Bus System Barred (at Least Temporarily) from Excluding “Leaving Islam?” Ad

This happened in American Freedom Defense Initiative v. Suburban Mobility Authority for Regional Transportation (SMART) (E.D. Mich., decided today). The ad said, “Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got questions? Get answers!,” and included the Web site address “RefugeFromIslam.com.” SMART — the Detroit-area public transportation system — rejected the ad, arguing that its policy was not to include “Political or political campaign advertising” or “Advertising that is … likely to hold up to scorn or ridicule any person or group of persons.”

The court disagreed with SMART, and granted the advertisers’ motion for a preliminary injunction ordering SMART to allow their ad. The court concluded that the advertising space is likely not a “designated public forum” but rather a “nonpublic forum.” (This is likely a labeling mistake, I think, since under the Supreme Court’s caselaw the forum would probably be labeled a “limited public forum,” which is sometimes seen as a variant of a “designated public forum.” But not much turns on this, since the Court’s most recent decisions set up the same rule for limited public fora and for nonpublic fora.) In a nonpublic forum or a limited public forum, a speech restriction is constitutional if it’s viewpoint-neutral and reasonable. But the court concluded:

There is a strong likelihood that Plaintiffs could succeed in demonstrating that Defendant’s decision not to run the advertisement was not reasonable, but rather arbitrary and capricious. Defendants argue that their policy is viewpoint neutral. However, there is nothing in the policy that can guide a government official to distinguish between permissible and impermissible advertisements in a non-arbitrary fashion. Defendant Beth Gibbons testified that there were no other written guidelines or manuals available, aside from the guidelines found in the contract between SMART and CBS. She further testified that, while the atheist advertisement was purely religious, rather than political, there was no manual or language that set forth what distinguished a political advertisement from a religious advertisement.

Under Sixth Circuit law, “[t]he absence of clear standards guiding the discretion of the public official vested with the authority to enforce the enactment invites abuse by enabling the official to administer the policy on the basis of impermissible factors.” United Food & Commercial Workers Union, Local 1099, et al. v. Southwest Ohio Reg’l. Transit Auth., 163 F.3d 341, 359). “[T]he limits the [government] claims are implicit in its law [must] be made explicit by textual incorporation, binding judicial or administrative construction, or well-established practice.” Id. (internal citations omitted).

As Defendant Gibbons testified …, the policy purporting to restrict content in this case does not distinguish between political or non-political advertising, but each advertisement is reviewed independently for such a determination to be made. When the advertisement at issue was initially reviewed, the determination was made that it was a political advertisement. However, when asked about the advertisement during the hearing, Defendant Gibbons testified that the content of the advertisement itself was not political. Such an inconsistency illustrates the arbitrary decision-making allowed under Defendant SMART’s policy.

Defendants argue that their case is analogous to Lehman v. City of Shaker Heights, in which the Court held that the city’s refusal to accept political advertising did not result in a First Amendment violation. 418 U.S. 298 (1974). This case is distinguishable. First, the advertisement in Lehman was clearly political advertising, promoting a specific candidate for an upcoming election. Second, there was “uncontradicted testimony at the trial that during the 26 years of public operation, the Shaker Heights system, pursuant to city council action, had not accepted or permitted any political or public issue advertising on its vehicles.” [The court had earlier stressed that SMART had accepted “an advertisement run by an atheist organization reading: ‘Don’t believe in God? You’re not alone.’ -EV] Additionally, the advertisements in Lehman were to be inside the vehicles, where the riders would be a captive audience. Based on the factual distinctions between Lehman and the instant case, Defendants cannot rely on it to establish that their refusal to accept Plaintiffs’ advertising was constitutional.

Given the arbitrary nature of SMART’s policy and decision-making practices, Plaintiffs have a high likelihood of succeeding on the merits with respect to whether the restriction of their speech was unreasonable in this case.

I’m not sure the analysis is entirely correct. For instance, as the Lehman dissent noted — and the opinions in the majority did not contradict this — “The record reveals that the Shaker Heights Rapid Transit System provides advertising space on the outside as well as the inside of its cars. Lehman was denied access to both”; Lehman has to be distinguished on other grounds, chiefly the categorical and viewpoint-neutral nature of his exclusion.

But the bottom line strikes me as right, since it sounds like SMART is making its decisions in a viewpoint-based way. The “likely to hold up to scorn or ridicule any person or group of persons” category would exclude the message “Islam is evil” (especially given that it’s read broadly enough to apply to this particular ad), but would allow the message “Islam is good” or “all religions should be respected.” And while some definitions of “political” might be seen as viewpoint-neutral and sufficiently clearly drawn — at least given the Lehman decision — it looks like SMART’s interpretation of “political” is vague and potentially viewpoint-based (and likely actually viewpoint-based).

I realize that some have argued that the government should have nearly unlimited authority to select what appears on its property (at least outside traditional public fora such as parks and sidewalks), so that if it wants to exclude speech that it disapproves of — whether it’s anti-religious-group, anti-government, pro-union, anti-war, racist, sexist, anti-gay, pro-gay, or anything else — it should be free to do so. But given the Court’s caselaw on limited public fora and nonpublic fora, I think the bottom line here is likely correct.

Some more reasoning from the court’s opinion:

Defendants maintain that SMART’s advertising revenue could be compromised if SMART opens its advertising space to unregulated public debate, resulting in financial harm to SMART and its riders. However, granting this preliminary injunction would not have the effect of transforming SMART’s nonpublic forum to a designated forum, open to unregulated debate. Beyond speculation, SMART has not demonstrated that the proposed advertisements will result in decreased ridership. Moreover, SMART may not reject advertisements solely because those advertisements have the potential of affecting ridership. See United Food, 163 F.3d at 360 (finding a ban on advertisements that would adversely affect ridership unconstitutional as overbroad, and compromising First Amendment protections). The Court finds that the Plaintiffs’ likelihood of success, the potential harm to Plaintiffs, and the potential harm to the public interest outweigh the speculative harm to SMART….

Defendants argue that the impact on the public from imposing the advertisements on a “captive audience” could “further racial tensions, increase violence, and create untold other negative reactions.” In this case, however, the advertisement would run on the outside of the bus, and there would be no “captive audience.” Further, “the purported concern to avoid controversy excited by particular groups may conceal a bias against the viewpoint advanced by the excluded speakers.” Cornelius, 473 U.S. at 812. Based on Plaintiffs likelihood of success on the merits, it is in the public’s interest to grant the preliminary injunction.

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