MANHATTAN (CN) - A federal judge seems unlikely to uphold advertising loopholes that would let a group target Southerners as bigots on public transportation, but forbid a campaign that equated opponents of Israel with savages.
"If it's riddled with holes ... that raises questions," U.S. District Judge Paul Engelmayer said at a hearing Tuesday.
Though the Southern bigot ad was a hypothetical example, the American Defense Freedom Initiative (AFDI) had tried to run the savages ad in 2011.
Against a backdrop of photographs depicting Muslims and Nazis during World War II, the first proposed ad stated: "In any war between the civilized man and the savage, support the civilized man. Support Israel. Defeat Islamic Jihad."
Explaining that the ad violated a regulation against demeaning any group based on race, religion, ancestry or national origin, the Metropolitan Transit Authority pulled the campaign.
MTA Real Estate Director Jeffrey Rosen told the AFDI in an email that Muslims, Arabs and Palestinians could perceive the ad as demeaning.
The ad's creator, archconservative blogger Pamela Geller, resubmitted the ad without the background photos or the word "Islamic." The new ad contained links to Geller's websites.
But Rosen testified Tuesday that the changes did not make the ad less offensive. Denying that politics informed his decision, Rosen said that the MTA has run advertisements representing starkly different sides of the Israeli-Palestinian conflict.
Stand With Us recently ran an ad with the MTA that implied other nations have not partnered with Israel for peace. The Committee for a Just Peace in Israel and Palestine sponsored an ad fighting military aid to Israel; the poster depicted an Israeli man and a Palestinian man, each holding a young daughter.
Referring to the ad depicting the parents, Rosen said: "It's impossible to see this as an attack on ethnicity."
But he said Geller's ad was "demeaning on its face."
In contrast to the hypothetical Southerner ad, Rosen said the savages ad targeted a protected group. "I don't consider it my role to manage a civil discussion," Rosen said.
U.S. District Judge Paul Engelmayer said that Geller's photo edits may have "cleverly straddled" loopholes in the MTA's policy, which do not ban demeaning speech against adherents of political ideologies.
"I have some skepticism as to whether this advertisement was properly classified as demeaning to an ethnic group," Engelmayer said, arguing that the word "savage" could refer specifically to militants.
Rosen said that the ad content and promoted websites encourage a broader reading.
Geller's websites are filled with inflammatory remarks against Muslims, liberal Jews, Democrats and President Barack Obama.
Engelmayer countered that he had to confine his ruling on the "four corners" of the ad, which he noted Geller appeared to have worded specifically for a court case.
"There was some hunger to gin up a constitutional issue," Engelmayer said.
If he rules in favor of AFDI, Engelmayer said that the MTA could reform its rules to ban all demeaning speech or political speech in the interest of keeping offensive speech away from New Yorkers.
MTA lawyer Peter Sistrom urged the judge not to substitute his own judgment about the offensiveness of the ad with the company's perception.
"We're entitled to some judgment," Sistrom said. "We shouldn't be second-guessed or nitpicked."
Engelmayer said he is ultimately bound by 2nd Circuit precedent that broadened free speech rights in MTA advertisements. In New York Magazine v. Metropolitan Transit Authority
, the magazine won the right to publish an ad mocking then-Mayor Rudy Guliani.
If he chooses to enjoin the MTA, Engelmayer said he would grant 30 days for an appeal that could narrow the earlier precedent.
Public buses have been the center of free speech fights about the Israeli-Palestinian conflict around the country, spurring similar federal lawsuits in Detroit
There was no discussion at the hearing about the connotations of the word "savage," which for centuries has appeared as a slur against people of the Middle East, Africa, the Americas and any other area under colonial rule.