“Savagery” in the Subways: Anti-Muslim Ads, the First Amendment, and the Efficacy of Counterspeech
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 various 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, as well as 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 Article first contemplates anti-Muslim sentiment in the United States 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 Article 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 Article 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.