When a Judge Defends the First Amendment

Last month the attempt by Pamela Geller to display her anti-jihad posters in the Washington Metro resulted in a legal battle, with the Metro Authorities attempting to avoid putting up material they considered incendiary. Ms. Geller eventually prevailed in court, and WMATA was ordered to allow the posters to be displayed.

Here’s a report with the details on the judge’s decision, courtesy of The Legal Project:

When a Judge Defends the First Amendment
by Adam Turner

On October 4, 2012, a First Amendment free speech case was argued before the U.S. District Court for the District of Columbia. Pamela Geller, a prominent blogger and activist, had — through her organization called the American Freedom Defense Initiative — paid for ads to run on billboards in the Washington DC metro that said: “In any war between the savage and the civilized man, support the civilized man. Support Israel. Defeat Jihad.”

These ads, Ms. Geller said, were in response to an earlier group of posters that were put up in DC that called for an end to all U.S. aid to Israel. On September 6, 2012, the Washington Metropolitan Area Transit Authority (WMATA), contracted with Geller to put up her ads for one month. Then, on Sept. 18, the WMATA informed Geller that “due to the situations happening around the world at this time,” i.e., the demonstrations and attacks supposedly caused by an American film deemed to be “anti-Muslim,” the ads would be postponed until “a future date to be determined.” (Case 1:12-cv-01564-RMC, Pg.5) More specifically, the WMATA claimed that it had received intelligence from government agencies that these ads would prompt Islamist violence against the subway, as well as a threatening email, and, so as to not endanger the public, the WMATA decided to delay them until some time when the threat of violence would subside. Ms. Geller naturally objected and asked the court for an injunction to force the billboards to go up, leading to the court appearance.

The case, American Freedom Defense Initiative, et al. v. Washington Metropolitan Area Transit Authority, was argued before Judge Rosemary Collyer by the lawyer for the WMATA, Philip Staub, and the lawyer for Ms. Geller, Robert Muise, of the American Freedom Law Center. After a short two hours (plus), Judge Collyer announced she had heard enough. She also said she would recess to consider the arguments and the court debate before announcing her decision. Just a day later, Judge Collyer issued an order for the billboards to go up no later than 5pm, Monday, October 8. Her full written decision was released on October 12.

The WMATA made two arguments in favor of exempting this speech from the protections of the First Amendment. They also argued that, assuming the judge found that the speech was indeed the type of speech protected under the Constitution, that prior U.S. cases nevertheless allowed them to restrict it by delaying the placement of the billboards. None of these arguments, however, was particularly convincing.

The WMATA claimed that the language of this ad falls into the legal category pf “ fighting words,” a judicial doctrine which holds that speech that incites an immediate breach of peace is not afforded First Amendment protection. Judge Collyer was noticeably skeptical of the WMAT’s attempt to apply the doctrine. This was unsurprising as the fighting words doctrine — which originates from the Supreme Court 1942 decision of Chaplinsky v. State of New Hampshire — has never successively been applied. The fighting words doctrine originally found that those words “which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace,” were not protected under the First Amendment. This holding showed two types of “fighting words,” as denoted by the use of “or.” However, subsequent case law effectively invalidated the first type of “fighting words,” leaving the following definition for “fighting words” — words that tend to incite an immediate breach of the peace. Judge Collyer held that the language of this ad was not “fighting words,” as there was no “immediacy” to the potential breach of the peace here.

The WMATA also attempted to claim that its restriction was merely an example of a “content-neutral” restriction, an argument which is, on its face, intellectually dishonest. A content-neutral restraint has been defined by the Supreme Court — in the case City of Renton v. Playtime Theatres, Inc. — as a regulation that is “justified without reference to the content of the regulated speech.” In other words, the speech is being restricted not because of what it says, but for some other reason(s). A good example of such a content-neutral regulation would be a city code that prevents loud noises, such as music, from being played in a neighborhood after a certain time. Like virtually all court created rules, this rule required that the restriction had to be found to be “reasonable,” i.e., it was ok based on the judgment of the normal, everyday, reasonable person. Considering the focus the WMATA had already made on the content of advertisement, Judge Collyer was even more dismissive of this argument, and held that the regulation in question was instead “content-based.”

Having dealt with the two main arguments by the WMATA, Judge Collyer then examined the regulation, under the “strict scrutiny” test, to see if it was Constitutional regulation of free speech. This legal test demanded that the WMATA “demonstrate that it (the regulation) was “necessary to serve a compelling state interest and… narrowly drawn to achieve that end.” (Perry, 460 U.S. at 45) WMATA posited the safety of its passengers and its employees as the compelling interest which justified its temporary restriction on Plaintiffs’ speech. She agreed with them here. However, Judge Collyer did not believe that the decision — to delay the billboards indefinitely — was sufficiently narrowly drawn. Even when the WMATA altered their stance so that the posters would go up on November 1, she still felt that the WMATA could have tried less drastic measures, such as 1) moving the posters away from the tracks, obviated their concerns about someone falling down on the tracks during an argument, or 2) putting a disclaimer on the billboards to distance themselves from the ads. Thus, the delay was unconstitutional.

Although we at the Legal Project believe that the ruling by Judge Collyer was correctly decided, we were dismayed by some of her comments from the bench and from her written decision. In both, Judge Collyer spent time discussing the concept of “hate speech,” and made it quite clear that she disapproved of it in general. She also made it clear that she felt that Ms. Geller’s billboard was an obvious example of hate speech. Now, for those not familiar with this concept, hate speech is defined “as utterances, displays, or expressions of racial, religious, or sexual bias.”

Hate speech is outlawed by many nations throughout the world, including in much of Europe. However, in the U.S., the First Amendment protects most speech, even hate speech, as long as it does not incite immediate violence. For a U.S. judge to apologize for applying First Amendment jurisprudence and feel it is necessary to state she disagrees with the content, shows a lack of fidelity to the Constitution. There is an ever growing movement by many in the judicial world to create a unique prohibition against speech that is deemed offensive to the sensibilities of various minority groups, most especially Muslims. This could eventually culminate in the Supreme Court manufacturing some rationale that creates a doctrine which is amenable to Islamic Law’s (i.e., Sharia) unflinching rebuke of free expression.

Unlike the rest of the world, the United States values free speech, and defends it as an inherent civil right. Now is not the time to go soft on this principle in order to cower to Islamists.