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Free Speech on Trial in U.S. District Court As AFDI Fights for the Right to Tell the Truth

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Today my ace lawyer David Yerushalmi of the American Freedom Law Center (AFLC) argued before the U.S. District Court for the Southern District of New York on our motion for a preliminary injunction, asking the court to enter an order requiring New York City’s Metropolitan Transportation Authority (MTA) to run our AFDI “Killing Jews is Worship that brings us closer to Allah” anti-Hamas, anti-jihad ad on MTA buses.

I was there, and let me tell you, the foes of free speech made some telling and fascinating admissions.

Jeff Rosen, the Director of Real Estate for the MTA — that is, the guy who decides what ads to take and what ads not to take — admitted that he had no knowledge of First Amendment issues. So when he rejected our ad, he was making these decisions not with any awareness of our First Amendment rights, and not with an understanding of the legal implications of what he was doing, but capriciously.

Rosen and the MTA had rejected this ad, they have said, because they were afraid that it would lead to violence from Muslims who would mistake it for a pro-Hamas ad. That’s absurd enough on its face. But in his testimony today, Rosen contradicted the previous declaration he had submitted to the court. The MTA acknowledges that this same ad ran in Chicago and San Francisco without incident.

It’s clear that they chose to challenge this ad out of all of our ads in order to establish that it constituted a true threat, or incitement, or fighting words — all legal grounds to keep from running it. They picked this particular ad hoping that they would get the ruling they wanted and establish a precedent against all of our ads, even though their discriminatory policies against our ads are purely content-driven and hence unconstitutional.

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They tried to make the rejection of this ad a security issue. But not only did it run in Chicago and San Francisco without incident, but also, the NYPD refused to submit to the MTA any security concerns about this ad, which speaks volumes. This proves that there was no security concern. And the San Francisco transit authority, which clearly despises our ads, stated most emphatically that it had “absolutely no problem whatsoever” when the ad ran — despite the cajoling, the nudging, the leading of the witness by Raymond Diaz, the director of security.

David Yerushalmi argued brilliantly, asking the court to enjoin the MTA’s speech restriction on First Amendment grounds. And we will win. If we don’t, it isn’t just us who lose — it’s anyone who values the freedom of speech.

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