Friday, September 28, 2012

Mona Eltahawy successful attack on free speech in NYC

Yesterday, the NYC MTA voted to restrict the application of the First Amendment on their network. This comes in response to a current advertisement campaign which calls on subway users to 'defeat Jihad'. In a stunningly stupid 8-0 vote, the MTA has decided to prohibit future adverts that it 'reasonably foresees would imminently incite or provoke violence or other immediate breach of the peace'. The MTA seemingly believe that in passing this restriction, they remain in compliance with First Amendment case law. They are wrong. 

If (and I assume they did) the MTA consulted an lawyer in coming to the conclusion that their new approach was legally compliant, then they urgently need to put out a job ad for a new attorney. Brandenburg V Ohio, the operating US Supreme Court case that defines free speech vs incitement boundaries, is clear in its prescription. Under Brandenburg, only speech which intends to create a condition of 'imminent lawless action' can be restricted by public authority. The 'defeat Jihad' advert does not meet this burden. The advert does not pursue imminent lawless action, it simply advocates a political position (albeit from my view a stupid one). Indeed, the Roberts Court has upheld this type of speech as owed the highest protection under law. As Roberts put it, the Government must protect 'even hurtful speech on public issues to ensure that we do not stifle public debate'. Cognizant of the law, it should have been manifestly obvious to the MTA that in attempting to restrict speech which lacks an intention to cause imminent lawless action, they have exceeded their authority under the Constitution. That this advert pursues a sensitive topic is irrelevant. Justice Scalia recently noted the obvious (apparently complex for some) fact that where we restrict speech in fear of angering those in opposition to that speech, the First Amendment suffers serious injury. Undue restrictions on speech restrict individual opinion. Undue restrictions of individual opinion chill societal debate. Chilled societal debate inhibits effective discussion and policy formulation on issues of public concern. An example of the detrimental impact of the 'chilling effect' was seen on last night's episode of the BBC's flagship domestic political debate program, 'Question Time'. Here, the normally articulate Steve Coogan hesitatingly rambled out an opinion on an obvious issue of UK public concern. Why? Because of his concern that he would be labeled a racist. Coogan's irrationally rational fear of being labeled, weakened an important debate.

The pursuit of sensitivity might be the finest (short term) ally of civility, but in the long term, the objectified pursuit of sensitive speech is a terrible enemy of freedom.

For New Yorkers, this is a terrible decision. The MTA are trying to claim that their 'disclaimers' will protect future 'viewpoint' based adverts. However, the new rules seem deliberately designed to restrict adverts like the recent 'Defeat Jihad' ad. It appears that free speech opponents like Mona Eltahawy,  who think that they have the right to destroy speech, have won out. Eltahawy is unashamedly claiming as much on twitter.

While I am confident that the courts will ultimately overturn the MTA ruling, until then, In New York, intimidation has won out.


  1. Would everybody be fine if I put up a poster "Hitler did nothing wrong, he tried to save us from the Sneaky Jews"?

    Who wants to make a bet that wouldn't be protected. Yet calling all Muslims Savages (Jihad is one of the pillars of the Islamic faith, it represents struggle from spiritual to war to anything that involves struggle) and that we must defeat them is perfectly fine?

    It was hate speech, not only was it hate speech, it was the exact same words used to justify genocide many times before.

    1. They wouldn't be happy but they would have to accept it. Free speech does not permit political content based restrictions.