Judge Explains Decision Ordering Metro to Post 'Defeat Jihad' Ad

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."

Comments

[Citizen Ghost]

Arguing about whether the advertisement is "hate speech" sort of misses the point.

The court was very clear:

"It is unnecessary to decide whether the advertisement is predominantly one type of speech [political speech]or the other [hate speech], because on these facts, the First Amendment protects speech from government intrusion in either case."

And so, it hardly matters whether the use of the words like "savage" are seen as applying to a large group or small one.

Either way, the speech is protected under the First Amendment. The government can't prohibit speech just becaues it offends people. Easy decision.

[Get Real]

It is a hate speech when you call someone a "savage" and uncivilized. The hatred is as black and white as the words printed. It's a shame you can't read. The rant is a bullying down at specific group of people she thinks is less valuable than her as they are "savages" and uncivilized. If she called you an uncivilized savage it is your opinion that she like you and would most likely go out on a date with you, you savage! Everyone who followed the situation knows she is making a direct reference to Muslims and Islam with the word "Jihad." Just because she didn't say Muslim don't reduce the inference. Her finger pointing is clear. Call it is for what it it; she did not paid for the advertisement to call a group of people "savages" and uncivilize out of love, admiration, or the slightest hint of like. She advertised her hatred.

[David Wiegand]

So, as I understand it, the controversy stems from the wording, "In any war between the civilized man and the savage, support the civilized man," along with the tag, "Support Israel/Defeat Jihad." The court found this to constitute "hate speech" because it connoted that all muslims were savages. Huh?? The language doesn't even include the word, "muslim", and even if it was implied, it only referred to those who supported "Jihad." It is a bit of a reach, therefore, to infer the ad is directed to all muslims. One is left to wonder whether if the court would construe the following language as "hate speech" if it were posted in the early 1940s during WWII:

"In any war between the civilized man and the savage, support the civilized man.", . . . "Support the USA and its allies/Defeat ethnic cleansing!"

How sad that concerns of retaliatory savagery preclude us from denouncing Naziism and other hateful/savage policies, practices, groups, and stances for fear that such denunciation itself be deemed "hate speech".

It is now hateful to hate hatred. The world has officially been turned on its head.

[James Li]

The end result is proper. Unfortunately, without any legal analysis, the Judge Rosemary Collyer concludes in her opinion that the advertisement constitutes "hate speech."

And so the First Amendment slowly gets chipped away. Sadly, she has lifetime employment as a federal judge.