Supreme Court Declines to Hear MBTA Free Speech Case

Palestinian and Israeli activists pack an MBTA Board meeting in November 2015. Photo by Garrett Quinn

The Supreme Court declined to take up a case involving the Massachusetts Bay Transportation Authority and controversial ads focused on the Israel-Palestine conflict.

The court announced on Monday that they will not take up the case of American Freedom Defense Initiative v. MBTA. They did not give a reason, a normal practice in this situation.

The case is part of a multi-year battle between the MBTA and activists eager to run ads on MBTA property that began in October 2013 when the Committee for Peace in Israel and Palestine ran anti-Israel ads. The ads depicted the changing borders of Israel and Palestinian territories and said 4.7 million Palestinians are classified as refugees by the United Nations. The ads were briefly pulled before being restored by the MBTA’s advertising contractor.

The American Freedom Defense Initiative attempted to run their own pro-Israel ads that fall, but the MBTA denied their request on the grounds that the ads violated the authority’s policy against ads that “demean or disparage” a group. The American Freedom Defense Initiative’s ad was a black poster with the words “In any war between the civilized man and the savage, support the civilized man.  Support Israel. Defeat jihad.”

The group sued in November 2013 with the help of the American Freedom Law Center and went all the way to the Supreme Court after losing in lower courts.

While they were on their legal adventure, the MBTA created new rules that prevent any kind of political advertising in the future. Board members have suggested privately and publicly that the agency is not equipped to police each and every ad that appears on MBTA property.

Similar bans exist in New York, Ohio, and Washington, D.C.

Boston reached out to Pam Geller at the American Freedom Defense Initiative and the MBTA for comment. We will add their remarks if and when we hear back from them.

UPDATE:

The MBTA sent the following statement from General Counsel John Englander:

The MBTA is pleased that the Supreme Court has declined the request for yet another review of this matter.  Both the District Court and the Court of Appeals have confirmed that the MBTA applied its advertising rules fairly and even-handedly.  Now that the Supreme Court has denied review and the MBTA has revised its policy to decline political advertising of any kind, we are pleased that this issue is settled.

Pam Geller sent the following by email:

We don’t know why, nor does the Court provide any explanation. They get thousands of requests and grant a very few. The case will return to the district court, where we intend to continue with the litigation. We are not going to stand idly by as the MBTA runs vicious anti-semitic libels while arbitrarily denying ads that oppose jihad and sharia. They are cowards and want us to submit to the blasphemy laws under the sharia. They think it makes the city safe to submit, but it only makes it more of a target.