Cities may not screen transit ads by viewpoint

Tuesday, October 9, 2012

A second federal judge has ruled that a metropolitan transit system must accept controversial ads that call for support for Israel and the defeat of “jihad.”

U.S. District Judge Rosemary Collyer on Oct. 5 ruled that the Metro system in Washington, D.C., must accept ads that say, “In any war between the civilized man and the savage, support the civilized man. Support Israel. Defeat Jihad.” Collyer’s decision follows a similar ruling by U.S. District Judge Paul Engelmayer that the New York City subway system must run the ads because their content is protected by the First Amendment.

The two decisions were not surprising, but they do reinforce a core principle of the First Amendment: Governments may not discriminate against viewpoints with which they disagree or which make them uncomfortable. City transportation systems are government entities, and as such, cannot limit freedom of speech. Governments may, however, set guidelines for the content of ads as long as they don’t discriminate against opinions. That means a metro system could turn down all nonprofit or political ads, but it must be consistent in rejecting all ads in those categories. It can’t pick and choose.

Once government gets into the business of posting political material, it creates a public forum and all who are willing to pay the cost of display have a right to share their views.

Some who have attempted to limit the controversial ads argue that they’re not protected by the First Amendment because they fall under the “fighting words” exemption – particularly given the global unrest caused by the “Innocence of Muslims” video on YouTube. Under the “fighting words” doctrine, government can limit speech that is likely to incite immediate violence or retaliation. That’s a very narrow exception and not likely to apply to a printed ad on the wall of a subway station.

Indeed, unlawful reaction to the ads in New York and San Francisco has been limited to some defacing, a fairly common occurrence in major cities regardless of the message.

Abdul Yasar, a New York subway passenger and observant Muslim, told the Associated Press that the ads shouldn’t be posted. But then he noted: “If this is a free country, they have the right to do this … and then Muslims have the right to put up their own ad.”

That would mean more speech, not suppressed speech, and no damage to the Constitution.

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