Does the First Amendment allow comparisons to Hitler?


By Eric Boehm |

A controversial ad comparing Islamic fundamentalists to Adolf Hitler could soon be appearing on buses and trains in the Philadelphia area.

The group paying for the ads says it has a right, under the First Amendment, to plaster its views on the sides of any public transportation vehicle. But SEPTA is trying to block the ads from display, arguing that it would violate the transit authority’s advertising standards, which prohibits ads disparaging individuals or groups.

FREE SPEECH OR LIES ON A BUS? Philadelphia-area transit authority SEPTA is trying to prevent ads like this from being placed on their buses and trains. The American Freedom Defense Initiative is asking a federal judge to force SEPTA to allow the ads.

The ads are sponsored by the American Freedom Defense Initiative, which made headlines for running similar ads in New York City and attempting to block the construction of a mosque near the World Trade Center. It references “Islamic Jew-Hatred” and feature a black-and-white photograph of Hitler sitting beside Haj Amin al-Husseini, a Palestinian nationalist.

The ad also calls for the federal government to shut off foreign aid to what the ad calls “Islamic countries.”

Last week, a federal judge struck a blow against SEPTA’s effort to block the ad, as Judge Mitchell Goldberg ruled that SEPTA could not include expert testimony in their case against the proposed ads.

SEPTA planned to use Jamal Elias, a professor at the University of Pennsylvania, to argue the ads’ claims were “unfair and erroneous.”

Goldberg ruled that the accuracy or inaccuracy of the ads did not make a difference.

“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,” Goldberg wrote in the decision. “Allowing the state to restrict political speech based on an assessment that it is false or inaccurate, offends First Amendment principles.”

The case isn’t settled — last week’s ruling only has the effect of excluding SEPTA’s expert witness, but it did not determine the outcome of the legal challenge.

The issues raised in the case mirror a similar legal battle in New York City in 2012 when the MTA tried to block another ad paid for by the AFDI. The MTA cited a similar rule that prohibited advertisements viewed as demeaning to individuals or groups.

But the AFDI won that legal battle, as U.S. District Judge Paul A. Engelmayer of the Southern District of New York held the MTA’s no-demeaning standard violates the Constitution, according to the Legal Intelligencer.