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A federal judge has issued a final order requiring the New York Metropolitan Transportation Authority to accept an advertisement for the sides of buses that pleads, “In Any War Between the Civilized Man and the Savage, support the Civilized Man. Support Israel. Defeat Jihad.”

The ruling came from U.S. District Judge Paul A. Engelmayer, in the U.S. District Court for the Southern District of New York, and involves a plan by the American Freedom Defense Initiative, led by Pamela Geller and Robert Spencer, to respond to a pro-Palestinian ad that portrayed the Palestinians as being on the side of “peace and justice.”

The AFDI ad was rejected by the MTA, and the court case resulted. It has been handled both by Robert Muise, of the American Freedom Law Center as well as officials with the Thomas More Law Center.

The MTA had refused to run an anti-jihad advertisement that, according to the MTA, referred to Israel’s enemies as savages who engaged in jihad. The MTA flagged the advertisement that was set to run on the exterior of its buses, claiming that it violated the MTA’s policy against displaying “images or information that demean an individual or group of individuals on account of race, color, religion, national origin, ancestry, gender, age, disability or sexual orientation.”

But the court noted that politically controversial speech, even demeaning speech, already had been allowed on the buses, and the MTA was restricting only that speech which “demeaned specific groups or individuals that fit within the MTA’s protected classes.”

His decision said the MTA’s ban on “demeaning” speech was unconstitutional.

Englemayer’s order yesterday converted a preliminary injunction into a permanent injunction, and said the MTA speech regulation violated the First Amendment.

Officials with the AFLC called it a “stinging rebuke” to the MTA and General Counsel James Henly.

Henly made a personal appearance in court yesterday because the transit agency had asked the judge not to enter a final judgment yet, but also because it wanted the judge further to delay enforcement of the injunction.

The lawyers wanted that delay until Sept. 27, when the MTA board next would be meeting.

But the judge noted that the MTA board had failed to meet even once to discuss the judge’s warnings that enforcement of his orders would not be delayed indefinitely.

“The judge’s frustration with the MTA’s cavalier attitude about both the ongoing First Amendment violation and its failure to properly protect the ‘public interest’ was evident in the court’s opinion and order,” the AFLC said.

“The judge went so far as to order the MTA general counsel to personally provide the MTA board with the court’s ruling ‘so as to ensure that the board is fully informed of the potential consequences of MTA’s decision’ to do nothing, something the general counsel would have had a duty to do without the judge’s order,” the group’s statement said.

The case dates back to September 2011, when the MTA refused to run the ad.

Added David Yerushalmi, senior counsel of AFLC, “Judge Engelmayer deserves praise for his ruling, not only because he authored a 14-page opinion on the very day of the hearing, but also because he has consistently and in the highest traditions of his judicial office applied the law to the facts and preserved for all New Yorkers their liberty to speak on political issues, even when the government, in this case the MTA, wanted to suppress our clients’ speech because it violates the PC-code that Israel may be publicly attacked but not the savages who murder innocent Jewish women and children.”

Robert Muise, co-founder of AFLC, said, “The judge’s ruling illustrates why the American Freedom Law Center represents clients like AFDI, Pamela Geller, and Robert Spencer. There is an expression, ‘speaking truth to power.’ This is the intrinsic and extrinsic value of our Constitution, and indeed it is the bedrock of our unique and exceptional political system. Our clients spoke truth to power, and the MTA thought its power was unbridled. Even after the judge granted the MTA’s request for a 30-day stay to ‘cure’ its unconstitutional speech restriction, the MTA did nothing and walked into court yesterday asking the judge to allow it to continue to do nothing for some undetermined period of time while it continued to violate our clients’ free speech rights. Judge Engelmayer responded, in effect, ‘Enough is enough. The Constitution trumps your state power.’ That is what makes America what it is.”

 

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