“New York MTA Accepts Controversial Anti-Mosque Ad After Lawsuit Is Filed”

So reports Prof. Howard Friedman (Religion Clause). Here’s the ad:

The Complaint quotes an e-mail from the representative of the Metropolitan Transportation Authority giving this ground for initially rejecting the ad:

The problem with this ad still is the direct connection that is being associated with the Twin Towers attack and the new Mosque that is being erected. There is no connection and that is what is being deceifered (sic) here.

Under current First Amendment doctrine, once the MTA opens up its space for a wide range of ads, it can’t then discriminate based on viewpoint among ads; and the quoted rationale given does indeed stem from the ad’s viewpoint, which the MTA perceives as unfair and inaccurate. (If the MTA had a policy barring verifiable factual misstatements, that would likely be constitutional, as applied to whatever ads might contain verifiable factual misstatements. But it seems pretty clear that a reasonable observer would perceive the ad as expressing an opinion about the wrongness of the mosque plan, or an opinion about the likely wrongness of the motivations of some of the mosque supporters, or both.) In any event, there’s no First Amendment controversy now, given that the MTA has accepted the ad.

UPDATE: Some people suggested that the ad might be inaccurate because it suggests that the mosque is scheduled to open September 11, 2011. I didn’t interpret it this way; I had thought it meant something like “a mere ten years after the attacks, a mosque will be opening.” But if the MTA had a policy barring verifiable factual misstatements, and it thought that the ad would likely be interpreted as saying the mosque was scheduled to open September 11, 2011 (and this wasn’t the scheduled opening date), it could simply have asked the advertisers to clarify that. As the Complaint reveals, the advertisers were willing and able to make changes to the ad, up to a point. But from the e-mail quoted in the Complaint, it seems pretty clear that the MTA’s objections were not to the September 11, 2011 date and whatever implications the date might have.

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