Good piece in The NY Times on our victory in court yesterday:
"Judge Criticizes M.T.A.’s Delay in Ad Case" Benjamin Weiser and Matt Flegenheimer, NY TimesUPDATE: AFLC: Federal Judge Issues Final Ruling Striking Down Speech Restriction and Ordering the New York MTA to Display Pro-Israel/Anti-Jihad Bus Advertisement
Most people who get frustrated at delays caused by the Metropolitan Transportation Authority have little recourse, other than to suffer quietly.
But a federal judge in Manhattan on Wednesday was able to do much more.
The judge, Paul A. Engelmayer of Federal District Court, signaled his unhappiness at the agency’s seeming lack of urgency in its response to a July ruling, in which he found it had violated the First Amendment rights of a pro-Israel group by barring it from advertising on city buses; the agency had cited the ad’s demeaning language.
The agency had asked that the judge postpone implementation of his decision pending an appeal and also until after its board met next — on Sept. 27, when it would presumably address the no-demeaning-language policy.
But in an order late Wednesday, Judge Engelmayer granted the transportation agency just two more weeks to develop a new policy on such ads or to seek a further stay from an appellate court.
“The more protracted a stay keeping in place a constitutionally defective standard,” the judge wrote, “the more severe the continuing First Amendment injury.”
The group, the American Freedom Defense Initiative, wanted to place an ad for four weeks on about 318 city buses. The proposed ad said, “In any war between the civilized man and the savage, support the civilized man.” It also said, “Support Israel. Defeat Jihad.”
The authority found that the ad violated its ban on ads that demeaned individuals or groups on the basis of race, color, religion and six other listed categories. The group sued, and Judge Engelmayer ruled on July 20 that the rejected ad was “not only protected speech — it is core political speech” that expressed a “pro-Israel perspective on the Israeli/Palestinian conflict.”
Pamela Geller, executive director of the group that sought to place the ad, said on Wednesday: “Free speech is an absolute — so why the stall? Are they playing for time while they try to devise yet another way to circumvent the First Amendment?”
The judge had initially stayed his order for 30 days to allow the transportation authority time to consider appellate options or develop a new policy. This month, the agency appealed the July ruling, and also asked that the judge continue to stay his order pending its appeal and until after the Sept. 27 board meeting.
James B. Henly, the authority’s general counsel, said in court that the board met each month except in August, and that he could not even promise that the board would develop a new policy when it met next month.
The judge, citing the time from his July ruling until the late-September board meeting, noted that he was being asked to keep in place for 69 days a regulation that he had already found violated the First Amendment.
“I understand people are on vacation,” Judge Engelmayer said, “but we’ve got First Amendment issues at stake.”
Aaron Donovan, a spokesman for the transportation authority, said a decision had not yet been made on whether to schedule a special meeting before Sept. 27.
In court, the judge also asked why the agency had not put in place a stopgap measure for its advertising guidelines, like one that would “simply ban demeaning speech across the board.”
The judge also directed that the agency’s general counsel promptly furnish copies of his order and his July ruling to the agency’s board, “to ensure that the board is fully informed of the potential consequences” of a decision to defer consideration of a new policy until after the stay expires in two weeks.
The dispute plays out at a time when Ms. Geller’s group has also run ads at Metro-North Railroad stations, with posters that cite “deadly Islamic attacks” since Sept. 11 and read, “It’s not Islamophobia, it’s Islamorealism.”
Mr. Donovan said the Metro-North ad was allowed because it did not reach the authority’s threshold for “demeaning” language.
“The language about ‘savage’ was at issue,” Mr. Donovan said, referring to the rejected ad. “‘Islamophobia’ did not run afoul of that particular guideline.”