Messages of hate, signs of freedom
April 30, 2015
By Charles C. Haynes
Inside the First Amendment
Freedom of speech took a hit this week when New York City's transit authority voted to ban all political and public-issue advertising on its buses and subways.
A group called the American Freedom Defense Initiative (AFDI) sponsored the message that triggered the decision.
"Killing Jews is worship that draws us closer to Allah," reads the AFDI ad (a quote attributed to Hamas MTV). A young man is pictured wearing a scarf around his head and face. Under the photo is the statement: "That's His Jihad. What's yours?"
Prior to the vote, the Metropolitan Transit Authority (MTA) did all it could to ban the controversial ad while keeping the forum open for other ads with political and religious viewpoints.
But last week, U.S. District Judge John Koeltl ruled that MTA must allow the offending ad, rejecting the city's concern that the message could be read as a call to violence against Jews.
"There is no evidence that seeing one of these advertisements on the back of a bus would be sufficient to trigger a violent reaction," said Judge Koeltl. "Therefore, these ads — offensive as they may be — are still entitled to First Amendment protection."
The judge relied, in part, on the fact that this and other provocative AFDI ads have been running on public transportation in other cities without incident.
Unless it incites imminent violence or is likely to do so, speech that offends or is viewed as hateful is protected speech under the First Amendment.
Other cities have tried other arguments to stop AFDI ads, mostly to no avail.
Last month, for example, a Pennsylvania federal district court ordered Philadelphia's transit system to accept a different AFDI ad, this one reading "Islamic Jew-Hatred: It's in the Quran." The ad pictures Adolf Hitler meeting with an Arab leader.
In upholding the right of AFDI to run the ad, the court rejected as unconstitutional Philadelphia's policy of prohibiting ads that "disparage or ridicule" of any person or group on the basis (among other traits) of religious belief.
Judges in these cases may be sympathetic to city officials trying to promote tolerance and civility by banning ads from AFDI, an organization infamous for mean-spirited attacks on Islam and Muslims.
But judges also know that the First Amendment is intended to bar government from determining whose speech is acceptable — and whose speech is not. After all, what is "hate speech" for some may be political or religious conviction for others.
Unfortunately for the cause of free speech, Philadelphia's transit authority responded like the MTA in New York by banning all political or public-issue advertising.
While the First Amendment bars city officials from practicing viewpoint discrimination on city buses and subways (allowing some political or religious views, but not others), the First Amendment permits them to impose content-based restrictions (banning all religious and political views).
By contrast, San Francisco's transit authority avoided a legal battle and kept buses and subways open to free speech by allowing the AFDI ads to go up. At the same time, however, city officials countered the speech by condemning the posters as "racist and offensive" and promising that all proceeds from the AFDI ads will go to San Francisco's Human Rights Commission.
Free speech is sometimes painful, often offensive and always messy. But consider the alternative.
In Moscow this week, government officials are cleansing the city of swastikas or any other symbols of Nazism in preparation for Victory Day, the celebration of the Soviet Union's defeat of Germany.
Fearful of government censors, booksellers have removed any book that has offending images on the cover, including the Pulitzer-Prize winning Maus, a graphic novel about the Holocaust by cartoonist Art Spiegelman.
Government censorship, of course, is the law of the land in Russia where it is a criminal offense to "offend people's religious feeling or question the national dignity of peoples."
Such is daily life in Moscow, Tehran, Beijing and many other cities with offense-free zones enforced by the state. Those who dare dissent either live in fear of arrest or languish in prison.
So the next time you see a poster that offends, remember that in a free society messages of hate are also signs of freedom.