“This lawsuit represents a clash between our American values and the fundamental right to freedom of speech on the one hand and those values espoused by sharia-adherent Muslims who want to suppress speech through violence on the other. In direct contravention of our Constitution, the WMATA is siding with the jihadists and silencing our clients’ political speech. This is known as a ‘heckler’s veto,’ which is impermissible under the First Amendment." Robert Muise
We will be back in court on Thursday fighting for free speech, this time in DC. We submitted the "savage" ads to run on DC Metro train dioramas. The contracts were signed and the ads were paid for up front. They were scheduled to run at the end of September. In light of Ambassador Stevens' coldblooded murder, as well as that of two navy SEALs and other US diplomats, what else would you call jihadists? Why is this controversial? We intend to paper this ad across America.
On September 25, 2012, the DC Transit authority canceled ("postponed") our pro-Israel ads. DC Transit said, "due to the situations happening around the world at this time, we are postponing the start of this program ..." "The reason for this decision is one of security and safety for the commuters using the DC Metro rail system." This is exactly the reason why our pro-freedom ads should run.
It is precisely because of the current political situation that it is important that I be able to express my message now, and I consider any delay to be government censorship of my core political speech. I demanded that the transit authority change their position. They did not, so we are filing a lawsuit.
Clearly, DC is kowtowing to the threat of jihad terrorism. Their cowardice does not make commuters or Americans safer. On the contrary, it puts us in more peril to the whims of violent Islamic supremacists. They are rewarding savage behavior and lawlessness.
If someone commits violence, it is his responsibility and no one else's. The responsibility for one's actions lies with one who acts and no one else. Islamic supremacists and their allies in the mainstream media are trying to get us to accept the idea that we are responsible if Muslims riot and kill and blame what we say. Yet there is nothing that you could say to me that would make me riot and kill. Theirs is the responsibility and they are the only ones who deserve condemnation, if the media were doing its job.
So we are back in court on Thursday with our legal special forces team, David Yerushalmi and Robert Muise of the American Freedom Law Center.
Federal Court Hearing Scheduled in AFLC’s Challenge to D.C. Transit Authority’s Refusal to Run Anti-Jihad Advertisement
U.S. District Court Judge Rosemary M. Collyer has scheduled a hearing for October 4, 2012 on the American Freedom Law Center (AFLC)’s request for an injunction to halt the Washington Metropolitan Area Transit Authority (WMATA)’s censorship of a pro-Israel/anti-jihad bus advertisement. The hearing will take place at 2:00 p.m. EDT in Courtroom 8 at the U.S. District Court for the District of Columbia located at 333 Constitution Avenue, N.W., in Washington, D.C. The hearing is open to the media and the general public.
Read it all: Download PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER / PRELIMINARY INJUNCTION filed and this, Download Ex 2--Geller Supp Declaration--Filed
The Washington Metropolitan Area Transit Authority (“WMATA”),1 a government agency, is asking this court to ratify an unprecedented, radical, and exceedingly troubling position: that a private citizen’s fundamental First Amendment right to engage in core political speech in a public forum in the United States of America can and should be abridged because violent Muslim protestors overseas are engaging in “savage” behavior in response to a video that they deem to be anti-Islamic.2 (See Def.’s Opp’n at 5-8 [Doc. No. 13]).
In sum, the WMATA’s arguments are wrong as a matter of law and dangerous to our free Republic as a matter of principle.3 Consequently, they must be summarily rejected.
1 While the lawsuit names Richard Sarles, the General Manager and Chief Executive Officer for the WMATA, the fact remains that a claim against a government official in his or her official capacity is a claim against the governmental entity to which he or she is employed. See Kentucky v. Graham, 473 U.S. 159 (1985); see also Brandon v. Holt, 469 U.S. 464, 471-72 (1985) (holding that “a judgment against a public servant ‘in his official capacity’ imposes liability on the entity that he represents”). And such claims for prospective declaratory and injunctive relief are not barred by the Eleventh Amendment. See, e.g., Ex Parte Young, 209 U.S. 123 (1908) (holding that prospective injunctive relief provides an exception to Eleventh Amendment immunity).
2 One would assume that even the WMATA would recognize that storming an American embassy, violently killing our ambassador and three other Americans, and destroying property are “barbaric and uncivilized” acts. (Def.’ Opp’n at 7 [decrying the fact that the anti-Islam video depicts “Muslims as violent, barbaric and uncivilized, or in other words, as savages”] [Doc. No. 13]).
3 If one pauses for a moment and seriously considers the WMATA’s position, there is one inescapable conclusion: the WMATA apparently considers adherents to Islam to be violent and incapable of responding to critical, political speech in our country in a civilized manner. When the WMATA ran an advertisement critical of Israel, urging the United States to end its military aid to its long-time ally in the Middle East, there was no concern about violence and passenger safety. What message is the WMATA sending about Islam by restricting Plaintiffs’ core political speech? And what message will this court be sending if it affirms that position? Indeed, whether intentionally or not, the WMATA is essentially siding with the Muslim Brotherhood leader of Egypt, Mohamed Morsi, who condemns speech critical of Islam. (See Def.’s Opp’n at 6 [quoting Morsi as stating “We will not allow anyone to [criticize Islam] by word or deed.”] [Doc. No. 13]). However, Americans enjoy freedoms in this country that do not exist in the Middle East. And chief among those freedoms is the right to freedom of speech.
SUMMARY OF RELEVANT FACTS
There is no dispute as to these relevant, and dispositive, facts:4
The WMATA accepts for display on its property a wide variety of commercial and political messages, including controversial messages. (Def.’s Opp’n at 3 [Doc. No. 13]; Murray Aff. at ¶ 5, Exs. B through G [Doc. Nos. 13-3, 13-6 through 13-11]; Geller Decl. at ¶ 4 [Doc. No. 2-1]).
The WMATA has accepted controversial messages that convey an anti-Israel message. (See Def.’s Opp’n at 3 [Doc. No. 13]; Murray Aff. at ¶ 5, Exs. B, C [Doc. Nos. 13-6, 13-7]; Geller Decl. at ¶¶ 4-6 [Doc. No. 2-1]).
The WMATA admits that it “has run many controversial advertisements in spite of public protests.” (Def.’s Opp’n at 3 [Doc. No. 13]) (emphasis added).
Plaintiffs’ Pro-Israel Advertisement met the WMATA guidelines and was thus accepted for display on four WMATA dioramas. (Geller Decl. at ¶ 10 [Doc. No. 2-1]).
The WMATA admits the following: “In spite of the incendiary language of the AFDI Ad, WMATA determined that it complied with the Guidelines and was protected speech.” (Def.’s Opp’n at 5 [Doc. No. 13]) (emphasis added); see also Murray Aff. at ¶ 7 [“The Office of the General Counsel determined that (i) the AFDI Ad complied with WMATA’s Guidelines Governing Commercial Advertising and (ii) was protected speech under the First Amendment to the United States Constitution.” (emphasis added)] [Doc. No. 13-3]).
Plaintiffs’ advertisement was scheduled to run on four (4) WMATA dioramas beginning September 24, 2012 and ending October 21, 2012. (Def.’s Opp’n at 5 [Doc. No. 13]; Geller
4 To avoid potential confusion, Plaintiffs have marked their exhibits consecutively. Thus, Plaintiff Geller’s declaration [Doc. No. 2-1] filed in support of Plaintiffs’ motion is marked as Exhibit 1. And Plaintiff Geller’s supplemental declaration filed in support of this reply is marked as Exhibit 2.
Decl. at ¶ 11, Ex. B [Doc. No. 2-1]; Geller Supp. Decl. at ¶ 5, Ex. A [acknowledging that Plaintiffs’ advertising campaign was “to start September 24th”], at Ex. 2).5
The WMATA has six hundred thirteen (613) dioramas. (Murray Aff. at ¶ 2 [Doc. No. 13-3]).
On September 18, 2012, the WMATA, through its advertising agent, informed Plaintiffs that the advertisements were not going to run on September 24, 2012 “due to the situations happening around the world at this time.” (Geller Decl. at ¶ 14 [Doc. No. 2-1]; Geller Supp. Decl. at ¶5, Ex. A, at Ex. 2).
Plaintiff Geller immediately informed the WMATA, through its advertising agent, that Plaintiffs objected to this restriction on their speech, stating, “It is precisely because of the current political situation that it is important that I be able to express my message now and that I consider any delay to be government censorship of my core political speech. I demand that the transit authority change [its] position.” (Geller Decl. at ¶ 15 [Doc. No. 2-1]; Def.’s Ex. M. [Doc. No. 13-17]) (emphasis added).
The WMATA, through its advertising agent, confirmed that the advertisements would not run “due to world events and a concern for the security of their passengers.” (Geller Decl. at ¶ 16 [Doc. No. 2-1]; Def.’s Ex. M [Doc. No. 13-17]).
The WMATA is restricting Plaintiffs’ speech because of the reaction to anti-Islam speech in the Middle East. (See Def.’s Opp’n at 5-8 [Doc. No. 13]; Murray Aff. at ¶¶ 11-13 [Doc. No. 13-3]; Def.’s Ex. M [Doc. No. 13-17]).
The WMATA’s restriction on Plaintiffs’ speech is operating as a prior restraint. (Geller Decl. at ¶¶ 14-16 [Doc. No. 2-1]; Murray Aff. at ¶¶ 11-13 [Doc. No. 13-3]; Def.’s Ex. M [Doc. No. 13-17]).
The WMATA’s restriction on Plaintiffs’ speech is based on the WMATA’s perception that certain viewers will react adversely to Plaintiffs’ message, and in particular, that certain viewers will react negatively toward the viewpoint expressed by Plaintiffs’ message.6 (Def.’s Opp’n at 5-8 [Doc. No. 13]; Taborn Aff. at ¶¶ 5-6 [Doc. No. 13-2]; Murray Aff. at ¶¶ 11-13 [Doc. No. 13-3]). Consequently, the WMATA’s restriction on Plaintiffs’ speech is both content- and viewpoint-based. (See also Def.’s Opp’n at 7 [Doc. No. 13] [stating that the WMATA made “a reassessment of the AFDI Ad’s inflammatory language in light of the [anti-Islam video’s] depiction of the prophet Mohammad and Muslims as violent, barbaric and uncivilized, or in other words, as savages.” (emphasis added)]; Aff. of Taborn at ¶ 5 [“I determined that the AFDI Ad was highly incendiary, particularly because it refers to both Middle-Easterners and Muslims as savages.” (emphasis added)] [Doc. No. 13-2]).
In its opposition, the WMATA indicates, for the first time, that “it is prepared to run the advertisement beginning November 1,” (Def.’s Opp’n at 11, n.15), which means that the WMATA is imposing an arbitrary, 38-day suspension and censorship of Plaintiffs’ political speech. (Taborn Aff. at ¶ 11 [Doc. No. 13-2]).
The very same advertisement at issue here is currently on display on Metropolitan Transportation Authority (“MTA”) property in New York City. And while there have been some isolated incidents of vandalism, which is not uncommon for a major transit authority when a controversial advertisement runs,7 there have been no outbreaks of terrorism or other such violence that would create any serious safety concerns or a “dangerous environment” for passengers. (Geller Supp. Decl. at ¶ 10 at Ex. 2). Consequently, the WMATA’s safety concerns are not only speculative, they are unfounded as a matter of fact.