Case 1:11-cv-06774-PAE Document 29 Filed 07/20/12 Page 1 of 35

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
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AMERICAN FREEDOM DEFENSE INITIATIVE et al.,
Plaintiffs,
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11 Civ. 6774 (PAE)
OPINION & ORDER

METROPOLITAN TRANSPORTATION AUTHORITY et al.,

Defendants.

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PAUL A. ENGELMAYER, District Judge: This case involves a challenge under the First Amendment to the refusal by the
Metropolitan Transit Authority ("MTA"), the public authority which provides mass transit in the New York City metropolitan area, to permit a political advertisement to run on the exteriors of

buses in New York City. Plaintiff American Freedom Defense Initiative ("AFDI") is a pro-Israeli advocacy

organization known for its provocative writings on Middle Eastern affairs. In September 2011, AFDI submitted a text-only advertisement (the "AFDI Ad" or the "Ad") to MTA. The Ad read: "In any war between the civilized man and the savage, support the civilized man. I Support Israel I Defeat Jihad." MTA rejected the Ad, finding that it violated one of MTA's written advertising

standards. That standard (the "no-demeaning standard") prohibits ads that "contain[] ...

information that demean[s] an individual or group of individuals on account of race, color, religion, national origin, ancestry, gender, age, disability or sexual orientation."
In this lawsuit, AFDI seeks a preliminary injunction enjoining MTA's no-demeaning advertising standard, thereby permitting the AFDI Ad to run. For the reasons that follow, the

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Court agrees that that advertising standard, as presently written, violates the First Amendment. The Court, accordingly, grants AFDI’s motion for a preliminary injunction. I. Background
A. Factual Background 1. The Parties
AFDI is an advocacy organization. Its stated objective is to protect “our basic freedoms and values” by, inter alia, “sponsoring religious freedom and political speech bus and billboard campaigns.” Compl. ¶¶ 6, 8. AFDI advocates pro-Israeli causes in the political, military, and social realms. Its advertisements and publications attack radical Islam and the “Islamization of America.” See, e.g., Atlas Shrugs, http://atlasshrugs2000.typepad.com (last visited July 18, 2012) (AFDI-associated website which, among other things, promotes a book, written by AFDI’s Executive Director, entitled “Stop the Islamization of America: A Practical Guide to the Resistance”). AFDI’s writings, as described in further detail later, have equated the “struggle” between Israel and “the Muslim world” with “the struggle between good and evil.” See infra § III.A. Among other means, AFDI spreads its message through articles, books, blog posts, television, and other media appearances by its officers; by filing lawsuits; and by holding rallies and other demonstrations. Plaintiffs Pamela Geller and Robert Spencer are, respectively, AFDI’s Executive and Associate Directors.
MTA is a New York State public authority and public benefit corporation. Together with its affiliated operating agencies, MTA provides mass transportation services in the New York
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City metropolitan area. Defendant Jay H. Walder, sued in his official capacity, was, at the time of the Complaint, MTA’s Chairman and Chief Executive Officer.1
2. MTA’s Advertising Standards MTA accepts paid ads for placement within its transit facilities and on its transportation vehicles, including on the sides and tails of public buses. Declaration of Jeffrey Rosen, MTA Director of Real Estate (“Rosen Decl.”) ¶ 4. MTA is cash-strapped. It regards the money it receives from such ads as an important source of revenue. Id. ¶¶ 4–5. MTA accepts both commercial ads and non-commercial ads (i.e., ads by government agencies, not-for-profit and religious organizations, political ads, and public service announcements);2 in 2010, MTA received $5.17 million in revenue from non-commercial advertising. Id. ¶ 11. To help it administer its advertising program, MTA has entered into license agreements with various outdoor advertising companies. Id. ¶¶ 6, 9. MTA’s license agreement with CBS Outdoor Group covers advertising space on, inter alia, the interior and exterior of buses operated by the New York City Transit Authority (“NYCTA”). Id. ¶ 9. On March 25, 1994, MTA first adopted standards governing which ads it would accept to run in its facilities and on its vehicles (the “1994 advertising standards”). Id. ¶ 13 & Ex. B. In adopting these standards, MTA “strove to balance several legitimate interests” which it believed relevant to its role as a public benefits corporation serving a diverse ridership. These included: x maximizing advertising revenue; x maintaining orderly administration of transportation systems;
1 Since the filing of the Complaint, Walder has resigned this post. MTA’s present Chairman and CEO is Joseph J. Lhota. 2 Examples of non-commercial advertisements that MTA has run can be found at Rosen Decl. Exs. H, I, K, and L and at the Declaration of Pamela Geller, Executive Director of AFDI (“Geller Decl.”) Exs. A, B, C, D, and F.
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x protecting minors who utilize MTA’s facilities; x avoiding misappropriation of views expressed in advertising to MTA; and x shielding MTA patrons from advertisements which may not lawfully be publicly
displayed under New York law. Id. ¶ 14.
The 1994 advertising standards prohibited ads which: (1) contain, false, misleading, or deceptive claims; (2) promote unlawful or illegal goods, services, or activities; (3) inaccurately imply or declare MTA’s endorsement of the subject of the advertisements; (4) contain obscene materials as defined under New York Penal Law; (5) advertise commercial material unsuitable for minors under New York Penal Law; (6) display offensive sexual material; (7) are libelous or violate New York Civil Rights Law § 50; or (8) commercially promote tobacco or tobacco products. Id. at Ex. B. At the same time, MTA created a three-member Advertising Standards Committee. The Committee had final responsibility for determining whether an ad fell within one of the above-named proscribed categories. Id.
In 1997, MTA revised its advertising standards, creating the standards that are in place today (the “advertising standards”). In addition to the interests articulated for adopting the 1994 advertising standards, MTA identified its “compelling interest” in maintaining employees’ morale and shielding its ridership from “unwanted and unavoidable confrontations with advertisements that are demeaning on the basis of race, color, religion, national origin, ancestry, gender, age, disability or sexual orientation.” Id. at Ex. C. The 1997 advertising standards left intact the above prohibitions, and added prohibitions on ads which: (9) depict a minor in a sexually suggestive manner; (10) are adverse to MTA’s commercial or administrative interests, or its employees’ morale; (11) “contain[] images or information that demean an individual or group of individuals on account of race, color, religion, national origin, ancestry, gender, age,
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disability or sexual orientation”; (12) contain violent images; (13) promote an escort or dating service; or (14) the public would find to be offensive or improper. Id.
The prohibition relevant to this case is the one on ads which demean an individual or group on account of “race, color, religion, national origin, ancestry, gender, age, disability or sexual orientation.” This prohibition, the no-demeaning standard, is codified at § 5.05(B)(11) of the advertising standards. Geller Decl. Ex. I.
The advertising standards adopted in 1997 also abolished the three-member Advertising Standards Committee. They vested the final determination whether an ad comported with the advertising standards in the “MTA Contract Administrator or his designee.” Rosen Decl. Ex. C. Specifically, under the current advertising standards, the advertising contractor first assesses whether a proposed advertisement may fall into a prohibited category; if so, the contractor alerts the MTA Director of Real Estate. Id. ¶ 26. If the Director of Real Estate agrees that the ad falls within a prohibited category, the advertiser may be given an opportunity to revise the ad to conform to the relevant standard. Id. Alternatively, the Director of Real Estate may conclude that no revision is feasible which would bring the ad into conformity with MTA’s advertising standards; where this is the case, an advertiser may request a formal determination. Id. In making such a determination, the MTA Director of Real Estate “may consider any materials submitted by the advertiser, and may consult with the advertising contractor, or with the MTA General Counsel, the Executive Director, the chairman of the Board, or their respective designees.” Id. at Ex. C. The determination by the Director of Real Estate is final. Id.
In his declaration on behalf of the defendants, current MTA Director of Real Estate Jeffrey Rosen represents that, since he joined MTA in September 2009, only three proposed ads (other than the AFDI Ad at issue here) have been rejected for failure to conform to the
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advertising standards. Id. ¶ 27. One was an ad for Target stores; it asked riders whether they were “Sandwiched on the train?” Id. ¶ 29 & Ex. D. At MTA’s request, Target replaced this ad with another one. Id. ¶ 29. The second rejected ad was from the New York State Paid Family Leave Coalition; it depicted a sneezing subway passenger next to copy that told readers: “You might catch more than the subway this morning.” Id. ¶ 30 & Ex. E. At MTA’s request, the advertiser replaced that ad, too, with another one. Id. ¶ 30. MTA rejected both ads as adverse to MTA’s commercial or administrative interests, one of the prohibited categories under the advertising standards. Id. ¶¶ 29–30. Finally, a series of three ads proposed by Daffy’s clothing store were rejected because they contained offensive sexually suggestive material. Id. ¶¶ 31–32. The ads each displayed a photograph of a seemingly naked female model, whose breasts, genitals, and buttocks were covered with text boxes. Id. ¶ 32.
Other than the AFDI Ad at issue in this case, no ad has been rejected as inconsistent with MTA’s no-demeaning standard. Id. ¶ 27.
3. AFDI’s Ads Before submitting the ad that is the subject of this case, AFDI had submitted two ads to MTA; both were accepted. Id. ¶ 35. In May 2010, AFDI ran an ad on NYCTA buses, which read: “Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got questions? Get answers!” Id. ¶ 36 & Ex. H. The ad referred readers to a website, RefugeFromIslam.com. Id. at Ex. H. In August 2010, AFDI ran another ad on NYCTA buses. Id. ¶ 37. On the left side, it depicted an image of the World Trade Center’s Twin Towers burning, alongside the words “September 11, 2001 / WTC Jihad Attack.” On the right-hand side was a building identifiable as a mosque, with a star and crescent, alongside the words “September 11, 2011 / WTC Mega
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Mosque.” Id. at Ex. I. A two-sided arrow connected the images and text on the left with the images and text on the right, under the words “Why There?” and “Ground Zero.” Additional text on the ad directed readers to a website, SIOAonline.com, and stated that the ad was paid for by AFDI. Id. CBS Outdoor Group, MTA’s advertising contractor, had initially asked AFDI to revise that ad, without consulting MTA. In response, AFDI brought suit against MTA in federal district court, seeking a temporary restraining order and a preliminary injunction. MTA then reviewed the ad, determined it was consistent with its advertising standards, and ran the ad; AFDI thereupon discontinued the suit. Id. ¶ 37.
The events leading to the instant dispute began in March 2011, when AFDI submitted a proposed ad to CBS Outdoor Group, to be run on the exterior of NYCTA buses. Id. ¶ 39. The copy along the top of the ad read: “In any war between the civilized man and the savage, support the civilized man.” Id. at Ex. J. The ad then displayed a series of photographs, including young soldiers wearing keffiyehs and holding weapons, a man standing behind a lectern and in front of three flags displaying the star and crescent, men in keffiyehs marching and giving a salute, and Adolf Hitler with his hands on the shoulders of a child wearing a keffiyeh. Id. Below the photographs, the ad read: “Support Israel / Defeat Jihad” and “Paid for by the American Freedom Defense Initiative”; it directed readers to two websites, AtlasShrugs.com and FreedomDefenseInitiative.com. Id.
Soon after, AFDI withdrew that proposed ad and submitted a revised proposed ad to CBS Outdoor Group. Id. ¶ 39. The revised proposed ad differed from the first in that two photographs were removed and replaced (including by a photograph of an Arab woman wearing a hijab and holding a sign reading “God Bless Hitler”); the text below now read: “Support Israel / Defeat Islamic Fundamentalism.” Id. at Ex. J. CBS Outdoor Group alerted MTA that it
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believed the ad violated the advertising standards. AFDI, however, did not seek a final determination from MTA. Id. ¶ 41.
In September 2011, AFDI submitted a third proposed ad to be run on NYCTA buses— the AFDI Ad, which is the subject of this suit. Id. ¶ 45. AFDI advised MTA that the Ad was intended to respond to two ads that had been run in subway stations that same month. Geller Decl. ¶ 11. The first was an ad submitted by the WESPAC Foundation Inc. It depicted a man with his daughter, next to the words “Palestinian designer” and a man with his baby, next to the words “Israeli social worker.” The WESPAC ad read: “Be on our side. We are the side of peace and justice. End U.S. military aid to Israel.” The WESPAC ad directed readers to a website, www.TwoPeoplesOneFuture.org. Rosen Decl. Ex. K. The second ad, submitted by StandWithUs, depicted two young boys with their arms over each others’ shoulders, one wearing a keffiyeh around his neck and the other wearing a yarmulke. The StandWithUs ad read: “Israel Needs A Partner For Peace. The Palestinian Authority Must Accept The Jewish State & Teach Peace, Not Hate.” The StandWithUs ad then directed readers to a website, www.SayYesToPeace.org. Id. at Ex. L. CBS Outdoor Group had brought both of these ads to MTA’s attention as potentially inconsistent with the advertising standards, but MTA determined that the ads met the standards, and ran them. Id. ¶¶ 43–44.
The AFDI Ad modified the two ads AFDI had previously proposed but withdrew. The Ad, pictured below, contained no photographs. Its text, appearing in white against a black background, read: “In any war between the civilized man and the savage, support the civilized man.” Beneath that, in blue, were two Stars of David, and the words: “Support Israel.” Below that, in red text, it read: “Defeat Jihad.” The AFDI Ad informed readers that it was paid for by
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AFDI; it directed readers to AtlasShrugs.com, SIOAonline.com, and JihadWatch.com. Id. at Ex. M.
The AFDI Ad AFDI sought to run the Ad on the tails of approximately 318 NYCTA buses for four weeks, at a cost of approximately $25,000. Id. ¶ 45.
On September 21, 2011, after reviewing the AFDI Ad, CBS Outdoor Group sent an email to Geller. The email stated that CBS Outdoor Group had determined that the Ad did not conform to one of MTA’s advertising standards, and that AFDI could either submit a revised ad or seek a formal determination from MTA. Id. ¶ 47. Specifically, CBS Outdoor Group stated, the AFDI Ad “contains language that, in [CBS Outdoor Group’s] view, does not conform with the MTA’s advertising standards regarding ads that demean an individual or group of individuals as set forth in Section 5.05(B)(11) of the MTA’s Advertising Standards.” Id. at Ex. N. On September 22, 2011, David Yerushalmi, AFDI’s counsel, responded by email. Id. at Ex. O. He disputed that the Ad violated the no-demeaning standard, noting that the Ad did not refer to any individual or group identified within that standard. He also argued that the no-demeaning standard itself
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constituted viewpoint discrimination, in violation of the First Amendment. Yerushalmi stated that AFDI did not intend to revise the Ad, and sought MTA’s formal and final determination. Id.
Rosen, MTA’s Director of Real Estate, was responsible for making that determination. Before doing so, he consulted with MTA General Counsel James B. Henly, other attorneys in the general counsel’s office, MTA Chief Financial Officer, MTA Senior Director of Corporate and Internal Communications, and MTA Director of Communications/Press Secretary; the ultimate decision, however, was Rosen’s. Id. ¶ 51. Rosen “undertook a careful evaluation of the proposed advertisement (together with content posted on the three websites promoted by it) and the MTA’s advertising standards pursuant to the review procedure.” Id.
On September 23, 2011, Rosen emailed his final determination on the AFDI Ad to CBS Outdoor Group, requesting that it forward the email to AFDI. Id. at Ex. P. Rosen stated that MTA had not approved the Ad, because it had “determined that the advertisement in its current form—and AFDI has refused CBS’s invitation to consider modifying its proposed advertisement—does not conform to the MTA’s advertising standards, specifically Section 5.05(B)(11).” Id. Rosen rejected AFDI’s claim that the no-demeaning standard, or any portion of the advertising standards, constitutes viewpoint discrimination. He stated that “MTA does not decide whether to allow or not allow a proposed ad based on the viewpoint it expresses or because that viewpoint might be controversial,” and had frequently accepted controversial ads, including ads espousing different views on the same issue. Id.
Elaborating on the basis for rejecting the AFDI Ad, Rosen stated that the use of “savage” and “Jihad” to identify those who fail to support Israel “demeans a group (or groups) of individuals on account of their religion, national origin, or ancestry, including Palestinians or other Arabs or Muslims who do not share AFDI’s views on Israel.” Id. In reaching this
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judgment, Rosen stated, MTA had “consider[ed] whether a reasonably prudent person, knowledgeable of MTA’s customers and applying prevailing community standards, would believe that the advertisement contains material that ridicules or mocks, is abusive or hostile to, or debases the dignity or stature of, an individual or group of individuals.” Id. By rejecting demeaning ads, such as AFDI’s, Rosen stated, MTA furthers the “significant interest that MTA’s riders and employees, when reading paid advertisements that run in or on MTA’s transportation facilities, not be subjected to advertising that demeans them and that MTA not be associated with such demeaning speech.” Id.
In his sworn declaration submitted in support of defendants in this case, Rosen added that, when reviewing the Ad, he was mindful that AFDI intended it as a response to an ad calling to “[e]nd U.S. military aid to Israel,” id. ¶ 54 & Ex. K, and that the Ad was the successor to the two ads AFDI had proposed in March 2011 but which did not run, id. ¶ 54 & Ex. J. Those two proposed ads, Rosen stated, “plainly implied that the conflict between Israel and the Palestinian Authority and others was a war, a war that [] pitted ‘the civilized man’ (Israel) against ‘the savage[,]’ only instead of ‘Jihad’ it referred to ‘Islamic Fundamentalism,’ which, for AFDI, appear to be synonymous.” Id. ¶ 54. Read within its four corners, Rosen stated, the AFDI Ad violated MTA’s no-demeaning standard, because it equated supporting Israel with supporting the civilized man, and those who do not support Israel, such as “Muslims, Arabs, and Palestinians, for example,” with savages—“primitive, brutal, and uncivilized.” Id. ¶ 55. Thus, the Ad demeaned groups of people “on account of their religion, national origin, or ancestry.” Id.
B. Procedural History On September 27, 2011, four days after Rosen’s rejection of the AFDI Ad, plaintiffs filed the Complaint, claiming that the rejection of the Ad violated their First Amendment rights (Dkt.
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1). On October 19, 2011, defendants filed an answer (Dkt. 6). On January 31, 2012, following targeted discovery, plaintiffs filed this motion for a preliminary injunction (Dkt. 16). On March 9, 2012, defendants filed opposition papers (Dkt. 22). On March 22, 2012, plaintiffs filed reply papers (Dkt. 26).
On April 3, 2012, the Court held a hearing in this matter. Rosen had provided direct testimony by means of a sworn declaration, and, at the hearing, counsel for AFDI crossexamined him. The Court also heard extended oral argument. II. Applicable Legal Standard
In order to justify a preliminary injunction, a movant must demonstrate: (1) irreparable harm absent injunctive relief; (2) either a likelihood of success on the merits, or a serious question going to the merits to make them a fair ground for trial, with a balance of hardships tipping decidedly in the plaintiff’s favor; and (3) that the public’s interest weighs in favor of granting an injunction. See Metro. Taxicab Bd. of Trade v. City of N.Y., 615 F.3d 152, 156 (2d Cir. 2010) (citation omitted). “‘When, as here, the moving party seeks a preliminary injunction that will affect government action taken in the public interest pursuant to a statutory or regulatory scheme, the injunction should be granted only if the moving party meets the more rigorous likelihood-of-success standard.’” Id. (quoting Cnty. of Nassau, N.Y. v. Leavitt, 524 F.3d 408, 414 (2d Cir. 2008)). A party seeking a mandatory preliminary injunction, which “alters the status quo by commanding some positive act,” faces an even higher burden than likelihood of success on the merits; such a party must make “‘a clear showing that the moving party is entitled to the relief requested, or [that] extreme or very serious damage will result from a denial of preliminary relief.’” Cacchillo v. Insmed, Inc., 638 F.3d 401, 406 (2d Cir. 2011) (quoting
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Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 (2d Cir. 2010)) (additional internal quotation marks and citation omitted).
Plaintiffs bring their challenge under the First Amendment, claiming that MTA’s nodemeaning standard is unconstitutional and that MTA’s rejection of the Ad for non-conformity with that standard unlawfully restricted their free speech. Where infringement of free speech is claimed, irreparable harm may normally be presumed, and the Court does so here. See Amaker v. Fisher, 453 F. App’x 59, 63 (2d Cir. 2011) (citing Bronx Household of Faith v. Bd. of Educ. of City of N.Y., 331 F.3d 342, 349 (2d Cir. 2003)) (“Where a plaintiff alleges injury from a rule or regulation that directly limits speech, the irreparable nature of the harm may be presumed.”); see also N.Y. Magazine v. Metro. Transp. Auth., 136 F.3d 123, 127 (2d Cir. 1998) (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”). Thus, the Court must assess whether, upon a searching review of the factual record, plaintiffs successfully demonstrate by a clear showing that they are entitled to the relief requested under this Circuit’s First Amendment jurisprudence. III. Analysis
The ensuing analysis is in three parts. First, the Court assesses whether, as MTA determined, the AFDI Ad is prohibited under MTA’s no-demeaning standard. The Court holds that it is—and that the Court therefore must address whether that prohibition comports with the First Amendment. Second, the Court analyzes the forum (advertising space on the exterior of MTA buses) to determine the standard applicable to MTA’s speech restriction. The parties sharply disagree on this critical issue. Largely on the basis of the Second Circuit’s decision in New York Magazine v. Metropolitan Transportation Authority, 136 F.3d 123 (2d Cir. 1998), the Court agrees with AFDI that this space is a designated public forum, in which content-based
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restrictions on expressive activity are subject to strict scrutiny. The Court therefore rejects MTA’s claim that this space is either a limited public forum or not a public forum at all, both of which would give the government greater latitude to impose restrictions on speech. The Court then applies the analysis applicable to speech restrictions in designated public forums to MTA’s no-demeaning standard.
As a threshold matter, the Court notes that the AFDI Ad is not only protected speech—it is core political speech. The Ad expresses AFDI’s pro-Israel perspective on the Israeli/Palestinian conflict in the Middle East, and implicitly calls for a pro-Israel U.S. foreign policy with regard to that conflict. The AFDI Ad is, further, a form of response to political ads on the same subject that have appeared in the same space.3 As such, the AFDI Ad is afforded the highest level of protection under the First Amendment. See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 269 (1964) (“‘The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.’”) (quoting Stromberg v. California, 283 U.S. 359, 369 (1931)); see also Hustler Magazine v. Falwell, 485 U.S. 46, 50 (1988) (“At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern.”). The Court, therefore, analyzes plaintiffs’ claim that MTA violated the First Amendment in rejecting the AFDI Ad “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” N.Y. Times Co., 376 U.S. at 270.
3 At argument, counsel for MTA conceded that the AFDI Ad constitutes political speech. Hr’g Tr. 111, Apr. 3, 2012.
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A. Applicability of MTA’s No-Demeaning Standard to the AFDI Ad The Court first considers whether MTA correctly determined that the AFDI Ad falls within the no-demeaning standard, i.e., that the Ad demeans a person or group on account of, inter alia, religion, national origin, or ancestry. AFDI, in attempting to persuade MTA to run the Ad, originally had argued that the Ad falls outside that prohibition; however, before the hearing in this case, it appeared to abandon this position. The Court asked counsel to address this potential narrower ground for relief, mindful that, where possible, federal courts should avoid reaching constitutional questions. See, e.g., Arizona v. Evans, 514 U.S. 1, 33 (1995); Bray v. Alexandria Women’s Health Clinic, 498 U.S. 1119 (1991); United States v. Rybicki, 354 F.3d 124, 144 (2d Cir. 2003); Allstate Ins. Co. v. Serio, 261 F.3d 143, 149–50 (2d Cir. 2001). In determining whether the AFDI Ad is demeaning, the operative word in the Ad is “savage.” “Savage” is defined as: “fierce, ferocious, cruel,” “uncivilized; existing in the lowest stage of culture,” and “wild, undomesticated, untamed,” OXFORD ENGLISH DICTIONARY (2d ed. 2012); “not civilized; barbaric” and “vicious or merciless; brutal,” AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (4th ed. 2007); and “fierce, violent and uncontrolled,” NEW OXFORD AMERICAN DICTIONARY (3d ed. 2010). Terming a person or a people “savage” clearly demeans that individual or group.4 The issue presented, then, is whether the AFDI Ad demeans on the basis of religion, national origin, or ancestry, as MTA concluded, or whether the Ad instead demeans those of Israel’s enemies who (regardless of their religion, national origin, or ancestry) engage in “savage” behavior, as AFDI originally sought to defend the Ad in its discussions with MTA. See Rosen Decl. ¶ 49.
4 To “demean” means to “lower in condition, status, reputation or character.” OXFORD ENGLISH DICTIONARY (2d ed. 2012); see also MERRIAM WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2004) (same).
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In the Court’s view, MTA reasonably read the AFDI Ad to target as “savages” persons who adhere to Islam, i.e., Muslims. The Ad reads: “In any war between the civilized man and the savage, support the civilized man. / Support Israel / Defeat Jihad.” In postulating a “war” between “the civilized man” and “the savage,” the Ad identifies the former as Israel and the latter as persons adhering to Jihad. “Jihad,” in turn, is widely understood to be a religious doctrine of Islam. It is defined as: a “war or crusade for or against some doctrine, opinion, or principle; war to the death” and “a religious war of Muslims against unbelievers, inculcated as a duty by the Qur’an and traditions,” OXFORD ENGLISH DICTIONARY (2d ed. 2012); a “holy war waged on behalf of Islam as a religious duty,” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed.); “a war or struggle against unbelievers,” NEW OXFORD AMERICAN DICTIONARY (3d ed. 2010); and “the central doctrine that calls on believers to combat the enemies of their religion,” BRITTANICA CONCISE ENCYCLOPEDIA (15th ed. 2009).5
To be sure, there are likely adherents to Jihad who are non-Muslims, such that the Ad can literally be read to assail as savages all adherents to Jihad regardless of their religion—much as there assuredly are many adherents to Islam who do not accept Jihad, at least when defined as a violent crusade against enemies generally, or against Israel specifically. But, realistically, when it is read as a reasonable person would, the AFDI Ad plainly depicts Muslims—the primary adherents to this tenet of Islam—as “savages.”
5 The word’s meaning does depend, in part, on context. The Oxford Companion to Military History, for example, differentiates between “‘the greater jihad,’ a spiritual struggle against the evil within oneself” and a “‘lesser jihad,’ physical effort in the cause of Islam.” OXFORD COMPANION TO MILITARY HISTORY (2001). The word derives from the “Arabic root meaning ‘to strive,’ ‘to exert,’ ‘to fight,’” and may be used to express “a struggle against one’s evil inclinations” or “a struggle for the moral betterment of the Islamic community.” OXFORD DICTIONARY OF ISLAM (2003).
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A review of the websites to which viewers of the AFDI Ad are referred confirms the reasonableness of MTA’s understanding of the Ad’s message. MTA consulted these websites in the course of making its determination, see Declaration of MTA Associate Counsel Peter Sistrom (“Sistrom Decl.”) ¶¶ 2–7, and doing so was appropriate: Because these websites are listed in the AFDI Ad itself, they are fairly considered in assessing how a reasonable reader would interpret the Ad.
In particular, at the time the Ad was under consideration, the first of those websites, www.AtlasShrugs.com—of which plaintiff Pamela Geller, AFDI’s Executive Director, is editor and publisher—reproduced three relevant articles by Geller. Each echoes the “civilized man vs. savages” theme of the AFDI Ad. For a viewer of the AFDI Ad who consulted the website, each of Geller’s articles would shed light on who precisely the Ad depicts as a “savage.” Id.
In the first article, entitled “Glenn Beck and the Struggle for Israel’s Survival,” Geller writes that “[t]he Jewish people” are “under relentless and unremitting attack from the Muslim world,” and that this struggle is:
the struggle between good and evil. The hatred of Israel is a hatred that in itself is reviled by good rational men. Islamic societies are among the least developed cultures, the product of nomadic civilization. Their culture is primitive and barbaric, and they hate Israel because it is the sole beacon of modern science and civilization and technology in the Middle East. Geller then quotes Ayn Rand: “[W]hen you have civilized men fighting savages, you support the civilized men, no matter what.” Geller goes on to contrast Israel (a “free society”) with “the Muslim countries” (“slave societies”). Geller then warns Muslim that if they were to succeed with their “conquest of Israel,” they would “die as well,” because “their survival depends on their constant jihad, because without it they will lose the meaning and purpose of their existence.” Id. ¶ 3 & Ex. A.
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In the second article, entitled “Fatal Thinking,” Geller writes that “Iran’s nukes are not just Israel’s problem. They are the non-Muslim world’s problem. It is the world’s complicity with Islamic barbarism that catapults the Jewish issue to the fore because of the fierce Jew-hatred that is commanded in Islam.” Id. ¶¶ 4–5 & Ex. B. Geller adds:
Even the godless cannot escape this religious war declared on the world by Islam. The fact is, this is a values issue. Right and wrong. Good and evil. And what side you are on in the war between the civilized man and the savage speaks volumes about your character, your credibility, and your morality. Id. at Ex. B. Finally, in an article entitled “Civilized Man vs. Savage,” Geller recounts an incident involving an Arab woman who was treated for burns by an Israeli plastic surgeon and was later arrested wearing a suicide belt, en route to blowing up the hospital at which she had been treated. Geller writes that that story “is only an example of the war between Jews and Muslims in the land of Israel”—a war that “is not a territorial conflict. This is a civilizational conflict.” Id. ¶ 6 & Ex. C. In light of these articles, to which the AFDI Ad effectively referred its viewers, MTA was reasonable—indeed, clearly correct—to regard the AFDI Ad as demeaning a group of people based on religion (Islam) and/or national origin and ancestry (from “Muslim countries” in the Middle East). The Court therefore cannot resolve this case on the non-constitutional ground that MTA misapplied its no-demeaning standard. The Court must instead address the constitutionality of that standard. B. Forum Analysis
1. Categories of Forums Where the government seeks to restrict speech by restricting access to its own property, the level of scrutiny to which the restriction is subjected depends on how the property is
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categorized as a forum for speech. This forum analysis is a “means of determining when the Government’s interest in limiting the use of its property to its intended purpose outweighs the interest of those wishing to use the property for [expressive] purposes.” Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 800 (1985); see also id. (noting that the government, like a private individual, has the “power to preserve the property under its control for the use to which it is lawfully dedicated”) (internal citation and quotation marks omitted). In its First Amendment jurisprudence, the Supreme Court has classified government property into three general categories: traditional public forums, designated public forums, and nonpublic forums. See Christian Legal Soc’y v. Martinez, 130 S. Ct. 2971, 2984 n.11 (2010); see also Hotel Emps. & Rest. Emps. Union v. City of N.Y. Dep’t of Parks & Rec., 311 F.3d 534, 544–46 (2d Cir. 2002). Once a court has determined the type of forum at issue, it then applies the requisite standards for that forum to the challenged speech restriction.
The first category, the traditional public forum, refers to areas, such as public streets and parks, “which have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Pleasant Grove City, UT v. Summum, 555 U.S. 460, 469 (2009) (internal citations and quotation marks omitted); see also N.Y. Magazine, 136 F.3d at 128. In a traditional public forum, content-based restrictions on speech must survive strict scrutiny: i.e., the restriction must be narrowly tailored to serve a compelling government interest. Hotel Emps., 311 F.3d at 545; see also Pleasant Grove City, 555 U.S. at 469. The government may impose content-neutral time, place, and manner restrictions; however, these must be “narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983).
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The second category, the designated public forum, refers to government property which, although not a traditional public forum, has been “intentionally opened up for that purpose.” Christian Legal Soc’y, 130 S. Ct. at 2984 n.11; see also Cornelius, 473 U.S. at 802; N.Y. Magazine, 136 F.3d at 128. Because the government, as property owner, has opened up a designated public forum to the same breadth of expressive speech as found in traditional public forums, the same standards apply: Any content-based restrictions on speech must survive strict scrutiny, meaning they must be narrowly tailored to serve a compelling government interest, and content-neutral time, place, and manner restrictions are permissible only if they are narrowly tailored and leave open other avenues for expression. See Pleasant Grove City, 555 U.S. at 469– 70; Int’l Action Ctr. v. City of N.Y., 587 F.3d 521, 526–27 (2d Cir. 2009) (citing Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)); Hotel Emps., 311 F.3d at 545.
The final category of governmental property identified by the Supreme Court consists of non-public forums. Non-public forums are property that “the government has not opened for expressive activity by members of the public.” Hotel Emps., 311 F.3d at 546; see also Perry Educ. Ass’n, 460 U.S. at 45–46. Examples include airport terminals, military bases and restricted access military stores, and jailhouse grounds. Hotel Emps., 311 F.3d at 546. Restrictions on speech in non-public forums must only be “reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.” Perry Educ. Ass’n, 460 U.S. at 46; see also Cornelius, 473 U.S. at 800; Hotel Emps., 311 F.3d at 546 (“The government may restrict speech in non-public fora subject only to the requirements of reasonableness and viewpoint neutrality.”).6
6 In the Second Circuit, another category of forum, known as the limited public forum, has alternately been analyzed as a subset of the designated public forum and as a type of non-public forum opened up for discrete purposes. See Byrne v. Rutledge, 623 F.3d 46, 55 n.8 (2d Cir.
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2. The New York Magazine Precedent
The forum in this case consists of the advertising space on the exterior of New York City
public buses. In New York Magazine v. Metropolitan Transportation Authority, the Second
Circuit addressed that very forum. It held that this space was a designated public forum.
Because the parties’ arguments on the forum issue turn centrally on whether New York Magazine
controls here, the Court begins by reviewing that decision in detail.
At issue in New York Magazine was an ad which New York Magazine, a weekly
publication featuring (among other things) news and commentary about New York City,
contracted with MTA to run on buses. The ad depicted the magazine’s logo with copy that read:
“Possibly the only good thing in New York Rudy hasn’t taken credit for.” The week after the ad
began to run, Mayor Rudolph Giuliani’s office called MTA, and claimed that the ad violated §
50 of the New York Civil Rights Law, which bars the unconsented-to use of the names or pictures of living persons for advertising purposes.7 Because MTA’s advertising standards
2010) (“the law of [the Second Circuit] describes a limited public forum as both a subset of the designated public forum and a nonpublic forum opened to certain kinds of speakers or to the discussion of certain subjects”) (internal quotation marks and citations omitted). Limited public forums are property that the government has opened up for some speech, but “‘limited to use by certain groups or dedicated solely to the discussion of certain subjects.’” Christian Legal Soc’y, 130 S. Ct at 2984 n.11 (quoting Pleasant Grove City, 555 U.S. at 470). Common examples of limited public forums include “state university meeting facilities opened for student groups, open school board meetings, city-leased theaters, and subway platforms opened to charitable solicitations.” Hotel Emps., 311 F.3d at 545 (internal citations omitted). The government has more leeway to restrict speech in a limited public forum than in a traditional or designated public forum. However, any restrictions on speech in such a forum must be viewpoint-neutral, and the choice to exclude particular speech must be reasonable in light of the forum’s purpose. See Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106–07 (2001); Rosenberg v. Rector & Visitors of Univ. of VA, 515 U.S. 819, 829 (1995); Cornelius, 473 U.S. at 806. 7 Section 50 of the New York Civil Rights Law reads:
Right of privacy. A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name,
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prohibit the display of any ad which violates § 50, see supra § I.A.ii, MTA complied with Mayor Guiliani’s request, and ceased to run the ad. N.Y. Magazine, 136 F.3d at 125.
New York Magazine thereupon brought suit against MTA and New York City in this Court, seeking, inter alia, injunctive relief under the First and Fourteenth Amendments. The district court granted preliminary injunctive relief; the defendants appealed. The Second Circuit affirmed that order with respect to MTA.8
The Second Circuit’s decision in New York Magazine turned heavily on its determination that the advertising space on the exteriors of New York City public buses was a designated public forum, as New York Magazine had argued. (MTA argued, as it does here, that it was a non-public forum.) The Second Circuit began by noting that “whether government property is designated a public forum or not depends on the government’s intended purpose for the property.” N.Y. Magazine, 136 F.3d at 129. To determine the government’s intent in opening up the forum, the Court stated, it examined: (1) “the nature of the property and its compatibility with expressive activity”; (2) “the nature of the restraints on speech imposed”; and (3) “the policies by which it governed the use of the forum.” Id. Also relevant was whether MTA, in selling advertising space, was acting in a proprietary or regulatory capacity. Id.
As the Second Circuit noted, where the government opens a property for speech in its proprietary capacity to raise revenue or facilitate internal affairs, the Supreme Court has considered the forum non-public, thereby subjecting speech restrictions to only a reasonableness
portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor. Section 51 creates causes of action in equity and damages for violations of § 50. 8 The Second Circuit ordered that the City be dismissed, because New York Magazine lacked standing to assert a claim against the City. N.Y. Magazine, 136 F.3d at 127.
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test. Id. (citing Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992); Lehman v. City of Shaker Heights, 418 U.S. 298, 303 (1974); Cornelius, 473 U.S. at 805). By contrast, when the government has acted for the purpose of benefitting the public, it has held the forum to be public, subjecting speech restrictions to a more demanding standard. Id. (citing Widmar v. Vincent, 454 U.S. 263, 267–69 (1981); Southeastern Promotions, Ltd v. Conrad, 420 U.S. 546, 555 (1975)).
Finally, the Second Circuit noted, in determining the Government’s intent for a forum, the Supreme Court has examined not only “the characteristics of the forum, but also the policies by which it governed the use of that forum.” N.Y. Magazine, 136 F.3d at 129. As to this point, the Court rejected MTA’s claim that by restricting access to the forum through its advertising standards, MTA had “evidence[d] an intent not to create a public forum.” Id. The Court stated: “[I]t cannot be true that if the government excludes any category of speech from a forum through a rule or standard, that forum becomes ipso facto a non-public forum, which is to exclude speech based on content.” Id. at 129–30. That proposition “would eviscerate the [Supreme] Court’s own articulation of the standard of scrutiny applicable to designated public fora.” Id. at 130. Instead, the fact that a forum prohibits certain categories of speech is relevant because “the nature of the excluded categories sheds light on whether the government was acting primarily as a proprietor or a regulator.” Id. Thus, for example, “[d]isallowing political speech, and allowing commercial speech only, indicates that making money [as a proprietor] is the main goal,” whereas “[a]llowing political speech . . . evidences a general intent to open a space for discourse, and a deliberate acceptance of the possibility of clashes of opinion and controversy . . . [that are] inconsistent with sound commercial practice.” Id.
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Applying these principles, the Second Circuit held that the advertising space on the exteriors of public buses was a designated public forum. In so holding, the Court emphasized that MTA “accepts both political and commercial advertising” in that space, with the knowledge that “clashes of opinion and controversy” in political advertising could have adverse commercial effect. Id. at 129–30. Opening up its ad space up to potentially controversial political speech, a practice “inconsistent with sound commercial practice,” was the action of a regulator, not a commercial proprietor. Id. at 130. The Second Circuit found further support for this conclusion in the specific advertising standard at issue in the case, which prohibited ads which “violate[] New York Civil Rights Law § 50.” Because MTA’s articulated interest in applying that standard was to assure compliance with law, MTA was properly held to be acting in a regulatory, not a commercial, role. Id.
3. Analysis As in New York Magazine, the parties vigorously disagree whether the advertising space on the exteriors of MTA buses is a designated public forum (AFDI’s view) or a limited or nonpublic forum (MTA’s view). From this Court’s perspective, however, the issue is one of stare decisis: The Second Circuit’s decision in New York Magazine, which dealt with the identical forum, binds this Court and controls this case, barring material changes in the nature of that forum, or the policies governing it. And it is undisputed that there have been no such changes in MTA’s policies and practices governing bus ads since New York Magazine. See AFDI Mem. 9 n.2; Hr’g Tr. 103, Apr. 3, 2012. The reassessment of the categorization of this forum which MTA seeks, therefore, must be made by the Second Circuit or the Supreme Court. It cannot be made by this Court.
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In any event, the arguments MTA makes for reassessing the forum designation are not compelling. MTA argues, first, that Second Circuit forum doctrine has evolved since New York Magazine. There, MTA notes, the Circuit defined a designated public forum as “a place the government has opened for use by the public for expressive activity,” 136 F.3d at 128; however, in its 2002 decision in Hotel Employees & Restaurant Employees Union v. City of New York Department of Parks & Recreation, 311 F.3d 534 (2d Cir. 2002), the Circuit referred to a designated forum as “a non-public forum that the government has opened for all types of expressive activity,” id. at 545 (emphasis in original). Seizing on the Circuit’s use of the word “all,” MTA argues that the advertising space on the exteriors of buses would fail to qualify as a designated public forum under the Hotel Employees formulation, because MTA does limit expression there, including via the no-demeaning standard. MTA Mem. 13–14.
MTA, however, assigns more weight to the locution used in Hotel Employees than is merited. First, to the extent that the Second Circuit’s use of the qualifier “all” in that decision is said to bespeak a doctrinal shift since New York Magazine, the Supreme Court case that the Second Circuit cited for that proposition in Hotel Employees, Cornelius v. NAACP Legal Defense & Education Fund, tellingly, predates New York Magazine. See Hotel Emps., 311 F.3d at 545; Hr’g Tr. 94, Apr. 3, 2012. Thus, although Hotel Employees conceivably reflects a subtle honing of the language the Circuit uses to articulate its forum doctrine, that decision is not fairly read as more consequential than that, and certainly does not, sub silentio, overturn New York Magazine. Second, the forum in this case meets the Hotel Employees designated-public-forum formulation: The exteriors of MTA buses are, undisputedly, “open for all types of expressive activity”—e.g., political, commercial, religious, charitable, military, etc. That MTA imposes restrictions within those types of expression (e.g., no violent images, no false or misleading
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speech, no offensive sexual material, and no demeaning speech) does not alter this conclusion. Notably, the paradigmatic examples of non-public forums cited in Hotel Employees—“airport terminals,” “military bases and restricted access military stores,” and “jailhouse grounds,” all characterized by severe restrictions on types of speech—are a far cry from the ad space at issue here. See Hotel Emps., 311 F.3d at 546 (describing non-public forums as “property that the government has not opened for expressive activity by members of the public”).
MTA alternatively seeks to distinguish New York Magazine on the facts. It argues that, although the rules and practices with respect to bus ads are unchanged since that decision, MTA has compiled in this litigation a more substantial factual record than it had previously that its goal in opening up the exteriors of buses for ads, including in the form of political speech, is to raise money. See MTA Mem. 14–15; Rosen Decl. ¶¶ 4–5; Hr’g Tr. 94–95, Apr. 3, 2012. But MTA’s stated goal of making money from selling ad space on the outside of buses was presented to the Second Circuit at the time of New York Magazine, and did not carry the day. See N.Y. Magazine, 136 F.3d at 133 (Cardamone, J., dissenting). More fundamentally, in inferring the government’s intent with respect to a particular forum, the Supreme Court and the Second Circuit have not deferred to the testimony of governmental decisionmakers. And any such mode of First Amendment analysis would perforce treat any paid advertising space on government property as a non-public forum, as long as the government officials responsible for that space attested that they were motivated to bring in revenue. Rather, the government’s intent as to a particular forum—a legal construct—is to be discerned from policy and practice, including, the characteristics of the forum and the policies governing speech there. See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 302–03 (2000) (Court looks to government’s “policy [and] practice” with regard to the forum at issue to conduct the forum analysis); Hazelwood Sch. Dist. v.
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Kuhlmeier, 484 U.S. 260, 269–70 (1988) (same) (citing Perry Educ. Ass’n, 460 U.S. at 47); Hotel Emps., 311 F.3d at 547; N.Y. Magazine, 136 F.3d at 129. As to the forum in question here, those factors are unchanged since New York Magazine.
Finally, MTA notes that a factor cited in New York Magazine to support finding a designated public forum—the specific advertising standard at issue there, prohibiting ads that violated New York Civil Rights Law § 50, see 136 F.3d at 130—is absent here. But, for two reasons, that argument is not dispositive on the forum issue. First, in New York Magazine, the Second Circuit cited the government’s regulatory (i.e., non-proprietary) purpose in enacting the standard as confirmation for its designated public forum determination, not as the basis for it. Id. Second, the standard at issue here is equally characterized as regulatory. To be sure, one reason for the no-demeaning standard was to protect MTA’s interest “in avoiding the possibility of being associated with such ads and in protecting its reputation as a provider of service to all persons on a non-discriminatory basis.” Rosen Decl. ¶ 22. But MTA has also justified the nodemeaning standard as a means of assuring that bus ads do not undermine civility within its diverse ridership, and of “furthering the interests of MTA patrons in avoiding unwanted and unavoidable confrontations with demeaning advertisements.” See, e.g., id.; MTA Mem. 1, 3, 17, 18. Although civic harmony is surely beneficial to MTA commercially, as a goal, the Court regards it as, fundamentally, regulatory.
The Court, therefore, concludes that the advertising space on the exteriors of MTA buses is a designated public forum.
C. Application of the First Amendment to MTA’s No-Demeaning Standard As noted, the same constitutional protections for speech that apply in a traditional public forum apply in a designated public forum, and “[v]irtually all regulations of speech in these
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forums are subject to the highest level of First Amendment scrutiny.” Byrne, 623 F.3d at 53; see also Zalaski v. City of Bridgeport Police Dep’t, 613 F.3d 336, 341 (2d Cir. 2010); Peck ex rel. Peck v. Baldwinsville Cent. Sch. Dist., 426 F.3d 617, 626 (2d Cir. 2005). AFDI argues that MTA’s no-demeaning standard is unconstitutional under these standards, for a number of independent reasons. See infra p. 34 note 14. However, to resolve this case, the Court need reach only one of AFDI’s arguments, which is that MTA’s no-demeaning standard impermissibly discriminates among speech on the basis of its content.
In a traditional or designated public forum, content-based regulations are presumptively invalid. See R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992) (citing Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 115 (1991)); Regan v. Time, Inc., 468 U.S. 641, 648–49 (1984). In such forums, “content-based restrictions will be upheld only if they are necessary to serve a compelling state interest and are narrowly drawn to achieve that end.” Peck, 426 F.3d at 626. In determining whether a speech restriction is content-based as opposed to content-neutral, the Court inquires whether the regulation “is justified without reference to the content of the regulated speech.” Mastrovincenzo v. City of N.Y., 435 F.3d 78, 98 (2d Cir. 2006) (citations omitted); see also Boos v. Barry, 485 U.S. 312, 318–19 (1988) (invalidating as content-based a regulation prohibiting signs protesting a foreign government within 500 feet of that government’s embassy, because “[o]ne category of speech has been completely prohibited [whereas] [o]ther categories of speech . . . are permitted”).
The Supreme Court’s 1992 decision in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), is singularly instructive in considering AFDI’s claim that MTA’s regulation is content-based. Overturning a conviction based on a burning of a cross, the Court in R.A.V. held facially invalid a municipal ordinance prohibiting bias-motivated disorderly conduct. The ordinance prohibited
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the display of a symbol which one knows or has reason to know “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender”; state courts had construed the ordinance to apply only to “fighting words.” See R.A.V., 505 U.S. at 377, 391. The Court recognized that fighting words are often proscribable. But, even so, it held, St. Paul’s ordinance violated the First Amendment, because it drew a content-based distinction among fighting words. The Court explained:
[T]he ordinance applies only to “fighting words” that insult, or provoke violence, “on the basis of race, color, creed, religion, or gender.” Displays containing abusive invective, no matter how vicious or severe, are permissible unless they are addressed to one of the specified disfavored topics. Those who wish to use “fighting words” in connection with other ideas—to express hostility, for example, on the basis of political affiliation, union membership, or homosexuality—are not covered. The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects. Id. at 391. Viewed in light of the decision in R.A.V., it is unavoidably clear that MTA’s nodemeaning standard differentiates based on the content of the proposed ad. It proscribes ads that demean a person or group on account of one of nine enumerated subjects: “race, color, religion, national origin, ancestry, gender, age, disability or sexual orientation.” But, outside of these “specified disfavored topics,” R.A.V., 505 U.S. at 391, MTA’s standard permits all other demeaning ads. Thus, MTA’s standard permits ads that demean individuals or groups based on a host of circumstances and characteristics—including place of residence, personal history, education, occupation or employment, physical characteristics (other than disability), political affiliation, union membership, point of view, or behavior. MTA so acknowledged at the hearing in this case. It conceded that the no-demeaning standard does not empower MTA to proscribe
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demeaning ads aimed at an individual or group on account of anything other than “race, color, religion, national origin, ancestry, gender, age, disability or sexual orientation.” See Hr’g Tr. 17, 21, 25, 99, 101, 105–06, 122–23, Apr. 3, 2012.
To illustrate the point concretely, under MTA’s no-demeaning standard, an advertiser willing to pay for the privilege is today at liberty to place a demeaning ad on the side or back of a city bus that states any of the following: “Southerners are bigots”; “Upper West Siders are elitist snobs”; “Fat people are slobs”; “Blondes are bimbos”; “Lawyers are sleazebags”; or “The store clerks at Gristedes are rude and lazy.” The regulation also does not prohibit an ad that expresses: “Democrats are communists”; “Republicans are heartless”; or “Tea Party adherents are barbaric.” The standard would also countenance an ad that argues: “Proponents [or opponents] of the new health care law are brain-damaged.” Strikingly, as MTA conceded at argument, its no-demeaning standard currently permits a bus ad even to target an individual private citizen for abuse in the most vile of terms. For example: “John Doe is a child-abuser”; “Jane Doe runs a Ponzi scheme”; or “My neighbors, the Does, are horrible parents.”9 Hr’g Tr. 26, 108, Apr. 3, 2012.
Thus, like the St. Paul ordinance invalidated in R.A.V., MTA’s no-demeaning standard, as presently worded, overtly differentiates among speech based on the target of the speech’s abuse and invective. R.A.V. involved fighting words, whereas this case involves demeaning bus ads, but the First Amendment evil is the same: By differentiating between which people or groups can and cannot be demeaned on the exterior of a city bus, MTA’s no-demeaning standard, like St. Paul’s ordinance, discriminates based on content. Indeed, the discrimination here is, in an
9 To be sure, in its other standards, MTA prohibits, inter alia, libelous ads or ads that contain false or misleading claims. However, there does not appear to be any basis in MTA’s current standards to reject a demeaning ad directed at an individual where the ad demeans based on statements of opinion, or based on truthful facts.
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important respect, more invidious than the fighting-words ordinance in R.A.V.: As this case illustrates, the content discrimination embedded in MTA’s no-demeaning standard applies to and among political speech, the speech most highly protected by the First Amendment. Cf. Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 1264 (11th Cir. 2005) (invalidating a municipal sign code because of its content-based exemptions, the effect of which was to differentiate among political messages, only some of which could be lawfully conveyed on signs).
The derogatory term at issue in the AFDI Ad, “savage,” in fact, supplies an excellent vehicle for illustrating the content-specificity of MTA’s no-demeaning standard. Under that regulation, an ad on a public bus may not call a person or group “savage” based on his or her religion or nationality, or because the person or group falls within the other seven proscribed categories delineated in the regulation. But such an ad may otherwise call another person or group a “savage” or “savages” on any other basis—because they are a neighbor, a family, a school, an employer, an employee, a company, a union, a community group, a charity, an interest group, a believer in a cause, or a political foe.10 Under R.A.V., that line is, unavoidably, contentbased. Not surprisingly, pressed at argument on this point with the use of such hypotheticals, MTA ultimately—and properly—conceded that its no-demeaning standard is content-based. Hr’g Tr. 122, Apr. 3, 2012.11
10 Indeed, at argument, counsel for MTA conceded that, if the AFDI Ad had been modified to drop the word “Jihad” and to read, “People who believe in a holy war are savages,” MTA probably would have been obliged to permit that ad to appear. Hr’g Tr. 101, Apr. 3, 2012. He conceded that “[i]t is the ‘jihad’ word” that caused the Ad to contravene MTA’s current regulation. Id. 11 In its brief, MTA had argued that the no-demeaning standard was content-neutral, based on the decision in International Action Center v. City of New York, 587 F.3d 521 (2d Cir. 2009). The Second Circuit there stated that “where the standard or rule applies without regard to the basic message being expressed, it is content-neutral.” Id. at 525–26. International Action Center is, however, inapposite. At issue there was a regulation banning the issuance of permits to “new”
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MTA does not offer any justification for selectively allowing demeaning speech to appear
on the exterior of its buses, let alone demonstrate that its content-based restriction on transit
advertising is narrowly tailored to serve a compelling governmental interest, as is necessary to
survive strict scrutiny.12 See Pleasant Grove City, 555 U.S. at 469–70; Hotel Emps., 311 F.3d at
545. Whatever weight might be assigned to the governmental interest in banning demeaning
speech on the exterior of New York City buses on an even-handed basis, there is no good reason
for protecting some individuals and groups, but not others, from such abuse. MTA’s no-
demeaning standard, as currently formulated, is, therefore, inconsistent with the First
Amendment.
parades (i.e., ones not previously held) along Fifth Avenue in Manhattan. Id. at 523. The regulation was enacted to “keep public spaces safe and free of congestion,” to protect “citizens from unwelcome noise,” and “to preserve the quality of urban life.” Id. at 527. The Second Circuit found that regulation content-neutral, because it “does not seek to regulate messages or distinguish between different types of speech” and “applies to all ‘new’ parades, irrespective of their content.” Id. at 526. Here, by contrast, MTA’s no-demeaning standard facially discriminates based on the content of expression. Further, as outlined by MTA itself, the purpose served by the standard relates “to the content of expression,” Ward, 491 U.S. at 791: It seeks to: (1) shield the citizenry from confronting certain types of verbal or pictorial disparagement contained in ads on public buses, and (2) respect “the interests of MTA patrons in avoiding unwanted and unavoidable confrontations with demeaning advertisements.” Rosen Decl. ¶ 22.
12 Before this Court, MTA instead defended the no-demeaning standard on other grounds. It predominantly argued, as noted, that the advertising space on the exterior of city buses was a non-public forum, in which a speech restriction need only be reasonable and viewpoint-neutral. The Court has rejected that claim; it has no occasion here to opine whether a regulation that prohibited only some demeaning speech would be valid in a non-public forum. MTA alternatively argued that the no-demeaning standard was content-neutral, an argument the Court has rejected. Finally, MTA suggested that its ban on demeaning speech could be justified as a ban on “fighting words.” MTA Mem. 16–17; Hr’g Tr. 106, Apr. 3, 2012. However, that argument fails, because the no-demeaning standard sweeps far beyond the narrow category of “fighting words,” because there is no record evidence that demeaning ads on bus exteriors (as opposed to in-person slurs) would incite violence, and because a municipality’s selective ban on fighting words which favors only certain targets would be clearly unconstitutional under R.A.V.
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In holding today that MTA’s no-demeaning standard violates the First Amendment, the Court does not impugn in the slightest the motives of MTA and its officials—either those who put the standard into place or those who applied it to the AFDI Ad. Quite the contrary: From the testimony and evidence, it is apparent that, in promulgating and applying the no-demeaning standard, MTA has aspired to hold ads on public buses to a standard of civility. Its goal of preventing ads on city bus exteriors from being used as a medium for abuse and division in this diverse metropolis is entirely laudable. It appears likely that MTA drafted the standard in question with an eye toward the groups it felt most likely to be targeted by demeaning ads, without adequately considering the First Amendment implications under R.A.V. of such a selective prohibition.
However, it is well-settled that, where a violation of the First Amendment is concerned, the government’s benign, even noble, intentions are no cure. See Texas v. Johnson, 491 U.S. 397, 418 (1989) (in invalidating prohibition on desecrating American flag, Court explains that “[i]t is not the State’s ends, but its means, to which we object”); see also Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 680 (1994) (O’Connor, J., concurring in part and dissenting in part); United States v. Eichman, 496 U.S. 310, 316–19 (1990); Baggett v. Bullitt, 377 U.S. 360, 373 (1964); Pico v. Bd. of Ed., Island Trees Union Free Sch. Dist. No. 26, 638 F.2d 404, 416 (2d Cir. 1980).
Today’s ruling does not disable city authorities from adopting rules that hold ads and commentary on the exteriors of buses to a standard of civility. See, e.g., Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65, 90 (1st Cir. 2004) (upholding transit authority’s regulation that prohibited, without further limitation, “advertisements that ‘demean[] or disparage[] an
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individual or group of individuals’”).13 And in resolving this case on the narrow ground that the no-demeaning standard as currently drafted is impermissibly content-based, the Court pointedly does not reach any of the broader grounds for invalidation urged by AFDI under the First Amendment.14 Today’s ruling instead leaves—and is intended to leave—MTA the latitude to investigate and experiment with alternative mechanisms for using ad space on the exteriors of city buses productively, profitably, and constitutionally, while ensuring that this space is not used as a tool for disparagement and division.
13 The First Circuit so ruled in Ridley after holding, based on a close examination of the history, usage, and close regulation of the advertising space in question, that the government had not created a designated public forum. 390 F.3d at 76–82. 14 These include that: (1) a ban on demeaning speech in a designated public forum can never be upheld, because it is not one of few categories of speech (e.g., obscenity, fighting words, and defamation) that can be banned outright on account of having little or no social value, see Hr’g Tr. 75, Apr. 3, 2012; cf. R.A.V., 505 U.S. at 382; (2) even an across-the-board ban on demeaning speech is itself content-based and subject to strict scrutiny, because such a ban draws a line between demeaning and non-demeaning content; (3) a ban on demeaning speech is impermissibly viewpoint-based, because it uniquely prohibits a form of harsh condemnation; and (4) a ban on demeaning speech, either inherently or as administered by MTA, is unconstitutionally vague, and vests undue authority in those charged with enforcing it. If MTA is inclined to repair the defect which the Court has identified today and substitute a new regulation while maintaining the exterior of public buses as a designated public forum, its counsel is well-advised to give thoughtful attention to these critiques.
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CONCLUSION For the reasons discussed above, AFDI's motion for a preliminary injunction enjoining the enforcement ofMTA's no-demeaning standard is GRANTED. In order to enable MTA to consider its appellate options and alternatives to the current regulation, the Court, in the public interest, will stay the effect of this Order for 30 days. Absent a court order extending it, after 30 days, this stay will expire. The Clerk of Court is directed to terminate the motion pending at docket entry number 16. A conference in this case is scheduled for August 29, 2012, at 11:00 a.m. , at the U.S. Courthouse, 500 Pearl Street, New York, New York 10007. The parties are directed to meet and confer in advance of the conference, and to advise the Court by joint letter, due August 24, 2012,
as to their respective views on the next steps to be taken, if any, in this litigation.

SO ORDERED.

p~~n:~.~
United States District Judge

Dated: July 20, 2012 New York, New York

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 Case 1:11-cv-06774-PAE Document 1 Filed 09/27/11 Page 1 of 10

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------------X
AMERICAN FREEDOM DEFENSE INITIATIVE; PAMELA GELLER; and ROBERT SPENCER,
Plaintiffs,
- against -
METROPOLITAN TRANSPORTATION AUTHORITY (“MTA”); and JAY H. WALDER, in his official capacity as Chairman and Chief Executive Officer of MTA,
Defendants. -----------------------------------------------------------------X

Case No. 11-civ-6774-PAE-THK ECF Case COMPLAINT

Plaintiffs American Freedom Defense Initiative (hereinafter referred to as “AFDI”),

Pamela Geller, and Robert Spencer (collectively referred to as “Plaintiffs”), by and through their

undersigned counsel, bring this Complaint against the above-named Defendants (also

collectively referred to as “MTA”), their employees, agents, and successors in office, and in

support thereof allege the following upon information and belief:

INTRODUCTION

1. This case seeks to protect and vindicate fundamental constitutional rights. It is a

civil rights action brought under the First and Fourteenth Amendments to the United States

Constitution and 42 U.S.C. § 1983, challenging Defendants’ restriction on Plaintiffs’ right to

engage in protected speech in a public forum created by Defendants based on the content and

viewpoint of Plaintiffs’ message (hereinafter “Free Speech Restriction”). Defendants’ Free

Speech Restriction prohibited Plaintiffs from displaying advertisements on MTA buses that

travel throughout the City of New York.

2. Plaintiffs seek a declaration that Defendants violated their clearly established

constitutional rights as set forth in this Complaint; a declaration that Defendants’ Free Speech

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Restriction violates the United States Constitution and 42 U.S.C. § 1983 as set forth in this Complaint; a preliminary and permanent injunction enjoining the enforcement of Defendants’ Free Speech Restriction as set forth in this Complaint; and nominal damages for the past loss of Plaintiffs’ constitutional rights. Plaintiffs also seek an award of reasonable costs of litigation, including attorneys’ fees and expenses, pursuant to 42 U.S.C. § 1988 and other applicable law.
JURISDICTION AND VENUE 3. This action arises under the Constitution and laws of the United States. Jurisdiction is conferred on this Court pursuant to 28 U.S.C. §§ 1331 and 1343. 4. Plaintiffs’ claims for declaratory and injunctive relief are authorized by 28 U.S.C. §§ 2201 and 2202, by Rules 57 and 65 of the Federal Rules of Civil Procedure, and by the general legal and equitable powers of this Court. Plaintiffs’ claim for nominal damages is authorized by 42 U.S.C. § 1983. 5. Venue is proper under 28 U.S.C. § 1391(b) because a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in this district.
PLAINTIFFS 6. Plaintiff AFDI is an organization that is incorporated under the laws of the State of New Hampshire. AFDI’s specific objective is to go on the public relations offensive when legal, academic, legislative, cultural, sociological, and political actions are taken to dismantle our basic freedoms and values. 7. AFDI achieves its objective through a variety of lawful means, including through the exercise of its right to freedom of speech under the U.S. Constitution. 8. AFDI exercises its right to freedom of speech and promotes its objectives by, inter alia, sponsoring religious freedom and political speech bus and billboard campaigns. To
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that end, AFDI purchases advertising space on bus lines operated in cities throughout the United States, including MTA vehicles operating in New York City, to express itself on public and religious issues.
9. Plaintiff Pamela Geller is the Executive Director of AFDI, and she engages in protected speech through AFDI’s activities, including AFDI’s religious freedom bus and billboard campaigns.
10. Plaintiff Robert Spencer is the Associate Director of AFDI, and he engages in protected speech through AFDI’s activities, including AFDI’s religious freedom bus and billboard campaigns.
DEFENDANTS 11. Defendant MTA is a public benefit corporation created by New York state law. MTA and its officials are responsible for the acts, rules, regulations, standards, policies, practices, procedures, and/or customs of MTA, including the challenged restriction on Plaintiffs’ speech (Free Speech Restriction). 12. Defendant Jay H. Walder, at all times relevant herein, was the Chairman and Chief Executive Officer of MTA. As Chairman and Chief Executive Officer, Defendant Walder is responsible for creating, adopting, and enforcing the rules, regulations, standards, policies, practices, procedures, and/or customs of MTA, including the challenged restriction on Plaintiffs’ speech (Free Speech Restriction). Defendant Walder is sued in his official capacity.
STATEMENT OF FACTS 13. As a governmental agency, MTA is mandated to comply with federal and state laws, including the First and Fourteenth Amendments to the United States Constitution.
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14. By policy and practice, MTA has intentionally dedicated its advertising space on its vehicles, including its public buses, to expressive conduct (hereinafter “Free Speech Policy”).
15. Pursuant to its Free Speech Policy, MTA permits a wide variety of commercial, noncommercial, public-service, public-issue, political, and religious advertisements on the outside of its vehicles.
16. For example, pursuant to its Free Speech Policy, MTA permitted a religious group, Muslims for Peace, to run an advertisement on 90 public buses. The advertisement stated, “Muslims for Peace, Love for All, Hatred for None, 1-800-WHY-ISLAM.” A true and accurate photograph of this advertisement is attached to this Complaint as Exhibit 1.
17. Pursuant to its Free Speech Policy, MTA permitted the display of “Jesus for Jews” posters on the interior advertising space of MTA subways and on MTA’s advertising space in Times Square Station in Manhattan. A true and accurate photograph of this advertisement is attached to this Complaint as Exhibit 2. And the MTA permitted an atheist group, the Big Apple Coalition of Reason, to display an advertisement stating, “A million New Yorkers are good without God. Are you?” A true and accurate photograph of this advertisement is attached to this Complaint as Exhibit 3.
18. In fact, pursuant to its Free Speech Policy, MTA permitted Plaintiffs to display a religious freedom advertisement on its vehicles that stated the following: “Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got questions? Get answers!” The advertisement also included the following website address: RefugeFromIslam.com. (hereinafter “Religious Freedom Advertisement”). A true and accurate copy of the Religious Freedom Advertisement is attached to this Complaint as Exhibit 4. This advertisement was displayed on MTA buses from approximately May 17, 2010, to approximately June 13, 2010.
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19. Recently, MTA permitted the display of “End U.S. military aid to Israel” posters at MTA subway stations (hereinafter referred to as the “Anti-Israel Advertisement”). A true and accurate photograph of the Anti-Israel Advertisement is attached to this Complaint as Exhibit 5.
20. On or about September 12, 2011, AFDI submitted its proposed advertisement to CBS Outdoor, which acts as the advertising agent for MTA, to place a new advertisement on MTA buses in New York City (hereinafter referred to as “Pro-Israel Advertisement”). A true and accurate photograph of the Pro-Israel Advertisement is attached to this Complaint as Exhibit 6.
21. Plaintiffs’ Pro-Israel Advertisement is political speech in direct response to the Anti-Israel Advertisement. The Anti-Israeli Advertisement suggests that Israel’s military is the impediment to peace between the Israelis and Palestinians and that U.S. military aid to Israel also acts as an impediment to peace between the Israelis and Palestinians. In other words, the AntiIsrael Advertisement blames Israel, its military, and U.S. military aid to Israel as the cause of Palestinian terror directed against innocent civilians in Israel and abroad.
22. Plaintiffs’ Pro-Israel Advertisement presents the message that there is no comparison or equivalence between savage civilian-targeting violence and Israel’s civilized struggle for survival in a part of the world where civilized behavior is overshadowed by terrorism and despotism.
23. On September 21, 2011, CBS Outdoor, acting on behalf of MTA, informed Plaintiffs by email that MTA had rejected the advertisement copy on the grounds that it violated § 5.05(B)(11) of the MTA’s Advertising Standards (“MTA’s Initial Rejection”). The MTA’s Initial Rejection concluded with an invitation to Plaintiffs to modify their speech in some way so
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as to be acceptable to MTA. A true and accurate copy of the MTA’s Initial Rejection is attached
to this Complaint as Exhibit 7.
24. The relevant portions of Section 5.05 read as follows:
5.05 – Advertising Standards A. The License Administrator [MTA] reserves the right to
establish standards for the display of advertising on its properties and may amend such standards from time to time; provided, however, if such amendments are determined by the License Administrator to have a material impact on Gross Receipts and such amendments are not required by law, the License Administrator will negotiate in good faith a modification in the Minimum Annual Guarantee and Section 15.15 will apply. The current standards are set forth in Section 5.05(b). The Contractor [CBS Outdoor] shall review each advertisement prior to any installation work and agrees that whenever a question arises as to the propriety of an advertisement, in that it may be considered objectionable or controversial, the Contractor shall notify the License Administrator.
B. The Contractor shall neither accept for display, install, display nor maintain any advertisement that falls within one or more of the following categories:
* * * 11. The advertisement contains images or information that
demean an individual or group of individuals on account of race, color, religion, national origin, ancestry, gender, age, disability or sexual orientation.
25. By email on September 22, 2011, Plaintiffs, through legal counsel, rejected
MTA’s invitation to modify their speech and requested a “formal and final determination”
(“Response to MTA’s Initial Rejection”). Plaintiffs’ Response to the MTA’s Initial Rejection
made clear that the Pro-Israel Advertisement copy did not violate MTA’s Advertising Standards
(hereinafter “Demeaning Speech Standard”) and that MTA’s use of the Demeaning Speech
Standard to prohibit Plaintiffs’ speech was a Free Speech Restriction. A true and accurate copy
of the Response to MTA’s Initial Rejection is attached to this Complaint as Exhibit 8.
26. By email on September 23, 2011, CBS Outdoor, acting on behalf of MTA,
informed Plaintiffs by email that MTA had formally and finally rejected Plaintiffs’ Pro-Israel
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Advertisement on the grounds that it violated § 5.05(B)(11) of MTA’s Advertising Standards. (“MTA’s Final Rejection”). A true and accurate copy of the MTA’s Final Rejection is attached to this Complaint as Exhibit 9.
27. AFDI objects to Defendants’ censorship, which is effectively editing and thus suppressing the viewpoint AFDI is attempting to express in its message. That viewpoint is that U.S. foreign policy supporting Israel in the face of savage violence is the correct moral, political, and strategic choice for the leader of the Free World.
28. A true and accurate copy of additional advertisements approved by MTA are attached to this Complaint as Exhibit 10.
FIRST CLAIM FOR RELIEF Freedom of Speech—First Amendment
(42 U.S.C. § 1983) 29. Plaintiffs hereby incorporate by reference all stated paragraphs. 30. By reason of the aforementioned Free Speech Restriction, created, adopted, and enforced under color of state law, Defendants have deprived Plaintiffs of their right to engage in protected speech in a public forum in violation of the Free Speech Clause of the First Amendment as applied to the states and their political subdivisions under the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983. 31. Defendants’ Free Speech Restriction is content- and viewpoint-based in violation of the Free Speech Clause of the First Amendment. 32. Defendants’ Free Speech Restriction operates as a prior restraint on Plaintiffs’ protected speech in violation of the Free Speech Clause of the First Amendment. 33. Defendants’ Free Speech Restriction is unreasonable, arbitrary, and capricious in violation of the Free Speech Clause of the First Amendment.
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34. Defendants’ Free Speech Restriction, which includes the Demeaning Speech Standard, lacks clear standards to guide the discretion of the public officials vested with the authority to enforce this restriction, thereby enabling the officials to administer the restriction on the basis of impermissible factors in violation of the Free Speech Clause of the First Amendment.
35. As a direct and proximate result of Defendants’ violation of the Free Speech Clause of the First Amendment, Plaintiffs have suffered irreparable harm, including the loss of their constitutional rights, entitling them to declaratory and injunctive relief and nominal damages.
SECOND CLAIM FOR RELIEF Equal Protection—Fourteenth Amendment
(42 U.S.C. § 1983) 36. Plaintiffs hereby incorporate by reference all stated paragraphs. 37. By reason of the aforementioned Free Speech Restriction, created, adopted, and enforced under color of state law, Defendants have unconstitutionally deprived Plaintiffs of the equal protection of the law guaranteed under the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983, in that Defendants, through their acts, rules, regulations, standards, policies, practices, procedures, and/or customs, including their Free Speech Restriction, prevented Plaintiffs from expressing a message based on its content and viewpoint, thereby denying the use of a public forum to those whose views Defendants find unacceptable. 38. As a direct and proximate result of Defendants’ violation of the Equal Protection Clause of the Fourteenth Amendment, Plaintiffs have suffered irreparable harm, including the loss of their constitutional rights, entitling them to declaratory and injunctive relief and nominal damages.
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THIRD CLAIM FOR RELIEF Due Process Clause—Fourteenth Amendment
(42 U.S.C. § 1983) 39. Plaintiffs hereby incorporate by reference all stated paragraphs. 40. By reason of the aforementioned Free Speech Restriction, created, adopted, and enforced under color of state law, Defendants have violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution as applied to the states and their political subdivisions under the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983, in that Defendants’ Demeaning Speech Standard is unconstitutionally vague. 41. Defendants’ Free Speech Restriction, which includes the Demeaning Speech Standard, lacks clear standards to guide the discretion of the public officials vested with the authority to enforce this restriction, thereby enabling the officials to administer the restriction on the basis of impermissible factors in violation of the Due Process Clause of the Fourteenth Amendment. 42. As a direct and proximate result of Defendants’ violation of the Due Process Clause of the Fourteenth Amendment, Plaintiffs have suffered irreparable harm, including the loss of their constitutional rights, entitling them to declaratory and injunctive relief and nominal damages.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs ask this Court: A) to declare that Defendants’ Free Speech Restriction violates the First and Fourteenth Amendments to the United States Constitution as set forth in this Complaint; B) to temporarily, preliminarily, and permanently enjoin Defendants’ Free Speech Restriction and its application to Plaintiffs’ speech as set forth in this Complaint;
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Case 1:11-cv-06774-PAE Document 1 Filed 09/27/11 Page 10 of 10
C) to award Plaintiffs nominal damages for the past loss of their constitutional rights as set forth in this Complaint;
D) to award Plaintiffs their reasonable attorney fees, costs, and expenses pursuant to 42 U.S.C. § 1988 and other applicable law; and
E) to grant such other and further relief as this Court should find just and proper.
LAW OFFICES OF DAVID YERUSHALMI, P.C. s/David Yerushalmi ______________________________ David Yerushalmi, Esq. (Ariz. Bar No. 009616; DC Bar No. 978179; Cal. Bar No. 132011; NY Bar No. 4632568) 640 Eastern Parkway, Suite 4C Brooklyn, NY 11213 david.yerushalmi@verizon.net (800) 714-9650; (646) 262-0500 THOMAS MORE LAW CENTER Robert J. Muise, Esq.* (P62849) 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, MI 48106 rmuise@thomasmore.org (734) 827-2001 *Subject to admission pro hac vice
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From: "Marcus, Howard" <howard.marcus@cbsoutdoor.com> Date: September 21, 2011 3:36:26 PM EDT To: Pamela Geller <pamelageller@gmail.com> Subject: CBS Outdoor
Dear Pam,
Thank you for your ad submission; in its current version, we do not approve this ad for the reasons set forth below and the MTA’s Director of Real Estate has concurred pursuant to Section 5.05 ( C )(2) of the MTA’s Advertising Standards. (A copy of those Standards is attached.). Regarding issue-oriented advertisements we do not approve or disapprove such advertisements for display of the MTA’s transit system based upon the viewpoint expressed. As you may know, we have recently accepted for display paid advertisements submitted by organizations on the subject of U.S. military aid to Israel and the Palestinian Authority’s relationship with Israel that have expressed strongly competing views. Your proposed ad, however, contains language that, in our view, does not conform with the MTA’s advertising standards regarding ads that demean an individual or group of individuals as set forth in Section 5.05(B)(11) of the MTA’s Advertising Standards.
We invite you – as provided in Section 5.05 ( C )(3) of the Advertising Standards – to discuss with us possible revisions to your ad; should you choose to submit a revised ad, we will review that submission promptly. Alternatively, if you do not want to consider any possible revisions, you may ask us to obtain from the MTA its formal and final determination of whether this ad conforms with its Advertising Standards.
Regards, Howard
Kenneth S. Pober CBS Outdoor Vice President New York Market Manager 212-297-6415

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From: David Yerushalmi [mailto:david.yerushalmi@verizon.net] Sent: Thursday, September 22, 2011 12:34 PM To: 'howard.marcus@cbsoutdoor.com' Cc: 'Helene Fromm'; 'David H Posy'; 'James Henly'; 'Robert Muise' Subject: Ad submission by AFDI/Pam Geller to CBS/MTA
Dear Mr. Marcus:
My client forwarded to me your email (below) wherein you state the ad copy AFDI submitted violates Section 5.05( C )(2) of the MTA’s Advertising Standards. Presumably you are referring to the word “savage” in the copy. My client is not prepared to alter its ad copy, and specifically not this word. We hereby demand a formal and final determination by close of business on Friday, September 22, 2011. A non-response by that deadline, given the time MTA-CBS has already had to review this copy, will be understood as a formal and final rejection.
Let me be unambiguous. First, the word savage cannot violate the standard you cite because it is patently not demeaning an individual or group of individuals on account of “race, color, religion, national origin, ancestry, gender, age, disability, or sexual orientation.” It mentions neither individual nor group and it intends none. Specifically, it is a word in context describing behavior qua behavior. Certainly you recognize that the ad copy does not mention an individual or group of individuals falling within one of the Standard’s rubrics (i.e., “race, color, etc.”). Finally, as a word describing behavior, it quite obviously applies not to any one of Israel’s enemies in any one geographical location, but all her enemies who behave savagely. Precisely because it is a noun describing behavior (i.e., savage behavior), it cannot be demeaning because an individual or group who does not behave savagely is not captured by the word; an individual or group that does behave savagely, is similarly not demeaned because we presume men act in the way they intend and a savage intends to act savagely.
Finally, a word about the Standard itself and the way MTA/CBS is applying it. There can be no question that once the MTA opened up this forum for political advocacy, it cannot use the “demeaning” filter to decide which political speech it accepts and which it does not. The application in this context of the Standard, especially here where as noted above, there is absolutely no reference to one of the categories (i.e., race, religion) but rather to behavior (i.e., savage behavior), the MTA’s rejection of the word “savage” is most assuredly a viewpoint-based censorship, in violation of the First Amendment. If the MTA, as the organ of state authority, now understands itself in the business of toning down and even modifying the viewpoint of the speakers it has invited into this public forum, it has manifestly and egregiously crossed the line clearly drawn by the First Amendment and the jurisprudence promulgated thereunder.
David Yerushalmi Law Offices of David Yerushalmi, P.C.:
Washington, D.C., New York, California & Arizona T: 646.262.0500 (direct line) T: 800.714.9650 (toll free Ariz. office) T: 202.379.4774 (D.C. office) F: 801.760.3901 E: david.yerushalmi@verizon.net W: www.davidyerushalmilaw.com
========================================================================== This electronic message transmission may contain ATTORNEY PRIVILEGED AND CONFIDENTIAL information intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this communication is strictly prohibited. If you have received this communication in error, please erase all copies of the message and its attachments and notify sender immediately. Thank You. ==========================================================================

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From: Pober, Kenny S Sent: Friday, September 23, 2011 3:37 PM To: 'pamelageller@gmail.com' Cc: Posy, David H; Ament, Richard; Marcus, Howard; david.yerushalmi@verizon.net Subject: FW: AFDI's Response/Request for Final Determination
Dear Ms. Geller,
Please see below from the MTA.
Please feel free to convey to AFDI the following formal and final determination of the MTA:
CBS Outdoor Group Inc. (CBS) has forwarded to me your demand for a formal determination concerning the attached advertisement that your client, American Freedom Defense Initiative (AFDI), submitted to it recently for display on New York City Transit Authority buses. Like CBS, the MTA has determined that the advertisement in its current form—and AFDI has refused CBS’s invitation to consider modifying its proposed advertisement—does not conform to the MTA’s advertising standards, specifically Section 5.05(B)(11), which addresses proposed advertisements that demean individuals and groups of individuals. Accordingly, the display of the requested advertisement in its current form is not approved.
The MTA obtains revenues to support its vital public transportation mission from paid advertisements it accepts for placement on its subway, commuter rail, and bus systems. For a number of years, some of these advertisements have addressed issues of public concern.
MTA does not decide whether to allow or not allow a proposed advertisement based on the viewpoint that it expresses or because that viewpoint might be controversial. Your statements to the contrary (including the suggestion that MTA is “Pro-Pali” and therefore “Bans Pro-Israel Ads”) are mistaken. MTA has recently accepted paid advertisements submitted by two organizations, one on the subject of U.S. military aid to Israel (paid for by WESPAC Foundation, Inc., which is now running in subway stations) and the other on the Palestinian Authority’s relationship with Israel (paid for by StandWithUs, which will begin to run next week) and those advertisements express strongly competing and controversial views.
Pursuant to MTA’s uniform, viewpoint neutral advertising standards, however, MTA does review proposed advertisements including AFDI’s proposed advertisement to determine, among other things, whether it demeans an individual or group of individuals on account of race, color, religion, national origin, ancestry, gender, age, disability, or sexual orientation. In doing so, MTA considers whether a reasonably prudent person, knowledgeable of MTA’s customers and applying prevailing community standards, would believe that the advertisement contains material that ridicules or mocks, is abusive or hostile to, or debases the dignity or stature of, an individual or group of individuals. Regardless of the viewpoint expressed in an advertisement, this advertising standard requires that an advertisement not express it in a manner that, reasonably read, demeans individuals or groups. Exercise of such review does not discriminate against viewpoints; it does advance MTA’s significant interest that MTA’s riders and employees, when reading paid advertisements that run in or on MTA’s transportation facilities, not be subjected to advertising that demeans them and that MTA not be associated with such demeaning speech. This advertising standard is critical to MTA’s mission as a public transportation agency that delivers vital transportation services to a broad metropolitan area with great diversity among its riders and employs individuals of diverse races, religions, and national origins.
AFDI’s proposed advertisement, which uses the terms “savage” and “Jihad” to label those who do not, in AFDI’s view, “Support Israel,” reasonably read, demeans a group (or groups) of individuals on account of their religion, national origin, or ancestry, including Palestinians or other Arabs or Muslims who do not

Case 1:11-cv-06774-PAE Document 1-9 Filed 09/27/11 Page 3 of 3
share AFDI’s views on Israel. This violation of Section 5.05(B)(11) of MTA’s advertising standards, not viewpoint discrimination, is the sole basis for MTA’s disapproval of this proposed advertisement in its current form.
Kenneth S. Pober CBS Outdoor Vice President New York Market Manager 212-297-6415

Case 1:11-cv-06774-PAE Document 1-10 Filed 09/27/11 Page 1 of 4

Case 1:11-cv-06774-PAE Document 1-10 Filed 09/27/11 Page 2 of 4

Case 1:11-cv-06774-PAE Document 1-10 Filed 09/27/11 Page 3 of 4

Case 1:11-cv-06774-PAE Document 1-10 Filed 09/27/11 Page 4 of 4

Case 1:11-cv-06774-PAE Document 1-11 Filed 09/27/11 Page 1 of 1
CIVIL COMPLAINT
American Freedom Defense Initiative; Pamela Geller; & Robert Spencer v.
Metropolitan Transportation Authority (“MTA”); and Jay H. Walder, in his official capacity as Chairman and Chief Executive Officer of MTA

Exhibit 1 Exhibit 2 Exhibit 3 Exhibit 4 Exhibit 5 Exhibit 6 Exhibit 7 Exhibit 8 Exhibit 9 Exhibit 10

INDEX OF EXHIBITS
“Muslims for Peace” Advertisement “Jesus for Jews” Advertisement “Million New Yorkers Without God” Advertisement Religious Freedom Advertisement Anti-Israel Advertisement Pro-Israel Advertisement MTA’s Initial Rejection Plaintiffs’ Response to MTA’s Initial Rejection MTA’s Final Rejection Additional MTA-approved Advertisements

i

 
 Case 1:11-cv-06774-PAE Document 32 Filed 08/06/12 Page 1 of 2

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
•.••.....•.•.._-----------------------_.._------------------------------)(
AMERICAN FREEDOM DEFENSE INITIATIVE et al.,
Plaintiffs, -vMETROPOLITAN TRANSIT AUTHORITY et aL,
Defendants.
---_._------------------------------------------------------------------)(

11 Civ. 6774 (PAE)
ORDER

PAUL A. ENGELMAYER, District Judge:
The Court has received a letter, dated August 6,2012, from the defendants, asking that
the Court's order invalidating MTA's no-demeaning standard be stayed pending appeal or,
alternatively, pending MTA's Board meeting, scheduled for Thursday, September 27,2012. The stay that is currently in place-which lasts for 30 days after the Court's July 20,
2012 ruling--expires on August 19, 2012. A conference in this case is presently scheduled for Wednesday, August 29, 2012, at 11 :00 a.m. The Court hereby extends the stay through and including August 29,2012, to permit the Court to use the upcoming conference to discuss with
counsel MTA's request for an extended stay. The Court invites plaintiffs to submit a letter, before the conference, setting forth their views as to this request. Such a letter is due Thursday,
August 16,2012.
The Court's present view is that a stay pending appeal is not merited, for two reasons. First, the Court does not believe that, as long as the no-demeaning standard continues to facially discriminate based on content, including within the category of political speech, MTA can credibly claim a substantial possibility of success on appeal. See Hirschfield v. Bd ofElections

Case 1:11-cv-06774-PAE Document 32 Filed 08/06/12 Page 2 of 2

in City olN Y., 984 F.2d 35,39 (2d Cir. 1993) (in deciding propriety of stay, courts consider,
inter alia, whether party requesting stay can demonstrate a substantial possibility of success on appeal). Second, a protracted stay prolongs the First Amendment injury visited on plaintiffs. See NY. Magazine v. Metro. Transp. Auth., 136 F.3d 123, 127 (2d Cir. 1998) ("The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.") (internal quotation marks and citations omitted).
The Court is open to considering a more limited extension ofthe current stay to permit MTA to consider alternative regulations. However, the Court's present view is that ifMTA's Board is seeking a stay to permit such consideration, it is not reasonable for the Board to propose to wait 69 days after the Court's ruling (i.e., September 27) to meet to address this subject. That is particularly so given that the Court's questions and observations at the April 3,2012 hearing in this case should have put MTA amply on notice that its current regulation was potentially deficient, including on the ground that it was impermissibly content-based; and given that the Court specifically asked MTA at that hearing how much time it would need to consider its options in the event the Court ruled against it, and MTA responded by proposing, at the outside, 30 days. Hr'g Tr. 123, Apr. 3, 2012. The Court encourages MTA, in advance of the August 29, 2012 conference, to expedite substantially its Board meeting on this subject.

SO ORDERED.
Dated: August 6,2012 
 New York, New York 


Paul A. Engelmayer United States District Judge

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------------------J{
AMERICAN FREEDOM DEFENSE INITIATIVE et aI.,
Plaintiffs,
-v-

USDC'SIlNV
D( l( I " II " r

1.1 f II"J .... JCALLY FILED

"r-- DO( ;'.

,

DATE .FILED: '::;! ~<;f

i

11 Civ. 6774 (PAE) OPINION & ORDER

METROPOLITAN TRANSPORTATION AUTHORITY et aI.,

Defendants.

------------------------------------------------------------------------J{ PAUL A ENGELMAYER, District Judge:

In an Opinion and Order issued July 20, 2012, the Court granted the motion by plaintiff

American Freedom Defense Initiative ("AFDI") for a preliminary injunction, enjoining

defendant Metropolitan Transportation Authority ("MTA") from enforcing its "no-demeaning"

advertising standard. The Court stayed the effect of that Order for 30 days and has since

extended the stay until today. This decision addresses (1) whether to convert the preliminary

injunction entered by the Court into a permanent injunction; (2) the other relief sought by AFDI,

including declaratory relief, nominal monetary damages, and attorney's fees; and (3) MTA's request for a stay of the injunction pending appeaL

For the reasons below, the Court (l) enters a permanent injunction, enjoining MTA from

enforcing the no-demeaning advertising standard as presently written; (2) issues a declaratory

judgment that the no-demeaning standard as presently written is inconsistent with the First Amendment; (3) awards AFDI $1 in nominal damages; (4) defers ruling on AFDI's claims for attorney's fees pending resolution ofMTA's appeal; and (5) denies MTA's request for a stay of

the injunction pending appeal, but extends the present stay of its Order until September 12,2012,

1 


to permit MTA to appeal on an emergency basis to the Second Circuit the Court's denial of a stay pending appeal, and to give MTA a final opportunity to put in place an alternative or interim regulation. I. Background
A. The July 20 Decision The facts relevant to this controversy are set out in detail in the Court's Opinion and Order of July 20, 2012. See Dkt. 29 (the "July 20 Decision"). The Court assumes familiarity with that decision. In the July 20 Decision, the Court held that MTA's no-demeaning standard violates the First Amendment, because, as presently written, it is explicitly content-based: The standard proscribes some, but not all, demeaning ads, depending whether the individual or group demeaned by a particular ad falls into one of the "specific disfavored" categories (e.g., race, nationality, gender, religion, disability, sexual orientation) identified in that standard. See R.A. V. v. City o/St. Paul, 505 U.S. 377, 391 (1992). In the absence of any justification for this content­ based restriction on speech-let alone a showing that this restriction was narrowly tailored to serve a compelling government interest, as required where the restriction affects a designated public forum, see Pleasant Grove City, UT v. Summum, 555 U.S. 460, 469 (2009)-the Court held that the no-demeaning standard is, clearly, unconstitutional. See July 20 Decision 28-33. As noted in the July 20 Decision, MTA's standard is all the more problematic because it discriminates based upon content within the area of political speech. That circumstance was not present in R.A. V. R.A. V. involved similar facial content discrimination, but the ordinance at issue applied only to inherently proscribable hate-speech. See id. at 30-31. The Court accordingly granted a preliminary injunction barring MTA from enforcing that standard. Id. at 35.
2 


In the July 20 Decision, the Court also recognized that MTA has a legitimate interest in holding ad space on the sides of public buses to a standard of civility, and ensuring that ads on public buses are not used as a tool for abuse, disparagement, and division. See id at 30-31. Accordingly, the Court structured its Order to give MTA ample opportunity to review and revise its restrictions, and to put in place new, or interim, regulations. Specifically, the Court, in the public interest, stayed the effect of its preliminary injunction for 30 days, until August 19,2012. Id at 35. Without such a stay, the Court recognized, its injunction would have left a regulatory void, potentially obliging MTA to permit demeaning and abusive ads to appear immediately on exteriors of city buses, while MTA considered new regulations. The 30-day period was chosen based on MTA's request, at the hearing in this case, for a stay of up to 30 days in the event the no-demeaning standard was held invalid. Hr'g Tr. 123, Apr. 3,2012.
In the July 20 Decision, the Court also scheduled a conference for August 29, 2012, to discuss remaining issues in the litigation.
B. Subsequent Developments In a letter dated August 6,2012, MTA asked the Court to extend the 30-day stay until at least September 27,2012. MTA stated that although its Board generally meets monthly, it did not plan to meet in August, and its next scheduled meeting was on September 27, 2012. See Dkt. 31 (the "MTA August 6 Letter"). At the September 27,2012 Board meeting, MTA stated, the Board would be briefed on potential courses of action, including whether to appeal the Court's ruling, and whether to put in place alternative advertising standards, and what the financial impact on MTA would be of potential new standards. MTA August 6 Letter 2. The same day, MTA filed a notice of appeal as to the July 20 Decision. See Dkt. 30 (notice of appeal).
3 


In an Order issued the same day, the Court extended the stay until the scheduled August
29,2012 court conference, i.e., by 10 days from the original expiration date. See Dkt. 32 (the
"August 6 Order"). In the August 6 Order, the Court stated that it was open to extending that
stay briefly thereafter to permit MTA to consider alternative regulations applicable to demeaning
bus ads. However, the Court declined to extend the stay until the September 27, 2012 MTA
Board meeting, which would entail adding four weeks to the existing stay. That was because
MTA's existing standard violated the First Amendment, and, under uniform case law, the more
protracted a stay keeping in place a constitutionally defective standard, the more severe the
continuing First Amendment injury. See August 6 Order 2 (citing New York Magazine v. Metro.
Transp. Auth., 136 FJd 123, 127 (2d Cir. 1998) ("The loss of First Amendment freedoms, for
even minimal periods of time, unquestionably constitutes irreparable harm.")).
The Court, accordingly, encouraged MTA to move up the date of its Board meeting to
respect the First Amendment interests at stake:
[I]f MTA's board is seeking a stay to permit such consideration, it is not reasonable for the Board to propose to wait 69 days (i.e., until September 27) to meet to address this subject. That is particularly so given that the Court's questions and observations at the April 3, 2012 hearing in this case should have put the MTA amply on notice that its current regulation was potentially deficient, including on the ground that it was impermissibly content-based; and given that the Court specifically asked MTA at that hearing how much time it would need to consider its options in the event the Court ruled against it, and MTA responded by proposing, at the outside, 30 days. Hr'g Tr. 123, Apr. 3, 2012. The Court encourages MTA, in advance of the August 29, 2012 conference, to expedite substantially its Board meeting on the subject.
August 6 Order 2.
On August 24,2012, the Court received ajoint letter from counsel. See Dkt. 36 (the
"Joint August 24 Letter"). The letter, which the July 20 Decision had directed be filed, see July
20 Decision 35, set forth the parties' respective views on next steps in the litigation, including
4 


whether the Court should convert its preliminary injunction to a permanent injunction, and when the Court should address the other requests for reHefin AFDI's Complaint, such as for attorney's fees. fd. at 1-4.
However, despite the Court's having encouraged it to do so in the August 6 Order, MTA did not indicate that it had expedited, from September 27,2012, its Board's review of potential alternative regulations. Rather, in the Joint August 24 Letter, MTA stated that, unless the existing stay was extended as proposed in its August 6, 2012 letter (until September 27,2012), MTA "necessarily will comply with the terms of the Preliminary Injunction"-i. e., not enforce the no-demeaning regulation-until it had put in place new regulations. fd. at 2. MTA stated that it had filed a notice of appeal as to the preliminary injunction, and planned to pursue that appeal unless and until obviated by an intervening modification of its advertising standards. fd. at 3.
On August 29, 2012, the Court held argument on MTA's application for a continuing stay and as to the remaining relief sought in AFDI's Complaint. II. Discussion
A. Entry of a Permanent Injunction The first issue before the Court is whether to convert the existing preliminary injunction into a permanent injunction. The parties agree that the Court has received all evidence relevant
to the issues in this case and that no further discovery is needed. See Joint August 24 Letter 2
(statement by AFDI); id. (statement by MTA). On that basis, AFDI urges the Court to enter a permanent injunction enjoining enforcement ofMTA's no-demeaning standard as presently written. fd. (statement by AFDI).
5 


The Court agrees that a pennanent injunction is appropriate. "The party requesting permanent injunctive relief must demonstrate (1) irreparable hann (here, a constitutional violation) and (2) actual success on the merits." Ognibene v. Parkes, 671 F.3d 174, 182 (2d Cir. 2012). Thus, the standard for a pennanent injunction is essentially the same as for a preliminary injunction, the difference being that the plaintiff must show actual success rather than a likelihood of success. See Amoco Prod. Co. v. Vill. ofGambell, 480 U.S. 531, 546 n.12 (1987). As the parties agree, there is no further evidence to be received relevant to whether the no­ demeaning standard, as presently written, violates the First Amendment. Further, the Court has already held, on the full evidentiary record, that that standard is unconstitutional, and MTA has not since pointed to evidence or case law overlooked by the Court that would cast this ruling into doubt. Under these circumstances, it is appropriate to enter a pennanent injunction, as to the no­ demeaning standard as presently written. See Bronx Household ofFaith v. Bd. ofEduc. ofCity ofN.Y., 400 F. Supp. 2d 581, 589-90 (S.D.N.Y. 2005), vacated on other grounds, 492 F.3d 89 (2d Cir. 2007) (converting preliminary injunction to pennanent injunction where record is substantially the same at each stage).
MTA opposes entry of a pennanent injunction, on the ground that MTA intends to review and revisit its advertising standards. See Joint August 24 Letter 2-3 (statement of MTA). However, any revision to MTA's existing standards that may emerge from MTA's coming review will not affect the constitutionality of the present no-demeaning standard. In essence, MTA asks the Court to defer final judgment as to a ripe controversy-the constitutionality of the present no-demeaning standard-because at some point a court may need to consider the
6 


constitutionality of an as-yet undetermined revision to MTA's standards.) This Court's role, however, is limited to resolving ripe, concrete cases and controversies. U.S. CONST., art. III, § 2; Texas v. United States, 523 U.S. 296, 300 (1998); see also Abbott Labs. v. Gardner, 387 U.S. 137, 148-49 (1967) ("[T]he basic rationale [of ripeness doctrine] is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.").
The controversy presented by AFDI's Complaint is limited to whether the present nodemeaning standard, under which MTA rejected the AFDI Ad, is constitutional. As AFDI recognizes, were MTA to modify its current regulations, that may vitiate the current controversy, or require AFDI to submit its Ad anew for review within MTA. See Joint August 24 Letter 3 (statement of AFDI) (stating that ifMTA were to modify its standards, that might result in AFDI's modifying the Ad, resubmitting the existing Ad for review under MTA's new standards, and, were the MTA to reject the Ad under the new standards, filing a new Complaint); id. at 4 (statement of AFDI) ("If the MTA modifies its advertising standards in the future, it mayor may not result in litigation. It is just too premature and speculative to know."). And if a legal challenge to new regulations is brought, the issues before the Court may differ materially from those presented by the current Complaint: New regulations may, for example, change the character of the advertising forum and/or the rules applicable to AFDI's Ad, and thereby transform the First Amendment analysis. See, e.g., Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65,90 (1st Cir. 2004) (upholding standard that prohibited, without limitation, transit ads that
) In resisting a permanent injunction, MTA appears to be asking the Court to keep this lawsuit open so as to permit this Court to judge the constitutionality of new advertising standards that the MTA Board may later apply to the AFDI Ad, to the extent that AFDI continues to seek to run that ad after new standards are instituted. See Joint August 24 Letter 2-3 (statement ofMTA). But it is premature now to assess whether application of a hypothetical new standard to the same AFDI Ad would properly be treated as part of this lawsuit it, or, if challenged as part of a separate lawsuit, consolidated with it or treated as related.
7 


"demean or disparage" an individual or group of individuals, where overall usage rules of the advertising space led court to hold it to be a non-public, rather than a designated public, forum).
The Court, accordingly, will convert the preliminary injunction into a permanent one invalidating the MTA's present no-demeaning standard.
B. Other Relief Sought by AFDI AFDI also seeks declaratory relief: a declaration that the present no-demeaning standard violates the First Amendment. See CompI. 9. In exercising its discretion to grant declaratory relief, the Court considers "'(1) whether the judgment will serve a useful purpose in clarifying or settling the legal issues involved' and '(2) whether a judgment would finalize the controversy and offer relief from uncertainty.'" Niagara Mohawk Power Corp. v. Hudson River-Black River Regulating Dis!., 673 F.3d 84, 105 (2d Cir. 2012) (quoting Dow Jones & Co. v. Harrods Ltd., 346 F.3d 357,359 (2d Cir. 2003)). At the August 29, 2012 conference, MTA conceded that, in light of the July 20 Decision, it is appropriate to enter declaratory relief. Because such a declaration will underscore that, for reasons set forth in the July 20 Decision, the no-demeaning policy is unconstitutional, such relief is appropriate and will be granted. AFDI also seeks nominal monetary damages. See CompI. 10. "[A] litigant is entitled to an award of nominal damages upon proof of a violation of a substantive constitutional right even in the absence of compensable injury." Amato v. City a/Saratoga Springs, 170 F.3d 311, 317 (2d Cir. 1999) (citing Carey v. Piphus, 435 U.S. 247, 253-67 (1978)). At the August 29,2012 conference, the parties agreed that $1 in nominal damages is appropriate for the violation found by the Court. The Court will order that relief. AFDI, finally, seeks reasonable attorney's fees, costs and expenses, pursuant to 42 U.S.c. § 1988(b). Such an award is generally appropriate where a plaintiff has prevailed on the claim
8 


that defendant violated his constitutional rights. See Orchano v. Advanced Recovery, Inc., 107 F.3d 94, 97 (2d Cir. 1997) ("The legislative history of § 1988 makes clear that a plaintiff who has prevailed on a claim under § 1983 should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." (citation omitted)). However, in the interests ofjudiciaI economy, and with the concurrence of both parties, the Court will defer ruling on this application until the resolution ofMTA's appeal, which may bear on AFDI's entitlement to fees. See Murphy v. Bd. ofEduc. ofRochester City Sch. Dist., 273 F. Supp. 2d 292, 327 n.30 (W.D.N.Y. 2003); see also Leibovitz v. Paramount Pictures Corp., No. 94-cv-9144, 1997 WL
542560, at *1 (S.D.N.Y. Sept. 3, 1997) (deferring decision on attorney's fees pending appeal).
C. Stay Pending Appeal The final issue pending before the Court is whether to enter a stay pending appeal. In determining whether to issue the stay, the Court "consider[s] the following factors: '(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public
interest lies.'" s.E.c. v. Citigroup Global Markets, Inc., 673 F.3d 158, 162-63 (2d Cir. 2012)
(quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). The degree of success that an applicant for a stay must show varies according to the Court's assessment of the other stay factors, particularly irreparable injury. See Thapa v. Gonzales, 460 F.3d 323, 335 (2d Cir. 2006); see also Mohammedv. Reno, 309 F.3d 95,101 n.6 (2d Cir. 2003) ("The probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury plaintiff will suffer absent the stay." (citation omitted)).
9 


These factors do not favor a stay. First, MTA has not shown a likelihood of success on
appeal. MTA has not argued that its current, content-based standard is narrowly tailored to
advance a compelling government interest. The Court understands that MTA, instead, intends to
ask the Second Circuit to reconsider its ruling in New York Magazine, supra, that the advertising space on the exterior of public buses is a designated public forum, and to urge instead that it is a non-public forum. But even assuming the Second Circuit were to conclude that this advertising space is a non-public forum, a content-based restriction on speech in such a forum must still be
reasonable. See Perry Educ. Ass 'n. v. Perry Local Educators' Ass 'n, 460 U.S. 37,46 (1983); see
also July 20 Decision 20 (collecting cases). At the April 3 hearing and in its briefing in this case, MTA did not articulate any reason
v., for discriminating between demeaning ads on the basis of their content. See R.A. 505 U.S. at
395 (rejecting as inadequate the proffered justification for a content-based speech restriction,
which protected certain categories of persons; justification was that the restriction helped to
ensure the basic human rights of members of groups that have been historically subject to discrimination)? And MTA's content discrimination is particularly unlikely to survive
reasonableness review given that an across-the-board ban on demeaning speech would appear to
fully achieve MTA's goals of preserving civility and decorum. See Make The Road by Walking, Inc. v. Turner, 378 F.3d 133, 149 (2d Cir. 2004) (existence ofless restrictive prohibition on speech is relevant to reasonableness of speech restrictions). In any event, the absence of an
2 At the August 29,2012 conference, MTA's counsel surmised that, in 1997, when MTA drafted the no-demeaning regulation to apply only to the nine discrete categories of individuals or groups, it did so based on a belief that demeaning ads were most likely to target such persons. However, MTA acknowledged that demeaning transit ads directed at other persons, including those of the sort posited by the Court in the July 20 Decision, are also against the public interest. MTA's counsel further stated it is possible that "not tremendous thought" had been given in 1997 to whether MTA's no-demeaning regulation should apply to all, or only some, categories of individuals and groups.
10 


articulated reason is the essence of unreasonableness. See Shaw's Supermarkets, Inc. v. NLRB, 884 F.2d 34, 36-37 (1st Cir. 1989) (Breyer, J.); cf Lunding v. New York Tax Appeals Tribunal, 522 U.S. 287, 314 (1998) (finding discriminatory treatment of non-residents unreasonable where state failed to offer any substantial justification for the distinction).
As to the irreparable harm inquiry, it favors AFDI. The infringement of First Amendment freedoms, '''for even minimal periods oftime, unquestionably constitutes irreparable harm. '" Salinger v. Colting, 607 F.3d 68, 81 (2d Cir. 2010) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). Indeed, having granted a preliminary injunction based upon a finding of irreparable harm to plaintiffs, it would be "logically inconsistent" to then find that plaintiffs would not suffer irreparable harm were the injunction stayed pending appeal. Rodriguez v. DeBuono, 175 F.3d 227, 234--35 (2d Cir. 1998).
As to the public interest, there is, as MTA has noted and the Court has credited, a public interest in not allowing the exteriors of public buses to be used as media for disparagement and abuse. See July 20 Decision 32-34. In recognition of this interest, the Court has already given MTA substantial time (40 days as ofthe date of this Order) to put in place an interim or new regulation to guard against such harms, so that the Court's invalidation of the current no­ demeaning standard does not leave a regulatory void to be exploited. The Court has also indicated, in its August 6 Order, that it would be open to an additional brief stay beyond today to permit MTA to address this public policy issue. However, in its August 6 Order, the Court advised MTA that-because First Amendment rights are at stake-it is not reasonable for MTA's Board to ask the Court to stay its order until MTA's next scheduled Board meeting, on September 27, when MTA has proposed to first take up this issue. The Court instead encouraged
11 


MTA, if it is seeking a stay to permit it to put in a place an alternative regulation, to expedite substantially its consideration of the issue.
Notwithstanding its professed concerns about the injury to its riders and itself presented by demeaning and abusive transit ads, MTA has declined to expedite its consideration of this issue. At the August 29,2012 hearing, MTA's general counsel, James B. Henly, Esq., represented that MTA's executives, and a subset of its Board (the Finance Committee) have decided not to schedule an MTA Board meeting in August, or, for that matter, any time in September earlier than September 27, to consider interim or new regulations with regard to demeaning speech. Mr. Henly also represented that there is no assurance that, when it meets on September 27, the MTA Board will agree to put in place an interim or new regulation. Mr. Henly represented that the decision not to present this issue to MTA's Board until September 27 was a considered one, which, he stated, reflected the complexity of the issues presented. Mr. Henly represented that MTA's leadership and the Finance Committee of its Board made that scheduling decision mindful of the Court's August 6 Order, and fully aware that if the existing stay expires before September 27, MTA will not have in place any regulation guarding against demeaning or abusive bus ads. Mr. Henley acknowledged that in the absence of such a regulation, MTA would be obliged to allow such an ad to run (unless it was barred by a different advertising standard).
It is for MTA, balancing its priorities and scheduling sensitivities, and not the Court, to decide when MTA's Board should take up the issue of whether an interim or new regulation should be put in place with respect to demeaning speech. The Court, however, is charged with balancing the factors germane to the granting of a stay. In the Court's assessment, although the public interest in allowing MTA to design a corrected regulation sufficient to prevent the
12 


exteriors of buses from being used as instruments of abuse justified a stay of some duration, the public interest is not served by, and does not justify, granting an indefinite stay, given the important First Amendment interests at stake. Nor does it justify the 69-day stay that MTA seeks before its Board will first take up (let alone resolve) this issue. See In re World Trade etr. Disaster Site Litig., 503 F.3d 167, 170 (2d Cir. 2007) ("Th[e] effect of the passage of time upon Plaintiffs' interests also has a bearing on the public interest."); see also Dayton Area Visually Impaired Persons, Inc. v. Fisher, 70 F.3d 1474, 1490 (6th Cir. 1995) ("[T]he public as a whole has a significant interest in ensuring ... protection of First Amendment liberties."). The Court, accordingly, denies MTA's request for a stay of its injunction until September 27,2012.
However, in order to protect MTA's ability to appeal the Court's denial of a stay pending appeal, the Court will extend the current stay of its Order enjoining MTA from enforcing the nodemeaning regulation as presently written until Wednesday, September 12, 2012.3 MTA is also at liberty to use this final stay to put in place an interim or new regulation. Absent an order from the Second Circuit, however, this stay will expire at midnight on September 12,2012.
CONCLUSION For the reasons discussed above: 1. AFDI's motion for a permanent injunction enjoining the enforcement ofMTA's no-
demeaning standard as presently written is GRANTED. 2. MTA's motion for a stay of this Order pending the resolution of its appeal is
DENIED. However, in order to enable MTA to appeal to the Second Circuit the Court's denial ofa stay pending appeal, the Court will extend the current stay of its
3 The motions panel of the Second Circuit is scheduled to sit on the previous day, September 11, 2012.
13 


Order enjoining MTA from enforcing the no-demeaning regulation as presently written until Wednesday, September 12,2012. Absent an order from the Second Circuit, however, this stay will expire at midnight on September 12,2012. 3. AFDI's motion for a declaratory judgment that the no-demeaning standard as presently written violates the First Amendment is GRANTED. 4. AFDI's motion for $1 in nominal damages for the violation of its First Amendment rights is GRANTED. 5. The Court's consideration of AFDI's application for reasonable attorney's fees, costs and expenses, pursuant to 42 U.S.c. § 1988(b) is DEFERRED pending the resolution ofMTA's appeal. The Court directs MTA's general counsel to furnish this Opinion and Order, and also the Court's July 20 Decision, forthwith to the MTA's full Board, so as to ensure that the Board is fully informed of the potential consequences ofMTA's decision to defer consideration of an alternative regulation or regulations until after the current stay has expired.

SO ORDERED.
Dated: August 29,2012 New York, New York

Paul A. Engelmayer United States District Judge

14 


 
 Case 1:11-cv-06774-PAE
347 Madison Avenue New York. NY 10017·3739 212878·7000 Tel

Document 43

Filed 09/28/12 Page 1 of 2

I ) Metropolitan Transportation Authority
State of New York

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DATE filED: 3.l::rfl1 /J-"2.

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September 28, 2012

The Honorable Paul A. Engelmayer United States District Judge United States District Court 500 Pearl Street, Room 670 New York, New York 10007

Re: American Freedom Defen..'ie initiative, et al. v. Metropolitan Tran..<;portation Authority, et al., No.1 J Civ. 6774 (PAE)

Dear Judge Engclmayer:

Pursuant to this Court's Order of September 21, 2012 (Doc. No. 42), the parties hereby jointly notify the Court of the status of the case, including the status of defendants' appeaL

Defendants' appeal of this Court's July 20,2012 Order granting a preliminary injunction,

notice of which was timely filed on August 6, 2012, has been voluntarily dismissed by a motion

by defendants, without objection by plaintiffs, which the Second Circuit granted 'September 25,

2012.

..

Defendants have decided not to seek review of this Court's August 29, 2012 Order, which granted plaintiffs' motion for a pennanent injunction of the Metropolitan Transportation Authority'S no-demeaning standard as presently written; denied defendants' motion for a stay pending appeal; granted plaintiffs' motion for a declaratory judgment; awarded plaintiff.,> $1 in nominal damages; and deferred consideration of plaintiffs' application for reasonable attorney's fees, costs, and expenses.

That leaves only consideration of plaintiffs' application for reasonable attorneys' fees, costs, and expenses. Tn an effort to efficiently resolve this matter, the parties have agreed that tlley will attempt to use the next two weeks, until October 12, 2012, to reach a settlement on plaintiffs' reasonable attorney's fees, costs, and expenses and toward that end, plaintiffs will be providing inlonnation about attorney's time, costs, and expenses to MTA for its review. To the extent that effort is not successful by October 12, the parties respectfully request that the COUIt
me permit plaintiffs to their motion for attorneys' fees, costs, and expenses on or belore October
26,2012.

llie agencieS ot (he MTA
MTA New York City TranSit MTA long Island Rail Road

M1A Metro·NOI1h Railroad MTA Bndges and Tunnels

MTA Capitai Ccmstrllctlol1 MTA Bus Company

Case 1:11-cv-06774-PAE Document 43 Filed 09/28/12 Page 2 of 2 2

Respectfully submitted,
lsi Peter Sistrom
Senior Associate Counsel Metropolitan Transportation Authority
lsI Richard Sehoolman
Richard Schoolman Special Counsel New York City Transit Authority

Jointly submitted by pJaintiffs' counsel:

lsI David Yerushalmi
David Yerushlami. Esq.
lsi Robert 1. Muise Robert J. Muise, Esq.

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 Case 1:11-cv-06774-PAE Document 45 Filed 10/16/12 Page 1 of 1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
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fILED

DOC # : - - - - - ; f - ; - - f - - ­
DATE FILED: /()/IMlk

AMERICAN FREEDOM DEFENSE INITIATIVE et al.~

Plaintiffs,

11 Civ. 6774 (PAE)

METROPOLITAN TRANSIT AUTHORITY et aI.,

ORDER

Defendants.

------------------------------------------------------------------------)(

PAUL A. ENGELMAYER, District Judge: On August 29,2012, the Court issued an Opinion and Order granting plaintiffs' motion
for a preliminary injunction, denying defendants' motion for a stay of that Order pending appeal, and granting declaratory relief and nominal damages to plaintiffs. In that Order, the Court deferred consideration of plaintiffs' motion for attorney's fees, pending the resolution of defendants' appeal. Defendants have since voluntarily dismissed that appeal. On October 16, 2012, the Court received a joint letter from the parties, stating that they have reached a settlement regarding attorney's fees, and that plaintiffs will not be seeking any further relief. Accordingly, that issue is now resolved. The Clerk of Court is directed to close the case.

SO ORDERED.
Dated: October 16,2012 New York, New York

PUNJ'A. ~




Paul A. Engelmayer

United States District Judge

 
 Case: 1:11-cv-6774 As of: 01/05/2013 08:11 AM EST 1 of 9

U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:11−cv−06774−PAE

CLOSED, ECF

American Freedom Defense Initiative et al v. Metropolitan Transportation Authority et al Assigned to: Judge Paul A. Engelmayer Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 09/27/2011 Date Terminated: 10/16/2012 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

American Freedom Defense Initiative

represented by David Eliezer Yerushalmi American Freedom Law Center 640 Eastern Parkway, Suite 4C Brooklyn, NY 11213 (646)−262−0500 Fax: (801)−760−3901 Email: david.yerushalmi@verizon.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erin Elizabeth Mersino Thomas More Law Center 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, MI 48106 (734) 827−2001 Fax: (734) 930−7160 Email: emersino@thomasmore.org ATTORNEY TO BE NOTICED

Robert J. Muise American Freedom Law Center PO Box 131098 Ann Arbor, MI 48113 (734)−635−3756 Fax: (734) 760−3901 Email: rmuise@americanfreedomlawcenter.org PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Pamela Geller

represented by David Eliezer Yerushalmi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erin Elizabeth Mersino (See above for address) ATTORNEY TO BE NOTICED

Robert J. Muise (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Robert Spencer

represented by David Eliezer Yerushalmi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:11-cv-6774 As of: 01/05/2013 08:11 AM EST 2 of 9

Erin Elizabeth Mersino (See above for address) ATTORNEY TO BE NOTICED
Robert J. Muise (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant Metropolitan Transportation Authority (MTA)
Defendant Jay H. Walder in his official capacity as chairman
Defendant Jay H. Walder in his capacity as Chief Executive Officer of MTA

represented by Peter Andrew Sistrom Metropolitan Transportation Authority 347 Madison Avenue New York, NY 10017 (212) 878−7176 Email: psistrom@mtahq.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Schoolman NYC Transportation Authority 130 Livingston Street Brooklyn, NY 11201 7186944667 Fax: 718695−5727 Email: Richard.Schoolman@nyct.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Peter Andrew Sistrom (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Peter Andrew Sistrom (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Schoolman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/27/2011
09/27/2011

# Docket Text
1 COMPLAINT against Metropolitan Transportation Authority, Jay H. Walder(in his capacity as Chief Executive Officer of MTA), Jay H. Walder(in his official capacity as chairman). (Filing Fee $ 350.00, Receipt Number 1017572)Document filed by American Freedom Defense Initiative, Robert Spencer, Pamela Geller.(tro) (Additional attachment(s) added on 9/28/2011: # 1 Exhibit 1, # 2 Ex. 2, # 3 Ex.3, # 4 EX.4, # 5 EX.5, # 6 EX.6, # 7 EX.7, # 8 EX.8, # 9 EX.9, # 10 EX.10, # 11 Index of Exhibits) (ama). (Entered: 09/28/2011)
SUMMONS ISSUED as to Metropolitan Transportation Authority, Jay H. Walder(in his capacity as Chief Executive Officer of MTA), Jay H. Walder(in his official capacity as chairman). (tro) (Entered: 09/28/2011)

Case: 1:11-cv-6774 As of: 01/05/2013 08:11 AM EST 3 of 9

09/27/2011 09/27/2011 09/27/2011 10/06/2011 10/06/2011 10/19/2011 10/19/2011 10/20/2011
10/20/2011 10/27/2011 10/28/2011 10/31/2011

Magistrate Judge Theodore H. Katz is so designated. (tro) (Entered: 09/28/2011)
Case Designated ECF. (tro) (Entered: 09/28/2011)
2 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by American Freedom Defense Initiative.(tro) (ama). (Entered: 09/28/2011)
3 AFFIDAVIT OF SERVICE of Summons and Complaint,,. Metropolitan Transportation Authority served on 9/28/2011, answer due 10/19/2011. Service was accepted by Ann Cutler. Document filed by American Freedom Defense Initiative; Robert Spencer; Pamela Geller. (Yerushalmi, David) (Entered: 10/06/2011)
4 AFFIDAVIT OF SERVICE of Summons and Complaint,,. Jay H. Walder(in his capacity as Chief Executive Officer of MTA) served on 9/28/2011, answer due 10/19/2011. Service was accepted by Ann Culter. Document filed by American Freedom Defense Initiative; Robert Spencer; Pamela Geller. (Yerushalmi, David) (Entered: 10/06/2011)
5 NOTICE OF APPEARANCE by Peter Andrew Sistrom on behalf of Metropolitan Transportation Authority, Jay H. Walder(in his capacity as Chief Executive Officer of MTA), Jay H. Walder(in his official capacity as chairman) (Sistrom, Peter) (Entered: 10/19/2011)
6 ANSWER to 1 Complaint,,. Document filed by Metropolitan Transportation Authority, Jay H. Walder(in his capacity as Chief Executive Officer of MTA), Jay H. Walder(in his official capacity as chairman).(Sistrom, Peter) (Entered: 10/19/2011)
7 ORDER: The Court has received the Complaint in this case, and Defendant's Answer, filed yesterday. The parties are directed, by November 4, 2011, to submit a joint case management plan and scheduling order, consistent with this Court's Individual Rules. In addition, Defendants are directed, by the same date, to clarify whether Defendants plan to move to dismiss the Complaint or to move for judgment on the pleadings. The Court raises this question because the first affirmative defense in the Answer, and also the prayer for relief, appear to indicate that Defendants are moving for dismissal on the pleadings, but no such motion was filed with the Court. (Signed by Judge Victor Marrero signing for Judge Paul A. Engelmayer on 10/20/2011) (djc) Modified on 10/20/2011 (djc). (Entered: 10/20/2011)
8 NOTICE OF APPEARANCE by Richard Schoolman on behalf of Metropolitan Transportation Authority, Jay H. Walder(in his capacity as Chief Executive Officer of MTA) (Schoolman, Richard) (Entered: 10/20/2011)
9 FILING ERROR − ELECTRONIC FILING FOR NON−ECF DOCUMENT − RULE 26(f) DISCOVERY PLAN REPORT.Document filed by American Freedom Defense Initiative, Pamela Geller, Metropolitan Transportation Authority, Robert Spencer, Jay H. Walder(in his capacity as Chief Executive Officer of MTA).(Yerushalmi, David) Modified on 10/28/2011 (ka). (Entered: 10/27/2011)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − NON−ECF DOCUMENT ERROR. Note to Attorney David Yerushalmi to E−MAIL to judgments@nysd.uscourts.gov., Document No. 9 Case Management Plan &Scheduling Order. This document is not filed via ECF. (ka) (Entered: 10/28/2011)
10 CIVIL CASE MANAGEMENT PLAN AND SCHEDULING ORDER: Amended pleadings may not be filed and additional parties may not be joined except with leave of the Court. Any motion to amend or to join additional parties shall be filed within 60 days from the date of this Order The parties do not consent to conducting all further proceedings before a Magistrate Judge, including motions and trial. This case is not to be tried to a jury Counsel for the parties have conferred and their present best estimate of the length of trial is 1−2 days. Deposition due by 4/6/2012. Discovery due by 5/18/2012. Case Management Conference set for 12/9/2011 at 02:30 PM in Courtroom 18C, 500 Pearl Street, New York, NY 10007 before Judge Paul A. Engelmayer. (Signed by Judge Paul A. Engelmayer on 10/31/2011) (js)

Case: 1:11-cv-6774 As of: 01/05/2013 08:11 AM EST 4 of 9

11/09/2011 11/16/2011 11/17/2011 12/08/2011 01/28/2012 01/29/2012 01/31/2012
01/31/2012 02/01/2012 02/01/2012

(Entered: 10/31/2011)
11 MOTION for Robert J. Muise to Appear Pro Hac Vice. Document filed by American Freedom Defense Initiative, Pamela Geller, Robert Spencer.(bwa) (Entered: 11/10/2011)
CASHIERS OFFICE REMARK on 11 Motion to Appear Pro Hac Vice in the amount of $200.00, paid on 11/10/2011, Receipt Number 1021533. (jd) (Entered: 11/16/2011)
12 ORDER FOR ADMISSION PRO HAC VICE granting 11 Motion for Robert J. Muise to Appear Pro Hac Vice. (Signed by Judge Victor Marrero signing for Judge Paul A. Engelmayer on 11/16/2011) (djc) (Entered: 11/17/2011)
Minute Entry for proceedings held before Judge Paul A. Engelmayer: Initial Pretrial Conference held on 12/8/2011. Counsel for both sides to send in a letter by next week re: authority. (ft) (Entered: 12/08/2011)
13 NOTICE OF CHANGE OF ADDRESS by David Eliezer Yerushalmi on behalf of American Freedom Defense Initiative, Pamela Geller, Robert Spencer. New Address: American Freedom Law Center, 640 Eastern Parkway, Suite 4C, Brooklyn, New York, USA 11213, 646.262.0500. (Yerushalmi, David) (Entered: 01/28/2012)
14 NOTICE OF CHANGE OF ADDRESS by Robert J. Muise on behalf of American Freedom Defense Initiative, Pamela Geller, Robert Spencer. New Address: American Freedom Law Center, PO Box 131098, Ann Arbor, Michigan, USA 48113, (734) 635−3756. (Muise, Robert) (Entered: 01/29/2012)
15 FILING ERROR − DEFICIENT DOCKET ENTRY − MOTION for Preliminary Injunction. Document filed by American Freedom Defense Initiative, Pamela Geller, Robert Spencer. Return Date set for 2/14/2012 at 05:00 PM. (Attachments: # 1 Memorandum of Law in Support of Motion for Preliminary Injunction, # 2 Index of Exhibits, # 3 Exhibit 1−−Declaration of Pamela Geller, # 4 Exhibit A−−"Muslims for Peace" Advertisement, # 5 Exhibit B−−"Jesus for Jews" Advertisement, # 6 Exhibit C−−"Million New Yorkers Without God" Advertisement, # 7 Exhibit D−−Religious Freedom Advertisement, # 8 Exhibit E−−Demeaning Advertisements Approved by MTA, # 9 Exhibit F−−Anti−Israel Advertisement, # 10 Exhibit G−−Pro−Israel Advertisement, # 11 Exhibit H−−MTA's Initial Rejection, # 12 Exhibit I−−MTA's Advertising Standard 5.05 (excerpt), # 13 Exhibit J−−Plaintiffs' Response to MTA's Initial Rejection, # 14 Exhibit K−−MTA's Final Rejection)(Muise, Robert) Modified on 2/1/2012 (ldi). (Entered: 01/31/2012)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Robert J. Muise to RE−FILE Document 15 MOTION for Preliminary Injunction. ERROR(S): Supporting documents must be filed separately, each receiving their own document number. Memorandum of Law in Support of Motion is found under the event list Replies, Opposition and Supporting Documents. (ldi) (Entered: 02/01/2012)
16 MOTION for Preliminary Injunction. Document filed by American Freedom Defense Initiative, Pamela Geller, Robert Spencer. Return Date set for 2/15/2012 at 05:00 PM.(Muise, Robert) (Entered: 02/01/2012)
17 MEMORANDUM OF LAW in Support re: 16 MOTION for Preliminary Injunction.. Document filed by American Freedom Defense Initiative, Pamela Geller, Robert Spencer. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1−−Declaration of Pamela Geller, # 3 Exhibit A−−"Muslims for Peace" Advertisement, # 4 Exhibit B−−"Jesus for Jews" Advertisement, # 5 Exhibit C−−"Million New Yorkers Without God" Advertisement, # 6 Exhibit D−−Religious Freedom Advertisement, # 7 Exhibit E−−Demeaning Advertisements Approved by MTA, # 8 Exhibit F−−Anti−Israel Advertisement, # 9 Exhibit G−−Pro−Israel Advertisement, # 10 Exhibit H−−MTA's Initial Rejection, # 11 Exhibit I−−MTA's Advertising Standard 5.05 (excerpt), # 12 Exhibit J−−Plaintiffs' Response to MTA's Initial Rejection, # 13 Exhibit K−−MTA's Final Rejection)(Muise, Robert) (Entered: 02/01/2012)

Case: 1:11-cv-6774 As of: 01/05/2013 08:11 AM EST 5 of 9

02/01/2012 02/06/2012 02/07/2012
02/21/2012 02/28/2012 03/02/2012 03/09/2012 03/09/2012
03/09/2012 03/09/2012 03/13/2012

18 ORDER: Friday, Telephone Conference set for 2/3/2012 at 10:15 AM before Judge Paul A. Engelmayer to discuss a briefing schedule for plaintiffs' motion for a preliminary injunction. The parties should jointly call Chambers at (212) 805−0268 at the appointed time. (Signed by Judge Paul A. Engelmayer on 2/1/2012) (cd) (Entered: 02/01/2012)
Minute Entry for proceedings held before Judge Paul A. Engelmayer: Pre−Motion Conference held on 2/6/2012. Defendants papers by 3/9/12; Plaintiff's response by 3/23/12. Counsel are to meet and confer after defendants papers are filed to discuss if some discovery/depositions needs to be taken,counsel are to notify the Court if discovery is needed immediately ( Responses due by 3/23/2012). (js) (Entered: 02/06/2012)
19 ORDER: On Friday, February 3, 2012, the Court held a telephonic conference in this matter, in which counsel for all parties participated, to discuss a briefing schedule for plaintiffs' motion for a preliminary injunction. This order memorializes the schedule set at that conference. Plaintiffs' motion for a preliminary injunction was filed on February 1,2012. Opposition papers are due March 9,2012; reply papers, if any, are due March 21,2012. Promptly after the filing of opposition papers, counsel are instructed to meet and confer, after which plaintiffs shall alert the Court as to whether they believe the taking of depositions, or any other additional discovery, is necessary prior to filing reply papers. Responses due by 3/9/2012 Replies due by 3/21/2012. (Signed by Judge Paul A. Engelmayer on 2/6/2012) (ft) (Entered: 02/07/2012)
20 MOTION for Erin Elizabeth Mersino to Appear Pro Hac Vice. Document filed by American Freedom Defense Initiative, Pamela Geller, Robert Spencer.(arc) (Entered: 02/28/2012)
CASHIERS OFFICE REMARK on 20 Motion to Appear Pro Hac Vice in the amount of $200.00, paid on 02/21/2012, Receipt Number 1030358. (jd) (Entered: 02/28/2012)
21 ORDER FOR ADMISSION PRO HAC VICE granting 20 Motion for Erin Elizabeth Mersino to Appear Pro Hac Vice. (Signed by Judge Paul A. Engelmayer on 3/1/2012) (rjm) (Entered: 03/02/2012)
22 MEMORANDUM OF LAW in Opposition re: 16 MOTION for Preliminary Injunction.. Document filed by Metropolitan Transportation Authority, Jay H. Walder(in his capacity as Chief Executive Officer of MTA), Jay H. Walder(in his official capacity as chairman). (Sistrom, Peter) (Entered: 03/09/2012)
23 DECLARATION of Jeffrey B. Rosen in Opposition re: 16 MOTION for Preliminary Injunction.. Document filed by Metropolitan Transportation Authority, Jay H. Walder(in his capacity as Chief Executive Officer of MTA), Jay H. Walder(in his official capacity as chairman). (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P)(Sistrom, Peter) (Entered: 03/09/2012)
24 DECLARATION of Peter Sistrom in Opposition re: 16 MOTION for Preliminary Injunction.. Document filed by Metropolitan Transportation Authority, Jay H. Walder(in his capacity as Chief Executive Officer of MTA), Jay H. Walder(in his official capacity as chairman). (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Sistrom, Peter) (Entered: 03/09/2012)
25 DECLARATION of Richard Schoolman in Opposition re: 16 MOTION for Preliminary Injunction.. Document filed by Metropolitan Transportation Authority, Jay H. Walder(in his capacity as Chief Executive Officer of MTA), Jay H. Walder(in his official capacity as chairman). (Attachments: # 1 Exhibit Q, # 2 Exhibit R, # 3 Exhibit S, # 4 Exhibit T)(Sistrom, Peter) (Entered: 03/09/2012)
Minute Entry for proceedings held before Judge Paul A. Engelmayer: Telephone Conference held on 3/13/2012. Telephone conference held on the record. The Court scheduled a Hearing for April 3, 2012 at 10:00 a.m. (djc) (Entered: 03/16/2012)

Case: 1:11-cv-6774 As of: 01/05/2013 08:11 AM EST 6 of 9

03/22/2012 03/22/2012
04/03/2012 04/09/2012 07/20/2012
07/20/2012 07/20/2012 07/20/2012 08/06/2012

26 REPLY MEMORANDUM OF LAW in Support re: 16 MOTION for Preliminary Injunction.. Document filed by American Freedom Defense Initiative, Pamela Geller, Robert Spencer. (Attachments: # 1 Index of Exhibits)(Muise, Robert) (Entered: 03/22/2012)
27 DECLARATION of David Yerushalmi, Esq. in Support re: 16 MOTION for Preliminary Injunction.. Document filed by American Freedom Defense Initiative, Pamela Geller, Robert Spencer. (Attachments: # 1 Exhibit 1−−NY Times Article, # 2 Exhibit 2−−NY Times Article, # 3 Exhibit 3−−NY Times Article, # 4 Exhibit 4−−NY Times Article, # 5 Exhibit 5−−NY Times Article, # 6 Exhibit 6−−NY Times Article, # 7 Exhibit 7−−NY Times Article, # 8 Exhibit 8−−NY Times Article, # 9 Exhibit 9−−NY Times Article, # 10 Exhibit 10−−NY Times Article, # 11 Exhibit 11−−NY Times Article, # 12 Exhibit 12−−NY Times Article, # 13 Exhibit 13−−NY Times Article, # 14 Exhibit 14−−NY Times Article, # 15 Exhibit 15−−NY Times Article, # 16 Exhibit 16−−NY Times Article, # 17 Exhibit 17−−NY Times Article, # 18 Exhibit 18−−NY Times Article, # 19 Exhibit 19−−NY Times Article, # 20 Exhibit 20−−NY Times Article, # 21 Exhibit 21−−NY Times Article, # 22 Exhibit 22−−NY Times Article, # 23 Exhibit 23−−NY Times Article, # 24 Exhibit 24−−NY Times Article, # 25 Exhibit 25−−NY Times Article, # 26 Exhibit 26−−NY Times Article, # 27 Exhibit 27−−NY Times Article, # 28 Exhibit 28−−NY Times Article, # 29 Exhibit 29−−NY Times Article, # 30 Exhibit 30−−United States v. Rahman, # 31 Exhibit 31−−United States v. Abu−Jihaad, # 32 Exhibit 32−−Jihad Article, # 33 Exhibit 33−−Jihad Article, # 34 Exhibit 34−−Jihad Article, # 35 Exhibit 35−−Jihad Article, # 36 Exhibit 36−−Jihad Article, # 37 Exhibit 37−−Jihad Article, # 38 Exhibit 38−−Jihad Article, # 39 Exhibit 39−−Jihad Article, # 40 Exhibit 40−−Jihad Article, # 41 Exhibit 41−−Jihad Article, # 42 Exhibit 42−−Jihad Article)(Muise, Robert) (Entered: 03/22/2012)
Minute Entry for proceedings held before Judge Paul A. Engelmayer: Status Conference held on 4/3/2012. Preliminary Injunction Hearing held. Court decision reserved. (jfe) (Entered: 04/06/2012)
28 ORDER: The pretrial conference in this matter scheduled for April 23, 2012, is adjourned sine die. (Signed by Judge Paul A. Engelmayer on 4/6/2012) (mro) (Entered: 04/09/2012)
29 OPINION &ORDER re: #102084 16 MOTION for Preliminary Injunction filed by American Freedom Defense Initiative, Robert Spencer, Pamela Geller. For the reasons discussed above, AFDI's motion for a preliminary injunction enjoining the enforcement of MTA's no−demeaning standard is GRANTED. In order to enable MTA to consider its appellate options and alternatives to the current regulation, the Court, in the public interest, will stay the effect of this Order for 30 days. Absent a court order extending it, after 30 days, this stay will expire. The Clerk of Court is directed to terminate the motion pending at docket entry number 16. A conference in this case is scheduled for August 29, 2012, at 11:00 a.m., at the U.S. Courthouse, 500 Pearl Street, New York, New York 10007. The parties are directed to meet and confer in advance of the conference, and to advise the Court by joint letter, due August 24, 2012, as to their respective views on the next steps to be taken, if any, in this litigation. (Signed by Judge Paul A. Engelmayer on 7/20/2012) (mro) Modified on 7/23/2012 (jab). (Entered: 07/20/2012)
Set/Reset Hearings: Status Conference set for 8/29/2012 at 11:00 AM before Judge Paul A. Engelmayer. (mro) (Entered: 07/20/2012)
***DELETED DOCUMENT. Deleted document number 30 Opinion. The document was incorrectly filed in this case. (mt) (Entered: 07/20/2012)
35 INTERNET CITATION NOTE: Material from decision with Internet citation re: 29 Memorandum &Opinion. (Attachments: # 1 Just Peace, # 2 SayYesToPeace.org, # 3 show) (tro) (Entered: 08/21/2012)
30 NOTICE OF INTERLOCUTORY APPEAL from 29 Memorandum &Opinion,,,,. Document filed by Metropolitan Transportation Authority, Jay H. Walder(in his capacity as Chief Executive Officer of MTA), Jay H. Walder(in his official capacity as chairman). Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Sistrom, Peter) (Entered: 08/06/2012)

Case: 1:11-cv-6774 As of: 01/05/2013 08:11 AM EST 7 of 9

08/06/2012 08/06/2012 08/06/2012
08/06/2012 08/06/2012
08/13/2012

Appeal Fee Due: for 30 Notice of Interlocutory Appeal,. $455.00 Appeal fee due by 8/20/2012. (nd) (Entered: 08/06/2012)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 30 Notice of Interlocutory Appeal,. (nd) (Entered: 08/06/2012)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 20 MOTION for Erin Elizabeth Mersino to Appear Pro Hac Vice. filed by American Freedom Defense Initiative, Robert Spencer, Pamela Geller, 4 Affidavit of Service Complaints, filed by American Freedom Defense Initiative, Robert Spencer, Pamela Geller, 17 Memorandum of Law in Support of Motion,,, filed by American Freedom Defense Initiative, Robert Spencer, Pamela Geller, 18 Order, Set Deadlines/Hearings,, 5 Notice of Appearance filed by Jay H. Walder, Metropolitan Transportation Authority, 3 Affidavit of Service Complaints, filed by American Freedom Defense Initiative, Robert Spencer, Pamela Geller, 12 Order on Motion to Appear Pro Hac Vice, 14 Notice of Change of Address filed by American Freedom Defense Initiative, Robert Spencer, Pamela Geller, 30 Notice of Interlocutory Appeal, filed by Jay H. Walder, Metropolitan Transportation Authority, 23 Declaration in Opposition to Motion,, filed by Jay H. Walder, Metropolitan Transportation Authority, 21 Order on Motion to Appear Pro Hac Vice, 28 Order, Terminate Hearings, 25 Declaration in Opposition to Motion, filed by Jay H. Walder, Metropolitan Transportation Authority, 29 Memorandum &Opinion,,,, 11 MOTION for Robert J. Muise to Appear Pro Hac Vice. filed by American Freedom Defense Initiative, Robert Spencer, Pamela Geller, 2 Rule 7.1 Corporate Disclosure Statement filed by American Freedom Defense Initiative, 6 Answer to Complaint filed by Jay H. Walder, Metropolitan Transportation Authority, 8 Notice of Appearance filed by Jay H. Walder, Metropolitan Transportation Authority, 26 Reply Memorandum of Law in Support of Motion filed by American Freedom Defense Initiative, Robert Spencer, Pamela Geller, 27 Declaration in Support of Motion,,,,,, filed by American Freedom Defense Initiative, Robert Spencer, Pamela Geller, 16 MOTION for Preliminary Injunction. filed by American Freedom Defense Initiative, Robert Spencer, Pamela Geller, 7 Order,,, 10 Case Management Plan,,, 24 Declaration in Opposition to Motion, filed by Jay H. Walder, Metropolitan Transportation Authority, 19 Scheduling Order,,, 1 Complaint,, filed by American Freedom Defense Initiative, Robert Spencer, Pamela Geller, 13 Notice of Change of Address, filed by American Freedom Defense Initiative, Robert Spencer, Pamela Geller, 22 Memorandum of Law in Opposition to Motion, filed by Jay H. Walder, Metropolitan Transportation Authority were transmitted to the U.S. Court of Appeals. (nd) (Entered: 08/06/2012)
31 Letter addressed to Judge Paul A Engelmayer from James B Henly and Peter Sistrom dated 8/6/2012 re: Request that the time for additional brief time the stay of this Court's 7/20/12 Opinion. Document filed by Metropolitan Transportation Authority.(cd) (Entered: 08/07/2012)
32 ORDER: The Court has received a letter, dated August 6,2012, from the defendants, asking that the Court's order invalidating MTA's no−demeaning standard be stayed pending appeal or, alternatively, pending MTA's Board meeting, scheduled for Thursday, September 27,2012. The stay that is currently in place−which lasts for 30 days after the Court's July 20, 2012 ruling−−expires on August 19, 2012. A conference in this case is presently scheduled for Wednesday, August 29, 2012, at 11:00 a.m. The Court hereby extends the stay through and including August 29,2012, to permit the Court to use the upcoming conference to discuss with counsel MTA's request for an extended stay. The Court invites plaintiffs to submit a letter, before the conference, setting forth their views as to this request. Such a letter is due Thursday, August 16,2012. The Court's present view is that a stay pending appeal is not merited, for two reasons, and as further set forth in this document. (Signed by Judge Paul A. Engelmayer on 8/6/2012) (cd) (Entered: 08/07/2012)
33 NOTICE OF CHANGE OF ADDRESS by David Eliezer Yerushalmi on behalf of All Plaintiffs. New Address: American Freedom Law Center, 640 Eastern Parkway, Suite 4C, Brooklyn, New York, USA 11213, 646−262−0500. (Yerushalmi, David) (Entered: 08/13/2012)

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34 Letter addressed to Judge Paul A. Engelmayer from Robert J. Muise and David Yerushalmi dated 8/14/2012 re: Plaintiff's counsels submit the following with regard to the MTAs request for a stay of this Court's order granting Plaintiff's motion for a preliminary injunciton pending appeal. In sum, Plaintiffs agree with the "Court's present view that a stay pending appeal is not merited." (Doc. No. 32). Document filed by American Freedom Defense Initiative.(ago) (Entered: 08/16/2012)
USCA Appeal Fees received $ 455.00 receipt number 465401046530 on 08/16/2012 re: 30 Notice of Interlocutory Appeal, filed by Jay H. Walder, Metropolitan Transportation Authority. (nd) (Entered: 08/16/2012)
36 Letter addressed to Judge Paul A. Engelmayer from David Yerushalmi, Robert J. Muise, Peter Sistrom, Richard Schoolman dated 8/24/2012 re: Pursuant to this Courts Opinion and Order of July 20, 2012 (Doc. No. 29), granting Plaintiffs motion for preliminary injunction, the parties hereby jointly notify the Court that they have met and conferred by telephonic conference held on Wednesday, August 22, 2012, to discuss and to prepare a joint letter as to their respective views on the next steps to be taken in this litigation in advance of the conference scheduled for August 29, 2012. Document filed by Metropolitan Transportation Authority, Jay H. Walder(in his capacity as Chief Executive Officer of MTA), Jay H. Walder(in his official capacity as chairman).(ama) (Entered: 08/23/2012)
37 ENDORSED LETTER addressed to Judge Paul A. Engelmayer from David Yerushalmi dated 8/28/2012 re: In anticipation of tomorrow's conference, while I will participate by physically attending, I would request that my co−lead counsel Robert Muise (Ann Arbor) be included in the conference telephonically. ENDORSEMENT: Denied. Counsel who wish to participate must appear in person. (Signed by Judge Paul A. Engelmayer on 8/28/2012) (lmb) (Entered: 08/29/2012)
38 OPINION &ORDER # 102276 . For the reasons discussed above: 1. AFDI's motion for a permanent injunction enjoining the enforcement of MTA's no−demeaning standard as presently written is GRANTED. 2. MTA's motion for a stay of this Order pending the resolution of its appeal is DENIED. However, in order to enable MTA to appeal to the Second Circuit the Court's denial of a stay pending appeal, the Court will extend the current stay of its Order enjoining MTA from enforcing the no−demeaning regulation as presently written until Wednesday, September 12, 2012. Absent an order from the Second Circuit, however, this stay will expire at midnight on September 12, 2012. 3. AFDI's motion for a declaratory judgment that the no−demeaning standard as presently written violates the First Amendment is GRANTED. 4. AFDI's motion for $1 in nominal damages for the violation of its First Amendment rights is GRANTED. 5. The Court's consideration of AFDI's application for reasonable attorney's fees, costs and expenses, pursuant to 42 U.S.C. § 1988(b) is DEFERRED pending the resolution of MTA's appeal. The Court directs MTA's general counsel to furnish this Opinion and Order, and also the Court's July 20 Decision, forthwith to the MTA's full Board, so as to ensure that the Board is fully informed of the potential consequences of MTA's decision to defer consideration of an alternative regulation or regulations until after the current stay has expired. (Signed by Judge Paul A. Engelmayer on 8/29/2012) (lmb) Modified on 9/6/2012 (ft). (Entered: 08/29/2012)
Minute Entry for proceedings held before Judge Paul A. Engelmayer: Status Conference held on the record on 8/29/2012. The Court denied stay pending appeal and granting plaintiff other relief. The Court will issue an order later today. (Landers, Rigoberto) (Entered: 09/12/2012)
39 ENDORSED LETTER addressed to Judge Paul A. Engelmayer from David Yerushalmi and Robert J. Muise dated 8/30/2012 re: Plaintiff's respectfully request a clarification of the Court's order regarding the 14−day period provided under the Rules for the filing of Plaintiffs' motion for attorney's fees and costs. ENDORSEMENT: AFDI's understanding is correct. The Court extends the period for filing a motion for attorney's fees until 14 days after a mandate has issued from the Court of Appeals. (Signed by Judge Paul A. Engelmayer on 8/30/2012) (lmb) (Entered: 08/30/2012)

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40 TRANSCRIPT of Proceedings re: HEARING held on 4/3/2012 before Judge Paul A. Engelmayer. Court Reporter/Transcriber: Rebecca Forman, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/15/2012. Redacted Transcript Deadline set for 10/25/2012. Release of Transcript Restriction set for 12/21/2012.(McGuirk, Kelly) (Entered: 09/19/2012)
41 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a HEARING proceeding held on 4/3/12 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 09/19/2012)
42 ORDER: This case remains open to permit the parties, following completion of defendants' appeal, to litigate plaintiffs' application for attorney's fees. The Court directs that, no later than September 30, 2012, and every 90 days thereafter, counsel for plaintiff shall submit a jointly prepared status letter to the Court, apprising it of the status of the case, including the status of defendants' appeal. (Signed by Judge Paul A. Engelmayer on 9/21/2012) (djc) (Entered: 09/21/2012)
43 ENDORSED LETTER addressed to Judge Paul A. Engelmayer from Peter Sistrom dated 9/28/2012 re: Pursuant to this Court's Order of September 21, 2012 (Doc. No. 42), the parties hereby jointly notify the Court of the status of the case, including the status of defendants' appeal. ENDORSEMENT: Granted. The parties are directed to notify the Court, by October 15, 2012, whether the settlement discussions were successful, or if plaintiffs will be filing their motion by October 26, 2012. In the event that such a motion is filed, defendants' opposition will be due on November 2, 2012., ( Motions due by 10/26/2012., Responses due by 11/2/2012.) (Signed by Judge Paul A. Engelmayer on 9/28/2012) (lmb) (Entered: 09/28/2012)
44 MANDATE of USCA (Certified Copy) as to 30 Notice of Interlocutory Appeal, filed by Jay H. Walder, Metropolitan Transportation Authority. USCA Case Number 12−3174. Appellants have filed a motion for voluntary dismissal (withdrawal) of the appeal. IT IS HEREBY ORDERED that the motion is GRANTED with prejudice. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 10/16/2012. (nd) (Entered: 10/16/2012)
45 ORDER: On August 29,2012, the Court issued an Opinion and Order granting plaintiffs' motion for a preliminary injunction, denying defendants' motion for a stay of that Order pending appeal, and granting declaratory relief and nominal damages to plaintiffs. In that Order, the Court deferred consideration of plaintiffs' motion for attorney's fees, pending the resolution of defendants' appeal. Defendants have since voluntarily dismissed that appeal. On October 16, 2012, the Court received a joint letter from the parties, stating that they have reached a settlement regarding attorney's fees, and that plaintiffs will not be seeking any further relief. Accordingly, that issue is now resolved. The Clerk of Court is directed to close the case. (ago) (Entered: 10/16/2012)
46 TRANSCRIPT of Proceedings re: HEARING held on 4/3/2012 before Judge Paul A. Engelmayer. Court Reporter/Transcriber: Rebecca Forman, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/13/2012. Redacted Transcript Deadline set for 11/26/2012. Release of Transcript Restriction set for 1/22/2013.(Moya, Goretti) (Entered: 10/18/2012)
47 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a HEARING proceeding held on 4/3/2012 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(Moya, Goretti) (Entered: 10/18/2012)