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

Filing 58

MOTION for Summary Judgment by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1--Declaration of Robert Spencer, # 3 Exhibit 2--Declaration of Pamela Geller, # 4 Exhibit 3--Declaration of Robert J. Muise, # 5 Exhibit 4--SMART deposition excerpts, # 6 Exhibit 5--SMART deposition exhibits, # 7 Exhibit 6--Beth Gibbons deposition excerpts, # 8 Exhibit 7--Pamela Geller deposition excerpts, # 9 Exhibit 8--Pamela Geller deposition exhibits, # 10 Exhibit 9--Elizabeth Dryden deposition excerpts) (Muise, Robert)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
AMERICAN FREEDOM DEFENSE
INITIATIVE; et al.,
Plaintiffs,
v.
SUBURBAN MOBILITY AUTHORITY
for REGIONAL TRANSPORTATION
(“SMART”), et al.,
Defendants.
AMERICAN FREEDOM LAW CENTER
Robert J. Muise, Esq. (P62849)
P.O. Box 131098
Ann Arbor, MI 48113
[e-mail]
[phone]
David Yerushalmi, Esq.
1901 Pennsylvania Avenue NW
Suite 201
Washington, D.C. 20006
[e-mail]
[phone]
THOMAS MORE LAW CENTER
Erin Mersino, Esq. (P70866)
24 Frank Lloyd Wright Dr.
P.O. Box 393
Ann Arbor, MI 48106
[e-mail]
[phone]

No. 2:10-cv-12134-DPH-MJH
PLAINTIFFS’ MOTION
FOR SUMMARY
JUDGMENT
Hon. Denise Page Hood
Magistrate Judge Hluchaniuk

SMART
Avery E. Gordon, Esq. (P41194)
Anthony Chubb, Esq. (P72608)
535 Griswold Street, Suite 600
Detroit, MI 48226
[e-mail]
[e-mail]
[phone]
Fax: [phone]
VANDEVEER GARZIA, P.C.
John J. Lynch (P16887)
Christian E. Hildebrandt (P46989)
1450 W. Long Lake Road,
Suite 100
Troy, MI 48098
[e-mail]
[e-mail]
[phone]
Fax: [phone]
Counsel for Defendants

Counsel for Plaintiffs
______________________________________________________________________________

Plaintiffs American Freedom Defense Initiative, Pamela Geller, and Robert
Spencer (collectively referred to as “Plaintiffs”), by and through their undersigned
counsel, hereby move this court pursuant to Rule 56 of the Federal Rules of Civil
Procedure for summary judgment because there is no genuine issue of material fact
and they are entitled to judgment on all claims as a matter of law.
In support of this motion, Plaintiffs rely upon the pleadings and papers of
record, as well as their brief accompanying this motion and the declarations and
exhibits attached thereto.
Pursuant to E.D. Mich. LR 7.1, on August 12, 2013, a conference was held
between the attorneys to be heard on the motion in which Plaintiffs’ counsel
explained the nature of the motion and its legal basis and requested but did not
obtain concurrence in the relief sought.
For the reasons set forth more fully in the accompanying brief, Plaintiffs
hereby request that this court grant this motion and enter judgment in their favor on
all claims as a matter of law.
WHEREFORE, Plaintiffs hereby request that the court grant this motion.
Respectfully submitted,
AMERICAN FREEDOM LAW CENTER
/s/ Robert J. Muise
Robert J. Muise, Esq.

2

/s/ David Yerushalmi
David Yerushalmi, Esq.
THOMAS MORE LAW CENTER
/s/ Erin Mersino
Erin Mersino, Esq.
Counsel for Plaintiffs

3

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
AMERICAN FREEDOM
DEFENSE INITIATIVE; et al.,
Plaintiffs,
v.
SUBURBAN MOBILITY
AUTHORITY for REGIONAL
TRANSPORTATION (“SMART”),
et al.,
Defendants.

No. 2:10-cv-12134-DPH-MJH
PLAINTIFFS’ BRIEF IN
SUPPORT OF MOTION FOR
SUMMARY JUDGMENT
Hon. Denise Page Hood
Magistrate Judge Hluchaniuk

ISSUES PRESENTED
I.

Whether Defendants created a public forum for the expression of a

wide variety of commercial, noncommercial, public-service, and public-issue
advertisements, including advertisements on controversial subjects, such that their
content-based restriction on Plaintiffs’ message violates the First and Fourteenth
Amendments.
II.

Whether, regardless of the nature of the forum, Defendants’ content-

based advertising guidelines facially and as applied to Plaintiffs’ advertisement
provide no objective guide for distinguishing between permissible and
impermissible advertisements in a non-arbitrary, viewpoint-neutral fashion as
required by the U.S. Constitution.
III.

Whether Defendants’ advertising guidelines facially and as applied to

Plaintiffs’ advertisement are viewpoint based in violation of the First and
Fourteenth Amendments.
IV.

Whether Defendants’ advertising guidelines facially and as applied to

Plaintiffs’ advertisement violate the equal protection guarantee of the Fourteenth
Amendment.

i

CONTROLLING AND MOST APPROPRIATE AUTHORITY
United Food & Commercial Workers Union, Local 1099 v. Sw. Ohio Reg’l Transit
Auth., 163 F.3d 341 (6th Cir. 1998)
Police Dep’t of the City of Chicago v. Mosley, 408 U.S. 92 (1972)

ii

TABLE OF CONTENTS
Page
ISSUES PRESENTED................................................................................................i
MOST CONTROLLING AND APPROPRIATE AUTHORITY ............................ ii
TABLE OF CONTENTS ......................................................................................... iii
TABLE OF AUTHORITIES ..................................................................................... v
BRIEF IN SUPPORT ................................................................................................ 1
STANDARD OF REVIEW ....................................................................................... 1
A.

The Sixth Circuit’s Ruling Is Not “Law of the Case” ..................................... 1

B.

Plaintiffs Are Entitled to Summary Judgment ................................................ 3

UNDISPUTED MATERIAL FACTS ....................................................................... 4
A.

The Parties ....................................................................................................... 4

B.

Plaintiffs’ “Leaving Islam” Advertisement ..................................................... 5

C.

SMART’s Content-Based Advertising Guidelines ......................................... 7

D.

Application of SMART’s Advertising Guidelines ........................................ 12

ARGUMENT ........................................................................................................... 15
I.

Defendants’ Speech Restriction Violates the First Amendment ................... 15
A.

Plaintiffs’ Advertisement Is Protected Speech.................................... 16

B.

Defendants Created a Public Forum for Plaintiffs’ Speech ................ 16

C.

Defendants’ Restriction Cannot Survive Constitutional Scrutiny ...... 19
iii

1.
2.

Defendants’ “Guidelines” Permit Arbitrary, Capricious, and
Subjective Application .............................................................. 20

3.
II.

Defendants’ Speech Restriction Was Content Based ............... 19

Defendants’ Speech Restriction Was Viewpoint Based ........... 22

Defendants’ Speech Restriction Violates the Equal Protection Clause ........ 24

CONCLUSION ........................................................................................................ 25
CERTIFICATE OF SERVICE ................................................................................ 27

iv

TABLE OF AUTHORITIES
Cases

Page

Am. Freedom Def. Initiative v. Suburban Mobility Auth. for Reg’l Transp.,
698 F.3d 885 (6th Cir. 2012) .........................................................................1, 10, 13
Bantam Books, Inc. v. Sullivan,
372 U.S. 58 (1963) ................................................................................................... 16
Carey v. Brown,
447 U.S. 455 (1980) ................................................................................................. 25
Celotex Corp. v. Catrett,
477 U.S. 317 (1986) ................................................................................................... 4
City of Angoon v. Hodel,
803 F.2d 1016 (9th Cir. 1986) ................................................................................... 2
Cogswell v. City of Seattle,
347 F.3d 809 (9th Cir. 2003) ................................................................................... 22
Consol. Edison Co. of N.Y. v. Pub. Serv. Comm. of N.Y.,
447 U.S. 530 (1980) ................................................................................................. 20
Cornelius v. NAACP Legal Def. & Educ. Fund,
473 U.S. 788 (1985) ..........................................................................................passim
Desert Outdoor Adver., Inc. v. City of Moreno Valley,
103 F.3d 814 (9th Cir. 1996) ................................................................................... 21
Forsyth Cnty. v. Nationalist Movement,
505 U.S. 123 (1992) ................................................................................................. 20
Good News Club v. Milford Cent. Sch. Dist.,
533 U.S. 98 (2001) ................................................................................................... 23
Hill v. Colo.,
530 U.S. 703 (2000) ................................................................................................. 16

v

Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist.,
508 U.S. 384 (1993) ................................................................................................. 22
Lebron v. Wash. Metro. Area Transit Auth.,
749 F.2d 893 (D.C. Cir. 1984) ................................................................................. 16
Lehman v. City of Shaker Heights,
418 U.S. 298 (1974) ................................................................................................. 17
Miller v. City of Cincinnati,
622 F.3d 524 (6th Cir. 2010) ................................................................................... 17
Nieto v. Flatau,
715 F. Supp. 2d 650 (E.D.N.C. 2010) ..................................................................... 24
N.Y. Magazine v. Metro. Transp. Auth.,
136 F.3d 123 (2d Cir. 1998)..................................................................................... 18
Perry Educ. Ass’n v. Perry Local Educators,
406 U.S. 37 (1983) ................................................................................................... 20
Planned Parenthood Ass’n/Chicago Area v. Chicago Transit Auth.,
767 F.2d 1225 (7th Cir. 1985) ................................................................................. 18
Plyler v. Doe,
457 U.S. 202 (1982) ...........................................................................................24, 25
Police Dep’t of the City of Chicago v. Mosley,
408 U.S. 92 (1972) ................................................................................................... 25
R.A.V. v. St. Paul,
505 U.S. 377 (1992) ...........................................................................................19, 24
Ridley v. Mass. Bay Transp. Auth.,
390 F.3d 65 (1st Cir. 2004) ...................................................................................... 13
Rosenberger v. Rector & Visitors of the Univ. of Va.,
515 U.S. 819 (1995) ...........................................................................................19, 22

vi

Saieg v. City of Dearborn,
641 F.3d 727 (6th Cir. 2011) ...............................................................................6, 16
Satawa v. Bd. of Cnty. Rd. Comm’rs,
788 F. Supp. 2d 579 (E.D. Mich. 2011), rev’d in part on other grounds,
689 F.3d 506 (6th Cir. 2012) ..................................................................................... 2
Satawa v. Macomb Cnty. Road Comm’rs,
689 F.3d 506 (6th Cir. 2012) ................................................................................... 25
S.O.C., Inc. v. Cnty. of Clark,
152 F.3d 1136 (9th Cir. 1998) ................................................................................. 19
Southeastern Promotions, Ltd. v. Conrad,
420 U.S. 546 (1975) ................................................................................................. 20
Tech. Publ’g Co. v. Lebhar-Friedman, Inc.,
729 F.2d 1136 (7th Cir. 1984) ................................................................................... 2
United Food & Commercial Workers Union, Local 1099 v. Sw. Ohio Reg’l
Transit Auth.,
163 F.3d 341 (6th Cir. 1998) ............................................................................passim
Univ. of Tx. v. Camenisch,
451 U.S. 390 (1981) ............................................................................................... 1, 2
Wilcox v. United States,
888 F.2d 1111 (6th Cir. 1989) ................................................................................... 2
Rules
Fed. R. Civ. P. 30(b)(6) ........................................................................................9, 14
Fed. R. Civ. P. 56(a)................................................................................................... 3
Fed. R. Evid. 801(d)(2) ............................................................................................ 10

vii

BRIEF IN SUPPORT OF MOTION
This case challenges Defendants’ refusal to display Plaintiffs’ “Leaving
Islam” advertisement on SMART buses pursuant to SMART’s content-based
advertising guidelines. As the factual record developed through the course of
discovery reveals, SMART has created a forum for the expression of a wide
variety

of

commercial,

noncommercial,

public-service,

and

public-issue

advertisements, including advertisements on exceedingly controversial subjects,
such that its content-based restriction on Plaintiffs’ message violates the First and
Fourteenth Amendments. Additionally, regardless of the nature of the forum, the
actual application of the guidelines demonstrates that Defendants employ them in
an arbitrary, capricious, and subjective manner such that they provide no objective
guide for distinguishing between permissible and impermissible advertisements in
a non-arbitrary, viewpoint-neutral fashion as required by the U.S. Constitution.
STANDARD OF REVIEW
A.

The Sixth Circuit’s Ruling Is Not “Law of the Case.”
The Sixth Circuit’s reversal of this court’s order granting Plaintiffs’ request

for a preliminary injunction, see Am. Freedom Def. Initiative v. Suburban Mobility
Auth. for Reg’l Transp., 698 F.3d 885 (6th Cir. 2012), is a preliminary decision
that is not binding at a trial on the merits or when deciding this motion for
summary judgment, and thus does not constitute the “law of the case.” Univ. of Tx.
1

v. Camenisch, 451 U.S. 390, 395 (1981) (“[T]he findings of fact and conclusions
of law made by a court granting a preliminary injunction are not binding at trial on
the merits.”); Wilcox v. United States, 888 F.2d 1111, 1114 (6th Cir. 1989)
(holding that the trial court’s denial of a preliminary injunction did not establish
the law of the case with respect to the court’s subsequent summary judgment
determination); Tech. Publ’g Co. v. Lebhar-Friedman, Inc., 729 F.2d 1136, 1139
(7th Cir. 1984) (“A factual finding made in connection with a preliminary
injunction is not binding” on a motion for summary judgment); City of Angoon v.
Hodel, 803 F.2d 1016, 1024 n.4 (9th Cir. 1986) (determinations corresponding to a
preliminary injunction do not constitute law of the case); see also Satawa v. Bd. of
Cnty. Rd. Comm’rs, 788 F. Supp. 2d 579, 593-94 (E.D. Mich. 2011), rev’d in part
on other grounds, 689 F.3d 506 (6th Cir. 2012) (“Defendants’ contention that the
findings of fact and conclusions of law made by the Court in denying Plaintiff’s
Motion for a Preliminary Injunction are ‘fatal’ to Plaintiff’s Free Speech and
Establishment Clause claims lacks legal merit. The Court, therefore, will proceed
to consider de novo the pertinent facts—as more fully developed through
discovery—and the applicable law in deciding the instant summary judgment
motions.”).
As demonstrated further below, the Sixth Circuit’s ruling was based on a
woefully incomplete factual record. Indeed, on its face, the ruling lacked the
2

benefit of the factual record developed during the course of discovery—that is,
while Defendants contend that they have a constitutionally valid “political” speech
restriction, the undisputed facts demonstrate beyond cavil that there is no such
coherent “guideline.”

Rather, this restriction is in effect and as applied an

arbitrary, capricious, and subjective ad hoc decision—and to the extent it exists, it
is not based on what the Sixth Circuit understood it to be—an objective, rationally
applied distinction between impermissible “political” content versus permissible
religious content. Instead, Defendants’ speech restriction, as they define it, is
based on whether the subject matter of the advertisement is contentious. But, as
demonstrated in the record, even that restriction is not applied coherently because
it is not just contentiousness; it is any viewpoint-based contentiousness that
Defendants do not like.
B.

Plaintiffs Are Entitled to Summary Judgment.
“The court shall grant summary judgment if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a) (emphasis added).
In short, the “[s]ummary judgment procedure is properly regarded not as a
disfavored procedural shortcut, but rather as an integral part of the Federal Rules as
a whole, which are designed to secure the just, speedy and inexpensive

3

determination of every action.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)
(internal quotations omitted).
Thus, consistent with the Federal Rules, the factual record before this court,
and the controlling law, Plaintiffs are entitled to summary judgment.
UNDISPUTED MATERIAL FACTS
A.

The Parties.
Plaintiff American Freedom Defense Initiative (“AFDI”) is a nonprofit

organization that is incorporated under the laws of the State of New Hampshire.
(Spencer Decl. at ¶ 3 at Ex. 1). AFDI “is a human rights organization dedicated to
freedom of speech, freedom of conscience, freedom of religion, freedom from
religion, and individual rights.” (Geller Dep. at 15-16 at Ex. 7).
Plaintiffs Pamela Geller and Robert Spencer co-founded AFDI. Plaintiff
Geller is the Executive Director, and Plaintiff Spencer is the Associate Director.
Plaintiffs Geller and Spencer engage in free speech activity through various
projects of AFDI.

One such project is the posting of advertisements on the

advertising space of various government transportation agencies throughout the
United States, including SMART, which operates buses in the Detroit, Michigan
area. (Spencer Decl. at ¶¶ 2-4 at Ex. 1; Geller Decl. at ¶¶ 2-4 at Ex. 2).
Defendant SMART is a governmental agency. As a governmental agency,
SMART is mandated to comply with federal and state laws, including the United
4

States Constitution. (See SMART Dep. at 105 at Ex. 4). As SMART admits,
“First Amendment free speech rights require that SMART not censor free speech
and because of that, SMART is required to provide equal access to advertising on
our vehicles.”1 (SMART Dep. at 105-06 at Ex. 4; Dep. Ex. 6 at Ex. 5).
During all relevant times, Defendant Gibbons was employed by SMART as
the Marketing Program Manager in the Marketing Department, (Gibbons Dep. at
11 at Ex. 6), and in that capacity she had decision-making authority to accept or
reject proposed advertisements pursuant to SMART’s advertising guidelines,
(SMART Dep. at 16 at Ex. 4).
During all relevant times, Defendant Hertel was employed by SMART as its
General Manager, and in that capacity he had decision-making authority to accept
or reject proposed advertisements pursuant to SMART’s advertising guidelines.
(SMART Dep. at 27-28, 31 at Ex. 4).
B.

Plaintiffs’ “Leaving Islam” Advertisement.
On May 12, 2010, Plaintiffs submitted the below advertisement to SMART:

1

This statement was added to SMART’s website after the atheist advertisement
controversy, (Gibbons Dep. at 29-32 at Ex. 6; Gibbons Decl. at ¶ 6 [Doc. No. 129]), which is discussed further above, (see Muise Decl. at ¶ 10, Ex. B, at Ex. 3).
5

(Geller Decl. at ¶ 7 at Ex. 2; SMART Dep. at 13-15 at Ex. 4; Dep. Ex. 2 at Ex. 5;
Geller Dep. at 169 at Ex. 7; Dep. Ex. SS at Ex. 8). Plaintiffs subsequently entered
into a contract through SMART’s advertising agent to run the advertisement.
(Geller Decl. at ¶ 7 at Ex. 2).
Plaintiffs’ “Leaving Islam” advertisement is “a call to girls who need help,”
much like an advertisement for a battered women’s shelter for victims of domestic
violence. (Geller Dep. at 177 at Ex. 7; Geller Decl. at ¶ 5 at Ex. 2; Spencer Decl.
at ¶¶ 6-14 at Ex. 1). In short, it is a public service message that has nothing to do
with politics or political campaigns, (Spencer Decl. at ¶¶ 6, 14 at Ex. 1), as those
terms are commonly (and commonsensically) understood, (see n. 12, infra).
Furthermore, it is indisputable that a fatwa is a religious edict issued by a
Muslim cleric addressing a point of Islamic religious law (see SMART Dep. at 52
at Ex. 4), and that the penalty for leaving Islam under extant Islamic law is severe,
(Spencer Decl. at ¶¶ 9-13 at Ex. 1). The Sixth Circuit recently acknowledged this
reality in a case involving a constitutional challenge by a Christian pastor to a
restriction on his right to distribute religious literature to Muslims at an Arab
festival. Saieg v. City of Dearborn, 641 F.3d 727, 732 (6th Cir. 2011) (“Saieg also
faces a more basic problem with booth-based evangelism: ‘[t]he penalty of leaving
Islam according to Islamic books is death,’ which makes Muslims reluctant to
approach a booth that is publicly ‘labeled as . . . Christian.’”).
6

On or about May 24, 2010, Defendants denied Plaintiffs’ request to display
the “Leaving Islam” advertisement.

Plaintiff Geller immediately contacted

Defendant Gibbons, the point of contact for SMART, and asked: “What was it
about the ad that was ‘not approved’ and what would have to be changed? Please
let me know so we can get this campaign on the road.” No one from SMART,
including Defendant Gibbons, responded to Plaintiffs’ questions, nor has anyone
approved the display of Plaintiffs’ message. (Geller Decl. at ¶¶ 8, 9 at Ex. 2).
C.

SMART’s Content-Based Advertising Guidelines.
SMART enforces content-based advertising guidelines that prohibit certain

advertisements on its buses and bus shelters. These advertising guidelines were
employed by Defendants to reject Plaintiffs’ “Leaving Islam” advertisement.
(SMART Dep. at 37 at Ex. 4).
SMART’s advertising guidelines state, in relevant part, as follows:
5.07 Advertising Guidelines
****
B.

Restriction on Content
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.
2.
3.

Political or political campaign advertising.
Advertising promoting the sale of alcohol or tobacco.
Advertising that is false, misleading, or deceptive.
7

4.
5.

Advertising that is clearly defamatory or likely to hold up to
scorn or ridicule any person or group of persons.
Advertising that is obscene or pornographic; or in advocacy of
imminent lawlessness or unlawful violent action.

(SMART Dep. at 19-24 at Ex. 4; Dep. Ex. 3 at Ex. 5) (emphasis added).
Aside from what is stated in the guidelines above, there are no additional
manuals, guides, or other documents or references, including a definitional section
within the guidelines, to assist a SMART official to determine whether the content
of an advertisement is permissible. (SMART Dep. at 21-24, 38-40 at Ex. 4;
Gibbons Dep. at 92 at Ex. 6).
There are three departments that have independent authority to make
decisions on behalf of SMART regarding whether an advertisement should be
accepted or rejected under these guidelines: (1) the marketing department, (2) the
office of the general counsel, and (3) the general manager’s office. (SMART Dep.
at 27-28 at Ex. 4). Each department can act unilaterally, or the departments can
collaborate in the decision-making process. (SMART Dep. at 27-28 at Ex. 4). As
noted above, during the relevant time period, Defendant Gibbons, who was the
Marketing Program Manager in the marketing department, had the authority to
accept or reject advertisements under the advertising guidelines on behalf of
SMART, (Gibbons Dep. at 23, see also 15-16 at Ex. 6), and so too did Defendant
Hertel, the General Manager and CEO for SMART during the relevant time period,
(SMART Dep. at 27-28, 31 at Ex. 4).
8

According to SMART’s designated witness under Rule 30(b)(6), the term
“political” for purposes of its advertising guidelines means “any advocacy of a
position of any politicized issue.” (SMART Dep. at 41 at Ex. 4) (emphasis added).
In an effort to explain this tautology (i.e., “political” = politicized issue), SMART
defined “politicized” as follows: “if society is fractured on an issue and factions of
society have taken up positions on it that are not in agreement, it’s politicized.”
(SMART Dep. at 41 at Ex. 4) (emphasis added).
During her deposition, Defendant Gibbons testified that she understood the
term “political” for purposes of applying SMART’s advertising guidelines as
“when somebody advocates for a particular side.” (Gibbons Dep. at 24 at Ex. 6).
She also testified that she was now able to “qualify” the definition of “political”
with words after having read the transcript of the deposition testimony of
SMART’s Rule 30(b)(6) witness, (Gibbons Dep. at 24-25 at Ex. 6)—testimony she
reviewed to prepare for her deposition, (Gibbons Dep. at 9-11 at Ex. 6).
During her prior sworn testimony at the hearing on Plaintiffs’ motion for a
preliminary injunction,2 Defendant Gibbons testified as follows with regard to the
application of SMART’s advertising guidelines to Plaintiffs’ advertisement:

2

Defendant Gibbons was designated by SMART pursuant to Rule 30(b)(6) to
testify on its behalf during the hearing and, indeed, testified under oath that she
was doing so. (See Tr. at 5 [“Q: Ms. Gibbons, you understand you’re testifying
here on behalf of SMART, correct? A: Yes.”] [Doc. No. 18]). Despite this
undisputed fact, the Sixth Circuit decided, sua sponte, that Defendant Gibbons was
9

Q: So in fact, there is no policy or guideline or training manual or
anything else that would set out why [Plaintiffs’ advertisement] is
political [and thus impermissible] and the Atheist Ad is not
political [and thus permitted]?3
A. Right.
(Tr. of Hr’g on Mot. for Prelim. Inj. at 15 [Doc. No. 18]) (hereinafter “Tr.”).
Defendant Gibbons also stated during the hearing that when she examined
the “Leaving Islam” advertisement (i.e., its “four corners”), she found nothing
about the advertisement itself that was political. She testified as follows:
Q: So when you examined [Plaintiffs’] ad, there was nothing about the
ad itself that was political?
A: Correct.
(Tr. at 10 [Doc. No. 18]) (emphasis added).
Defendant Gibbons testified on redirect examination as follows:
Q: I would like to change topics now, Ms. Gibbons, and ask you one
or two questions following up on a question that Mr. Yerushalmi
asked you regarding the political content of the FDI
[advertisement]. In both reading the controversy surrounding the
Miami Dade Transit issue, can you tell us whether you were able
to determine that the FDI ad was political?
A: I knew that it was of concern in that there is controversy on both
sides of the issue on whether they should be posted or shouldn’t be
posted.

testifying on her own behalf. Am. Freedom Def. Initiative, 698 F.3d at 896.
Nonetheless, as we learned through discovery, Defendant Gibbons is in fact a
decisionmaker for SMART with regard to the application of the advertising
guidelines. Consequently, her testimony regarding their application is binding on
SMART as an admission by a party-opponent. See Fed. R. Evid. 801(d)(2).
3
The “Atheist Ad” is the Detroit Area Coalition of Reason’s advertisement that ran
on SMART’s buses. (SMART Dep. at 81-82 at Ex. 4; Dep. Ex. 4 at Ex. 5).
10

(Tr. at 19 [Doc. No. 18]) (emphasis added). In other words, Defendant Gibbons
reacted to a newspaper article’s rendering of a question raised about whether the
Miami transit authority would run the advertisement—not whether the
advertisement itself represented a “political” advertisement.
Ms. Elizabeth Dryden, who was at all relevant times the Director of External
Affairs, Marketing and Communications for SMART and a person authorized to
enforce the advertising guidelines (Dryden Dep. at 12 at Ex. 9), understood
(commonsensically) “political” for purposes of the advertising guidelines to mean
advertisements whose subject matter was “ballot proposals, . . . campaign
initiatives, or individuals . . . if they’re running for office.”4 (Dryden Dep. at 13 at
Ex. 9). However, Ms. Dryden further explained that matters “hotly contended, in
the media” may also be considered “political” for purposes of SMART’s
advertising guidelines. (Dryden Dep. at 14-15 at Ex. 9).
In summary, if an advertisement addresses a contentious issue—at least one
that Defendants believe is contentious based upon a sliding spectrum of
contentiousness—then it is rejected.

(See SMART Dep. at 66-67 at Ex. 4

[acknowledging that there is a hypothetical “spectrum” of whether something is

4

Despite this commonsense understanding of “political,” we learned during the
course of discovery that a “get-out-the-vote” message (i.e., an advertisement
urging citizens to exercise their political franchise—a subject that is
quintessentially political) is, indeed, not “political” according to SMART.
(SMART Dep. at 177 at 4; Dep. Ex. 36 at Ex. 5).
11

sufficiently “politicized” to be rejected]). As demonstrated further below, whether
an advertisement addresses an issue that is sufficiently “politicized” or “scornful”
and thus rejected by Defendants is wholly arbitrary and subjective.
D.

Application of SMART’s Advertising Guidelines.
As discovery demonstrated, SMART permits a wide variety of commercial,

noncommercial, public-service, public-issue, and religious advertisements on its
property, including advertisements promoting controversial and contentious issues.
For example, SMART permitted the Detroit Area Coalition of Reason to
place an advertisement on its vehicles that stated the following: “Don’t believe in
God? You are not alone.” The advertisement also listed the website of the
organization (DetroitCoR.org). (SMART Dep. at 81-82, 84 at Ex. 4; Dep. Ex. 4 at
Ex. 5). The Detroit Area Coalition of Reason’s webpage (and its affiliated United
Coalition of Reason) as identified on the advertisement reveals that this
organization supports the views of secular humanists, atheists, “freethinkers,” etc.
See http://unitedcor.org/detroit/page/home. It describes its mission as follows:
“From civil rights and separation of state and church activism, to scientific,
rational and freethought presentations and discussions, to networking and
camaraderie, Detroit CoR Member Groups have so much to offer.” See
http://unitedcor.org/detroit/page/about-us.5 (emphasis added). (Muise Decl. at ¶

5

The acceptance of the atheist advertisement was not an instance of “erratic
12

11, Exs. A-C, at Ex. 3; SMART Dep. at 84, 87 at Ex. 4). The Detroit Area
Coalition of Reasoning’s advertisement advocates a position on perhaps the most
contentious (i.e., “politicized” per SMART’s rendering) of all issues—the
existence of God.6

As Defendant Gibbons noted in her deposition, the issue

presented by this advertisement is so politicized that bus drivers for SMART
refused to drive the buses displaying the advertisement because the message “went
against their belief.” (Gibbons Dep. at 29 at Ex. 6).
SMART has also accepted advertisements that promote, and indeed
advocate for, sexual relations between men. One of the several advertisements of
the “Status Sexy” campaign accepted by SMART is as follows:

enforcement of a policy,” compare Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65,
78 (1st Cir. 2004), nor a “purported aberration,” see Am. Freedom Def. Initiative,
698 F.3d at 892. To this day, SMART defends its decision to run the controversial
advertisement (SMART Dep. at 94 at Ex. 4), even though SMART admits that “the
separation of church and state . . . is certainly a politicized issue,” (SMART Dep. at
84-85 at Ex. 4).
6
The absurdity of Defendants’ rejection of Plaintiffs’ “Leaving Islam”
advertisement and acceptance of the atheist advertisement is illustrated by the way
in which SMART must contort itself to justify this inconsistency. Indeed, SMART
testified under oath that the issue of the belief in God is not politicized under
SMART’s definition (i.e., factions of society have taken up positions on it that are
not in agreement). (SMART Dep. at 84 at Ex. 4).
13

(SMART Dep. at 135 at Ex. 4; Dep. Exs. 16, see also Dep. Exs. 13-19 at Ex. 5).
According to an article linked on the statussexy.com website—which is listed on
the advertisement—“The ‘Status Sexy’ campaign uses images of attractive,
shirtless men to convey its message encouraging men who have sex with men to
be tested for HIV.’”7 (SMART Dep. at 138-43 at Ex. 4; Dep. Exs. 19, 20 at Ex. 5)
(emphasis added). Moreover, the advertisement uses crude language suggestive of
sexual acts (i.e., “before you get down”) that is, at the very least, factious.
Consequently, Defendants have no problem with a “captive” audience,8 including
children, seeing this controversial (and arguably lewd) advertisement campaign.
Defendants have also accepted an advertisement that encourages the use of
“Birth control, including: Pills, IUD’s, Condoms and Diaphragms.”

The

advertisement promotes “Free Birth Control,” and takes a position in favor of the
use of birth control (a highly politicized issue), arguing that a woman should “Put
Yourself First . . . PLAN FIRST,” and “Have a baby when the time is right for
you.” (SMART Dep. at 146-47, 150 at Ex. 4; Dep. Ex. 22 at Ex. 5).

7

Regardless of whether this article was posted on the website at the time
Defendants approved the “Status Sexy” campaign, SMART’s Rule 30(b)(6)
witness testified that the presence of this article would not cause SMART to
disapprove the advertisement under the guidelines at issue here. (SMART Dep. at
138-43 at Ex. 4). Moreover, one need not have access to this article to understand
that this advertisement campaign promotes, advocates for, and takes a position on
sex between men (see, e.g., get tested for HIV “before you get down”).
8
This advertisement campaign ran on advertising space within SMART buses as
well as on the outside of the buses and at bus shelters. (Dep. Exs. 13-18 at Ex. 5).
14

Defendants approved the display of a stop smoking campaign that employs
graphic and controversial images to advocate for a position against smoking.
(SMART Dep. at 164-65 at Ex. 4; Dep. Exs. 30-31 at Ex. 5). Defendants approved
an advertisement for a Christian organization, which asks, “Feeling lost? Find
your path,” with an image of the Latin cross. (SMART Dep. at 157 at Ex. 4; Dep.
Ex. 26 at Ex. 5). Defendants approved stop drunk driving campaigns, AIDS/HIV
awareness campaigns, and stop hunger campaigns, among others, (see Dep. Exs.
23-25, 27-28 at Ex. 5), all of which advocate for a particular position on a public
issue. Indeed, out of the “hundreds” of advertisements submitted for approval
under the guidelines at issue (SMART Dep. at 126 at Ex. 4)—advertisements
covering a wide array of public issues—Defendants only ever rejected three
because they were allegedly “political”: (1) Plaintiffs’ “Leaving Islam”
advertisement, (2) an advertisement for Rachel’s Vineyard, which provides
assistance for post-abortive women, and (3) an advertisement similar to the atheist
advertisement that said, “Don’t believe in Muhammad? You are not alone.”
(SMART Dep. at 124-26, see also 116-17 at Ex. 4; Dep. Ex. TT at Ex. 8).
ARGUMENT
I.

Defendants’ Speech Restriction Violates the First Amendment.
Plaintiffs’ First Amendment claim is reviewed in three steps. First, the court

must determine whether the speech in question—Plaintiffs’ advertisement—is
15

protected speech. Second, the court must conduct a forum analysis as to the forum
in question to determine the proper constitutional standard to apply. And third, the
court must then determine whether Defendants’ speech restriction comports with
the applicable standard. Saieg, 641 F.3d at 734-35.
Moreover, SMART’s “refusal to accept [Plaintiffs’ advertisement] for
display because of its content is a clearcut prior restraint.” Lebron v. Wash.
Metro. Area Transit Auth., 749 F.2d 893, 896 (D.C. Cir. 1984) (Bork, J.) (emphasis
added). And “[a]ny system of prior restraints of expression comes to this Court
bearing a heavy presumption against its constitutional validity.” Bantam Books,
Inc. v. Sullivan, 372 U.S. 58, 70 (1963) (collecting cases) (emphasis added).
A.

Plaintiffs’ Advertisement Is Protected Speech.

The first question is easily answered. Sign displays constitute protected
speech under the First Amendment, Hill v. Colo., 530 U.S. 703, 714-15 (2000)
(“[S]ign displays . . . are protected by the First Amendment.”), and this includes
signs posted on bus advertising space, United Food & Commercial Workers Union,
Local 1099 v. Sw. Ohio Reg’l Transit Auth., 163 F.3d 341 (6th Cir. 1998).
B.

Defendants Created a Public Forum for Plaintiffs’ Speech.

“The [Supreme] Court has adopted a forum analysis as a means of
determining when the Government’s interest in limiting the use of its property to
its intended purpose outweighs the interest of those wishing to use the property for
16

[expressive] purposes.” Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S.
788, 800 (1985). Forum analysis has traditionally divided government property
into three general categories: traditional public forums, designated public forums,
and nonpublic forums.9 Id. at 800. Once the forum is identified, the court must
then determine whether the speech restriction is justified by the requisite standard.
Id.
A designated public forum is created, as in this case, when the government
“intentionally open[s] a nontraditional forum for public discourse.” Id. at 802. To
discern the government’s intent, courts “look[] to the policy and practice of the
government” as well as “the nature of the property and its compatibility with
expressive activity.” Id.
As the Sixth Circuit stated in United Food & Commercial Workers Union,
Local 1099:
In accepting a wide array of political and public-issue speech, [the
government] 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
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 [v.
City of Shaker Heights, 418 U.S. 298 (1974)] recognized as
inconsistent with operating the property solely as a commercial
9

The Sixth Circuit treats a nonpublic forum and a limited public forum the same
for purposes of applying the appropriate level of scrutiny. See Miller v. City of
Cincinnati, 622 F.3d 524, 535-36 (6th Cir. 2010).
17

venture.
163 F.3d at 355 (emphasis added); see also Planned Parenthood Ass’n/Chicago
Area v. Chicago Transit Auth., 767 F.2d 1225 (7th Cir. 1985) (concluding that the
advertising space on a bus system became a public forum where the transit
authority permitted “a wide variety” of commercial and non-commercial
advertising); N.Y. Magazine v. Metro. Transp. Auth., 136 F.3d 123, 129-30 (2d Cir.
1998) (concluding that the advertising space on the outside of buses was a public
forum where the transit authority permitted “political and other non-commercial
advertising generally”).
Here, Defendants have accepted “a wide array of advertisements,” including
very controversial, public-issue advertisements (which included an advertisement
that SMART’s own bus drivers protested by refusing to drive the buses that
displayed it).

Defendants’ actions are thus “inconsistent with operating the

property solely as a commercial venture.”10
Furthermore, it is without question that the “nature of the property”—the
advertising space—is “compatible” with Plaintiffs’ proposed expressive activity.
See United Food & Commercial Workers Union, Local 1099, 163 F.3d at 355
(concluding that the advertising space on a bus system was a public forum and
10

The revenue SMART receives from selling advertisements is a small fraction of
its operating budget. SMART is guaranteed $500,000 in revenue from the sale of
advertisements. However, its operating budget is approximately $130 million.
(SMART Dep. at 174-76 at Ex. 4).
18

stating that “acceptance of political and public-issue speech suggests that the forum
is suitable for the speech at issue”—a pro-union message). Indeed, Plaintiffs’
“Leaving Islam” advertisement has run on similar buses in other major cities—
Miami, New York, and San Francisco. (Geller Decl. at ¶ 6 at Ex. 2).
C.

Defendants’ Restriction Cannot Survive Constitutional Scrutiny.
1.

Defendants’ Speech Restriction Was Content Based.

Content-based restrictions on speech in a public forum are subject to strict
scrutiny. Cornelius, 473 U.S. at 800. That is, “[s]peakers can be excluded from a
public forum only when the exclusion is necessary to serve a compelling state
interest and the exclusion is narrowly drawn to achieve that interest.” Id. For “[i]t
is axiomatic that the government may not regulate speech based on its substantive
content or the message it conveys.” Rosenberger v. Rector & Visitors of the Univ.
of Va., 515 U.S. 819, 828 (1995); see also R.A.V. v. St. Paul, 505 U.S. 377, 386-92
(1992) (holding that the government may not “impose special prohibitions on those
speakers who express views on disfavored subjects” or on the basis of “hostility—
or favoritism—towards the underlying message expressed”). Thus, content-based
restrictions “are presumptively unconstitutional.” S.O.C., Inc. v. Cnty. of Clark,
152 F.3d 1136, 1145 (9th Cir. 1998).
To determine whether a restriction is content based, the courts look at
whether it “restrict(s) expression because of its message, its ideas, its subject
19

matter, or its content.” Consol. Edison Co. of N.Y. v. Pub. Serv. Comm. of N.Y.,
447 U.S. 530, 537 (1980). Here, Defendants rejected Plaintiffs’ advertisement
based on the content of its message. Indeed, Defendants admit this fact. (SMART
Dep. at 18 at Ex. 4). Consequently, this restriction violates the First Amendment.
2.

Defendants’ “Guidelines” Permit Arbitrary, Capricious,
and Subjective Application.

As noted by the Supreme Court, “the danger of censorship and of
abridgment of our precious First Amendment freedoms is too great where officials
have unbridled discretion over a forum’s use.”11 Southeastern Promotions, Ltd. v.
Conrad, 420 U.S. 546, 553 (1975).
As the Sixth Circuit held in a similar case involving the government’s
regulation of bus advertising: “The absence of clear standards guiding the
discretion of the public official vested with the authority to enforce the enactment
invites abuse by enabling the official to administer the policy on the basis of
impermissible factors.” United Food & Commercial Workers Union, Local 1099,
163 F.3d at 359; see also Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123,
130 (1992) (“A government regulation that allows arbitrary application . . . has the
potential for becoming a means of suppressing a particular point of view.”).
11

Indeed, even in a nonpublic forum, government speech regulations must be
“reasonable and not an effort to suppress expression merely because public
officials oppose the speaker’s view.” Perry Educ. Ass’n v. Perry Local Educators,
460 U.S. 37, 46 (1983). As demonstrated above, Defendants’ speech restriction
fails this test as well.
20

Consequently, a speech restriction “offends the First Amendment when it
grants a public official ‘unbridled discretion’ such that the official’s decision to
limit speech is not constrained by objective criteria, but may rest on ‘ambiguous
and subjective reasons,’” United Food & Commercial Workers Union, Local 1099,
163 F.3d at 359 (quoting Desert Outdoor Adver., Inc. v. City of Moreno Valley,
103 F.3d 814, 818 (9th Cir. 1996)) (emphasis added), as in this case.
Through discovery, we have learned that Defendants’ “political” restriction
suffers from the very same defects found in the unconstitutional restriction at issue
in United Food & Commercial Workers Union, Local 1099. Indeed, “political,” as
that term is commonly understood, could, when appropriately limited, provide a
measure of guidance for a government administrator.12 However, the way in which
Defendants apply this “guideline” here is entirely arbitrary and subjective and,
indeed, no different than the way in which the “controversial public issues”
guideline was employed and thus found unconstitutional in United Food &
Commercial Workers Union, Local 1099.13

12

As Ms. Dryden testified in her deposition, “political” advertisements reasonably
include “ballot proposals, . . . campaign initiatives, or individuals . . . if they’re
running for office.”
(Dryden Dep. at 13 at Ex. 9); see generally
http://www.merriam-webster.com/dictionary/political (defining “political” as “of
or relating to government, a government, or the conduct of government”).
13
The “scornful” speech restriction suffers from the same arbitrary and subjective
defects. Indeed, Defendant Gibbons testified as follows:
Q: There is nothing in [Plaintiffs’] ad that disparages or scorns any
particular people?
21

3.

Defendants’ Speech Restriction Was Viewpoint Based.

Viewpoint discrimination is an egregious form of content discrimination that
is prohibited in all forums. See Rosenberger, 515 U.S. at 829. “The principle that
has emerged from [Supreme Court] cases is that the First Amendment forbids the
government to regulate speech in ways that favor some viewpoints or ideas at the
expense of others.” Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508
U.S. 384, 394 (1993) (internal quotations and citation omitted).

“When the

government targets not subject matter, but particular views taken by speakers on a
subject, the violation of the First Amendment is all the more blatant.”
Rosenberger, 515 U.S. at 829 (emphasis added).
Consequently, when speech “fall[s] within an acceptable subject matter
otherwise included in the forum, the State may not legitimately exclude it from the
forum based on the viewpoint of the speaker.” Cogswell v. City of Seattle, 347
F.3d 809, 815 (9th Cir. 2003). Thus, viewpoint discrimination occurs when the
government “denies access to a speaker solely to suppress the point of view he
espouses on an otherwise includible subject.” Cornelius, 473 U.S. at 806.
Here, religion is an acceptable subject matter in the forum at issue.

A: Correct, yes. I’m not sure.
Court: You’re not sure whether it scorns any particular people; is that your
answer?
A: Right.
(Tr. at 10-11 [Doc. No. 18]) (emphasis added).
22

(SMART Dep. at 55 at Ex. 4). Indeed, Defendants permitted advertisements that
addressed religion from the viewpoint that God does not exist (the Detroit Area
Coalition of Reason advertisement) and from the viewpoint that Christianity is the
“path” to salvation (Union Grace Church advertisement). Yet, Defendants object
to the viewpoint expressed by Plaintiffs about Islam—an includable subject.
(SMART Dep. at 95 at Ex. 4). This is a classic form of viewpoint discrimination
that is prohibited in all forums. See Cornelius, 473 U.S. at 806; see also Good
News Club v. Milford Cent. Sch. Dist., 533 U.S. 98, 107-08 (2001) (finding that a
public school’s exclusion of a Christian club from meeting on its school grounds
discriminated on the basis of viewpoint because the school permitted non-religious
groups “pertaining to the welfare of the community” to meet at the school).
This conclusion is further buttressed by Defendants’ enforcement of a
guideline that is itself viewpoint based in its application (i.e., the restriction on
“scornful” speech). For example, as noted above, religion—and more specifically,
the religion of Islam—is a subject matter that is permitted in the forum at issue
(i.e., SMART’s advertising space). According to SMART, conveying a message
that “Islam is a religion of violence” would be prohibited under the guideline that
forbids conveying a message that is “clearly defamatory or likely to hold up to
scorn or ridicule any person or group of persons.” (SMART Dep. at 189 at Ex. 4).
However, it is patently obvious (as SMART conceded during its deposition,
23

despite its best efforts to qualify the concession), that conveying a message that
“Islam is a religion of peace” would be permissible under this guideline. (SMART
Dep. at 189-90 at Ex. 4 [“It doesn’t appear on its face that saying Islam is a
religion of peace . . . would be clearly defamatory or likely to hold up to scorn or
ridicule any person or group of persons . . . .”]). Because Defendants object to
Plaintiffs’ viewpoint on Islam (see, e.g., SMART Dep. at 48 at Ex. 4 [claiming that
Plaintiffs’ “website,” which Defendants reviewed to make their decision to reject
Plaintiffs’ advertisement, “is clearly anti-Islam” (emphasis added)]), the
advertisement was rejected under this guideline in violation of the First
Amendment. See, e.g., R.A.V., 505 U.S. at 389 (stating that “a State may not
prohibit only that commercial advertising that depicts men in a demeaning fashion”
without violating the First Amendment); see also Nieto v. Flatau, 715 F. Supp. 2d
650 (E.D.N.C. 2010) (holding that a speech restriction on a military base, a
nonpublic forum, was viewpoint based as applied to anti-Islam speech in violation
of the First Amendment).
II.

Defendants’ Speech Restriction Violates the Equal Protection Clause.
“The Equal Protection Clause was intended as a restriction on [government]

action inconsistent with elemental constitutional premises. Thus [the Court has]
treated as presumptively invidious those classifications that disadvantage a
‘suspect class,’ or that impinge upon the exercise of a ‘fundamental right.’” Plyler
24

v. Doe, 457 U.S. 202, 216-17 (1982) (emphasis added).
Indeed, in Police Dep’t of the City of Chicago v. Mosley, 408 U.S. 92
(1972), the Court struck down a city ordinance that restricted speech and affirmed
that “under the Equal Protection Clause, not to mention the First Amendment
itself, government may not grant the use of a forum to people whose views it finds
acceptable, but deny use to those wishing to express less favored or more
controversial views.” Id. at 96 (emphasis added); see also Carey v. Brown, 447
U.S. 455, 461-62 (1980) (discriminating among speech-related activities in a forum
violates the Equal Protection Clause); Satawa v. Macomb Cnty. Road Comm’n,
689 F.3d 506, 529 (6th Cir. 2012) (applying strict scrutiny under the Equal
Protection Clause to a government decision that infringes upon speech).
Here, by banning Plaintiffs’ advertisement—which addresses religion, a
permissible and includable subject matter—because its message is “politicized” or
its viewpoint “scornful” (i.e., contentious or disfavored), Defendants have
discriminated against Plaintiffs in a manner that impinges upon the exercise of a
fundamental right in violation of the Equal Protection Clause.
CONCLUSION
Based on the foregoing, Plaintiffs respectfully request that this court grant
this motion and enter judgment in Plaintiffs’ favor on all claims as a matter of law.

25

Respectfully submitted,
AMERICAN FREEDOM LAW CENTER
/s/ Robert J. Muise
Robert J. Muise, Esq.
/s/ David Yerushalmi
David Yerushalmi, Esq.
THOMAS MORE LAW CENTER
/s/ Erin Mersino
Erin Mersino, Esq.
Counsel for Plaintiffs

26

CERTIFICATE OF SERVICE
I hereby certify that on August 15, 2013, a copy of the foregoing was filed
electronically. Notice of this filing will be sent to all parties for whom counsel has
entered an appearance by operation of the court’s electronic filing system. Parties
may access this filing through the court’s system.
AMERICAN FREEDOM LAW CENTER
/s/ Robert J. Muise
Robert J. Muise, Esq. (P62849)

27