'Savagery' in the Subways: Anti-Muslim Ads, the First Amendment, and the Efficacy of Counterspeech

Abstract

From San Francisco to Washington, D.C. to Detroit to Chicago to New York, anti-Muslim hate placards have recently appeared on government-owned transit systems in cities around the country. Anti-Muslim hate groups designed, funded and placed the inflammatory advertisements, representing a well-orchestrated campaign to demean and attack the minority Muslim community. The ads have culminated in hate crime charges in the subway pushing death of an immigrant of South Asian descent, diverse manifestations of counter official and private speech and First Amendment litigation in at least three jurisdictions where well-meaning transit officials attempted to prevent the ads’ placement. Interdisciplinary in its orientation, this essay first contemplates anti-Muslim sentiment in the U.S. more than a decade following the tragic events surrounding 9/11. Then, it describes three variant strands of the hate ads after identifying the anti-Muslim activists responsible for them. The essay thereafter engages in a comparative analysis of the First Amendment litigation that followed upon the heels of seemingly well-intentioned government censorship of the odious speech in New York, Detroit and Washington, D.C. These vignettes are woven together with a singular analytic thread: the effectiveness of counterspeech by officials and private entities as the preferred self-help remedy of first instance. Ultimately, the piece illustrates that while counterspeech is admittedly not without flaw, it nevertheless represents an effective non-judicial means for empowering individuals, educating communities and undermining harmful or threatening expression including the anti-Muslim hate speech here.