Judge: SEPTA Must Run Ads Comparing Muslims to Hitler

A judge ruled yesterday SEPTA violated first amendment rights when it rejected a group's anti-Islam ad. SEPTA has not said if it will appeal.

Anti-Islam ad SEPTA refused to run

The advertisement SEPTA originally refused to run

A federal judge has ruled that SEPTA must run anti-Islam ads that compare Muslims to Hitler.

Last year, we told you about the American Freedom Defense Initiative. The group, characterized by the Southern Poverty Law Center as a hate group, sued SEPTA after the transit authority rejected its ads that advocate for the end of United States aid to “Islamic countries.” Yesterday, a judge ruled in favor of the AFDI, which also goes by the name Stop Islamization of America. It was co-founded by Pamela Gellar, best known for writing the Atlas Shrugs blog.

SEPTA had rejected the ads based on the agency’s anti-disparagement standard for advertising. But U.S. District Judge Mitchell S. Goldberg found that SEPTA’s advertising spaces are a public forum. Since SEPTA is undoubtedly a public actor, SEPTA was told it must run the ads. “I conclude that SEPTA’s anti-disparagement standard violates the First Amendment,” Goldberg wrote. “I reach this conclusion because I am compelled to do so under established First Amendment precedent. That said, based on the evidence presented at the preliminary injunction hearing, it is clear that the anti-disparagement standard promulgated by SEPTA was a principled attempt to limit hurtful, disparaging advertisements. While certainly laudable, such aspirations do not, unfortunately, cure First Amendment violations.”

SEPTA was hamstrung in its defense by a judge’s ruling. SEPTA had planned for a Penn humanities professor, Jamal Elias, to testify about the ad. Elias was to argue the ad’s assertions — that the Koran teaches “Jew-hatred” and that Haj Amin Al-Husseini was “the leader of the Muslim world” — are false. But a judge ruled the first amendment protects even incorrect speech and barred him from testifying.

Courts have generally ruled against free speech restrictions on public transit. A judge ruled in 2012 that New York City’s Metropolitan Transportation Authority violated AFDI’s rights when it rejected similar ads. The group later rolled out hundreds of ads on New York City buses and two subway entrances and at one point planned more. Last year, the group ran advertisements on Washington D.C.’s Metro system. Per the group’s website, it has placed similar ads across the country.

Free speech on bus ads even extends to ads promoting the legalization of drugs. In 2004, a judge struck down a federal law that would strip federal transit funding for any transit agency that accepted ads advocating drug legalization. “The government has articulated no legitimate state interest in the suppression of this particular speech other than the fact that it disapproves of the message, an illegitimate and constitutionally impermissible reason,” U.S. District Judge Paul Friedman wrote at the time.

In 2008, the city refused ads at bus shelters for the film Zack and Miri Make a Porno. “If they want to call the movie Zack and Miri, that’s fine,” Deputy Mayor for Transportation Rina Cutler told the AP, “but Zack and Miri cannot make a porno on my bus shelters.”

Yesterday’s ruling said that, while SEPTA advertising contractor Titan does not solicit “public issue” advertisements, it has run several of them in the past few years — including ads about animal cruelty, teacher seniority, birth control, religion, fracking and sexual harassment. SEPTA lost a previous ruling on appeal, in 1998, when the transit authority removed anti-abortion ads it had previously approved. SEPTA argued its policies had changed since that lawsuit by Christ’s Bridge Ministries, but the judge ruled SEPTA ad space was still a designated public forum.

SEPTA has not decided if it will appeal the ruling.

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