Although Collyer reached the right result, her openness to the argument that speech can be restricted based on the anticipated violence of people it offends was troubling. So was her description of the AFDI ad as “hate speech,” a constitutionally irrelevant category.
The heckler’s veto also remains a threat in New York, where the Metropolitan Transportation Authority (MTA) initially turned down the AFDI ad on the grounds that it “demeaned” Muslims. U.S. District Judge Paul Engelmayer rejected that rationale in a July 20 ruling.
On September 27, three days after the AFDI ad began appearing in subway stations, the MTA adopted a new policy barring any message it “reasonably foresees would imminently incite or provoke violence or other immediate breach of the peace.” For defenders of free speech, those are fighting words.
