Liability For Dark Night Studio Is Unlikely

The American Freedom Defense Initiative recently asked the New York Metropolitan Transit Authority to run this ad on a number of busses in New York City:


The MTA refused, citing its rule against running ads that “contain images or information that demean an individual or group of individuals on account of race, color, religion, national origin, ancestry, gender, age, disability or sexual orientation.” That led to the AFDI filing a lawsuit, claiming that the regulation violated its First Amendment rights. The court agreed, and granted an injunction prohibiting the MTA from enforcing its no demeaning standard. But the court’s path was interesting. It first set about determining whether the ad was in fact demeaning. If the ad was not demeaning, then the MTA would not be able to ban it, with or without the First Amendment. On the point, the court agreed with the MTA. In its view, the ad held up Israel as the civilized man and the supporters of Jihad as the savages. It found that the term “Jihad is widely understood to be a religious doctrine of Islam.” It concluded that a reasonable reader would interpret the ad as depicting Muslims as savages. The court also found that the Web sites listed at the bottom of the ad –, and contained writings that supported the “civilized man versus savages” theme. So having found that the ad was demeaning, the court next needed to decide if the ban violated the First Amendment. And here, the AFDI prevailed. The court found that the MTA was content based – it prohibited speech based on what it said. And it found that it drew impermissible distinctions between demeaning words. So, for example, the MTA rules would permit an ad to demean an idea, but not a person. And it would permit an ad to demean a person, so long as the person was demeaned on some basis other than race, color, etc. So, for example an ad that said something like “Cardinal Fans are Losers” would not only be accurate, but perfectly fine under the MTA rules. I don’t suspect this type of ad contributes much to civility, but it once again illustrates the ongoing vitality of the First Amendment.