In late August of 2012, the New York City Metropolitan Transportation Authority (MTA) was ordered by the Southern District Court of New York to post a message stating "[i]n any war between the civilized man and the savage, support the civilized man. Support Israel. Defeat Jihad." After the hateful messages were posted, the responses ranged from graffiti on the ads to pro-Muslim ads stating "Love your Muslim neighbors" by Sojourners Magazine, "In the choice between love and hate choose love" by Rabbis for Human Rights, and "Hate speech is not civilized. Support peace in word and in deed" by United Methodist Women. A few interesting points in this controversy are discussed below.

The NYC MTA and the Washington DC Metro have policies prohibiting posting advertisements that contain types of hateful content. In particular, the MTA has a 'no-demeaning' policy which prohibits posting advertisements that demean an individual or group falling within one of the 'specific disfavored' categories (e.g., race, nationality, gender, religion, disability, sexual orientation).

The advocates of the hateful message, AFDI, argued that the MTA policy violated the first amendment, because the policy prohibited free speech. The First Amendment of the United States Constitution states " Congress shall make no law . . . abridging freedom of speech." The opinion by Judge Engelmayer in the Southern District of New York essentially ordered the MTA to post the hateful ads. The court applied the long standing applicable test: in order to restrict content specific speech in a public place a policy must have a justification that was 'narrowly tailored to serve a compelling government interest.' The court held that this policy of the MTA was purely content based and did not meet the long-standing test of restricting speech. See the opinion of Judge Engelmayer fro the Southern District of New York here http://www.nysd.uscourts.gov/cases/show.php?db=special&id=214. Judge Rosemary M. Collyer has yet to rule Washington D.C. on if the Metro policy complies with the First Amendment.

The question then arises, what type of speech is permitted and restricted under the First Amendment? Generally, speech cannot be silenced by the government based on it's content. For example, during the funeral of U.S. soldiers, the government could not stop a speech stating that the war was illegal. To stop the speech would be a violation of the First Amendment's freedom of speech provision.

Additionally, the right of free speech applies to public places and does not extend to private property. Private organizations are always free to reject any type of advertising, but the MTA policies applied to a public area so the right of free speech applies.

The First Amendment does not protect all speech. Examples of speech that is not protected include: (i) the clear and present danger: when the speech is intended to produce imminent, lawless, violent action and it is likely to incite or produce such action; (ii) national security: when there is a grave danger to the national security of the U.S.; and (iii) fighting words: words that make the the average listener breach the peace immediately without thinking.

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