Today, Judge Engelmayer ripped the NYC MTA a new ..... caboose.
Last September, the MTA had refused to run our ad, "In any war between the civilized man and the savage, support the civilized man. Support Israel. Defeat jihad," because it said that the ad violated its policy against displaying “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.” Apparently they thought it was demeaning to jihadi savages who celebrate the murders of Israeli civilians. They had no issue with not one but two seperate vicious anti-Israel ad campaigns that were running in the NY subway system and the NYC Metro line.
We won our case in an historic landmark ruling. On July 20th, AFDI triumphed in our lawsuit against the NYC MTA's ban on our pro-Israel ad. Judge Engelmayer, in his injunction, barred the MTA from enforcing this standard against us, on free speech grounds. We won on all points. First Amendment rights straight down the line. Judge Engelmayer wrote a wonderful opinion. Brilliant. And AFDI is now on the law books. Read it here. Download Opinion. Huge props to AFDI's legal warriors, David Yerushalmi and Robert Muise of the American Freedom Law Center.
However, the MTA is still fighting against the First Amendment. They got a stay against the initial ruling. The case was scheduled to be heard again today, and it was. Rather than in chambers, it was in open court, primarily because the MTA wanted the court to extend the stay it granted for 30 days for two reasons: pending appeal and to give it time to change its regulations. We, on the other hand, had asked the court to convert the preliminary injunction forbidding the MTA from enforcing its "demeaning" rule against our ad into a permanent injunction, a declaratory judgment that the MTA's regulation banning ads they deemed to be "demeaning" was unconstitutional, nominal damages ($1), and ultimately, MTA payment of our attorneys' fees.
There was a phalanx of security guards outside the chambers. It seems as if they were expecting unruly crowds. Silly, that's for leftists and Islamic supremacists.
The hearing amounted to a one-hour cross examination by the increasingly frustrated judge of the MTA's General Counsel. The MTA's two litigators on this case were on vacation, so the top law dog for the MTA was James Henly, who was arguing the MTA's case along with his deputy, Helen Fromm. Henly did all the talking, and boy, was he on the hot seat. He had no real arguments. The court agreed with our arguments on the issues raised across the board.
The judge drilled the MTA, and it was absolutely clear what his ruling was going to be. Since his initial ruling, the MTA board had not met even once to try to put in place some interim new regulation that would attempt to prohibit all "demeaning" ads, as opposed to its existing regulation that the judge struck down, which banned those that they judge to demean on the basis of race, nationality, etc. (Even if they had adopted such a new regulation banning "demeaning" ads on some new basis, we believe that would have been unconstitutional, too. But their failure even to try didn't make the judge inclined to grant them any favors.)
Also, the MTA lawyers could not even assure the judge that any new regulation they had proposed would actually be adopted, much less provide some idea of what they were thinking about doing about the ruling against them, since the Board has not even met.
The judge said that he would extend the current stay until he ruled, and that we should expect a ruling by the end of the week. But instead, the judge issued a ruling before the end of the day.
It was a slam dunk. Judge Englemayer was angry. He ruled with us on all counts. And look at what he does to the MTA's General Counsel! And that's not just any lawyer, but the Senior MTA in-house lawyer. Engelmayer orders him to do his job, as if he wouldn't do it unless he was ordered to do so:
The following transaction was entered on 8/29/2012 at 5:27 PM EDT and filed on 8/29/2012
American Freedom Defense Initiative et al v. Metropolitan Transportation Authority et al
OPINION & ORDER. For the reasons discussed above:
1. AFDI's motion for a permanent injunction enjoining the enforcement of MTA's no-demeaning standard as presently written is GRANTED.
2. MTA's motion for a stay of this Order pending the resolution of its appeal is DENIED. However, in order to enable MTA to appeal to the Second Circuit the Court's denial of a stay pending appeal, the Court will extend the current stay of its Order enjoining MTA from enforcing the no-demeaning regulation as presently written until Wednesday, September 12, 2012. Absent an order from the Second Circuit, however, this stay will expire at midnight on September 12, 2012.
3. AFDI's motion for a declaratory judgment that the no-demeaning standard as presently written violates the First Amendment is GRANTED.
4. AFDI's motion for $1 in nominal damages for the violation of its First Amendment rights is GRANTED.
5. The Court's consideration of AFDI's application for reasonable attorney's fees, costs and expenses, pursuant to 42 U.S.C. § 1988(b) is DEFERRED pending the resolution of MTA's appeal. The Court directs MTA's general counsel to furnish this Opinion and Order, and also the Court's July 20 Decision, forthwith to the MTA's full Board, so as to ensure that the Board is fully informed of the potential consequences of MTA's decision to defer consideration of an alternative regulation or regulations until after the current stay has expired. (Signed by Judge Paul A. Engelmayer on 8/29/2012) (lmb)
David Yerushalmi of the AFLC said of the ruling:
Judge Engelmayer deserves to be applauded for his ruling today, not only because he authored a 14-page opinion on the very day of the hearing, but also because he has consistently and in the highest traditions of his judicial office applied the law to the facts and preserved for all New Yorkers their liberties to speak on political issues, even when the government, in this case the MTA, wanted to suppress our clients' free speech rights because it violates the PC-code that Israel may be attacked but not the savages who murder innocent Jewish women and children.
Robert Muise of the AFLC said this of the ruling:
“The Court's ruling today illustrates why the American Freedom Law Center represents clients like AFDI, Pamela Geller, and Robert Spencer. There is an expression, 'speaking truth to power.' This is the intrinsic and extrinsic value of our Constitution, and indeed it is the bedrock of our unique and exceptional political system. Our clients spoke truth to power, and the MTA thought its power was unbridled. Even after the Court granted the MTA the 30 days it asked for to 'cure' its unconstitutional speech restriction, the MTA did nothing and walked into court today asking the Court to allow it to continue to do nothing for some undetermined period of time while it continued to violate our clients' free speech rights. The Court said today in effect, 'Enough is enough. The Constitution trumps your state power.’ That is what makes America what it is."
Another magnificent and supreme AFDI legal victory for freedom.