A pro-Israel organization that hates Jihad wanted to place a public service advertisement on the MTA buses in New York City. The City said the mobile billboard could not be posted because it would incite violence. A federal court then struck down the regulation that allowed the City to quash the sign. After the City amended its signage rules, the federal court dissolved the injunction as moot. The Court of Appeals agrees with that mootness finding.
The case is American Freedom Defense Initiative v. MTA, decided on March 3. The advertisement portrayed Muslims in a negative light and made reference to killing Jews and Jihad. Like I said, a federal judge said the provision invoked by the MTA in rejecting the sign violated the First Amendment. But that injunction went out the window when the City rewrote the signage rules. The signs can be seen at this link. The plaintiffs want the injunction to continue because, they say, the new rules are similar and also violate the First Amendment in that they prohibit advertisements that are "political in nature." The Court of Appeals (Katzmann, Kearse and Schofield [D.J.[) finds the district court it right. This case is moot.
Cities and other municipalities are given the benefit of the doubt when they change the rules that people challenge in court. If the court finds there is no likelihood that the old rules will return, then the case is moot. If the new rules are too dissimilar from the old rules, then the case is moot. If the case is moot, we all go home and look for another municipality to kick around. Mootness can kill off even the most interesting lawsuits.
The City convinced the Second Circuit that the old rule is gone for good. The current rule -- which prohibits political advertisements -- is too different from the incitement prohibition. If the plaintiffs want to sue the City again, they will have to find a way to challenge the rules that prohibit political signage on MTA buses. k here to edit.
Stephen Bergstein is a civil rights lawyer in Orange County, N.Y. He has briefed or argued more than 200 appeals in the state and federal courts.