As a frequent rider of Metro-North and (I’d like to think) a scholar of international law, I feel as if it is my duty to comment on the competing, politically motivated advertising campaigns lining the New Haven and Harlem lines. The current crop of ads, as reported by the Connecticut Post, “include the slogan ‘It’s not Islamophobia, It’s Islamorealism,’ in red lettering on a black background. . . . Above the slogan, the poster lists the number 19,250, the purported number of terrorist attacks carried out by Islamic extremists since the Sept. 11, 2001, terrorist attacks.” These ads were purchased by the group American Freedom Defense Initiative (or AFDI), “. . . a human rights organization dedicated to human rights, the rule of law, the dignity of the human person, free speech, the free conscience, and equality of rights for all.” According to the Connecticut Post article, the ads were “. . . bought to counter a round of platform advertisements critical of Israel that were financed by retired Wall Street broker Henry Clifford of the Committee for Peace in Israel and Palestine.”
Now, I do not wish to comment on the substance of the advertisements in this post. I think the advertisements speak for themselves. Rather, I wish to discuss the free-speech implications of the campaigns. Currently, a case is pending in the Southern District of New York that addresses the free-speech issue. Last month or so, U.S. District Court Judge Paul Engelmayer issued a preliminary injunction finding the MTA violated the AFDI’s free speech rights by refusing to allow an advertisement to be placed on the side of MTA buses it considered discriminatory against Muslims. In his opinion, Judge Engelmayer held in part that, “the Court agrees with AFDI that [advertising space on the exterior of MTA buses] is a designated public forum, in which content-based restrictions on expressive activity are subject to strict scrutiny.” Anyone who paid the least bit of attention in Con Law can tell you that if the court decides to impose a strict scrutiny standard to content-based restrictions on expressive activity, the restrictions are very likely going to be found violative of the 1st amendment, as was the case in Judge Engelmayer’s opinion.
What I think about all of this:
First of all, despite my interest and views on the Middle East conflict, I am personally offended by both of these campaigns. They are both extremely, and in my view unnecessarily, incendiary. I am confident I speak on behalf of the majority Metro-North riders when I say that we very much value quiet and being left to our own devices during our commutes. Many of us take the train on a regular basis to spend long, arduous hours at our jobs and/or schools, and the last thing we want at the end, or beginning, of our days is to have someone get up on their soapbox and proselytize. We just want to be left to ourselves. All we really ask for is quiet.
Nevertheless, I believe Judge Engelmayer got the law right. It seems clear to me that the side of an MTA bus is a public forum, meaning a strict scrutiny test is warranted. So, bottom line, even though I would much rather see ads for accountants or vacations in New Hampshire during my commute, I believe the AFDI and the Committee for Peace in Israel and Palestine should be able to put up their posters if they feel so inclined.
But what do others think? Specifically, if you are a regular commuter like myself, I’d like to hear your take on these campaigns.