The Israeli-Palestine conflict has made its way from New York City subways and buses to Metro-North Railroad stations in Connecticut.
And it’s bringing with it a free speech debate.
Two private citizens with opposing views of the conflict have bought ads to share their thoughts. The Metropolitan Transportation Authority, which is responsible for rail service in southeastern New York and southwestern Connecticut, is trying to find a way to curtail the noncommercial ads that describe Muslims as “savages” or depict Palestinians as refugees whose land has been taken away by Israelis.
But public interest groups like the American Civil Liberties Union believe the right to free speech trumps any one particular message that may be offensive.
“The First Amendment to the U.S. Constitution limits government restrictions on free speech, and the Connecticut Constitution adds even more speech protections,” said Andrew Schneider, executive director of the ACLU of Connecticut. “The same rules that can be used to stop controversial or bigoted speech will ultimately be used to prevent us from speaking out against such speech.”
But a longtime New York City lawyer and member of MTA’s Board said someone has to look out for the rights of the passengers on the trains. People who “ride the system and are captive in the system, especially in the middle of a car that’s underground and you have to look at an ad some people will find defamatory or demeaning and infringes on their privacy rights,” said Charles Moerdler, of Stroock & Stroock & Lavan.
“You shouldn’t inflict that on passengers in public railroads,” Moerdler added. “The question is how do you deal with it and deal with it in the best way that preserves First Amendment rights.”
The controversy all started when 83-year-old retired Wall Street broker, Henry Clifford, of Essex, decided to pay the MTA $25,000 to run an ad in ten locations that showed a two-color map of Israel and the statement: “Palestinian Loss of Land — 1946 to 2010.”
The ad then shows a gradual loss of land from Palestine to Israel and then describes 4.7 million Palestinians as refugees.
“I have been involved in the effort to shed light on this subject for many years and am astounded at the reaction to the railway station posters, far beyond anything I expected,” Clifford told the Law Tribune. “I have received at least 1500 emails from all over the world, almost all favorable.”
In response, the Freedom Defense Initiative, led by blogger Pamela Geller, bought ads to counter Clifford’s ads.
In five train stations along the New Haven line, signs read: “It’s not Islamophobia, It’s Islamorealism.” Above the slogan you see the number 19,250, the number of alleged terrorist attacks by Islamic extremists since Sept. 11, 2001.
At the same time, the MTA described as demeaning and refused to display a pro-Israel/anti-jihad bus advertisement submitted by the FDI, which prompted a lawsuit by the group against the MTA.
The ads state: “In any war between the civilized man and the savage, support the civilized man.” It adds: “Support Israel. Defeat Jihad,” between two Stars of David.
The MTA’s advertising policy prohibits obscene ads but also has a “no-demeaning ad standard,” restricting publication of ads that demean on the basis of “race, sex, religion, national origin or other group classification.” The MTA cited that policy in disallowing the anti-Jihad bus ad.
However, last month, U.S. District Court Judge Paul A. Engelmayer, from the Southern District of New York, granted a permanent injunction and declared that the MTA speech regulation violated the First Amendment right to free speech.
“Whatever weight might be assigned to the governmental interest in banning demeaning speech on the exterior of New York City buses on an even-handed basis, there is no good reason for protecting some individuals and groups, but not others, from such abuse,” wrote Engelmayer in July, when he granted a preliminary injunction. “MTA’s no demeaning standard, as currently formulated, is, therefore, inconsistent with the First Amendment.”
Despite the ruling, MTA admitted publicly last month they were considering changing its policy of accepting non-commercial viewpoint advertisements altogether.
That prompted the ACLU in Connecticut to pen a letter earlier this month to the MTA stating that such a ban would violate the First Amendment to the U.S. Constitution, as well as to Connecticut’s constitution.
“We’re sort of piggybacking on [Judge Engelmayer's decision] and saying that isn’t your only set of free speech concerns since [the MTA] operate in Connecticut,” said Sandra Staub, legal director with the ACLU in Connecticut.
Staub said she has received no response from the letter. A spokesman with the MTA, Aaron Donovan, confirmed receipt.
“We’re aware of their letter,” said Donovan. “We’re reviewing it along with other information and correspondences.”
The Freedom Defense Initiative, meanwhile, is proceeding with plans to run the anti-Jihad ad, which is slated to run beginning Sept. 24.
Donovan said he was unsure of the station locations where the ad will run but acknowledged that the judge’s opinion was the reason it will run.
“Our hands are tied,” said Donovan. “The judge recognized our intention but found our attempt to be constitutionally deficient. As a result, under our existing ad standards as modified by the injunction, the MTA is required to run the ad.”
The controversy is sure to continue. New York’s Council on American-Islamic Relations is now calling the ad an attempt to “define Muslims” through hate speech.
But Moerdler, the New York lawyer on MTA’s Board who is also a Holocaust survivor, is clear what side of the debate he’s on.
“I find the people who do this… they’re using the passenger as a tool to get their viewpoint across,” said Moerdler.
But Moerdler recognized that courts in the 2nd Circuit always rule on the side of free speech. Plus, a ban could be potentially costly to the MTA’s business.
“The courts have put this into the category of viewpoint advertising, everything ranging from a political ad that says ‘Vote for Sam Smith for freeholder’ to an ad that says ‘Smoking is bad for your health,’” said Moerdler. “[The courts] say if you limit one you must limit them all.”
Moerdler said the MTA’s Board was slated to meet this week to consider their options. Everything from a ban to a disclaimer on ads stating the message does not reflect the views of the MTA is on the table.
More locally, Connecticut Transit said they would look at their policies regarding ads later this year in light of more and more of these controversies popping up nationally. Just last week, the FDI filed another lawsuit, this time in Washington D.C. because the D.C. Transit Authority refused to run the very same anti-Jihad ad, citing concerns about “the situations happening around the world” and the “security and safety” of its passengers.
“Our policy doesn’t get that specific on anything yet,” said Philip Fry, assistant general manager for planning and marketing with Connecticut Transit. “[Noncommercial advertising] seems to be something that certainly is a growing trend. It’s a double-edged sword. If you say your policy is to eliminate all issue oriented advertising, you won’t have ads like in New York and you won’t have ads for the League of Women Voters to encourage people to register to vote…,” Fry added.
Dan Klau, of McElroy, Deutsch, Mulvaney & Carpenter in Hartford, who specializes in First Amendment issues, said this is still an issue that could resurface in the courts because Judge Engelmayer’s opinion dealt with an ad on the side of a bus and not an ad on the inside of a train station.
“I think that there is a difference between an inside of a train or bus where an audience is captive versus the outside of a bus,” said Klau. “I think it would be understandable that [the MTA] may not want to subject commuters who are stuck sitting on a bus for an hour each way going in and out of the City to emotionally charged ads because it creates a potentially ugly atmosphere where people can’t escape as the train is moving.”
That distinction, Klau believes, was clear to the ACLU of Connecticut when writing their letter to the MTA.
“I think the reason the ACLU is focusing on the state constitution is because they’re probably concerned that under a federal constitutional analysis a judge will treat the inside of a subway differently than the exterior of a bus,” said Klau. “They’re hoping under state law a court will not care about that distinction because state law provides broader [free speech] protection.”•