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American Freedom Defense Initiative v. Washington Metropolitan Area Transit Authority

United States District Court, District of Columbia

October 12, 2012

AMERICAN FREEDOM DEFENSE INITIATIVE, et al., Plaintiffs,
v.
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, et al., Defendants.

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[Copyrighted Material Omitted]

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David Eliezer Yerushalmi, Chandler, AZ, Robert J. Muise, American Freedom Law Center, Ann Arbor, MI, for Plaintiffs.

OPINION

ROSEMARY M. COLLYER, District Judge.

Plaintiffs contracted with the Washington Metropolitan Area Transit Authority (" WMATA" ) to display an advertisement in four 43 x 62 inch dioramas on subway platforms. The ads state:

IN ANY WAR BETWEEN THE CIVILIZED MAN AND THE SAVAGE,
SUPPORT THE CIVILIZED MAN.
SUPPORT ISRAEL.
DEFEAT JIHAD.

The ads were to be displayed for approximately one month starting on September 24, 2012. Before that date, however, an American-made movie trailer that disgraced the Prophet Mohammad went viral on the Internet and caused large and dangerous anti-American demonstrations across multiple continents. Advised by the Department of Homeland Security (" DHS" ) to be wary of a risk of violence in the United States and abroad in response to the video, warned by the Transportation Security Administration (" TSA" ) that the Metro subway is a unique target for terrorist attacks, and knowledgeable about previous threats to the Metro subway, WMATA advised Plaintiffs that it would postpone display of their ad. Plaintiffs promptly sued. The matter proceeded to hearing on Plaintiffs' motion for a preliminary injunction on October 4, 2012.[1]

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It cannot be said that WMATA acted unreasonably in considering the degree of anti-American anger roiling the Muslim world, previous threats to the subway system, the immediate advice from DHS and TSA, and its paramount responsibility to the safety of its passengers, when it decided to postpone display of Plaintiffs' advertisement. In the face of protected speech, which the Court finds is a combination of political speech in favor of Israel and hate speech directed to Muslims, WMATA certainly presents a compelling government interest in the safety of its passengers and employees. However, its concerns— no matter how rational— were prompted by the content of Plaintiffs' advertisement. And, even if WMATA's concerns were sufficiently compelling to support a content-based restriction on speech, the Court concludes that WMATA's failure to consider alternative placements plus the open-ended and purely subjective duration of its postponement were not narrowly tailored as required.

The Court therefore ordered WMATA to display Plaintiffs' ad no later than 5 p.m. on Monday, October 8, 2012. See [Dkt. 16]. This Opinion explains its rationale. The parties have requested that the Court enter a permanent injunction and a final ruling with this Opinion, which it will do.

I. FACTS

Plaintiff American Freedom Defense Initiative (" AFDI" ) is an advocacy organization whose self-described mission is to " go on the public relations offensive when ... actions are taken to dismantle our basic freedoms and values." Am. Compl. [Dkt. 9] ¶ 7. Plaintiff AFDI purchases advertising space on transit authority property in major cities in the United States to express its message on Islam, sharia, Israel, and the Middle East. Plaintiff Pamela Geller is the Executive Director of AFDI, and Plaintiff Robert Spencer is the Associate Director. Plaintiffs brought this suit against Richard Sarles, the General Manager and Chief Executive Officer of WMATA.[2]

Sometime before September 6, 2012, Plaintiffs submitted their advertisement to WMATA. See Opp'n [Dkt. 13], Ex. H (" AFDI Ad" ). The text of the message is emphasized by the use of white, blue, and red color, in turn, for each sentence. The same ad ran already on public buses in San Francisco and, after months of litigation, began running in subway stations in New York City on September 24, 2012. See Am. Freedom Def. Initiative v. Metro. Transp. Auth., No. 11 Civ. 6774, 880 F.Supp.2d 456, 2012 WL 2958178 (S.D.N.Y. July 20, 2012). Plaintiffs proposed to move their messages to Washington, D.C., by displaying the ad on four free-standing dioramas on WMATA subway platforms. That location provides a venue for large ads that are illuminated and, therefore, quite prominent. See Opp'n, Ex. I (" Ad Agreement" ).

WMATA previously has accepted advertisements on controversial subjects and does not deny that it is a government actor to which the First Amendment applies. See Opp'n, Exs. B-G (examples of ads

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posted in WMATA advertising space covering a wide-range of political and public issues). When CBS Outdoor, WMATA's advertising agency, notified WMATA of the controversial nature of the ad, WMATA's Office of General Counsel reviewed the ad, noted its First Amendment protections, and authorized its display. See Opp'n, Murray Aff. ¶¶ 7-8. On September 6, 2012, Plaintiffs executed a contract with CBS Outdoor to display the ads from September 24, 2012 until October 21, 2012. See Ad Agreement. All of this occurred before violence erupted abroad in response to the American-made amateur movie trailer (" video" ) that depicted the Prophet Mohammad in scandalous ways.

The 14-minute video provoked anti-American demonstrations from Africa to the Middle East and Indonesia and, notably, appeared to have provided cover for a terrorist attack on the U.S. consulate in Benghazi, Libya, on September 11, 2012, that took the lives of four Americans, including the Ambassador. [3] In light of these escalating events, WMATA evaluated the safety risks of running the ad. WMATA contacted TSA, which expressed its concern about running the ad at the scheduled time because the D.C. Metro could become an even greater target for terrorist attacks given recent world events. See Opp'n, Taborn Aff. ¶ 8 (" The TSA Officials were concerned that WMATA's Metrorail system is a unique target because of its close association with the federal government, both because so many stations are located adjacent to landmark federal facilities and because the Metrorail system carries such a high percentage of the federal workforce resident in this area to work on a daily basis." ). WMATA also received ...


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