Testimony from an expert witness regarding the accuracy of anti-Islamic ads that SEPTA
would not allow posted on transit vehicles and other region-wide property has been denied by a federal district judge, who says that allegedly false material remains protected by the First Amendment.
The decision by U.S. District Judge Mitchell Goldberg of the Eastern District of Pennsylvania is an early victory for the plaintiffs, Pamela Geller, the president of American Freedom Defense Initiative (AFDI), and the group’s vice president Robert Spencer. They claim that SEPTA is a government entity and has an obligation to respect their organization’s First Amendment right to free speech. Joseph Casey, general manager of SEPTA, arbitrarily rejected the advertisement because he disagreed with the message, and not because it violated their standards of use, the complaint says.
The submitted advertisement reads "Islamic Jew-Hatred: It's in the Quran. Two Thirds of All US Aid Goes to Islamic Countries. Stop the Hate. End All Aid to Islamic Countries," with a picture of Adolph Hitler and Haj Amin al-Husseini (a Palestinian Arab nationalist) alongside a caption, "Adolf Hitler and his staunch ally, the leader of the Muslim world, Haj Amin al-Husseini."
Goldberg's denial prevents SEPTA from introducing University of Pennsylvania Professor of Religious and South Asia Studies, Jamal J. Elias, as a witness who would have testified that referring to Haj Amin al-Husseini as the “leader of the Muslim word” is “manifestly false,” and the statement "the Quar’an teaches Jew-Hatred” is “unfair and erroneous.”
Goldberg wrote that his decision follows the precedent set by the Supreme Court in United States v. Alvarez, which struck down the Stolen Valor Act, a law passed by Congress that would have made it a crime to falsely claim receipt of military decorations or medals.
According to Goldberg's memorandum accompanying the decision, Justice Anthony Kennedy held that the Stolen Valor Act did not survive strict scrutiny as the blanket criminal prohibition was not the least restrictive means of advancing the government’s interest in maintaining the integrity of military honors. In reaching this conclusion, Kennedy affirmed the principle that falsity alone does not bring speech outside the First Amendment’s protection
"Long standing Supreme Court precedent instructs that political speech does not lose First Amendment protection simply because the listener believes that it is false or disagrees with the message it advances," Golberg wrote in his ruling. "Allowing the state to restrict political speech based on an assessment that it is false or inaccurate, offends bedrock First Amendment principles."
According to AFDI's complaint, SEPTA and its advertising management agency, Titan, have accepted all forms of politically and religious motivated advertisements in the past, including a campaign for a Christian radio program and ads for a push to end teacher seniority preferences in the public school program.
SEPTA’s Chief Commercial Officer told the plaintiffs that the advertisement had been rejected, saying that SEPTA’s standards prohibited, “Advertising that tends to disparage or ridicule any person or group of persons on the basis of race, religious belief, age, sex, alienage, national origin, sickness or disability.”
After reviewing SEPTA’s policies, the plaintiffs claim that its ad met the same standards achieved by past politically charged campaigns and that the rejection constitutes censorship by SEPTA officials who disagree with AFDI’s message. The denial was motivated by animosity toward the plaintiffs and their views on Islam, the suit claims.
The plaintiffs seek declaratory relief that makes clear SEPTA violated their First and Fourteenth Amendment rights, plus an injunction against SEPTA’s rejection of the AFDI advertisement, plus nominal damages from the restriction.