Federal Judge Grants Preliminary Injunction for Anti-Muslim Bus Advertisement

Professor Ruthann Robson, City University of New York (CUNY) School of Law

 In his decision in American Freedom Defense Initiative (“AFDI”) v.  Southeastern Pennsylvania Transportation Authority (“SEPTA”),  federal district judge Mitchell Goldberg has granted a preliminary injunction in favor of AFDI and found SEPTA's anti-disparagement  standard for advertising on its buses, and its rejection of the proffered AFDI advertisement, violates the First Amendment.

AFDI is a controversial organization that seeks to place anti-Islamic advertisements in a variety of public venues.  In New York City, a federal judge found the Metropolitan Transit Authority's initial rejection of the advertisements under its (since amended) "civilty standard" to be unconstitutional and the advertisements appeared, causing some NYC residents to engage in "more speech" in reaction to the advertisements.  On the contrary, the Sixth Circuit found the rejection of similar advertisements in southern Michigan buses by the governmental authority SMART to be constitutional under its policy prohibiting several categories of advertising including "political or political campaign advertising."

In Philadelphia, SEPTA's policy prohibited "Advertising that tends to disparage or ridicule any person or group of persons on the basis of race, religious belief, age, sex, alienage, national origin, sickness or disability."  The rejected advertisement read “Islamic Jew-Hatred: It’s in the Quran. Two Thirds of All US Aid Goes to Islamic Countries. Stop the Hate. End All Aid to Islamic Countries” and contained a relevant image captioned "Adolf Hitler and his staunch ally, the leader of the Muslim world, Haj Amin al-Husseini.”  (The opinion also contains an image of the advertisement).

Importantly, the parties stipulated that "over the past four years, SEPTA has accepted a number of concededly public issue advertisements on such topics as teacher seniority, fracking and contraceptive use."

Judge Goldberg found that the advertising space on the buses constituted a designated public forum, rejecting SEPTA's rather weak argument that it was a nonpublic forum.  The central issue, however, was whether the rejection of the advertisement was content (and perhaps viewpoint) based.  The judge found that it was, analogizing predictably to R.A.V. v. City of St. Paul (1992): 

In light of the Supreme Court’s holding in R.A.V., I find that SEPTA’s anti- disparagement standard is a content-based restriction. Like the ordinance in R.A.V., the anti- disparagement standard permits disparaging advertisements so long as they are not addressed to one of the disfavored topics which are specifically enumerated. In fact, outside of these specified topics, SEPTA’s standards could permit advertisements which disparage, for example, political affiliation or union membership. Thus, in selectively prohibiting speech based upon the subject addressed, SEPTA’s anti-disparagement standard constitutes a content-based restriction.

The judge then easily found that SEPTA's policy and its application could not survive strict scrutiny.

Whether or not SEPTA will appeal - - - or chose to revise its policy as NYC's MTA did - - - remains to be seen.