American Freedom v. Metropolitan Transport, No. 15-1997 (2d Cir. 2016)
Annotate this CaseAFDI, a pro‐Israel advocacy organization known for its criticism of Islam, submitted an advertisement for display on the back of MTA buses. The MTA, invoking the provision in its advertising standards barring the display of any advertisement reasonably likely to incite violence, refused to display the Ad. AFDI filed suit against MTA, claiming that the application of the incitement prohibition to the Ad violated the First Amendment, and moved for a preliminary injunction. In this appeal, AFDI appealed from the district court's order dissolving the preliminary injunction on the ground that the claim underlying the injunction became moot. The MTA’s Board of Directors had voted to amend the MTA’s advertising standards, announcing an intention to convert the MTA’s property from a designated public forum to a limited public forum and, to accomplish that goal, included a prohibition on any advertisement that is “political in nature.” The court concluded that the district court did not abuse its discretion in finding AFDI’s claim moot and dissolving the preliminary injunction because the MTA has altered its conduct in a manner sufficient to present a fundamentally different controversy. Further, the MTA has carried its “heavy burden of persuasion” with respect to the two prongs of the voluntary cessation doctrine. Finally, the court rejected AFDI’s alternative argument that its claim is not moot because it has a “vested right” to display the Ad. Accordingly, the court affirmed the judgment.
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