Philadelphia Inquirer on AFDI Legal Triumph: “SEPTA buses can be plastered with Hitler’s mug”


More news of our free speech victory:

“Judge: SEPTA buses can be plastered with Hitler’s mug,” Philadelphia Inquirer, March 12, 2015
The ad, produced by American Freedom Defense Initiative, features a photograph of a 1941 meeting between Adolf Hitler and Hajj Amin al-Husseini, a Palestinian Arab nationalist who made radio broadcasts supporting the Nazis.

The ad, produced by American Freedom Defense Initiative, features a photograph of a 1941 meeting between Adolf Hitler and Hajj Amin al-Husseini, a Palestinian Arab nationalist who made radio broadcasts supporting the Nazis.

*By Jeremy Roebuck and Michael Matza, Inquirer Staff Writers

SEPTA’s efforts to block city bus ads proclaiming “Jew Hatred: It’s in the Quran” violate free speech protections and should be halted, a federal judge has found.

In a case that grappled with basic First Amendment issues over disparaging advertising, U.S. District Judge Mitchell S. Goldberg ruled Wednesday that SEPTA had inconsistently run public-issue ads from other organizations, and cleared the way for a private group’s ad that seeks to end U.S. aid to Islamic countries using a provocative headline and a photograph of Adolf Hitler meeting with an Arab leader.

“It is clear that the anti-disparagement standard promulgated by SEPTA was a principled attempt to limit hurtful, disparaging advertisements,” Goldberg wrote. “While certainly laudable, such aspirations do not, unfortunately cure First Amendment violations.”

Jerri Williams, a SEPTA spokeswoman, said Thursday that the transit system is disappointed but respects the court’s decision.

“We’re currently evaluating our options including whether or not to file an appeal,” she said.The law gives SEPTA a month to decide.

“We’re sitting tight to see what SEPTA is going to do,” said Abby Stamelman Hocky, executive director of the Interfaith Center of Greater Philadelphia, a decade-old coalition of religious groups, which opposes the ad.

If it runs, she said, “we are going to be sure that this is a moment where Philadelphians know that this is not what we in Philadelphia are about.”

In that vein, said Hocky, her group chose SEPTA as a co-recipient of its annual “Dare to Understand” Award, to be presented April 29 at the Academy of Natural Sciences.

The announcement of the award praises the transit authority for responding “to these hateful messages in a way that serves our community’s best interests.”

The black-and-white ad with its block-letter typography features a photograph of a 1941 meeting between Hitler and Hajj Amin al-Husseini, a Palestinian Arab nationalist who made radio broadcasts supporting the Nazis.

It was produced by the American Freedom Defense Initiative, (AFDI) a New Hampshire-based nonprofit, which argued in legal filings that the ad was germane and timely “in light of the fact that many Jews (and Christians) are being persecuted in Islamic countries in the Middle East.”

The organization, co-founded in 2010 by conservative commentators Pamela Geller and Richard Spencer, has fought and won similar free-speech battles over its ads on transit systems in New York, Boston and Seattle.

“Brilliant news, freedom lovers,” Geller exulted on her web site Wednesday. “We won in Philadelphia. … Oorah!”

SEPTA rejected the ad after it was submitted in May, saying it failed to conform to the transit authority’s prohibition on advertising that “disparages” any person or group “on the basis of race, religious belief, age, sex, alienage, national origin, sickness or disability.”

The transit system argued that plastering the ad across city buses and trains could encourage harm or incivility to Muslim employees or among its one million daily customers.

“These ads are despicable and false but fall under First Amendment protections,” Jacob Bender, executive director of the Philadelphia chapter of the Council on American Islamic Relations (CAIR) said Thursday. “We have no problem with the judge’s ruling, but have a great amount of antipathy for AFDI pushing a clearly hate-inspired, anti-Muslim message on the citizens of our fair city. One can only imagine the revulsion that tens of thousands of Muslim citizens will feel getting onto SEPTA buses and trolleys” bearing the ad.

“The First Amendment protects everyone, the hateful and the loving alike,” added CAIR staff attorney Ryan Tack-Hooper. “Instead of suppressing dishonest and offensive speech, the American tradition is to respond with speech of our own. You can be sure we will.”

SEPTA acknowledged at a hearing before Goldberg in December that it closely scrutinizes advertising only when the company it contracts to sell ads has questions about whether they might comply with those standards.

In his opinion Wednesday, Goldberg cited past public issue advertisements run by SEPTA on topics such as animal cruelty, teacher seniority, contraception, religion and fracking that also had a potential to offend.

“Although SEPTA’s concerns [about the ad] are not immaterial,” the judge wrote, “it cannot properly claim a legitimate interest in enforcing an unconstitutional law.”

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