American Freedom Defense Initiative et al v. Suburban Mobility Authority For Regional Transportation (SMART) et al

Filing 22

RESPONSE to 21 MOTION to Amend/Correct 12 Response to Motion,, for Preliminary Injunction MOTION to Amend/Correct 12 Response to Motion,, for Preliminary Injunction filed by All Plaintiffs. (Muise, Robert)

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN AMERICAN FREEDOM DEFENSE INITIATIVE; PAMELA GELLER; and ROBERT SPENCER, Plaintiffs, v. SUBURBAN MOBILITY AUTHORITY for REGIONAL TRANSPORTATION ("SMART"); GARY L. HENDRICKSON, individually and in his official capacity as Chief Executive of SMART; JOHN HERTEL, individually and in his official capacity as General Manager of SMART; and BETH GIBBONS, individually and in her official capacity as Marketing Program Manager of SMART, Defendants. THOMAS MORE LAW CENTER Robert J. Muise, Esq. (P62849) Richard Thompson, Esq. (P21410) 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, MI 48106 [e-mail] [phone] Fax: [phone] Co-Counsel for Plaintiffs SMART Avery E. Gordon, Esq. (P41194) Anthony Chubb, Esq. (P72608) 535 Griswold Street, Suite 600 Detroit, MI 48226 [e-mail] [e-mail] [phone] Fax: [phone] Co-Counsel for Defendants SMART, Hertel and Gibbons

2:10-cv-12134-DPH-MJH PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO AMEND THEIR RESPONSE TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION Hon. Denise Page Hood Magistrate Judge Hluchaniuk

LAW OFFICES OF DAVID YERUSHALMI, P.C. David Yerushalmi, Esq. (Ariz. Bar No. 009616; DC Bar No. 978179; Cal. Bar No. 132011; NY Bar No. 4632568) P.O. Box 6358 Chandler, AZ 85246 [e-mail] [phone] Fax: [phone] Co-Counsel for Plaintiffs ______________________________________________________________________________

1

INTRODUCTION On March 8, 2011, Defendants filed a "motion to amend their response to Plaintiffs' motion for preliminary injunction" (Doc. No. 21), in an apparent effort to bring to this court's attention supplemental authority that Defendants believe supports their position in the litigation. Specifically, Defendants bring to the court's attention (and attach as Exhibit A to their motion) a district court order on a motion for a preliminary injunction that was entered in Seattle Mideast Awareness Campaign v. King County, No. C11-94RAJ, a case arising out of the U.S. District Court for the Western District of Washington at Seattle. Plaintiffs will treat Defendants' motion as a notice of supplemental authority, which is what it is in essence. ARGUMENT Defendants' reliance on Seattle Mideast Awareness Campaign v. King County (hereinafter "SeaMAC"), is misplaced. As an initial matter, the district court's ruling in

SeaMAC, which essentially effectuated a "heckler's veto," is exceedingly suspect in terms of its precedential value. Indeed, the ruling appears to run contrary to U.S. Supreme Court precedent. See Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123, 134 (1992) (holding that speech cannot be "punished or banned, simply because it might offend a hostile mob"); Boos v. Barry, 485 U.S. 312, 321 (1988) (O'Connor, J.) ("The emotive impact of speech on its audience is not a `secondary effect' [that can justify restriction]."); Terminiello v. City of Chicago, 337 U.S. 1 (1949) ("[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger."); Simon & Schuster, Inc. v. Members of N.Y. Crime Victims Bd., 502 U.S. 105, 118 (1991) ("The fact that society may find speech

2

offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection."); Erznoznik v. City of Jacksonville, 422 U.S. 205, 210 (1975) ("[T]he Constitution does not permit government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer."). And it appears to run contrary to Ninth Circuit precedent. See Ctr. for Bio-Ethical Reform, Inc. v. L.A. Cnty. Sheriff Dep't, 533 F.3d 780, 790 (9th Cir. 2008) ("It would therefore be an unprecedented departure from bedrock First Amendment principles to allow the government to restrict speech based on listener reaction simply because the listeners are children."). Nonetheless, SeaMAC is factually and legally distinguishable from the case at bar, and its reasoning compels this court to issue the requested injunction. Defendants claim that SeaMAC stands for the proposition that "Defendant King County's transit advertising space was a properly created limited public forum because they established a policy that evinced intent to restrict the type of speech allowed upon the forum, and enforcement of this policy was not `haphazard or inconsistent.'" (Defs.' Br. at ECF pages 5 to 6) (citing SeaMAC at 12-13). In SeaMAC, the court stated that "government restrictions (via policy and practice) on access to a forum based on objective standards indicate a limited public forum."1 SeaMAC at 8 (emphasis added). The court further noted that the advertisement at issue was denied "on the basis of the threats generated by the" advertisement in light of the policy restrictions. SeaMAC
1

The policy standards at issue in SeaMAC were King County's restrictions on "material that is so objectionable under contemporary community standards as to be reasonably foreseeable that it will result in harm to, disruption of, or interference with the transportation system," and "material directed at a person or group that is so insulting, degrading or offensive as to be reasonably foreseeable that it will incite or produce imminent lawless action in the form of retaliation, vandalism or other breach of public safety, peace and order." SeaMAC at 2, 12. 3

at 13. According to the court, this basis was legitimate because it was well supported by the evidence in the record. SeaMAC at 3-5, 15-17. It is also important to highlight that "[t]here [was] no suggestion in the record . . . that other advertisements generated threats to disrupt orderly transit operations but were nonetheless published." SeaMAC at 14. Therefore, having concluded that the forum was a limited public forum, the court denied the request for an injunction and ultimately upheld the restriction because it was reasonable in light of the threats of vandalism and violence generated by the advertisement. SeaMAC at 17 (finding that based on the evidence it was "reasonably foreseeable that [the advertisement] `will result in harm to, disruption of, or interference with the transportation system,' and `will incite or produce imminent lawless action in the form of retaliation, vandalism or other breach of public safety, peace and order'"). The facts of this case in light of the court's reasoning in SeaMAC compel the opposite conclusion--i.e., that a preliminary injunction is warranted. Here, SMART has designated its advertising space as a public forum (i.e., designated public forum) based on its policy and its practice--particularly its practice of accepting controversial advertisements, such as an atheist advertisement.2 See United Food & Commercial Workers Union, Local 1099, 163 F.3d at 355 (concluding that the bus advertising space was a public forum and stating that the acceptance of advertisements "which by their very nature generate conflict, signals a willingness on the part of the government to open the property to controversial speech"). Thus, Defendants' content- and viewpoint-based restriction on Plaintiffs' speech cannot stand. See Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 800

The atheist advertisement, which Defendants accepted and ran on the SMART buses in February/March 2010, read as follows: "Don't believe in God? You are not alone. DetroitCoR.org." (Prelim. Inj. Hr'g Tr. (hereinafter "Tr.") at 6). 4

2

(1985) (stating that a speaker cannot be excluded from a designated public forum "without a compelling government interest"). Nonetheless, Defendants' restriction on Plaintiffs' advertisement was unreasonable in light of the evidence. Therefore, this restriction is unconstitutional even if the SMART

advertising space was a limited public forum (which it isn't). See generally SeaMAC. Unlike the situation in SeaMAC, in this case there are no objective standards that were applied to deny Plaintiffs' advertisement. injunction hearing as follows: Q: So in fact, there is no policy or guideline or training manual or anything else that would set out why [Plaintiffs' advertisement] is political [and thus impermissible] and the Atheist Ad is not political [and thus permitted]? A. Right. (Tr. at 15). Defendant Gibbons also admitted during her testimony that when she examined Plaintiffs' proposed advertisement (i.e., its "four corners"), she found nothing about the ad itself that was political, nor could she say that it disparaged or scorned any particular people.3 (Tr. at 10). With regard to how Defendants decide whether or not an advertisement is permissible, Defendant Gibbons' testimony reveals that SMART's practices and procedures are "haphazard Defendant Gibbons testified at the preliminary

Defendant Gibbons testified as follows: Q: So when you examined [Plaintiffs'] ad, there was nothing about the ad itself that was political? A: No. *** Q: There is nothing in the ad that disparages or scorns any particular people? A: Correct, yes. I'm not sure. Court: You're not sure whether it scorns any particular people; is that your answer? A: Right. (Tr. at 10-11). 5

3

and inconsistent." For example, Defendant Gibbons admitted that she did not look to anything extrinsic to the atheist advertisement to determine whether it was permissible--she looked only at its "four corners." (Tr. at 6-7). However, she denied Plaintiffs' advertisement based solely on a news story in the Miami Herald, indicating that when Plaintiff ran a similar advertisement in Florida, it was controversial (i.e., "political").4 (Tr. at 10, 17, 19, 22). Thus, Defendants did not use the same practice and procedure for Plaintiffs' advertisement as they used for the atheist advertisement. As noted above, based on the "four corners" of Plaintiffs' advertisement,

Defendants concluded that it was not political and, therefore, should have allowed it to run. (Tr. at 10). Moreover, there was no evidence presented that violence, vandalism, or threats of violence or vandalism occurred as a result of Plaintiffs' advertisement in Florida. And there was no evidence presented that Plaintiffs' advertisement would subject SMART buses to violence or vandalism if they ran here in Michigan. Indeed, the only evidence of violence and vandalism presented in this case related to the atheist advertisement, which SMART accepted and continued to run even after the violence and public controversy surrounding the advertisement came to light. (Tr. at 7-8, 11-12). CONCLUSION Based on the evidence of this case in light of the court's reasoning in SeaMAC, this court should grant Plaintiffs' request for a preliminary injunction.

Indeed, when denying Plaintiffs' advertisement, Defendants equated "political" with "controversial." (Tr. at 19) (answering the question as to whether she was "able to determine that [Plaintiffs' advertisement] was political" by stating, "I [Defendant Gibbons] knew that it was of concern in that there is controversy on both sides of the issue on whether they should be posted or shouldn't be posted"). 6

4

Respectfully submitted, THOMAS MORE LAW CENTER /s/ Robert J. Muise Robert J. Muise, Esq. (P62849) LAW OFFICES OF DAVID YERUSHALMI, P.C. /s/ David Yerushalmi David Yerushalmi, Esq. Counsel for Plaintiffs

7

CERTIFICATE OF SERVICE I hereby certify that on March 14, 2011, a copy of the foregoing was filed electronically. Notice of this filing will be sent to all parties for whom counsel has entered an appearance by operation of the court's electronic filing system. Parties may access this filing through the court's system. I further certify that a copy of the foregoing has been served by ordinary U.S. mail upon all parties for whom counsel has not yet entered an appearance electronically: None. THOMAS MORE LAW CENTER /s/ Robert J. Muise Robert J. Muise, Esq. (P62849)

8