Thanks to judge with a sense of humor, ‘Muslims Are Coming!’ ads to run in NYC subways

October 8, 2015

(Reuters) – It would be a sad state of affairs, according to U.S. District Judge Colleen McMahon of Manhattan, if every mention of Islam in this country were deemed a political act – even silly advertisements promoting both tolerance and a movie about Islamic comedians called “The Muslims Are Coming!” Happily for Judge McMahon (and really, for anyone who can take a joke), she has the authority to inject some sense into public discourse. On Wednesday, she ruled New York City’s Metropolitan Transportation Authority must permit the movie’s production company, Very Qualified Productions, to run its advertisements at 144 subway stations throughout the city.

VQP devised the ads partly in response to a controversial 2014 proposal by a group called the American Freedom Defense Initiative to run an advertisement on New York City buses that depicting a man in a headscarf and the tagline, “Killing Jews is Worship that draws us close to Allah’ – Hamas MTV That’s his Jihad. What’s yours?” (The AFDI ad was itself a response to a bus ad campaign called “My Jihad” that was purportedly an attempt to reclaim Islam from extremists.)

The MTA rejected the AFDI ad, but last April, U.S. District Judge John Koeltl of Manhattan held that under the MTA’s advertising policy at the time, AFDI had a First Amendment right to run it. Within days, the MTA changed its advertising policy to exclude “advertising of a political nature.”

The VQP ads were under the MTA’s consideration during part of the agency’s litigation against AFDI. By Judge McMahon’s account, the proposed “Muslims Are Coming!” campaign received unusually intense scrutiny from the MTA’s ad vetters. The proposal was eventually approved last March – but the MTA withdrew its approval the following month, after it changed its advertising policy to block the “hateful” AFDI ads. (That’s Judge McMahon’s word.) The transportation authority said the ad campaign “prominently or predominately advocates or expresses a political message – Vaguely Qualified Productions’ opinion, position, or viewpoint regarding a disputed political, moral, religious or social issue.”

The ads are not exactly heated rhetoric. Gentle humor is more like it. One ad proclaims “The Ugly Truth About Muslims: Muslims have great frittata recipes.” Another says “Muslims hate terrorism! They also hate: People who tell you they went to an Ivy League school within 10 seconds of meeting them … when the deli guy doesn’t put enough schmear on your bagel … hipsters who wear winter hats in the summer … the pickling of everything … ” The goal of the ad campaign and the film, according to a Daily Beast interview with the campaign’s organizers, is to show “an uplifting, funny and absurd side of Muslims that we rarely ever see in the media.”

VQP’s lawyers at Latham & Watkins argued that the MTA’s decision to reject the “Muslims Are Coming!” campaign should be subject to strict scrutiny because even the MTA’s new policy leaves subway stations an open forum for commercial speech. Judge McMahon disagreed, holding that the MTA only had to show its action was “reasonable and value neutral.” That dispute over the proper standard could make a huge difference in some future case over ads in subway stations, but it didn’t here because the judge found the MTA’s decision to bounce VQP’s ads didn’t hold up under even the lower standard.

The ad campaign’s predominant purpose, she said, is primarily to sell the movie, not to advocate a political viewpoint, even if the campaign was designed in part to respond to the AFDI ad. “That a commercial enterprise would seek to capitalize on controversy – namely, the advertising campaign of a pro-Israel advocacy organization known for its public criticism of Islam – is hardly surprising. VQP is a for-profit film production company, not an advocacy group. It has no specific political agenda or policy demands; it is not on a civil rights crusade. VQP saw an opportunity to reintroduce its brand of humor and promote DVD sales of a film about Muslim comedians and their interactions with Americans – and took it.”

And even if the ads also send a message “that promotes tolerance over bigotry,” as Judge McMahon put it, that is not political speech under the MTA’s vague definition in the new policy. “I cannot conclude that VQP’s ads are political on their face, and an arbitrary conclusion by some official at the MTA, untethered to any articulated or articulable standard, that an advertisement including the word “Muslims” is “political,” is utterly unreasonable,” she wrote. The judge said uncontested subway-station ads for the Republican presidential debate on CNN and the television show Mr. Robot are more “blatantly ‘political'” than the “Muslims Are Coming” ads, “which take on religious intolerance with gentle humor.”

I emailed VQP counsel Abid Qureshi of Latham and called MTA lead lawyer Victor Kovner of Davis Wright Tremaine. Neither got back to me.

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