The current debate over political advertising in the Washington, D.C.-area transit system moves the issue from “free speech” to “public safety,” and probably toward the Supreme Court.
Pamela Geller, the president of American Freedom Defense Initiative (AFDI), sought to bring her message to the nation’s capital using one of the cartoons from her May 2015 “Draw the Prophet” event. The event, which took place in Garland, Texas, was attacked by two gunmen, for which ISIS later claimed responsibility. Geller’s request was denied after the Washington-area transit authority, WMATA, temporarily suspended all advocacy advertisements on May 28.
Debates over advertising on public transportation are not new. Geller has had transit ads run in New York and Washington before. In 2012, New York and Washington posted “Support Israel, Defeat Jihad” ads that referred to war between “the civilized man” and “the savage,” and were widely labeled hate speech. It wasn’t until recently that the New York transit authority voted to ban all political advertising.
On a legal level, these ads have experienced mixed success. In March 2015, a federal court decided Philadelphia‘s transit system could not refuse ads linking Muslims to Hitler.
That same month, however, a federal court held that the transit authority in Seattle could refuse ads from both sides of the Israel-Palestine conflict. Judge Paul Watford cited public safety in the majority decision: “Municipalities faced with the prospect of having to accept virtually all political speech if they accept any — regardless of the level of disruption caused — will simply close the forum to political speech altogether.”
The Boston transit authority has implemented similar measures as well. In May, a federal court found in favor of the city transit authority’s restrictions on ads that “demean or disparage” individuals or groups. The decision allowed the city to permit ads in favor of Palestinians while refusing ads from Geller’s group.
Outside the United States there are competing approaches. The Supreme Court of Canada, for example, struck down in 2009 an effort by British Columbia Transit to ban all political advertising. Transport for London, on the other hand, prohibits ads on buses and trains that may cause “widespread or serious offence.” Ads that touch on “matters of public controversy and sensitivity” and political causes, as well as ads which undermine the 1999 Greater London Authority Act’s commitment to “promote good relations between persons of different racial groups [or] religious beliefs,” are not permitted.
The U.S. Constitution’s First Amendment protects fundamental freedoms in American society, including the freedom of speech and freedom of religion. The text of the Amendment actually states “Congress shall make no law…abridging the freedom of speech,” but Congress and the states have made many such abridgments, and the Supreme Court has agreed to some of these limits.
One such limit came about through Schenck v. United States (1919). Justice Oliver Wendell Holmes, Jr. wrote in the unanimous opinion,
“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. […] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger….”
In other words, you can’t falsely shout fire in a theater. You can’t create a clear and present danger.
In 2008, a Danish cartoonist was targeted for his depictions of the Prophet Muhammad. A Swedish artist was attacked in 2010, and allegedly the intended target of a murder plot. In January 2015, 12 people were killed in Paris in an attack on the office of a French magazine. In May, two gunmen attacked the cartoonists event near Dallas. The winning cartoon is what Geller sought to bring to Washington.
With her application under review by WMATA, Geller, used inflammatory language to defend her position:
“Drawing Muhammad is not illegal under American law, but only under Islamic law. Violence that arises over the cartoons is solely the responsibility of the Islamic jihadists who perpetrate it. Either America will stand now against attempts to suppress the freedom of speech by violence, or will submit and give the violent the signal that we can be silenced by threats and murder. We cannot submit to the assassin’s veto.”
But free speech remains an active area of litigation. In a recent Supreme Court decision, Justice Anthony Kennedy defended the marketing of pharmaceuticals, in part by referencing cases which permitted nudity in movies, advertising alcohol prices, and clothing with expletives. In the Court’s current term, it is expected to decide whether Texas can include the option of the Confederate flag on its license plates, and whether towns can restrict the size of church signs more than it restricts the size of other signs. None of these, though, has the recent record of international terrorism and terrorist targets (public transportation) associated with it. Would depictions of Muhammad on a Washington bus or subway train be akin to shouting fire in a theater – would they create a “clear and present danger,” obvious targets for attack?
Transit authorities seem to think so. In a May 27 statement about an unrelated arrest on of a man for terroristic threats, WMATA’s police chief, Ron Pavlik offered that, “We have no greater responsibility than protecting Metro’s customers and employees. This case demonstrates the seriousness with which we take all threats.” That same mentality supported WMATA’s decision to temporarily suspend all “issue-oriented advertisements.” It also supports Philadelphia’s decision to do the same.
Still, with inconsistent results in different U.S. federal courts, and with some cities deciding to reject all political advertisements, a case rising to the Supreme Court seems inevitable.