The American Freedom Defense Initiative, which won court victories for its controversial ads in the face of opposition by transit authorities in New York and Washington, suffered a different fate in a recent federal appeals court decision.
On October 25, the U.S. Court of Appeals for the Sixth Circuit upheld a Michigan transit authority’s rejection of the organization’s advertisement warning of the threat of Islamic law, finding that the authority’s buses are not a public forum. A unanimous panel reversed a preliminary injunction issued by Judge Denise Page Hood of the Eastern District of Michigan against the Suburban Mobility Authority for Regional Transportation (SMART).
In May 2010, the American Freedom Defense Initiative, a nonprofit organization that states that its goal is to combat “the global jihad and Islamic supremacism,” sought to place the ad on the sides of SMART’s buses in Michigan’s four southeastern-most counties. The proposed ad stated: “Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got Questions? Get Answers! RefugefromIslam.com.”SMART refused the advertisement, citing its policy barring political content or ads that expose any group to scorn.
Later that month, the advocacy group and two individual directors sued SMART for violating the First and Fourteenth amendments.
In March 2011, Hood issued the preliminary injunction, holding that although SMART’s advertising space was a nonpublic forum, its restrictions did not provide enough guidance on permissible and non-permissible ads. She noted that SMART had allowed an ad by an atheist organization, Detroit Coalition for Reason, which stated: “Don’t believe in God? You are not alone. DetroitCoR.org.”
Judge John Rogers wrote the opinion in American Freedom Defense Initiative v. Suburban Mobility Authority for Regional Transportation, joined by Judge Raymond Kethledge and Judge Algenon Marbley of the Southern District of Ohio District, who sat by designation.
Rogers said that the lower court should not have issued the injunction “because plaintiffs are not likely to succeed in demonstrating that SMART unreasonably excluded this political speech from a nonpublic forum.”
Rogers explained: “SMART’s tight control over the advertising space and the multiple rules governing advertising content make the space incompatible with the public discourse, assembly, and debate that characterize a designated public forum. Although SMART’s written policy does not explicitly identify the buses as a nonpublic forum, SMART’s policy restricts the content of that forum. SMART has banned political advertisements, speech that is the hallmark of a public forum,”
Rogers also noted that the Supreme Court’s 1974 ruling in Lehman v. City of Shaker Heights “held that similar restrictions created a nonpublic forum.…The Lehman Court held that advertising space sold on city buses was not a public forum because the city had rejected all political advertisements.”
Rogers observed, “[M]erely because it is sometimes unclear whether an ad is political does not mean the distinction cannot be drawn in the case of a nonpublic forum. The holding in Lehman demands that fine lines be drawn. Otherwise, as a practical matter, a nonpublic forum could never categorically exclude political speech.”
Rogers addressed SMART’s acceptance of the atheist ad by noting that it “could be viewed as a general outreach to people who share the Detroit Coalition’s beliefs, without setting out any position that could result in political action. The fatwa advertisement, however, addresses a specific issue that has been politicized.”
The plaintiffs plan to file a petition for rehearing en banc, said their lawyer, Robert Muise, co-founder and senior counsel of the American Freedom Law Center. Muise also represented the plaintiffs at the lower court level.
“To say that you can run that atheist advertisement because it’s religious speech but not run our client’s advertisement because it’s political speech is completely arbitrary,” Muise said.
David Yerushalmi of the Law Offices of David Yerushalmi of the Chandler, Ariz. Also represented the plaintiffs.
Christian Hildebrandt of Vandeveer Garzia in Troy, Mich., who argued for SMART, declined to comment before getting client approval. SMART did not respond to a request for comment.
Sheri Qualters can be contacted at firstname.lastname@example.org.