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Last week, frequent CNN pundit Mona Eltahawy vandalized a poster condemning jihad, assaulted a lady with spray paint, and then claimed her actions were protected by the First Amendment.  Of course, private citizens purchased the public transit advertising space unlawfully defaced by Ms. Eltahawy.  Her fatally flawed argument is tantamount to arguing that tearing down a billboard, switching out newspapers on doorsteps, busting into a broadcast studio and kicking out the host, or peeling bumper stickers off another’s vehicle are free speech acts.

In response to Ms. Eltahawy’s violent outbreak, the New York Transit Association immediately altered its advertising guidelines.  The new guidelines prohibit advertisements that the MTA “reasonably foresees would imminently incite or provoke violence or other immediate breach of the peace.”  The MTA’s new regulation on free speech runs counter to the First Amendment’s protections prohibiting the government from “abridging the freedom of speech or of the press.”

The lawyers at the MTA have subtly combined and contorted two lines of Supreme Court precedent which permit governments to restrict controversial speech in certain instances.  These instances fall into two categories:  “fighting words” and “incitement to violence.”  Although the MTA regulations refer to incitement, upon review of the actual Supreme Court rulings allowing such a free speech restriction, one will clearly see the MTA has overstepped constitutional bounds on free speech regulation.

FIGHTING WORDS

In Chaplinsky v New Hampshire, 1942, the Court held that

“There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting words” those that by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” 

While this might seem broad at first, the Supreme Court narrowed the definition over the decades, holding flag-burning to be protected as offensiveness alone does not meet the threshold of “fighting words” (Street v New York, 1969).  In 1971, the Court held that even a shirt saying “F*** the draft” failed to meet the definition of “fighting words” (Cohen v California, 1971).  In Lewis v New Orleans, 1974, even laws prohibiting profanities directed at police officers were ruled overbroad.

In summary, enacting regulations restricting free speech on the grounds of “fighting words” is only permissible when these words meet all three of the following requirements: (1) by their very utterance the speech inflicts injury or tends to incite an immediate breach of the peace, (2) when these utterances are no essential part of any exposition of ideas, and (3) when these words are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

Could the MTA genuinely conclude that advertisements condemning jihad do not constitute an “essential part of any exposition of ideas?”  The phrase “stand against jihad” IS the idea—thus making it absolutely essential to! Furthermore, considering the impact jihad made in 2011 upon NYC, encouraging citizens to remain steadfast in opposing global jihad is of great social value.  In addition, encouraging alignment with democratic values in the face of violent jihad is an incitement to CIVILITY rather than VIOLENCE!  The new MTA guidelines clearly do not fit within the “fighting words” category.

INCITEMENT TO VIOLENCE

The wording of the MTA’s new free speech restrictions also implies constitutionality based on the allowance of the State to restrict speech which amounts to “incitement” of violence.  In 1969, the Court stated in Bradenburg v Ohio that

“the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

The MTA’s new regulation copies some of the wording from Bradenburg.  However, the essence of the new regulation stands in polar opposition to the clear intent of case precedent! Consider the MTA language prohibiting advertisements that it “reasonably foresees would imminently incite or provoke violence or other immediate breach of the peace.”  The MTA grants itself the power to ban speech which it, as a government agency, reasonably believes will cause violence.  However, in order to pass constitutional muster, the advocacy of the speaker must be directed at inciting imminent lawless action.  This is quite a different standard!  If a speaker’s intent is to express a viewpoint, albeit controversial, and a government agency knows that another party will attempt to react violently, this potentially violent reaction by an opposing party to the message is not a constitutionally valid reason to suppress speech!  This safeguard of the right to express viewpoints, even when controversial, ensures that no one faction of the population wields a de facto weapon of censorship over other citizens.  Rather than suppress the free speech rights of one group in order to prevent the possibility of another faction from reacting unlawfully, the government should focus its efforts on punishing those who unlawfully interfere with a fellow citizen’s free exercise of his fundamental free speech rights.

Furthermore, the MTA’s new regulation contorts the spirit of established case law in another way.  Bradenburg dealt with a situation even more atrocious than simply engaging in speech that might spark one’s opponents to engage in violence or a breach of the peace.  In Bradenburg, the speaker was actually advocating that his listeners engage in violence against blacks and Jews!  Yet, the Court held that this speech was still protected because it was not likely to produce imminent lawless action! The speech which the MTA presently is trying to ban on the basis of Bradenburg’s language, is an inverse situation!  For example, the posters currently at issue actually advocate against violent jihad—violence against society in the furtherance of religion.  The MTA is attempting to ban speech which speaks out against violence — because this speech might incite violence on the part of those offended by this message.  Even if this strong criticism of jihad could be expected to incite lawless action from others such as Mona, the advocacy itself is quite obviously NOT directed at inciting violence.  The advocacy, in fact, advocated against such violence!  Recall that in Bradenburg the speaker was directing his “listeners” to engage in violence—yet still his speech was considered protected under the First Amendment!  The “incitement to violence” exception clearly does not give the MTA the right to suppress speech which opponents of the message might violently protest.  Only a message ADVOCATING violence would POSSIBLY be speech permitted to be regulated in such a manner by the MTA.

In summary, reigning in free speech in an effort to prevent “incitement to violence” is only permitted when (1) advocacy is directed to inciting or producing imminent lawless action and (2) is likely to incite or produce such action.   The MTA regulations enable the government to ban speech that does not fall under the “incitement to violence” category.  Rather, the MTA grants itself the power to ban speech merely because it might incite a violent reaction— rather than determining whether the speech itself implicitly or overtly ADVOCATES this lawless action.

Apparently, the lawyers drafting the MTA guidelines conjectured that inserting certain WORDS from Supreme Court cases delineating the limits of our First Amendment rights allows them to redefine those First Amendment rights.  How bitterly ironic that the city proudly displaying the Statue of Liberty in her harbor brazenly attempts to deprive her citizens one of our republic’s most important liberties— the freedom of speech.

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