Our battle to defend and protect the freedom of speech continues, while most Americans have no idea how seriously it is imperiled.
“MBTA’s Rejection of Anti-Jihad Ads Heads to Supreme Court,” American Freedom Law Center, July 28, 2015:
Yesterday (July 27, 2015), the American Freedom Law Center (AFLC), filed a petition in the U.S. Supreme Court, asking the high court to review a sharply-divided decision of the United States Court of Appeals for the First Circuit, which upheld the Massachusetts Bay Transportation Authority’s (MBTA) refusal to display on its buses two pro-Israel/anti-jihad advertisements, which the MBTA claimed were demeaning to Muslims. The ads were submitted by AFLC’s clients, the American Freedom Defense Initiative (AFDI), Pamela Geller, and Robert Spencer.
This past March, a divided panel of the First Circuit affirmed the MBTA’s censorship of the ads, holding that the advertising space was not a public forum; therefore, the heightened level of scrutiny that is typically applied in cases involving government censorship of speech did not apply. As a result, the majority held that the MBTA’s speech restriction satisfied the lower standard of “reasonableness” and viewpoint neutrality. Circuit Judge Stahl dissented and would have held that the MBTA’s censorship violated the First Amendment.
The appeal to the First Circuit consolidated two lawsuits filed by AFLC in the U.S. District Court for the District of Massachusetts. In each case, AFLC filed a motion for a preliminary injunction, requesting that the court immediately order the MBTA to display the advertisements. The district court denied the motions, ruling that in light of a prior controlling decision from the First Circuit, the MBTA’s rejection of the advertisements was “reasonable.” Seeking to test the First Circuit’s precedent, AFLC immediately appealed both rulings. The First Circuit consolidated the two cases and affirmed.
The two ads at issue appear below:
In its petition to the Supreme Court, AFLC highlights the fact that there is currently a split in the federal appeals courts regarding the First Amendment’s application to the display of public-issue advertisements on government transit authority property and that a circuit split is among the most important factors in determining whether the Court should grant review.
AFLC Co-Founder and Senior Counsel Robert J. Muise commented:
“The Supreme Court should grant review because the First Circuit’s forum analysis, an essential prerequisite for determining how to apply First Amendment principles, conflicts with the authoritative decisions of the majority of other federal appeals courts that have addressed the question in this very context. Moreover, the MBTA’s ‘demeaning’ speech restriction is inherently view-point based in violation of the First Amendment regardless of the nature of the forum. In short, this case presents exceedingly important questions regarding the right to freedom of speech that the Supreme Court has not, but should, decide.”
AFLC Co-Founder and Senior Counsel David Yerushalmi added:
“The First Circuit’s decision is fundamentally flawed because it permits the government to pick and choose which ‘political speech’ it deems acceptable, thereby doing irreparable harm to the First Amendment, which is intended to operate as a brake on the government’s power to censor speech. Indeed, the First Amendment is intended to prevent government bureaucrats from being the arbiter of acceptable speech, particularly when that speech addresses controversial political or public issues such as the Israeli-Palestinian conflict. The Supreme Court needs to take up this important case.”


jp says
Ordinarily I’d say that it’s great to see this reaching the supreme court, but with the recent Roberts rulings I fear the enshrining of pc thought police.
William L. Di Gennaro says
Thank You Thank You Thank You Pamela Geller and Robert Spencer for
taking this to the Supreme Court. I am hoping for and anticipating a
favorable result that will eliminate any and all restrictions to
expressions of Free Speech.
mortimer says
Hamas demeaned HAMAS…they demeaned a POLITICAL ORGANIZATION which spoke for itself, but also PRESUMED to speak for all Muslims.
Note: MUSLIMS AROUND THE WORLD ARE SILENT WHEN HAMAS SPEAKS IN THE NAME OF ALL MUSLIMS.
The LAW MUST ASSUME that Muslims are IN AGREEMENT WITH THE RACISM AND GENOCIDAL SOLICITATIONS OF HAMAS…unless they speak out and condemn the solicitation of murder.
Until now, no Muslims (or none that are heard) have asked Hamas to stop calling for genocide against Jews.
mortimer says
Clarification: Hamas demeaned HAMAS because they solicited murder based on race and religion…100% of Muslims obviously do not agree with genocide, but a large number do UNDER CERTAIN CIRCUMSTANCES which include the existence of Israel.
Hamas contradicts the United Nations Declaration of Human Rights…therefore they have demeaned THEMSELVES.
AFDI did not say or imply that HAMAS actually speaks for Muslims. HAMAS itself claims to speak for all Muslims, but quoting them is not equivalent to agreeing with them.
Westman says
The Executive Branch will back channel to influence the decision. This is now a clear determination of the Free Speech rights of the citizens versus abrogation of those rights by local, regional, and federal government officials via lower court judgements.
This will be a precedence that will determine the ability of America to remain free or send it drifting toward Europe’s uncertain future. Those protesting against the ads should consider that they are asking for open season legal atracks on their own, hopefully, non-violent Da’wa ads.
jihad3tracker says
*********** ANY ATTORNEYS READING THIS COMMENT ??? ************
I have opened the PDF of AFLC’s petition for a writ of certiorari, and it is long . . .
I will do research on how soon certiorari has been granted, but if my memory is correct, there is usually an urgency to such matters.
SO, CAN ANYONE GIVE US — 1. IF THE COURT EVERY REJECTS AUTHORITY TO GRANT AND 2. IF NOT, A TIMELINE FOR A DECISION.
I assume it will not have to wait until SCOTUS’s next term . . .
jhad3tracker says
Here is a link to SCOTUS’s reasons for granting certiorari :
https://www.law.cornell.edu/rules/supct/rule_10
The first — (a.) seems to have a heavy bearing on AFLC’s petition (to my no-juris-doctor-degree mind, at least).
Angemon says
Here’s hoping for the best.
James Morris says
I can only pray that freedom of speech triumphs.
revereridesagain says
I seldom ride the “T” any more, but come on and win this one so I can take me a special AFDI Posters Tour of the Red, Green, Blue, Orange, and Silver lines!
Linde Barrera says
It is my prayer that the American Freedom Law Center will ROCK the Supreme Court and WIN. Go team! God bless you.
voegelinian says
“Our battle to defend and protect the freedom of speech continues, while most Americans have no idea how seriously it is imperiled.”
Yes; including Donald Trump:
According to Trump, Geller was a “terrible messenger,” but Kelly questioned that response since Geller was in defiance of a movement that challenged American ideals.
Partial transcript as follows:
KELLY: Let’s talk about free speech because after that Pam Geller event down in Garland, Texas, where they were attacked and the two would-be Jihadi’s were shot dead by the police force, you also sent out some tweets saying why taunt in order to provoke possible death? Dumb in that moment.
TRUMP: I think Pam Geller is a terrible messenger. I think she’s terrible. We have enough problems without taunting and driving everybody crazy.
KELLY: But my question to you is, because this turned into a bigger thing, like what do we stand for as Americans if not for freedom of speech, ability to express yourself, this speech in particular which was in defiance, it’s like the cartoon that won the contest it had Muhammad standing there saying you can’t draw me and the person looking up to him saying, that’s why I draw you. It was about people trying to shut down an American ideal and this group, however unsympathetic they may have been, saying, we reject that attempt. I probably should analyze the following transcript, because so many in the Counter-Jihad seem incapable of finding unconscionable softness about the problem of Islam (particularly when it’s from a robustly blustery “conservative” like Trump), but I’m too tired to do other people’s work for them now.
TRUMP: They were totally unsympathetic. Now, you look at Muhammad and you look at some of the positions they have Muhammad and some people are going to get extremely upset about it. Now, I’m not the only one and I’m not the only Conservative Republican that feels this way. They’re lucky to be alive. Why with all the problems we have, why taunt?
http://www.breitbart.com/video/2015/05/21/megyn-kelly-challenges-trump-on-his-pam-geller-draw-muhammad-comments/
Sam Hawkins says
Trump is such a tool!! He’s only running for his hyper-inflated ego, pretty soon he’ll get bored and drop out of the race.
EYESOPEN says
Bingo! OR acting as a “spoiler”. He’s already back-tracked from his “No Amnesty” position. Damn! He’s starting to act like a politician!
Martin Vink says
We need focus.
Our war is clearly with the Koran rather than Muslims. Most Muslims have never read the Koran and/or have never recited passages of the Koran in their own language. Additionally, most Muslims don’t know that Mohammad was a pedophile, murderer, rapist, misogynist, slave owner, torturer and slave trader.
Muslims are not radicalized. They simply get to read the Koran. They either vomit or join ISIS. This is a ticking time bomb. What a Muslim will do after he reads the Koran is unpredictable.
Therefore, we need to destroy the Koran. It is a book that (forgive me) could be called Christophobic because it talks about the “People of the Book” and it talks about beheading us or demanding extortion. This is the crux of the matter.
Destroying the Koran will destroy Islam as collateral damage. Think about that? An attack on hate will bring down the minarets!
Sincerely, Martin
David Quilty says
The MBTA like the rest of the local government isn’t setting limits on Sharia compliance by the public sector…
As far as I can tell these latest developments aren’t being covered in the Boston press. Is a press release going to the local media? This should be a big story in a city that continues to have Islamic conflicts.
With new air routes from Turkey and UAE the visibility of Muslims in the downtown area is increasing. Its time to set limits on Sharia compliance in the public realm.
In Boston the Olympics were rejected because no tax payer money should go for the Olympics…yet Boston supported the Boston Mosque with an illegal sale of below market value land… Is it too late to file a legal challenge to that transfer of land.
Alarmed Pig Farmer says
Define “free”; define “speech”
Oh, the vaunted and august U.S. Supreme Court, manned (or, better put, personed) by attorneys from one of three law schools. This is the crew that just decided that “established by the state” means “established by the state or the federal government” by taking an “adopted reading” of the statute at issue.
There have been many “adopted readings” taken of the Holy Ko-Ran, but only one is allowed by law, Sharia Law, under penalty of death by beheading. The Holy Ko-Ran *is* the law. So look for this crooked crew from Harvard Law Tool Yale Law Tool Columbia Law Tool to adopt a reading of the First Amendment and find that free speech is a mysterious right filled with riddles and enigmas and contradictions and ambiguities that does not allow shouting Fire!!! in a crowded theater or shouting Truth!!! in a nation with a crowd of Moslems.
Clearsighted says
In the last Supreme Court case I handled, I filed the Petition for Certiorari on October 15 and the court entered an order denying the petition on the following February 25, a little over 4 months later.
It is important to understand that when a cert petition (as it is informally called) is filed, the responding party has 30 days to file an opposition to the petition and the petitioner then has 14 days to file a reply to that opposition. Then the court takes about 2 weeks after that to decide. So, the minimum time would be about 60 days. However, either party can ask for extensions of these deadlines which the court usually grants at least once to each party. Further delays can result if interested parties other than the parties to the case request permission to file amicus curiae (friend of the court) briefs in support of or in opposition to the petition.
In my case, the opponent was Eric Holder and the Department of Justice. Based on my October 15 filing, the DOJ’s response was due on November 21. On November 14, DOJ asked for an extension to December 21. On December 19, they asked for a further extension to January 22. On January 22, the DOJ filed its brief in opposition to my petition. I filed a reply brief on February 6. Nobody requested permission to file an amicus curiae breif and the Supreme Court denied the petition 19 days later on February 25.
So, 2 of the 4 months between the original filing of the petition and the court’s denial was eaten up by delays granted by the court to the DOJ.
In AFDI’s case, I would expect it to take 3 to 6 months before the Supreme Court finally decides whether to take up the case or not.
In light of the conflict between the circuits and the constitutional law question presented (two of the factors carrying the most weight in whether the court takes a case), I would be very surprised if SCOTUS denied this petition, especially where the conflict between the circuits is not an even split. It is a lopsided split. The First Circuit is the only one which interprets the First Amendment the way it does. The other circuits take a view more much more favorable to AFDI’s position and much closer to the common understanding of what the First Amendment prohibits.
Unfortunately, going to the Supreme Court is a two-edged sword. Since they are the final court of last resort, if SCOTUS takes the case, their decision is final and applies nationwide. So, if it overrules the First Circuit, that would be great. However, if SCOTUS upholds and affirms the First Circuit’s decision, that might seriously weaken the First Amendment in all those other circuits which are currently more favorable. I don’t see where AFDI has much choice here but that is a risk.
jihad3tracker says
*************** THANKS IMMENSELY, CLEARSIGHTED, FOR THAT COMPREHENSIVE NARRATIVE AND LEGAL BRIEF, SO TO SPEAK ***************
Now, one more favor when you can spare a bit of time : I am not an attorney, but still have a few functioning neurons and the ability to think logically (although some of my friends might vehemently disagree).
I read the cert. petition in its entirety — but skipped any non-quoted judicial references. It seems to me that AFLC has a strong argument for prevalence over the MTA, because —
1. a “core political speech” ad was permitted by the transit authority PRIOR TO the rejection of the AFLC submission
2. the emotionally judgmental (as I would put it) terminology used by the MTA as a basis for denial of acceptance.
SO, WHAT SAY YOU ABOUT THE MERITS OF AFLC’s ARGUMENT AND THE LIKELIHOOD THAT CERT IS GRANTED ?
Alarmed Pig Farmer says
In my case, the opponent was Eric Holder and the Department of Justice.
Ahhh, Eric Holder. He represents all that is possible when you get the right guy in the Attorney General seat. He was able to work with Prez Barack Hussein to align law enforcement with political goals. Dropping the felony case against the racists who stood in paramilitary uniforms holding truncheons at a Philadelphia polling place stands as Mr. Holder’s greatest legal victory. But look for Loretta Lynch to match Eric’s game by not prosecuting individuals in the IRS for committing felony crimes to help rig the 2012 election. Think of this as a gridiron conflict between the Columbia Lions and the Harvard Crimson. It’ll be a game where nobody wins and everybody loses.
And, in the stadium there will cheering those who called for the impeachment and removal of former Attorney General John Ashcroft. Some even called for Ashcroft to be tried for felony crimes and imprisoned. For some reason those same people have been silent during the spectacle of Eric and Loretta.
The Department of Justice needs a new name.
jihad3tracker says
Tom Brady seems to be annoyed enough by the NFL’s suspension affirmation that he might be willing to sneak into that magnificent building SCOTUS took over to use as its locker room —- and deflate some footballs.
Justice Ginsberg was never a great passer anyway . . . I’ve watched her when the Court takes a recess. BTW, didn’t Justice Scalia have an earlier career under the name “Danny DeVito” and do a few seasons on the 1980s comedy “Taxi” ?
And on a semi-related wedge of cheese, I recall a cartoon decades ago, in which a pitcher on the mound is being advised by the coach — with a scoreboard in the background showing that team trailing by eight runs, late in the game. Coach whispers to pitcher, “If you know how to cheat, this would be a good time to start.”
Karen says
This is a wonderful accomplishment (fantastic actually), with every possibility of success. This is essentially two people (and a couple of great lawyers) fighting the entire politico-media alliance. Mr. Spencer and Ms. Geller give me hope for the future! I would nominate them for a Nobel Peace Prize but that would put them in some very unsavory company.
Alarmed Pig Farmer says
Hear hear about the unsavory company part:
Yasser Arafat
Al Gore
Barack Hussein Obama
Paul Krugman
jihad3tracker says
Hello APF — Because you brought him up, I will share a TRUE nugget about Paul Krugman:
A couple of years ago, on an “erotic” member board I visit (STRICTLY TO STUDY HUMAN NATURE’S FOLLIES AND PROPENSITIES) that distinguished munchkin posted contributions under his own name, but with a hilariously fictional thumbnail picture. Sorry, I don’t remember just what it was.
Another member recognized the name, and commented rather waggishly that he thought Nobel Laureates were into BDSM, not the activity being praised by contributors to that particular thread. One of those priceless 21st Century moments — brought to us by Al Gore, who invented the whole apparatus ! ! !
Alarmed Pig Farmer says
… erotic” member board I visit (STRICTLY TO STUDY HUMAN NATURE’S FOLLIES AND PROPENSITIES)
J3, you dog. Me, I’d rather be forcibly converted to the Islam than to visit such a website. Although, I must admit that I have an acquaintance who heard from a co-worker that he had a friend who visited a few of these websites and said that they are fun places.
… brought to us by Al Gore, who invented the whole apparatus ! ! !
I was surprised when Al’s fake lawsuit failed and he lost the presidency that he didn’t return to engineering the Internet, where as its inventor he coulda made billions, but instead chose to enter the discipline of climatology science, one of the toughest fields in existence because it combines physics and mathematics to solve the biggest number of variables known to man.
Al no doubt made this sacrifice to selflessly help save mankind from impending doom, but man what a sacrifice. Instead of billions he’s only made $300 million, that when he sold his climatology TV channel to the Moslems running Qatar, and he did that even though he had to hold his nose cuz that country sponsors Jihad mass murder operations.
Al is a Harvard man, he combines genius with altruistic selfless idealism. He is the best of us.
Karen says
Yes, those are the ones I was thinking of! I would only add Carter and Gorbachev.
EYESOPEN says
Thank you for your efforts, Robert & Pamela! However, if the recent “decisions” coming from SCOTUS are any indication, I wouldn’t hold out much hope.
vyx says
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