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

Filing 33

REPLY to Response re 27 Emergency MOTION to Stay Order Granting Plaintiffs' Preliminary Injunction [Docket No. 24]Emergency MOTION to Stay Order Granting Plaintiffs' Preliminary Injunction [Docket No. 24] filed by Beth Gibbons, John Hertel, Suburban Mobility Authority For Regional Transportation (SMART). (Hildebrandt, Christian)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
AMERICAN FREEDOM DEFENSE
INITIATIVE, PAMELA GELLER, and
ROBERT SPENCER,
Plaintiffs,
Case 2:10-cv-12134
HON. DENISE PAGE HOOD

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 (P62849)
Richard Thompson (P21410)
Co-Counsel for Plaintiffs
24 Frank Lloyd Wright Drive
P.O. Box 393
Ann Arbor, MI 48106
[phone]
[e-mail]

SMART
Avery E. Gordon (P41194)
Anthony Chubb (P72608)
Co-Counsel for Defendants SMART,
Hertel and Gibbons
535 Griswold Street, Suite 600
Detroit, MI 48226
[phone]
[e-mail]
[e-mail]

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

VANDEVEER GARZIA, P.C.
John J. Lynch (P16887)
Christian E. Hildebrandt (P46989)
Co-Counsel for Defendants SMART,
Hertel and Gibbons
1450 W. Long Lake Road, Suite 100
Troy, MI 48098
[phone]
[e-mail]
[e-mail]

REPLY BRIEF IN SUPPORT OF
DEFENDANTS’ MOTION FOR STAY OF ORDER GRANTING PLAINTIFFS’
PRELIMINARY INJUNCTION [Docket No. 24] PENDING APPEAL

On May 3, 2011, Plaintiffs responded to Defendants’ Motion for Stay Pending
Appeal. This Reply Brief is being filed pursuant to E.D. Mich LR 7.1(d)(A).
To begin with, the Court must recognize a significant misrepresentation by the
Plaintiffs in their brief: The Plaintiffs mislead by denying that the advertisement is
political in nature. The parties agree in their writings that the context of the ad, if not the
content, was clearly political. Plaintiffs themselves defined the issue as political speech
in their own Complaint, and these statements operate as admissions for purposes of
this motion and this action.
After Plaintiffs filed their Complaint in this matter, and only after SMART asserted
the defense that the message was political and barred by their guidelines, Plaintiffs
attempted to redefine the issue as one of “religious freedom” in an attempt to avoid the
allowable constitutional restriction contained in SMART’s advertising guidelines.
Plaintiffs’ attempt to do so is transparent. Further, it is ineffective because “religious
freedom” is a political issue. That Plaintiffs now want to also define their
advertisement as religious is irrelevant if the advertisement is also political.
The concept of “religious freedom” is not a religious concept. Counsel is aware
of no religion that teaches religious freedom as a tenet. Instead, it is a political concept,
embodied in a political document [the Constitution] that defines the political system of
the United States. Religious freedom arises in this country from the Bill of Rights. It is
one of the quintessential political issues contained in that document.
SMART may constitutionally limit political messages on its buses, as recognized
by this Court. Where the parties agree that the message is political, and where the
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message, even as defined subsequently by Plaintiffs’ counsel, is quintessentially
political, SMART may constitutionally bar its posting.
Contrast the “atheist advertisement” that Plaintiffs want to focus their efforts on.
That message “Don’t Believe in God? You are not alone.” did not express a “religious
freedom” message at all. It sought like-minded people to join together in a fashion not
unlike a Roman Catholic parish inviting Roman Catholics to an Easter celebration. The
message was purely religious in nature.1
Plaintiffs also err in defining how the decision was made relative to this
advertisement, and in labeling the process as arbitrary and capricious. There was
limited testimony about the process that was undertaken in determining that this ad was
political, and Beth Gibbons testified that the decision was made based upon what had
occurred involving the Miami-Dade Transit Authority. The questioning of Ms. Gibbons in
this regard was incomplete, because Plaintiffs now assert that the only action taken by
Ms. Gibbons was that she reviewed a newspaper article concerning the Miami-Dade
Transit controversy.
This is not a valid conclusion based upon the content of the testimony provided.
Further, it is not complete.
In SMART’s original Response to Plaintiffs’ Motion for a Preliminary Injunction,
SMART set forth:

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Notwithstanding the characterization of the “atheist advertisement” as anti-religious on the website of the Thomas
More Law Center (here), the message is a simple message of atheism, which is a -theism in itself. “Atheism” is no
more or less a religious concept than “monotheism” or “polytheism.” It appears that it is just not their theism, and so it
is labeled as anti-religion.
http://www.thomasmore.org/qry/page.taf?id=19&_function=detail&sbtblct_uid1=893&_nc=ba455ed4516587f0608d56
783071908b

2

On or about May 12, 2010, Plaintiff Geller contacted CBS Sales Manager
Robert Hawkins regarding the potential posting of advertisements on
SMART buses. The advertisement proposed by Defendants states
“Fatwa on your head? Is your family or community threatening you?
LEAVING ISLAM? Got questions? Get answers! RefugefromIslam.com”.
As set forth in the contract, having determined that the advertising was a
likely violation of the contract’s content policy, CBS contacted SMART
requesting a final determination. SMART Marketing Manager Beth
Gibbons reviewed the proposed advertisement and discussed it with staff
giving a careful consideration. SMART determined that the proposed
advertisement violated at least two enumerated prohibitions within the
content policy…SMART therefore rejected the proposed advertisement.
(Defendants’ Response to Plaintiffs’ Motion for Preliminary Injunction, at pp. 6-7). This
description is supported by the affidavits of Robert Hawkins and Beth Gibbons as
attached to the Response.
When Beth Gibbons was notified by CBS of the potential violation of the policy,
Ms. Gibbons was already familiar with the issue because of an industry-wide listserv
that discussed the matter. The listserv messages and newspaper article had alerted her
that a political campaign was being rolled out by Plaintiffs. In light of this, she contacted
other staff at SMART for their input and review. These included individuals in SMART’s
General Counsel’s office, as well as the General Manager, John Hertel. After a
considered review, and after contacting the Miami-Dade Transit Authority as part of that
review, SMART continued investigating the intent of the message through internet
research. After this full investigation, the General Manager, John Hertel, decided that
the ad was violative of the content restriction policy and would not be allowed.
The above shows a significantly detailed and considered review of Plaintiffs’
proposed advertisement, and belies any argument that SMART’s actions were in any
way arbitrary or in any way capricious.

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This Court criticized SMART by stating it had no written guidelines, policies or
procedures for evaluating the political content of a proposed advertisement. While it is
true that there are no written guidelines, no written policies and no written procedures,
there is no reason why such policies or procedures would be required if SMART made
their decisions in a considered fashion. It should be noted, however, that SMART only
addresses this issue begrudgingly, since the analysis of the application of guidelines to
this advertisement is of no moment in light of the fact that both parties have made
binding statements that the ad represents a political message.
Defendants’ decision was viewpoint-neutral. SMART does not agree or disagree
with the Plaintiffs’ message, and takes no position whatsoever on the viewpoint
contained in the advertisement. If the advertisement was pro-Islam yet was political or
scornful in nature, it would still be violative of the policy and barred. There is nothing
about the Plaintiffs’ viewpoint that formed a basis for SMART’s decision,
notwithstanding Plaintiffs’ protestations.
The scornful nature of the advertisement is also apparent. Its very formatting is
intended to parody and denigrate the format of an already-existing pro-Islamic
message. The original message parodied follows:

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Plaintiffs’ message clearly mocks this prior message from ICNA and demonstrates
exactly what they are trying to do with their message. Plaintiffs cannot escape the fact
that they intend to mock and scorn Islam and Muslims.
Defendants have shown in their original motion that they would be irreparably
harmed through the evisceration of their appeal rights if this Court moots the issues by
failing to enter a stay, and have demonstrated to this Court why the availability of other
means to convey the message precludes a finding of irreparable harm to the Plaintiffs.
In addition, Defendants have also shown in their original motion that the public interest
lies in staying the matter because of the potential of harm to SMART, its employees and
equipment.
WHEREFORE, Defendants respectfully request that this Court grant their Motion
to Stay the Injunction entered by this Court pending an appeal, together with costs and
attorney’s fees wrongfully incurred.
VANDEVEER GARZIA

By: /s/ Christian E. Hildebrandt__________
JOHN J. LYNCH P16887
CHRISTIAN E. HILDEBRANDT P46989
Attorneys for Defendants
1450 W. Long Lake Rd., Ste. 100
Troy, MI 48098-6330
[phone]
Dated: May 10, 2011

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
AMERICAN FREEDOM DEFENSE
INITIATIVE, PAMELA GELLER, and
ROBERT SPENCER,
Plaintiffs,
Case 2:10-cv-12134
HON. DENISE PAGE HOOD

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 (P62849)
Richard Thompson (P21410)
Co-Counsel for Plaintiffs
24 Frank Lloyd Wright Drive
P.O. Box 393
Ann Arbor, MI 48106
[phone]
[e-mail]

SMART
Avery E. Gordon (P41194)
Anthony Chubb (P72608)
Co-Counsel for Defendants SMART,
Hertel and Gibbons
535 Griswold Street, Suite 600
Detroit, MI 48226
[phone]
[e-mail]
[e-mail]

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

VANDEVEER GARZIA, P.C.
John J. Lynch (P16887)
Christian E. Hildebrandt (P46989)
Co-Counsel for Defendants SMART,
Hertel and Gibbons
1450 W. Long Lake Road, Suite 100
Troy, MI 48098
[phone]
[e-mail]
[e-mail]

PROOF OF SERVICE

The undersigned certifies that a copy of REPLY BRIEF IN SUPPORT OF
DEFENDANTS’ MOTION FOR STAY OF ORDER GRANTING PLAINTIFFS’
PRELIMINARY INJUNCTION [Docket No. 24] PENDING APPEAL was served upon the

attorneys of record of all parties to the above cause by the method(s) indicated below
on May 10, 2011.

_____ U.S. Mail
_____ FAX
_____ Hand Delivered
_____ UPS
_____ Overnight Delivery Service
_____ E-Mail
__X__ Electronic Notification Via the Court’s CM/ECF System
/S/ Christian E. Hildebrandt_____________
CHRISTIAN E. HILDEBRANDT

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