Here's the latest in another historic AFDI lawsuit against the New York City MTA for rejecting my pro-Israel ads while running an anti-Jewish subway campaign.The judge in our case asked each side for a letter on what we thought were the important key issues, in advance of our actual motion for preliminary injunction we intend to file first of the year.
I thought Atlas readers would enjoy Yerushalmi and Muise's brilliant letter on the key issues.
Having been down this road before (the attempt to abridge our right to free speech under the first amendment), we win--hands down--and I say that without even seeing yet what the MTA lawyers might write. Whatever it is, if it isn't, "Gee, we're sorry; we screwed up," which you recall is what the Miami City Attorneys said, it will get them nowhere.
This lawsuits are crucial. It is our responsibility to fight for the protection of free speech under the first amendment.
When we win, we should run this pro-Israel campaign in every city across the country. We must counter the relentless anti-Jewish, dehumanization propaganda war against the Jewish homeland. Want to help? Contribute to Jihadwatch (a 501C3) here (designate Israel bus ads).
For those of you who love the process as much as I do, this letter is deelish.
December 12, 2011
The Honorable Paul A. Engelmayer United States District Judge United States District Court for the Southern District of New York Daniel Patrick Moynihan U.S. Courthouse 500 Pearl Street New York, New York 10007
Re: American Freedom Defense Initiative et al. v. MTA et al., Case No. 1:11-cv- 6774-PAE-THK; principle authorities for anticipated motion for preliminary injunction
Dear Judge Engelmayer:
At the scheduling conference on December 8, 2011, the court asked the parties to provide a letter on what they respectively consider to be the controlling case law on the issues that will be dispositive of this matter. (Minute Entry, 12/8/11). Plaintiffs respectively submit the following.
In the context of Plaintiffs‟ anticipated motion for a preliminary injunction, the likelihood of success of Plaintiffs‟ free speech claim is examined in essentially three steps. First, the court must determine whether the speech in question—Plaintiffs‟ bus advertisement—is protected speech. Second, the court must conduct a forum analysis to determine the proper constitutional standard to apply. And third, the court must determine whether Defendants‟ restriction on Plaintiffs‟ speech (“Speech Restriction”) comports with the applicable standard. In N.Y. Magazine v. Metro. Transp. Auth., 136 F.3d 123 (2d Cir. 1998), the Second Circuit has held dispositively that signs on MTA bus advertising space are protected speech, that the MTA ad space is a designated public forum, that any content- or viewpoint-based Speech Restriction is unconstitutional, and that any implementation of such Speech Restriction constitutes irreparable harm. Similarly, the Supreme Court‟s decision in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), requires a finding that Defendants‟ Speech Restriction is facially invalid.
VIA FED EXA. Plaintiffs’ Likelihood of Success on the Merits.
1. Plaintiffs’ Bus Advertisement: Protected Speech.
The first question is easily answered. Conveying a political or religious message with signs constitutes protected speech under the First Amendment. See, e.g., Hill v. Colo., 530 U.S. 703, 714-15 (2000) (“[S]ign displays . . . are protected by the First Amendment.”). This includes signs posted on bus advertising space. See N.Y. Magazine v. Metro. Transp. Auth., 136 F.3d 123, 130 (2d Cir. 1998) (holding that bus advertisements constituted protected speech). And, as the Supreme Court has long recognized, “speech . . . at a public place on a matter of public concern . . . is entitled to „special protection‟ under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. Indeed, the point of all speech protection . . . is to shield just those choices of content that in someone‟s eyes are misguided, or even hurtful.” Snyder v. Phelps, 131 S. Ct. 1207, 1219 (2011) (quotation marks and citations omitted).
2. Forum Analysis: Designated Public Forum.
To determine the extent of Plaintiffs‟ free speech rights in this matter, the court must next engage in a First Amendment forum analysis. “The [Supreme] Court has adopted a forum analysis as a means of determining when the Government‟s interest in limiting the use of its property to its intended purpose outweighs the interest of those wishing to use the property for [expressive] purposes.” Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 800 (1985). Once the forum is identified, the court must then determine whether the speech restriction is justified by the requisite standard. Id.
As the Second Circuit explained, the forum analysis has traditionally divided government property into three general categories: traditional public forums, which require strict scrutiny precluding content- and viewpoint-based restrictions; designated public forums, which require similar scrutiny; and nonpublic forums, which require a rational-basis analysis and viewpoint neutrality. N.Y. Magazine, 136 F.3d at 128. Here, the Second Circuit has already determined that the forum at issue (i.e., the advertising space on MTA buses) is a designated public forum. Id. at 129-30.1 And the Second Circuit‟s ruling is not an anomaly among the federal appellate courts. Other circuits analyzing similar transit authority advertising policies have also concluded that such advertising space is a designated public forum subject to strict scrutiny. Compare United Food & Commercial Workers Union, Local 1099 v. Southwest Ohio Reg’l Transit Auth., 163 F.3d 341, 355 (6th Cir. 1998) (concluding that the advertising space on a bus system was a public forum and stating that “[a]cceptance of political and public-issue advertisements, which by their very nature generate conflict, signals a willingness on the part of the government to open the property to controversial speech”), and Planned Parenthood Ass’n/Chicago Area v. Chicago Transit Auth., 767 F.2d 1225 (7th Cir. 1985) (concluding that the advertising space on a bus
1 The Second Circuit‟s ruling is binding precedent on this court because the nature of the forum at issue has not changed. As confirmed by opposing counsel, the MTA has not made any material changes to its policies since the ruling issued. In the spirit of counsels‟ previous mutual collegiality and pursuant to the court‟s strong suggestion that the parties work collaboratively to narrow the issues in dispute, Plaintiff‟s counsel, David Yerushalmi, telephoned Peter Sistrom, lead counsel for MTA, and asked if Defendants were going to argue such a material change in the
MTA policies—the very policies at issue in N.Y. Magazine. Mr. Sistrom said no. 2
system became a public forum where the transit authority permitted advertising on “a wide variety of commercial, public-service, public-issue, and political ads”), with Children of the Rosary v. City of Phoenix, 154 F.3d 972 (9th Cir. 1998) (concluding that the bus advertising panels were a nonpublic forum because the city had consistently restricted political and religious advertising).
3. Application of the Appropriate Standard: Strict Scrutiny.
In a designated public forum, similar to a traditional public forum, the government‟s ability to restrict speech is sharply limited. The government may enforce reasonable, content neutral time, place, and manner regulations of speech if the regulations are narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication. Perry Educ. Ass’n v. Perry Local Educators, 460 U.S. 37, 45 (1983). However, content-based restrictions on speech, such as the restriction at issue here, are subject to strict scrutiny. Cornelius, 473 U.S. at 800. That is, “[s]peakers can be excluded from a public forum only when the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest.” Id. “It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys.” Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 828 (1995). Thus, content-based restrictions “are presumptively unconstitutional.” S.O.C., Inc. v. County of Clark, 152 F.3d 1136, 1145 (9th Cir. 1998). The government may not “impose special prohibitions on those speakers who express views on disfavored subjects” or on the basis of “hostility—or favoritism—towards the underlying message expressed.” R.A.V. v. St. Paul, 505 U.S. 377, 386-92 (1992); see Police Dept. of the City of Chicago v. Mosley, 408 U.S. 92, 96 (1972) (holding that the government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express more controversial views).
To determine whether a restriction is content-based, the courts look at whether it “restrict(s) expression because of its message, its ideas, its subject matter, or its content.” Consolidated Edison Co. of N.Y. v. Public Serv. Comm. of N.Y., 447 U.S. 530, 537 (1980). In this case, Defendants‟ Speech Restriction is at the very least content-based—prohibiting what the government believes to be a “demeaning” message2—and thus unconstitutional.
“[T]he Constitution does not permit government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer.” Erznoznik v. City of Jacksonville, 422 U.S. 205, 210 (1975). Rather than censoring the speaker, the burden rests with the viewer to “avoid further bombardment of [his] sensibilities simply by averting [his] eyes.” Cohen v. California, 403 U.S. 15, 21 (1971). As the Cohen Court noted, “[W]e cannot indulge the facile assumption that one can forbid particular words [i.e., “savages” or “jihad”, as in this case] without also running a substantial risk of suppressing ideas in the process. Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views.” Id. at 26.
Indeed, Defendants‟ Speech Restriction is facially invalid based on controlling Supreme Court precedent. In R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), the Court was asked to review the constitutionality of an ordinance that prohibited “conduct that amounts to „fighting words‟ i.e., „conduct that itself inflicts injury or tends to incite immediate violence. . . ,‟” so as to protect “the
2 The Supreme Court has allowed restrictions on specific “historic and traditional categories” of speech that are “long familiar to the bar,” United States v. Stevens, 130 S. Ct. 1577, 1584 (2010)), such as restrictions on obscenity, fraud, perjury, incitement, and defamation. Plaintiffs‟ speech is none of these.
community against bias-motivated threats to public safety and order.” Id. at 380-81 (emphasis added). Even though “fighting words” may be restricted under the First Amendment, see Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942), similar to speech that “incite[s] an imminent act” of lawless action, see Brandenburg v. Ohio, 395 U.S. 444, 449 (1969), the Court struck down the ordinance because it only applied to prohibit such conduct “on the basis of race, color, creed, religion or gender” and was therefore content based. R.A.V., 505 U.S. at 391. For similar reasons, Defendants‟ Speech Restriction, which prohibits advertisements containing “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,” is content and viewpoint based—a facially unconstitutional Speech Restriction in any forum.
In striking down the ordinance at issue in R.A.V., the Court stated, “The First Amendment does not permit [the government] to impose special prohibitions on those speakers who express views on disfavored subjects.” Id. (emphasis added). As the Court noted, one of the primary evils of content discrimination is that it “raises the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace.” Id. at 387. That “primary evil” is present in this case in spades. The Court also noted that the unconstitutional ordinance, similar to the Speech Restriction here, “goes even beyond mere content discrimination, to actual viewpoint discrimination” by not restricting those “arguing in favor of racial, color, etc., tolerance and equality,” while placing special prohibitions on “those speakers‟ opponents [whose viewpoint is demeaning].” Id. at 391-92. In sum, R.A.V. v. City of St. Paul compels a finding that the Speech Restriction is facially invalid.
B. Irreparable Harm to Plaintiffs without the Preliminary Injunction.
As Plaintiffs‟ counsel noted during the scheduling conference, Defendants‟ Speech Restriction deprives Plaintiffs of their fundamental First Amendment rights thereby causing irreparable harm sufficient to warrant injunctive relief. It is well established that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976); see also N.Y. Magazine, 136 F.3d at 127 (holding that the loss of First Amendment freedoms for even a minimal period of time constitutes irreparable harm sufficient to warrant injunctive relief); see also Newsome v. Norris, 888 F.2d 371, 378 (6th Cir. 1989) (“The Supreme Court has unequivocally admonished that even minimal infringement upon First Amendment values constitutes irreparable injury sufficient to justify injunctive relief.” (citing Elrod)).
Respectfully Submitted, LAW OFFICES OF DAVID YERUSHALMI, P.C.
/s/ David Yerushalmi David Yerushalmi, Esq. (NY Bar No. 4632568) 640 Eastern Parkway, Suite 4C Brooklyn, NY 11213 firstname.lastname@example.org (800) 714-9650; (646) 262-0500 Co-counsel for Plaintiffs
THOMAS MORE LAW CENTER
/s/ Robert J. Muise Robert J. Muise, Esq. (pro hac vice)
cc: Peter A. Sistrom (via email), co-counsel for Defendants Richard Schoolman (via email), co-counsel for Defendants