On October 5, U.S. District Judge Rosemary Collyer ordered the Washington Metropolitan Area Transit Authority to post the controversial "Defeat Jihad" ad in rail stations. This past Friday, Collyer issued a 17-page opinion (PDF) explaining her decision, saying that while the ad did contain "hate speech," it was protected under the First Amendment.
The New York-based group behind the ad, the American Freedom Defense Initiative, sued Metro after learning that the agency was delaying its contract to post the ad. Metro officials claimed that they had a compelling public safety interest, but Collyer found that they failed to meet the "strict scrutiny" standard for restricting protected speech.
Collyer wrote that while Metro did have a compelling security interest, officials failed to choose the least restrictive option to achieve that goal. "WMATA’s failure to consider alternative placements plus the open-ended and purely subjective duration of its postponement were not narrowly tailored as required," she said in her opinion.
The ad, which was posted per Collyer's order on October 8, reads: "In any war between the civilized man and the savage, support the civilized man," with the tag, "Support Israel/Defeat Jihad." The American Freedom Defense Initiative had a contract with Metro through a third-party company that handles ad placements to post the ad beginning September 24. The advocacy organization sued Metro on September 20 after receiving notification two days earlier that the ads would be delayed until "a future date to be determined."
Metro later clarified that the postponement would be until November 1, but the New York group wasn't satisfied and claimed that every day of delay was a violation of its First Amendment rights.
During arguments on October 4 on the American Freedom Defense Initiative's motion for a temporary restraining order, Metro lawyer Phillip Staub argued that Metro had received warnings from several federal agencies that the ad could incite violence and had received at least one threatening email. He said that the threats came from an online video mocking Islam that spurred protests throughout the Middle East.
But the lead attorney for the plaintiffs, Robert Muise of the American Freedom Law Center in Ann Arbor, Mich., countered that such threats were too vague to warrant a restriction of his client's protected speech. Collyer issued an order the day after arguments, but didn't publish an opinion explaining her rationale until Friday.
Metro spokeswoman Caroline Lukas confirmed today that the ad was posted in four rail stations on October 8 but declined to comment on the opinion, except to say that "the judge issued an injunction that we put up the ads and we complied." In a phone interview today, Muise disputed that Metro had presented a "compelling" interest, but was satisfied with the outcome. He said the ads are expected to stay up for 30 days from when they were posted, in accordance with the original contract.
"I don't necessarily agree that what they presented by way of evidence was in fact a compelling interest, since it was so speculative and it was based on a video that had nothing to do with my client's speech," Muise said. "But at the end of the day, [Collyer] upheld core political speech."