Falsity of political ad irrelevant to constitutionality of public entity's rejection

American Freedom Defense Initiative v. Southeastern Pennysylvania Transportation Authority, No. 2:14-5335 (E.D. Pa. Nov. 25, 2014)

Plaintiffs sued SEPTA, arguing that it violated their First Amendment rights by refusing to post an ad on buses on the grounds that the ad was “patently false” and “offend the minimal civility standards.” The ad says: “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 features a picture 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.”

Scurrilous ad at issue

SEPTA’s ad standards bar “[a]dvertising 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.”  Plaintiffs successfully moved to exclude evidence of the ad’s falsity from the upcoming preliminary injunction hearing.  SEPTA wanted to submit expert testimony from Dr. Jamal J. Elias, Professor of Humanities at the University of Pennsylvania, “an eminent scholar of Islam and Muslim society.” Professor Elias concluded that referring to Haj Amin al-Husseini as the “leader of the Muslim word” was “manifestly false,” and that the statement “the Quar’an teaches Jew-Hatred” is “unfair and erroneous.”

SEPTA argued that, while laws banning false statements can violate the First Amendment (Alvarez), the issue here wasn’t a ban but a refusal to accept an ad.  It also invoked Illinois v. Telemarketing Associates, Inc., 538 U.S. 600 (2003), which held that the First Amendment does not bar fraud claims against charities for making false statements in an effort to solicit donations. Further, it argued that falsity went to defendants’ unclean hands, of relevance to injunctive relief.

This didn’t go well for SEPTA, as you can tell from the intro to the legal analysis:

Speech concerning public issues “has always rested on the highest rung of the hierarchy of First Amendment values.” N. A. A. C. P. v. Claiborne Hardware Co., 102 S. Ct. 3409, 3425 (1982). As such, “[i]f 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.” W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).

Alvarez makes clear that falsity alone doesn’t make speech unprotected.  Even Alito’s dissent said that  laws restricting false statements about issues of public concern, including religion and history, would present “a grave and unacceptable danger of suppressing truthful speech.” There might be true and false statements about those things, but “it is perilous to permit the state to be the arbiter of truth.”

Here, the speech at issue is “exactly the sort of political expression that lies at the heart of the First Amendment.”  Thus, the First Amendment applied to exactly the same extent whether the speech was true or false, and Professor Elias’ conclusions were irrelevant.

Nor was this a fraudulent charitable solicitation, even though the ad listed a website that redirected to another website that actively sought donations. “The advertisement is not fairly characterized as a solicitation simply because it contains a link which redirects traffic to a second webpage which in turn allows visitors to make donations.”

Nor would falsity mean unclean hands; the ad was protected regardless of its falsity, so the desire to have the ad run as submitted wasn’t bad faith.