Overview
Judge Engelmayer today granted a motion for a preliminary injunction by the American Freedom Defense Initiative (the "ADFI"), a pro-Israel lobbying group, against the New York City MTA, enjoining application of the MTA's standards for acceptable advertising. The ADFI had submitted an advertisement to run on the backs of city buses that read: "In any war between the civilized man and the savage, support the civilized man. / Support Israel / Defeat Jihad." The MTA rejected the ad, as in violation of its policy against ads that are demeaning of "an individual or group of individuals on account of race, color, religion, national origin, ancestry, gender, age, disability or sexual orientation."
Judge Engelmayer found that the MTA's "no-demeaning" standard violated the First Amendment. The Court summarized its reasoning as follows:
The ensuing analysis is in three parts. First, the Court assesses whether, as MTA determined, the AFDI Ad is prohibited under MTA’s no-demeaning standard. The Court holds that it is—and that the Court therefore must address whether that prohibition comports with the First Amendment. Second, the Court analyzes the forum (advertising space on the exterior of MTA buses) to determine the standard applicable to MTA’s speech restriction. The parties sharply disagree on this critical issue. Largely on the basis of the Second Circuit’s decision in New York Magazine v. Metropolitan Transportation Authority, 136 F.3d 123 (2d Cir. 1998), the Court agrees with AFDI that this space is a designated public forum, in which content-based restrictions on expressive activity are subject to strict scrutiny. The Court therefore rejects MTA’s claim that this space is either a limited public forum or not a public forum at all, both of which would give the government greater latitude to impose restrictions on speech. The Court then applies the analysis applicable to speech restrictions in designated public forums to MTA’s no-demeaning standard. As a threshold matter, the Court notes that the AFDI Ad is not only protected speech—it is core political speech. The Ad expresses AFDI’s pro-Israel perspective on the Israeli/Palestinian conflict in the Middle East, and implicitly calls for a pro-Israel U.S. foreign policy with regard to that conflict. The AFDI Ad is, further, a form of response to political ads on the same subject that have appeared in the same space. As such, the AFDI Ad is afforded the highest level of protection under the First Amendment. See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 269 (1964) (“‘The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.’”) (quoting Stromberg v. California, 283 U.S. 359, 369 (1931)); see also Hustler Magazine v. Falwell, 485 U.S. 46, 50 (1988) (“At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern.”). The Court, therefore, analyzes plaintiffs’ claim that MTA violated the First Amendment in rejecting the AFDI Ad “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” N.Y. Times Co., 376 U.S. at 270.