Eugene Volokh notes that the MTA has accepted this ad criticizing the proposed Islamic community center near Ground Zero:
Volokh writes:
Under current First Amendment doctrine, once the MTA opens up its space for a wide range of ads, it can’t then discriminate based on viewpoint among ads; and the quoted rationale given does indeed stem from the ad’s viewpoint, which the MTA perceives as unfair and inaccurate. (If the MTA had a policy barring verifiable factual misstatements, that would likely be constitutional. But it seems pretty clear that a reasonable observer would perceive the ad as expressing an opinion about the wrongness of the mosque plan, or an opinion about the likely wrongness of the motivations of some of the mosque supporters, or both.) In any event, there’s no First Amendment controversy now, given that the MTA has accepted the ad.
Of course, there is a factual misstatement in the ad. The developers haven't even raised the money to build the thing yet. I called the Cordoba Initiative this morning and confirmed that there is no planned opening date, let alone the date of September 11, 2011. That date has been plucked out of thin air by opponents of the project who want to portray the builders as constructing a "victory mosque" at the site of the 9/11 attacks.
