The First Amendment and the Freedom to Hate

By David K. Shipler

Metro said Thursday that it will not allow new issue-oriented advertising in the transit system after a controversial pro-Israel group sought to place ads featuring a cartoon of the prophet Muhammad, a drawing that was linked to deadly violence in Texas this month.

--The Washington Post

            Just for the sake of argument, let’s say that the White Aryan Resistance wanted to put ads on Washington Metro trains and buses featuring a cartoon from the gallery it labels “Kikes.” For example, take the one that portrays a long-nosed, thick-lipped, cigar-chomping giant leering maliciously as he applies a drill bit to the stomach of a smaller, terrified blond fellow he’s holding down with a meaty hand. “Never forget, white man,” says the caption, “the Zionist Jew is working around the clock to DESTROY YOU.”

            Or, let’s imagine that some purveyor of one of those Photoshopped images of Barack and Michelle Obama as subhuman primates (you can see dozens by Googling “Obama Ape”) decided to display it throughout the capital’s transportation system. Picture buses circulating through the streets of Washington adorned with posters of an anti-Semitic caricature of a Jewish monster or President Obama morphed into a chimpanzee.

            There might not be a risk of violent reaction. But it’s a safe bet that very few Americans would defend the parade of such ugly bigotry against Jews and blacks. Consider, then, the application to Metro by Pamela Geller’s American Freedom Defense Initiative to buy space for the winner of its cartoon contest in Texas—a drawing featuring the traditional stereotype of a fierce, raging Arab, glaring and waving a curved scimitar as he declares, “You can’t draw me!” The artist, out of the frame, replies, “That’s why I draw you.”

It’s supposed to be a free-speech statement, “period,” Geller has said. But the frightening figure, created for the organization’s draw-Muhammad contest, was also meant to sneer at the rigorous Muslim prohibition on images of the Prophet Muhammad, which is actually a variable proscription within Islam. Rooted in the ban on idolatry and extended to depictions of any humans, it is observed most fervently by orthodox Sunnis and less so by Shias. (Persian miniatures included Muhammad and other human figures. Ayatollah Sistani, the leading Shia authority in Iraq, “has said the depiction even of Muhammad is acceptable, as long as it is done with proper reverence,” The Economist reports.) Reverence would not be the word to describe the cartoon contest in Texas, where two gunmen were shot dead as they mounted an abortive attack in May, or the satirical drawings of Muhammad in the Paris journal Charlie Hebdo, where staff were slaughtered in January.

            Metro, then, was presented with a tangle of issues: blasphemy, bias, security, and freedom of expression. And here is where the very loose limits on speech permitted by the First Amendment, and the narrower boundaries drawn informally by society’s sensibilities, fail to coincide. They are quite at odds with each other.

Pull them apart into separate threads of argument and concern, and you end up with an array of questions.

Should speech have limits? If so, who sets them? Should physical danger be a factor? If so, doesn’t that mean that censorship grows out of the barrel of a gun, to adapt what Mao said about political power? Or, even without danger, should lines be drawn to exclude offensive racial, religious, and ethnic statements? If so, who defines offensive? Should the lines be bright or blurry? And how consistently should they be applied? Shouldn’t Muslims get the same informal protection from bigotry that is offered to Jews, African-Americans, and—increasingly—gays and lesbians?

 These are all cultural questions, that is, issues that might be addressed if there were a legal vacuum, as there usually is where a private institution is concerned. The First Amendment--which protects “freedom for the thought that we hate,” as Oliver Wendell Holmes declared--restricts what government can do against speech, not generally what private entities can do.

Therefore, a non-governmental entity could presumably ignore the principle of free speech in deciding to suppress the Muhammad cartoon on several grounds: It might spark a violent attack. It is blasphemy to many Muslims. Aside from the religious implications, its caricature of a ferocious Muhammad plays to pernicious stereotypes of Arabs and Muslims as dangerous and violent.

But there’s a catch. Like urban transportation systems elsewhere, Washington’s Metro is a governmental authority, so it cannot constitutionally exclude expression solely on the basis of content. At least that was the ruling of a federal judge in April against the New York Metropolitan Transportation Authority’s rejection of an ad by Geller’s group. Next to a man whose face is wrapped in a keffiyeh are words attributed to Hamas MTV: “Killing Jews is Worship that draws us closer to Allah,” and below is the line, “That’s his Jihad. What’s yours?”

The New York MTA responded to the court ruling by barring all issue-oriented advertising, as have transportation systems in Chicago and Philadelphia. Washington Metro followed suit so it could not be accused of violating the First Amendment by rejecting messages with certain content while accepting others. The policy will eliminate political ads in 2016, a presidential election year. That might strike Metro riders as merciful, but it is also problematical.

Banning all advocacy advertising resembles what some public schools do to eliminate political and issue messages on clothing: adopt dress codes or school uniforms. It is a method of silencing that has been found constitutional, because it doesn’t discriminate against some viewpoints while allowing others. The same with transit systems. In 1974 the Supreme Court ruled, in Lehman v. City of Shaker Heights, against a political candidate who contended that a transit authority’s issue-oriented exclusion was equivalent to a ban on all such speech in a park or on a street. Buses were different, the Court decided.

However, a less draconian method of suppressing certain expression might pass constitutional muster, as suggested by a recent decision upholding the Seattle bus system’s right to accept issue ads but to reject an anti-Israel poster.

The poster stated, “Israeli War Crimes Your Tax Dollars at Work.” By two-to-one, a panel of the Ninth Circuit U.S. Court of Appeals, distinguished among various kinds of public forums. A street or a park is usually considered a “traditional public form,” where speech enjoys the protection of the First Amendment and “content-based restrictions on speech are prohibited, unless they satisfy strict scrutiny,” the court explained.

But a bus system, the judges found, is a “limited public forum,” where “content-based restrictions are permissible, as long as they are reasonable and viewpoint neutral.” The government creates a limited public forum where the speech is incidental to the entity’s main function (in this case, moving people) and where only selective access is granted “by imposing either speaker-based or subject-matter limitations.”

The panel’s majority disliked the sweeping ban. They wrote, “Municipalities faced with the prospect of having to accept virtually all political speech if they accept any—regardless of the level of disruption caused—will simply close the forum to political speech altogether. First Amendment interests would not be furthered by putting municipalities to that all-or-nothing choice.”

Like Washington’s Metro, the Seattle system feared violence after receiving threats from pro-Israel individuals. “I think I will organize a group to ‘riot’ at your bus stops,’” one said. Pictures of damaged buses and bloody passengers were slipped under the door of a customer service center in Seattle.

The Seattle system’s regulations contain “civility clauses” that allow the exclusion of ads that could produce disruption or risks to public safety. This is the same caveat introduced by the Supreme Court in upholding students’ constitutional right to wear black armbands to school to protest the the Vietnam war. Certain speech could still be suppressed, the Court said in the landmark case Tinker v. Des Moines Independent Community School District, if it could reasonably be expected to lead to “substantial disruption of or material interference with school activities.”

The trouble with this “heckler’s veto” is that it motivates opponents of the speech to be disruptive or threatening to make the suppression constitutional. Furthermore, empowering Metro officials to decide which messages on matters of public policy should be accepted and which banned is fraught with difficulties. Even if bigotry is made taboo, what constitutes bigotry? A lot of racial stereotyping these days is subtle and encrypted—witness the racial themes running through much criticism of Obama. How can administrators who have trouble keeping trains and escalators running be expected to come up with reasonable definitions?

The alternatives are unattractive—on the one hand, unfettered hate speech on buses and subways or, on the other hand, no issue speech at all. These are the dilemmas and hard trade-offs created by our messy constitutional system. And we’re lucky to have it.