A Washington federal district judge heard arguments today on whether to allow a controversial ad with the message, "Support Israel/Defeat Jihad," to be posted in Metro rail stations over the public safety-related objections of agency officials.
Today's hearing took place less than two weeks after the same ad went up in New York subway stations, following a Manhattan federal judge's finding that transit officials had run afoul of the First Amendment. U.S. District Judge Rosemary Collyer did not rule from the bench, saying she needed more time to consider a case that she did not find clear-cut.
The ad 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, the New York-based group behind the ad, sued the Washington Metropolitan Area Transit Authority on September 20, two days after the agency told the group that it would not allow the ads to go up as planned in stations on September 24.
The group argued the decision was a violation of their First Amendment rights, while Metro countered that its decision to delay the ads until November 1 was based on a "compelling" and immediate interest in public safety, and not on the ad's content. Collyer heard arguments today on the group's motion for a temporary restraining order and preliminary injunction, which would allow the ads to go up right away.
Metro lawyer Phillip Staub said that, assuming the ad was considered protected speech, Metro had a "compelling" interest in public safety, pointing to at least one threatening e-mail directed at the agency and feedback from the U.S. Department of Homeland Security that the ad could incite violence. That threat, according to Staub, stemmed from an online video mocking Islam that sparked protests throughout the Middle East and was blamed, at least in part, for the deadly attack in September on the U.S. consulate in Benghazi, Libya.
Staub said that the agency's decision was "content-neutral," meaning it wouldn't be subject to a high strict scrutiny standard. He pointed to past case law that content neutrality should be determined by the government's purpose – in this case, protecting public safety – and that it didn't mean the government couldn't take content into consideration. "The content neutrality does not require ignorance of the content," he said.
Lead counsel for the plaintiffs, Ann Arbor, Mich.-based attorney Robert Muise, argued that his clients had suffered irreparable harm to their free speech rights for every day that Metro refused to allow the ad to go up. He and Collyer tussled over whether the ad constituted hate speech, with Collyer saying that she did not agree with the New York judge's finding that the ad was solely "core political speech."
Muise disagreed that the ad was hate speech, but said that such speech would still be protected by the First Amendment and that such language-based analysis supported his position that Metro's decision was not content-neutral. He said Metro's public safety concerns were too vague to meet the standard for restricting protected speech, noting that the ad had gone up in New York without serious incident so far, although there was discussion of a physical fight that had taken place on a platform .
Collyer did not say when she expected to rule, except that it would be soon.