Court upholds MBTA's right to ban ads that call Palestinians savages

A federal appeals court this week upheld lower-court rulings that the MBTA can limit what it allows on ads on its buses and trains and in its stations.

The US Court of Appeals for the First Circuit in Boston rejected claims by a right-wing pro-Israel group that if the T allowed ads referring to Palestinians as "refugees" it also had to allow ads referring to them as "savages."

The court agreed with a judge in US District Court in Boston that the T's ad spaces were not a "public forum" because the authority had crafted a series of rules for determining what ads could say - including a prohibition on ads that "demean or disparage" individuals or groups - and then consistently applied those rules. This is in contrast to other public-transit authorities, with no restrictions or inconsistently applied ones.

The judges cited their similar ruling in a 2004 case involving a church and a pro-marijuana group that sued the T for blocking their ads; the former wanted to run ads declaring specific other churches "false" and the latter had ads that the T said promoted pot smoking by minors. The court ruled that the restrictions, coupled with the fact that the primary goal of allowing ads was to make money, rather than create a space for a discussion of ideas, meant the T had created a "non-public forum" and so blocking ads was not a First Amendment issue.

The American Freedom Defense Initiative filed its first suit after the T's ad vendor rejected an ad that quoted Ayn Rand:

IN ANY WAR BETWEEN THE CIVILIZED MAN AND THE SAVAGE,
SUPPORT THE CIVILIZED MAN.
SUPPORT ISRAEL
DEFEAT JIHAD

The New Hampshire-based group then submitted revised wording:

IN ANY WAR BETWEEN THE CIVILIZED MAN AND THOSE ENGAGED IN SAVAGE ACTS,
SUPPORT THE CIVILIZED MAN.
DEFEAT VIOLENT JIHAD
SUPPORT ISRAEL

The vendor approved that message, but then AFDI submitted what it called a "tweak" that read:

IN ANY WAR BETWEEN THE CIVILIZED MAN AND THE SAVAGE, SUPPORT THE CIVILIZED MAN.
DEFEAT VIOLENT JIHAD
SUPPORT ISRAEL

The company rejected that ad and AFDI sued again.

In both cases, Judge Nathaniel Gorton rejected AFDI's request for an order to force the T to run whatever wording it wanted; the group then appealed.

The appeals court rejected AFDI's charge that by allowing the pro-Palestinian ads but not its rebuttals, the T was taking a side in the Arab/Israeli conflict. In language that shows the judges did some serious linguistic parsing, the court ruled that calling Palestinians "refugees" did not "demean or disparage" Israelis, who were not even mentioned in the ad. While the AFDI ads don't explicitly mention Palestinians, the court continued:

"[B]oth of AFDI's rejected versions do plainly equate with 'the savage' those who are Israel's enemy in "war" and who practice 'jihad' or 'violent jihad,' " the court said, adding they also "describe an opponent as not only uncivilized but savage." That, the court concluded, was pretty demeaning and disparaging.

AFDI also argued that the "refugees" of the pro-Palestinian ad was an equally demeaning and disparaging word, because it implies some sort of ruthless action agains them by somebody, in this case, Israel. But the court said the ad didn't label anybody as a persecutor."

Neither the word "persecutor" nor any reasonably synonymous hostile label is used at all. And the fact that the advertisement calls Palestinians "refugees" -- however offensive or inaccurate a supporter of Israel might find the use of that label -- does not change that simple fact. Thus, the MBTA has identified a distinction that is unrelated to the viewpoint the ads express and instead relates directly to the guideline's purpose: to screen out content that is demeaning or disparaging.