American Freedom Defense Initiative v. Metropolitan Transportation Authority

70 F. Supp. 3d 572, 43 Media L. Rep. (BNA) 1915, 2015 U.S. Dist. LEXIS 52241, 2015 WL 1775607
CourtDistrict Court, S.D. New York
DecidedApril 20, 2015
DocketNo. 14 Cv. 7928(JGK)
StatusPublished
Cited by5 cases

This text of 70 F. Supp. 3d 572 (American Freedom Defense Initiative v. Metropolitan Transportation Authority) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Freedom Defense Initiative v. Metropolitan Transportation Authority, 70 F. Supp. 3d 572, 43 Media L. Rep. (BNA) 1915, 2015 U.S. Dist. LEXIS 52241, 2015 WL 1775607 (S.D.N.Y. 2015).

Opinion

OPINION AND ORDER

JOHN G. KOELTL, District Judge:

The plaintiffs, a pro-Israel advocacy organization known for its public criticism of Islam, and its co-founders, submitted a political advertisement to the Metropolitan Transportation Authority (“MTA”) -to be displayed on the backs of MTA buses. The advertisement portrayed a menacing-looking man whose head and face are mostly covered by a head scarf. The ad includes a quote from “Hamas MTV”: “Killing Jews is Worship that draws us close to Allah.” Underneath 'the quote, the ad stated: “That’s His Jihad. What’s yours? ” The bottom of the ad included a disclaimer that it was sponsored by the plaintiff organization, the American Freedom Defense Initiative (“AFDI”), and did not imply the MTA’s endorsement of the views expressed by the ad.

Although the MTA accepted other controversial advertisements submitted by the plaintiffs, it refused to run this advertise[575]*575ment, which the parties both term the “Killing Jews” advertisement. In doing so, the MTA cited its standards prohibiting advertisements that would incite or provoke violence. The plaintiffs promptly-sued, alleging that the MTA’s refusal to run the advertisement on its buses infringed on the plaintiffs’ First Amendment rights. The plaintiffs moved for a preliminary injunction that would order the defendants to display the ad. The Court held an evidentiary hearing on the preliminary injunction motion on March 24, 2015.

While the Court is sensitive to the MTA’s security concerns, the defendants have not presented any,, objective evidence that the Killing Jews advertisement would be likely to incite imminent violence. Indeed, as the defendants knew when considering whether to run the ad, substantially the same advertisement ran in San Francisco and Chicago in 2013 without incident. The advertisement qualifies as protected speech, and the defendants have restricted it based on its content without a compelling interest or a response narrowly tailored to achieving any such interest. Accordingly, the plaintiffs’ motion for a preliminary injunction is granted.

The Court makes the following findings of fact and reaches the following conclusions of law pursuant to Federal Rule of Civil Procedure 52.

I.

A.

The plaintiff AFDI is a nonprofit organization incorporated in New Hampshire. The plaintiffs Pamela Geller and Robert Muse are the President and Vice President of AFDI, respectively. The defendant MTA is a New York State public authority and public benefit corporation. Together with its affiliated agencies, the MTA provides mass transportation services in the New York City metropolitan area. Defendant Thomas F. Prendergast is the Chairman and Chief Executive Officer of the MTA, and defendant Jeffery B. Rosen is the Director of the MTA Real Estate Department.

AFDI purports to “act[] against the treason being committed by national, state, and local government officials ... in their capitulation to the global jihad and Islamic supremacism.” See Biography, http:// freedomdefense.typepad.com/about.html (last visited Apr. 18, 2015) (AFDI-associat-ed website referenced in Chicago and San Francisco Killing Jews advertisements). In order to express its views publicly on issues regarding Israel and Islam, AFDI purchases advertising space on public transit authority property in major cities throughout the United States. Geller Decl. ¶¶ 4-6.

In order to obtain revenue, the MTA accepts advertisements to be displayed on its subway, commuter rail, and bus systems. Rosen Decl. ¶ 4. The MTA accepts not only commercial advertisements, but also non-commercial advertisements by government agencies, nonprofit organizations, and religious groups, as well as political advertisements and public service . messages. Id. ¶ 10. To facilitate the placement of these advertisements, the MTA enters into license agreements with independent outdoor advertising companies, including CBS Outdoor Group Inc. (“CBS Outdoor”). Id. ¶¶ 5, 8. MTA and CBS Outdoor’s license agreement covers advertisements on the exterior of MTA buses. Id. ¶ 8. Defendant Rosen oversees the MTA’s advertising program as one of his responsibilities as Director of Real Estate. Tr. 14-15.1

[576]*576B.

In March 1994, the MTA first adopted standards governing the advertisements it would accept, and those standards were incorporated into its license agreements. Rosen Decl. ¶ 12. The standards prohibited certain categories of advertisements, including, among others, false, misleading, or deceptive commercial advertisements, libelous advertisements, and advertisements including obscene material, as defined in the New York Penal Law. Id. ¶ 14. In September 1997, the MTA amended its standards to prohibit other categories of advertisements, including, among others, advertisements that demean an individual or group of individuals on account of several protected categories, including race and religion (the “no-demeaning standard”). Id. ¶¶ 20-21.

In 2011, the AFDI submitted an ad for display on MTA buses that stated, “In any war between the civilized man and the savage, support the civilized man. Support Israel. Defeat Jihad.” Id. ¶ 22 (the “Savages” ad). The MTA refused to run the ad due to its belief that the “savages” reference demeaned Muslims or Palestinians, or both, and thus violated the MTA’s no-demeaning standard. Id. ¶ 23. AFDI thereafter sued the MTA in this Court, alleging that the no-demeaning standard violated the First Amendment on its face. Judge Engelmayer agreed, holding that the no-demeaning standard differentiated based on the content of the ad and only proscribed “specified disfavored topics.” Ám. Freedom Def. Initiative v. Metro. Transp. Auth., 880 F.Supp.2d 456, 475 (S.D.N.Y.2012) (quoting R.A.V. v. City of St. Paul, 505 U.S. 377, 391, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992)) (internal quotation

March 24, 2015. marks omitted). The Court therefore granted AFDI’s motion for a preliminary injunction enjoining the MTA from enforcing no-demeaning standard. Id. at 478.

In September 2012, the MTA considered alternatives for remedying the constitutional defects identified by Judge Engel-mayer, such as only permitting commercial advertising, but ultimately chose to continue accepting all forms of advertising and amended its standards to discontinue the no-demeaning standard. Rosen Decl. ¶¶ 27~28.2 At around the same time, the MTA amended its standards to address more explicitly advertisements that it'believed could incite or provoke violence. Rosen Decl. ¶34. Thus, in September 2012, MTA amended Section (a)(x) of its standards, adding language that precluded any advertisement that “contains material the display of which the MTA reasonably foresees would imminently incite or provoke violence or other immediate breach of the peace, and so harm, disrupt, or interfere with safe, efficient, and orderly transit operations.” Id. ¶ 35, Ex. 3 (MTA Advertising Standards). Shortly thereafter, the then-Chairman of the MTA, Joseph Lhota, issued a memorandum describing the procedures for enforcement of Section (a)(x). Id. ¶ 37, Ex. 4 (Lhota Memorandum).

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70 F. Supp. 3d 572, 43 Media L. Rep. (BNA) 1915, 2015 U.S. Dist. LEXIS 52241, 2015 WL 1775607, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-freedom-defense-initiative-v-metropolitan-transportation-nysd-2015.