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Questionable New Policy Moots Suit Over MTA's Anti-Muslim Ad Ban

By Casey C. Sullivan, Esq. on March 10, 2016 | Last updated on March 21, 2019

A lawsuit over the New York Metropolitan Transit Agency's refusal to run anti-Muslim ads has been mooted by the Agency's new advertising standards, the Second Circuit ruled last week. The American Freedom Defense Initiative, famous for insulting billboards and "draw Muhammad" contests, had tried to run the controversial ad on New York City subways and busses. The MTA denied the ad, on the grounds that it incited violence.

AFDI won in court, promoting the MTA to change its advertising policy. The ad was still banned, but now because it was "political," and that was enough to moot the case, the Second Circuit ruled.

Taking the A Train to Crazy Ville

Here's how the district court described the ads:

The advertisement portrayed a menacing-looking man whose head and face are mostly covered by a head scarf. The ad includes a quote from 'Hamas MTV:' 'Killing Jews is Worship that draws us close to Allah.' Underneath the quote, the ad stated: 'That's His Jihad. What's yours?'

So, you know, a break from the regular Doctor Zizmor ads.

The MTA refused to run the advertisement on the grounds that it was "reasonably likely to incite violence." Incitement is one of a handful of characteristics that the MTA prohibits in advertisements.

We'll Just Switch the Prohibition Around a Bit ...

When the AFDI sued, the district court ruled that the MTA's incitement policy violated AFDI's First Amendment rights. They enjoined the agency from enforcing it -- though just as to the ad in question. The court did not strike down the provision entirely.

Following the ruling, the MTA changed its advertising standards. They not only held on to the incitement prohibition, but they added a new prohibition on any advertisements that are "political in nature," telling AFDI that its ad was banned under this new provision. And the switch seems to have worked, at least for the moment.

That's Good Enough for the Second Circuit

With new rules in place and a new justification for denying the ad, the MTA moved to dissolve the injunction, arguing that the AFDI's claims were now moot. The court agreed.

Instead of amending its complaint to challenge the constitutionality of the new regulations, AFDI appealed the dissolution of the injunction.

As the Second Circuit noted, voluntary cessation does not usually result in a finding of mootness, given the fact that the challenged conduct could quickly resume in the future. However, voluntary cessation can moot a case when there is no reasonable expectation that the conduct will reoccur and interim events have "completely and irrevocably eradicated the effects of the alleged violation."

That's what happened here, the Second Circuit ruled. The MTA's new advertising policies have "altered its conduct in a manner sufficient to present a fundamentally different controversy," the court ruled. A prohibition against incitement raises significantly different legal issues than one against political advertising. Further, there is no reason to believe that the MTA will apply the (still present) incitement prohibition to the AFDI ad, given assurances from the Agency.

That, of course, doesn't end the controversy. We expect to see the AFDI and the MTA back in court soon, duking it out over the new advertising standards.

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