Global Freedom of Expression

American Freedom Def. Initiative v. Southeastern Penn. Transp. Auth.

In Progress Expands Expression

Key Details

  • Mode of Expression
    Pamphlets / Posters / Banners
  • Date of Decision
    March 11, 2015
  • Outcome
    Law or Action Overturned or Deemed Unconstitutional, Provisional Measures/ Precautionary Measures for those who exercise FoE, Injunction or Order Granted
  • Case Number
    No. 2:14-cv-5335
  • Region & Country
    United States, North America
  • Judicial Body
    First Instance Court
  • Type of Law
    Constitutional Law
  • Themes
    Commercial Speech, Hate Speech, Religious Freedom
  • Tags
    Content-Based Restriction, Ban, Civil Society Organizations, Advertising

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Case Analysis

Case Summary and Outcome

The Eastern District Court of Pennsylvania granted a preliminary injunction ordering SEPTA to display an advertisement from the AFDI, because SEPTA’s “anti-disparagement standard” likely violated the AFDI’s First Amendment rights.


The defendant, the Southeastern Pennsylvania Transportation Authority (SEPTA), allowed advertisements on its properties, vehicles, and products, subject to an “anti-disparagement standard.” The standard prohibited “advertising that tends to disparage or ridicule any person or group of persons on the basis of race, religious belief, age, sex, alienage, national origin, sickness or disability.”

The plaintiff, the American Freedom Defense Initiative (AFDI), wished to advertise on SEPTA’s vehicles. The advertisement it wished to display stated: “Islamic Jew-Hatred: It’s in the Quran. Two Thirds of All US Aid Goes to Islamic Countries. Stop the Hate. End All Aid to Islamic Countries.” It also displayed an image of Adolf Hitler meeting with Haj Amin al-Husseini, with the caption, “Adolf Hitler and his staunch ally, the leader of the Muslim world, Haj Amin al-Husseini.”

SEPTA refused to display the advertisement on the ground that it violated SEPTA’s anti-disparagement standard. AFDI sued claiming that SEPTA’s anti-disparagement standard violated AFDI’s First and Fourteenth Amendment rights. AFDI sought a preliminary injunction against SEPTA’s exercise of its anti-disparagement standard, and an order that the advertisement be displayed. The Court agreed that, as applied, there was a sufficient likelihood that SEPTA’s standard was unconstitutional, and therefore, issued the injunction.

Decision Overview

Goldberg, J., delivered the opinion of the Court. In order to issue a preliminary injunction, the only question before the Court was whether AFDI stood a substantial likelihood of success on the merits. In order to determine likelihood of success, the Court was required to analyze the following: 1. Whether AFDI’s ad constitutes protected speech under the First Amendment; 2. If so, the nature of the forum created by SEPTA’s advertising space and the appropriate level of scrutiny; and 3. Whether the anti-disparagement standard survives the applicable level of scrutiny.

First, the ad contained references to political (foreign spending) and religious (interpretation of religious texts) issues, which are both clearly areas of protected speech under the First Amendment. Thus, the first element was met.

Second, because SEPTA had previously allowed political and public advertising, its advertising spaces were considered a sufficiently public forum.

Finally, the Court found that SEPTA’s standard was a content-based restriction, and accordingly applied the strict scrutiny to the anti-disparagement standard. In doing so, it found that the standard was not absolutely necessary to accomplish a compelling government interest, because SEPTA’s anti-disparagement standard would have the same “beneficial effect” even if its prohibition was not limited to the specific enumerated groups. Thus, the third element to establish a likelihood of success was met.

Accordingly, the Court found that AFDI had a sufficiently high likelihood of success on the merits of its constitutional claims, and issued an injunction requiring SEPTA not to apply the standard in question with an order to display AFDI’s advertisement.

Decision Direction

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Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

For the time being, the case expands expression, because in deciding success on the merits was sufficiently likely, the court required SEPTA to clarify its advertising standards and procedures. It also prevented the suppression of a controversial (if bigoted) message. However, the merits of this case are yet to be decided. This was a decision to issue a preliminary injunction, so the court needed only to decide whether success on the merits was sufficiently likely.

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

National standards, law or jurisprudence

  • U.S., Oburn v. Shapp, 521 F.2d 142 (3d Cir. 1975)
  • U.S., Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797 (3d Cir. 1989)
  • U.S., AT&T Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421 (3d Cir. 1994)
  • U.S., Punnett v. Carter, 621 F.2d 578 (3d Cir. 1980)
  • U.S., Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788 (1985)
  • U.S., New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
  • U.S., NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982)
  • U.S., Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp., 515 U.S. 557 (1995)
  • U.S., Ford v. Se. Pa. Transp. Auth., 374 F. App’x 325 (3d Cir. 2010)
  • U.S., Christian Legal Soc. Chapter v. Martinez, 561 U.S. 661 (2010)
  • U.S., Hague v. Comm. for Indus. Org., 307 U.S. 496 (1939)
  • U.S., Christ's Bride Ministries v. Se. Pa. Transp. Auth., 148 F.3d 242 (3d Cir. 1998)
  • U.S., Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983)
  • U.S., Pittsburgh League of Young Voters Educ. Fund v. Port Auth., 653 F.3d 290 (3d Cir. 2011)
  • U.S., Pleasant Grove City v. Summum, 555 U.S. 460 (2009)
  • U.S., Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995)
  • U.S., Lehman v. City of Shaker Heights, 418 U.S. 298 (1974)
  • U.S., DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ., 196 F.3d 958 (9th Cir. 1999)
  • U.S., Planned Parenthood Ass'n v. Chicago Transit Auth., 767 F.2d 1225 (7th Cir. 1985)
  • U.S., N.Y. Magazine v. Metro. Transp. Auth., 136 F.3d 123 (2d Cir. 1998)
  • U.S., Brown v. City of Pittsburgh, 586 F.3d 263 (3d Cir. 2009)
  • U.S., United States v. Marcavage, 609 F.3d 264 (3d Cir. 2010)
  • U.S., Consol. Edison Co. v. Pub. Serv. Comm., 447 U.S. 530 (1980)
  • U.S., R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)
  • U.S., Elrod v. Burns, 427 U.S. 347 (1976)

Case Significance

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Case significance refers to how influential the case is and how its significance changes over time.

This case did not set a binding or persuasive precedent either within or outside its jurisdiction. The significance of this case is undetermined at this point in time.

The decision was cited in:

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