A slew of advertisements that are being displayed in Metro stations have caused much public turmoil. Sponsored by the pro-Israel American Freedom Defense Initiative, the ads read: “In any war between the civilized man and the savage, support the civilized man. Support Israel. Defeat Jihad.”
Are these ads disturbing? Yes. Are they absurd? Yes. Are they protected speech? Absolutely.
After successfully suing to place the advertisements in New York City subway stations, the AFDI bought advertising space in the District. The Washington Metropolitan Area Transit Authority, however, officially “deferred” the ads, pleading sensitivity to “the timing of the placement out of concern for public safety.” The AFDI took the case to court, and District Judge Rosemary M. Collyer ruled in the group’s favor, demanding that the ads be displayed immediately. Judge Collyer’s decision may be unpopular, but it is undoubtedly proper. Our Constitution commands freedom of speech even for the speech we hate.
Moreover, while the speech in question may be stupid, it pertains to a hotly contested issue in American society today: the Israeli-Palestinian conflict and the United States’ support of Israel. Indeed, Metro allowed pro-Palestinian, anti-Israeli ads to run only 10 months ago. By censoring the AFDI’s posters, Metro is effectively promoting one side of the debate while silencing the other. A government-run, government-funded agency like Metro cannot be permitted to tip the scale of public opinion by muffling dissent.
Opponents of the advertisements point to their nasty phrasing, labeling their content “hate speech.” There is no doubt that the AFDI’s posters are offensive and ridiculous, but hatefulness and stupidity have never been cause for censorship in the United States. The public sphere is a place for expression of all ideas, good and bad. The First Amendment leaves it up to us to decide which ideas to accept and reject.
As the U.S. Supreme Court recognized in Texas v. Johnson, a flag-burner’s rights must be protected because the “bedrock principle underlying the First Amendment … is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Furthermore, in R.A.V. v. City of St. Paul, the Court prevented a city from forbidding hateful speech against particular groups, noting that “the point of the First Amendment is that majority preferences must be expressed in some fashion other than silencing speech on the basis of its content.”
Yet silencing speech on the basis of content is precisely what Metro was attempting to do, and its defense of its censorship simply did not pass constitutional muster. Metro claimed that displaying the ads could provoke a retributive act of violence, although this fear was purely speculative. The Supreme Court rejected this rationale in Cohen v. California, famously calling it a “self-defeating proposition” that, to avoid violent reaction “by a hypothetical coterie of the violent and lawless, the States may more appropriately effectuate that censorship themselves.” Metro might have a stronger claim if the advertisements urged violence against Muslims, but they do no such thing; they merely endorse Israel over the vague forces of “jihad.” A democracy cannot function on the assumption that hurt feelings will lead to mass bloodshed.
Finally, in this case as in Cohen, the speech in question may seem “trifling and annoying,” but its protection remains fundamental to maintaining our First Amendment rights. Once we permit government agencies like Metro to censor ads they deem degrading, it is not hard to imagine the consequences. Occupy Wall Street ads labeling Wall Street CEOs as evil and greedy could be censored. So could Tea Party ads calling poor people lazy. Virtually any political ad could conceivably be censored as long as it spoke out offensively against the opposite party. The censors here want to avoid insulting Muslims, but surely the suppression will not end there. Americans are a diverse people with a broad range of beliefs; once the government is permitted to disfavor certain viewpoints by suppressing speech, the journey to widespread censorship will be short and swift.
Hate speech is not a new phenomenon in America. The Court has wrangled with the issue time and time again, most recently in Snyder v. Phelps. That case — which dealt with insults against Marines too odious to be printed here — pushed our notions of freedom and tolerance to their limits. In his ruling, Chief Justice Roberts reminded us that although speech can “inflict great pain,” we must not “react to that pain by punishing the speaker.” As much pain as the AFDI’s posters may cause to rational, tolerant people, Judge Collyer was absolutely correct in allowing the ads to run. It is only by protecting the speech of those whom we like least that we preserve the liberties we cherish most.
Mark Joseph Stern is a senior in the College. LETTERS OF THE LAW appears every other Tuesday.
