The board of New York's Metropolitan Transportation Authority, after more spirited debate on Wednesday, approved a ban on political advertising on subways and buses one week after a federal judge ruled its previous policy was unconstitutional under the First Amendment.
MTA officials had rejected an advertisement, known commonly as the "Killing Jews" ad, offered by Pamela Geller from the pro-Israeli advocacy group American Freedom Defense Initiative after authority security officials worried that its inflammatory tone could incite violence.
The advertisement portrayed a menacing-looking man with a head scarf covering his head and face. It included a quote from "Hamas MTV" that said: "Killing Jews is worship that draws us close to Allah." Underneath the quote, the ad said: "That's His Jihad. What's yours?"
John Koeltl of the U.S. District Court for the Southern District of Manhattan ruled April 21 that the MTA erred in not allowing the banner ad to run on the backs of buses. Koeltl said the ad qualified as constitutionally protected speech.
Wednesday's board vote was 9-2 following a public speaking session in which Geller and lawyers Christopher Dunn from the New York Civil Liberties Union and Gene Russianoff from the Straphangers Campaign ridership lobbying group cited First Amendment concerns.
"You cannot shut this down," said Geller.
Board members Jonathan Ballan and Allen Cappelli voted against the measure, as they did at Monday's 7-2 finance committee vote.
In a highly emotional 10-minute statement, board member Charles Moerdler advocated the ad restrictions. Drawing on his experience as a Holocaust survivor in Germany and calling inflammatory speech "filth" and "garbage," he warned about the perils of such speech unfettered. "Mein Kampf was a precursor to genocide," he said. "Hateful speech is not harmless speech. Only a fool or a rogue would suggest otherwise."
Ballan, however, warned that the MTA, which has lost three similar lawsuits including last week's ruling, could find itself on the wrong side of court action again. "This contravenes good public policy, probably is unconstitutional and makes no sense," he said. "Whenever we vary from pure transportation policy, we as a board do not have the expertise and we make errors, and this is just another example of that."
MTA officials say the authority received about $138 million in advertising revenue in 2014, and that estimated revenue for that year that the MTA would not accept under its new policy would have been less than $1 million, or less than 1%, of total ad revenues.
Jerome Page, MTA general counsel, said Monday the new policy would follow the leads of Chicago Transit Authority, Philadelphia's Southeastern Pennsylvania Transportation Authority and the Metropolitan Transportation Authority in Los Angeles in converting its ad space from an open public forum to a limited one while applying a "viewpoint neutral" standard.
Constitutional historian R.B. Bernstein, a lecturer at City College of New York's Colin Powell School for Civic and Global Leadership, said the MTA had to adjust its policy. "I have a feeling that they are on solid ground" with the changes, he said.
The ban would include political campaign advertising, an indication that the MTA wants to get out of the game altogether.
"That's what the MTA is doing," said Bernstein. "No campaign ads, no boycott grapes, you get what I'm saying. They want to get out of that. They say they're only losing 1% of their ad revenue and they can make it up elsewhere and avoid what my grandmother would say, all those headaches."
Previously, said Bernstein, the MTA did not meet the standard under the 1969 landmark Supreme Court case Brandenburg v. Ohio, in which the top court ruled that speech can be prohibited only if it is "directed at inciting or producing imminent lawless action" and is "likely to incite or produce" it.
"Let's say I'm giving a speech and I say that all financial journalists should be shot, and then I point you out in the audience and say you're a financial journalist. That's inciting violence," said Bernstein.
Bernstein, who considers himself "very close to a First Amendment absolutist," added: "Sometimes we have to endure stuff that's offensive. We can't just cloak ourselves in Barney the dinosaur or SpongeBob SquarePants. We're a highly contentious city."
Still, he sees a need to sometimes curb unbridled free speech.
"In certain social contexts, people agree that 'We're not going to discuss X,' because there's no end to the trouble," he said.
Also on Wednesday, the board signed off on a $967.1 million federal loan from the Federal Railroad Administration loan for so-called positive train control signal system safety improvements to Long Island and Metro-North commuter railroads.
The MTA will issue its transportation revenue bond directly to the FRA and will repay the obligation over 22½ years at a fixed interest rate of 2.38%, with the first payment due in 2018.
