Free Speech on Trial in U.S. District Court

Last Tuesday, my ace lawyer David Yerushalmi of the American Freedom Law Center (AFLC) argued before the U.S. District Court for the Southern District of New York on our motion for a preliminary injunction, asking the court to enter an order requiring New York City’s Metropolitan Transportation Authority (MTA) to run our AFDI anti-Hamas, anti-jihad ad on MTA buses.

I was there, and let me tell you, the foes of free speech made some telling and fascinating admissions.

The foremost of these concerned the Hamas-tied Council on American-Islamic Relations (CAIR). Yerushalmi asked Jeff Rosen, the Director of Real Estate for the MTA — that is, the wonk who decides what ads to take and what ads not to take — this question: “The MTA does have a standard that prohibits libel, does it not?” Rosen acknowledged that it did. Yerushalmi then asked Rosen about our ads comparing CAIR to Hamas and identifying CAIR leaders who have been convicted of jihad terror-related crimes.

Then came the bombshell. Yerushalmi asked: “Now, after this ad ran CAIR contacted the MTA and asked it to remove it on the basis that it violated the libel standard, correct?”

Rosen answered, “On the basis that it was defamatory, yes.” Yerushalmi noted that the records that the MTA turned over to the court for this hearing indicated that the MTA declined CAIR’s request. Asked why, Rosen explained: “My understanding was that their stated objection was that — was not with respect to the naming of the individuals but with respect to the equating of CAIR and Hamas and we did not understand that — based on review with counsel, we did not understand that to be defamatory.”

Yerushalmi drove the point home — that “even when criticized or when challenged by the organization CAIR itself, the MTA allowed my client to criticize Hamas publicly.” He asked Rosen: “And would you understand as a lawyer that linking an organization such as CAIR to Hamas would be defamation, per se?” That is, if our claim had been false, but it wasn’t: Yerushalmi then reminded Rosen that the MTA had asked us for documentation of CAIR’s ties to Hamas, as well as records about the terror convictions of its officials pictured in the ad.

The bottom line: the MTA refused Hamas-CAIR’s demand that it take down an ad exposing its links to Hamas because the MTA knew our ad was accurate: CAIR really does have ties to Hamas.

The ad we won the right to put up at this hearing also involves Hamas; it features a quote from a Hamas music video: “Killing Jews is worship that brings us closer to Allah.” We’re trying to call attention to Islamic anti-Semitism, and the MTA is determined that we don’t do that.

Yet Rosen admitted that he had no knowledge of First Amendment issues. So when he rejected our ad, he was making these decisions not with any awareness of our First Amendment rights, and not with an understanding of the legal implications of what he was doing.

Rosen and the MTA had rejected this ad, they have said, because they were afraid that it would lead to violence from Muslims who would mistake it for a pro-Hamas ad. That’s absurd enough on its face. But in his testimony that day, Rosen contradicted the previous declaration he had submitted to the court. The MTA acknowledges that this same ad ran in Chicago and San Francisco without incident.

Raymond Diaz, the MTA’s Director of Security, insisted under oath that our ads have been consistently subject to graffiti and vandalized. It is interesting that the MTA has never reported this salient fact to me. I don’t think what he was saying was accurate, and neither does David Yerushalmi, as there is nothing in the written record to suggest this, but he was certainly adamant. The Court asked Diaz if the graffiti was actually specific to my ads or was just the graffiti that is increasingly common once again in the New York subway system, as the city steadily abandons the law-and-order policies that Rudolph Giuliani adopted to turn New York around in the 1990s. Diaz never gave a clear answer to that question.

It’s clear that the MTA chose to challenge this ad out of all of our ads in order to establish that it constituted a true threat, or incitement, or fighting words — all legal grounds to keep from running it. They picked this particular ad hoping that they would get the ruling they wanted and establish a precedent against all of our ads, even though their discriminatory policies against our ads are purely content-driven and hence unconstitutional.

They tried to make the rejection of this ad a security issue. Having lost on first amendment issues, NYC now tried to come at free speech from a different angle: “security.” The MTA’s guidelines said that ads should only be rejected after a security assessment had been made, and it was “reasonably foreseeable that the display of the proposed advertisement would imminently incite or provoke violence or other immediate breach of the peace and so harm, disrupt, or interfere with safe, efficient, and orderly transportation operations.” But under questioning, Diaz admitted that he had contacted the New York Police Department twice for an opinion on whether our ad would provoke violence, and they refused to provide one.

That speaks volumes. This proves that there was no security concern. And the San Francisco transit authority, which clearly despises our ads, stated most emphatically that it had absolutely no problem whatsoever when the ad ran — despite the cajoling, the nudging, the leading of the witness by Diaz.

Diaz had his underling Phillip Hoffman, who works for the MTA’s Department of Security, write to Scarlett Lam, the Terrorism Liaison Officer and Coordinator and Manager of Emergency Management, Systems Security, and Special Events for the San Francisco Transit Authority. Diaz had Hoffman ask Lam if the “volatile language” of our ad led to a public outcry and violence. Lam answered “No” to all his questions; there was no violence resulting from our ad.

Then Yerushalmi asked the obvious question: “On what basis, what empirical factual basis did you assess that that ad would lead to reasonable foreseeability of violence or lawlessness?” Diaz answered that our ad “advocates violence.” He explained: “Well, you are telling us in the top of that ad that killing Jews is worship that draws us to Allah. So, in a radical’s mind, that killing Jews is going to bring us closer to God and that is this person who, I guess, that we are attributing that comment to, who, I guess, is a jihadist; that is his jihad, killing Jews.” He referred to “people who are easily radicalized.” He admitted that this would include “some Muslims.” Diaz unwittingly went off the politically correct reservation when he admitted: “I think most New Yorkers — and again, and I think there could be misinterpretation of the phrase, but I think the common interpretation of the phrase jihad is a call to violence.”

Yerushalmi then asked, “Is it important to you in your security assessment that this quote was from Hamas MTV?” Diaz answered that it was. He identified Hamas incorrectly as “the military wing of the PLO,” but acknowledged that it is “a designated foreign terrorist organization,” and that “if an individual provides material support to a designated foreign terrorist organization that that individual has committed a felony under federal law.” In other words, he admitted that the MTA’s claim that jihadis would see this ad and act on it as if it were a pro-Hamas ad was absurd on its face: no one would think that the MTA was running ads on behalf of a foreign terrorist organization.

Yet that was Diaz’s claim. He testified: “When I first saw this ad I said, well, I am reading something wrong here, because AFDI is a pro-Jewish organization, so why would they be sponsoring an ad such as this. And then, thinking about it more, I said, well, this ad could be taking both sides as a call to violence. Whether you are pro-Hamas or whether you are pro-Jewish, I think it would be the same interpretation because — and my thoughts were, if I saw this on a wall of a terrorist camp or if I saw this on the wall of an Israeli Army company, it would be getting the same advocating of violence. His jihad is killing Jews. Well, if it was in the Jewish camp, that’s his jihad, killing Jews, to the soldiers in the Israeli camp. What is your jihad? What are you going to do about that? What call to violence are you going to do?”

Yerushalmi asked: “Now, is it really your security assessment, Mr. Diaz, that most reasonable New Yorkers would think that the MTA would take funds from Hamas or some group affiliated with Hamas and run an ad advocating the death of Jews?”

Diaz answered: “I don’t think most New Yorkers would want this ad to be run, if that’s the question.” Yerushalmi persisted: “Is it really your security assessment that the MTA would take funds from a designated terrorist organization — Hamas — or someone affiliated with a designated terrorist organization and post an ad calling for the death of Jews?” Diaz finally said, “We would not take money to do that, no.”

Then Yerushalmi asked him: “And, in fact, in this case, even knowing that my clients had no intent to advocate for jihad, in fact criticized jihad, your entire focus in your security assessment was how Muslims or Jews might react to this ad, correct?” Diaz agreed. Yerushalmi continued: “Part of your security assessment includes an assessment of the reasonable foreseeability risk that an individual is going to feel insulted by an ad — not advocated but insulted by an ad, and jump up and commit imminent violence, correct?”

To that, Diaz answered no. “Then why,” responded Yerushalmi, “did you include Jews in your security assessment?” Diaz explained again: “Once I read the AFDI and realized that this is not an ad that was proposed by Hamas but by pro-Jewish organization, I read it then conversely, that killing Jews is worship that draws us to Allah and saying this to the Jewish community, his worship is killing Jews, that’s his jihad, that’s his call to violence to further his religion, what is yours — asking the person of the Jewish faith, well, what is your jihad? What is your call to violence to counter his killing of Jews?”

Yerushalmi pointed out that Diaz had written: “Whether that violence or breach of the peace would be the work of a violent, self-radicalized, would-be jihadist like the man in Queens who attacked NYPD officers with a hatchet, or the apparently deranged man who, in early December, fatally stabbed an Israeli student in the head at the Chabad-Lubavitch headquarters in Brooklyn while screaming ‘I want to kill the Jew,’ or of a Jew driven to retaliation by anger and fear, I had no way knowing for certain, of course.”

Yerushalmi pressed Diaz on his moral equivalence: “Was the reasonable foreseeability of violence by the radicalized Muslim greater or lesser than the threat that a Jew would take umbrage at this ad and engage in violence?” Then Diaz admitted: “I would say that reading the first lines, the banner part of the ad, that of course that it would — I would lean towards the radicalized Muslim before someone of the Jewish faith.” However, he stuck to his ground: “I think they both, whether you read it from both sides, I think they both advocate violence… I think both sides — I think reading this ad from both sides, I think it proposes violence on both sides, yes. It would be tough to say equally.”

He said he was worried about Jews reacting violently to the ad, but if he was really worried about Jews acting out, how could he have allowed any ad critical of Islam, given how some Muslims react violently to the slightest thing they consider offensive? Yerushalmi then asked him, “So, based upon that testimony and your declaration, I understand that part of your assessment is to examine the risk that individuals will be angered by an ad, not agree with it, but be angered by it and commit violence, correct?”

Diaz answered: “Part of the assessment, yes. As part of my recommendation to the chairman I would add something else to it.” When Yerushalmi asked him what he would add, Diaz made a bombshell admission: “That this ad and we knew in the future that nobody was ever going to do that — if we could read into the future — but the fact is that 
it advocates violence.
 If nobody ever committed a violent act as a result of that, I thought that it advocated violence. I still don’t think it is an ad that we should have run.”

By this standard, anyone can threaten violence and get a denial of the free speech of anyone he dislikes.

Yerushalmi reminded Diaz about “all the other ads that my clients ran that were critical of Hamas, critical jihad, critical of Palestinians who engage in jihad against Israel and calling them savages.” He asked: “In your security assessment of the ads that you have described in your declaration, in some detail you indicated that there was no security assessment to be concerned about relative to all of those other ads that criticize Hamas, jihad, Islam, savages, what have you; correct?” Diaz denied this: “There were concerns — that is not correct. There were concerns but no concern that I thought that there would have been violation of the ad.”

Again Yerushalmi pressed him on his contradictions: “You mention these angry Jews relative to the Hamas ad because they would think the MTA authority was running a Hamas ad and they would get angry. Did you not think that all these radicalized Muslims, these mujahideen that are out there working in the city, would not see these ads that you approve that criticize Hamas, criticized jihad, call individuals savages?” Diaz admitted: “I would think there would be concern on that side too, yes” — yet he approved those ads.

Yerushalmi also pointed out: “The disclaimer at the bottom is fairly large print, correct?… It is fairly large, to be visible so that the MTA won’t be blamed in the ad.” In fact, it is fully 25% of the ad space.

Yerushalmi asked him: “The fact that there was no violence when those ads ran did not affect your assessment?”

Diaz answered: “No, it did not.” Incredible.

David Yerushalmi argued brilliantly, asking the court to enjoin the MTA’s speech restriction on First Amendment grounds. And we will win. If we don’t, it isn’t just us who lose — it’s anyone who values the freedom of speech.

What leftists who oppose us don’t get is that our free speech victories are their free speech victories. But today’s “journalists” don’t seem to have any understanding of the value of free speech.

Pamela Geller is the President of the American Freedom Defense Initiative (AFDI), publisher of PamelaGeller.com and author of The Post-American Presidency: The Obama Administration’s War on America and Stop the Islamization of America: A Practical Guide to the Resistance. Follow her on Twitter here. Like her on Facebook here.