Late yesterday, a federal judge in Philadelphia ruled that an “expert” hired by the Southeastern Pennsylvania Transportation Authority (SEPTA) may not testify that an “Islamic Jew-Hatred” advertisement submitted by the American Freedom Defense Initiative (AFDI) was false. The advertisement stated, in relevant part, “Islamic Jew-Hatred: It’s in the Quran” and referred to Haj Amin Al-Husseini as “the leader of the Muslim world.”
The judge rejected SEPTA’s argument that it could ban the advertisement based on SEPTA’s claim of falsity, holding that the First Amendment does not permit government officials to be the “arbiter’s of truth” regarding matters of public concern.
The ruling is part of a lawsuit filed by the American Freedom Law Center on behalf of AFDI, Pamela Geller, and Robert Spencer against SEPTA for refusing to display the Islamic Jew-Hatred advertisement, which appears in full below:
SEPTA intended to present the testimony of Dr. Jamal J. Elias, a professor at the University of Pennsylvania and “an eminent scholar of Islam and Muslim society” at a hearing on a motion for a preliminary injunction allegedly to establish the falsity of the advertisement. Dr. Elias intended to offer two opinions, both of which pertain to alleged inaccuracies in the AFDI ad. First, Dr. Elias intended to testify that referring to Haj Amin al-Husseini as the “leader of the Muslim word” is “manifestly false.” And second, Dr. Elias intended to opine that the statement “the Quar’an teaches Jew-Hatred” is “unfair and erroneous.”
In his ruling rejecting SEPTA’s claim of “falsity,” the judge reviewed relevant First Amendment precedent, observing that
“speech concerning public issues has always rested on the highest rung of the hierarchy of First Amendment values. . . . As such, if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion. Therefore, the protection afforded to political speech does not turn on the truth or popularity of the sentiments expressed.”
The judge further noted:
“Long standing Supreme Court precedent instructs that political speech does not lose First Amendment protection simply because the listener believes that it is false or disagrees with the message it advances. Allowing the state to restrict political speech based on an assessment that it is false or inaccurate, offends bedrock First Amendment principles.”
The judge concluded:
“In light of the precedent discussed above, I find that First Amendment principles apply to the advertisement at issue regardless of its alleged falsity. Consequently, Dr. Elias’ conclusions regarding the advertisement’s veracity are not relevant and will be excluded from the preliminary injunction hearing.”
Robert J. Muise, AFLC Co-Founder and Senior Counsel, praised the ruling as a clear victory for the First Amendment and noted that
“it would be perilous to permit government censors to be the arbiters of truth regarding politics, history, religion, or other similar matters of opinion.”
David Yerushalmi, AFLC Co-Founder and Senior Counsel, added:
“We are encouraged by the judge’s ruling, which was loyal to the First Amendment and tracked our motion on every point. It is important to have a judge who understands the importance of this constitutional guarantee, particularly when, as in this case, the freedom of speech is pitted against political correctness.”
AFLC expects that the court will hold a hearing on its motion for a preliminary injunction within the coming weeks.