- Joined
- Jul 25, 2014
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I don't think you or I would disagree that the purpose of these ads is to stir up resentment at a minimum and active resentment either political or, more troubling resentment leading to physical violence. These aren't ads designed in the public service announcement category, at least from my view. They're dangerous, in my view, because they are so blatant in their message, and that makes them unsuitable in a public institution.
You may think these ads are distasteful, inflammatory, unsuitable, or even that they will cause "resentment leading to physical violence."
The issue, though, is not what this or that person thinks of the ads, but whether a state may prohibit a person from displaying them in public places based on their content. MTA's basis for denying Geller's group permission to display the ads seems to be that they are speech not protected by the First Amendment. In particular, it seems to be that they fall within a "clear and present danger" exception to the general rule that government may not regulate speech based on its content.
This is the sort of speech Justice Holmes was referring to in Schenck v. United States, the 1919 decision in which he noted that the Constitution does not protect a person who falsely shouts fire in a crowded theater. The Court elaborated on this type of unprotected speech in Brandenburg v. Ohio in 1969.
The rule is that a state may not forbid advocacy or the use of force or violation of the law, unless the advocacy is both:
1) directed to producing or inciting imminent lawless action;
and
2) likely to produce or incite such action.
So showing that the purpose of the speech is to produce or incite lawless action is just the first step. Even if you can do that, you also have to show the speech is likely to achieve its purpose. Hardest of all, in most cases, is to show that the lawless action likely to be produced or incited by the speech is imminent.
So maddened with hatred against Muslims is the mere sight of one of these bus ads likely to make people, we're supposed to believe, that they will drop whatever they are doing, pick up the nearest object that they can use as a weapon, and criminally attack the nearest person they think is a Muslim. Right.