the Supreme Court's 1976 Elrod v. Burns decision held that the "loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury."  Speaking of the "irreparable injury" present either under the WMATA restriction or in the hypothetical Romney case, the Plaintiff's Reply cited Elrod again with its observation that the "timeliness of political speech is particularly important" (Emphasis in the original).

As an alternative to delaying the advertisements, WMATA's lawyer, my fellow George Washington University Law School alumnus Phillip T. Staub, argued that AFDI's language amounted to "fighting words" not protected by the First Amendment.  Quoting the 1942 Chaplinsky v. New Hampshire Supreme Court decision, the Defendant's Memorandum noted that such words "by their very utterance inflict injury or tend to incite an immediate breach of peace."  As the Chaplinsky decision elaborated, "such utterances are no essential part of any exposition of ideas[,]" and their free use is "clearly outweighed by the social interest in order and morality."  

While noting the inconsistency of merely calling for a delay but then condemning AFDI's advertisement as "fighting words," the Plaintiff's Reply cited Chaplinsky to the effect that "fighting words" merely encompass "face-to-face words plainly likely to cause a breach of the peace by the addressee" (emphasis in the Plaintiff's Reply).  The Plaintiff's Reply also quoted Cohen's understanding of "fighting words" as "personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction" (emphasis in the Plaintiff's Reply). 

The Defendant's Memorandum, in contrast, rejected a "face-to-face" view of "fighting words" as something that "harkens back to time when there were few other means to reliably communicating a message."  The "bulk of modern communication," though, utilizes "cell phones, email, blogs, Facebook and Twitter."  The Innocence of Muslims "protests" themselves showed that "our age provides many more avenues, including indirect means, to communicate fighting words and incite violence."  Astonishingly, this position would seem to imply that multiple internet images of the "Defeat Jihad" signs could qualify as "fighting words."   

The Defendant's Memorandum, meanwhile, also noted significant subsequent legal limitations to the "fighting words" doctrine.  Echoing the Plaintiff's Reply, for example, the Defendant's Motion noted that the Supreme Court's "[m]ore recent cases [R. A. V. v. City of St. Paul and Claiborne Hardware, specifically] limit the application of fighting words to those that are likely to provoke a breach of peace, as opposed to words that merely hurt feelings."  Citing the notable 1971 Cohen v. California Supreme Court decision upholding the public wearing of a "F*ck the Draft" jacket, the Defendant's Memorandum also noted that "using epithets to criticize a concept does not amount to fighting words."

Application of such analysis to the AFDI case would, however, only weaken Phillip's case.  "Savage" as a description of terrorists attacking Israel or, for that matter, the United States on September 11, 2001, would seem perfectly appropriate according to Chaplinsky's "exposition of ideas," as Geller herself has recently argued, irrespective of "hurt feelings."  Such terrorists, moreover, are hardly "ordinary citizens."  In contrast, only the generalizing mischaracterizations in the Defendant's Memorandum that the "AFDI Ad characterizes Muslims as savages" and "urges defeat of Muslim ideals" in a military context could entail a "breach of the peace."  "Savage" would also seem a perfectly acceptable criticism of the concept of religious warfare implied by "jihad" (a Muslim ideal?) in the AFDI sign.

As court observers like Geller later noted, Judge Rosemary M. Collyer, a 2003 President George W. Bush appointee, appeared to express her anti-AFDI sympathies during the trial with various musings about the advertisement being "hate speech."  Yet as Muise argued during the proceedings, "hate speech" is not a recognized standard under American law.  In the end, irrespective of personal sympathies and various threats, however speculative, from around the world, American law was on the side of freedom and AFDI.

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