New York’s MTA, the First Amendment & the Heckler’s Veto

Cross-posted on the Corner

The New York Times reports:

[New York’s] Metropolitan Transportation Authority approved new guidelines for advertisements on Thursday, prohibiting those that it “reasonably foresees would imminently incite or provoke violence or other immediate breach of the peace.

The 8-to-0 vote by the authority’s board came three days after pro-Israel ads characterizing Islamist opponents of the Jewish state as being “savage” began appearing in subway stations, setting off vandalism, denunciations of the authority and calls for the ads’ removal.

The authority had initially rejected the ads, citing their “demeaning” language. The group responsible for the ads, the American Freedom Defense Initiative, sued, and in July won a federal court ruling on First Amendment grounds.

“We’ve gotten to a point where we needed to take action today,” Joseph J. Lhota, the authority’s chairman, said at a news conference on Thursday.

If this power is abused (not, of course that such a thing could ever, ever happen), it enshrines the heckler’s veto.

The authority said it believed the new guidelines adhered to the court’s ruling and would withstand any potential First Amendment challenge. Under the new policy, the authority will continue to allow so-called viewpoint ads, but each will be required to include a disclaimer noting that the ad does not imply the authority’s endorsement of its views.

The disclaimer is, of course, fine. Mind you, I’m not sure that I want that MTA have “views” about anything other than the operation of a transportation system.

“You deal with a free-speech issue with more free speech,” Mr. Lhota said.

During the public comment portion of the authority’s meeting on Thursday, several speakers assailed the placement of the ads….Many at the meeting held signs echoing the Occupy Wall Street movement’s message. “The subway belongs to the 99 percent,” they read. “Take the racist ads down.”

Pamela Geller, the executive director of the American Freedom Defense Initiative, also spoke, though she was repeatedly shouted down.

Whatever you may think about Pam Geller (or the ads) that doesn’t sound a lot like what “dealing[ing] with a free-speech issue with more speech” was meant to mean.

Oh well.

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1 Response to New York’s MTA, the First Amendment & the Heckler’s Veto

  1. Steve Cardon says:

    Nice little sticky wicket that is, and a VERY timely posting. The same issue is, and has been, coming up all over the country. So far free speech seems to be winning out, with few exceptions (Seattle for one). Authorities across the country are being ordered to run non-commercial ads, provided they don’t directly violate obscenity laws… but for how long? My personal observation (not only mine) is that governments usually allow about as much freedom as they feel they can afford to. This free speech issue really has the potential to bring tensions on numerous political fronts to a boil, and I expect it to clearly demonstrate where liberals and conservatives really come down on issues of personal freedom. Expect to see plenty of unlikely “bed-fellows” on both sides.

    Do not be surprised when democrats start proposing amendments to the amendment again. They will want an additional clause nebulously defining “Hate Speech” to be in place as a modifier. This will be strictly political because the supreme court has already ruled (I almost said arbitrarily, but caught myself) that the government does have the right to limit free speech in some cases where it causes a “breach of the peace” or incites to violence or “fighting words”… in other words they can curtail it as soon as it becomes really inconvenient. In my view, the government WILL increasingly start to bow to the “hecklers veto” when things heat up just enough to threaten the jobs of politicians.

    As writers in this forum have noted repeatedly, with free speech you really can’t be “half pregnant”. If you believe in it, it has to be all the way and let the chips fall where they may. Free speech was intended to get issues out into the open, rather than forcing them to hide below the surface and fester. A lot of things in society have been festering due to, ironically but not suprisingly, the “political correctness” movement propagated by the left. The police are going to have to arrest a lot more vandals, and violent protesters. They will have to become even more skilled as referees. I do not envy the police, (and eventually the National Guard) their jobs in trying to accomplish this even-handedly.

    Thought add the link to a very nice listing of similar recent “Transit Authority” cases put together by the Vanderbilt “First Amendment Center”.

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