I think Andy’s post below is grossly over-fair to Pam Geller, and less than fair to the people who run the New York subway system.
It’s not “opponents of Israel” whom she characterizes as “savages,” but Arabs. The poster is at the moral level of the Jew-baiting cartoons in the Völkischer Beobachter.
That may not change the Constitutional situation; I take it Andy is right about that. But if the law really compels the MTA to transmit racist gutter speech, that strikes me as a bug, not a feature.
Not allowing a particular message to appear in the subway is not the same as censorship. Geller should be free to publish a newspaper full of such garbage, but the riders of the MTA should be free to ride without having her racism shoved in their faces. Certainly insofar as the MTA has a choice legally, I think the choice it ought to make is clear: it should refuse to take her money.
This strikes me as radically different from a poster making fun of Reagan, or of Obama, simply because political discourse - even at its crudest - is on a different level from racial slander.
I guess this is a New York thing? To my eyes, that ad is practically meaningless. What battle is she talking about? The Palestinian bid in the UN? The mosque location? I have no idea. All it says is “jihad,” which could mean almost anything. And from the little I know about it, is a Muslim term which refers to one’s internal struggle against evil impulses, a battle all of us have to fight. NOT a fight with “Western” civ. (I disagree that Islam is not Western.)
So, I don’t get it.
But, I’ll say this — I wouldn’t want to have to look at that. It’s visually obnoxious.
We in LA have to fight the same battle right now — the City is trying to put (more?) ads in our parks.
“And from the little I know about it, is a Muslim term which refers to one’s internal struggle against evil impulses,”
And/or waging all out war on unbelievers. As I understand it, the whole “one’s internal struggle” take is fairly recent, and absolutely not universally adopted. Though it certainly would be nice if all Muslims understood it to mean that…
Is this based on your extensive reading of the Koran and its commentaries?
No, it’s based on my not deliberately ignoring the news.
Hahaha. Spare me. I’ll file this under the “Things that are not engineering and thus about which Brett knows absolutely nothing” category along with, well, pretty much everything that isn’t engineering or guns.
I think I may reasonably infer that, whatever the average Muslim means by “jihad”, Muslims who are members of, for instance, Islamic Jihad, do not mean by it spiritual struggle.
Hm, is there a limit on how deeply comments may nest?
There seems to be a limit on how deeply comments can nest, but not how deeply you can dig when you find yourself in a hole. You just asserted that a claim about “the average Muslim” gains significant support from a fact about Islamic Jihad. I hate to break it to you, but the most Muslims are not members of Islamic Jihad. The average Islamic Jihad membership of Muslims is on the order of one in ten million. You’re an engineer so I think you know that 0.0000001<0.5.
Similarly the average liberal Democrat thinks liberal Democracy is fascism because the Russian Liberal Democratic party is (or I hope was) fascist. Allowing an extremist group to define a word is insane.
Note that I have not speculated about how the average Muslim interprets the word "jihad." I am discussing your indifference to numbers.
Actually, to speculate, I'd guess "jihad" is to Muslims as "crusade" is to Christians. Christians do not necessarily mean holy war when they say "crusade," but sometimes they do (I write in the third person because I am an atheist).
Why would you think this a revelation to me? I know quite well that the vast majority of Muslims probably do regard “spiritual struggle” as at least the primary meaning of “jihad”. I simply denied that it’s the only meaning, which NCG was apparently suggesting.
Under these rules, there could be no possible objection to a poster depicting a bunch of hook-nosed soldiers, each one wearing a Star of David, firing their weapons into a crowd of screaming Arab children. Or am I missing something?
Except that will never be accepted by the MTA, or any other quasi-governmental organization in the USA.
After all, the 1st Amendment has limits - as Geller herself has enforced.
Mark: in the tradition of RBC honesty and forthrightness …
I strongly dislike the “reply” button. Nothing is broken, so why fix it? I like having *one* conversation going on each post.
I strongly agree with you, NCG; that “reply” button should go! May God strike me dead if I ever use it!
Grrhhhraaahhhh…
To toss in an opposing view - nested conversations are much easier to follow. I’m happy to see the addition and hope everyone will use it when responding to another comment.
Agreed.
Paul: you raise a very interesting question. A while back, I had to complain to my councilman about street-level ads for one of those “Saw” movies. (As in, no I haven’t “seen” any of them… ba-dump-bump).
I got nowhere. They were happy to tell me that local government has diddly to say about commercial speech (though in this post, we’re talking … I suppose … about political speech. If you interpret “speech” quite broadly that is. I still don’t know what this lady is trying to say.)
You can pretty much show practically anything to anyone now.
Paul: I would have every possible objection to the anti-Semitic poster. And the anti-Semite would, I think, have a right to buy ad space from the public entity despite the objections of you, me, and every other decent person.
Other countries have group defamation rules that don’t work like this. Some ban group slander based on religion but not race, some the opposite, a few both. I tend to think that we do very well from our “allow everything, ignore idiocy” policy, and don’t experience noticeably more bigotry against Arabs or Muslims than France or Germany does as a result of having no laws against defaming them (au contraire).
Mark: I agree with NCG. It’s clear that Pam is proudly asserting her own bigotry against some group, but not clear which. And by the way, the poster in the Washington Metro case basically accused Reagan not merely of disagreeable politics but of being a racist.
You don’t address the difference between banning speech and refusing to post an ad. The NY Subway is not threatening Geller with prison. This is a tricky issue, since ordinary property law gives great power to restrict debate to great property owners. But you just don’t address the argument “Not allowing a particular message to appear in the subway is not the same as censorship.”
Also your aside almost seems to equate racism and the accusation of racism. To call Reagan a racist may be unfair, but it isn’t racist. It is a criticism of one person not of a race.
By the way, you did type “by the way,” but you seem to see some connection between the cases. I don’t see what it might be. I think that we can agree that appeals to racism should not be criminalized (note I live in Italy where they and many other speech acts are classified as crimes). I think we agree that the NY Subway should not be free to choose what advertisements to post as it pleases (it is very large and publicly owned). I think that political debate should be especially protectes, so rude claims about politicians should be allowed. I don’t think that rude statements about adherents of a religion should be especially protected (allowed yes, not imposed on the Subway).
When going beyond recognising a right to say something to recognizing a right to post it on the Subway, I go utilitarian. Geller’s contribution could not possibly serve a useful purpose. So the Subway isn’t required to post it. The rule must be anonymous (can’t include the word Geller). But a rule such as “we don’t carry incitements to racism, sectarianism, xenophobia or sexism” seems excellent to me.
Your argument goes step by step from rejecting laws punishing political speech to rejecting laws punishing racist speech to requiring the Subway to treat one statement just as it treats another. Along the path you assume that the change changes nothing. So if officials must not be allowed to make any consideration of the usefulness of political speech when deciding who to lock up, they must not discriminate against racism in posting ads. This sort of logic is a reducto ad absurdum. Surely you are familiar with Nozicks tale of a slave ?
I find it strange that both Andrew Sabl and NGC have trouble sussing out just who the “savage” is here. Perhaps it’s because I am familiar with Pam Geller’s work, but it seems pretty clear to me — she hates Muslims. All Muslims. Violent terrorist Muslims because they commit terrorism, and all other Muslims because they might.
I sympathize with the First Amendment concerns here, but I think the MTA is not a dangerous slippery slope of censorship in their choice of allowable advertising. New York would not be improved, nor freedom enhanced, by a battle of the brown Arab savages vs. the hook noses on the Lex line.
Let’s leave subway advertising to the podiatrists and their carbuncle cures. The First Amendment will survive.
This is the issue: You’re sure that the primary objects of Geller’s hatred are Muslims; Mark, that they’re Arabs. I suspect that Geller hates both Muslims and Arabs because she’s too stupid to know the difference. But if the issue were group defamation (that is, if we had a free speech regime that made exceptions for group definition), whether the hatred on this particular poster were religious or ethnic would be genuinely unclear.
As for allowing only commercial speech: would you rather Geller put “please pay me to put up more of these ads” on the bottom of each one?
Agreed that it’s unclear whether Geller hates Palestinians because they’re Arabs or because they’re Muslims (which of course some of them aren’t). What’s clear is that she regards the war in Israel/Palestine as a battle between “civilized people” and “savages.”
Dear Andrew Sabl
Who proposed allowing only commercial speech ? The only appearance of the word “commercial” above was NGG referring to another incident which he Ior she) considered relevant, because no one here would argue that commercial speech deserves extra protection.
I don’t want to be banned or anything, but I don’t think you are debating rationally. I have the impression that you haven’t read the comments above, thought, then typed. It almost seems as if you read just a few words then typed.
EMRVentures,
I sympathize with your position. I even think it is normatively correct. I don’t like First Amendment fundamentalism. (Most nice countries live nicely without it.) But it does seem to be the law in this country. And given some of the censorious goons floating around, maybe that’s a good thing.
Is it the law though? I haven’t seen any 1st Am lawyers chime in here, but my understanding is that the government has fairly wide latitude in imposing reasonable restrictions in the doling out of their commercial real estate — very different from the lines that would be drawn in a prior restraint case. I don’t think anyone would argue that the MTA has to host pornography or violence on the subways, and a decision not to host advertising that denigrates a group of people in a fairly straightforward way (“savages”) doesn’t strike me as an unreasonable line to draw.
Of course, once you draw a line, someone will try to blur it, and I realize that there has been stuff on NYC subways that goes pretty heavy on the politics and that some have found offensive.
Reasonable restrictions are fine, but they can’t be content-related. (I’m not a First Amendment lawyer-I’m just a lawyerly servant of Mammon.) Some things, like obscenity (whatever that is) don’t count as “content.” I think that violence counts as content. Maybe a real expert could chime up.
Lehman v. City of Shaker Heights seems to be the touchstone case in this area. http://www.law.cornell.edu/supct/html/historics/USSC_CR_0418_0298_ZS.html
Basic ruling — trolley cars are not public forums. City of Shaker Heights doesn’t have to accept political advertising. There seem to be some later cases that refine the basic principle, coming down on the side of appropriate time, place and manner restrictions when the government is selling ads, as opposed to hosting a public forum.
A question for the lawyers: does the first amendment apply because the body selling the space is a public entity? Would the same thing apply to a private owner of a billboard? What if the subway was run by a private company? I’m guessing I know the
answer (since newspapers are [I think?] free to refuse to accept ads)-but a guess is just that.
I’m only thinking of “political speech” here.
The First Amendment provides that “Congress shall make no law … abridging the freedom of speech … ,” and the Supreme Court has interpreted that to limit all federal, state, and local government entities, but only government entities. Receiving government funds does not make one a government entity for First Amendment purposes. Sometimes, it is not clear whether an entity is governmental for First Amendment purposes, and the courts will rule on that question if it arises (as the Supreme Court did when it held Amtrak a governmental entity for First Amendment purposes). The Constitution rarely limits the actions of private parties; the only exception that comes to mind is the 13th Amendment, which bans slavery.
Yeah, every year whichever network happens to have Super Bowl rights turns down ads from, e.g., PETA because they don’t take “political” or “advocacy” ads except from certain league-related nonprofits like the United Way. But they’ll take anti-abortion ads from Tim Tebow and his mother. So, you know, hypocrites.
DCA: I’m no expert, but yes, traditionally only the government could censor you, legally speaking. Political speech is supposed to be essential to reasoned debate, which is supposed to save us. Fair enough.
But now we have (d)evolved to the point that the Supreme Court won’t even let the public decide to even the political speech playing field by subsidizing candidates who only take public campaign funding, when they run against rich candidates. That is, you can do that, sort of, but you can’t increase the amount if the rich person, or some independent group, drops huge piles of cash on the public candidate’s head. In other words, under no circumstances can the inherent advantage of being rich enough to buy unlimited political speech be in any way counteracted in favor of … reasoned debate.
So, I “feel” what Scrooge is saying, as the kids say. Our First Amendment jurisprudence has taken a turn for the weird. And I agree the republic would probably survive without a lot of these “ads.”
On the positive side, she wasted her money. That’s got to be a good thing.
“But now we have (d)evolved to the point that the Supreme Court won’t even let the public decide to even the political speech playing field by subsidizing candidates who only take public campaign funding, when they run against rich candidates.”
Well, yes. (Set aside for a moment that “the public” isn’t deciding these things. “The government” is.)
The government has no proper interest in who wins elections. None at all. It is spending the tax money of people who are supporters and opponents of all the candidates. It therefore has to treat the candidates impartially. Giving money to some of them, and not others, on ANY basis, discriminates among the candidates.
IOW, under no circumstances can the government punish you for spending your own money on speech advocating your election, by giving money to your opponents.
In reality, of course, incumbents are well aware that the power of incumbency gives them a leg up over any challenger, which can in general only be overcome if that challenger, somehow, manages to significantly outspend them, so as to compensate for the franking privilege, power to call press conferences and have the press show up, make campaign speeches on the public dime so long as you pretend they’re official functions, and so forth.
It’s well established that challengers virtually always lose if they can only spend as much as the incumbent. So it’s quite understandable that the incumbents are forever seeking to guarantee equal spending, so as to secure their position. Whatever the dreams and aspirations of campaign ‘reformers’, the actual legislation is virtually always motivated by the self interest of incumbents.
Of course, the quote on the poster is taken almost directly from Ayn Rand, and refers to all of the Arabs. http://www.aynrand.org/site/PageServer?pagename=media_america_at_war_israeli_arab_conflict is the source. The 1973 war was the context.
Good catch
“That may not change the Constitutional situation; I take it Andy is right about that.”
Mark, I think you are wrong here and that you are correct otherwise.
Brett: I know I’m going to regret answering you, but giving more funds to a publicly financed candidate in no way punishes the first one. Sorry but the Supremes got that one wrong.
The highest value of the First Amendment — the *reason* we have it — is to promote free political debate. That is the bedrock value.
Can anyone explain why having more debate would be bad? And please leave aside - for once - your ideas about how public funds get spent (ie, whether you support public campaign finance, b/c of course you don’t). That’s not what we’re talking about now.
Mark, can I vote twice? Having seen it in action, I still don’t like the “reply” button. Whose idea was this?
And btw, lots of Republican candidates use the clean money system. It just lets non-rich people run for office more easily, and pay more attention to policy instead of fundraising while they do it.
Also, in my experience, incumbents don’t usually support clean money at all. In California, we had a very fine bill - Prop. 15 - die a very quiet death in an off-year b/c no one with power or money wanted it. Of either party.
This one really isn’t about Republicans or Democrats. It’s about business as usual. Our system is corrupted by money and we should be trying to stop that. I don’t even think it would change all that much, in terms of policy substance. But it would cut way down on the marginal cr*p that gets passed b/c some rich f**k wants it.
Now, trying (for once!) to be constructive …
if you are going to have this “reply” button, you should at least mark the new replies somehow. Make them a different color?
B/c otherwise I have to read through all the separate convos to try to find who just posted something new.
I think the MTA is in a no-win situation here, since they’re also not allowed to create a hostile environment for either workers or customers.
Just a few observations/comments:
The MTA is a public agency. It would seem to me it must observe the First Amendment. However, it also should have the ability to set reasonable standards for advertising (or to ban all advertising, or to ban all poltiical advertising). Somehow, I think if an advertisor could arrange for a Christmas tree to appear in the subway station, there would be an army of protestors and lawyers threatening action the next day (or the same afternoon). So let’s not pretend that the MTA can’t enforce some rules, or that citizens’ First Amendment rights are absolute on MTA property.
As a paying customer, my preference would be that neither the anti-Israel nor the anti-Jihad ad should appear there. It’s not as if there aren’t plenty of other more appropriate media that would take money for placing those ads. Someone is bound to find either or both of them offensive, and we are offended enough having to pay $2.25 per trip to ride (and be abused on) the subway without having it thrown in our face.
By the way, it’s time for the MTA to do a much better job removing some of the other characters who exploit the condition of confined passengers while they beg, sell or otherwise put the paying customers in annoying situations in moving cars. We could also do without the religious fanatics who use Grand Central Station to distribute their paraphenalia while chanting unintelligible (but very loud) religious slogans. Prohibiting these activities in public areas would offend none of my considerable 1st Amendment sensitivities, since there are plenty of more appropriate outlets for those activities, Judge Bork’s well reasoned and fine distinctions notwithstanding.
One comment I do take objection to is the characterization of Ms. Geller’s ad as racist. The ad is patently political, nationalistic, and possibly religiously discriminatory, but where Israeli’s and Palestinian’s are largely both Semitic peoples, it is hardly racist. As for savagery, my opinion is the same as Brett’s but that’s a different point than the one I am making here.
Redwave72: “One comment I do take objection to is the characterization of Ms. Geller’s ad as racist. The ad is patently political, nationalistic, and possibly religiously discriminatory, but where Israeli’s and Palestinian’s are largely both Semitic peoples, it is hardly racist.”
Well, technically black and white people mostly share the same genotype, too — it’s just that humans being visual people, certain aspects of a human’s phenotype are being given disproportionate weight.
But “race” is an artificial construct; worse, it gets mixed up a lot with ethnicity (especially by racists). Its distinctions are largely arbitrary and unscientific, and often just made up from whole cloth. That the claptrap pseudo-biology of racists does not hold water does not stop it from being racist.
But it’s not the alleged racists using the term, it’s their critics! Shouldn’t words have meaning? The Israeli - Palestinian dispute is about territorialism, nationalism and theocratic indoctrination. It has nothing to do with race.
Commercial speech has lower protection than political speech. The latter must go thru strict scrutiny. So no, the MTA can’t set reasonable standards for political speech like it can for commercial.
The issue here would be the establishment clause. And even then its doubtful that the protesters would win. The establishment clause is not a literal separation of chuch and state, as the lady who is not a witch reminded us. Otherwise church buses could not use the highways. A private citizen expressing religious views on public property is now about as equally protected under the free speech clause as is secular speech, thanks to the RWing court.
Using the establishment clause to justify censorship is no longer a viable option.
And that’s a good thing.
I think Andy’s post below is grossly over-fair to Pam Geller . . .
A phenomenon my daddy always called “praising with faint damn.”
There are time, manner, and place restrictions and there is a concept called “captive audience” but any censorship triggered by these exceptions must be content-neutral.
You can ban speaking thru a loudspeaker at 3am but you can’t ban speaking racist stuff thru a loudspeaker at 3am. I suspect the MTA could ban all political advertisements but there is no fist amendment exception for racist speech.
Manju, just a technical correction of your terminology. A ban on all political advertisements would not be content-neutral, because discriminating between political and non-political ads would be discriminating on the basis of content. It is, however, viewpoint-neutral. Sometimes, the law may constitutionally discriminate on the basis of content, as, perhaps in the case of the MTA’s banning all political advertisements. I can’t imagine, however, that it can ever discriminate on the basis of viewpoint without violating the First Amendment.