The American Freedom Defense Initiative and Massachusetts Bay Transportation Authority both made their initial appeals Wednesday at the U.S. District Court in South Boston in a suit claiming the MBTA violated the plaintiff’s First and 14th Amendment rights for an advertisement they wanted at transit stations.
Plaintiffs Pamela Geller, Robert Spencer and the AFDI filed the suit on Nov. 6 against the MBTA after their ads in favor of Israel in the Israel-Palestine conflict were not allowed to run in stations. The MBTA categorized the ads as “demeaning or disparaging” and claimed they violated the MBTA’s advertising guidelines.
Robert Muise, attorney for the plaintiffs, said the MBTA created a public forum with its advertising space and denying the advertisement was unconstitutional.
“Our clients’ speech was prohibited because of the application of their guidelines, and this led to their momentary loss of free speech,” he said. “To define terrorist acts as savage is plainly appropriate. To ban ‘savage’ in the context of this advertising is plainly diminishing, and that would change the viewpoint of our clients.”
The plaintiffs planned to place the pro-Israel advertisements in the same locations as other pro-Palestinian advertisements that were put up in October. The pro-Palestinian ads contained four maps of the Palestinian loss of land to Israel from 1946 to 2010 with the caption, “4.7 million Palestinians are classified by the UN [United Nations] as refugees.”
The denied ad stated, “In any war between the civilized man and the savage, support the civilized man. Support Israel, Defeat Jihad.”
Muise said the denied ad was not referring to Arabs or Palestinians but the terrorist acts of jihad, or holy war justified to extreme degrees under radical interpretations of Islam.
“In this case, the fact that the advertising guidelines is facially constitutional, in our perspective their application of their guidelines is not content neutral and is unreasonable,” he said. “Our clients’ ad does not mention Palestinians but speaks of war and is only in the context of warfare.”
Joseph Steinfeld, the attorney for the MBTA, defended the MBTA’s decision to keep the pro-Palestine ads and said it did not have the “demeaning and disparaging” characterization that the plaintiffs’ advertisement did.
“The ad says nothing of criminals,” he said. “It says nothing of terrorists. The ad takes a pro-Palestinian viewpoint and does not disparage the Israeli or the Jewish people any more than the UN does when if classifies the 4.7 million Palestinians described in the ad as refugees.”
Joe Pesaturo, spokesman for the MBTA, was not at the hearing, but said in a Wednesday email that the plaintiffs had the opportunity to make their ad fit the transit system’s advertising guidelines.
“More than a month ago, the MBTA asked the message’s sponsor to modify the ad to meet the requirements of the MBTA’s advertising standards, but they rejected that request,” he 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.”
Muise said the denied ad was by no means demeaning, or not nearly as much as the MBTA claimed it was.
“The word ‘savage’ is an appropriate term to describe those who engage in jihad,” he said. “It is brutal. It is the act of killing innocent civilians and it is savage. To change the meaning of the ad is to change the moral outreach and message of our clients.”
Steinfeld said the plaintiffs’ attempt to present the two ads as equal in terms of the possible offense it could create were invalid.
“It is purely a figment of their imagination,” he said. “The ad only shows four maps of Palestine before Israel became a state and after. The plaintiffs can submit an ad that takes issue of the pro-Palestinian one. However, it must be done in a positive manner.”
Steinfeld finalized his appeal by arguing that the MBTA has always abided by advertising guidelines and that forcing them to act differently would be arbitrary.
“The MBTA, since 1992, have had restrictions,” he said. “It started out with two or three and added more over the years. Nothing has changed. The MBTA acts consistently.”
Judge Nathaniel Gorton allowed for both sides to submit a memorandum by Dec. 6 to further their arguments and push the lawsuit forward in the process.
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