Epstein on Two Recent First Amendment Cases

When Government Distorts the Truth
Richard A. Epstein
Defining Ideas
September 4, 2012

The past several weeks have given rise to two First Amendment cases of great interest, each of which involves the extent to which the state can seek to control the messages that ordinary people and firms deliver to the public at large.

The first of these is American Freedom Defense Initiative (AFDI) v. Metropolitan Transportation Authority. There, the question was whether the MTA could, consistent with the First Amendment, block the AFDI, a pro-Israel organization, from enforcing its “no demeaning” standard with respect to highly charged religious advertisements that the AFDI wanted to post, such as this advertisement:

Richard Epstein tobacco companies


In July of 2012, Judge Paul Engelmeyer temporarily urged the MTA to post that advertisement inside the MTA on the following ground: As a form of core political speech, it was entitled to the highest level of protection under the First Amendment’s guarantee of freedom of speech; after all, it was not “narrowly tailored” to serve a compelling govern