Photo Credit:
Pamela Geller

But it would be wrong to conclude that while AFDI may have won the (legal) battle, it lost the war, because AFDI’s ad was specifically created to counter anti-Israel ads.  If there is an MTA policy that constitutionally prohibits AFDI-like ads, presumably it will also cover anti-Israel ads.  If not, AFDI will surely respond with another counter to any such permissible anti-Israel ads.

AFDI’s ads began running today, as the MTA conceded that under its “existing ad standards as modified by the injunction, the MTA is required to run the ad.”  However, there were numerous reports that the MTA is planning on revising its standards in an executive sessions scheduled for this week.


San Francisco, August – September, 2012

The San Francisco Bay Area Transit system also played host last year to ads that called for an end to U.S. aid to Israel, claiming Israel to be unfair and unjust.  AFDI’s anti-Jihad ads began running on the sides of buses in San Francisco on August 7, at least in part based on the New York federal judge’s July 20 decision.

However, two things have since happened.  First, the San Francisco Municipal Transportation Agency announced it will give all of the proceeds from AFDI’s ads to the San Francisco Human Rights Commission to support “educational activities.”  Secondly, although the Muni is apparently convinced that banning AFDI’s ads would violate the First Amendment, yesterday it began running a disclaimer ad next to every one of AFDI’s ads, which is, according to Geller’s website Atlas Shrugs,

a first in outdoor advertising history, next to our pro-freedom, anti-jihad ads. Their disclaimer reads: “SFMTA Policy Prohibits Discrimination Based On National Origin, Religion and Other Characteristics and Condemns Statements That Describe Any Group As Savages.” Really? Were the Nazis savages? The Taliban? Hamas? Al Qaeda? Boko Haram? Daniel Pearl’s beheaders? The Fogel family’s cold blooded murderers?

Never one to rest on her laurels, Geller’s AFDI immediately responded with ads placed on the sides of San Francisco buses stating: “Why is the city of San Francisco enforcing Sharia law?  San Francisco is running disclaimers next to our pro-Israel ads. Why didn’t they run them next to vicious anti-Israel ads? Stop Anti-Semitism in San Francisco government.”

Washington, D.C., September 2012

Washington, D.C. is another transit system in which anti-Israel ads ran last year.  AFDI chose to run its anti-Jihad ad in the District, and on September 6 entered into a contract with the Washington Metropolitan Area Transit Authority to run the ad beginning on September 24. However, on September 18, Geller was contacted and informed that “due to the situations happening around the world at this time, we are postponing the start of this program to a future date to be determined.”

The “situations happening around the world” are the violent riots by Muslims which were set off, some claim, by the airing on YouTube of the video, “The Innocence of Muslims.”  That video depicts the Islamic prophet Mohammed as a pedophile and a violence-loving man which is considered blasphemy by strict Muslims.

Although the WMATA is refusing to run the ads, out of “concern for public safety,” the New York City police department spokesperson Paul Browne told a reporter that they “were not anticipating adding any security” to the subways while the ads are up, and that they had “not received any threats or reports of violence relating to them.”

On September 20, AFDI brought a lawsuit seeking an injunction action by the federal district court in Washington, D.C. to require the transit authority to run her ads now, during the time period in which they were contracted to be run. Once again, AFDI’s attorneys are claiming viewpoint discrimination, a classic violation of the First Amendment.  AFDI’s Complaint against the WAMTA states:

The WMATA’s speech restriction is based on the perceived negative response that Plaintiffs’ message might receive from certain viewers based on its content and viewpoint. However, a viewer’s reaction to speech is not a content-neutral basis for regulation. This is known as a “heckler’s veto,” which is impermissible under the First Amendment.

When asked for a comment on the controversy, Eugene Kontorovich, a professor at Northwestern University Law school and an expert in constitutional and international law, had this to say:

The DC Metro is obviously trying to avoid trouble by granting foreign extremists a veto on American speech. They also seem to be using the flimsy pretext that anti-American riots are linked to particular speech by Americans to try to override the First Amendment.

So here is the lineup on Monday, September 24, 2012.


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Lori Lowenthal Marcus is a contributor to the A graduate of Harvard Law School, she previously practiced First Amendment law and taught in Philadelphia-area graduate and law schools. You can reach her by email:
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