Over objections from two of the conservative justices on the U.S. Supreme Court, the rest of the bench has decided to let government continue to censor speech in some parts of the nation, effectively determining by official fiat “what speech millions of Americans will – or will not – encounter during their commutes.”
Geller and the AFDI have posted, or tried to post, in transit agency ad locations around the country, typically on the sides of buses, their message about the aggression and violence of Islam. In multiple locations, government agencies have refused them permission citing the message.
In court, their First Amendment rights have been upheld in a number of those fights, but refused, in this case, in Seattle.
The local court decision to allow the government to censor what appears in its ad space, which is open to a wide range of other messages, was affirmed by the 9th U.S. Circuit Court of Appeals, and now the U.S. Supreme Court has refused to intervene.
This prompted Justices Clarence Thomas and Samuel Alito to object, and point out that different regions of the nation now have different standards to determine free speech.
“The First Amendment prohibits the government from ‘abridging the freedom of speech.’ But the court has struggled with how that guarantee applies when private speech occurs on government property,” they wrote.
They explain that in a “traditional public forum,” such as a park or public street, there are allowed minimal limits on speech. And with a “designated public forum,” it’s the same.
“But if the government creates a limited public forum – (also called a nonpublic forum) – namely, ‘a forum that is limited to use by certain groups or dedicated solely to the discussion of certain subjects’ – then speech restrictions need only be ‘reasonable and viewpoint neutral,'” they wrote.
Therein lies the problem, they said, because courts have been inconsistent on the definitions.
“Transit authorities in Chicago, Detroit, New York City, and Washington, D.C., are bound by rulings that classify their ad spaces as designated public forums and, thus, prohibit content-based restrictions on advertising. Transit authorities in Boston – and, in this case, Seattle – are similarly open to political speech, yet can freely restrict speech based on its content.”
They continued, “Whether public transit advertising spaces are designated or limited public forums determines what speech millions of Americans will – or will not – encounter during their commutes,” they said.
The two said the case was “an ideal opportunity” for the Supreme Court to clarify First Amendment precedent across the country.
They pointed out that King County prohibits some “political” advertising but allows “other political messages.”
For example, it had approved “Save Gaza! Justice for all” and “Equal Rights for Palestinians[:] The Way to Peace” and “The Palestinian Authority Is Calling For a Jew-Free State[:] Equal Rights for Jews.”
“One [approved] ad displayed the names and faces of 16 wanted terrorists beneath the words ‘Faces of Global Terrorism.’ … The bottom of this ad announced: ‘Stop a Terrorist. Save Lives. Up to $25 Million Reward,'” they wrote.
But when AFDI submitted a “Faces of Global Terrorism” ad, it was rejected, even though it “displayed the same 16 photos of wanted terrorists, with their names beneath. At the bottom of the ad, AFDI included slightly different text. Whereas the State Department ad concluded ‘Stop a Terrorist. Save Lives. Up to $25 million Reward,’ AFDI’s ad concluded: ‘AFDI Wants You to Stop a Terrorist. The FBI Is Offering Up To $25 Million Reward If You Help Capture One of These Jihadis.'”
The county found the ad contained an error and was “demeaning.”
Geller on Tuesday posted a statement that the error was corrected, but the ad was rejected anyway.
“Make no mistake – we amended our suit … to correct the ‘factual errors,’ and we will go back. The error in our ad was that we implied the reward for the capture of an FBI terrorism suspect was paid for by the FBI when in fact, the reward is paid by the State Department’s Reward for Justice program. … Seattle Kings Transit Authority said our ad (an FBI wanted poster) was disparaging to Muslims. Truth is disparaging to Muslims. Got that?”
She said the lawsuit is being refiled and the issue will return.
Thomas and Alito pointed out, “In the large portions of this country encompassed by the Second, Sixth, Seventh, and D.C. Circuits, AFDI’s ad would likely have met a different fate. In those circuits, accepting a wide array of political and issue-related ads demonstrates that the government intended to create a designated (rather than limited) public forum … In the First and Ninth Circuits, however, transit authorities have far more leeway to restrict speech.”
The justices wrote, “This case would allow us to resolve that division. King County’s advertising restrictions cannot pass muster if the transit advertising space is a designated public forum. King County bans ads that it deems ‘false or misleading,’ but this court considers broad, content-based restrictions on false statements in political messages to be generally impermissible. … King County’s prohibitions on ‘demeaning and disparaging’ ads, or ads that could disrupt the transit system by alienating riders, are also problematic content-based restrictions.”
Legal commentator Eugene Volokh wrote on his blog that the fact the two justices are interested in looking at the issue “should embolden other litigants to bring up the matter again.”
Geller’s AFDI sent in an ad to the WMATA that contained an image of an angry man wearing a turban and wielding a sword, with a bubble by his mouth and the text: “You can’t draw me!” Another bubble below contained the words: “That’s why I draw you.” The ad also blared the phrase: “Support free speech.”
The ad is from a “Draw Muhammad” event organized by AFDI in Texas, during which police shot and killed two would-be Islamist terrorists who tried to storm the venue.
WMATA, about a week after Geller filed the application, denied the ad and announced it was no longer going to accept any type of “issue-oriented advertising” at all, the Daily Caller reported. The WMATA told the Daily Caller News Foundation the ban on issue-oriented advertisements wasn’t related to any particular ad application or organization, but Geller finds the announcement curiously coincidental.
“It’s an end run around the First Amendment,” she said, to the Daily Caller.
In 2012, Geller won a similar lawsuit against the WMATA over an ad that portrayed Adolf Hitler and Haj Amin al-Husseini, alongside the text: “Staunch ally, the leader of the Muslim world.” The ad also contained the text: “Islamic Jew-Hatred: It’s in the Quran.”
Geller also faced down a similar ad flap in New York. There, she tried to post ads on the city bus system of a menacing man with a masked face with text, “That’s his Jihad. What’s yours?” The ad also read: “Killing Jews is worship that draws us close to Allah.”
As WND previously reported, the MTA board reacted by banning all forms of political advertisement and a federal court later rubber-stamped the move, ruling the agency could indeed do that.
In a commentary on WND, Geller wrote about the courts “playing fast and loose with our First Amendment rights.”