The American Freedom Law Center’s preliminary injunction against the Massachusetts Bay Transportation Authority, which would require the MBTA to display its previously denied and controversial advertisement immediately, was denied on Monday.
Last November, the AFLC filed a lawsuit against the MBTA when the MBTA would not allow the American Freedom Defense Initiative to run an ad that talked about the conflict between Palestine and Israel, arguing that the MBTA was violating their First and 14th Amendment rights. The ad stated, “in any war between the civilized man and the savage, support the civilized man” and calls for people to support Israel over Palestine and to “defeat Jihad,” according to the suit.
Kelly Smith, spokesperson for the MBTA, told The Daily Free Press in November that the denial of the ad was not because of the topic of the ad, but rather that it did not meet their standards when it came to regard for different cultures.
“The MBTA is asking that the message be modified to meet the requirements of the MBTA’s advertising standards,” she said. “The MBTA is not opposed to groups expressing their points of view, but it must be done in a respectful manner that recognizes and appreciates the cultural diversity of a public transit environment.”
The AFLC claimed the MBTA was violating their right to religious expression and freedom of speech and also the civil rights granted to all American citizens.
“The restriction is not only content-based,” said Robert Muise, a lawyer at the AFLC. “It’s viewpoint-based, and viewpoint-based restrictions are the most egregious form of content discrimination under the First Amendment.”
In January, ADLI submitted a second modified advertisement to the MBTA, which was accepted by the MBTA. The MBTA contacted ADLI requesting specifications for the ad, but instead the ADLI sent back a “tweak” to the advertisement, which included the quote from the original advertisement that had been denied.
Once again, the MBTA determined that the advertisement was “demeaning and disparaging.” After some more contact between the MBTA and the AFDI, the AFLC filed a preliminary injunction against the MBTA that would require them to display the third version of the advertisement. Judge Nathanial Gorton denied AFLC’s preliminary injunction.
“Plaintiffs have not made the requisite “strong showing” that the MBTA acted unreasonably in rejecting an advertisement that was very similar to an advertisement it had previously found to be demeaning and disparaging in violation of its advertising guidelines,” states the judge’s order.
Judge Gorton stated his reasoning for denying the injunction was the “plaintiffs acted in bad faith in submitting the Second Advertisement to the MBTA, waiting for that advertisement to be accepted and then using that acceptance as an excuse to file a second lawsuit … such blatant gamesmanship and deliberate confrontations does not warrant [such action].”