U.S. District Court Judge Gorton has ruled against us in our preliminary injunction against Boston's Massachusetts Bay Transit Authority (MBTA). No surprise here, during our hearing Judge Gorton said that he did not have the authority to rule on matters out of his jurisdiction. Still, Gorton dropped the ball on the question of "reasonableness."
This is Boston, after all, site of the most recent jihad bombing in America, so Gorton's ruling is sad and regrettable. We will, of course, appeal.
A couple of weeks ago I headed to Boston to cover a hearing concerning our pro-Israel ads that had been barred from running by the MBTA. Such abusive violations of our freedoms have become catalysts for historical resistance and actions in the defense of freedom. And these dangerous restrictions on speech must be fought.
It was the MBTA that invited the debate on this issue by accepting anti-Israel ads. And then they turned and said that our ad was objectionable. They accepted an ad on the same subject that was so genuinely demeaning and disparaging that it had to be taken down after numerous complaints, only to be restored later, and then they had the audacity to reject our ad. That is viewpoint restriction, and that is unconstitutional (even under the Ridley decision).
The jihad against Israel is savage. Any war against innocent civilians is savage. That this is "controversial" or "demeaning" illustrates just how far down the rabbit hole we have gone.
AFLC filed a motion for a preliminary injunction and accompanying brief, requesting that the court order the MBTA to display the pro-Israel advertisement. David Yerushalmi and Robert Muise represented AFDI in our lawsuit against the MBTA.
We knew going in that overcoming the Ridley decision was an enormous hurdle. The Ridley case is the Dred Scott of free speech decisions. And during our hearing Judge Gorton specifically stated that, being a district judge, he did not have the authority to rule on or alter the decision in that case.
Judge Gordon ruled against us. But in reading his well thought out, well written opinion, it appears that he did so reluctantly. He did not want to hold against us, even going so far as to say that he personally views jihad as violent war, but in his view, Ridley as his binding precedent tied his hands.
Here is the most interesting (and perhaps telling in that Judge Gorton agreed with us, but had to follow Ridley) part of the opinion:
Nevertheless, the Court agrees with the plaintiffs that the most reasonable interpretation of their advertisement is that they oppose acts of Islamic terrorism directed at Israel. Thus, if the question before this Court were whether the MBTA adopted the best interpretation of an ambiguous advertisement, it would side with the plaintiffs. But restrictions on speech in a non-public forum need only be reasonable and need not be the most reasonable. See Ridley, 390 F.3d at 90.
We are appealing. Contribute here. We must fight this all the way.
Expect the enemies of freedom to crow and howl. This is what they do: invoke the freedom of speech to kill freedom of speech. Free speech is for them, and them alone. It speaks to the heart of matter and the reason why we fight. Those who applaud free speech restrictions expose who and what they really are.
These enemies of freedom mean to destroy the founding principles of this nation. You won't like what comes after the Constitution -- not if the jackboots have their way.
Here is some of the coverage of the decision:
The dispute over the proposed subway poster sprouted from another controversial ad on the Israeli-Palestinian conflict that first appeared in October on 80 posters at T and bus stops. That ad depicts four maps with the title “Palestinian Loss of Land — 1946 to 2010.” Text with the maps says: “4.7 million Palestinians are classified by the UN as refugees.”
In response, the American Freedom Defense Initiative sought to put up 10 of its own ads in the same stations where the other posters appeared.
At issue are the words used in the proposed ad, which riffs on statements made by the author Ayn Rand, specifically the use of “savage” and “jihad.”
The American Freedom Defense Initiative argued, according to the ruling, that it used the terms war and jihad to “clarify that their message is aimed at people who engage in terrorist acts that target innocent Israeli citizens and not Muslims or Palestinians in general.”
The MBTA countered that “the ‘reasonably prudent person’ would believe that the advertisement demeans and disparages Muslims or Palestinians,” the ruling said. The transportation agency also pointed out, the suit said, that courts in New York and Washington, D.C., “concluded that the advertisement equates Muslims with ‘savages.’ ”
Gorton said the advertisement’s wording was ambiguous and subject to interpretation. And the transit agency did not have to apply the best interpretation of the vague statement but only a reasonable one because the T advertising program is not regarded as a public forum. It was, therefore, “plausible for the defendants to conclude that the . . . Pro-Israel advertisement demeans or disparages Muslims or Palestinians.”
In contrast, the Palestinian Refugee ad, the judge said, “conveys information that portrays Israel in a negative light” but does not violate the MBTA’s advertisement guideline, as a reasonable person may disagree or dislike it without finding it degrading or reproachful.
“Thus, the question is not whether the advertisement upset some transit riders but instead whether a reasonably prudent person would find that it ‘ridicules or mocks, is abusive or hostile to, or debases the dignity and stature of Israelis or Jews,’ ” Gorton wrote.
“The quote plaintiffs selected to express their message does not criticize ‘savage’ acts but instead contrasts the state of Israel with the ‘savages’ who oppose or fight against it.”
Boston Transit Agency Wins Court Battle Over Anti-Islam Ad Jewish Daily Forward-Dec 24, 2013
Mass. transit authority had right to reject pro-Israel ad, judge rules Jewish Telegraphic Agency-Dec 24, 2013
Federal judge sides with Boston-area transit agency in dispute over ... The Republic-Dec 24, 2013
Massachusetts Transit Authority wins court battle over banned pro-Israel ads ... Jerusalem Post-Dec 24, 2013
The Jerusalem Post: The AFDI, a New York-based non-profit working against what it sees as the spread of radical Islam in the US, said the ad was in response to pro-Palestinian posters allowed to go up in October, according to Boston Magazine. The ads depicted four maps that showed “the Palestinian loss of land” to Israel between 1946 and 2010 and stated that “4.7 million Palestinians are Classified by the UN as Refugees.”
After receiving complaints that the message was "anti-Israel," the ads were removed by the MBTA, but were later re-posted. The AFDI claimed that the MBTA's refusal to post their counter-advertisement showed that the transit authority was picking sides in the Arab-Israeli conflict, reported Boston Magazine.
"The Israeli-Palestinian conflict is a particularly sensitive topic that is likely to arouse strong feelings on both sides of the debate,” the judge wrote in his ruling. “The MBTA, in deciding to open its advertising program to speech on controversial topics, has taken on the difficult task of determining whether speech on that topic crosses the line from being offensive of hurtful, to being demeaning or disparaging such that it can be excluded from the forum.”
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