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AFLC claims MBTA ad rejection violates 1st Amendment

The American Freedom Law Center claimed in a motion filed Tuesday that the Massachusetts Bay Transportation Authority violated the First Amendment after the transit company rejected a controversial pro-Israel advertisement.

The advertisement, funded by the American Defense Freedom Initiative, appeared  after the MBTA displayed a pro-Palestine ad from the Committee for Peace in Israel/Palestine in October, which used a series of maps to depict Palestinian loss of land from 1946 to 2010.

Pamela Geller, executive director of the American Defense Freedom Initiative, said the decision not to show the ad reflects favoritism from the MBTA.

“The MBTA censored my ad because they agree politically with the other ad and not with mine,” she said. “This was a display of naked political bias that is unacceptable in such an agency.”

MBTA Spokesman Joe Pesaturo said the pro-Israel ad was not displayed because it violates the MBTA’s advertising standards and because its content is demeaning.

“The MBTA did not censor anything,” he said in an email. “The MBTA declined to accept an advertisement because it was not in compliance with the MBTA’s court-approved advertising guidelines.”

Pesaturo said the anticipated reaction from T riders was a factor in the MBTA’s decision.

“The MBTA is not opposed to groups expressing their points of view,” he said. “But it must be done in a respectful manner that recognizes and appreciates the cultural diversity of a public transit environment.”

Geller said the purpose of the ad was to respond to the anti-Israel ads the MBTA had previously approved.

Robert Muise, an attorney and member of the AFLC, said he supports the AFDI’s position because the decision to ban the ad constitutes a loss of free speech.

“It is a well-established principal of law that even the momentary loss of First Amendment freedoms constitutes irreparable injury,” he said. “When somebody is currently being irreparably harmed, it is quite common for that party, particularly in the First Amendment context, to file a request with the court to enter an order immediately allowing the speech to take place.”

Muise said the MBTA is guilty of employing a double standard with its advertisement policy.

“They claim harm is caused by our ad, but they’re turning a blind eye to that same harm by allowing this pro-Palestinian ad,” he said. “This is the government acting as a censor … that’s very problematic in the First Amendment.”

Pesaturo said the MBTA has reached out to the AFLC in an attempt to resolve the matter.

“The MBTA is asking that the message be modified to meet the requirements of the MBTA’s advertising standards,” he said.

A number of Boston residents were split on the MBTA’s decision not to run the advertisements.

Reggie Rece, 47, a resident of Roslindale, said the MBTA should have approved the AFDI’s ad.

“People should be allowed to say what they want,” he said. “If the T is going to give some people a place to say whatever they want, the other side deserves one, too.”

In contrast, several residents said they support the MBTA’s decision because the ad is inappropriate for public transit.

Jordan McIntosh, 30, of Boston, said the advertisement was offensive.

“I think the decision to censor was probably the right idea … don’t step on people’s toes,” he said.

Leah Farmer, 34, a resident of Boston, said she is more inclined to accept the pro-Palestinian advertisement than the pro-Israel one because the former seems far less offensive.

“Anything positive, I think, should be promoted,” she said. “Anything negative should stay by the wayside, because you just can’t go around offending people. You have to think of who your riders are, and that’s the biggest part of it.”

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