By Saranac Hale Spencer, From The Legal Intelligencer

A caustic advertising campaign that has won the right to publish on public transportation in New York and D.C. is looking to come to Philadelphia. And the American Freedom Defense Initiative, the organization run by two bloggers who are critical of Islam, has won a round against SEPTA in federal court in Philadelphia.

The Southeastern Pennsylvania Transportation Authority’s argument that the advertisement is not entitled to constitutional protection because it is false was rejected by the judge handling the case when he excluded the testimony of the expert on Islam that SEPTA had offered. The judge held that the truth or falsity of the ad is irrelevant.

The Defense Initiative had submitted an ad to run on buses in Philadelphia that said, “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.” It also featured a picture of Adolf Hitler meeting with Haj Amin al-Husseini and the caption, “Adolf Hitler and his staunch ally, the leader of the Muslim world, Haj Amin al-Husseini.”

SEPTA rejected the ad because it violated SEPTA’s advertising standards that bar advertisements that disparage or ridicule people based on race or religion, according to the opinion from U.S. District Judge Mitchell Goldberg of the Eastern District of Pennsylvania.

The Defense Initiative then filed suit alleging a violation of its First Amendment rights.

It filed a similar suit in 2012 when New York City’s public transportation authority, the Metropolitan Transportation Authority (MTA), rejected an ad, citing to a similar advertising standard.

The ad proposed for the MTA referenced an Ayn Rand quote, saying, “In any war between the civilized man and the savage, support the civilized man. Support Israel. Defeat Jihad.”

The MTA had rejected the ad because it violated an advertising standard almost identical to SEPTA’s.

U.S. District Judge Paul A. Engelmayer of the Southern District of New York held the MTA’s no-demeaning standard violates the Constitution.

The advertising standard violates the “First Amendment, because, as presently written, it is explicitly content-based: The standard proscribes some, but not all, demeaning ads, depending whether the individual or group demeaned by a particular ad falls into one of the ‘specific disfavored’ categories (e.g., race, nationality, gender, religion, disability, sexual orientation) identified in that standard,” Engelmayer said in his 2012 opinion granting a permanent injunction to the Defense Initiative.

Asked if the Defense Initiative planned to take the same tack in the Philadelphia case, David Yerushalmi, the lawyer from the American Freedom Law Center who represents it, said, “Absolutely.”

SEPTA had planned to offer Jamal J. Elias, a professor at the University of Pennsylvania and scholar of Islam and Muslim culture, as an expert witness to support its argument that the advertisement is false and, so, not protected speech.

“Dr. Elias offers two opinions in his report, both of which pertain to alleged inaccuracies in the proposed advertisement,” Goldberg said. “He first concludes that referring to Haj Amin al-Husseini as the ‘leader of the Muslim world’ is ‘manifestly false.’ Second, Dr. Elias opines that the statement ‘the Qur’an teaches Jew-Hatred’ is ‘unfair and erroneous.'”

But the judge decided that the truth or falsity of the advertisement is irrelevant to its protection under the First Amendment.

“Longstanding 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,” Goldberg said. “Allowing the state to restrict political speech based on an assessment that it is false or inaccurate, offends bedrock First Amendment principles.”

The judge leaned heavily on the U.S. Supreme Court’s 2012 opinion in United States v. Alvarez, which struck down the Stolen Valor Act, a law that made it a crime to falsely claim to have gotten military honors.

“Unlike the speech criminalized by the Stolen Valor Act, the advertisement at issue here is exactly the sort of political expression that lies at the heart of the First Amendment,” Goldberg said, explaining that it would be entitled to even more protection from the First Amendment than the false speech protected in Alvarez.

Goldberg examined three differing views from the justices in Alvarez, including Justice Samuel Alito Jr.’s dissent, in which the justice said he would have upheld the Stolen Valor Act because it posed no risk that protected speech would be suppressed since the speech it targeted is without intrinsic value.

“In reaching this conclusion and of particular importance to the case before me, Justice Alito stated that laws restricting false statements about issues of public concern, including religion and history, would present ‘a grave and unacceptable danger of suppressing truthful speech.’ As such, Justice Alito stressed that ‘the point is not that there is no such thing as truth or falsity in these areas … but rather that it is perilous to permit the state to be the arbiter of truth,'” Goldberg said.

The judge’s analysis of Alvarez was “absolutely brilliant,” Yerushalmi said. It “made mincemeat out of SEPTA’s argument,” he said.

SEPTA had argued that because no law is implicated in its decision about accepting or rejecting advertising—Alvarez had implicated the Stolen Valor Act—the falsity in the proposed ad would remain relevant.

The judge, however, disagreed, holding that the truth or falsity is irrelevant, so Elias’ testimony would be excluded.

The expert testimony is “one of several issues in the case,” said Paul Madden of Buchanan Ingersoll & Rooney, who is representing SEPTA. But he added, “I wish it had been decided differently.”

IMAGE: Stockphoto.com

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