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
53
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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
8
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
10
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
16
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
21
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
7
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?
I
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
7
of the Joint Witness List, we have signed additional
8
stipulations as the authorized representative of SMART,
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the likelihood is we do not need to call Mr. Hertel, and
10
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.
10
Gibbons is not going to testify any differently than her
11
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
16
relative to her Declaration that he does not perceive a
17
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
10
anticipate that they will need to call them as
11
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
21
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
2
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
5
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
9
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?
15
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
19
copy of it if you're following the same exhibit numbers
20
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
2
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?
10
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.
15
Q.
And when SMART reviewed this ad to determine
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whether it satisfied its advertising policies,
17
guidelines and procedures, it determined that this ad
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was in compliance, correct?
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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
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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
7
disparaging of Christians, Jews or Muslims or any other
8
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.
18
Q.
There was more than one ad that was vandalized?
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A.
Yes.
20
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"
25
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
8
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
10
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
13
had been vandalized?
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A.
No.
15
Q.
The ads that were vandalized were left on the
16
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
20
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?
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
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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.
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:
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THE WITNESS:
22
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.
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
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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:
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
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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.
AFDI, et al v SMART - Case No. 10-12134
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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
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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
AFDI, et al v SMART - Case No. 10-12134
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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
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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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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
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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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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
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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
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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
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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
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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
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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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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
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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
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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.
AFDI, et al v SMART - Case No. 10-12134
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65
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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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66
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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
AFDI, et al v SMART - Case No. 10-12134
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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
AFDI, et al v SMART - Case No. 10-12134
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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
AFDI, et al v SMART - Case No. 10-12134
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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
AFDI, et al v SMART - Case No. 10-12134
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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,
AFDI, et al v SMART - Case No. 10-12134
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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
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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
17
18
19
20
21
22
23
24
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AFDI, et al v SMART - Case No. 10-12134
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