Freedom of Speech Goes on Trial in Boston

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In front of the Boston Courthouse

It’s not lost on me that I find myself just a stone’s throw from Boston Harbor where the greatest of wars — the fight for freedom and individual rights — broke out in 1774. Nowhere, at no time, has there been a more righteous cause in the history of humankind.

Then, as today, an out-of-control government took outrageous and egregious actions against our most basic individual rights — and in this case, the most precious of all freedoms, the freedom of speech.

Today Robert Spencer and I went to court in Boston. David Yerushalmi and Robert Muise represented AFDI in our lawsuit against the Massachusetts Bay Transit Authority (MBTA). We were joined by our local counsel Robert Snider.

Such abusive violations of our freedoms have become catalysts for historical resistance and actions in the defense of freedom. You can see it coming.

Our message is truth. Truth is hate speech in the wreckage of what is left of America in the wake of  the left’s decades-long war on Americanism and individual rights.

Our message is that any war on innocent civilians is savagery. 9/11 was savagery. 7/7 in London. March 11th in Madrid. The jihad against the Jews is savagery.

The MBTA said that our ad was “disparaging and demeaning.” To whom? Savages? Any war targeting innocent civilians is savagery. And the war on the Jewish people is a war on innocent civilians. Whether it’s targeting schools with missiles from Gaza or the bloody wholesale slaughter of a Jewish family in the middle of the night, the Fogel family, it’s savagery. Jihad is savage. The murder of Ambassador Chris Stevens was savage. The relentless 60-year campaign of terror against the Jewish people is savage. The torture of hostage Gilad Shalit was savage. The Munich Olympic massacre was savage. The unspeakable torture of Ehud Goldwasser was savage. The tens of thousands of rockets fired from Gaza into southern Israel (into schools, homes, etc.) are savage. The vicious Jew-hatred behind this genocide is savage. The endless demonization of the Jewish people in the Palestinian and Arab media is savage. The refusal to recognize the state of Israel as a Jewish state is savage. The list is endless.

Photo: David Yerushalmi, Robert Muise, Pamela Geller and Robert Spencer in court today.

So it was interesting listening to the lawyers for the MBTA rail against the demeaning nature of our ad while poo-pooing the demeaning and disparaging content of the anti-Israel ad that the MBTA ran, which it took down after public outrage against its disparaging and demeaning nature — only to have the MBTA restore the ugly and disparaging anti-Israel ads.

Yerushalmi and Muise argued our case masterfully before Judge Gorton. The judge was well-prepared, having read all the documents relating to the case. He sounded reasonable and judicious. Clearly he was not the kind of judge, of which there all too many today, who had prejudged the case before he heard the arguments. The hurdle we have to overcome in this case is an over-reliance on the Ridley case (the Dred Scott of free speech decisions). But Judge Gorton admitted that, being a district judge, he did not have the authority to rule on or alter the decision in that case. Ridley, however, has not been applied correctly in our case. The MBTA misapplied its own guidelines.

The only faulty premise that I perceived in all that Judge Gorton said was his lack of understanding of the term jihad. He pressed the lawyers on both sides to explain what they thought a reasonable person would understand by the word “jihad.” Steinfield, of course, argued that many Muslims believed jihad was an inner struggle, and that therefore our ad demeaned all Muslims. But our ad is not calling those Muslims who believe that jihad is solely an inner struggle “savages.” The ad specifically says, “In any war…” So clearly, we are talking about warfare, and that guides the definition of jihad in our ad. And as Robert Muise so brilliantly pointed out, how would the reasonable person on the train perceive or interpret the word “jihad,” particularly in the wake of the Boston Marathon jihad bombing that murdered three people and wounded over 250?

It was the MBTA that invited the debate on this issue by accepting the anti-Israel ad. And then they turn and say our ad is objectionable? They accepted an ad on the same subject that was so genuinely demeaning and disparaging that it had to be taken down after numerous complaints, only to be restored later, and then they had the audacity to reject our ad? That is viewpoint restriction, and that is unconstitutional, even under Ridley.

The MBTA opened up the forum to this hotly contested and controversial issue. Once they did, they have to let both sides have their say.

I did love when Robert Muise brought up the fact that the ad was inspired by an Ayn Rand quote from a speech she made at the Ford Forum in this very city. The Ford Forum was dedicated to celebrating and preserving the freedom of speech. It’s like G-d is a comedian, playing to an audience with no sense of humor.

Joseph Steinfield, the MBTA attorney, in his weak defense glommed on to my website as if it were a lifesaver for a drowning lawyer. He pulled quotes off the site from today, waving the xerox copy in his hand, of me calling the Muslim Brotherhood “savages” today — after they called for the slaughter of Christians who opposed Morsi. He left that part out. I relish the prospect of pulling quotes from the anti-Israel group that ran those ads. Now there’s a gotcha moment.

Steinfield spent an inordinate amount of time arguing a red herring based on a missing initial: a quote from the MTA mistakenly attributed to the MBTA. Muise slapped this down in a hurry by pointing out that the case for viewpoint discrimination was not based on a quote, but on the MBTA’s inconsistent application of its own standards.

The defense also dared to insist that Jews and supporters of Israel had no right to feel demeaned or disparaged by the vicious, libelous anti-Israel ad, and even invoked the viciously anti-Israel UN to argue that the anti-Israel ad was not demeaning. They neglected to cite, not surprisingly, that close to 40% of all UN resolutions are devoted to condemning Israel.

The fact is that no civilized human being should be demeaned or insulted by our ad. Jihad in the context of our ad meant those who wage terrorist war against innocent civilians. That disparages no one.

And so it went. It closed with the judge requesting a document from both plaintiff and defendant addressing the question: has the MBTA applied its own regulations in a Constitutional manner? Both sides have until Friday to turn in their homework assignment. The judge told them they couldn’t be over five pages long. I will post ours as soon as it is filed. Stay tuned.

Below are the vicious anti-Israel ads that the MBTA restored

We are deepful grateful to the patriots who came to support us.  A major shout-out to Margo and Helga, a Holocaust survivor who said she saw the same pattern of silencing speech in the Nazi take over of Germany in the thirties. Her nine-year sister was overheard calling the Nazis a monkey brigade and her father was taken in, detained and threatened with incarceration. They left Germany shortly thereafter.

She saw it then, she is seeing it now. She won’t stand-by.

UPDATE: I just saw this copy of Helga Lustig’s letter:

The editors of the Jewish ADVOCATE

[email protected]

    When I saw the ads sponsored by a Palestinian supporter that show maps that misrepresent history and reality attacking Israel and Jews posted in the MBTA stations I was thrown back upon my memories as a young girl in Germany. I was born in Germany in 1927 and I have vivid memories of The Stuermer, a Nazi tabloid, that were posted in public places that told the most outrageous lies and fantasies about Jews. At first, my family and I had felt secure as Germans and as Jews; after all we were well established and my father had fought for four long years for the Kaiser and Germany in WWI. However, we discovered shortly thereafter that The Stuermer lies were believed by many people and Kristallnacht exploded upon us in 1938.

            I understand that we have freedom of speech in the U.S. so that, unlike German Jews, we may respond and fight back. That is why I am astonished and fearful that the MBTA has refused to permit answering ads by Jewish organizations. We must not be complacent and we must fight back with the truth. I am surprised to learn that the legal challenge is not being lead by the local Jewish organizations; such as the ADL or by CJP, but by Pamela Geller’s organization. The failure of the ADL to use its personnel  and  its funds to lead the legal battle, to mobilize a counter-ad campaign and to raise the awareness of the entire Jewish community is extraordinarily disappointing, especially after I have read in the pages of this newspaper their attacks upon Charles Jacobs’ organization that has been identifying the threat. Just as the story of our escape from slavery is handed down every Passover, the memories of the failure to fight Jew hatred must be taught to every generation.

 Helga Lustig

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