OPINION AND ORDER
The plaintiffs, a pro-Israel advocacy organization known for its public criticism of Islam, and its co-founders, submitted a political advertisement to the Metropolitan Transportation Authority (“MTA”) -to be displayed on the backs of MTA buses. The advertisement portrayed a menacing-looking man whose head and face are mostly covered by a head scarf. The ad includes a quote from “Hamas MTV”: “Killing Jews is Worship that draws us close to Allah.” Underneath 'the quote, the ad stated: “That’s His Jihad. What’s yours? ” The bottom of the ad included a disclaimer that it was sponsored by the plaintiff organization, the American Freedom Defense Initiative (“AFDI”), and did not imply the MTA’s endorsement of the views expressed by the ad.
Although the MTA accepted other controversial advertisements submitted by the plaintiffs, it refused to run this advertise
While the Court is sensitive to the MTA’s security concerns, the defendants have not presented any,, objective evidence that the Killing Jews advertisement would be likely to incite imminent violence. Indeed, as the defendants knew when considering whether to run the ad, substantially the same advertisement ran in San Francisco and Chicago in 2013 without incident. The advertisement qualifies as protected speech, and the defendants have restricted it based on its content without a compelling interest or a response narrowly tailored to achieving any such interest. Accordingly, the plaintiffs’ motion for a preliminary injunction is granted.
The Court makes the following findings of fact and reaches the following conclusions of law pursuant to Federal Rule of Civil Procedure 52.
I.
A.
The plaintiff AFDI is a nonprofit organization incorporated in New Hampshire. The plaintiffs Pamela Geller and Robert Muse are the President and Vice President of AFDI, respectively. The defendant MTA is a New York State public authority and public benefit corporation. Together with its affiliated agencies, the MTA provides mass transportation services in the New York City metropolitan area. Defendant Thomas F. Prendergast is the Chairman and Chief Executive Officer of the MTA, and defendant Jeffery B. Rosen is the Director of the MTA Real Estate Department.
AFDI purports to “act[] against the treason being committed by national, state, and local government officials ... in their capitulation to the global jihad and Islamic supremacism.” See Biography, http:// freedomdefense.typepad.com/about.html (last visited Apr. 18, 2015) (AFDI-associat-ed website referenced in Chicago and San Francisco Killing Jews advertisements). In order to express its views publicly on issues regarding Israel and Islam, AFDI purchases advertising space on public transit authority property in major cities throughout the United States. Geller Decl. ¶¶ 4-6.
In order to obtain revenue, the MTA accepts advertisements to be displayed on its subway, commuter rail, and bus systems. Rosen Decl. ¶ 4. The MTA accepts not only commercial advertisements, but also non-commercial advertisements by government agencies, nonprofit organizations, and religious groups, as well as political advertisements and public service . messages. Id. ¶ 10. To facilitate the placement of these advertisements, the MTA enters into license agreements with independent outdoor advertising companies, including CBS Outdoor Group Inc. (“CBS Outdoor”). Id. ¶¶ 5, 8. MTA and CBS Outdoor’s license agreement covers advertisements on the exterior of MTA buses. Id. ¶ 8. Defendant Rosen oversees the MTA’s advertising program as one of his responsibilities as Director of Real Estate. Tr. 14-15.
In March 1994, the MTA first adopted standards governing the advertisements it would accept, and those standards were incorporated into its license agreements. Rosen Decl. ¶ 12. The standards prohibited certain categories of advertisements, including, among others, false, misleading, or deceptive commercial advertisements, libelous advertisements, and advertisements including obscene material, as defined in the New York Penal Law. Id. ¶ 14. In September 1997, the MTA amended its standards to prohibit other categories of advertisements, including, among others, advertisements that demean an individual or group of individuals on account of several protected categories, including race and religion (the “no-demeaning standard”). Id. ¶¶ 20-21.
In 2011, the AFDI submitted an ad for display on MTA buses that stated, “In any war between the civilized man and the savage, support the civilized man. Support Israel. Defeat Jihad.” Id. ¶ 22 (the “Savages” ad). The MTA refused to run the ad due to its belief that the “savages” reference demeaned Muslims or Palestinians, or both, and thus violated the MTA’s no-demeaning standard. Id. ¶ 23. AFDI thereafter sued the MTA in this Court, alleging that the no-demeaning standard violated the First Amendment on its face. Judge Engelmayer agreed, holding that the no-demeaning standard differentiated based on the content of the ad and only proscribed “specified disfavored topics.” Ám. Freedom Def. Initiative v. Metro. Transp. Auth.,
March 24, 2015. marks omitted). The Court therefore granted AFDI’s motion for a preliminary injunction enjoining the MTA from enforcing no-demeaning standard. Id. at 478.
In September 2012, the MTA considered alternatives for remedying the constitutional defects identified by Judge Engel-mayer, such as only permitting commercial advertising, but ultimately chose to continue accepting all forms of advertising and amended its standards to discontinue the no-demeaning standard. Rosen Decl. ¶¶ 27~28.
During the summer of 2014, AFDI submitted several new advertisements to CBS Outdoor for display on MTA subway entrances and buses. These included the. above-mentioned “Savages” ad; an ad featuring a picture of Adolph Hitler sitting with the purported “leader of the Muslim World,” next to the words, “Islamic Jew-Hatred: It’s in the Quran,” and a call for the end of U.S. aid to Islamic countries; an ad featuring a quote from Israeli Prime Minister Netanyahu criticizing Hamas and urging support for Israel; and the “Killing Jews” ad. Rosen Decl. _ ¶¶ 77-84. AFDI sought to display the Killing Jews ad on the tails of MTA buses in Manhattan. Id. ¶ 83. CBS Outdoor forwarded all of them to the MTA, and the MTA Security Director, Raymond Diaz, assessed their compliance with Section (a)(x). On August 19, 2014, Diaz reported his findings in a letter to the MTA Chairman. Diaz Decl. Ex. 1. Diaz found that the first three ads complied with Section (a)(x), and the MTA approved those ads for display. Id.; Ro-. • sen Decl. ¶¶ 86-87. However, Diaz concluded that the Killing Jews ad advocated violent attacks on Jewish people, and that it was reasonably foreseeable that the ad would incite or provoke violence in violation of Section (a)(x). Diaz Decl. ¶¶ 26-28.
AFDI intended the Killing Jews ad as a parodie response to the “My Jihad” ad campaign carried out in 2012 and 2013 by the Council on American-Islamic Relations (“CAIR”), a Muslim civil rights advocacy organization. Rosen Decl. ¶ 68; Geller Decl. ¶ 21. CAIR initiated the “My Jihad” campaign in response to AFDI’s “Savages” ad. Rosen Decl. ¶ 63. The “My Jihad” campaign sought to portray the Islamic concept of lesser jihad, or individual and personal struggle, by depicting Muslim individuals with positive messages. Rosen Decl. ¶ 62. One typical ad states, “ ‘# My-Jihad is to build friendships across- the aisle.’ What’s yours ?” Rosen Decl. ¶ 60. The CAIR ads ran in public transit systems in Chicago and San Francisco in early 2013, but never ran in New York because of CAIR’s disagreement with the MTA over the MTA’s insistence on the inclusion of its disclaimer. Rosen Decl. ¶ 65-68. The AFDI, in turn, sought to counter the CAIR ads with the Killing Jews ad, among others, which all depict Islamic extremist quotes. or acts of violence or terrorism and then mimick, “That’s # My Jihad. What’s yours ?” Rosen Decl. ¶¶ 68-69.
Diaz was aware of the AFDI’s intention at the time of his security assessment and acknowledged it in his letter to the MTA Chairman. Diaz Decl. Ex. 1. However, he wrote in the letter that “what matters is not AFDI’s intent, but how the ad would be interpreted.” Id. Diaz noted in the letter that the CAIR campaign had not run in New York, and that New Yorkers would not understand the Killing Jews ad as parody. Id. Diaz concluded that the quote depicted from Hamas MTV, “Killing Jews is Worship that draws us close to Allah,” followed by “That’s his Jihad. What’s yoursT’ would be interpreted as “urgfing] Muslims to kill or attack Jews as a religious obligation,” and thus would be likely to provoke violence. Id.
At the time Diaz made his security assessment, he was aware that the Killing Jews ad had run on public buses in San Francisco and Chicago in early 2013, and was not aware of any acts of violence provoked by the display of the ads. Stipulated Facts for Purposes of Pis.’ Prelim. Inj. Mot. ¶ 3. Indeed, an MTA employee working under Diaz’s supervision had emailed an employee of the San Francisco Municipal Transportation Agency (“SFMTA”) with several questions about whether there were any acts of violence or
At the hearing, Diaz explained his conclusion in more detail. Diaz suggested that the ad’s advocacy towards violence principally came from the line, “What is yours?”, which he stated could be read as a “call to violence.” Tr. 82, 83, 87. Diaz testified that the likelihood of incitement was “hard to quantify” in percentages, Tr. 72, but that in the case of this ad, there are “easily radicalized” people committing violent acts “almost on a daily basis throughout the world,” and that the ad could cause such people to act violently. Tr. 75-76. In his declaration, Diaz cited two examples of individuals who committed violent acts in New York City which, though unrelated to any MTA advertisement, were apparently motivated by radical Islamic beliefs or hatred of Jewish people. Diaz Decl. ¶ 31. However, at one point in his testimony, Diaz suggested that even if “nobody ever committed a violent act as a result of this ad and we knew in the future that nobody was ever going to do that,” he still would have refused to run it because it advocated violence. Tr. 100.
In testifying about the distinctions between Chicago and San Francisco, where the Killing Jews ad had previously run, and New York, Diaz did not rely on the fact that the CAIR “My Jihad” ads had not been displayed in New York, as he did in his letter to the MTA Chairman. In fact, Diaz testified that even if the CAIR ads had run in New York, he still would have refused to run the Killing Jews ad. Tr. 77-78. At one point, Diaz stated that he found the Killing Jews ad in violation of Section (a)(x) despite the lack of a violent response in the other cities because the ad “clearly advocated violence.” Tr. 80. He also testified that the circumstances were different, because New York City is the “prime terror target” among the three cities, and that the “terrorist security threat” that faces New York City has increased since early 2013, when the ads ran in Chicago and San Francisco. Tr. 106-07.
D.
Ultimately, MTA Chairman Prendergast concurred with Diaz’s finding, Tr. 105-06, and on August 25, 2014, Rosen e-mailed the MTA’s determinations about the lulling Jews ad to CBS Outdoor, which forwarded the e-mail to AFDI. Rosen Decl. ¶¶ 87-91, Ex. 6. Rosen noted in the e-mail that AFDI could consider revisions to the ad to bring it into conformity with Section (a)(x). Id. Ex. 6. On August 29, 2014, AFDI responded through its counsel, declining to make any revisions and requesting a “formal and final administrative ruling” from the MTA regarding the Killing Jews ad. Id. ¶ 96, Ex. 7. On September 22, 2014, Rosen sent an e-mail to CBS Outdoor with MTA’s formal determination refusing to run the Killing Jews ad on the basis of its noncompliance with Section (a)(x), and CBS Outdoor forwarded the email to AFDI’s counsel. Id. ¶ 99, Ex. I.
On or about October 1, 2014, the plaintiffs brought this action against the defendants, alleging that the MTA’s refusal to run the Killing Jews advertisement violat
II.
To obtain a preliminary injunction, the plaintiffs “must establish that [they are] likely to succeed on the merits, that [they are] likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [their] favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc.,
In a case alleging a First Amendment deprivation, if the plaintiffs show a substantial likelihood that their- First Amendment rights are being violated, the “irreparable harm” prong of the preliminary injunction standard is met, because the “ ‘loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’ ” N.Y. Magazine v. Metro. Transp. Auth.,
III.
The MTA determined that the ad in question violated its standards under MTA Standard § (a)(x), specifically the portion of the standard prohibiting material “the display of which the MTA reasonably foresees would imminently incite or provoke violence or other immediate breach of the peace.” The plaintiffs contend that the application of this standard to the Killing Jews ad violates their First Amendment rights.
The defendants concede that the advertising space on their buses constitutes a designated public forum under binding Second Circuit precedent. See N.Y. Magazine,
A.
The defendants contend that they permissibly excluded the Killing Jews ad because it falls into two separate categories of unprotected speech: “fighting words,” see Chaplinsky v. New Hampshire,
i.
In Chaplinsky, the Supreme Court held that “fighting words” — words which “by their very utterance inflict injury or tend to incite an immediate breach of the peace” — were never meant to be protected by the First Amendment.
’ Moreover, even if there were an advertisement that could fall into this category, the ad in question plainly does not contain “fighting words.” Although the ad may be jarring to some and offensive to others, the defendants have not shown that the ad’s recitation of the quote from Ha-mas TV would tend to incite an “immediate breach of the peace.” Provost v. City of Newburgh,
ii.
In a per curiam Opinion in Brandenburg, the Supreme Court struck down the Ohio Criminal Syndicalism Statute and reversed the conviction of a member of the Ku Klux Klan for urging “revengeance” for the “continue[d] ... suppression] [of] the white, Caucasian race.”
The Court’s subsequent substantive discussions of Brandenburg reveal no precise contours of the standard, but make clear that there must be “evidence or rational inference from the import of the language, that [the words in question] were intended to produce, and likely to produce, imminent” lawless action. Hess v. Indiana,
The defendants admit that the actual intention of the advertisement is not to advocate the use of force, but to parody the CAIR “My Jihad” campaign and to criticize Hamas and radical Islam. However, they argue that a reasonable New Yorker would not read the advertisement this way, but would instead read it as advocating the killing of Jewish people.
The defendants’ theory is thoroughly unpersuasive. The advertisement, which clearly attributes the “killing Jews” quote to Hamas MTV and contains a visible attribution of the ad to AFDI, and not to Hamas, does not appear to be advocating violence on its face. It is also unclear who the ad is targeting in its purported advocacy. ■ The defendants contend that the advertisement could be read as urging a subset of Islamic extremists to follow Hamas’s command, but if that group is as violent and radicalized as the defendants contend, presumably they would not need a bus advertisement to remind them of Hamas’s interpretation of the Quran. Accordingly, “it cannot be said” that the advertisement is “advocating, in the normal sense, any action,” Hess,
The defendants also cannot point to any objective evidence to support their concerns that the advertisement is an imminent incitement of violence. There is no evidence of any violent responses to this same advertisement when it ran in Chicago and San Francisco, ■ or even to any similar ad in any city. The defendants contend that New York City is different from those cities because the CAIR “My Jihad” campaign ran in Chicago and San Francisco, but not in New York, and New Yorkers thus would not understand the parodie aspect of the AFDI ad. But this distinction does not create a rational inference that supports a likelihood of the incitement of violence. It is not reasonable to assume that if the CAIR campaign had run in New York in early 2013, most New Yorkers would have been familiar enough with those ads to appreciate the parody, but that without those ads, most New Yorkers would see the Killing Jews ad as a call to violence. Indeed, Diaz admitted in his testimony that he would have refused to run the advertisements even if the CAIR campaign had run in New York. Tr. 77-78.
The defendants also distinguish New York City from the other cities on the
B.
A content-based restriction in a public forum, as the defendants concede their exclusion of the Killing Jews ad is, must survive strict constitutional scrutiny to stand' — 'that is, it must be “justified by a compelling government interest and [be] narrowly drawn to serve that interest.” Brown v. Entm’t Merchs. Ass’n, — U.S. -,
In support of their argument that they are furthering a compelling state interest by protecting public safety, the. defendants principally cite the opinion of the District Court for the District of Columbia in AFDI v. WMATA and the opinion of the District Court for the Western District of Washington in Seattle Mideast Awareness Campaign (“SeaMAC”) v. King Cnty.,
The Court is sensitive to the defendants’ security concerns, and fully appreciates the efforts they must take to keep New Yorkers safe from possible violent attacks. The defendants’ cited examples of violent attacks show that individuals may commit heinous acts without warning and with little prompting. But under the First Amendment, the fear of such spontaneous attacks, without more, cannot override individuals’ rights to freedom of expression. Accordingly, the plaintiffs have shown a substantial likelihood of success on the merits of their First Amendment challenge.
IY.
In determining whether the balance of the equities tips in the plaintiffs’ favor and whether granting the preliminary injunction would be in the public interest, the Court “must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Winter,
Both the balance of equities and the public interest in this case favor granting the preliminary injunction for the plaintiffs. “[S]ecuring First Amendment rights is in the public interest.” New York Progress,
CONCLUSION
The Court has considered all of the arguments of the parties. To the extent not specifically addressed above, the remaining arguments are either moot or without merit. For the reasons discussed above, AFDI’s motion for a preliminary injunction enjoining the MTA’s exclusion of the advertisement in question is granted. The Clerk is directed to close Docket No. 12.
In order to enable the defendants to consider their appellate options and methods for display of the proposed advertisement, the Court, in the public interest, will stay the effect of this Order for 30 days. Absent a court order extending it, this stay will expire 30 days after the date of this opinion.
SO ORDERED.
Notes
. All references to “Tr.” refer to the transcript of the preliminary injunction hearing held on
. To mitigate its concerns with running potentially demeaning advertisements, the MTA also amended its standards to heighten the visibility of its disclaimers on advocacy ads. Id. ¶ 31.
. The plaintiffs also contend that § (a)(x) is facially unconstitutional, but they devote only one small portion of their brief to this argument, and they ignore the standards for facial challenges under the First Amendment. See United States v. Stevens,
. The defendants suggest that the Court need not reach the First Amendment question if the Court finds that the MTA did not apply its own standards properly when it excluded the advertisement under § (a)(x). The defendants do not provide a legal basis for this Court to enforce the internal regulations of a state public authority and the defendants do not explain why the plaintiffs would have a claim for relief based on the MTA’s erroneous application of its policy. Therefore, the Court must evaluate whether the MTA’s application of its standard violated the First Amendment.
. After the Court in Chaplinsky affirmed the conviction of a Jehovah's Witness for publicly berating and insulting a government officer,
. See Erwin Chemerinsky, Constitutional Law 1328 (4th ed.2013). In some cases where the Supreme Court has rejected First Amendment challenges, dissenting opinions have suggested that the majority’s holding contravened the Brandenburg standard, but in every such case the majority either did not address Brandenburg or held that it was inapplicable. See, e.g., Holder v. Humanitarian Law Project,
. The plaintiffs argue that Brandenburg has a subjective intent requirement, and that it is therefore dispositive that their undisputed intent is not to incite violence. While neither the Supreme Court nor the Second Circuit Court of Appeals has squarely addressed the issue, the plaintiffs point to no case in which a court has analyzed the speaker's subjective intent as dispositive under Brandenburg. Because the plaintiffs' speech is protected by the First Amendment under an objective reading of the Brandenburg standard, the Court need not resolve this issue.
. The Court rejects out of hand Diaz’s suggestion in his testimony that the defendants can exclude the ad simply because it advocates killing, without regard to any possible consequences. Tr. 100. The defendants may not exclude speech on the basis of “mere advocacy,” Claiborne Hardware,
. In any event, reliance on SeaMAC in this case would be misplaced because the Court of Appeals for the Ninth Circuit held that the public authority’s bus advertising space is a "limited, rather than designated, public forum.”
. The defendants argue that the counter messages in those cases were used to oppose ads that were more directly demeaning of Muslims, and that an explanatory message would not be as helpful in this case because it would be far more difficult to explain in a bus advertisement the parodie aspects of the Killing Jews ad. However, the ad does not reasonably incite violence and the defendants underestimate the power of counter-advertisements to explain that the MTA does not endorse the ad and that the ad is not to be taken seriously.