On Public Transport: Support Free Speech, Not Hate Speech

I am a strong supporter of the right to free speech guaranteed in the First Amendment to the U.S. Constitution, a principle which is at the very heart of the liberties we enjoy in America. Nevertheless, I applaud the April 28 decision by the Board of the New York City Metropolitan Transit Authority (MTA) to ban all political advertising on its buses and subways, rather than accede to a U.S. District judge's irresponsible ruling that the MTA must allow an inflammatory ad that defames Muslims and appears to incite violence against Jews. Hopefully, the decision by the MTA to take a necessary action that sadly limits political speech will trigger a reappraisal through which the American legal system begins to make a clearer distinction between free speech and hate speech.

Allow me to briefly run through the chain of events that led us to this pass. The 9-2 decision by the MTA Board to ban all political advertising came several days after U.S. District Judge John Koeltl ruled that the MTA must run an ad by Pamela Geller's American Freedom Defense Initiative on New York City subways and buses featuring a photo of a sinister-looking man in a checkered keffiyah and the words, "Killing Jews is worship that draws us closer to Allah." The ad, which cites Hamas MTV as the source of its quote, closes with the noxious tagline, "That's his jihad. What's yours?"

In rendering his ruling, Koeltl airily dismissed the expressed concern of the MTA that the ad might trigger violence against Jews; arguing that MTA officials "underestimate the tolerant quality of New Yorkers and overestimate the potential impact of these fleeting advertisements." He added, "There is no evidence that seeing one of these advertisements on the back of a bus would trigger a violent reaction. Therefore, these ads--as offensive as they may be--are still entitled to First Amendment protection."

Geller immediately hailed the ruling as a victory for free speech and vowed to run up to 100 of the ads on buses and subways around the city. Feeling that it had been left with little choice, the MTA board scotched Geller's plan by voting 9-2 to ban all political advertising, starting with the Geller ad. That decision puts New York in line with the transit systems of Philadelphia, Chicago and Los Angeles, which have also banned political advertisements. As MTA General Counsel Jerome Page explained, "We drew the line when we thought our customers, our employees and the public were in danger. We thought the judge gave short thrift to those concerns."

Indeed he did! Koeltl's protestations to the contrary, there is plenty of reason for concern that the Geller ad might incite a person or persons already consumed with hate for Muslims or Jews to physically accost a hijab-clad woman or a man in a yarmulke or, God forbid, act out their bigotry with a gun. There have been numerous bias crimes on the New York subway in recent years; with some rising to truly horrific levels, like the incident in 2012 in Queens when a woman pushed a man in front of an oncoming train to his death because she hated Muslims (the victim was, in fact, Hindu) (1). Back in 2007, my own organization, the Foundation for Ethnic Understanding, honored Hassan Askari, a Bangladeshi Muslim student who valiantly jumped to the aid of three Jews who were accosted and beaten up on the subway by a gang of skinheads who shouted anti-Semitic slurs. In addition to Jews (2) and Muslims, gays (3), Asian-Americans (4) and others have been savagely attacked in bias crimes on the subway.

It is deeply troubling to me that Geller has won numerous court cases, not only in New York, but other cities, that have forced transit systems to run her hateful ads presenting Muslims as "the savage", among other epithets, and blatantly seeking to stoke conflict between Muslims and Jews. To be clear, I am not arguing that Geller should be banned from expressing her views. She certainly has the constitutional right to put up a website and to offer her anti-Muslim screeds for publication in various media. I believe strongly, however, that public transportation systems, which are owned and operated by cities made up of people from diverse racial, ethnic and religious backgrounds and sexual orientations, should not be compelled to run ads like those of Geller, that attack any of those communities.

As stated, the most pressing reason a ban is needed is that such ads may provoke already hateful and possibly deranged people to commit acts of life-threatening violence. Yet there is an even more profound issue at stake; namely that such ads send a frightening message to members of the group being rhetorically attacked that his or her community is considered fair game and that said rhetorical attack is sanctioned by the authority of the state. Yes, a transit authority may place in small letters at the bottom of an anti-Muslim Geller ad that it does not necessarily agree with the content; but the overall message is clear: Islamophobia is acceptable in the public square. That is a profoundly cruel and alienating message that Muslim-Americans, like other Americans, should not be compelled to endure.

In short, the act of placing Geller's ads on subways and buses crosses the line between free speech and hate speech and amounts to state-sanctioned incitement against specific religious communities. It is time for judges and legislatures alike to recognize that distinction, and therefore to render decisions and pass laws that make possible political speech in the public square--including bus and subway ads--but ban ads that stir up hatred or violence against any and all members of the American family.

Rabbi Marc Schneier is President of the Foundation for Ethnic Understanding and co-author of Sons of Abraham: A Candid Conversation About the Issues that Divide and Unite Jews and Muslims.
1. Woman accused of murder as a hate crime in NYC subway push death, 12/30/2012, http://www.cnn.com/2012/12/29/justice/new-york-subway-death/

2. Muslim Aids Jews Attacked on N.Y. Subway, 12/15/2005, http://www.cbsnews.com/news/muslim-aids-jews-attacked-on-ny-subway/

3. Man in Subway is Injured in Antigay Attack, Police Say, 03/06/2014, http://www.nytimes.com/2014/03/07/nyregion/man-injured-in-gay-bias-attack-in-greenwich-village.html?_r=2

4. Sunday's attack means last 3 victims killed in NYC by being pushed into subway tracks were all Asian American men, 11/17/2014, http://reappropriate.co/2014/11/sundays-attack-means-last-3-victims-killed-in-nyc-by-being-pushed-into-subway-tracks-are-all-asian-american-men/