SEPTA has lost round one of a lawsuit over whether it can refuse to run ads it deems anti-Islam. U.S. District Judge Mitchell Goldberg of the Eastern District of Pennsylvania has denied the use of SEPTA’s expert witness, dismantling the first line of its defense.
The ads were created by the American Freedom Defense Initiative (also known as Stop Islamization of America), an organization that has already published ads on public buses and billboards in New York and Washington, D.C.
The specific ad in this case states, “Islamic Jew-Hatred: It’s in the Quran. Two Thirds of All US Aid Goes to Islamic Countries. Stop the Hate. End All Aid to Islamic Countries.” The ad also contains a picture of Adolph Hitler and Haj Amin al-Husseini (a Palestinian Arab nationalist and Muslim leader) with the caption, “Adolf Hitler and his staunch ally, the leader of the Muslim world, Haj Amin al-Husseini.”
SEPTA originally planned to use the testimony of University of Pennsylvania Professor of Religious and South Asia Studies, Jamal J. Elias. His testimony would have declared that the ad makes “manifestly false” claims about Islam and Haj Amin al-Husseini. The testimony would have supported SEPTA’s argument that the ad propagates false information and is therefore not protected by the U.S. Constitution.
Yet Judge Goldberg has decided that the testimony of Elias is irrelevant to the case.
“Long standing Supreme Court precedent instructs that political speech does not lose First Amendment protection simply because the listener believes that it is false or disagrees with the message it advances,” Golberg wrote in his ruling. “Allowing the state to restrict political speech based on an assessment that it is false or inaccurate, offends bedrock First Amendment principles.”
The lawyer representing the American Freedom Defense Initiative, David Yerushalmi, applauds decision.
“The testimony is simply not relevant,” said Yerushalmi. “The reason that SEPTA refused our ad was not because it wasn’t true, but because they claim it disparaged Muslims.”
AFDI submitted the ad to SEPTA in the early fall and it was promptly rejected. The anti-Islamic content of the ad violates SEPTA’s advertising standard that prohibits the disparagement of any individual or group based on race, religion, age, alienage, sex, ethnicity, or health.
In 2012 the Metropolitan Transportation Authority of New York also repudiated an AFDI ad based on a similar standard. AFDI filed a suit against the MTA on the grounds of a First Amendment violation. The U.S. District Judge Paul A. Engelmayor of the Southern District of New York sided with the AFDI, declaring that their advertising standard transgresses the First Amendment.
David Yerushalmi represented AFDI in the 2012 case as well. Except for some nuances (the ad itself is different), the case is essentially the same.
In addition to being unconstitutional, Yerushalmi believes that SEPTA’s advertising standard is being used arbitrarily in this case.
“There is nothing in the ad itself that disparages Muslims — it’s a critique of a position that there is Jew-hatred systemic to the religion of Islam. That may or may not disparage Muslims, that would depend upon their view of their personal practice of the religion. But to say that criticism of a religion disparages the adherents is not, in our view, permissible under the First Amendment.”
SEPTA’s lawyer has been unavailable for comment. The lawsuit is still in its early stages, so far there is no sign that SEPTA has decided to acquiesce and publish the ads.