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

Filing 34

TRANSCRIPT of Motion for Preliminary Injunction held on 07/13/2010. (Court Reporter/Transcriber: Cheryl E. Daniel) (Number of Pages: 75) (Appeal Purposes) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 8/3/2011. Redacted Transcript Deadline set for 8/15/2011. Release of Transcript Restriction set for 10/11/2011. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Daniel, C.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF MICHIGAN

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SOUTHERN DIVISION

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AMERICAN FREEDOM DEFENSE

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INITIATIVE; PAMELA GELLER;

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and ROBERT SPENCER,

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Plaintiffs,

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-v-

Case No.

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SUBURBAN MOBILITY AUTHORITY

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for REGIONAL TRANSPORTATION

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(SMART); GARY L. HENRICKSON,

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individually and in his official

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capacity as Chief Executive of

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SMART;

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JOHN HERTEL, individually and in

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his official capacity as

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General Manager of SMART;

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and BETH GIBBONS, individually and

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in her official capacity as

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Marketing Program Manager of

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10-12134

SMART,

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Defendants.
___________________________/

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(APPEARANCES CONTINUED)

AFDI, et al v SMART - Case No. 10-12134

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MOTION FOR PRELIMINARY INJUNCTION
BEFORE THE HONORABLE DENISE PAGE HOOD

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United States District Judge

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237 U.S. Courthouse and Federal Building

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231 Lafayette Boulevard West

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Detroit, Michigan 48226

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Tuesday, July 13, 2010

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APPEARANCES:

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FOR THE PLAINTIFFS:

ROBERT J. MUISE,

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THOMAS MORE LAW CENTER

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24 FRANK LLOYD WRIGHT DR.

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ANN ARBOR, MI 48106

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And

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DAVID YERUSHALMI,

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1892 W THOMPSON WAY

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CHANDLER, AZ 85246

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FOR THE DEFENDANTS:

ANTHONY CHUBB,

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ASSISTANT GENERAL COUNSEL

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AVERY E. GORDON,

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GENERAL COUNSEL

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SMART

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660 WOODWARD AVENUE

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SUITE 900

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DETROIT, MI 48226

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AFDI, et al v SMART - Case No. 10-12134

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I N D E X

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PRELIMINARY MATTERS

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PAGE
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MOTION FOR TEMPORARY RESTRAINING ORDER

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BETH ANN GIBBONS

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DIRECT EXAMINATION BY MR. YERUSHALMI

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CROSS EXAMINATION BY MR. GORDON

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REDIRECT EXAMINATION BY MR. YERUSHALMI

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PAMELA GELLER

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DIRECT EXAMINATION BY MR. YERUSHALMI

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CROSS EXAMINATION BY MR. GORDON

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REDIRECT EXAMINATION BY MR. YERUSHALMI

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ARGUMENT BY MR. MUISE

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RESPONSE BY MR. GORDON

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REBUTTAL BY MR. MUISE

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E X H I B I T S

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AFDI, et al v SMART - Case No. 10-12134

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Tuesday, July 13, 2010

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Detroit, Michigan

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THE CLERK:

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American Freedom versus Suburban Mobility Authority.

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THE COURT:

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Good afternoon.

Plaintiffs, put

your appearances on, and then the Defendants.

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Calling case number 10-12134,

MR. MUISE:

Good afternoon, Your Honor.

Robert Muise from the Thomas Moore Law Center for the
Plaintiffs.

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MR. YERUSHALMI:

Good afternoon, Your Honor.

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David Yerushalmi for the Plaintiffs.

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MR. GORDON:

Good afternoon, Your Honor.

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Avery Gordon on behalf of Defendants SMART, Gibbons and

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Hertel.

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MR. CHUBB:

Good afternoon, Your Honor.

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Anthony Chubb also on behalf of Defendants SMART, Hertel

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and Gibbons.

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THE COURT:

Are we expecting someone

different relative to Gary Hendrickson?
MR. GORDON:

If I may, Your Honor, Avery

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Gordon for Defendants.

There is no one that we know who

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knows who that is.

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certainly part of the organization or as I mentioned

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anybody that the SMART staff knows of.

And Mr. Hendrickson is not now

AFDI, et al v SMART - Case No. 10-12134

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THE COURT:

Then I am ready to proceed.

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This is a Motion for Preliminary Injunction.

The Court

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received a Motion that was a Motion for Temporary

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Retraining Order and a Motion for Preliminary Injunction

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and found that the Motion for Temporary Restraining

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Order --

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stated in its Opinion, but I set it for a hearing on the

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Motion for Preliminary Injunction, and so I'm ready to

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proceed on that if you're ready.

well, the Court denied it for the reason it

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MR. MUISE:

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MR. GORDON:

Plaintiffs are, Your Honor.
We are, Your Honor, although

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there is one preliminary matter that the Defendants

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would like to take up with the Court.

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THE COURT:

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MR. GORDON:

Okay.
Your Honor, of course we met

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and over the phone with Plaintiffs' Counsel prior to the

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submission of the stipulation as the Court ordered.

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But Your Honor, we believe that this Motion

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can be decided on the pleadings and the exhibits alone;

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both the Complaint, the Motion for Preliminary

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Injunction; the Defendant's Response to it, as well as

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the Plaintiffs' reply, all of the Exhibits and

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Declarations that were attached to those materials.

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We would ask the Court to reconsider its
request of the parties and at the very least to perhaps

AFDI, et al v SMART - Case No. 10-12134

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try and provide some guidelines for the nature and

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extent of the testimony to be elicited.

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THE COURT:

I'm not exactly sure what you're

asking.
MR. GORDON:

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What I'm suggesting, Your

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Honor, is that the taking of testimony this afternoon,

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the Defendants believe, is unnecessary and we would ask

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the Court to reconsider its request of the parties to

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provide that.

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We believe that Ms. Geller, for example, has

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had three bites at the apple, to use the popular

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colloquialism.

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the opportunity to say what she will as well as in her

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Motion.

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response -- I'm sorry, the Defendants' response to the

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Plaintiffs' Motion, Ms. Geller also filed a reply.

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her testimony today could only be duplicative of what

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she has already provided or will do little more than

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provide a soapbox for her political pronouncements.

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First, as part of her Complaint, she had

And then after receiving the Plaintiffs'

And

In my conversation with Mr. Yerushalmi on

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Thursday of last week, his intention, I was advised, of

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calling the SMART staff, the SMART witnesses, was simply

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because he wanted an opportunity to talk to the

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decisionmaker, and as such, Ms. Gibbons' testimony would

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be unnecessary, Mr. Hawkins' testimony would be

AFDI, et al v SMART - Case No. 10-12134

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unnecessary.

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We would ask the Court, as I said, to

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reconsider the taking of testimony this afternoon and

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allow the parties to argue the preliminary injunction

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motions on the pleadings, briefs and exhibits alone.

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THE COURT:

As you know, I'm not in my

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regular courtroom, and I thought you all had filed a

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witness list, did you?

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MR. GORDON:

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THE COURT:

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didn't bring over the entire file.

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MR. GORDON:

May I see a copy of it?

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Permission to approach, Your

Honor?

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Yes, Your Honor.

THE COURT:

Yes.

I thought I could get by

without getting the whole file.

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MR. GORDON:

This is what was filed, but the

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parties have made some minor revisions that we have

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agreed to.

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But as I mentioned, Your Honor --

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THE COURT:

(Interposing) I know what your

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argument is, I just want to --

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Geller, Ms. Gibbons or Mr. Hertel need to be called?

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MR. GORDON:

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THE COURT:

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so you don't think Ms.

Correct, Your Honor.
And the other people that are

listed as rebuttal are Ms. Dryden and Mr. Hawkins; is

AFDI, et al v SMART - Case No. 10-12134

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that correct?

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MR. GORDON:

That's correct, Your Honor.

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MR. YERUSHALMI:

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THE COURT:

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MR. YERUSHALMI:

Your Honor, if I may?

You may.
If Ms. Gibbons is going to

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testify as we have stipulated subsequent to the filing

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of the Joint Witness List, we have signed additional

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stipulations as the authorized representative of SMART,

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the likelihood is we do not need to call Mr. Hertel, and

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the likelihood is we would not need to call Ms. Dryden

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or Mr. Hawkins and that is why they're only listed as

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rebuttal witnesses.

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But there are important parts of the

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decision-making process at SMART that are not before the

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Court that is important that we elicit through

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testimony.

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testimony especially with regard to the Atheist Ad that

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was run and the controversy surrounding that, and the

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decision-making process regarding SMART's decision to

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have that ad run in fact to replace that ad.

And that is the purpose of Ms. Gibbons's

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MR. GORDON:

May I respond, Your Honor?

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THE COURT:

Can I ask a question first?

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MR. GORDON:

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THE COURT:

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Of course.

I apologize.

So you're saying you don't need

to call Mr. Hertel, Ms. Dryden or Mr. Hawkins?

AFDI, et al v SMART - Case No. 10-12134

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MR. YERUSHALMI:

If Ms. Gibbons can continue

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to testify on behalf of SMART relative to her

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Declaration, I'm fine with her.

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THE COURT:
right?

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MR. GORDON:

Your Honor, I believe that this

is an attempt --

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You accept at least that much,

THE COURT:
accept that much?

(Interposing) First, do you

Do you agree that probably Ms.

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Gibbons is not going to testify any differently than her

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Declaration?

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MR. GORDON:

I can assure the Court of that,

Your Honor.
THE COURT:

So then I think what Opposing

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Counsel is saying is that if she is going to testify

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relative to her Declaration that he does not perceive a

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need to call Mr. Hertel, Ms. Dryden or Mr. Hawkins.

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MR. GORDON:

And yet, Your Honor, this is

only proof -THE COURT:

(Interposing) I want to get

those three out of the way, if I could, Counsel.

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Are you in agreement with that?

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MR. GORDON:

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THE COURT:

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MR. GORDON:

I am, Your Honor.
Are they here?
Yes, Your Honor.

All of the

AFDI, et al v SMART - Case No. 10-12134

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witnesses are in the courtroom as we speak.

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THE COURT:

And so they could be excused if

you want, right?

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MR. YERUSHALMI:

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THE COURT:

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Of course they're welcome to

stay, but --

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MR. GORDON:

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THE COURT:

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Yes, Your Honor.

Pardon me?
They are welcome to stay, Mr.

Hertel, Ms. Dryden and Mr. Hawkins, but they do not

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anticipate that they will need to call them as

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witnesses.

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permitted to be excused.

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So if they want to be excused, they're
That's up to them and you.

Now, relative to Ms. Geller and Ms. Gibbons,

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I don't really need to hear their testimony relative to

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statements that they have already made or the

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identification of exhibits because I don't think there

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is a dispute about that, is there?

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MR. GORDON:

No, Your Honor.

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MR. YERUSHALMI:

No, Your Honor.

In fact,

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we had no intention of examining them on those grounds,

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and indeed, in our witness list we have joint

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stipulations already filed with the Court where all the

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exhibits that have been filed with the Court are already

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in the foundation laid, et cetera.

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In addition to that, and we have before the

AFDI, et al v SMART - Case No. 10-12134

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Court today additional stipulations as to law and fact,

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if I may?

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THE COURT:

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MR. GORDON:

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You may.
Your Honor, may I address the

issue that is on the floor right now?
THE COURT:

You don't want me to see these

stipulations?
MR. GORDON:

No, if the Court will be

proceeding as it directed the parties, Mr. Yerushalmi

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and I have agreed to those stipulations.

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I am good with that under any set of circumstances.

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THE COURT:

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through 3 but not 4; is that right?

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MR. GORDON:

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THE COURT:

And in fact,

And let me ask, they are 1

Yes, Your Honor.
And as well as the Exhibits that

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are in document 15, which I just gave back to you.

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get another copy of it.

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MR. GORDON:

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THE COURT:

I'll

That is correct, Your Honor.
And with the caveat that Ms.

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Geller and Ms. Gibbons not be asked questions that are

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already part of the record as their statement, I think

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we should go ahead and proceed.

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MR. GORDON:

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This is proof that we just need discovery in

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Your Honor, if I may?

this case, and the Court is asking the parties to try

AFDI, et al v SMART - Case No. 10-12134

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these important issues without the benefit of that

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discovery.

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and decided, as I say, on the pleadings and briefs and

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the exhibits that have been attached to those pleadings

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and papers filed with the Court.

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That is why I think this Motion can be heard

THE COURT:

I'm not expecting that this will

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be a discovery deposition, Counsel, I expect that this

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will be only as to the elements of the Preliminary

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Injunction.

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MR. YERUSHALMI:
Honor.

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That is our intention, Your

MR. GORDON:

Very good, thank you, Your

THE COURT:

And in the event it starts to

Honor.

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15

sound like a discovery deposition, Counsel, you should

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re-raise your objection, okay.

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MR. GORDON:

Very good, thank you, Your

Honor.
THE COURT:

So your objection is granted in

part and denied in part, and I'm ready to proceed.
MR. YERUSHALMI:

Plaintiffs will call Ms.

Gibbons to the stand.
THE WITNESS:

My name is Beth Ann Gibbons;

G I B B O N S.
B E T H

A N N

G I B B O N S, after being

AFDI, et al v SMART - Case No. 10-12134

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first duly sworn, was examined under her oath and

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testified as follows:

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D I R E C T
BY MR. YERUSHALMI:
Q.

Ms. Gibbons, you understand you're testifying on

behalf of SMART, correct?
A.

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E X A M I N A T I O N

Yes.
MR. YERUSHALMI:

Witness, Your Honor.

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THE COURT:

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MR. YERUSHALMI:

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May I approach the

You may.
Would the Court like a

copy?

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THE COURT:

Well, I don't know what it is.

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It it a document already attached?

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MR. YERUSHALMI:

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THE COURT:

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MR. YERUSHALMI:

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THE COURT:

Yes.

Is it Exhibit G?
It is Exhibit G.

And I don't think I need another

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copy of it if you're following the same exhibit numbers

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as your attachments, you just need to identify what it

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is attached to so the record will be clear.

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And I think that G is attached to your --

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MR. YERUSHALMI:

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THE COURT:

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Pamela Geller Declaration.

I have it as Exhibit G to your

Motion for Temporary Restraining Order or Preliminary

AFDI, et al v SMART - Case No. 10-12134

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Injunction.

And in that Table of Contents, it is listed

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as Atheist Bus Advertisement?

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MR. YERUSHALMI:

Yes, Your Honor.

BY MR. YERUSHALMI, CONTINUING:
Q.

Could you take a look at what has been handed to

6

you as Exhibit G on the first page.

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Are you familiar

with this advertisement?

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A.

Yes.

9

Q.

Could you describe it, please?

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A.

It is an ad that says, "Don't believe in God?

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You're not alone.
Q.

DetroitCoR.org."

This is the ad that ran on SMART buses in

February/March of 2010?

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A.

Yes.

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Q.

And when SMART reviewed this ad to determine

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whether it satisfied its advertising policies,

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guidelines and procedures, it determined that this ad

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was in compliance, correct?

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A.

Yes.

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Q.

When SMART determined that this ad was in

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compliance with its advertising policies, guidelines and

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procedures, it examined just the ad copy and the

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artwork, correct?

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A.

Yes.

25

Q.

It didn't look to things extrinsic to the

AFDI, et al v SMART - Case No. 10-12134

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advertising itself to determine that?

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A.

Correct.

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Q.

SMART determined that this advertising copy was

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not political?

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A.

Correct.

6

Q.

And it determined that it was not scornful or

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disparaging of Christians, Jews or Muslims or any other

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groups?

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A.

No.

10

Q.

SMART further determined that this ad was purely

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religious?

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A.

Yes.

13

Q.

After this ad ran on the SMART buses, were they

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subject to vandalism?

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A.

Yes.

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Q.

Were they subject to extensive vandalism?

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A.

I don't know what that means.

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Q.

There was more than one ad that was vandalized?

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A.

Yes.

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Q.

And fact, one ad was scratched where it says,

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"Don't believe in God?" On this particular exhibit, the

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"Don't" is scratched out?

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A.

Yes.

24

Q.

And there was another instance where the "Don't"

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was ripped off?

AFDI, et al v SMART - Case No. 10-12134

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A.

Yes.

2

Q.

Were there other instances of vandalism?

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A.

Not that I'm aware of.

4

Q.

And after this vandalism, there was quite a local

5

controversy in the media?

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A.

Yes.

7

Q.

After the controversy and all the media

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surrounding the vandalism of the "Don't believe in God?"

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Ad, SMART took a decision that it was going to replace

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the ads and put them back on the buses?

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A.

No.

12

Q.

Did SMART make a decision to repair the ads that

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had been vandalized?

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A.

No.

15

Q.

The ads that were vandalized were left on the

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buses as is?

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A.

No.

18

Q.

What happened to those ads?

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A.

They were replaced with CBS Outdoor made that

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decision.

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MR. YERUSHALMI: May I approach, Your Honor?

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THE COURT:

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Yes, you may.

BY MR. YERUSHALMI, CONTINUING:
Q.

I've handed you what has been marked as Exhibit B

to the Pamela Geller Declaration filed in support of the

AFDI, et al v SMART - Case No. 10-12134

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Motion for Preliminary Injunction.

2

Do you see the ad on

the second page?

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A.

Yes.

4

Q.

This is the ad that the Plaintiff submitted for

5

approval by SMART?

6

A.

Yes.

7

Q.

SMART determined that this particular ad violated

8

its policies and guidelines?

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A.

Yes.

10

Q.

And it determined that it was not purely

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religious?

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A.

Yes.

13

Q.

And they determined that it was political in

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nature?

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A.

Yes.

16

Q.

And further determined that it held a group of

17

people up to scorn and disparagement?

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A.

Right.

19

Q.

There are, in fact, no policies written or

20

available elsewhere by SMART that provide you with the

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-- strike that.

22

Beyond the ad guidelines that are provided

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in the contract between SMART and CBS Outdoor and the ad

24

guidelines that are provided on the Web site of SMART

25

that have been entered into the record, are there any

AFDI, et al v SMART - Case No. 10-12134

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other written guidelines or policies or manuals

2

available?

3

A.

No.

4

Q.

In what way is the ad before you that was

5
6

provided by my clients political?
A.

It was determined not --

it was not based on the

7

content, it was based on the knowledge of what had

8

happened in Miami with Miami Dade Transit that declared

9

it political.

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11

Q.

So when you examined this ad, there was nothing

about the ad itself that was political?

12

A.

Correct.

13

Q.

It was nothing about this ad itself that

14

disparages or scorns any particular people?

15

A.

No, it was not political than in the content.

16

Q.

I'm not sure I understand that.

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19

There is nothing in the ad that disparages
or scorns any particular people?
A.

Correct, yes.

I'm not sure.

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THE COURT:

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THE WITNESS:

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THE COURT:

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25

Correct what?
I'm not sure.
You're not sure whether it

scorns any particular people; is that your answer?
THE WITNESS: Right.
BY MR. YERUSHALMI, CONTINUING:

AFDI, et al v SMART - Case No. 10-12134

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Q.

On the face of this ad, the content in this ad,

2

what makes it political and the atheist ad that we

3

looked at earlier not political?

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5

THE COURT:
question.

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7

Well, that is a compound

MR. YERUSHALMI:

I'm sorry, Your Honor.

Strike the question.

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I believe we're done for now, Your Honor.

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THE COURT:

10

This is the now.

This is the

time you have to examine.

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MR. YERUSHALMI:

May I have a second?

12

THE COURT: Yes.

13

(Whereupon Mr. Muise and Mr. Yerushalmi

14

confer.)

15

BY MR. YERUSHALMI, CONTINUING:

16
17

Q.

When the atheist ad that we looked at earlier was

put back up by CBS Outdoor, who paid for that?

18

A.

CBS Outdoor.

19

Q.

And that was agreeable to SMART?

20

A.

We had no knowledge of it at the time.

21

Q.

But you agreed that the ad, notwithstanding the

22

controversy, should continue?

23

A.

It was part of the contract.

24

Q.

Did not violate any policy, advertising policy or

25

guideline with SMART?

AFDI, et al v SMART - Case No. 10-12134

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A.

No.

2

Q.

Where in the SMART guidelines and policies and

3

procedures does it spell out the distinction between a

4

political ad and a nonpolitical ad?

5

A.

It is in Section 5.07(B).

6

THE COURT:

7

THE WITNESS:

8

MR. YERUSHALMI:

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"B", as in boy, where we have

advertising guidelines.

9

11

You said 5.07(D)

THE COURT:

May I approach, Your Honor?

You may.

BY MR. YERUSHALMI, CONTINUING:
Q.

I've handed you what has been marked as Exhibit A

13

to your Opposition Brief to the Motion.

14

Do you

recognize this document?

15

A.

Yes.

16

Q.

In fact, this is the Section of the SMART CBS

17

Outdoor contract that you were referring to earlier,

18

5.07(B), correct?

19

A.

Yes.

20

Q.

Can you point to me the language that indicates

21

the distinction between a political ad and a

22

nonpolitical ad?

23

A.

We have a listing of five categories of

24

advertising.

Political or political campaign

25

advertising is one of those.

Is not allowed.

Offers

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21

1

are not allowed for political or political campaign

2

advertising.

3
4

Q.

If I may ask the Witness to just raise your

voice.

5

A.

I'm sorry.

6

Q.

Are you referring to Subsection (B)(1)?

7

A.

Yes.

8

Q.

(B)(1) merely states:

9

"Political or political campaign

10

advertising."

11

A.

Yes.

12

Q.

Where in the SMART guidelines, policies and

13

procedures does it distinguish between that which is

14

political and that which is not political?

15

A.

I'm not sure I understand what you're asking.

16

Q.

You testified earlier that the Atheist Ad was

17

purely religious and was not political.

Yes?

18

A.

Yes.

19

Q.

And the Atheist Ad took certain positions

20

relative to people's belief in God or nonbelief in God?

21

A.

Yes.

22

Q.

You indicated that the Plaintiffs' ad that was

23

handed to you earlier on "Leaving Islam" was, in fact, a

24

political ad?

25

A.

Yes.

AFDI, et al v SMART - Case No. 10-12134

22

22

1

Q.

I'm simply trying to understand what were the

2

policy guidelines, procedures used by SMART to

3

distinguish between the earlier ad, the Atheist Ad being

4

nonpolitical and this ad being political?

5

MR. GORDON:

Your Honor, I object.

This

6

assumes facts not in evidence specifically that the

7

policy in some fashion explains the difference between

8

what is a political ad and not a political ad.

9
10

THE COURT:

That's what he is asking,

whether it does.

11

Aren't you asking that?

12

MR. YERUSHALMI:

13

THE COURT:

14

Yes, Your Honor.

Do you understand what the

question is?

15

THE WITNESS:

Now I do, thank you.

16

Each ad is looked at with -- on its own

17

against this policies.

18

made that this was a political ad.

19

it fell into this guideline that we do not allow

20

political and political campaign advertisement.

21

BY MR. YERUSHALMI, CONTINUING:

22

Q.

And so the determination was
That it did not or

So in fact, there is no policy or guideline or

23

training manual or anything else that would set out why

24

this is political and the Atheist Ad is not political?

25

A.

Right.

AFDI, et al v SMART - Case No. 10-12134

23

23

1
2

MR. YERUSHALMI:
Your Honor.

3
4

I have nothing further,

THE COURT:

Your Colleague is standing

again.

5

(Whereupon Mr. Muise and Mr. Yerushalmi

6

confer.)

7

BY MR. YERUSHALMI, CONTINUING:

8
9
10

Q.

I just want to confirm that Islam as content for

an ad is acceptable religious content according to
SMART's policies and guidelines?

11
12

THE COURT:

15
16
17

MR. YERUSHALMI:

Q.

The ad before you is relating to Islam in some

fashion, right?
A.

Yes.
THE COURT:

19

MR. YERUSHALMI:

20

THE COURT:

22

Let me retry.

BY MR. YERUSHALMI, CONTINUING:

18

21

well, I'm not sure I

understand your question.

13
14

I don't --

And you're referring to B?
I'm referring to Exhibit B.

Okay.

Proceed.

BY MR. YERUSHALMI, CONTINUING:
Q.

I just want to confirm that Islam is not a

23

forbidden content and that it is a religious content and

24

religious content is permitted by SMART?

25

A.

Yes.

AFDI, et al v SMART - Case No. 10-12134

24

24

1

MR. YERUSHALMI:

2

THE COURT:

3

MR. GORDON:

4

C R O S S

5
6

No further questions.

Do you have any questions?
Yes, Your Honor.
E X A M I N A T I O N

BY MR. GORDON:
Q.

Ms. Gibbons, Mr. Yerushalmi asked you one or two

7

questions about the Pinckney Pro-life ad; do you recall

8

that just a few moments ago?

9

A.

No.

10

Q.

Tell me, you're familiar with the Pinckney

11

Pro-life ad, are you not?

12

A.

Yes.

13

Q.

And Your Honor, that was attached as Exhibit B to

14

Defendant's Response to Plaintiffs' Motion for

15

Preliminary Injunction.

16

Can you tell me, please, Ms. Gibbons, when

17

that ad was posted, had you been aware of any

18

controversy related to it?

19

A.

The Pinckney Pro-life ad was not posted.

20

Q.

And that was because of why?

21

A.

Because it was determined to be political.

22

Q.

And Mr. Yerushalmi was asking you about the

23

Atheist Awareness ad?

24

A.

Yes.

25

Q.

And can you tell me were you aware of any

AFDI, et al v SMART - Case No. 10-12134

25

25

1

controversy relating to that ad prior to the ad being

2

submitted for posting?

3

A.

No.

4

Q.

At some point FDI submitted an ad by way of CBS;

5

is that correct?

6

A.

Yes.

7

Q.

And can you tell me at the time that you received

8

that ad, had you been made aware of any controversy, any

9

political issue relating to that ad?

10

A.

Yes.

11

Q.

And how did you become aware of that?

12

A.

I received an electronic newsletter called,

13

"Transportation Communications Newsletter" and that

14

lists our various articles or informational documents on

15

topics on alternate transportation.

16

particular issue that I received, there was an article

17

from the Miami Herald on the Miami Dade Transit issue

18

with the Islam ads.

19
20

Q.

I have a copy of that, may I approach, Your

Honor?

21
22

THE COURT:

25

You may.

And have you shown

this to Opposing Counsel?

23
24

And in that

MR. GORDON:

I have.

And I have a copy for

him as well.
THE COURT:

And this consists of two pieces?

AFDI, et al v SMART - Case No. 10-12134

26

26

1

MR. GORDON:

2

THE COURT:

3

Let's mark them so we will have

a way of referring to them on the record.

4
5

Yes, Your Honor.

What exhibit number are you at at the end of
your pleadings?

Is it H?

6

MR. GORDON:

7

THE COURT:

8

MR. GORDON:

9

THE COURT:

10

I believe that is correct.
So we're marking them I?
Yes, Your Honor.
And J.

You don't have any objection to them being

11

marked I and J, right?

12

MR. MUISE:

13

THE COURT:

14
15
16

No objection, Your Honor.
Alright, thank you.

BY MR. GORDON, CONTINUING:
Q.

Ms. Gibbons, attached is the Miami Herald article

that the link refers to, is it not?

17

A.

Yes.

18

Q.

The Court will not hold you to the details, but

19

can you tell us approximately how far in advance of your

20

receipt of the proposed advertisement on SMART buses

21

that you became aware of this controversy?

22
23

A.

About a day after I received the Transportation

Communications Newsletter.

24

THE COURT:

25

THE WITNESS:

I'm not sure when that is.
About April 17th I became

AFDI, et al v SMART - Case No. 10-12134

27

27

1

aware of it.

2
3

THE COURT:
article?

4
5
6

Of the issue in the news

THE WITNESS:

Correct.

BY MR. GORDON, CONTINUING:
Q.

I would like to change topics now, Ms. Gibbons,

7

and ask you one or two questions following up on a

8

question that Mr. Yerushalmi asked you regarding the

9

political content of the FDI ad.

10

In both reading the controversy surrounding

11

the Miami Dade Transit issue, can you tell us whether

12

you were able to determine that the FDI ad was

13

political?

14

A.

I knew that it was of concern in that there is

15

controversy on both sides of the issue on whether they

16

should be posted or shouldn't be posted.

17
18

Q.

I see.
Did you have reason to believe that the

19

presentation of the ad to SMART was a continuation of

20

the political controversy and the political campaign

21

that was begun at the Miami Dade Transit property?

22
23
24
25

MR. YERUSHALMI:

Objection, Your Honor,

misstates the testimony and no foundation.
THE COURT: I think you need to phrase it so
it is not leading.

You may rephrase your question.

AFDI, et al v SMART - Case No. 10-12134

28

28

1
2
3

MR. GORDON:

Thank you, Your Honor.

BY MR. GORDON, CONTINUING:
Q.

Ms. Gibbons, what did you learn, if anything,

4

about FDI's intention following their efforts in

5

Florida?

6
7

MR. YERUSHALMI:
speculation.

8
9

Objection, calls for

THE COURT:
speculation.

10

No, I don't think it calls for

Overruled
THE WITNESS:

They were --

that it was an

11

issue that they were carrying forward into the Detroit

12

market.

13

BY MR. GORDON, CONTINUING:

14
15
16

Q.

Did you learn of any other markets they might be

going into?
A.

Not that I'm aware of.

17

MR. GORDON:

18

THE COURT:

19

MR. GORDON:

20

No other questions, Your Honor.
Any other questions?
Your Honor, I'm sorry, can the

Court indulge me for just one moment?

21

THE COURT:

Yes, you may.

22

Do you have any follow-up questions?

23

MR. YERUSHALMI:

24

THE COURT:

25

R E D I R E C T

Redirect, Your Honor?

Yes.
E X A M I N A T I O N

AFDI, et al v SMART - Case No. 10-12134

29

29

1
2

BY MR. YERUSHALMI:
Q.

After the controversy relating to the Atheist Ad

3

that we looked at earlier, you added some material to

4

your Web site titled, "Advertise with SMART"?

5
6
7
8
9

A.

That page was always there -- yes, you're right,

I'm sorry.
Q.

In other words, you added information related to

the advertising guidelines?
A.

Right.

We clarified that we did not arbitrarily,

10

you know, make decisions on what ads can be placed and

11

not placed on our buses and that we do have advertising

12

guidelines that we review.

13

Q.

And other than the advertising information the

14

guidelines provided on the Web site, and other than the

15

contract that we looked at earlier, Section 5.07, there

16

are no other written guidelines, policies or manuals

17

available?

18

A.

No.

19

Q.

You testified regarding the placement of ads by

20

my clients in Miami Dade; do you recall?

21

A.

Yes.

22

Q.

You indicated that as a result of a newspaper

23

article, you determined at that time my client's ad was

24

political?

25

A.

That it was a political issue, yes.

AFDI, et al v SMART - Case No. 10-12134

30

30

1

Q.

You had already testified earlier that the

2

content was not political but that you looked at what

3

occurred in Miami?

4

A.

Correct.

5

Q.

And all you know about what occurred in Miami is

6

the article that you looked at earlier that you

7

referenced?

8

A.

Yes.

9

MR. YERUSHALMI:

I have nothing further.

10

MR. GORDON:

Nothing further, Your Honor.

11

THE COURT:

You may step down, thank you.

12

MR. YERUSHALMI:

13

I would like to call Pamela

Geller.

14

P A M E L A

G E L L E R, after being first

15

duly sworn, was examined under her oath and testified as

16

follows:

17
18

D I R E C T

E X A M I N A T I O N

BY MR. YERUSHALMI:

19

Q.

You're one of the Plaintiffs in this action?

20

A.

I am.

21

Q.

And you're the Director of American Freedom

22

Defense Initiatives?

23

A.

Executive Director.

24

Q.

Why did you run the ad which is the subject of

25

this litigation?

AFDI, et al v SMART - Case No. 10-12134

31

31

1

A.

I ran the ad in defense of religious liberty.

2

Q.

And could you explain what you mean by religious

3

liberty?

4

A.

Well, I have been an investigative journalist, a

5

published author.

6

for the past eight years, has been Islam, and I saw an

7

increasing trend --

8
9
10

The field of my study, intense study

MR. GORDON:
we're going to object.

(Interposing) Your Honor,
Ms. Geller's intent on why she

would run the ad is really irrelevant I think.

11

THE COURT:

Counsel?

12

MR. YERUSHALMI:

Your Honor, if the

13

Defendants are prepared to concede that all of the

14

earlier testimony by Ms. Gibbons regarding the intent

15

and what took place not within the content, the four

16

corners of the ad itself, then we don't need to get into

17

this.

18
19

THE COURT:

I don't know what you mean by

that.

20

Do you know what he means by that?

21

MR. GORDON:

22
23

No.

And I don't believe Ms.

Gibbons testified to intent.
MR. YERUSHALMI:

Your Honor, earlier

24

Counsel for the Defendants asked Mrs. Gibbons what she

25

had learned of the intent of the Plaintiffs in running

AFDI, et al v SMART - Case No. 10-12134

32

32

1

the ad.

The whole point of the cross examination was

2

that the ad itself was not political but that it somehow

3

stirred a political controversy elsewhere and there was

4

a political campaign being run.

5

get at the purpose for this particular ad.

6

THE COURT:

7

MR. GORDON:

I'm simply trying to

I'm going to allow that.
Your Honor, the Complaint

8

already admits to the political nature of the ad within

9

its four corners and the efforts that took place at

10

paragraph 8.

11
12

If I may, Your Honor, I would be happy to
read that.

13
14

THE COURT:
you.

No, you don't need to, thank

Your objection is noted and preserved.

15

You may answer.

16

THE WITNESS:

17

THE COURT:

An increasing trend in -(Interposing) Well, wait a

18

minute.

19

your question again because this doesn't sound like the

20

answer to the question you posed.

21

don't know that yet.

22

BY MR. YERUSHALMI, CONTINUING:

23
24
25

Q.

Before you do that, perhaps you should pose

But it may be, I

So pose your question again.

And when you say you ran the ad for religious

liberty purposes, what do you mean by religious liberty?
A.

Religious choice.

The ability to choose any

AFDI, et al v SMART - Case No. 10-12134

33

33

1
2

religion free of harm in America.
Q.

You indicate -- strike that.

3
4
5

Where else have you run this ad?
A.

They ran in Miami, they ran in New York City,

they're running in San Francisco.

6

Q.

In fact, they did run in Miami?

7

A.

They did run in Miami.

Probably not one but two

8

articles, opinion pieces, if I night not, written

9

basically from a press relief from unindicted

10

co-conspirator in Hama Lin-kaia (ph).

11

they were up and they ran with an additional 20 buses at

12

50 percent off.

13

Q.

Other than that,

Has there been an instance as far as you know of

14

vandalism of your ads that have run in Miami, New York,

15

Brooklyn and San Francisco?

16
17

A.

Nothing.

complete five Boroughs.

18
19

And in New York City, it is the

MR. YERUSHALMI:

I have nothing further,

Your Honor.

20

THE COURT:

21

Do you wish to examine this Witness?

22

MR. GORDON:

23
24
25

Alright, thank you.

Yes, Your Honor.

Just a few

questions.
C R O S S

E X A M I N A T I O N

BY MR. GORDON:

AFDI, et al v SMART - Case No. 10-12134

34

34

1
2

Q.

Good afternoon, Ms. Geller.

You know I'm the

attorney for SMART.

3

A.

Good afternoon.

4

Q.

My name is Avery Gordon.

5
6

Ms. Geller, did the ad that was run in Miami
create controversy?

Political controversy?

7

A.

No.

8

Q.

It didn't?

9

A.

No, sir.

10

Q.

Have your ads created controversy anywhere?

11

A.

There has been discussion about my ads. There has

12

been discussions, but we believe that any opposition to

13

these ads shows support for the death penalty for

14

Apostates.

15

Q.

Ms. Geller, did you have an opportunity to review

16

the Complaint that was filed in this case before it was

17

filed?

18

A.

Yes.

Or my lawyer's.

19

Q.

Ms. Geller, I'm going to read one or two

20

sentences out of the Complaint.

21

paragraphs --

22

A.

Of my Complaint?

23

Q.

Yes, Ma'am.

24

A.

Oh, yes, of course.

25

Q.

I'll tell you which

Paragraph 8 states:

AFDI, et al v SMART - Case No. 10-12134

35

35

1

"FDI promotes its political objectives by,

2

inter alia, sponsoring anti-jihad bus and

3

billboard campaigns, which includes seeking

4

advertising space on SMART vehicles."

5

Is that true?

6

A.

FDI is a human rights organization devoted to

7

freedom of speech, religious liberty.

8

speech is a political issue.

9

not political.

Well, freedom of

The ads, the bus ads, were

Those were religious liberty bus ads.

10

I'm doing other things.

11

MR. GORDON:

Your Honor, can I ask the Court

12

to direct her to answer the question?

13

the question.

14

THE COURT: Yes.

I'm trying to ask

Can you pose the question

15

again, and then please answer the question directly,

16

okay.

17

BY MR. GORDON, CONTINUING:

18

Q.

Ms. Geller, Paragraph 8 of your Complaint states:

19

"FDI promotes its political objectives by,

20

inter alia, sponsoring anti-jihad bus and

21

billboard campaigns which include seeking

22

advertising space on SMART vehicles."

23

A.

Yes.

24

Q.

Is that a true statement?

25

A.

Not about that particular bus ad, but that is not

AFDI, et al v SMART - Case No. 10-12134

36

36

1

all that FDI does.

2

bus ad, we're involved in many different initiatives.

3

Q.

FDI does not just do that particular

I understand that, but your Complaint in this

4

instance sues SMART.

5

employees, and so my question to you is did the

6

paragraph number 8 that I just read -- let me read it

7

again.

8
9

You blamed SMART and two of its

THE COURT:

No, we heard it.

Just pose your

question.

10

THE WITNESS: With a --

11

THE COURT:

(Interposing) Excuse me, we need

12

a question so we have an answer. Not meaning to

13

interrupt you all, but if I don't have a question and an

14

answer, it doesn't help.

15

MR. GORDON:

16

Thank you, Your

Honor.

17

Of course.

BY MR. GORDON, CONTINUING:

18
19

Q.

My question to you, Ma'am, is, is that a true

statement?

20

A.

If religious liberties --

21

Q.

(Interposing) This is a yes or no question, Ms.

22

Geller.

23

A.

Yes, it is a true statement.

24

Q.

And I can't help but notice absent -- conspicuous

25

Is it a true statement?

by its absence is the words "religious speech".

Can you

AFDI, et al v SMART - Case No. 10-12134

37

37

1

tell me was that intentional on your part?

2

A.

Religious liberty?

3

Q.

Religious speech?

4

A.

Religious liberty.

5

Q.

Religious objectives?

6

A.

Yes, there was a religious objective.

Those

7

girls are in trouble and they have no where to go and

8

there is a crying need for those ads.

9

just --

10

Q.

11

And I think it is

(Interposing) Thank you, Ms. Geller.

I

appreciate your answer.

12

I'd also like to read to you Paragraph

13

Number 9, if I may.

14

This one relates to you, Ma'am.

It

says:

15

"Plaintiff Pamela Geller is the Executive

16

Director of FDI, and she engages in

17

political and religious speech through FDI's

18

activities, including FDI's anti-jihad bus

19

and billboard campaigns."

20

My question to you first is, is that a true

21

statement?

22

A.

Yes.

23

Q.

And can you tell me, the anti-jihad bus campaign,

24

was SMART part or one of the campaigns that was mounted

25

by you?

AFDI, et al v SMART - Case No. 10-12134

38

38

1

A.

It was, but part of other -- see I didn't expect

2

to get rejected because Detroit was the only one who

3

rejected me.

4
5

Q.

I had other ads as well.

Well, let's take a moment here.

You said Detroit

rejected you?

6

A.

SMART, excuse me.

I wasn't specific.

7

Q.

Did the City of Detroit reject you?

8

A.

It was D DOT and SMART, was it not.

9

Q.

It is D DOT, the Detroit Department of

10

Transportation and SMART.

11

of just a second ago that you were rejected only by

12

Detroit is not true, you were rejected by Detroit and

13

SMART?

14
15
16

A.

Right.

was one city.
Q.

As one --

So actually, your testimony

well, it was one entity.

It

It is the only city that rejected me.

Ms. Geller, finally I would like to read to you

17

from Paragraph Number 1 of the Complaint.

Paragraph

18

Number 1 of the Complaint, under Introduction, says that

19

you are challenging, and I'm going to quote:

20

"...challenging Defendants' restriction on

21

Plaintiffs' right to engage in political and

22

religious speech in a public forum."

23

Is that correct?

24

A.

Yes.

25

Q.

Let me ask you another question.

Your blog

AFDI, et al v SMART - Case No. 10-12134

39

39

1

today, your online blog today indicated that you would

2

be in Detroit, did it not?

3

A.

Yes.

4

Q.

And you said you would be loaded for bear.

5
6

Did I

get that right?
A.

Yeah.

I'm fighting for religious liberty, and I

7

think it is the one of the major issues of our time,

8

religious freedom.

9

Q.

Ms. Geller, there is no question now.

10

A.

There is no questioning that, yes.

11

Q.

I said there is no question yet.

12

THE COURT:

13

MR. GORDON:

14

Honor.

No further questions, Your

Thank you.

15
16

Well, let's pose one.

THE COURT:

Do you have any other questions,

Counsel?

17

MR. YERUSHALMI:

18

THE COURT: Okay.

19

R E D I R E C T

20
21

Short redirect, Your Honor?

E X A M I N A T I O N

BY MR. YERUSHALMI:
Q.

Your organization, FDI, intended on running

22

additional ads beyond the religious liberty ad that you

23

sought to place on SMART?

24

A.

Yes.

25

Q.

And in fact, you had an entire campaign which

AFDI, et al v SMART - Case No. 10-12134

40

40

1
2

included political speech as well as religious speech?
A.

Yes, because FDI is a human rights organization

3

devoted to freedom of speech, religious liberty, and

4

individual rights, and we fight them on many fronts.

5

And yes, we use media.

6

In this particular case, it was religious

7

liberty.

8

Q.

9
10

And you will agree with Ms. Gibbons's earlier

testimony that there is nothing in the content of this
ad which is political?

11
12

MR. GORDON:

Objection, Your Honor.

Her

agreement with Ms. Gibbons is truly irrelevant.

13

THE COURT:

Why don't you rephrase your

14

question so it just asks for the answer without

15

requiring that she agree with another witness.

16
17
18
19

MR. YERUSHALMI:

BY MR. YERUSHALMI, CONTINUING:
Q.

The content of this ad was purely religious and

religious liberty?

20
21

MR. GORDON:

24
25

Objection, Your Honor.

Leading.

22
23

Fair enough.

THE COURT:

It is leading, but I'm going to

permit it.
THE WITNESS:

The content of the ad was

purely religious.

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1
2

MR. YERUSHALMI:

No further questions, Your

Honor.

3

THE COURT:

I have a question, and if you

4

all object to my questions, you should say so for the

5

record; otherwise, your objection is waived.

6

understand that, both sides?

7

MR. GORDON:

8

MR. YERUSHALMI:

9

THE COURT:

Do you

Yes, Your Honor.
Yes, Your Honor.

In these other communities, I

10

think it's, you said, Miami, New York City, Brooklyn,

11

and San Francisco, do you have the same ad that's being

12

proposed here running?

13

THE WITNESS:

14

THE COURT:

15

THE WITNESS:

I had a campaign in Chicago on

tops of taxicabs running.

18
19

And do you have any other ads

running?

16
17

Exactly.

THE COURT:

It is a different campaign.

It is a different campaign on

top of Chicago --

20

THE WITNESS:

21

THE COURT:

(Interposing) Taxicabs.
But in these others, Miami, New

22

York City, Brooklyn and San Francisco, they are all bus

23

ads?

24

THE WITNESS:

25

THE COURT:

Yes.
Are they all the same ones?

AFDI, et al v SMART - Case No. 10-12134

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1

THE WITNESS:

2

THE COURT:

3

Yes.
There have been no other ads

that have been proposed to any of those?

4

THE WITNESS:

Well, There is another ad that

5

has been proposed, but it is a different campaign.

6

contract has not yet been signed, the artwork has been

7

-- we're in the last stage of the artwork.

8
9

THE COURT:

The

So there is not an existing ad

already proposed to them?

10

THE WITNESS:

11

THE COURT:

That's all I have.

13

MR. GORDON:

No, Your Honor.

14

THE COURT:

12

15

No, Ma'am.
Anything

else?

You may step down, Ma'am.

Thank

you.

16

Are you ready for argument?

17

MR. MUISE:

18

Good afternoon, Your Honor.

Yes, Your Honor.
Obviously, this

19

case is before you and this hearing is on a preliminary

20

injunction.

21

to weigh.

22

There are four factors that this Court has

The factor, though, that this is in the

23

First Amendment context, the often dispositive factor,

24

is the likelihood of success on the merits, because as

25

the case law has made very plain that loss of the First

AFDI, et al v SMART - Case No. 10-12134

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43

1

Amendment rights constitutes irreparable harm.

2

it frankly causes general harm to others; it's always in

3

the public interest.

4

interest issue, obviously, are tied up in protecting

5

First Amendment liberties.

6

Whether

And those two and the public

So at the end of the day, I think the main

7

issue for this Court to decide is the likelihood of

8

success on the merits on the First Amendment claim, and

9

those other factors for the injunction typically fall in

10

place in the First Amendment context in favor of

11

granting injunction if there is a likelihood of success.

12

Interestingly, in the Court's Order denying

13

without prejudice the temporary restraining order, the

14

Court said, quote:

15

"Plaintiffs' suspicion that their request

16

was denied due to the content of the

17

advertisement is not yet enough to establish

18

that a First Amendment violation has

19

occurred."

20

I would submit, Your Honor, that that is no

21

longer a suspicion but an established fact that it was

22

not only content-based but it was plainly

23

viewpoint-based, which is the most egregious form of

24

discrimination in the First Amendment.

25

The Court's analysis of the likelihood of

AFDI, et al v SMART - Case No. 10-12134

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44

1

success really takes a three-step approach, and I want

2

to kind of run through that in light of the evidence

3

that you have before you in this Court and the evidence

4

that was submitted during the hearing today.

5

Plainly, a religious freedom message,

6

conveying a message on a billboard or a sign is speech

7

that is protected by the First Amendment.

8

So that the question here is not whether or

9

not the speech itself is protected speech, the question

10

is whether or not Defendants' restrictions on that

11

speech meets the constitutional requirements under the

12

appropriate level of scrutiny.

13
14
15

And to get to that point, the next step then
is for the Court to determine the nature of the forum.
The Supreme Court has made plain that the

16

Court engage in a forum analysis to see whether or not

17

the restriction of the speech which is otherwise

18

protected, whether that restriction sustains

19

constitutional scrutiny.

20

I think what the evidence shows really

21

without much dispute is that by their policy and by

22

their practice, the Defense in this case have created a

23

public forum for speech, and particularly for speech

24

where the subject matter is religion.

25

When you have the acceptance of a

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1

controversial, noncommercial advertisement, such as the

2

atheist advertisement, one that was so controversial to

3

the point there was vandalism to the ads, the ads

4

weren't pulled after the vandalism, the ads were

5

repaired and put back up.

6

And as Ms. Gibbons testified that those ads

7

were consistent and met the policies, procedures and

8

guideline requirements of Defendants, the same policies

9

and procedures and guidelines that they apparently used

10

to reject my client's advertisements.

11

When the Government demonstrates a

12

willingness to open their property to controversial

13

speech, and certainly, I think the Court, you know,

14

doesn't have to leave common sense prior to taking the

15

bench, when you look at that atheist advertisement,

16

that advertisement itself, that is not an innocuous

17

commercial advertisement that was provided mainly for

18

the purpose of raising revenue such as the

19

advertisements at issue in the Lehman versus Shaker

20

Heights case.

21

controversial that it caused people to vandalize that

22

message.

23

procedures of SMART, is one that they consider to be

24

acceptable.

25

That is a controversial message, one so

And yet, that message, based on the policy and

So that accepting that atheist message in

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46

1

light of all these facts shows that it is inconsistent

2

with the argument that the advertising space is solely

3

for commercial purposes, and a willingness on the part

4

of the Government to open that forum, the advertising

5

space, to noncommercial controversial speech, and

6

certainly speech and acceptable subject matter of that

7

speech is religion.

8
9

Plainly, comparing the advertisements, there
is nothing distinguishable from that atheist

10

advertisement, which was acceptable, and my client's

11

advertisement that the Defendants, the Government, had

12

restricted.

13

And even more interestingly, and you heard

14

from it in her Affidavit and her Declaration as well as

15

her testimony today, Mrs. Gibbons, that after the

16

controversy with the Atheist Ad that is when SMART

17

decided to put on their Web site that language about

18

equal access, First Amendment.

19

Court need not leave its common sense prior to taking

20

the bench, it is obvious that that Atheist Ad created

21

such a fervor and controversy that SMART said, look,

22

we're a government agency, we must provide equal access,

23

this is a First Amendment issue, so we're going to allow

24

this Atheist Ad to take place.

25

And plainly, again, the

So plainly, by policy, by practice, they

AFDI, et al v SMART - Case No. 10-12134

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1

have created a public forum of speech, at a minimum for

2

speech where the subject matter that is acceptable is

3

religion as a subject matter which is the plainly the

4

subject matter of our client's advertisement.

5

In a public forum, designated or

6

traditional, and here it is designated a public forum,

7

the level of scrutiny when you make a content-base

8

restriction is strict scrutiny.

9

THE COURT:

That's where I'm going to stop

10

you for just a few minutes.

11

have to take care of.

12

I have a quick matter I

long.

It is not going to take very

13

(Recess in Proceedings)

14

* * * * * * * *

15

THE COURT:

Counsel, you may continue on

16

your argument.

17

level of scrutiny to be implied.

18

You were beginning to talk about the

MR. MUISE:

Yes, Your Honor.

And also, when

19

a public forum has been created by the Government, as we

20

argue it has here by their practice and procedures, the

21

level of scrutiny for a content-base restriction is

22

stricter.

23

reason for restricting the ad.

24

no compelling reason or no compelling interest that

25

would have or would permit the Government to allow an

Meaning the Government must have a compelling
And certainly, there is

AFDI, et al v SMART - Case No. 10-12134

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48

1

atheist advertisement, one that even subjected their

2

buses to vandalism, and then put that back up and then

3

turn around and say this, my client's religious freedom

4

message, is not permissible.

5

And when you have -- and Ms. Gibbons

6

testified about, you know, some opinion pieces she read

7

about Miami Dade and there was some response to the

8

messages, the religious freedom messages they were

9

running in Miami Dade, the case law is very plain as

10

well that a listener's reaction to speech, if he

11

restricts speech based on a listener's reaction to a

12

speech, or in this case viewer's reaction to a speech

13

because it is a billboard, that is not a content-neutral

14

basis for restricting speech.

15

essentially effectuating heckler's veto, which is

16

impermissible under the First Amendment.

17

In fact, it is

Even assuming, and I think it would be

18

inaccurate to conclude or assume that the forum is a

19

nonpublic forum, even in a nonpublic forum, and

20

principally because of the policies and practices and

21

certainly there is an intention on the part of the

22

Government and a willingness to open the forum up to

23

speech, to open the speech to something beyond just

24

revenue driven innocuous commercial speech, but to

25

include controversial religion, and in fact,

AFDI, et al v SMART - Case No. 10-12134

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49

1

anti-religious speech in the Atheist Ad.

2

But even assuming it is a nonpublic forum,

3

the Government's restriction in this case, first of all,

4

must be reasonable.

5

viewpoint-neutral.

6

And secondly, must be

The reasonableness question, when you look

7

in light of the fact that they allowed the atheist

8

advertisement, it demonstrates that the forum itself is

9

compatible to that form of speech.

That subject matter

10

of religion is a subject matter that is permissible in

11

that forum for the speech.

12

Atheist Ad is one that perhaps may have disrupted the

13

transportation's mission because of the vandalism that

14

occurred.

15

allowed to proceed.

16

advertisement has ever caused any vandalism like the

17

Atheist Ad.

18

I mean, if anything, the

And yet, that ad was put back on, and it was
And there is no evidence that our

So to make the distinction that the Atheist

19

Ad is permissible in this forum, surely it is even a

20

nonpublic forum, but the advertisement that my client

21

wants to run is, in fact, unreasonable.

22

But even more impermissible is the viewpoint

23

restriction nature of this.

When you have a permissible

24

subject matter and the policy doesn't exclude religion

25

as a permissible subject matter.

We know from the

AFDI, et al v SMART - Case No. 10-12134

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50

1

testimony that religion is a permissible subject matter.

2

And for you to say that this atheist controversial,

3

anti-God, and I would say anti-Christian, anti-Jewish,

4

anti-Islam advertisement, that that religious speech as

5

subject matter is okay.

6

matter, my client's religious freedom message is not

7

okay, making those distinctions of a similar subject

8

matter is itself a viewpoint-based distinction which is

9

impermissible.

10

But within the same subject

So in sum, even if the forum -- well, we

11

believe the forum is a public forum based on that policy

12

and practice, the content-based restriction is plainly

13

unconstitutional.

14

in a public forum is impermissible.

15

Plainly a viewpoint-based restriction

But even assuming that the forum is

16

nonpublic, the restriction here is not reasonable, and

17

in fact, is viewpoint-based.

18

So no matter how you look at this, the forum

19

analysis, when you look at what they actually at the end

20

of the day the restriction that they imposed, the

21

viewpoint-base restriction on a permissible subject

22

matter, that being religion, in my client's -- the

23

viewpoint my client expresses on that subject, that,

24

itself, is impermissible whether it is a public forum or

25

nonpublic forum.

AFDI, et al v SMART - Case No. 10-12134

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1

And I want to make one final point on the

2

question of the political speech and so forth.

3

are categories of speech and then there is subject

4

matter of the message.

5

There

Typically, when you look at the First

6

Amendment context, you talk about political speech,

7

religious speech resting on the highest rung of

8

protections under the First Amendment as compared with

9

commercial advertisement which may have some additional

10

restrictions imposed on them.

11
12

So as a category of speech, religious
expression, political speech are the highest protected.

13

The restrictions that they have imposed here

14

isn't a restriction on a category or speech, it is a

15

restriction on a subject matter.

16

guideline they have, the subject matter they restrict is

17

political.

18

Even in their

They don't restrict religion.
So the restriction that is at issue here is

19

the question:

20

permissible, whether this be a public forum or nonpublic

21

forum, is religion, and our client's speech, the subject

22

matter of the message is, in fact, religion.

23

Is the category of speech that is

So if they prohibit our subject matter

24

within that permissible subject matter, again, that is a

25

viewpoint-based restriction.

AFDI, et al v SMART - Case No. 10-12134

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1

The other thing is when you look at the

2

restrictions themselves, there is nothing, nothing that

3

can guide government officials, and certainly this case

4

provides a perfect example, that guide government

5

officials to be able to make a distinction as to why

6

this anti-God, anti-Christian, anti-Jew, anti-religion

7

atheist message, quote, unquote, is not political, but

8

this religious freedom message that addresses Islam is,

9

in fact, political.

10

government official.

11

That is left to the whims of the

Unfortunately, these restrictions permit --

12

they're not restrictions, but these guidelines permit

13

them to make arbitrary and capricious decisions as to

14

which messages are permissible and which messages are

15

not permissible, which again, the First Amendment does

16

not permit.

17

We're talking about government officials.

18

They can't pick and choose as to which viewpoints they

19

say are permissible and which ones are impermissible.

20

And there is nothing in the guidelines that

21

make them distinguish, okay, how is the Atheist Ad a

22

nonpolitical ad but the Islam ad is a political ad?

23

how is one religion and how is one not religion?

And

24

Again, when you look at these objectively or

25

observe both of those, those are messages that deal with

AFDI, et al v SMART - Case No. 10-12134

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1

the subject matter of religion, and when they make

2

distinctions between subject matters, they are

3

essentially making viewpoint-based distinctions.

4

matter how you slice this or cut this, this is an

5

unconstitutional restriction on our client's speech.

6

THE COURT:

7

MR. GORDON:

8

do.

No

Do you wish to argue?
Yes, Your Honor, I certainly

And I would like to begin where Mr. Muise left off.

9

He expressed a great deal of confusion about

10

the difference between religious speech and political

11

speech.

12

Religious speech is, in fact, religious

13

speech.

Unfortunately, advocating religious freedom is

14

a political issue.

15

Your Honor, we have to be very careful when

16

we listen to Plaintiffs because they confuse some terms

17

like "content" and "viewpoint".

18

I agree that SMART --

19

THE COURT:

(Interposing) Before you go on,

20

do you have some case support for advocating religious

21

freedom being political speech?

22
23

MR. GORDON:

Your Honor, I believe that the

Court --

24

THE COURT:

25

MR. GORDON:

Is it in your brief?
No, Your Honor. But luckily,

AFDI, et al v SMART - Case No. 10-12134

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1

Your Honor -- pardon me for just one moment.

2

Your Honor, Black's Law Dictionary, the 8th

3

Edition, defines political as pertaining to politics of

4

or related to the conduct of government.

5
6

THE COURT:

That is the definition of what,

political?

7

MR. GORDON:

Political, yes, Your Honor.

8

And Your Honor, I'm very lucky on this issue

9

because Plaintiffs have seen to it that they and SMART

10

do not actually disagree that much, and the reason is

11

because the Complaint is rife with admissions on this

12

very topic.

13

I previously raised the issue with Mrs.

14

Geller of the Complaint that was filed in this action.

15

In particular, I questioned her with regard to Paragraph

16

Number 8, which read:

17

"FDI promotes its political objectives by,

18

inter alia, sponsoring anti-jihad bus and

19

billboard campaigns, which includes seeking

20

advertising space on SMART vehicles."

21

Conspicuous by its absence is any

22

relationship or any objective of religion or religious

23

speech.

24

In addition, Paragraph 9 states that:

25

"Pamela Geller is the Executive Director of

AFDI, et al v SMART - Case No. 10-12134

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55

1

FDI, and she engages in political and

2

religious speech through FDI's activities,

3

including FDI's anti-jihad bus and billboard

4

campaigns."

5

Paragraph Number 10 states:

6

"Plaintiff Robert Spencer is the Associate

7

Director of FDI, and he engages in political

8

and religious speech through FDI's

9

activities, including FDI's anti-jihad bus

10

and billboard campaigns."

11

My point is there is absolutely no

12

disagreement on whether or not this was political.

13

is at least until the reply to the Defendant's response

14

to Plaintiffs' Motion.

15

religious freedom speech.

16

That

Then suddenly, everything was

Your Honor, even the very first Paragraph of

17

this Complaint makes it perfectly clear what the

18

Plaintiffs' aims and goals are in this case.

19

and I quote:

They are,

20

"...challenging Defendants' restriction on

21

Plaintiffs' right to engage in political and

22

religious speech in a public forum."

23

And having said that, that brings me to the

24

next issue that Mr. Muise tends to confuse.

He talks

25

about public forum and open public forum and designated

AFDI, et al v SMART - Case No. 10-12134

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1

public forum.

2

precisely what SMART has created.

3
4
5

Anything but a nonpublic forum, which is

But Your Honor, I'm getting just a tiny bit
ahead of myself.
If I may, and as you know, consistent with

6

the briefs, the parties agree that there are four

7

elements that the Court must balance.

8
9

The first element, of course, is whether or
not the Plaintiffs can establish a substantial

10

likelihood of success.

11

a substantial likelihood of success.

12
13
14

Not is it likely to succeed, but

Secondly, whether there is a threat of
irreparable harm to the Plaintiffs.
Thirdly, whether issuing the injunction

15

would cause substantial harm to others.

16

whether the public interest would be served by granting

17

this injunction.

18

And finally,

Plaintiffs have trouble with each and every

19

single one of these four elements because SMART,

20

conscious of the law in this area, conscious of this

21

Circuit's ruling in Lehman versus Shaker Heights,

22

created a forum, a nonpublic forum wherein it could

23

prohibit political advertising.

24
25

It is simply not substantially certain that
Plaintiffs will succeed, and as a result, this Motion

AFDI, et al v SMART - Case No. 10-12134

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1

must be denied.

2

Your Honor, there are three distinct public

3

fora.

4

The courts refer to those that have been traditionally

5

used for unregulated public debate:

6

city hall.

7

The first is a traditional or open public forum.

Sidewalks, parks,

Next is a designated public forum.

That is

8

where the Government has created a place for use by only

9

certain speakers for certain subjects.

10

Finally, there is what we have here, Your

11

Honor, a nonpublic forum in which certain government

12

property may be opened but only to limited speech.

13

Having said that, however, the First

14

Amendment does not open up government property to

15

unregulated debate merely because the property is owned

16

by the government.

17

The Supreme Court held in the Cornelius

18

case, which is cited in our brief, and I quote, Your

19

Honor:

20

"We will not find that a public forum has

21

been created in the face of clear evidence

22

of a contrary intent.

23

that the government intended to create a

24

public forum when the nature of the property

25

is inconsistent with expressive activity."

Nor will we infer

AFDI, et al v SMART - Case No. 10-12134

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58

1

Your Honor, I would ask the Court's

2

indulgence, I would just like to re-read just the first

3

part of that:

4

"We will not find that a public forum has

5

been created in the face of clear evidence

6

of a contrary intent."

7

Regulation of speech in a nonpublic forum,

8

of course must be reasonable in light of the purposes

9

served by that forum.

It doesn't have to be the most

10

reasonable.

It doesn't have to be the only reasonable

11

limitation.

A strict or a direct incapability between

12

the speech or the speaker's identity and the public

13

transit effort is not required.

14

Clearly, SMART has maintained a nonpublic

15

forum in which political advertising is prohibited

16

precisely as this Circuit has demonstrated in Lehman

17

versus Shaker Heights.

18

SMART's content policy states that SMART

19

will not accept political or political campaign

20

advertising.

21

Conspicuous by its absence from its content

22

policy is religious speech.

23

allows religious ads.

24
25

Put differently, SMART

Plaintiffs like to muddy the water because
they will look at us and say, oh, but that was

AFDI, et al v SMART - Case No. 10-12134

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1

controversial or it wasn't controversial, and since it

2

was controversial SMART should have known not to post

3

it.

4

The issue is not controversial, but why is

5

that a topic in this case?

6

atheist awareness advertisement, pure religious speech,

7

when presented to SMART, there was absolutely no reason

8

to believe that there was one wit of political content

9

or that there was any controversy whatsoever.

10

Here is why.

Because the

And you

heard Ms. Gibbons testify to that.

11

She also testified that in this instance,

12

with this ad, she had become aware of a very hot

13

political issue by way of the Internet and learned what

14

was happening at the Miami Dade Transit Authority in

15

Florida.

16

Detroit.

17
18
19

That was even before FDI ever made its way to

Your Honor, I have to go back to a crucial
issue, if I may.
In this case, there is absolutely no way

20

Plaintiffs can, with a straight face, dispute that these

21

ads and the speaker's identity is political and

22

politically charged.

23

Although Plaintiffs' reply seems now to

24

suddenly characterize the ads as only religious speech,

25

this is a new development.

AFDI, et al v SMART - Case No. 10-12134

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60

1

Your Honor, Plaintiffs are political.

2

Plaintiffs' organization is political.

3

Complaint does not even attribute religious speech to

4

FDI.

5

campaign itself is political.

The ads are political.

6

In fact, the

And the bus advertising

In no less than six paragraphs of their

7

pleadings and papers do Plaintiffs admit exactly that.

8

Exactly that.

9

Only now, only in their reply and only today

10

in court do they claim that their ads are exclusively

11

religious freedom speech.

12

In Paragraph 8, Plaintiffs admit that FDI

13

promotes its political objectives by sponsoring

14

anti-jihad bus ads.

15

As I mentioned, Your Honor, nowhere in

16

Paragraph 8 or anyplace else within the Complaint does

17

FDI admit or assure the reader that they're involved in

18

religious speech.

19

If we add Ms. Geller's Declaration, the

20

number of paragraphs dealing with this issue alone rises

21

to six.

22

On page 2 of Paragraphs 3 and 6, Ms.

23

Geller's Declaration also addresses this topic.

Only in

24

their reply, Your Honor, do they characterize their

25

speech differently.

Only here in court do they try to

AFDI, et al v SMART - Case No. 10-12134

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1

characterize their speech differently.

2

they want to say that SMART declined these ads as a

3

result of the content.

4

Let me say again.

Why?

Because

That would be true as

5

long as we're all talking about the same thing.

6

viewpoint.

7

viewpoint-neutral.

8

because we do reject, as Lehman and other courts have

9

said, we are entitled to without a violation of

10

Not viewpoint.

Not

Our policy is

It is content-based, however,

Plaintiffs' First and Fourteenth Amendment rights.

11

I'd like to address the ads themselves if I

12

may for just a moment, Your Honor.

13

political.

14

approach, of course.

15

example, the ad contains this political component:

16

itself is very vocal in criticizing Islam as a

17

tyrannical, political and legal system in its writings

18

and the Web site that the ad itself refers to.

19

They are clearly

Consistent with Plaintiffs' overall
Just as you would expect.

MR. MUISE:

For
FDI

Your Honor, I'm going to object

20

to this.

21

talking about content and this is like an ad hoc attack

22

now on Plaintiffs.

23

into.

24

more of this.

25

This is so impertinent material.

He is

It's plain what this has turned

There is no reason for this Court to hear any

THE COURT:

Your objection is noted for the

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2

record and overruled.
MR. GORDON:

Your Honor, clearly the ad

3

intended a political message in the text of the

4

advertisement itself by criticizing the Shorea or the

5

legal component of that system.

6

The message in the ad broadcast by the

7

sentence, which is included in Plaintiffs' Exhibits, is

8

quote, "Fatwa on your head", end quote.

9

displays a political message by referring to a form of

This, too,

10

edict that is issued under the presumed authority of

11

Muslim officials who get that authority under the

12

Islamic political system.

13

Frankly, the bus advertising campaign

14

itself, as testified to today by Ms. Gibbons, has itself

15

become a hot button political issue because of the

16

manner in which the ads were proposed and challenged and

17

in which -- in the Miami Dade Transit matter.

18

That happened earlier this year.

That came

19

to Ms. Gibbons' attention prior to the ad even making

20

its way here.

21

The message proposed, the advertisement

22

proposed, again as testified by Ms. Geller, the same ads

23

were used, is merely a continuation of that political

24

campaign that was first launched in Miami.

25

Reports on that campaign in the media, as

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Ms. Gibbons testified to, and the commentary on those

2

reports themselves have clearly demonstrated the

3

political divide that this campaign has created.

4

I'll move on, Your Honor.

Let me just say

5

that as in Lehman, cited in our brief, SMART's content

6

policy is reasonable.

7

A rational basis test is used in nonpublic

8

forum.

Everybody agrees.

SMART's policy, like that one

9

precisely in Lehman, sets out a policy, and SMART's

10

policy exists in order to assure three things.

11

minimize the chance of abuse.

12

favoritism.

13

audience.

14
15

One, to

The appearance of

And the risk of imposing on a captive

That policy is in the contract, and is an
exhibit in our response.

16

SMART furthers these goals as well as

17

protecting its mission critical goal of providing safe

18

and efficient mass transportation by not jeopardizing

19

advertising as a revenue source.

20
21

Courts have recognized this as a reasonable
goal, Your Honor.

22

Our brief cites to Christ's Bride Ministries

23

versus SEPTA, and also to the Lehman case, and I would

24

like to read a brief passage, if I may, from the Lehman

25

case:

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"Revenue earned from long-term commercial

2

advertising could be jeopardized by a

3

requirement that short-term candidacy or

4

issue-oriented advertisements be displayed

5

on a car or cars.

6

to the blare of political propaganda.

7

could be lurking doubts about favoritism and

8

sticky administrative problems might arise

9

in parceling out limited space to eager

Users would be subjected
There

10

politicians.

In these circumstances, the

11

managerial decision to limit car card space

12

to innocuous and less controversial

13

commercial and service oriented advertising

14

does not rise to the dignity of a First

15

Amendment violation.

16

contrary, display cases in public

17

hospitals, libraries, office buildings,

18

miliary compounds and other public

19

facilities immediately would become

20

high targets open to every would-be

21

pamphleteer and politician, and this the

22

Constitution does not require."

23

Importantly, SMART's policy is

Were we to hold to the

24

viewpoint-neutral.

We don't accept candidate

25

advertising without regard to who the candidate is.

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Your Honor, we do not accept advertising

2

that is for or against any ballot proposal.

3

care what side of the issue you're on.

4

accept ads relating to charged political issues, again

5

no matter what side you're on.

6

We don't

And we don't

Again, hereto Plaintiffs have not met their

7

burden.

8

other political ads and we have respectfully declined

9

those offers.

10

SMART has been approached with offers to post

In a nonpublic forum, SMART may, indeed,

11

prohibit political advertising without violating

12

Plaintiffs' First and 14 Amendment rights, precisely as

13

described in Lehman.

14

Your Honor, SMART has no interest in

15

politics or political issues.

16

roll on property taxes.

17

notice of the fact that on August 3, in less than one

18

month from now, a public vote on the transit tax will be

19

before the voters.

20

SMART survives by an add

This Court may take judicial

SMART operates in a diverse region composed

21

of the four counties it serves.

22

our enabling legislation Act 204 cited in our brief.

23

Again, that happens by

My clients have no interest in politics or

24

political issues, Your Honor.

Religion is not the

25

issue, the issue is politics.

Precisely as it was in

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Lehman.

2

Our policy mirrors Lehman.
The lack of interest in politics by my

3

client goes beyond the Michigan Campaign Finance Act, or

4

on the federal level, the Hatch Act, both of which each

5

in their own way focus on certain political activities

6

of employees by this agency.

7

Your Honor, this Circuit in Lehman provided

8

SMART with a roadmap for transit authorities to create a

9

nonpublic forum as a limit to its advertisement but

10

still to allow us to provide some source of additional

11

revenue for those much critical operations.

12

SMART has diligently and carefully followed

13

that roadmap in a completely viewpoint-neutral way.

14

today, Your Honor, my client looks to this Court to

15

assure the stability of our reliance on this Court's

16

holdings.

17

And

It would be very difficult, maybe even

18

unfair or unreasonable for the Court to pull that

19

roadmap out from under us at this time.

20

Your Honor, September 1st, I'm with the

21

Authority for 18 years.

22

represented this client for all of that time.

23

finally, Judge, finally, for the first time in 18 years,

24

a Plaintiff has actually admitted to nominal damages.

25

I have to tell you that I have
And

Indeed, Your Honor, the only one likely to

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suffer irreparable harm is your Defendant SMART if this

2

Court endures the Agency's efforts to follow that

3

roadmap.

4

Finally, Your Honor, in conclusion, let me

5

just say a review of the Complaint, the Motion,

6

Defendants' response and Plaintiffs' reply and nothing

7

that's happened in this courtroom today alters the fact

8

that a nonpublic forum was created by SMART.

9

as articulated in Lehman.

10

Precisely

SMART is well within its rights to prohibit

11

political advertising.

12

viewpoint-neutral policy. It does not violate

13

Plaintiffs' rights, and as a result, the Motion must be

14

denied.

15

This is a consistently applied

Since Plaintiffs' rights have not been

16

violated, since there will be no irreparable harm in

17

denying the motion to anyone but the Defendants and

18

their captive audience of passengers, composed primarily

19

of the elderly, the handicap and the transit-dependent,

20

I guess likelihood of prevailing is far from a

21

substantial likelihood.

22

It is virtually impossible.

For these reasons, for the reasons that we

23

have set forth in our brief, Your Honor, we ask this

24

Court to deny Plaintiffs' Motion for Preliminary

25

Injunction.

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2

THE COURT:

I have a couple of questions to

ask you, Counsel.

3

If you look at your pleading that is Exhibit

4

B to your response to the Motion for Preliminary

5

Injunction --

6
7

MR. GORDON:
ad?

8
9

THE COURT:

MR. GORDON:

11

THE COURT:

Yes, Your Honor.
And it says created by

ProjectLIFEBOARD.org.

13

MR. GORDON:

14

THE COURT:

15

Well, it says, "Hurting after

Abortion?"

10

12

Yes, Your Honor, the Pinckney

Yes, Your Honor.
Do you know what Project

Lifeboard is?

16

MR. GORDON:

No, not as I stand here today.

17

And in fact, once again, let's be sure of the importance

18

of this because Plaintiffs would bring this to the

19

Court's attention for the wrong reasons.

20

The fact is, the simple fact is incidental

21

mention -- incidental mention -- of religion and

22

political speech is not sufficient to take the political

23

speech component out of the advertisement.

24
25

THE COURT:

Tell me this again.

Incidental

what?

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MR. GORDON:

Incidental reference to

2

religion is not sufficient, Your Honor, to remove the

3

political nature of this advertisement.

4

Allow me to suggest another --

5

THE COURT:

6

(Interposing) Of which

advertisement?

7

MR. GORDON:

8

THE COURT:

9

MR. GORDON:

10

THE COURT:

Exhibit B.
I'm just asking some questions.
Of course.
And if you would look at the

11

other ad, which is attached as Exhibit F, and do you

12

know what Detroit C-O-R is?

13
14
15

MR. GORDON:

No, Your Honor.

Because we're

viewpoint-neutral.
Content is a religious ad.

We don't reject

16

religious ads.

17

We don't care who the offer or offerer of the

18

advertisement is.

19
20

We reject political ads, Your Honor.

THE COURT:

Do you think that this ad that

is Exhibit F is an ad that you ran; is that right?

21

MR. GORDON:

Yes, Your Honor.

22

THE COURT: And it is on the side of the bus?

23

MR. GORDON:

24

THE COURT:

25

MR. GORDON:

Yes, Your Honor.
And was the -(Interposing) Though smaller

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than the ad proposed by FDI.

2

THE COURT:

3

outside-of-the-bus ad?

4

MR. GORDON:

5

THE COURT:

But that was also an

Yes, Your Honor.
And do you believe that and is

6

your argument that this Exhibit F is advocating

7

religious freedom?

8
9

MR. GORDON:

No. Pure religious speech, Your

Honor.

10

THE COURT:

Anything else by your argument?

11

MR. GORDON:

12

THE COURT:

Okay, thank you very much.

13

MR. MUISE:

Can I have a brief rebuttal?

14

THE COURT:

You can have a brief rebuttal,

No, Your Honor.

15

and in your rebuttal, please don't argue what you have

16

argued because I have been listening.

17
18
19

MR. MUISE:

Thank you, Your Honor, I'll try

not to.
Interestingly, Your Honor, in one of the

20

statements that Counsel made, he said he doesn't care

21

who the author is, and apparently doesn't know who

22

DetroitCor.org is.

23

organization with the antiabortion ad, but apparently,

24

has a lot of information about my particular Plaintiff.

25

And listening to his arguments, most of his

Apparently, he doesn't know who the

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argument is based on things that have nothing to do with

2

the message but apparently an objection by the

3

Government as to the way my client operates with regard

4

to her organization.

5

You asked the question what authority do you

6

have for the argument that advocating religious freedom

7

is political speech and he breaks out the Black's Law

8

Dictionary.

9

advocating for religious freedom as labeled speech and

10

when the Atheist's Ad goes on, that is not advocating

11

religious freedom?

12
13
14

It is utter nonsense to say you're

I mean, it is utter nonsense.

And what guidelines do they have to really
make those sorts of distinctions?
So even based on his definition of political

15

speech advocating religious freedom as labeled speech,

16

the Atheist Ad plainly fits within that requirement.

17

But we're lucky, Your Honor, because we

18

don't have to rely on allegations, we can rely on the

19

testimony of Ms. Gibbons, who is testifying pursuant to

20

30(b)(6), pursuant to the stipulation of the parties,

21

and she was asked that specific question by Mr.

22

Yerushalmi, is the advertisement at issue, my client's

23

advertisement, is the content of that message political?

24

And her answer was, no.

25

Why?

Because the subject matter of that

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2

message is religion.
And it wasn't just in the reply.

Your

3

Honor, Ms. Geller's Declaration, which was submitted in

4

support or opposition, throughout that Declaration made

5

very plain that her advertisement was a religious

6

freedom advertisement.

7

The Shaker case, which is a Supreme Court

8

case not a Circuit case, allowed the Government to have

9

restrictions, and those are car cards.

You asked the

10

question whether they were on the outside of the buses.

11

In the Shaker case, the question of protective audience

12

was raised through the car cards that were inside the

13

buses or inside the transportation vehicle.

14

have a captive audience.

15

because it is outside of the bus.

16

So you do

Here, that is not an issue

What Shaker makes plain is that if the

17

Government is going to live in the advertisements and it

18

uses the term "innocuous", innocuous noncommercial -- I

19

mean, noncontroversial commercial speech because the

20

sole purpose of the advertising space is to raise

21

revenue, they can do that.

22

allowed this highly innocuous, highly controversial,

23

noncommercial atheist religious freedom message

24

demonstrates that they have opened the forum and they

25

certainly have opened the forum to speech that is

The fact that here they

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equivalent to my client's speech.

2

There is no constitutionally permissible way

3

to make the distinction between saying the atheist

4

advertisement, which we know created controversy because

5

of the vandalism, and yet was allowed to still be up and

6

still as we sit here today is permissible under the

7

guidelines.

8

Gibbons, nonpolitically content message is impermissible

9

when they both express a religious liberty message.

Yet my clients, by the own admission of Ms.

10

And it appears from the argument of Counsel

11

here that he apparently doesn't like Ms. Geller and the

12

FDI and what they're doing elsewhere.

13
14

THE COURT:
he said that, do you?

15
16
17
18

Well, Counsel, I don't know that

MR. MUISE:

Well, I think his comments here

THE COURT:

I don't think he said anything

--

about liking or disliking the Plaintiffs.

19

MR. MUISE:

20

THE COURT:

Well, he certainly disagreed -Well, that is different.

I

21

disagree with a lot of people that I like, so I don't

22

think it is an issue of like and dislike.

23

nonpersonal unless it is clearly personal, okay.

24
25

MR. MUISE:

So keep it

Again, going back, he made the

point about, well, we don't look at who the speaker is,

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but plainly through his argument they looked at who the

2

speaker was in this case and disagrees with their

3

approach, which is beyond what the First Amendment

4

requires them to look at, which is the message that's

5

being conveyed, and is this forum, can they exclude that

6

message from this forum?

7

question is plainly no. And that's when the First

8

Amendment violation comes into play.

9

And the answer to that

Thank you, Your Honor.

10

THE COURT:

I'm happy to give you a written

11

order in a short time.

12

come back to get the order, I'll notify you of the date

13

and time later on this week.

If I feel the need to have you

14

MR. GORDON:

Very good, Your Honor.

15

THE COURT:

Okay, anything further?

16

Thank you very much, and court is in recess.

17

Now, you gave me some additional

18

stipulations, I don't file them.

If you want them

19

filed, you need to file them electronically.

20

they won't be a part of the formal record.

Otherwise,

21

Thank you very much, and Court is in recess.

22

(Proceedings concluded at 3:55 p.m.)

23

* * * * * * * *

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25

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C E R T I F I C A T E

2

I, CHERYL E. DANIEL, OFFICIAL COURT

3

REPORTER, after being first duly sworn, say that I

4

stenographically recorded the foregoing proceedings

5

held on the day and date hereinbefore recorded; that

6

upon order of the Court or counsel, I caused those

7

stenotype notes to be reduced to typewritten form via

8

computer-assisted technology, and that this transcript

9

constitutes a true, full and complete transcript of

10
11

those proceedings so ordered.
I further certify that I am not related to

12

any party to these proceedings nor have any interest in

13

the outcome of said proceedings.

14
15
16

S/Cheryl E. Daniel
FEDERAL OFFICIAL COURT REPORTER

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AFDI, et al v SMART - Case No. 10-12134