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

Filing 57

MOTION for Summary Judgment by Beth Gibbons, John Hertel, Suburban Mobility Authority For Regional Transportation (SMART). (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P, # 18 Exhibit Q, # 19 Exhibit R, # 20 Exhibit S) (Hildebrandt, Christian)

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

v.
SUBURBAN MOBILITY AUTHORITY
FOR REGIONAL TRANSPORTATION
(“SMART”); GARY L. HENDRICKSON,
Individually and in his official capacity as
Chief Executive of SMART, JOHN HERTEL,
Individually and in his official capacity as
General Manager of SMART and BETH
GIBBONS, individually and in her official
Capacity as Marketing Program Manager
Of SMART,

DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT PURSUANT
TO Fed.R.Civ.P. 56

Defendants.
Robert J. Muise (P62849)
David Yerushalmi, Esq. (Arz. 009616; DC
978179, Cal. 132011; NY 4632568)
Counsel for Plaintiffs
3000 Green Rd., #131098
Ann Arbor, MI 48113
[phone]
[e-mail]
[e-mail]

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

Erin Elizabeth Mersino (P70886)
Co-Counsel for Plaintiffs
24 Frank Lloyd Wright Drive
P.O. Box 393
Ann Arbor, MI 48106
[phone] [e-mail]

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

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
NOW COME Defendants, SUBURBAN MOBILITY AUTHORITY FOR
REGIONAL TRANSPORTATION, JOHN HERTEL and BETH GIBBONS, by
and through their attorneys, Vandeveer Garzia, P.C., and in reliance upon the
arguments set forth in the attached Brief in Support of Motion for Summary
Judgment, Defendants hereby request Summary Judgment pursuant to FRCP Rule
56 in that no genuine issue of material fact exists to preclude judgment in favor of
Defendants on all of Plaintiffs’ claims.
Pursuant to USDC ED Rule 7.1, Defendants specifically state that they have
sought concurrence in this Motion, but concurrence was denied pursuant to an
email message from Robert Muise dated July 29, 2013.
WHEREFORE, these Defendants, SUBURBAN MOBILITY AUTHORITY
FOR REGIONAL TRANSPORTATION, JOHN HERTEL and BETH GIBBONS,
respectfully request that this Court grant their Motion for Summary Judgment,
further dismiss Plaintiffs’ Complaint in its entirety, and award it costs and
attorneys’ fees wrongfully incurred.

2

VANDEVEER GARZIA
By: __/s/ Christian E. Hildebrandt_________
JOHN J. LYNCH P16887
CHRISTIAN E. HILDEBRANDT P46989
Attorneys for Plaintiffs
1450 W. Long Lake Rd., Ste. 100
Troy, MI 48098-6330
[phone]
By: ___/s/ Avery E. Gordon_______________
SUBURBAN MOBILITY AUTHORITY FOR
REGIONAL TRANSPORTATION
Avery E. Gordon (P41194)
Anthony Chubb (P72608)
Co-Counsel for Plaintiffs
535 Griswold Street, Suite 600
Detroit, MI 48226
Dated: August 15, 2013

3

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

v.
SUBURBAN MOBILITY AUTHORITY
FOR REGIONAL TRANSPORTATION
(“SMART”); GARY L. HENDRICKSON,
Individually and in his official capacity as
Chief Executive of SMART, JOHN HERTEL,
Individually and in his official capacity as
General Manager of SMART and BETH
GIBBONS, individually and in her official
Capacity as Marketing Program Manager
Of SMART,

DEFENDANTS’ BRIEF IN SUPPORT
OF MOTION FOR
SUMMARY JUDGMENT PURSUANT
TO Fed.R.Civ.P. 56

Defendants.
Robert J. Muise (P62849)
David Yerushalmi, Esq. (Arz. 009616; DC
978179, Cal. 132011; NY 4632568)
Counsel for Plaintiffs
3000 Green Rd., #131098
Ann Arbor, MI 48113
[phone]
[e-mail]
[e-mail]

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

Erin Elizabeth Mersino (P70886)
Co-Counsel for Plaintiffs
24 Frank Lloyd Wright Drive
P.O. Box 393
Ann Arbor, MI 48106
[phone] [e-mail]

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

TABLE OF CONTENTS
STATEMENT OF ISSUES PRESENTED.............................................................. iii
STATEMENT OF MOST CONTROLLING AUTHORITY ..................................iv
TABLE OF AUTHORITIES ..................................................................................... v
STATEMENT OF FACTS AND STATEMENT OF THE CASE ........................... 1
SUMMARY OF ARGUMENT ................................................................................. 6
ARGUMENT ............................................................................................................. 7
I.

SMART’s advertising space is a non-public forum, and not traditionally held
open for speech and discourse of unlimited nature. ....................................... 9
a.
b.

II.

SMART’s advertising space is a non-public forum ........................... 10
To restrict speech in a non-public forum, SMART needs only a
reasonable basis for its policy and any restrictions that are supported
by a rational basis must be upheld. .................................................. 16

Plaintiffs’ speech, as political and/or scornful speech, was permissibly
restricted in SMART’s non-public advertising forum. ................................ 18
a.
b.

III.

Political Speech .................................................................................. 18
Speech that is Likely to Hold a Group of Persons up to Scorn or
Ridicule................................................................................................ 29

Defendants did not engage in viewpoint discrimination ............................... 32

CONCLUSION AND RELIEF SOUGHT .............................................................. 37

ii

STATEMENT OF ISSUES PRESENTED

1.

Whether the SUBURBAN MOBILITY AUTHORITY FOR REGIONAL
TRANSPORTATION, through its advertising content policy has created a
non-public forum, enabling it to limit the types and content of speech
displayed on and in its buses.

2.

Whether Plaintiffs’ advertisement represents political speech that is barred
by SMART’s constitutional advertising content policy.

3.

Whether Plaintiffs’ advertisement represents speech that is likely to hold a
person or group of persons up to scorn or ridicule that is barred by
SMART’s constitutional advertising content policy.

4.

Whether SMART’s appropriately restricted Plaintiffs’ advertisement under
its viewpoint neutral advertising content policy.

iii

STATEMENT OF MOST CONTROLLING AUTHORITY
Defendants hereby assert that the most controlling authority necessary for
the resolution on this Motion for Summary Judgment pursuant to Fed. R. Civ. P.
56 is as follows:

Amer. Freedom Def. Init. v Suburban Mobility Auth. For Reg. Trans., 698 F.3d 885
(2012)
Lehman v City of Shaker Heights 418 U.S. 298 (1974)
Ridley v Mass. Bay Transp. Auth. 390 F.3d 65 78 (1st Cir 2004)

iv

TABLE OF AUTHORITIES
Cases
Amer. Freedom Def. Init. v Suburban Mobility Auth. For Reg. Trans., 698 F.3d 885
(2012) ................................................................................................................passim
Awad v Ziriax, 670 F3d 1111 (10th Cir. 2012) ......................................................... 26
Barnes v Owens-Corning Fiberglas Corp., 201 F3d 815 (6th Cir. 2000) ................ 24
Capital Square Review & Advisory Bd. v Pinette, 515 U.S. 753 (1995) ................... 9
Children First Foundation, Inc. v Martinez, 2007 WL 4618524, at *11 (N.D.N.Y.
2007) ........................................................................................................................ 17
Christian Coalition of Alabama v Cole, 355 F.3d 1288 (11th Cir. 2004) ................ 22
Christ’s Bride Ministries, Inc. v SEPTA, 148 F 3d 242 (1998) ............................... 17
Cornelius v NAACP Legal Defense and Educational Fund, 473 U.S. 788 (1985)
..................................................................................................................9, 10, 11, 16
Eubanks v Schmidt, 126 F. Supp. 2d 451 (W.D. Ky 2000) ..................................... 23
Hague v CIO, 307 U.S. 496, 515 (1939) ................................................................. 11
Helms v Zubaty, 495 F.3d 252 (6th Cir. 2007) ......................................................... 13
Laurel Woods Apartments v Roumayah, 274 Mich App 631 (2007) ...................... 19
Lehman v City of Shaker Heights 418 U.S. 298 (1974)....................................passim
Myers v Loudon Cnty Pub. Schools, 418 F.3d 395 (4th Cir. 2005) .......................... 34
Packer Corp. v Utah, 285 US 105 (1932) ............................................................... 16
Pennsylvania R. Co. v Girard, 210 F2d 437, 440 (6th Cir. 1954) ............................ 24
Perry Education Ass’n v Perry Local Educators’ Ass’n., 460 U.S. 37, 45 (1983)
......................................................................................................................10, 13, 16
Ridley v Mass. Bay Transp. Auth. 390 F.3d 65 78 (1st Cir 2004) .....................passim
United States v Kokinda, 497 U.S. 720 (1990) ........................................................ 10
Wisconsin Right to Life, Inc. v Paradise, 138 F.3d 1183 (7th Cir. 1998) ............... 22
v

Statutes
MCL §124.401, et seq., at §124.403 ............................................................................ 1

vi

STATEMENT OF FACTS AND STATEMENT OF THE CASE
The Suburban Mobility Authority for Regional Transportation (“SMART”)
is an instrumentality of the State of Michigan established by Michigan Public Act
204 of 1967. MCL §124.401, et seq., at §124.403. Its mission critical purpose,
pursuant to the Act, is to operate public mass transportation throughout the four
southeastern-most counties in Michigan (Wayne, Oakland, Macomb and Monroe
Counties).
Incidental to SMART’s provision of public transportation, SMART sells
advertising on the interior and exterior of its transit vehicles for the purpose of
enhancing revenue and to further support its mission critical purpose. The sale of
advertising is conducted by SMART’s exclusive agent CBS Outdoor, Inc. (“CBS”
or “Contractor”). This agreement was established in a contract executed in
February of 2009. (Exhibit A).
The Contract includes a provision at Section 5.07(B), “Restriction on
Content”, which prohibits certain advertising as follows:
In order to minimize chances of abuse, the appearance of favoritism,
and the risk of imposing upon a captive audience, Offeror shall not
allow the following content:
1.

Political or political campaign advertising.

2.

Advertising promoting the sale of alcohol or tobacco.

3.

Advertising that is false, misleading, or deceptive.
1

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.

(Exhibit A) (emphasis added). The Contract further sets forth, in Section 5.07(C),
“REVIEW OF ADVERTISING CONTENT,” the process followed by the Contractor for
the review of advertising material to determine violations of the Restriction on
Content, as follows:
Before displaying any advertising, exhibit material, or announcement
which Contractor [CBS] believes may be in violation of Section
5.07.B, “Restriction on Content,” Contractor shall first submit the
material to SMART for review. SMART shall make the final
determination as to all violations of Section 5.07.B.
Throughout the term of the Contract, SMART has actively enforced the
content policy and has rejected all advertising deemed to violate the Authority’s
content policy. For example, SMART has previously rejected proposed
advertisements deemed to violate the policy which were deemed to be political,
(Exhibit B, Pinckney Pro-Life advertisement), as well as advertisements deemed
to be in advocacy of violence. (Exhibit C, “Red Dead Redemption” video game
advertisement). In addition to these, Plaintiffs’ two advertisements were rejected
under the policy.
On May 12, 2010, Plaintiff Geller contacted the CBS Sales Manager, Robert
Hawkins, requesting the posting of advertisements on SMART buses. The
2

advertisement proposed by Plaintiffs states “Fatwa on your head? Is your family or
community threatening you? LEAVING ISLAM? Got Questions? Get Answers!
RefugeFromIslam.com”. (Exhibit D, Plaintiffs’ proposed advertisement).
CBS initially determined that the ad might violate the content policy and
contacted SMART requesting a final determination. (Exhibit E, Hawkins
Affidavit). SMART’s Marketing Manager, Beth Gibbons, reviewed the proposed
advertisement and discussed it with staff and attorneys for SMART. The
discussion was focused on the application of the content policy to the proposed
advertisement. (Exhibit F, Gibbons Affidavit; Exhibit G, Deposition of Beth
Gibbons, June 25, 2013, at pp. 52-54).
As part of this review, SMART personnel, consistent with how this policy is
put into practice, reviewed the content of the website referred to as well. The
website, RefugefromIslam.com, demonstrated that Plaintiff, AFDI, was a
quintessentially political organization. For instance, contained on the website was
the following excerpt:
Freedom of religion. That is the American way. You can leave
Islam. We can help. We fight the Sharia law.
All over the world, apostates from Islam are harassed, beaten,
threatened with death, and killed outright. From Egypt to Iran, from
Somalia to Indonesia, people who make the decision in conscience to
leave Islam are denied their basic human rights while the world looks
on with indifference.

3

It's a matter of Islamic law. Muhammad, the prophet of Islam, called
for apostates to be killed. All the schools of Islamic jurisprudence
teach the same thing. The Muslim countries that implement Sharia
fully today enforce that death penalty, and in other Muslim countries
individual Muslims are often all too willing to take the law into their
own hands and kill apostates if the governing authorities will not do
the job.
But America is different. America is the Land of the Free. In America,
we respect the individual conscience. Now Islamic supremacists are
trying to enforce Islamic law here. Apostates in America have
gathered together only in the presence of armed guards. High-profile
apostates have been threatened with death. One Islamic scholar who
didn't even leave Islam but began to teach principles that Muslims
consider heretical was murdered in Arizona. We are determined not to
allow the Sharia death penalty for apostasy to spread to American soil.
We are determined to protect the free conscience and the free soul. If
you choose to leave Islam, we will do everything within our power to
help you find safety and refuge from those who would threaten you
and harm you.
(Exhibit H - RefugeFromIslam.com, post titled “THIS IS AMERICA, LAND OF
THE FREE AND HOME OF THE APOSTATES,” printed 10/12/2011, from
http://freedomdefense. typepad.com /leave-islam/) (emphasis added). A general
review of the website showed extensive political commentary and action
throughout.
Following this extensive review, SMART’s General Manager determined
that the proposed advertisement violated at least two of the enumerated
prohibitions within the content policy. Specifically, it was found that the proposed
advertisement was in violation of Contract Section 5.07(B)(1), as political
advertising, and Section 5.07(B)(4), as likely to hold up to scorn and ridicule a
4

group of persons. SMART therefore rejected the proposed advertisement. Plaintiffs
were notified of the rejection.
Plaintiffs brought suit (Exhibit I), and sought a TRO, or in the alternative, a
preliminary injunction, to compel SMART to post the ads. In their complaint,
Plaintiffs described their action as one to allow the posting of “political speech” by
stating:
1.
This case seeks to protect and vindicate fundamental
constitutional rights. It is a civil rights action brought under the First
and Fourteenth Amendments to the United States Constitution and 42
USC §1983 challenge Plaintiffs’ restriction on Plaintiffs’ right to
engage in political and religious speech in a public forum.
*****
8.
FDI promotes its political objectives by, inter alia, sponsoring
anti-Jihad bus and billboard campaigns, which includes seeking
advertising space on SMART vehicles.
9.
Plaintiff Pamela Geller is the Executive Director of FDI and
she engages in political and religious speech through FDI’s
activities, including FDI’s anti-Jihad bus and billboard campaigns.
*****
21. On or about May 24, 2010, Defendants denied Plaintiffs’
request and refused to display Plaintiffs’ advertisement. Defendant[s]
denied Plaintiffs’ advertisement, and thus denied Plaintiffs access to a
public forum to express their political and religious message, based
on the content and viewpoint expressed by Plaintiffs’ message.
*****
23. By reason of the aforementioned Free Speech Restriction
created, adopted, and enforced under color of state law, Plaintiffs have
deprived Plaintiffs of their right to engage in political and religious
speech in a public forum. . . .
(Exhibit I, Plaintiffs’ Complaint, filed May 27, 2010) (emphasis added).
5

On March 31, 2011, the District Court entered an order granting Plaintiffs’
Motion for Preliminary Injunction. (Exhibit J, Order). Defendants appealed the
Preliminary Injunction to the Sixth Circuit Court of Appeals, which, ruled: (1) that
SMART had created a non-public forum; (2) that SMART’s content rules were
resonble and viewpoint-neutral; and (3) affirmed SAMRT’s view of the political
nature of the advertisement. The Sixth Circuit reversed this Court’s order and
remanded the matter in a published opinion of the Court dated October 25, 2012.
Amer. Freedom Def. Init. v Suburban Mobility Auth. For Reg. Trans., 698 F.3d 885
(2012) (Exhibit K).
After remand, the matter proceeded through discovery in this Court. This
motion for summary judgment is filed by Defendants to uphold the legal findings
of the Sixth Circuit in that the facts and law applied by the Sixth Circuit in this
matter have not changed since the opinion, and there is no genuine issue of
material fact that would preclude summary judgment by this Court.
SUMMARY OF ARGUMENT
SMART, as a governmental agency, allows commercial advertising on the
sides of and inside its coaches to generate revenue. This additional revenue allows
it to perform its mission critical purpose of operating public mass transportation
throughout the four southeastern-most counties in Michigan. SMART has created a

6

non-public forum for this advertising that is not traditionally held open for speech
and discourse of unlimited nature.
In a non-public forum, a governmental agency such as SMART may
constitutionally limit speech as long as it has a rational basis for doing so.
SMART’s content policy, which prohibits political speech and speech that would
hold an individual or group of persons up to scorn or ridicule, is set forth “in order
to minimize chances of abuse, the appearance of favoritism, and the risk of
imposing upon a captive audience.” This is a rational basis that has been upheld in
other case law from the Sixth Circuit and the U.S. Supreme Court. SMART has
other rational bases for its content policy as set forth in the following pages.
Plaintiffs’ advertisement is in violation of both the restriction on political
advertising and the ‘scorn or ridicule’ prohibition, and was constitutionally rejected
by SMART pursuant to its content policy. SMART’s actions were not based upon
the particular viewpoint espoused by Plaintiffs but were rather based upon the
previously promulgated policy and therefore it is viewpoint-neutral. Further,
throughout the history of the current advertising policy, SMART has actively and
consistently applied its policy to those ads that required additional review.
ARGUMENT
The seminal case concerning whether a bus authority, as a governmental
agency, may constitutionally limit certain kinds of speech and certain speakers is
7

Lehman v City of Shaker Heights 418 U.S. 298 (1974). The plaintiff in Lehman
was a political candidate for office who sought to p[lace advertisements for his
candidacy on “car cards” on city buses. “Car cards” are interior advertisements that
are frequently seen lining the space at the intersection of the sides of the bus with
the interior ceiling.
The City of Shaker Heights refused the advertisements. Analyzing the type
of forum at issue in the Lehman and the nature of the City’s restrictions on political
speech, The U. S. Supreme Court found that a bus authority who treats its
advertising space as a non-public forum may constitutionally limit the types of
speech displayed in the forum. The Sixth Circuit in this case relied in large part
on the Lehman decision to hold that SMART had also created a non-public
forum, Amer. Freedom Def. Init., at 890-92, and that SMART had a reasonable
and viewpoint neutral “rational basis” for restricting the advertisement at
issue here. Id., at 892-94.
The facts and law have not changed since the Sixth Circuit’s opinion and
summary judgment is therefore appropriate.

8

I.

SMART’s advertising space is a non-public forum, and not traditionally
held open for speech and discourse of unlimited nature.
Plaintiffs have the burden of proof of establishing that SMART has

impermissibly regulated Plaintiffs’ speech or engaged in viewpoint discrimination.
As both this Court and the Sixth Circuit have held, SMART has created a nonpublic forum wherein it permits limited advertisements on and inside its buses. It
has consistently applied a pre-existing content policy, and appropriately excluded
Plaintiffs’ advertisement under that constitutionally sound policy.
Plaintiffs contend that their political advertisement is protected free speech.
Plaintiffs then presumptively assert that they have an unlimited and absolute right
to display any and all proposed, non-commercial advertisements regardless of
SMART’s content policy. Plaintiffs’ analysis is too simplistic under the
circumstances. Plaintiffs must also show that they have a right to display their
speech in this forum.
In Capital Square Review & Advisory Bd. v Pinette, 515 U.S. 753 (1995),
the U.S. Supreme Court recognized that “it is undeniable of course, that [even]
speech which is constitutionally protected against state suppression is not thereby
accorded a guaranteed forum on all property owned by the state.” (Emphasis
added).
Further, in Cornelius v NAACP Legal Defense and Educational Fund, 473
U.S. 788 (1985), the Supreme Court established that:
9

Even protected speech is not equally permissible in all places and all
times. Nothing in the constitution requires the Government freely to
grant access to all who wish to exercise their right to free speech on
every type of Government property without regard to the nature of the
property or to the disruption that might be cause by the speakers’
activities.
Id., at 799-800.
To appropriately balance the government’s interest in regulating the use of
its property and the public’s interest in free speech, courts have adopted a forum
analysis as a means of determining when the government’s interest in limiting the
use of property to its intended purpose outweighs the interest of those wishing to
use the property for other purposes. Accordingly, the extent to which the
government can control access depends on the nature of the relevant forum. United
States v Kokinda, 497 U.S. 720 (1990). Established case law has set forth three
distinct types of forums: traditional public forums, designated public forums, and
non-public forums. Cornelius v NAACP Legal Def. & Educ. Fund, 473 U.S. 788,
800 (1985).
a.

SMART’s advertising space is a non-public forum

It is well established within the law that exterior panels on city buses are not
considered traditional public forums. Traditional public forums are places that “by
long tradition or by government fiat have [been] devoted to assembly and debate.”
Perry Education Ass’n v Perry Local Educators’ Ass’n., 460 U.S. 37, 45 (1983).
Traditional public forums include streets, sidewalks, and parks that “have been
10

immemorially held in trust for the use of the public . . . for purposes of assembly,
communicating thoughts between citizens, and discussing public questions.”
Hague v CIO, 307 U.S. 496, 515 (1939). SMART has not created a traditional
public forum. During its years of operation, SMART has not, by tradition or fiat,
devoted its exterior advertising panels to unregulated debate. Certainly during the
existence of this policy, SMART has demonstrated a clear intention of limiting
access to its advertising space.
Despite two prior court rulings on the issue, Plaintiffs disingenuously assert
that SMART has established a designated public forum. A designated public forum
is the creation “by government designation of a place or channel of communication
for use by certain speakers, or for the discussions of certain subjects.” Cornelius,
473 U.S. at 802 (1985). In support of its position, Plaintiffs argue that SMART
established this designated public forum through its express policy and practices.
Plaintiffs’ argument with respect to SMART’s policy relies in part upon a
website page entitled “Advertising Guidelines.” In actuality, this page only
reinforces SMART’s commitment to a fair and deliberate review of proposed
advertising. (Exhibit L, web site page). The information on the website is
primarily promotional in nature and is not, nor is it intended to be, a
comprehensive content policy.

11

In fact, to the contrary, the page the Plaintiffs rely upon specifically informs
all who review it that “SMART has in place advertising guidelines for which all
advertisements are reviewed against. Any such advertising which does not violate
the SMART advertising guidelines or the law must be posted.” (Exhibit L). This
document does not create a designated public forum. In fact, SMART, by
government fiat, has specifically limited speech on its buses by reference to
external advertising guidelines.
Plaintiffs also argue that SMART has created a designated public forum
through its past practice. Plaintiffs refer to SMART’s prior acceptance of an atheist
awareness advertisement in support of their argument. (Exhibit M). The
advertisement, like Plaintiffs’ advertisement, was flagged by CBS Outdoor for
review and was reviewed by SMART for a final determination as to whether it
violated the content policy. In the case of the atheist awareness advertisement,
SMART found it to be purely religious in nature, and therefore found that it did not
violate the content policy. Past practice has always been to review and limit the
discourse permitted on the buses, a fact that militates against the finding of a
designated public forum.
Plaintiffs’ advertisement was afforded the same type of review. After
reviewing the advertisement, and the website referred to, it was determined that
Plaintiff’s advertisement was political in nature, and not purely religious. The
12

incendiary language also led SMART to decide it also held adherents to Islam,
particularly in families and the community, up to scorn and ridicule.
Through the application of this policy in this manner, SMART has
established a non-public forum. A non-public forum is “public property which is
not by tradition or designation a forum for public communication.” Perry Educ.
Ass’n, at 46. Moreover, “[c]ontrol over access to a nonpublic forum can be based
on subject matter and speaker identity so long as distinctions drawn are reasonable
in light of the purpose served by the forum and are viewpoint-neutral. [Citation
omitted]. That is, the government's decision to restrict access in a nonpublic forum
‘need only be reasonable.’” Helms v Zubaty, 495 F.3d 252 (6th Cir. 2007).
As noted above, the Lehman case is controlling of the exact issue in the
instant case. The Supreme Court found no constitutional violations, nor that any
indicia of traditional or designated public forums were present, stating:
Here, we have no open spaces, no meeting hall, park, street corner, or
other public thoroughfare. Instead, the city is engaged in commerce. It
must provide rapid, convenient, pleasant, and inexpensive service to
the commuters of Shaker Heights. The car card space, although
incidental to the provision of public transportation, is a part of the
commercial venture. In much the same way that a newspaper or
periodical, or even a radio or television station, need not accept every
proffer of advertising from the general public, a city transit system has
discretion to develop and make reasonable choices concerning the
type of advertising that may be displayed in its vehicles. In making
these choices, this Court has held that a public utility ‘will be
sustained in its protection of activities in public places when those
activities do not interfere with the general public convenience,
comfort and safety.”
13

Lehman, 418 US at 303. The Court further 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.’”
Lehman, at 304, as cited in Amer. Freedom Def. Init., at 890-91.
The reasoning in Lehman is applicable in the instant issue. The Lehman
court correctly recognized that the city’s refusal of the advertising was consistent
with its goal of providing rapid, convenient, pleasant service to commuters, and
that the City of Shaker Heights had the discretion to develop and make reasonable
choices concerning the types of advertising that may be displayed in its vehicles
and that the city’s refusal to accept political advertising was not a violation of the
First or Fourteenth Amendment. Id. at 303.
The Amer. Freedom Def. Init. Court’s reasoning is equally compelling. The
Sixth Circuit held:
We are guided not only by the government’s explicit statements,
policy, and practice, United Food [& Commercial Workers Union v
Sw. Ohio Reg’l Transit Authority, 163 F.3d 341, 350 (6th Cir. 1998)],
but also by the ‘nature of the property and its compatibility with
expressive activity to discern the government’s intent.” Cornelius [v
NAACP Legal Defense and Education Fund, 473 U.S. 788, 802
(1985)].
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 characterizes a
designated public forum. Although SMART’s written policy does
not explicitly identify the buses as a nonpublic forum, SMART’s
14

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.
*****
SMART [] 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 been
allowed by SMART as consistent with SMART’s policy. The
advertisement could reasonably have been viewed as nonpolitical, as
explained below.
Amer. Freedom Def. Init., at 890, 891-92 (emphasis added). As this Court
previously found, and as the Sixth Circuit held, SMART has created a non-public
forum with respect to its advertising space.

15

b.

To restrict speech in a non-public forum, SMART needs only a
reasonable basis for its policy and any restrictions that are
supported by a rational basis must be upheld.

In a non-public forum, a rational basis test is applied to any content
restrictions. Speech regulation in a non-public forum must be “reasonable in light
of the purposes served by the forum.” Rosenberger v. Rector and Visitors of
University of Virginia, 115 S Ct 2510, 2517 (1995); see also, Lamb’s Chapel v.
Center Moriches Union School Dist., 508 US 384, 392-93 (1993); Cornelius, 473
US at 806; Perry, 460 US at 49.
As noted before, SMART’s principle function is to provide transportation
throughout metropolitan Detroit to bus passengers. Thus, SMART’s decision to
deny this anti-Sharia ad requires SMART to merely show a reasonable basis
between the restriction and purpose of the property.
Given the nature of transit in general and the non-public forum established,
SMART’s content policy is both reasonable and constitutional. The U.S. Supreme
Court, in Packer Corp. v Utah, 285 US 105 (1932), has stated that restrictedadvertising policies are reasonable because:
Advertisements of this sort are constantly before the eyes of observers
on the streets and in streetcars 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. The
young people as well as the adults have the message of the billboard
thrust upon them by all the arts and devices that skill can produce. 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
16

turned off, but not so the billboard or streetcar placard. These
distinctions clearly place this kind of advertisement in a position to be
classified so that regulations or prohibitions may be imposed upon all
within the class.
Id., at 110. The U.S. Supreme Court has further stated that “the reasonableness of
the Government’s restriction [on speech in a non-public forum] must be assessed
in light of the purpose of the forum and all the surrounding circumstances.”
Cornelius, 473 US at 809; see also, Amer. Freedom Def. Init., at 892.
Section 5.07(B), SMART’s content policy, was promulgated “in order to
minimize chances of abuse, the appearance of favoritism, and the risk of imposing
upon a captive audience.” (Exhibit A). The Supreme Court has determined these
goals to be reasonable in light of the purposes served by the forum. Lehman, at
303. By prohibiting political advertising, and advertising likely to hold persons up
to ridicule or scorn, SMART furthers these goals, as well as its overall goal of
providing public transportation services without jeopardizing fares or advertising
as revenue sources. Courts have recognized the protection of a revenue source as a
reasonable goal. Christ’s Bride Ministries, Inc. v SEPTA, 148 F 3d 242 (1998) at
255. In this very case, the Sixth Circuit stated:
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
17

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.
Amer. Freedom Def. Init., at 892 (emphasis added).
SMART has clearly demonstrated a rational basis for its content policy, and
demonstrated that it is constitutional.
II.

Plaintiffs’ speech, as political and/or scornful speech, was permissibly
restricted in SMART’s non-public advertising forum.
a.

Political Speech.

SMART’s content policy, as stated before, restricts, and indeed, bars,
political messages and/or messages that are defamatory or “likely to hold up to
scorn or ridicule any person or group of persons.” To the extent that SMART has
created a non-public forum, and to the extent it had a rational basis for doing so,
Plaintiffs’ message is restricted from appearing on the buses pursuant to the policy.
One of the bases that Defendant, SMART, relied upon to bar Plaintiffs
advertisement was pursuant to Section 5.07(B)(1), restricting “political”
advertising. For the Court’s convenience, the prohibition is set forth again:

18

In order to minimize chances of abuse, the appearance of favoritism,
and the risk of imposing upon a captive audience, Offeror shall not
allow the following content:
1.

Political or political campaign advertising.

(Emphasis added). SMART not only bars political campaign advertising, which the
parties agree would be prohibited, but “political” advertising as well. SMART
includes both categories because they are addressed differently under the policy.
Because the language includes both, the word “political” itself must mean
something more than campaign advertising, or the subparagraph could simply read
“political campaign advertising.” See, e.g., Laurel Woods Apartments v
Roumayah, 274 Mich App 631 (2007) (“A court must give effect to every word,
phrase, and clause in a contract and avoid an interpretation that would render any
part of the contract surplusage or nugatory.”).
Plaintiff’s advertisement, as stated above, was reviewed not only for the
content within its four corners, but also the content contained in the website
referred to. This practice has been applied each of the four occasions that an
advertisement has been reviewed under the policy. Courts have sanctioned the
review of referred-to websites when reviewing the message against the purported
policy. Ridley, 390 F.3d at 74; Amer. Freedom Def. Init., at 894. The review of
Plaintiff’s advertisement incorporated a review of RefugeFromIslam.com.

19

SMART’s 30(b)(6) witness, Anthony Chubb, when providing testimony in
this matter on behalf of the Authority provided a working understanding of how
SMART determines if a particular advertisement or the referred-to website
represents a political message:
Q.

What is the standard or definition that SMART employs to
determine whether an advertisement is political under its
advertising guidelines?

A.

I would just—political is any—is any—I mean in the context of
the advertising policy, is any advocacy of a position of any
politicized issue.

Q.

How do you determine whether an issue has been politicized?

A.

I would say—I would say—within society if an issue—if there
are—if society is fractured on an issue and factions of
society have taken up positions.

(Exhibit N, Deposition of SMART 30(b)(6) witness, May 21, 2013, at p. 41)
(emphasis added). Though this definition is not set forth in the contract itself, it is a
reasonable definition that has been consistently and adequately applied in the four
cases where advertisements were reviewed for this purpose.
In coming to its conclusion granting the preliminary injunction, this Court
initially appears to have relied upon SMART’s prior decision to allow the “atheist
advertisement” that was previously determined to be a religious message under the
guidelines and pursuant to the same type of review afforded the Plaintiffs’
message. Religious messages are allowed by the policy whereas political messages
20

are not. As the Court is aware, the atheist advertisement was addressed directly by
the Sixth Circuit Court of Appeals that reversed this Court’s preliminary
injunction. The Court specifically held that SMART was reasonable in its
determination that the atheist advertisement was a religious message, and not
political:
AFDI contends that SMART’s actions could not have been viewpoint
neutral [discussed below] 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.
Amer. Freedom Def. Init., at 895. This is precisely the decision that SMART made,
and therefore allowed the atheist advertisement. As a general outreach message,
SMART did not determine that the content of the ad was political because it was
not such that a fractured society had taken up opposite positions. The issue
presented was not whether atheism was good or bad, but rather, the advertisement
sought like-minded persons to assemble and join the advertised group. A
concurrent review of the website, DetroitCOR.org, did not change the analysis.
SMART’s determination regarding the political nature of the Pinckney ProLife advertisement was different, but also fits within the definition presented by
SMART. The advertisement was brought by a pro-life organization named Project
21

LIFEBOARD and spoke to the issue of abortion in the context of a religious
message. SMART, reviewing the advertisement and the referred-to website,
determined that it was a religious, pro-life organization that advocated heavily
against abortion, and that the organization focused on overturning Roe v Wade and
Doe v Bolton, through protests and the political process. SMART determined,
rightly, that the issue of “abortion” was itself a political issue and rejected the
advertisement.
Courts have agreed with SMART that the issue of abortion is a “political”
issue. For instance, in the context of the State of New York’s refusal to issue
license plates that read “Choose Life,” the Northern District of New York held:
Contrary to the blatantly religious symbols such as a crucifix or
menorah, or to obviously religious messages, such as well-known
passages cited from the Bible or Koran, the above described proposed
picture plate with the phrase “Choose Life,” while possibly evoking a
pro-life versus pro-choice abortion debate, is more aptly described
as political, rather than religious, speech. Significantly, the judicial
opinions relied on by Judge Treece for his conclusion that “Choose
Life” is “a pro-life affirming tenet, [which] in material respects,
transmits a religious message[,]” MDO at 30, more accurately
support the premise that the phrase is associated with the
abortion debate, which is political, not religious, in nature.
Children First Foundation, Inc. v Martinez, 2007 WL 4618524, at *11 (N.D.N.Y.
2007) (emphasis added). See also, Christian Coalition of Alabama v Cole, 355
F.3d 1288 (11th Cir. 2004) (“The questionnaire [to all Alabama judicial candidates]
originally consisted of thirty questions covering a number of social and political
22

issues such as abortion, gun control, and the role of a judge’s religious beliefs in
decision making.”); Wisconsin Right to Life, Inc. v Paradise, 138 F.3d 1183 (7th
Cir. 1998) (“[A]lmost everything related to abortion has political implications,
and it is a challenge for any organization on any side of the abortion debate to
carry out its principal activities without saying things about candidates for public
office.”) (emphasis added); Eubanks v Schmidt, 126 F. Supp. 2d 451 (W.D. Ky
2000) (“For ardent supporters on either side, the issue of abortion is a political,
cultural, moral and legal war, whose various battles and scrimmages are no less a
part of the war.”).
Given the political nature of the abortion debate, and the obvious political
nature of the referred-to website, SMART appropriately determined that the
Pinckney Pro-Life advertisement was barred under the policy, even though the
advertisement did not directly relate to government action or political campaigns.
Application of the policy to Plaintiff’s “fatwa advertisement,” as the Sixth
Circuit referred to it, results in a similar conclusion. The Plaintiff’s advertisement
is political.
In the first right, the parties agree that Plaintiffs speech is political.
Plaintiffs’ own complaint specifically denotes its message and advertisement as
political:
1.
This case seeks to protect and vindicate fundamental
constitutional rights. It is a civil rights action brought under the First
23

and Fourteenth Amendments to the United States Constitution and 42
USC §1983 challenge Plaintiffs’ restriction on Plaintiffs’ right to
engage in political and religious speech in a public forum.
*****
8.
FDI promotes its political objectives by, inter alia, sponsoring
anti-Jihad bus and billboard campaigns, which includes seeking
advertising space on SMART vehicles.
9.
Plaintiff Pamela Geller is the Executive Director of FDI and
she engages in political and religious speech through FDI’s
activities, including FDI’s anti-Jihad bus and billboard campaigns.
*****
21. On or about May 24, 2010, Defendants denied Plaintiffs’
request and refused to display Plaintiffs’ advertisement. Defendant[s]
denied Plaintiffs’ advertisement, and thus denied Plaintiffs access to a
public forum to express their political and religious message, based
on the content and viewpoint expressed by Plaintiffs’ message.
*****
23. By reason of the aforementioned Free Speech Restriction
created, adopted, and enforced under color of state law, Plaintiffs have
deprived Plaintiffs of their right to engage in political and religious
speech in a public forum. . . .
(Exhibit I) (emphasis added). Factual assertions in pleadings and pretrial orders
are considered judicial admissions conclusively binding on the party who made
them. Barnes v Owens-Corning Fiberglas Corp., 201 F3d 815 (6th Cir. 2000). See
also, 14 ALR 65-72 and cases cited therein; Pennsylvania R. Co. v Girard, 210
F2d 437, 440 (6th Cir. 1954). The Sixth Circuit, in this case, has held Plaintiffs to
that admission:
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. ¶
24

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.
Amer. Freedom Def. Init., at 895.
Early in this action, Plaintiffs attempted to re-characterize their message not
as religious and not as political, but rather as a “religious freedom” message. The
attempt to do so appears to have been due to the fact that the message is admittedly
not entirely religious, as the atheist advertisement was, while the Plaintiffs wanted
to deny it was a political message covered by the policy. Plaintiffs have abandoned
that distinction.
Plaintiff, Geller, in her deposition of May 9, 2013, has now backed away
from her original characterization previously made on the record. She now testifies
that her message is not a “religious freedom” message, but rather just a religious
message. (Exhibit O, Deposition of Pamela Geller, May 9, 2013, at pp. 178, 180).
However, even a cursory review of Plaintiff’s organization and message
demonstrates that the advertisement is political, no matter what Ms. Geller asserts
at this point.

25

The Plaintiff, AFDI, is a political organization. Its Articles of Agreement, on
record with the State of New Hampshire Corporate Division, establishes the
purpose of the organization:
The object for which this corporation is established is:
An educational organization designed to defend Constitutional
principles against academic, cultural, sociological, and other attacks
upon them, and to exposing [sic] media bias in reporting on such
attacks.
(Exhibit P). Ms. Geller recognizes that both AFDI and its sister organization,
SIOA (Stop the Islamization Of America), are political organizations, by
describing them as “human rights organization[s] dedicated to freedom of speech,
freedom of conscience, freedom of religion, freedom from religion, and individual
rights.” (Exhibit O, Deposition, at p. 16). She also testified that she focuses on but
one religion: Islam. (Exhibit O, Deposition at p. 17).
She then denies this particular advertisement is political notwithstanding the
admissions in her Complaint and her further admission that it addresses the issue of
Sharia Law in America and fatwas. This was immediately after she had just
previously testified that the same issues have “political aspects” in response to
questions about a decidedly similar ad. (Exhibit O, Deposition, at pp. 168-169;
Exhibit Q).
The Sixth Circuit specifically recognized that Plaintiffs’ message, and
indeed the issue of Sharia Law in America, is a political issue:
26

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
States has become one of political controversy. In Awad v Ziriax,
670 F3d 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 the 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 [Exhibit R]. 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.
Amer. Freedom Def. Init., at 895 (emphasis added).
It is irrelevant whether the message is both political and religious because if
it is political speech at all, it is prohibited by SMART’s guidelines:
Moreover, when SMART had been previously presented with
advertisements that were both religious and political, it rejected them.
The Pinckney 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
27

advertisement contained political speech regarding abortion, even
though the advertisement also contained a religious message.
Amer. Freedom Def. Init., at 896 (emphasis added). Through this paragraph, the
Sixth Circuit put its imprimatur on SMART’s ability to restrict even partlypolitical messages on its non-public-forum buses. SMART’s actions in this regard
were neither arbitrary nor capricious: By simple application of the policy barring
political advertisements, Plaintiffs’ advertisements are not permitted.
Once the political nature of Plaintiffs’ message is understood, this case is
directly on point with the U.S. Supreme Court’s decision in Lehman, supra. The
U.S. Supreme Court, after finding a non-public forum, noted that the bus system
could constitutionally limit political speech:
Here, the city has decided that ‘purveyors of goods and services
saleable in commerce may purchase advertising space on an equal
basis, whether they be house builders or butchers.’ 34 Ohio St.2d at
146, 296 N.E.2d at 685. This decision is little different from deciding
to impose a 10-, 25-, or 35-cent fare, or from changing schedules or
the location of bus stops. [Citation omitted]. Revenue earned from
long-term commercial advertising could be jeopardized by a
requirement that short-term candidacy or issue-oriented
advertisements be displayed on car cards. Users would be subjected to
the blare of political propaganda. There could be lurking doubts about
favoritism, and sticky administrative problems might arise in
parceling out limited space to eager politicians. In these
circumstances, the managerial decision to limit car card space to
innocuous and less controversial commercial and service-oriented
advertising does not rise to the dignity of a First Amendment
violation. Were we to hold to the contrary, display cases in public
hospitals, libraries, office buildings, military compounds, and other
public facilities immediately would become Hyde Parks open to every
28

would-be pamphleteer and politician. This the Constitution does not
require.
No First Amendment forum is here to be found. The city consciously
has limited access to its transit system advertising space in order to
minimize chances of abuse, the appearance of favoritism, and the risk
of imposing on a captive audience. These are reasonable legislative
objectives advanced by the city in a proprietary capacity. In these
circumstances, there is no First Amendment violation.
Lehman, 418 U.S. at 303-304 (emphasis added).
SMART may constitutionally limit political messages on its buses, as
recognized by the U.S. Supreme Court. Where the parties agree that the message is
political, and where the message content (even if characterized as “religious”) is
quintessentially political, SMART may constitutionally bar its posting. There is no
First Amendment violation.
b.

Speech that is Likely to Hold a Group of Persons up to Scorn or

Ridicule.
Plaintiff’s advertising was also barred by SMART’s policy against scornful
or defamatory advertising. This is a separate and distinct limitation of types of
advertising allowed on SMART buses. A determination under this clause is not
dependent and not reliant on whether the particular advertisement is “political” or
otherwise barred under a different provision. It is a determination in its own right.
Again, for this Court’s convenience, the applicable provision of the policy
is as follows:
29

4.

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

(Exhibit A, Contract, Section 5.07(B)(4)). The proposed advertisement submitted
by Plaintiffs in this matter follows:

There are some obvious aspects of this advertisement which are “likely to
hold up to scorn or ridicule [adherents to Islam].” For instance, the phrase “Is your
family or community threatening you?” clearly proposes that adherents to Islam
are a violent or threatening people, and that in fact this violence and threatening
behavior occurs within families. Also, the name of the website referred to in the
ad, RefugeFromIslam.com, unabashedly states that “refuge” is required when
leaving Islam. “Refuge” is defined as:
n. Shelter or protection from danger, distress or difficulty || a place
offering this || a person, thing, or course of action offering protection,
tears were her usual refuge; to take refuge to put oneself in a place
or state that affords protection [F.]
(WEBSTER’S DICTIONARY OF THE ENGLISH LANGUAGE, LEXICON PUBLICATIONS,
INC., 1972, revised and updated 1987) (emphasis added). Plaintiffs’ statement
holds the entire Muslim faith up to scorn and ridicule by stating affirmatively that
30

those who are not adherents require protection or sanctuary as from danger,
distress or difficulty.
The advertisement’s very formatting was intended to parody and denigrate
the format of an already-existing message proposed by the Islamic Circle of North
America that appeared on several systems around the country. Pamela Geller
herself described the below ad as “the impetus” for her ad. (Exhibit O, Deposition,
at p. 171). The original message parodied follows:

It is important to note that this ICNA advertisement was never submitted to
SMART and never appeared on any of its buses. SMART was never called upon
to determine whether the ICNA advertisement was in compliance with its policy.
Plaintiffs cannot claim any inconsistency in this regard.
Nevertheless, Plaintiffs’ message clearly mocks this prior message from
ICNA and demonstrates exactly what Plaintiffs are trying to do with their message.
Plaintiffs cannot escape the fact that they intend to mock and scorn Islam and
Muslims, within their families and within their communities.
31

III.

Defendants did not engage in viewpoint discrimination
Neither decision to preclude Plaintiffs’ advertisement was based on the

viewpoint espoused by the Plaintiffs in their advertisement.
Courts have permitted authorities such as SMART to limit disparaging and
scornful advertisements, even while allowing speech on the particular topic,
without running afoul of being viewpoint neutral. In Ridley, supra, the First Circuit
was faced with a regulation that was very much analogous to SMART’s policy, in
that it restricted any “advertisement that contains material that demeans or
disparages an individual or group of individuals.” Id., at 75. In analyzing whether
this regulation resulted in viewpoint discrimination, the Court said:
[W]e conclude that the MBTA has not engaged in viewpoint
discrimination in Ridley, either in the facial validity of its guidelines
or the guidelines as applied to Ridley’s advertisement. The guidelines
prohibiting demeaning or disparaging ads are themselves
viewpoint neutral. That is also true of the application of the
guidelines to Ridley’s ad on the facts here.
As to the guideline itself, we note that the 2003 revisions of the
guidelines continued to prohibit demeaning or disparaging ads, but did
so in more general terms, not tied only to certain categories such as
race, religion, and gender. Most likely that revision was made in light
of R.A.V. [v City of St. Paul, Minnesota, 505 U.S. 377, 392; 120
L.Ed.2d 305; 112 S. Ct. 2538 (1992)], and later case law. The current
regulation simply prohibits the use of advertisements that “demean[]
or disparage[] an individual or group of individuals” without listing
any particular protected groups. In this context, the guideline is just a
ground rule: there is no viewpoint discrimination in the guideline
because the state is not attempting to give one group an advantage
over another in the marketplace of ideas. [Citation omitted].
32

Similarly, under the MBTA’s current guidelines, all advertisers on all
sides of all questions are allowed to positively promote their own
perspective and even to criticize other positions so long as they do not
use demeaning speech in their attacks. No advertiser can use
demeaning speech: atheists cannot use disparaging language to
describe the beliefs of Christians, nor can Christians use disparaging
language to describe the beliefs of atheists. Both sides, however, can
use positive language to describe their own organizations, beliefs, and
values.
Some kinds of content (demeaning and disparaging remarks) are
being disfavored, but no viewpoint is being preferred over
another.
Ridley, at pp. 90-91 (emphasis added). SMART’s scorn and ridicule policy meets
this test: No person’s speech is restricted based upon the viewpoint, but no speaker
may use language that holds a person or group of persons up to scorn or ridicule.
All speakers are treated equally, and therefore the provision is viewpoint neutral.
SMART has established simple ground rules: No speaker may attack another with
scornful or ridiculing speech. No participant or group obtains an advantage over
another, regardless of which side of the debate they are on.
SMART has also been viewpoint neutral as to its political ads policy. As the
Court is aware, SMART has previously been approached regarding political
advertisements with incidental mention of religion, and also denied those
advertisements. The Pinckney Pro-Life organization approached CBS Outdoor
with a proposed advertisement that depicted Jesus Christ and stated, “Hurting after
Abortion? Jesus, I trust in you.” (Exhibit B). Following the same contract
33

procedure that was applied to the instant advertisement, CBS forwarded the
proposed advertisement to SMART for a final determination as to whether it
violated the content policy. After an appropriate review by SMART staff, the
advertisement was rejected as prohibited political advertising.
The Sixth Circuit reviewed SMART’s history in reviewing potentially
political advertising, and found its policy to be viewpoint neutral both facially and
as applied. In this regard, the Court stated:
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
34

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 Loudon
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.
Amer. Freedom Def. Init., at 895-96 (emphasis added).
SMART’s further viewpoint neutrality is demonstrated by its determination
on Plaintiffs’ subsequent advertisement. After the Sixth Circuit ruled in this matter,
Plaintiffs submitted the following advertisement for posting on SMART buses:

It should be clear to the Court that this ad, in its content and formatting, was
intended to mirror and/or mock the “atheist advertisement previously referred to
above.
The advertisement was reviewed against Section 5.07(B), just as Plaintiffs’
original advertisement was. As part of that review, the website
35

TheTruthAboutMuhammad.com was also reviewed in detail. The website refers to
Muhammad as “The Pedophile Prophet” and “Misogynist,” and criticizes any
adherent who follows Muhammad’s example or teaching. (Exhibit S,
TheTruthAboutMuhammad.com, printed 8/09/2013, from http://freedomdefense.
typepad.com/fdi/the-truth-about-muhammad.html). SMART refused the
advertisement because it held Muslims and adherents to Islam, and particularly
Muhammad, up to scorn and ridicule.
Plaintiffs were specifically informed that it was the reference to the website
that resulted in refusal, and in response, Plaintiffs offered the advertisement
without the website reference. SMART reviewed the modified advertisement
under its content policy and accepted it.1, 2 Once again, Plaintiffs’ viewpoint was
never considered during the process of reviewing this new advertisement.
Plaintiffs have failed to develop a genuine issue of material fact that
SMART has posted any advertisement of a political or scornful nature. It is not
enough for Plaintiffs to say there was discrimination as to the content of the
1

Plaintiffs have not re-submitted modified artwork or entered into a contract for
the posting of this subsequent ad, and it has therefore never run.
2

Although Ms. Geller testified that she intends at some point in the future to post
the advertisement, her real motivation for submitting it has been revealed to be as a
litigation trap. In this regard, she states “that [this] latest ad attempt was an effort to
point out SMART’s ‘hypocrisy,’ as the two parties are slated to head back to
court.” Detroit transit accepts “Don’t believe in God?” ads, rejects “Don’t believe
in Muhammad?” ads, viewed 8/14/2013 at http://nocompulsion.com/detroittransit-accepts-dont-believe-in-god-ads-rejects-dont-believe-in-muhammad-ads/ .
36

message, but instead, there must be evidence of the discrimination. Nothing has
been developed in discovery and nothing has been provided by Plaintiffs in this
regard.
CONCLUSION AND RELIEF SOUGHT
AFDI’s advertisement was in violation of several restrictions contained in
SMART’s constitutionally-sound content policy and, as political speech and
speech that is likely to hold Muslims and adherents to Islam up to scorn or ridicule,
it need not be accepted by SMART for display on or in its buses, because its buses
are non-public forums and are not open for unregulated debate.
SMART has consistently and uniformly applied its policy throughout the
existence of the advertising policy and its actions were neither arbitrary nor
capricious. The Sixth Circuit recognized that SMART was reasonable in its
determinations on this factual record.
SMART’s decisions in this regard were Constitutional and there has been no
First Amendment violation. As such, summary judgment is appropriate in favor of
these Defendants.

37

VANDEVEER GARZIA

By: __/s/ Christian E. Hildebrandt_________
JOHN J. LYNCH P16887
CHRISTIAN E. HILDEBRANDT P46989
Attorneys for Plaintiffs
1450 W. Long Lake Rd., Ste. 100
Troy, MI 48098-6330
[phone]
By: ___/s/ Avery E. Gordon_______________
SUBURBAN MOBILITY AUTHORITY FOR
REGIONAL TRANSPORTATION
Avery E. Gordon (P41194)
Anthony Chubb (P72608)
Co-Counsel for Plaintiffs
535 Griswold Street, Suite 600
Detroit, MI 48226
Dated: August 15, 2013

38

CERTIFICATE OF SERVICE
I hereby certify that on August 15, 2013, I electronically filed the
attached papers, Defendants’ Motion for Summary Judgment and Brief in Support,
with the Clerk of the Court using the Court’s ECF system which will send
notification of such filing to the following:
THOMAS MORE LAW CENTER
Robert J. Muise (P62849)
Richard Thompson (P21410)
Co-Counsel for Plaintiffs
24 Frank Lloyd Wright Drive
P.O. Box 393
Ann Arbor, MI 48106
[e-mail]

SUBURBAN MOBILITY
AUTHORITY FOR
REGIONAL TRANSPORTATION
Avery E. Gordon (P41194)
Anthony Chubb (P72608)
Co-Counsel for Plaintiffs
535 Griswold Street, Suite 600
Detroit, MI 48226
[e-mail]
[e-mail]

LAW OFFICES OF DAVID
YERUSHALMI
David Yerushalmi, Esq.
Co-Counsel for Plaintiffs
P.O. Box 6358
Chandler, AZ 85246
[e-mail]

Erin Elizabeth Mersino (P70886)
Co-Counsel for Plaintiffs
24 Frank Lloyd Wright Drive
P.O. Box 393
Ann Arbor, MI 48106
[phone]
[e-mail]

I declare under penalty of perjury that the foregoing is true and
correct.

39

VANDEVEER GARZIA
By: /s/ Christian E. Hildebrandt
JOHN J. LYNCH P16887
CHRISTIAN E. HILDEBRANDT P46989
Attorneys for Plaintiffs
1450 W. Long Lake Rd., Ste. 100
Troy, MI 48098-6330
[phone]
Dated: August 15, 2013

40