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.

Facts

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.