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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1 1 UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF MICHIGAN 3 SOUTHERN DIVISION 4 AMERICAN FREEDOM DEFENSE 5 INITIATIVE; PAMELA GELLER; 6 and ROBERT SPENCER, 7 Plaintiffs, 8 -v- Case No. 9 SUBURBAN MOBILITY AUTHORITY 10 for REGIONAL TRANSPORTATION 11 (SMART); GARY L. HENRICKSON, 12 individually and in his official 13 capacity as Chief Executive of 14 SMART; 15 JOHN HERTEL, individually and in 16 his official capacity as 17 General Manager of SMART; 18 and BETH GIBBONS, individually and 19 in her official capacity as 20 Marketing Program Manager of 21 10-12134 SMART, 22 23 Defendants. ___________________________/ 24 25 (APPEARANCES CONTINUED) AFDI, et al v SMART - Case No. 10-12134 2 2 1 2 MOTION FOR PRELIMINARY INJUNCTION BEFORE THE HONORABLE DENISE PAGE HOOD 3 United States District Judge 4 237 U.S. Courthouse and Federal Building 5 231 Lafayette Boulevard West 6 Detroit, Michigan 48226 7 Tuesday, July 13, 2010 8 APPEARANCES: 9 FOR THE PLAINTIFFS: ROBERT J. MUISE, 10 THOMAS MORE LAW CENTER 11 24 FRANK LLOYD WRIGHT DR. 12 ANN ARBOR, MI 48106 13 And 14 DAVID YERUSHALMI, 15 1892 W THOMPSON WAY 16 CHANDLER, AZ 85246 17 FOR THE DEFENDANTS: ANTHONY CHUBB, 18 ASSISTANT GENERAL COUNSEL 19 AVERY E. GORDON, 20 GENERAL COUNSEL 21 SMART 22 660 WOODWARD AVENUE 23 SUITE 900 24 DETROIT, MI 48226 25 AFDI, et al v SMART - Case No. 10-12134 3 3 1 I N D E X 2 PRELIMINARY MATTERS 3 PAGE 4 MOTION FOR TEMPORARY RESTRAINING ORDER 4 BETH ANN GIBBONS 5 DIRECT EXAMINATION BY MR. YERUSHALMI 12 6 CROSS EXAMINATION BY MR. GORDON 23 7 REDIRECT EXAMINATION BY MR. YERUSHALMI 28 8 PAMELA GELLER 9 DIRECT EXAMINATION BY MR. YERUSHALMI 30 10 CROSS EXAMINATION BY MR. GORDON 33 11 REDIRECT EXAMINATION BY MR. YERUSHALMI 39 12 ARGUMENT BY MR. MUISE 42 13 RESPONSE BY MR. GORDON 53 14 REBUTTAL BY MR. MUISE 69 15 16 17 18 19 20 21 22 23 E X H I B I T S 24 25 AFDI, et al v SMART - Case No. 10-12134 4 4 1 2 Tuesday, July 13, 2010 3 Detroit, Michigan 4 THE CLERK: 5 American Freedom versus Suburban Mobility Authority. 6 7 THE COURT: 10 Good afternoon. Plaintiffs, put your appearances on, and then the Defendants. 8 9 Calling case number 10-12134, MR. MUISE: Good afternoon, Your Honor. Robert Muise from the Thomas Moore Law Center for the Plaintiffs. 11 MR. YERUSHALMI: Good afternoon, Your Honor. 12 David Yerushalmi for the Plaintiffs. 13 MR. GORDON: Good afternoon, Your Honor. 14 Avery Gordon on behalf of Defendants SMART, Gibbons and 15 Hertel. 16 MR. CHUBB: Good afternoon, Your Honor. 17 Anthony Chubb also on behalf of Defendants SMART, Hertel 18 and Gibbons. 19 20 21 THE COURT: Are we expecting someone different relative to Gary Hendrickson? MR. GORDON: If I may, Your Honor, Avery 22 Gordon for Defendants. There is no one that we know who 23 knows who that is. 24 certainly part of the organization or as I mentioned 25 anybody that the SMART staff knows of. And Mr. Hendrickson is not now AFDI, et al v SMART - Case No. 10-12134 5 5 1 THE COURT: Then I am ready to proceed. 2 This is a Motion for Preliminary Injunction. The Court 3 received a Motion that was a Motion for Temporary 4 Retraining Order and a Motion for Preliminary Injunction 5 and found that the Motion for Temporary Restraining 6 Order -- 7 stated in its Opinion, but I set it for a hearing on the 8 Motion for Preliminary Injunction, and so I'm ready to 9 proceed on that if you're ready. well, the Court denied it for the reason it 10 MR. MUISE: 11 MR. GORDON: Plaintiffs are, Your Honor. We are, Your Honor, although 12 there is one preliminary matter that the Defendants 13 would like to take up with the Court. 14 THE COURT: 15 MR. GORDON: Okay. Your Honor, of course we met 16 and over the phone with Plaintiffs' Counsel prior to the 17 submission of the stipulation as the Court ordered. 18 But Your Honor, we believe that this Motion 19 can be decided on the pleadings and the exhibits alone; 20 both the Complaint, the Motion for Preliminary 21 Injunction; the Defendant's Response to it, as well as 22 the Plaintiffs' reply, all of the Exhibits and 23 Declarations that were attached to those materials. 24 25 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 6 6 1 try and provide some guidelines for the nature and 2 extent of the testimony to be elicited. 3 4 THE COURT: I'm not exactly sure what you're asking. MR. GORDON: 5 What I'm suggesting, Your 6 Honor, is that the taking of testimony this afternoon, 7 the Defendants believe, is unnecessary and we would ask 8 the Court to reconsider its request of the parties to 9 provide that. 10 We believe that Ms. Geller, for example, has 11 had three bites at the apple, to use the popular 12 colloquialism. 13 the opportunity to say what she will as well as in her 14 Motion. 15 response -- I'm sorry, the Defendants' response to the 16 Plaintiffs' Motion, Ms. Geller also filed a reply. 17 her testimony today could only be duplicative of what 18 she has already provided or will do little more than 19 provide a soapbox for her political pronouncements. 20 First, as part of her Complaint, she had And then after receiving the Plaintiffs' And In my conversation with Mr. Yerushalmi on 21 Thursday of last week, his intention, I was advised, of 22 calling the SMART staff, the SMART witnesses, was simply 23 because he wanted an opportunity to talk to the 24 decisionmaker, and as such, Ms. Gibbons' testimony would 25 be unnecessary, Mr. Hawkins' testimony would be AFDI, et al v SMART - Case No. 10-12134 7 7 1 unnecessary. 2 We would ask the Court, as I said, to 3 reconsider the taking of testimony this afternoon and 4 allow the parties to argue the preliminary injunction 5 motions on the pleadings, briefs and exhibits alone. 6 THE COURT: As you know, I'm not in my 7 regular courtroom, and I thought you all had filed a 8 witness list, did you? 9 MR. GORDON: 10 THE COURT: 11 didn't bring over the entire file. 12 13 MR. GORDON: May I see a copy of it? I Permission to approach, Your Honor? 14 15 Yes, Your Honor. THE COURT: Yes. I thought I could get by without getting the whole file. 16 MR. GORDON: This is what was filed, but the 17 parties have made some minor revisions that we have 18 agreed to. 19 But as I mentioned, Your Honor -- 20 THE COURT: (Interposing) I know what your 21 argument is, I just want to -- 22 Geller, Ms. Gibbons or Mr. Hertel need to be called? 23 MR. GORDON: 24 THE COURT: 25 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 8 8 1 that correct? 2 MR. GORDON: That's correct, Your Honor. 3 MR. YERUSHALMI: 4 THE COURT: 5 MR. YERUSHALMI: Your Honor, if I may? You may. If Ms. Gibbons is going to 6 testify as we have stipulated subsequent to the filing 7 of the Joint Witness List, we have signed additional 8 stipulations as the authorized representative of SMART, 9 the likelihood is we do not need to call Mr. Hertel, and 10 the likelihood is we would not need to call Ms. Dryden 11 or Mr. Hawkins and that is why they're only listed as 12 rebuttal witnesses. 13 But there are important parts of the 14 decision-making process at SMART that are not before the 15 Court that is important that we elicit through 16 testimony. 17 testimony especially with regard to the Atheist Ad that 18 was run and the controversy surrounding that, and the 19 decision-making process regarding SMART's decision to 20 have that ad run in fact to replace that ad. And that is the purpose of Ms. Gibbons's 21 MR. GORDON: May I respond, Your Honor? 22 THE COURT: Can I ask a question first? 23 MR. GORDON: 24 THE COURT: 25 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 9 9 1 MR. YERUSHALMI: If Ms. Gibbons can continue 2 to testify on behalf of SMART relative to her 3 Declaration, I'm fine with her. 4 5 THE COURT: right? 6 7 MR. GORDON: Your Honor, I believe that this is an attempt -- 8 9 You accept at least that much, THE COURT: accept that much? (Interposing) First, do you Do you agree that probably Ms. 10 Gibbons is not going to testify any differently than her 11 Declaration? 12 13 14 MR. GORDON: I can assure the Court of that, Your Honor. THE COURT: So then I think what Opposing 15 Counsel is saying is that if she is going to testify 16 relative to her Declaration that he does not perceive a 17 need to call Mr. Hertel, Ms. Dryden or Mr. Hawkins. 18 19 20 21 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. 22 Are you in agreement with that? 23 MR. GORDON: 24 THE COURT: 25 MR. GORDON: I am, Your Honor. Are they here? Yes, Your Honor. All of the AFDI, et al v SMART - Case No. 10-12134 10 10 1 witnesses are in the courtroom as we speak. 2 3 THE COURT: And so they could be excused if you want, right? 4 MR. YERUSHALMI: 5 THE COURT: 6 Of course they're welcome to stay, but -- 7 MR. GORDON: 8 THE COURT: 9 Yes, Your Honor. Pardon me? They are welcome to stay, Mr. Hertel, Ms. Dryden and Mr. Hawkins, but they do not 10 anticipate that they will need to call them as 11 witnesses. 12 permitted to be excused. 13 So if they want to be excused, they're That's up to them and you. Now, relative to Ms. Geller and Ms. Gibbons, 14 I don't really need to hear their testimony relative to 15 statements that they have already made or the 16 identification of exhibits because I don't think there 17 is a dispute about that, is there? 18 MR. GORDON: No, Your Honor. 19 MR. YERUSHALMI: No, Your Honor. In fact, 20 we had no intention of examining them on those grounds, 21 and indeed, in our witness list we have joint 22 stipulations already filed with the Court where all the 23 exhibits that have been filed with the Court are already 24 in the foundation laid, et cetera. 25 In addition to that, and we have before the AFDI, et al v SMART - Case No. 10-12134 11 11 1 Court today additional stipulations as to law and fact, 2 if I may? 3 THE COURT: 4 MR. GORDON: 5 6 7 8 9 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 10 and I have agreed to those stipulations. 11 I am good with that under any set of circumstances. 12 THE COURT: 13 through 3 but not 4; is that right? 14 MR. GORDON: 15 THE COURT: And in fact, And let me ask, they are 1 Yes, Your Honor. And as well as the Exhibits that 16 are in document 15, which I just gave back to you. 17 get another copy of it. 18 MR. GORDON: 19 THE COURT: I'll That is correct, Your Honor. And with the caveat that Ms. 20 Geller and Ms. Gibbons not be asked questions that are 21 already part of the record as their statement, I think 22 we should go ahead and proceed. 23 MR. GORDON: 24 This is proof that we just need discovery in 25 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 12 12 1 these important issues without the benefit of that 2 discovery. 3 and decided, as I say, on the pleadings and briefs and 4 the exhibits that have been attached to those pleadings 5 and papers filed with the Court. 6 That is why I think this Motion can be heard THE COURT: I'm not expecting that this will 7 be a discovery deposition, Counsel, I expect that this 8 will be only as to the elements of the Preliminary 9 Injunction. 10 11 MR. YERUSHALMI: Honor. 12 13 That is our intention, Your MR. GORDON: Very good, thank you, Your THE COURT: And in the event it starts to Honor. 14 15 sound like a discovery deposition, Counsel, you should 16 re-raise your objection, okay. 17 18 19 20 21 22 23 24 25 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 13 13 1 first duly sworn, was examined under her oath and 2 testified as follows: 3 4 5 6 7 D I R E C T BY MR. YERUSHALMI: Q. Ms. Gibbons, you understand you're testifying on behalf of SMART, correct? A. 8 9 E X A M I N A T I O N Yes. MR. YERUSHALMI: Witness, Your Honor. 10 THE COURT: 11 MR. YERUSHALMI: 12 May I approach the You may. Would the Court like a copy? 13 THE COURT: Well, I don't know what it is. 14 It it a document already attached? 15 MR. YERUSHALMI: 16 THE COURT: 17 MR. YERUSHALMI: 18 THE COURT: Yes. Is it Exhibit G? It is Exhibit G. And I don't think I need another 19 copy of it if you're following the same exhibit numbers 20 as your attachments, you just need to identify what it 21 is attached to so the record will be clear. 22 And I think that G is attached to your -- 23 MR. YERUSHALMI: 24 THE COURT: 25 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 14 14 1 Injunction. And in that Table of Contents, it is listed 2 as Atheist Bus Advertisement? 3 4 5 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. 7 Are you familiar with this advertisement? 8 A. Yes. 9 Q. Could you describe it, please? 10 A. It is an ad that says, "Don't believe in God? 11 12 13 You're not alone. Q. DetroitCoR.org." This is the ad that ran on SMART buses in February/March of 2010? 14 A. Yes. 15 Q. And when SMART reviewed this ad to determine 16 whether it satisfied its advertising policies, 17 guidelines and procedures, it determined that this ad 18 was in compliance, correct? 19 A. Yes. 20 Q. When SMART determined that this ad was in 21 compliance with its advertising policies, guidelines and 22 procedures, it examined just the ad copy and the 23 artwork, correct? 24 A. Yes. 25 Q. It didn't look to things extrinsic to the AFDI, et al v SMART - Case No. 10-12134 15 15 1 advertising itself to determine that? 2 A. Correct. 3 Q. SMART determined that this advertising copy was 4 not political? 5 A. Correct. 6 Q. And it determined that it was not scornful or 7 disparaging of Christians, Jews or Muslims or any other 8 groups? 9 A. No. 10 Q. SMART further determined that this ad was purely 11 religious? 12 A. Yes. 13 Q. After this ad ran on the SMART buses, were they 14 subject to vandalism? 15 A. Yes. 16 Q. Were they subject to extensive vandalism? 17 A. I don't know what that means. 18 Q. There was more than one ad that was vandalized? 19 A. Yes. 20 Q. And fact, one ad was scratched where it says, 21 "Don't believe in God?" On this particular exhibit, the 22 "Don't" is scratched out? 23 A. Yes. 24 Q. And there was another instance where the "Don't" 25 was ripped off? AFDI, et al v SMART - Case No. 10-12134 16 16 1 A. Yes. 2 Q. Were there other instances of vandalism? 3 A. Not that I'm aware of. 4 Q. And after this vandalism, there was quite a local 5 controversy in the media? 6 A. Yes. 7 Q. After the controversy and all the media 8 surrounding the vandalism of the "Don't believe in God?" 9 Ad, SMART took a decision that it was going to replace 10 the ads and put them back on the buses? 11 A. No. 12 Q. Did SMART make a decision to repair the ads that 13 had been vandalized? 14 A. No. 15 Q. The ads that were vandalized were left on the 16 buses as is? 17 A. No. 18 Q. What happened to those ads? 19 A. They were replaced with CBS Outdoor made that 20 decision. 21 MR. YERUSHALMI: May I approach, Your Honor? 22 THE COURT: 23 24 25 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 17 17 1 Motion for Preliminary Injunction. 2 Do you see the ad on the second page? 3 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? 9 A. Yes. 10 Q. And it determined that it was not purely 11 religious? 12 A. Yes. 13 Q. And they determined that it was political in 14 nature? 15 A. Yes. 16 Q. And further determined that it held a group of 17 people up to scorn and disparagement? 18 A. Right. 19 Q. There are, in fact, no policies written or 20 available elsewhere by SMART that provide you with the 21 -- strike that. 22 Beyond the ad guidelines that are provided 23 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 18 18 1 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. 10 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. 17 18 19 There is nothing in the ad that disparages or scorns any particular people? A. Correct, yes. I'm not sure. 20 THE COURT: 21 THE WITNESS: 22 THE COURT: 23 24 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 19 19 1 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? 4 5 THE COURT: question. 6 7 Well, that is a compound MR. YERUSHALMI: I'm sorry, Your Honor. Strike the question. 8 I believe we're done for now, Your Honor. 9 THE COURT: 10 This is the now. This is the time you have to examine. 11 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 20 20 1 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: 10 12 "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 AFDI, et al v SMART - Case No. 10-12134 21 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. AFDI, et al v SMART - Case No. 10-12134 41 41 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 42 42 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 43 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 44 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 AFDI, et al v SMART - Case No. 10-12134 45 45 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 AFDI, et al v SMART - Case No. 10-12134 46 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 47 47 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 48 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 49 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 50 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 51 51 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 52 52 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 53 53 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 54 54 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 55 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 56 56 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 57 57 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 58 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 59 59 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 60 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 61 61 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 AFDI, et al v SMART - Case No. 10-12134 62 62 1 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 AFDI, et al v SMART - Case No. 10-12134 63 63 1 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: AFDI, et al v SMART - Case No. 10-12134 64 64 1 "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. AFDI, et al v SMART - Case No. 10-12134 65 65 1 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 AFDI, et al v SMART - Case No. 10-12134 66 66 1 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 AFDI, et al v SMART - Case No. 10-12134 67 67 1 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. AFDI, et al v SMART - Case No. 10-12134 68 68 1 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? AFDI, et al v SMART - Case No. 10-12134 69 69 1 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 AFDI, et al v SMART - Case No. 10-12134 70 70 1 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 AFDI, et al v SMART - Case No. 10-12134 71 71 1 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 AFDI, et al v SMART - Case No. 10-12134 72 72 1 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 AFDI, et al v SMART - Case No. 10-12134 73 73 1 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, AFDI, et al v SMART - Case No. 10-12134 74 74 1 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 * * * * * * * * 24 25 AFDI, et al v SMART - Case No. 10-12134 75 75 1 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 17 18 19 20 21 22 23 24 25 AFDI, et al v SMART - Case No. 10-12134

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