Pamela Geller’s pro-Israel ad is bigoted and idiotic. And she has a clear First Amendment right to post it in the New York subway.

Pamela Geller is an idiot and a bigot. And like all such, she has a clear First Amendment right to express her ideas in the New York subway.

The title of this post more or less speaks for itself, I think. I wish the issue did as well.

Pamela Geller wants to run an ad in the New York subways that says opponents of Israel personify “the savage.”  The ad is bigoted and idiotic (image below the fold, if one cares). But the First Amendment does not contain exceptions for bigotry or idiocy. The Metropolitan Transportation Authority is a public agency. Public transit agencies are required to run ads even when they can’t stand their content.  (The famous case here is Lebron v. Washington Metropolitan Area Transit Authority, famous partly because the decision telling the Washington Metro that it couldn’t ban a satirical poster critical of Ronald Reagan was written by Robert Bork. He was actually good on most First Amendment issues and knew the difference between protected speech and approval of the speech thus protected.)

I have little doubt that Geller’s threat to sue the MTA will cause it to reverse its ban on the ad, as a similar threat by Geller did in the past. The MTA presumably knows its constitutional law by now, but has cynically calculated that it will gain PR benefits by initially denying Geller’s rights and appearing to grant them only later, reluctantly, and under threat of litigation. One of these days the geniuses who run the MTA may start to realize that denying Geller her rights, repeatedly, only helps a powerful racist spread her opinions and play the underdog.

And yes, this means that Geller should enjoy the same First Amendment rights that she would deny to Muslims seeking to build a community center several blocks from Ground Zero. The right to free speech, as always, protects the self-aware and the hypocrite alike.

Here’s the ad Geller wants to run:

 

 

Pamela Geller subway ad calling opponents of Israel "the savage"

 

Author: Andrew Sabl

I'm a political theorist and Visiting Professor (through 2017) in the Program on Ethics, Politics and Economics at Yale. My interests include the history of political thought, toleration, democratic theory, political ethics, problems of coordination and convention, the realist movement in political theory, and the thought of David Hume. My first book, Ruling Passions: Political Offices and Democratic Ethics (Princeton, 2002) covered many of these topics, with a special focus on the varieties of democratic politics and the disparate qualities of mind and character appropriate to those who practice each of them. My second book Hume's Politics: Coordination and Crisis in the History of England was published in 2012; I am currently finishing a book on toleration, with the working title The Virtues of Hypocrisy, under contract with Harvard University Press. A Los Angeles native, I got my B.A. and Ph.D. from Harvard. Before coming to Yale I taught at Vanderbilt and at UCLA, where I was an Assistant, Associate, and Full Professor; and held visiting positions at Williams, Harvard, and Princeton. I am married to Miriam Laugesen, who teaches health policy and the politics of health care at the Mailman School of public health at Columbia, and we have a twelve-year-old son.

31 thoughts on “Pamela Geller’s pro-Israel ad is bigoted and idiotic. And she has a clear First Amendment right to post it in the New York subway.”

  1. In the Lebron case to which the post links, Judge Bork, in finding a First Amendment right to display the political ad, added:

    “I note that this conclusion does not necessarily place WMATA in the position of having to accept and display before its riders deceptive political advertising. If that prospect is repugnant it can possibly be avoided by declining to accept political advertising in general.11 The availability of that recourse, at least as far as this court is concerned, depends upon whether subway stations are more akin to airports, see Southwest Africa/Namibia Trade & Cultural Council v. United States, 708 F.2d 760 (D.C.Cir.1983), or to public buses, see Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974). See also Members of the City Council of Los Angeles v. Taxpayers for Vincent, — U.S. —-, 104 S.Ct. 2118, 2134 n. 32, 80 L.Ed.2d 772 (1984). We need not reach that issue here.”

    Lehman, the public bus case, held that the government may ban all political ads. I don’t know whether any subsequent case has addressed the question as it applies to trains or train stations.

    1. While I’m not sure whether the MTA allows “political” ads in the strict sense (“vote for X”), because I’ve never been in New York during an election season, it definitely has no ban on ads expressing general political or social viewpoints (or if it attempted such a ban, it was struck down—see the previous, loathsome Geller ad).

  2. “The MTA presumably knows its constitutional law by now, but has cynically calculated that it will gain PR benefits by initially denying Geller’s rights and appearing to grant them only later, reluctantly, and under threat of litigation.”

    Andy, this may be unfair. It is possible that the people at MTA feel genuinely offended by the ad and want to make that statement to reflect their values, even though they know the law will trump those feelings (Just as you wrote this post to express your feelings knowing it would not have a legal impact).

    1. Writing a blog post is not analogous to expressing oneself by violating the Constitution (assuming for the sake of argument that the MTA violated the Constitution). The MTA action will have a legal impact, even if the MTA ultimately loses. It will delay the appearance of the ad, it will cost the plaintiffs time and money to win their suit, and it will cost taxpayers money to pay for the courts and their employees. And the MTA will likely suffer no consequences except to be forced to allow the ad. The Constitution is the highest law of the land, and government officials should feel free to violate to express their feelings.

        1. Boy this new reply thread thing is weird.
          Henry your comment isn’t in conflict with mine. Andy said that the people at MTA are being cynical, I am saying perhaps they are being human and in that sense it is exactly like writing a blog post — people want to express deeply held values. Whether it’s legal is not something I argued, rather I argued that the MTA decision makers may be human beings with strong feelings rather than cold hearted and cynical bureacrats.

          1. Ok; I guess that our comments reflect that I’m a lawyer and you’re a psychologist. But I want to emphasize that bureaucrats are not entitled to have strong feelings qua bureaucrats. They should enforce the Constitution while on the job and then express their feelings to their spouses at home. I recognize that you did not say otherwise.

    2. Keith, from what I’ve been reading, this doesn’t seem to be the case. By all appearances (i.e., from what I can read in the news), the MTA seems to genuinely think that Pamela Geller’s ad violates their advertising guidelines, according to which ads may not “demean an individual or a group of individuals”.

      Are those advertising guidelines compatible with the limits imposed by the First Amendment? Interestingly enough, they may be, as another case from February illustrates: http://seattletimes.nwsource.com/html/localnews/2014271060_busads19m.html

      In short, one can view advertisement surfaces as a so-called limited public forum, which would allow some constraints as to which speech the MTA may permit (which must still be viewpoint-neutral and have a legitimate purposes, as I understand it).

      Is that actually the case? I don’t have the foggiest clue myself; this is a pretty arcane part of First Amendment jurisprudence that also involves some controversial case law. But at the very least the MTA may honestly believe they have the law on their side without that being obviously wrong.

      And even if not, individual MTA officials are unlikely to have the power to set aside the advertising guidelines because they personally believe they’re unconstitutional.

    1. Why immediately leap to the thought of censorship? You’re equally free to buy advertising space in the same venue, why isn’t that good enough for you?

        1. So, one might say the majestic equality of the law allows rich and poor alike to purchase advertising space with which to display their hate speech?

          1. One might also say that you’re free to find other people who agree with you, and band together to buy that ad.

            There’s still the fundamental divide between people who see a sentiment expressed they disagree with, and long for a chance to challenge it, and people who see a sentiment expressed they disagree with, and long for a chance to silence it. As a nation we’ve made the former choice constitutional law, but I doubt we’ll ever be free of folks who attempt to implement the latter approach.

          2. Couldn’t reply to Brett, so I’m doing it here. I tend to agree. But there are also standards of decency. If you can’t put up ads of pornographic or violent imagery, why can you put up violent words? Can you swear on billboards? Can you say ni**er? Geller’s getting awfully close. Maybe no law ought be broken. But expressing outrage that demands censorship of offensive material is perfectly reasonable.

  3. What on Earth?… I am not at all convinced the refusal is unconstitutional. The board has rejected other advertising in the past–the question is why. Could they reject an ad by a Holocaust denier? Chances are most people supporting Geller from the right would say “Yes!” They certainly objected to the supposed “peace” ads that call for “end of military aid to Israel”. How removing military support from one side of a conflict is supposed to engender peace (unless it’s eventual peace through genocide) is not clear. And those ads are extremely flawed–it would have made much more sense to call for end of all military aid in the region. So I am somewhat inclined to accept Geller’s premise that the “peace” ads are anti-Israel. But they are political, not bigoted. Unfortunately for the MTA, accepting those ads immediately closes the most obvious defense path–rejecting ALL political ads would have allowed them to reject the Geller/JihadWatch nonsense.

    Still, there is an opening. The MTA policy must be viewpoint neutral. But it need not be language neutral. That is, MTA would be allowed to reject ads that contain patently offensive or inciting language. They would be within their rights to reject an ad that reads “Eat shit and die!” or “No more niggers on public beaches!” (a sentiment that was behind some urban planning in NYC and LI suburbs). But what about such brilliant sentiments as “Holocaust was a lie!” or “Don’t vote for Jews!” (or substitute any group into the latter). All four of these are protected individual speech. But would this protection extend to commercial public display? (And it’s commercial not because the group is trying to make money, but because MTA charges for the display.) The Geller poster comes very close to these in the inflammability of the expression, not its ultimate message. If you don’t think the other four messages should be protected, this one should not be either. I don’t really see it as a slam dunk that Andrew thinks it is. It’s the qualitative vs. quantitative distinction here–some messages are qualitatively unacceptable. As soon as we start measuring them quantitatively, they are protected. This is why viewpoint neutrality of the policy is essential–we can’t censor a part of the spectrum, but we can block the entire spectrum. So the real issue is how to classify this poster. I am sure judges will go out of their way to identify a category that provides an exemption from 1st Amendment protections.

    1. “Could they reject an ad by a Holocaust denier? Chances are most people supporting Geller from the right would say “Yes!” ”

      I wouldn’t. But then, all I support is her right to run the ad.

      I am a little unclear about why you couldn’t say that, at the least, a lot of Israel’s enemies ARE savages. Unless the point is that you have to attack your day care facilities with stone axes rather than bombs to so qualify?

  4. To my knowledge, Pam Geller, as horribly terrible and offensive a person as she is, has the right to say and publish pretty much anything she wants short of libel. She does not have a First Amendment protection to place her words and writings anywhere she wants. The First Amendment disallows Congress from passing any law to ban “N***ers Have No Souls”, “God Hates F**s!”, “Jews Killed Jesus”, or “Arabs are Savages” posters; the MTA is under no such restriction and is perfectly within their rights to not allow the ad*. In order to protect themselves, they have to have a well-stated policy and be consistent in what is allowed or not. However, as long as they have a policy and are consistent, they should survive any challenge by the horribly terrible and offensive Ms. Geller.

    *I suppose in order to cover my butt here I should note that if the state or city has specific policies regarding this type of situation, my answer may vary.

    1. Despite the word “Congress,” the First Amendment applies to all federal, state, and local government entities, not just to Congress. No one, including so-called strict constructionists, disputes that.

      1. But we are not talking about Federal, State, or Local government’s passing any law abridging speech. No law forbidding Pamela Geller from saying any stupid hateful thing she wishes to say is at question here. Pamela Geller can say and write pretty damn near anything she wants and she utilizes this right daily. Unless MTA policy allows for such postings, or the MTA has allowed similar garbage in the past, Geller has no constitutional right to post her bile in the NYC subways.

        1. You’re still reading the First Amendment too literally. The executive branch doesn’t pass laws, but it is covered by the First Amendment. The First Amendment restricts all branches of federal, state, and local government from infringing freedom of speech by any actions they take, whether passing laws or otherwise.

          As I noted in a comment to the post above this one, the MTA might be permitted to ban all political speech, regardless of content, but it may not discriminate on the basis of content.

      2. I’m afraid Justice Clarence Thomas disagrees with you. I’m not sure of his position on the freedom of speech and the press in this regard, but he most certainly believes that the Establishment Clause does not apply to the states. And he unfortunately sits on the Supreme Court, if I’m not mistaken.

  5. “In any war between the poor and powerless man and the greedy, money-grubbing land thief, support the poor and powerless man. Support Palestine. Defeat the occupation.”

    How about that for a subway poster, Pam?

  6. How about when the poor and powerless man happens to be a homicidal maniac, who’s only falling short of committing genocide because he IS poor and powerless? It would be a lot harder to take Israel’s side in this conflict, were the Palestinians not in practice so vicious. You know, all those missiles being launched over the border, suicide bombings, and so forth.

    I mean, ok, the Palestinians can’t afford more than a few hundred Qassam rockets a year, because they’re poor. That’s supposed to make them the side of justice?

  7. That’s supposed to make them the side of justice?

    Throughout history and across all cultures, the poor and oppressed have been celebrated in song and story when they rise up and violently throw aside their oppressor. So as a general principle then, I’d say, “Why indeed yes, that is the case.”

  8. But they’re not rising up and violently throwing aside their oppressor here. They’re rising up and violently assaulting their neighbor, who consequently finds that oppressing them is the only way to deny them effective weapons with which to carry out the assault.

    The poor and oppressed have no special moral waiver to commit murder. Being poor doesn’t make you a saint, or even nice.

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