Ought there be a Limit on Free Speech in the Subway?

The subway is a public forum of sorts; it is a place where people of all races, religions, and classes intermingle, where commuters read their newspapers, gripe about the weather, and sometimes even wade into vigorous debate about the grand issues of the day. Without a doubt, the subway is a part of the public sphere where speech is protected by the First Amendment – to a reasonable degree.  

        However, subway cars, platforms, stairwells and tunnels were built by cities to move people from point A to point B as quickly and safely as possible. Speech activities are not as protected on the subway to the degree that they are in the public square. Likewise, the New York MTA prohibits canvassing, soliciting, leafleting, blasting loud music, and any other sort of disorderly conduct “which may cause or tend to cause annoyance, alarm, or inconvenience to a reasonable person or create a breach of the peace.” And the unwritten rules of subway etiquette include that one ought to refrain from giving co-riders eye contact – let alone get up in peoples’ faces and egg on a fight.

Enter stage right the ‘American Freedom Defense Initiative' (i.e. professional Islamophobe author Pamela Geller) and (her) now-infamous “Civilized Man” ad hanging in certain New York, San Francisco, and Washington public transit stations specifically selected for their proximity to Jewish and Muslim communities.

 

              You don’t have to try very hard to connect the dots in Geller’s crude analysis. Geller all but explicitly proclaims: “Muslims are a bunch of savages”, or “Palestinians are a bunch of uncivilized sub-humans”; “Israeli Civilization is at war with them, so you should fight them too.” Why does she want to do this? Pamela Geller runs a blog Atlas Shrugs where she documents her thesis that all Muslims are violent “savages” and that Judeo-Christian White America ought to take the offensive against these undermenschen in a Clash of Civilizations. There is not enough sectarian warfare in the United States for Geller to make a convincing argument, so Geller stitched together a message unarguably intended to offend, to provoke vandalism, and to create for herself more opportunities to find photos of Muslims standing around, looking angry and menacing in your subway! Like the “Innocence of Muslims” YouTube video, this is a perfect example of trolling – the “Civilized Man” poster was made for the express purpose of pushing people to commit acts of violence.  

Not without ample justification, the New York MTA originally rejected Geller’s “Civilized Man” ads, citing the agency’s advertising policy which prohibits any advertisement “that demean(s) an individual or group of individuals on account of race, color, religion, national origin, ancestry, gender, age, disability, or sexual orientation.” However, Geller’s AFDI sued the MTA, pleading for a preliminary injunction to strike down the “no demeaning” standard.

               Quite consequently, the MTA had already been in the business of selling ad space to groups - including Geller's - advocating certain positions on the Israeli-Palestinian conflict. Witness the progress of the spillover of the Israeli-Palestinian conflict on US metro transit authorities over the past few years:

A pro-Palestinian group put this poster went up in Washington-area trains and buses in 2011. The policy objective of the above is radical by any standard. But of course this is political speech protected by the First Amendment. It’s even gosh darn polite.

Another pro-Palestinian group decided to push the envelope a little further.

This ad generated plenty of controversy in the New York metro region; the MTA received thousands of complaints, my local Assemblyman Robert Castelli made a push to get the MTA to take the posters down from Metro-North stations, reasoning that though “there is no offensive language in the message”, “by its very nature, it is inflammatory an directs a negative message toward Israel and her people.” The MTA didn’t budge. Some Zionist groups went berserk.

                Just like the legitimate debate over Israel and Palestine’s borders has been hijacked by racial extremists on both sides, Pamela Geller sought to throw a Molotov cocktail into the debate to extinguish all civil discussion. Completely bypassing reasonable dialogue on U.S. foreign policy, Geller appealed to the vilest of strategies in political rhetoric:thinly-veiled white supremacy.
 

Surely there is a difference between Geller’s ad and the prior two not just in perspective but also in tone and substance. The first two might be thought-provoking, particularly controversial. But the “Civilized Man” ad went out of its way to be offensive. Unfortunately/fortunately (depending on your perspective), that's not a distinction that the First Amendment permits the government to make.

 In American Freedom Defense Initiative v. MTA, U.S. District Judge Paul Engelmayer ruled for Geller, reasoning that the MTA had created a public forum, the MTA had sold ad space to pro-Palestinian groups, the MTA can’t engage in viewpoint discrimination and allow ads espousing one opinion and rejecting those of another. If the MTA is going to sell ad space, the state may not put its thumb on the scale of the free marketplace of ideas and allow one viewpoint but prohibit another. The majesty of the First Amendment entails that if the city is going to grant the NAACP a permit to parade in Central Park, it has to also grant a permit to the Aryan Nation.

                Moreover, the MTA “no-demeaning” rule was only applicable to language demeaning of members of the enumerated groups, and thus it was not narrowly-tailored to meet any justifiable end. As Engelmayer reasoned, according to the MTA rule an advertiser would be perfectly free to state “Southerners are bigots”; “Upper West Siders are elitist snobs”; “Fat people are slobs”; “Blondes are bimbos” or “Lawyers are sleazebags” – language demeaning of certain classes of people – so long as it did not demean classes of people on the basis of race, religion, gender, sexual orientation, etc. The MTA policy regulated the content of speech in a way that was not inconsistent with the First Amendment. The ads went up last month.

              In American Freedom Defense Institute v. WMATA,Pamela Geller waged a slightly different lawsuit against the Washington-area public transit authority, which refused to put up her “Savage” ads not for demeaning language but for security reasons. WMATA lawyer Philip Straub invoked the then-still-ongoing mob violence and terrorist attacks on U.S. diplomatic personnel aroused by the “Innocence of Muslims” YouTube video. He even cited the Department of Homeland Security, which had notified the transit authorities that such an ad could increase the threat of terrorism in the Washington metro. According to Straub, DHS advised WMATA that the “Savage” ad “could not be displayed in our system until passions have cooled somewhat.”

Straub also argued that they agency could reject the “Civilized Man” ad under the “fighting words” doctrine. It is not difficult to see how Geller’s ad can be interpreted as falling into this category of “fighting words.” As Justice Frank Murphy articulated the exception to the First Amendment in the classic case Chaplinsky v. New Hampshire:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words which by their very utterance inflict injury or tend to incite an immediate breach of the peace.

Referring to Palestinians/Arabs/Muslims as “savages” is unarguably insulting, profane and libelous. But Geller did much more than that – but she called for subway passengers to side with Israel in the war against those “savages”. How ought we engage in such ethno-sectarian warfare against the “savages”? The AFDI’s innuendo-filled call to arms is reminiscent of the anti-Tutsi propaganda Radio Mille Collines’ broadcast during the Rwandan genocide; it came in coded phrases; “Cut down the tall trees!” and “Exterminate the cockroaches!” The ad doesn’t give explicit instructions – it doesn't say "Punch a Muslim!" or "Graffiti a mosque!" it lets its readers come to their own conclusions.  

In the end, U.S. District Court Judge Rosemary Collyer granted the American Freedom Defense Institute’s request for a preliminary injunction on the grounds that the WMATA’s fear of mob violence in the DC Metro was too vague and speculative. According to the Brandenburg Test, the government cannot restrict speech unless it carries:
1. the intent to incite violence;
2. the violence must be imminent; and
3. there must be a distinct likelihood that the speech will proximately cause violence.

Geller’s ad fulfills the Intent element, but even though the Department of Homeland Security had feared the possibility of terrorist reprisals, the mere fact that that the transit authority feared that someone could be whipped into violence was insufficient grounds for censorship.  

In the wake of these rulings, the transit authorities of New York, DC, and elsewhere are posed with a quandary; so long as they sell ad space along subway tunnels and the sides of buses, is there any way or the state agencies to regulate content without running afoul of the Constitution? According to Judge Engelmayer and Collyer’s decisions, say the local Neo-Nazi organization wants to put up a recruitment poster saying “Those greedy, hook-nosed shysters took your job and took your house. Take one of their silly hats!” Suppose the Klu Klux Klan wants to put up ads saying: “Those lazy bums are mugging you and stealing your hard-earned tax dollars to buy crack and grape soda. Fight back!” Is the MTA powerless to resist?  Must our trains and buses become receptacles for the absolutely most scurrilous vitriol? Do we subway commuters have to participate in this sociological experiment against our will?

In response to the federal court decision, the New York MTA board adopted by a vote of 8-0 a new policy banning any advertisement that the MTA board “reasonably foresees would imminently incite or provoke violence or other immediate breach of the peace.” Essentially, the new rule would ban “trolling” in the limited public forums of subway ad space.  

But when is speech “trolling”? It’s hard to lay out scientific parameters, but society has caught wind of the subset which gets its perverse kicks by throwing out incendiary words just short of being “fighting words” per se. Indeed, the sine qua non of trolling is that it doesn’t explicitly exhort the masses to commit murder and mayhem, but it drives right up to that line of sowing hatred and provoking violence with full knowledge that that is enough to achieve the intended result. And just before a troller actually becomes a co-conspirator in the violence which will foreseeably ensue, the yellow-bellied bastards tweak their speech just enough so that it is protected speech and they can hide behind the aegis of the First Amendment. Trolling is rather amorphous, inherently vague and difficult to define – but it is certainly identifiable on a case by case basis. Like how Justice Potter Stewart defined pornography, “I know it when I see it.”

Harvard Law Professor Alan Dershowitz immediately cried foul at the MTA’s new anti-trolling rule.  “A. it’s clearly unconstitutional” he said, and “B. it incentivizes people to engage in violence. What it says to people, is that if they don’t like ads, just engage in violence and then we’ll take the ads down.”

I’m afraid that Dershowitz might be right on this one. According to Brandenburg v. Ohio, the government cannot punish even inflammatory speech unless that speech is directed to inciting, and is likely to incite, imminent lawless action. Even if Geller’s“Civilized Man” ad or Bacile’s “The Innocence of Muslims” were created with the express intent of inciting Muslims to violence, even if a violent reprisal is reasonably foreseeable, it’s very difficult burden for the state to prove that any such violence is both likely and imminent. Because it is indeed carefully threaded so as to comply with constitutional law, trolling might be just as much protected speech as is picketing a military funeral or burning an American flag.

So the sad fact of the matter is that Pamela Geller is like a bad case of anal warts – polite society might not have any effective remedy to make her go away, and we’re going to have to learn to live with her uncomfortable, obnoxious presence. Part of the deal of living in a free society is that we have to tolerate ideologues of intolerance, whether they be the Klu Klux Klan, the Aryan Nation, the Thirteenth Tribe, or the American Freedom Defense Initiative.

The silver lining is that even though Pamela Geller and her cohorts of hatemongers may have won their First Amendment case, it’s a very Pyrrhic victory. In winning the right to put up the “Civilized Man” poster, now the ‘American Freedom Defense Initiative’ has only won the opportunity to compete in the marketplace of ideas. And their ideas are losing. Big time. Mainstream liberal and even conservative Jewish voices including Rabbi Richard Jacobs – the leader of the Reform movement, the Jewish Federation, the Anti-Defamation League, et al., are unanimously horrified by how low Geller has stooped in her so-called “pro-Israel” advocacy. Pamela Geller may have won the battle to put up her racist placards, but in doing so, she’s really helping the Jewish Right lose the war for the hearts and minds of America’s Jewish youth. When self-proclaimed defenders of Israel denigrate Palestinians as “savages”, and make crude appeals to “civilization” i.e. white solidarity, they have lost an entire generation of American Jews. Thanks to this “Civilized Man” ad, showing just how race-baiting and fear-mongering “pro-Israel” advocacy can be, many Jews are probably going to be much more wary of the Jewish Right and its Willie Horton-like scare tactics.
 

When the dust has settled, it looks like Geller’s foray into the marketplace of ideas may just completely backfire. The ruckus over the despicable “Savage” ads are encouraging fair-minded Jews to speak up, to call out Islamophobia and racism amongst our own ranks, and we're much less scared of advocating for for a sane, peaceful diplomatic policy in the Levant for fear of being labeled "anti-Israel." When I read the literature of America’s new voices, I hear calls for a new identity of Jewish Americans based on tolerance, reconciliation and peaceful relations with other faiths and cultures. Most important of all, Pamela Geller may have inadvertently highlighted the imperative for civil negotiations over the Mideast conflict, leading to an independent Israel and Palestine, living together, side by side, in security and in peace. 

On Presidents, Palestinians, and the Jewish Vote

This is an election year, so it should come as no surprise that presidential aspirants are busy pandering to every strategic voting bloc, including the large populations of Jewish voters in New York, New Jersey, California, Pennsylvania, and Florida. Appealing to Jewish voters on the subject of Israel is nothing new – shtetl politicians have campaigned on this salient issue as long as there has been a Zionist movement. However, what is new in this election cycle is the unprecedented degree of gutter politics and general nastiness that the discourse on Israel has acquired.

At the Republican Jewish Coalition forum, Congresswoman Michele Bachmann thundered that Israel should cede “not one acre, not one square foot, not one inch” to the Palestinians in order to make peace.

Governor Rick Perry declared that the Israeli settlements in the West Bank are actually legal, “and I support them.”

Newt Gingrich claimed that the Palestinians are an “invented people” – with the implication that if the Palestinians are not a true nation then they cannot have a nation-state.

Rick Santorum went even further, claiming, “All the people that live in the West Bank are Israelis. They are not Palestinians. There is no Palestinian. This is Israeli land.”

Putting these statements together, one sees a Republican foreign policy platform which does more than simply repudiate the “Land for Peace” premise of U.S.-led peace negotiations between Israel and her Arab neighbors – it repudiates the very notion of a peace process altogether. The GOP presidential aspirants wish to reverse the longstanding U.S. policy of opposition to the illegal Israeli settlements in West Bank territory and now actively endorse continued colonial expansion. The foreign policy which these candidates espouse is a radical abandonment of U.S. policy for the past 45 years – including the foreign policies of the Nixon, Reagan, and both Bush administrations – and a substitution of the religiously and racially exclusivist ideologies of Revisionist Zionism in its place.

Why would candidates for leader of the free world stoop to such lows? Karl Rove and the greater Republican National Committee believe that by making Israel into a wedge issue, GOP candidates can peel off some of the 78% of Jewish voters who voted for Barack Obama in 2008. GOP strategists believe that they might have found a winning strategy in pandering to the basest fears of the collective Jewish psyche: our instinctive paranoia of Arabs, Muslims, and anyone otherwise resembling Yasser Arafat. Such Palestinian-bashing is a reprehensible tactic which all advocates of tolerance and basic decency must condemn. Tragically, it might win Mitt Romney a few votes, it might even flip a few Hasidic communities to the GOP tent for good.

One should expect such below-the-belt jabs from the folks who brought you the “White Hands” ad and Willie Horton. But what is concerning is that the Democratic National Committee might take the bait and try to out-pander the panderers. One might hope that Democratic candidates will not join this race to the bottom in Palestinian-bashing because they are too good for that kind of gutter politics.

One might even hope that the enlightened Democrats might get the memo that the State of Israel is not the only matter of interest to each and every one America’s 6,544,000 Jews. It is insulting to think that a politician can buy our votes with a pledge for more reflexive embrace of everything the Netanyahu administration says and does in the same manner as, say, one stumps for votes among Iowan farmers by promising more subsidies for corn.

Zionism and diplomatic support for the State of Israel have always been an undercurrent in Jewish-American politics, but it was never the end-all-be-all until relatively recently. Not too long ago, candidates campaigned in Jewish neighborhoods in Park Slope and Brookline by stumping on the issues most relevant to a then-largely working class demographic; unionism, wages, and pensions, immigration reform, civil rights legislation. However, with the passing of generations, the bulk of us have moved from the ghettoes to the wealthy suburbs, and there is no longer a distinct economic pitch to appeal to both the seamstress in South Williamsburg who makes $22,000 a year and the bond trader in Greenwich who makes $2.2 million. Thus Jewish-American politics has been reduced to Israel: the one issue which (ostensibly) unites us all.

Nevertheless, in our day-to-day conversations, American Jews are more concerned about the job market, fairness in the tax code, the cost of health insurance, the quality of our environment. We are disproportionately in favor of taking measures to curb global warming, reforming our criminal justice system, and creating a pathway to citizenship for illegal immigrants. Why don’t candidates for public office come to our congregations and campaign on these issues which actually affect our lives, the lives of our friends and family members a whole lot more than a foreign country two continents and an ocean away? Of course, we will always have a special sense of sympathy for the Jewish State. But if we are going to speak about foreign policy, Israel is but one of 195 foreign countries (196 if you count Palestine) with which we are concerned.

If presidential candidates are going to speak to a Jewish audience on Israel and Israel alone, then they might as well appeal to our greatest hopes instead of our darkest fears. According to a 2011 J Street poll, the vast majority of American Jews want a U.S.-brokered solution to the Israeli-Palestinian conflict (83%), and for the Obama administration to offer a peace plan that proposes set borders and security arrangements (70%). A healthy majority of American Jews even back a peace plan based on the 1967 borders with mutually agreed-upon land swaps (57%). If politicians are going to campaign for Jewish voters on Israel, they ought to pledge to sit down with Netanyahu and Abbas and hammer out a peace deal for once and for all.

Sure, 17 percent of American Jews are opposed to the Middle East peace process - just as 18 percent of American Jews are opposed to equal rights for gays and lesbians, 22 percent of American Jews thought that Sarah Palin should have been the Vice President, and there are even some of us who think there should be segregation on public transportation. But Democratic politicians have no obligation to kowtow to these forces of reaction, the very most closed-minded minority of my people - because they're Republicans. The DNC ought to accept this reality, move on, and campaign to the vast majority of Jewish voters who support a U.S.-brokered peace process.

Making peace in the Middle East is not a campaign liability which candidates ought to run away from – it is a badge of honor which Democratic Presidents ought to embrace. The legacy of Democratic administrations vis-à-vis Israel is not limited to Harry Truman’s recognition of the Jewish State in 1948. The greatest foreign policy achievements of Democratic administrations include Lyndon Johnson’s support for Resolution 242 in the United Nations, Jimmy Carter’s brokering of the Camp David Accords between Israel and Egypt, Bill Clinton’s facilitation of negotiations over the Israel-Jordan peace treaty and the Oslo Accords between Israel and the PLO. The majority of Jewish voters want to see Barack Obama live up to this long legacy of Democratic achievement and oversee peace negotiations leading to a two-state solution in which the nations of Israel and Palestine are living side by side, in peace and security. That’s the kind of change we can believe in.