The Metropolitan Transportation Authority violated the First Amendment rights of a pro-Israel group when it refused to run an advertisement branding enemies of Israel as “savage,” a federal judge in Manhattan ruled on July 20, although he left open the possibility that the MTA could make a new rule that would exclude the ad without running afoul of the Constitution.

The ad, created by American Freedom Defense Initiative, says, “In any war between the civilized man and the savage, support the civilized man.” Below that, it urges, “Support Israel. Defeat Jihad.” The ad also includes the website of the group’s executive director, activist Pamela Geller, at AtlasShrugs.com.

The group plans to run the ad on buses for four weeks.

Southern District Judge Paul Engelmayer’s 35-page decision American Freedom Defense Initiative v. MTA, 1:11-cv-06774, held that the MTA’s current policy of barring ads that “demean an individual or group of individuals on account of race, color, religion, national origin, ancestry, gender, age disability or sexual orientation” is unconstitutional as written. He granted Freedom Defense Initiative’s motion for a preliminary injunction.

However, the judge stayed the order for 30 days, and suggested the MTA could use that time to come up with an alternative regulation that would uphold its “laudable” goal of keeping advertising civil.

Geller nonetheless called the decision “a great victory for the First Amendment” in a blog post.

“Freedom, freedom, freedom……the sweet, delicious taste of it,” added Geller, who is also known for her staunch opposition to the planned Park51 Islamic community center in lower Manhattan.

“The court found that our client’s advertisement attacking savages who engage in jihad against Israel could be understood to be demeaning to those Muslims who support violent jihad against Israel,” said David Yerushalmi of the American Freedom Law Center, counsel to the advocacy group, in a prepared statement. “But the response to that is—so what? And that is effectively what the court said. The First Amendment is not designed to protect just polite, politically correct speech that offends no one.”

The MTA said in a statement that it “continues to review Judge Engelmayer’s lengthy decision and is evaluating its existing advertising standards in light of the court’s ruling.”

The Freedom Defense Initiative has previously run two ads on MTA vehicles. In May 2010, it ran an ad on city buses that said, “Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got questions? Get answers!” The ad included a link to a website, RefugeFromIslam.com.

In August 2010, the group ran an anti-Park51 ad on city buses. That ad juxtaposed a picture of the burning World Trade Center towers captioned “September 11, 2001/WTC Jihad Attack” with a picture of a mosque captioned “September 11, 2011/WTC Mega Mosque.” Below that, it said, “Why There?” and “Ground Zero.”

CBS Outdoor Group, the MTA’s advertising contractor, asked the Freedom Defense Initiative to change the anti-mosque ad, prompting the group to sue the MTA. The MTA then reviewed the ad and decided to accept it.

The Freedom Defense Initiative has already revised its current proposed campaign twice. The earlier versions included photographs with the text, including pictures of soldiers wearing keffiyehs and holding weapons, Adolph Hitler with his hands on the shoulders of a child wearing a keffiyeh and a woman wearing a hijab and holding a sign saying “God Bless Hitler.” CBS Outdoor told the MTA that it believed the ad violated its advertising policy.

When Freedom Defense Initiative submitted its final, text-only ad campaign in September 2011, it told the MTA that it was intended to respond to two ads that had run on subways that month.

One, submitted by the Westchester-based WESPAC Foundation Inc., which describes itself as devoted to “peace and justice work,” showed a picture of a man with his daughter labeled “Palestinian designer” and a picture of another man with his baby labeled “Israeli social worker.” Below, it said, “Be on our side. We are the side of peace and justice. End U.S. military aid to Israel.”

The other ad, run by pro-Israel group StandWithUs, showed two young boys, one wearing a keffiyeh and the other a yarmulke, arm in arm, with the words, “Israel Needs A Partner For Peace. The Palestinian Authority Must Accept The Jewish State & Teach Peace, Not Hate.”

CBS Outdoor raised concerns about both ads with the MTA, but the MTA ultimately approved them.

When CBS received the final text-only ad from the Freedom Defense Initiative, it told the group that it believed the ad violated the MTA’s policy against “demeaning” language. It said the group could either revise the ad or seek final determination from the MTA. The group chose the latter course.

MTA Director of Real Estate Jeffrey Rosen reviewed the ad and agreed that it should be rejected. He has testified that he rejected the ad because the words “savage” and “Jihad” are used to demean “a group (or groups) of individuals on account of their religion, national origin, or ancestry, including Palestinians or other Arabs or Muslims who do not share AFDI’s views on Israel.”

The Freedom Defense Initiative and Geller sued the MTA on Sept. 27, four days after the ad was rejected, and moved for a preliminary injunction.

‘Core Political Speech’

In the July 20 decision, Engelmayer noted as a “threshold matter” that the disputed ad is not only protected speech but “core political speech,” entitled to “the highest level of protection under the First Amendment.”

“The Ad expresses AFDI’s pro-Israel perspective on the Israeli/Palestinian conflict in the Middle East, and implicitly calls for a pro-Israel U.S. foreign policy with regard to that conflict,” he wrote. “The AFDI Ad is, further, a form of response to political ads on the same subject that have appeared in the same space.”

The judge then considered the question of whether the ad violated the MTA’s policy, and concluded that it did. He rejected the Freedom Defense Initiative’s argument that the ad did not target any individuals or groups protected by the no-demeaning standard.

He acknowledged that, in theory, there could be non-Muslims who identify with “Jihad.”

“But realistically, when it is read as a reasonable person would, the AFDI Ad plainly depicts Muslims—the primary adherents to this tenet of Islam—as ‘savages,’” he said.

Furthermore, he said, the ad refers viewers to Geller’s website, where she calls “the Muslim world” in general “primitive” and “barbaric,” clarifying the meaning of the ad.

Engelmayer then considered whether ad space on the outside of city buses is a public forum, as the Freedom Defense Initiative argues, or a limited or non-public forum, as the MTA argues.

The judge said that this question had already been decided by the U.S. Court of Appeals for the Second Circuit in its 1998 decision in New York Magazine v. MTA, 136 F.3d 123. In that case, New York Magazine sued the MTA after the transit agency pulled one of its ads implicitly criticizing then-Mayor Rudolph Giuliani at the mayor’s request. The MTA argued that it could do so because its buses were not a public forum, but the Second Circuit disagreed. Engelmayer said that he had no authority to go against the circuit’s decision.

Finally, Engelmayer turned to the question of whether the MTA’s policy violates the First Amendment. He said that it does because it bars only demeaning speech against certain groups, not demeaning speech in general. For example, he said, the policy would still allow ads saying that Upper West Siders are elitist snobs, lawyers are sleazebags, or Gristedes store clerks are rude and lazy. In fact, he said the MTA’s attorney had admitted that it would even allow an ad calling a specific person a child abuser by name.

“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,” the judge wrote. “MTA’s no-demeaning standard, as currently formulated, is, therefore, inconsistent with the First Amendment.”

However, Engelmayer said that he “pointedly does not reach any of the broader grounds for invalidation urged by AFDI under the First Amendment”

“Today’s ruling instead leaves—and is intended to leave—MTA the latitude to investigate and experiment with alternative mechanisms for using ad space on the exteriors of city buses productively, profitably, and constitutionally, while ensuring that this space is not used as a tool for disparagement and division,” he said.

He said that he was staying the order for 30 days to give the MTA a chance to “consider its appellate options and alternatives to the current regulation.”