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

Filing 52

RESPONSE to 50 MOTION to Compel Discovery filed by Beth Gibbons, John Hertel, Suburban Mobility Authority For Regional Transportation (SMART). (Attachments: # 1 Index of Exhibits, # 2 Exhibit Exhibit A, # 3 Exhibit Exhibit B, # 4 Exhibit Exhibit C, # 5 Exhibit Exhibit D, # 6 Exhibit Exhibit E, # 7 Exhibit Exhibit F) (Hildebrandt, Christian)

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0368p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
AMERICAN FREEDOM DEFENSE INITIATIVE;
PAMELA GELLER; ROBERT SPENCER,
Plaintiffs-Appellees, -No. 11-1538
>
v.
,
SUBURBAN MOBILITY AUTHORITY FOR
REGIONAL TRANSPORTATION (SMART);
JOHN HERTEL, individually and in his official capacity as General Manager of SMART;
BETH GIBBONS, individually and in her
official capacity as Marketing Program
Manager of SMART,
Defendants-Appellants, GARY I. HENDRICKSON, individually and in
his official capacity as Chief Executive of
SMART,
N
Defendant.
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:10-cv-12134—Denise Page Hood, District Judge.

Argued: July 26, 2012
Decided and Filed: October 25, 2012
Before: ROGERS and KETHLEDGE, Circuit Judges; MARBLEY, District Judge.*
_________________
COUNSEL
ARGUED: Christian E. Hildebrandt, VANDEVEER GARZIA, P.C., Troy, Michigan,
for Appellants. Robert J. Muise, AMERICAN FREEDOM LAW CENTER, Ann Arbor,
Michigan, for Appellees. ON BRIEF: Christian E. Hildebrandt, John J. Lynch,
VANDEVEER GARZIA, P.C., Troy, Michigan, Avery E. Gordon, Anthony Chubb,
SUBURBAN MOBILITY AUTHORITY FOR REGIONAL TRANSPORTATION, for
*

The Honorable Algenon L. Marbley, United States District Judge for the Southern District of
Ohio, sitting by designation.

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AFDI, et al. v. SMART, et al.

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Appellants. Robert J. Muise, THOMAS MORE LAW CENTER, Ann Arbor, Michigan,
David Yerushalmi, LAW OFFICES OF DAVID YERUSHALMI, P.C., Chandler,
Arizona, for Appellees.
_________________
OPINION
_________________
ROGERS, Circuit Judge. Plaintiff American Freedom Defense Initiative is a
nonprofit corporation that wanted to place an advertisement on the side of city buses in
Michigan. The advertisement read: “Fatwa on your head? Is your family or community
threatening

you?

RefugefromIslam.com”.

Leaving

Islam?

Got

Questions?

Get

Answers!

Defendant Suburban Mobility Authority for Regional

Transportation (SMART) refused to display the advertisement, citing its policy
prohibiting content that is political or that subjects any group to scorn. Upon learning
of the rejection, plaintiffs sued SMART, claiming a First Amendment violation. The
district court granted a preliminary injunction, holding that plaintiffs likely could show
that SMART’s decision was arbitrary and capricious. The injunction should not have
issued, however, because plaintiffs are not likely to succeed in demonstrating that
SMART unreasonably excluded this political speech from a nonpublic forum.
I
SMART, a state-run transit authority, operates public transportation throughout
Michigan’s four southeastern-most counties. Through an exclusive agent, CBS Outdoor,
Inc., SMART supplements its revenue by selling advertising space on its vehicles. The
advertising space is subject to SMART’s “Restriction on Content” policy, which limits
the permissible content of advertisements displayed on SMART vehicles. The policy
reads:
In order to minimize chances of abuse, the appearance of favoritism, and
the risk of imposing upon a captive audience, [SMART] shall not allow
the following content:
1.

Political or political campaign advertising.

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2.

Advertising promoting the sale of alcohol or tobacco.

3.

Advertising that is false, misleading, or deceptive.

4.

Advertising that is clearly defamatory or likely to hold up to scorn or
ridicule any person or group of persons.

5.

Advertising that is obscene or pornographic; or in advocacy of imminent
lawlessness or unlawful violent action.

CBS administers the SMART advertising program and makes the initial determination
whether a proposed advertisement may fall into a prohibited category. CBS submits
advertisements that fail this preliminary screening to SMART for review. SMART then
makes the final determination whether the advertisement violates the content restrictions.
American Freedom Defense Initiative (AFDI) is a nonprofit corporation that
“acts against . . . government officials, the mainstream media, and others” who
“capitulat[e] to the global jihad and Islamic supremacism.” AFDI promotes “its political
objectives by, inter alia, sponsoring anti-jihad bus and billboard campaigns, which
includes seeking advertising space on SMART vehicles.” Compl. ¶¶ 6-8. Plaintiffs
Pamela Geller and Robert Spencer are directors of AFDI, and “engage[] in political and
religious speech through [A]FDI activities, including [A]FDI’s anti-jihad bus and
billboard campaigns.”
In May 2010, AFDI tried to place the fatwa advertisement on SMART buses.
CBS screened the advertisement and referred it to SMART for further review. SMART
determined that the advertisement violated the content restriction against political
advertising, as well as the restriction against content “likely to hold up to scorn and
ridicule a group of persons.”
AFDI sued for equitable relief, accusing SMART of violating the First and
Fourteenth Amendments. The district court granted a preliminary injunction, enjoining
SMART from applying its content restrictions to plaintiffs’ speech. Am. Freedom Def.
Initiative v. Suburban Mobility Auth. for Reg’l Transp., No. 10-12134, 2011 WL
1256918, at *6 (E.D. Mich. Mar. 31, 2011). The court held that SMART’s advertising
space was a nonpublic forum, but that the content restrictions failed to provide adequate

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guidance to decisionmakers about the difference between permissible and nonpermissible advertisements. The district court noted, as an example of this lack of
guidance, that SMART had allowed an advertisement by the Detroit Coalition for
Reason (the “atheist advertisement”), but disallowed the fatwa advertisement. The
atheist advertisement read: “Don’t believe in God? You are not alone. DetroitCoR.org”.
The district court found that this purportedly disparate treatment showed the absence of
guidance. SMART timely appeals.
II
When considering a motion for a preliminary injunction, a district court must
balance four factors: “(1) whether the movant has a strong likelihood of success on the
merits; (2) whether the movant would suffer irreparable injury absent the injunction;
(3) whether the injunction would cause substantial harm to others; and (4) whether the
public interest would be served by the issuance of an injunction.” Bays v. City of
Fairborn, 668 F.3d 814, 818–819 (6th Cir. 2012). Although a district court’s decision
whether to grant a preliminary injunction is generally reviewed for an abuse of
discretion, Certified Restoration Dry Cleaning Network, LLC v. Tenke Corp., 511 F.3d
535, 540 (6th Cir. 2007), in cases with First Amendment implications, the standard of
review is de novo. Bays, 668 F.3d at 819. This is because “[w]hen First Amendment
rights are implicated, the factors for granting a preliminary injunction essentially
collapse into a determination of whether restrictions on First Amendment rights are
justified to protect competing constitutional rights.” Cnty. Sec. Agency v. Ohio Dep’t
of Commerce, 296 F.3d 477, 485 (6th Cir. 2002). Put another way, in the First
Amendment context, the other factors are essentially encompassed by the analysis of the
movant’s likelihood of success on the merits, which is a question of law that must be
reviewed de novo. Tenke Corp., 511 F.3d at 541.
III
SMART’s actions are reviewed for reasonableness and viewpoint neutrality
because the advertising space created by SMART was a nonpublic forum. We are

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required to classify the forum under the Supreme Court’s forum analysis, which courts
use to determine “whether a state-imposed restriction on access to public property is
constitutionally permissible.” United Food & Commercial Workers Union v. Sw. Ohio
Reg’l Transit Auth., 163 F.3d 341, 349 (6th Cir. 1998). It is undisputed that SMART’s
restrictions are state-imposed, see Mich. Comp. Laws § 124.403, and that the relevant
forum is the advertising space on SMART’s buses. The analysis, therefore, turns on
whether the advertising space is a traditional public, designated public, or nonpublic
forum. United Food, 163 F.3d at 349. The forum type dictates the level of scrutiny
applied to content-based restrictions like SMART’s advertising rules. See Cornelius v.
NAACP Legal Defense and Education Fund, 473 U.S. 788, 800 (1985). The parties
agree that this case does not involve a traditional public forum. In distinguishing
between a designated public forum and a non-public forum, we focus on whether the
government intentionally opened the forum for public discourse. See United Food,
163 F.3d at 350. We are guided not only by the government’s explicit statements,
policy, and practice, id., but also by the “nature of the property and its compatibility with
expressive activity to discern the government’s intent.” Cornelius, 473 U.S. at 802.
SMART’s tight control over the advertising space and the multiple rules
governing advertising content make the space incompatible with the public discourse,
assembly, and debate that characterize a designated public forum. Although SMART’s
written policy does not explicitly identify the buses as a nonpublic forum, SMART’s
policy restricts the content of that forum. SMART has banned political advertisements,
speech that is the hallmark of a public forum. Moreover, SMART has limited the forum
by restricting the type of content that nonpolitical advertisers can display. While
reasonable minds can disagree as to the extent of the restriction—SMART has provided
only three examples of excluded advertisements—the policy of exclusion has been
exercised in a manner consistent with the policy statement.
The Supreme Court held that similar restrictions created a nonpublic forum in
Lehman v. City of Shaker Heights, 418 U.S. 298, 299, 301–302 (1974). The plaintiff in
Lehman was a political candidate that sought to place political advertisements on “car

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cards” on a city’s transit vehicles. The Lehman Court held that advertising space sold
on city buses was not a public forum because the city had rejected all political
advertisements. The plurality reasoned that a ban on political advertisements was a
“managerial decision to limit [advertising] space to innocuous and less controversial
commercial and service oriented advertising.” Id. at 304. The plurality noted that under
a contrary holding, “display cases in public hospitals, libraries, office buildings, military
compounds, and other public facilities immediately would become Hyde Parks open to
every would-be pamphleteer and politician.” Id. Justice Douglas, concurring to provide
the fifth vote, was even more emphatic, quoting Justice Brandeis as follows:
“[a]dvertisements of this sort are constantly before the eyes of observers
on the streets and in street cars to be seen without the exercise of choice
or volition on their part. Other forms of advertising are ordinarily seen
as a matter of choice on the part of the observer. . . . In the case of
newspapers and magazines, there must be some seeking by the one who
is to see and read the advertisement. The radio can be turned off, but not
so the billboard or street car placard.”
Id. at 307-08 (Douglas, J., concurring), quoting Packer Corp. v. Utah, 285 U.S. 105, 110
(1932).
AFDI attempts to distinguish Lehman by relying on three cases in which courts
have treated the exterior of city buses as designated public forums. However, in each
of those cases, the courts held that a designated public forum existed because the transit
authority had accepted most, but not all, political advertisements.

In United Food,

163 F.3d at 352, the city had allowed a wide array of political and public speech on the
side of its buses, including advertisements by political candidates for public office, but
not advertising “of controversial public issues.” We held that by allowing political
advertisements, the city had opened the forum to the public; therefore, the city’s
rejection of controversial advertisements was subject to strict scrutiny:
In accepting a wide array of political and public-issue speech, SORTA
has demonstrated its intent to designate its advertising space a public
forum. Acceptance of a wide array of advertisements, including
political and public-issue advertisements, is indicative of the
government's intent to create an open forum. Acceptance of political

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and public-issue advertisements, which by their very nature generate
conflict, signals a willingness on the part of the government to open the
property to controversial speech, which the Court in Lehman recognized
as inconsistent with operating the property solely as a commercial
venture.
Id. at 355. Similarly, in New York Magazine v. Metropolitan Transportation Authority,
136 F.3d 123, 129–30 (2d Cir. 1998), the Second Circuit held that the sides of New York
City transit vehicles were a designated public forum “because the MTA accepts both
political and commercial advertising.” The New York Magazine court reasoned that
“[a]llowing political speech . . . evidences a general intent to open a space for discourse,
and a deliberate acceptance of the possibility of clashes of opinion and controversy that
the Court in Lehman recognized as inconsistent with sound commercial practice.” Id.
at 130.

The court in the third case, American Freedom Defense Initiative v.

Metropolitan Transportation Authority, No. 11 Civ. 6774, 2012 WL 2958178, at *14–16
(S.D.N.Y. July 20, 2012), held that it was bound by the New York Magazine decision
because the same MTA policy was at issue. SMART, by contrast, has completely
banned political advertising, showing its intent to act as a commercial proprietor and to
maintain its advertising space for purposes that indicate that the space is a nonpublic
forum.
The fact that SMART allowed the atheist advertisement does not, as AFDI
contends, demonstrate that the forum was open to political advertisements. As the First
Circuit has noted, “[o]ne or more instances of erratic enforcement of a policy does not
itself defeat the government’s intent not to create a public forum.” Ridley v. Mass. Bay
Transp. Auth., 390 F.3d 65, 78 (1st Cir. 2004). Although SMART’s practice of
excluding advertisements is not as extensively documented as that in Ridley—there the
transit authority had excluded seventeen advertisements—the reasoning is no less
persuasive. Because SMART’s policy and practice demonstrate an intent to create a
nonpublic forum, one purported aberration would not vitiate that intent. In any event,
the atheist advertisement could reasonably have been allowed by SMART as consistent
with SMART’s policy. The advertisement could reasonably have been viewed as
nonpolitical, as explained below.

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The second part of the inquiry—the relationship between the restrictions and the
purpose of the forum—also weighs in favor of finding that SMART created a nonpublic
forum. SMART’s advertisements are intended to boost revenue for the transit authority.
SMART has stated that its policy of advertisement restrictions is intended to “minimize
chance of abuse, the appearance of favoritism, and the risk of imposing upon a captive
audience.” Allowing the discussion of politics would likely decrease SMART’s
revenue. For example, if a fast-food restaurant sold advertising space on the side of its
store to a neo-Nazi political group for a campaign advertisement, the restaurant would
be likely to lose business. Similarly, SMART’s ridership likely would diminish were
SMART to allow political advertisements. The reason for the restrictions ties directly
to the purpose of the forum—raising revenue—and therefore indicates that SMART
wanted to establish a nonpublic forum instead of opening the forum to the public. In
short, though some municipal bus systems permit wide-ranging political advertisements,
other bus systems need not.
IV
Since the advertising space on SMART’s vehicles is a nonpublic forum, the
content restrictions imposed on that space are constitutional as long as they are
reasonable and viewpoint neutral. See Pleasant Grove City v. Summum, 555 U.S. 460,
470 (2009). SMART could reasonably view the fatwa advertisement as falling within
the prohibition against political advertisements, and AFDI is unlikely to succeed with
its counterarguments that these rules are unconstitutional or merely a pretext for
SMART’s disagreement with AFDI’s viewpoint.
First, SMART’s prohibition of political advertisements appears reasonable and
constitutional on its face. The reasonableness of a given restriction “must be assessed
in the light of the purpose of the forum and all surrounding circumstances.” Cornelius,
473 U.S. at 809. The reasonableness inquiry turns on “whether the proposed conduct
would ‘actually interfere’ with the forum’s stated purposes.” United Food, 163 F.3d at
358 (quoting Air Line Pilots Ass’n v. Dep’t of Aviation, 45 F.3d 1144, 1159 (7th Cir.
1995)). As discussed above, the policy serves a viewpoint-neutral purpose as in Lehman

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and does not run afoul of the problems with the partial bans on political advertisements
in United Food or New York Magazine. An outright ban on political advertisements is
permissible if it is a “managerial decision” focused on increasing revenue to limit
advertising “space to innocuous and less controversial commercial and service oriented
advertising.” Lehman, 418 U.S. at 304. It was reasonable for SMART to focus on
longer-term commercial advertising in an effort to boost revenue instead of short-term
political advertisements that might alienate riders. SMART reasonably concluded that
permitting any political advertisement could interfere with the forum’s revenuegenerating purpose. It was generally permissible, in other words, for SMART to permit
commercial and public service ads, but to turn down political ads.
Assuming this is so, it necessarily follows that such distinctions must be made
on an ad-by-ad basis, and that some cases will be close. A commercial ad may have
political overtones, such as the ad in the New York Magazine case, which read, “Possibly
the only good thing in New York Rudy hasn’t taken credit for.” Determining the extent
to which such an ad is political requires some judgment in marginal cases, with
knowledge of the current political context, while in contrast a “Vote for Giuliani” ad
clearly would be political and a “Buy New York Magazine” ad clearly would not.
However, merely because it is sometimes unclear whether an ad is political does not
mean the distinction cannot be drawn in the case of a nonpublic forum. The holding in
Lehman demands that fine lines be drawn. Otherwise, as a practical matter, a nonpublic
forum could never categorically exclude political speech.
This reasoning is consistent with Shuttlesworth v. City of Birmingham, 394 U.S.
147, 150–51 (1969), which held unconstitutional ordinances that vested unbridled
discretion in the hands of a government official or agency. Shuttlesworth was animated
by the concern that unbridled discretion would give decisionmakers “substantial power
to discriminate based on the content or viewpoint of the speech.” H.D.V.-Greektown,
LLC v. City of Detroit, 568 F.3d 609, 620 (6th Cir. 2009). To avoid the Shuttlesworthdiscretion problem, ordinances “must contain precise and objective criteria on which
[officials] must make their decisions; an ordinance that gives too much discretion to

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public officials is invalid.” Id. at 621 (internal quotation marks omitted). Put more
succinctly, the rule may not be so vague that “a person of ordinary intelligence [could
not] readily identify the applicable standard for inclusion and exclusion.” United Food,
163 F.3d at 358–59. SMART’s advertising rules guide officials in distinguishing
between permissible and impermissible advertisements in a non-arbitrary fashion. The
rule in question prohibits “[p]olitical or political campaign advertising.” This directive
is not so vague or ambiguous that “a person [could not] readily identify the applicable
standard.” Id. Although, as the district court noted, there were not additional guidelines
that precisely define the term “political,” there is no question that a person of ordinary
intelligence can identify what is or is not political. On the margins, there may be some
difficult determinations, on which reasonable people may disagree.

However,

eliminating all discretion is not required by Shuttlesworth. Whenever a rule is applied
by an official, a certain amount of discretion must necessarily be exercised. While
decisionmakers under SMART’s policy may at times make incorrect determinations
within their limited discretion, these errors are not the sort that Shuttlesworth intended
to address. As discussed above, Shuttlesworth was concerned with the extent of the
discretion and not with decisions made within the bounds of properly vested discretion.
SMART’s policies do not appear to have vested unbridled discretion in the
decisionmakers in the manner contemplated by Shuttlesworth.

That a different

administrator may have ruled differently in a close case is not enough to invalidate the
exclusion of political ads from a non-public forum.
Our court’s decision in United Food, 163 F.3d at 352, does not compel a different
conclusion. The transit authority in United Food sold bus advertising space, but
disallowed advertising that was either aesthetically displeasing or that addressed
“controversial public issues.” Id. We found unbridled discretion had been vested in the
decisionmakers because there was no articulated definitive standard to determine what
was “controversial.”

This discretion allowed for the arbitrary rejection of

advertisements based on viewpoint. By contrast, SMART’s policy did not vest similar
wide-ranging discretion in its employees. By adopting a blanket prohibition on political
advertisements, SMART avoided the pitfalls of employee discretion presented by the

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policy in United Food. A SMART employee must determine whether or not something
is political—a reasonably objective exercise. In the United Food situation, however, the
employee would have to determine where—on a hypothetical spectrum of
controversy—an advertisement fell. The determination in United Food inherently would
require a more subjective evaluation than the decision required under SMART’s policies.
Because of the difference between the two inquiries, SMART’s policy does not create
the same Shuttlesworth problem that plagued the policy in United Food.
V
Because the ban on political advertising was permissible, it was reasonable for
SMART to turn down the fatwa advertisement as political.

Through the fatwa

advertisement, AFDI seeks to oppose the perceived sanction of violence that AFDI
believes threatens people in the United States.

The plain language of the

advertisement—“Fatwa on your head? . . . Leaving Islam?”—can well be read to suggest
that Muslim-Americans who decide to leave Islam will be threatened or killed. The
decision to place the advertisement in a Detroit suburb rather than in the Middle East
indicates that the authors believe that such threats are present in the United States. To
substantiate our understanding of the apparent message of the advertisement, we may
look beyond the four corners to websites that the advertisement incorporates by
reference. See Ridley, 390 F.3d at 74. A visit to the website listed in the Fatwa
advertisement,

RefugeFromIslam.com,

confirms

our

understanding

of

the

advertisement’s message. The website is a blog that contains postings about both AFDI
and an organization called “Stop Islamization of America.” RefugeFromIslam.com (last
visited October 23, 2012). The site also refers to conferences about “Islamic Law in
America,” accusations of threatened honor killings in the United States, and numerous
other political issues.
Based on recent court cases, legislative actions, and political speeches, it was
reasonable for SMART to conclude that the content of AFDI’s advertisement—the
purported threat of violence against nonconforming Muslims in America—is, in America
today, decidedly political. The very idea of having Islamic law apply in the United

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States has become one of political controversy. In Awad v. Ziriax, 670 F.3d 1111 (10th
Cir. 2012), the court struck down a voter-approved amendment to the Oklahoma
Constitution that would have forbidden courts from considering or using Sharia law.
The Oklahoma legislature put the amendment on the ballot, and over seventy percent of
voters approved. Id. at 1118. Legislatures in our own circuit have similarly addressed
Sharia law: a bill proposed last year in the Tennessee Senate would have made any
adherence to Sharia law a felony, punishable by up to fifteen years in prison. S.B. 1028,
107th Gen. Assemb., Reg. Sess. (TN 2011). The politicization of this issue is not
confined to state legislatures. During the 2012 presidential primary, former candidate
Newt Gingrich suggested a federal ban on Sharia law, stating, “I believe Sharia[ ]is a
mortal threat to the survival of freedom in the United States and in the world as we know
it.” Scott Shane, In Islamic Law, Gingrich Sees a Mortal Threat to U.S., N.Y. Times,
Dec. 21, 2011, at A22. The existence of these positions in the political sphere—whether
on ballots, in state legislatures, or in presidential primaries—could lead a reasonable
person to conclude that the enforcement of Islamic law in America has become a
political issue.
The reasonableness of SMART’s conclusion is confirmed by the language that
AFDI uses in its complaint. According to the complaint, AFDI “acts against the
treason being committed by national, state, and local government officials . . . in their
capitulation to the global jihad and Islamic supremacism.” Compl. ¶ 7. The complaint
explains that AFDI “promotes its political objectives by, inter alia, sponsoring anti-jihad
bus and billboard campaigns, which includes seeking advertising space on SMART
vehicles.”

Id. ¶ 8.

By its own admission, therefore, AFDI sought to place

advertisements on the SMART vehicle to “promote[] its political objectives.” Moreover,
by denying the placement of the fatwa advertisement, AFDI alleges that SMART
“denied Plaintiffs’ advertisement, and thus denied Plaintiffs access to a public forum to
express their political and religious message.” Id. ¶ 21. AFDI understood its own
advertisement to contain a political message; therefore, it would be reasonable for
SMART to read the same advertisement and reach the same conclusion.

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Not only was the designation of the advertisement reasonable, it was also
viewpoint neutral. As noted above, the AFDI advertisement expresses a political
message aimed at curbing the perceived threat of Islamic law enforcement in the United
States. The opposing viewpoint to AFDI’s position is not that Islam is good—as AFDI
appeared to suggest at oral argument—but rather either that Islamic law should be
enforced against Muslims in the United States or that concerns about the enforcement
of Islamic law in America are overblown. Either of these opposing views would be
comparably political. The banned content here is the debate about enforcement of
Islamic law in the United States, regardless of the viewpoint of the participants. Either
side of the debate would reasonably be labeled political and the content could be
restricted under SMART’s policy.
AFDI contends that SMART’s actions could not have been viewpoint neutral
because SMART allowed the atheist advertisement but disallowed the fatwa
advertisement. AFDI contends that because both advertisements discuss religion,
SMART must have discriminated against the fatwa advertisement based on viewpoint.
The analogy, however, does not hold. The atheist advertisement could be viewed as a
general outreach to people who share the Detroit Coalition’s beliefs, without setting out
any position that could result in political action. The fatwa advertisement, however,
addresses a specific issue that has been politicized. Two hypothetical changes to the
advertisements demonstrate the difference. Had the atheist advertisement read, “Being
forced to say the Pledge of Allegiance even though you don’t believe in God? You are
not alone.

DetroitCoR.org,” the advertisement would likely be political.

The

hypothetical advertisement would address an issue that has been politicized—requiring
atheists to recite “under God,” see, e.g., Myers v. Loudoun Cnty. Pub. Schools, 418 F.3d
395 (4th Cir. 2005)—and the advertisement would presumably not be permitted under
SMART’s policies. Similarly, had AFDI changed its advertisement to read, without
more: “Thinking of Leaving Islam?

Got Questions?

Get Answers,” SMART

presumably could not ban the advertisement. These changes reflect differences in the
two actual advertisements that a reasonable administrator, applying an objective
standard, could identify.

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Moreover, when SMART had been previously presented with advertisements that
were both religious and political, it rejected them. The Pickney Pro-Life organization
approached SMART with a proposed advertisement that depicted Jesus and stated,
“Hurting after Abortion? Jesus, I trust you.” Following the same procedure applied to
the fatwa advertisement, CBS referred the matter to SMART for a final determination.
SMART reasonably determined that the advertisement contained political speech
regarding abortion, even though the advertisement also contained a religious message.
AFDI’s reliance on the testimony of Beth Gibbons, a marketing manager for
SMART, is misplaced. Gibbons testified that she saw “nothing about [the fatwa
advertisement] itself that was political.” She also testified that her opinion of the fatwa
advertisement changed only after reading about the controversy surrounding the same
advertisement in Miami, Florida. Gibbons stated: “I knew that [the fatwa advertisement]
was of concern in that there is controversy on both sides of the issue on whether they
should be posted.” Even though Gibbons was designated as a Rule 30(b)(6) witness, a
review of the transcript indicates that the above statements expressed Gibbon’s personal
opinion after she was shown the fatwa advertisement at the deposition. Gibbons was not
the SMART official who ultimately found the advertisement to be political, and
elsewhere she testified that SMART had rejected the advertisement because it was
political.
VI
Plaintiffs are thus not likely to succeed on the merits of their injunction suit. The
other three factors in the preliminary injunction test have largely been considered in the
preceding analysis.
AFDI alleges that it will suffer irreparable injury without the preliminary
injunction, due to the continuing denial of its First Amendment rights. That argument
is unpersuasive because the restrictions imposed on the use of a nonpublic forum are
reasonable, viewpoint-neutral limits that do not deny AFDI its First Amendment rights.
The injunction would also cause substantial harm to others, by compelling SMART to

Case: 11-1538

No. 11-1538

Document: 006111476584

Filed: 10/25/2012

AFDI, et al. v. SMART, et al.

Page: 15

Page 15

post on its buses messages that have the strong potential to alienate people and decrease
ridership.
Finally, the public interest would not be served by this preliminary injunction.
While the public interest is promoted by the robust enforcement of constitutional rights,
as well as by the healthy discussion of political issues in appropriate fora, none of these
interests is degraded by the removal of this injunction. For the reasons discussed above,
these interests remain undamaged because SMART’s reasonable, viewpoint-neutral
limits on the use of this nonpublic forum neither violate AFDI’s constitutional rights nor
prevent political discussion in public fora.
VII
The district court’s grant of a preliminary injunction is reversed.