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David Yerushalmi Files Opening Brief in Appeal of District Court Order that Allowed MTA to Sidestep an Injunction and Refuse to Display Pamela Geller's Ad
August 21, 2015
- 15-1997 Appellants' Brief.ECF Filed

New York, NY (August 21, 2015) — Today, lawyers for Pamela Geller, Robert Spencer, and their non-profit organization, American Freedom Defense Initiative (AFDI), filed their opening brief in their appeal to the U.S. Court of Appeals for the Second Circuit, appealing a federal district court's ruling that "dissolved" the court's earlier order requiring the New York City's Metropolitan Transportation Authority (MTA) to run Geller's "Hamas Killing Jews" advertisement displayed below.

Judge John G. Koeltl, presiding in the United States District Court for the Southern District of New York in downtown Manhattan, had earlier ruled on April 20 that the MTA's refusal to run the ad (the MTA claimed that Muslims in New York might understand the ad to be advocating violence and would therefore incite them to murder Jews as Islamic worship) was unconstitutional. In fact, Judge Koetl ruled that there was no evidence of any threat of violence.

The court stayed (i.e., postponed) the enforcement of its order for 30 days to give the MTA time to appeal or to work out the logistics of running the ad. The MTA did neither. Instead, it convened a public board meeting at which MTA board member Charles Moerdler ranted incoherently about hate speech and Geller's newly proposed ads designed to expose wealthy Jews who supported boycotting, divesting, and sanctioning Israel—what is referred to as the BDS movement. At the conclusion of the meeting, the board voted to change the MTA ad policy by excluding all speech that, according to MTA officials, addressed "disputed" causes and issues. On the heels of that decision, the MTA filed a motion to "dissolve" the court's previous order to run the Hamas Killing Jews ad on the grounds that the MTA was no longer applying the "incitement" provision, but rather a "no political message" provision. The district court granted that motion.

The American Freedom Law Center (AFLC), a national, nonprofit Judeo-Christian law firm, which represents Pamela Geller, Robert Spencer, and AFDI, opposed the motion on numerous grounds, not the least of which was that the MTA's conduct was and continues to be in bad faith and a transparent effort to silence Geller's criticism of Islamic terrorism and the media bias against Israel.

David Yerushalmi, AFLC Co-Founder and Senior Counsel, explained, "We believe strongly that the court has misread the First Amendment law regarding limited public fora and thus applied the wrong, less exacting standard. We are confident this ruling will be reversed and the MTA will run the Hamas Killing Jews ad, which highlights the murderous nature of Islamic jihad."

Robert Muise, AFLC Co-Founder and Senior Counsel, added, "This appeal is important for all freedom loving Americans because the government should not be permitted to violate the First Amendment and then on the heels of an adverse court decision simply modify its rules to avoid the consequences of its unlawful behavior."

Muise continued, "If we can't get the Second Circuit to protect the First Amendment through this appeal, then we will consider Supreme Court review. This issue is that important."

AFLC has now won two federal lawsuits against the MTA, one against the Washington, D.C. transit authority, and one against the Philadelphia transit authority on behalf of its clients, Pamela Geller, Robert Spencer, and AFDI. Cases are still pending in Detroit, Boston, Washington, D.C., and Seattle.

The American Freedom Law Center is a Judeo-Christian law firm that fights for faith and freedom. It accomplishes its mission through litigation, public policy initiatives, and related activities. It does not charge for its services. The Law Center is supported by contributions from individuals, corporations, and foundations, and is recognized by the IRS as a section 501(c)(3) organization. Visit us at www.americanfreedomlawcenter.org.

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