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Media Alerts - American Freedom v. Metropolitan Transportation Authority
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March 5, 2016
  American Freedom v. Metropolitan Transportation Authority
Headline: Second Circuit Affirms That American Freedom Defense Initiative Must File New Complaint to Challenge Metropolitan Transportation Authority's Advertising Standards for New York City Subways and Buses

Area of Law:
Constitutional

Issue(s) Presented: Whether the MTA's adoption of new advertising standards for subways and buses rendered the plaintiffs-appellants' previous First Amendment challenge moot.

Brief Summary: American Freedom Defense Initiative (AFDI), a pro-Israel advocacy organization known for its criticism of Islam, sought to purchase an advertisement for display on the back of MTA buses. The advertisement depicted a "menacing-looking man" whose face and head were largely covered by a head scarf; it included a quotation stating that "Killing Jews is Worship that draws us close to Allah" and then said "That's His Jihad. What's yours?" The MTA refused to display it, citing its policy barring the display of any advertisement reasonably likely to incite violence. AFDI filed suit in the United States District Court for the Southern District of New York, alleging a First Amendment violation. The district court granted AFDI's motion for a preliminary injunction, explaining that although it was not striking down the entire policy, the policy could not be enforced against the ad in question. The MTA subsequently amended its advertising standards, stating that it would no longer allow advertisements that were "political in nature." It then informed AFDI that, under this new policy, it would not display the ad. The district court dissolved the prior injunction, on grounds that it was now moot in light of the policy change, and AFDI appealed. The Second Circuit affirmed, explaining that the MTA's conduct had changed the basis of what the AFDI was now disputing. If AFDI wants to challenge these new advertising standards, it must file an amended complaint.

Extended Summary (if applicable): The Metropolitan Transportation Authority (MTA) accepts paid advertisements to be displayed on its subways and buses. In the past, the MTA had accepted both commercial and non-commercial advertisements, excluding only those advertisements that fall within certain discrete categories, such as, for example, misleading advertisements, advertisements promoting unlawful activity, obscene advertisements, and advertisements expected to incite violence. American Freedom Defense Initiative (AFDI), a pro-Israel advocacy organization known for its criticism of Islam, submitted an advertisement for display on the back of MTA buses. According to the district court, the advertisement portrayed a "menacing-looking man whose head and face are mostly covered by a head scarf. The advertisement included a quote from 'Hamas MTV': 'Killing Jews is Worship that draws us close to Allah.' Underneath the quote, the ad stated: 'That's His Jihad. What's yours?' The bottom of the advertisement included a disclaimer that it was sponsored by [ADFI], and did not imply the MTA's endorsement of the views expressed by the ad." The MTA refused to display the advertisement by using its provision against displaying any advertisements reasonably likely to incite violence.

AFDI filed suit against the MTA in the United States District Court for the Southern District of New York, claiming that the application of the incitement prohibition to the advertisement violated the First Amendment, and moved for a preliminary injunction. The district court granted the motion, enjoining the enforcement of the incitement prohibition as to the advertisement in question, rather than striking down the whole standard. The court stayed the effectiveness of the injunction for 30 days. While the stay was in effect, the MTA's Board of Directors voted to amend the MTA's advertising standards to include a prohibition on any advertisement that is "political in nature." After the new standards were approved, the MTA informed AFDI that it would not display the advertisement because it violated this new prohibition. The MTA then moved to dissolve the preliminary injunction, arguing that the claim on which it rested was moot in light of the change to the MTA's advertising standards. The district court granted the motion.

AFDI appealed, and the Second Circuit reviewed whether the district court abused its discretion in granting the motion. AFDI argued that the MTA had failed to satisfy the test for mootness because the new advertising policy was just as unconstitutional as the one already enjoined. However, the Second Circuit affirmed the district court's judgment because the MTA had altered its conduct in a manner sufficient to present a fundamentally different controversy, and AFDI was not suffering an ongoing harm from the MTA's initial rejection of the advertisement under the old standard. The AFDI may challenge the MTA's new advertising standards, but it must do so by filing an amended complaint. To read the full opinion, please visit: http://www.ca2.uscourts.gov/de.../1/doc/15-1997_opn.pdf

Panel: Circuit Judges Katzmann and Kearse; District Judge Schofield, sitting by designation

Argument Date: 1/15/2016

Argument Location: New York, NY

Date of Issued Opinion: 3/3/2016

Docket Number: No. 15-1997

Decided: Affirmed

Case Alert Author: Nigyar Alieva

Counsel: David Yerushalmi, American Freedom Law Center, for Plaintiff-Appellants; Victor A. Kovner, Davis Wright Tremaine LLP for Defendant-Appellees

Author of Opinion: Per Curiam

Circuit: Second Circuit

Case Alert Circuit Supervisor:
Professor Emily Gold Waldman

    Posted By: Emily Waldman @ 03/05/2016 04:13 PM     2nd Circuit  

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