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)

EXHIBIT 9

American Freedom Defense v. SMART
Deponent: Elizabeth Dryden
Taken: 6/27/2013

Your Certified Shorthand Reporters Since 1972
623 West Huron Street
Ann Arbor, Michigan 48103
Phone: [phone] Fax: [phone]
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Conference Rooms & On-Site parking available at no additional cost.

American Freedom Defense v. SMART
Elizabeth Dryden

6/27/2013

Page 1

Page 3
INDEX TO EXAMINATIONS

IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF MICHIGAN

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Witness

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ELIZABETH DRYDEN

AMERICAN FREEDOM DEFENSE
INITIATIVE; et al.,

2:10-cv-12134-DPH-MJH

Hon. Denise Page Hood

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Page

EXAMINATION BY MR. MUISE
EXHIBITS

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Plaintiffs,

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Magistrate Judge

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Deposition Exhibits

Page

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DRYDEN EXHIBIT 47 Plaintiffs' Amended Notice

SUBURBAN MOBILITY AUTHORITY

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of Deposition of Elizabeth

for REGIONAL TRANSPORTATION

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("SMART"), et al.,

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vs.

Hluchanuik

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Dryden
DRYDEN EXHIBIT 48 Email chain re Macomb County

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"Report Drunk Drivers"

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campaign

Defendants.

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------------- /

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DRYDEN EXHIBIT 49 Email chain re vandalism

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Pages 1-74

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DRYDEN EXHIBIT 50 Email chain re Detroit CoR

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Publicity Campaign

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DRYDEN EXHIBIT 51 Email from Ms. Dryden to Jim

The Deposition of Elizabeth Dryden, taken

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pursuant to Notice in the above-entitled cause at

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623 West Huron Street, Ann Arbor, Michigan, on June

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27, 2013, at 9:30 a.m., before Carol Marie Hicks,

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advertising on SMART buses

CSR-3345, Notary Public in and for the County of

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DRYDEN EXHIBIT 53 Email from Ms. Dryden to Ms.

Livingston.

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64

Fetzer, re CoR ads
DRYDEN EXHIBIT 52 Email chain re Godless

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Gibbons re Advertise with
SMART copy

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67

(Attached.)

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APPEARANCES:

Page 4
ELIZABETH DRYDEN,

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ROBERT J. MUISE (P62849)
AMERICAN FREEDOM LAW CENTER
P.O. Box 131098
Ann Arbor, Michigan 48113
734.635.3756
[e-mail]
Appearing on behalf of the Plaintiffs.

having first been duly sworn, was examined and testified

3

on her oath as follows:
EXAMINATION

4

MR. MUISE:

6

Q

Could you please state your full name.

7

A

Elizabeth Utton Dryden.

8

Q

Can you spell the middle name.

9

A

U-t-t-o-n.

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CHRISTIAN E. HILDEBRANDT (P46989)
VANDEVEER GARZIA, P.C.
1450 West Long Lake Road, Suite 100
Troy, Michigan 48098
248.312.2800
[e-mail]
Appearing on behalf of the Defendants.

5

Q

And spell your last name, please.

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A

D-r-y-d-e-n.

12

Q

for the plaintiffs in this case, the American

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Freedom Defense Initiative, Pamela Geller, and

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Robert Spencer, and I believe you and I met for the
first time today, correct?

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A

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AVERY E. GORDON (P41194)
SMART
535 Griswold Street, Suite 600
Detroit, Michigan 48226
313.223.2100
[e-mail]
Appearing on behalf of the Defendants.

Ma'am, my name is Robert Muise, and I am an attorney

13

Q

That is correct.
Ma'am, have you ever testified under oath in court
or at a deposition previously?

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A

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Q

No.
There's a few ground rules that I want to kind of

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run through with you today that hopefully will allow

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us to have a cleaner, complete record by the end of
the day, okay, ma'am?

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A

Yes.

1 (Pages 1 to 4)

American Freedom Defense v. SMART
Elizabeth Dryden

6/27/2013

Page 9
testimony, or her deposition.

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Q

Page 11
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You said, "documents that were prepared and provided

A

That's one of the ways it could have been referred
to.

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to me"; what documents are you referring to?

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Well, it would be -- all those documents would fall

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to applying SMART's advertising guidelines to

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under there, and then there were some email

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various advertisements that were submitted for

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documents that were provided to me.

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3
4

A

MR. HILDEBRANDT: We provided her

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Q

Did you have any role and responsibility with regard

running on SMART property?

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A

Yes.

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with a subset of the production documents, the ones

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Q

What role is that?

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that included her name as a recipient or cc, or as a

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A

Well, as the director of the department, it was, I

writer.

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was one of the people who would help make decisions

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on whether ads were to be placed.

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BY MR. MUISE:

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Q

Ma'am, how are you currently employed?

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A

Yes.

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MR. HILDEBRANDT: How.

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A

A

How am I currently employed? I'm a director of

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Q

public affairs at Charter One Bank.

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Q

Would that be decisions based on SMART's advertising
guidelines?
On the policy, yes.
You refer to the "policy"; is that fair to call it
the advertising guidelines?

A

I believe so. It depends on how you've referred to

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BY MR. MUISE:

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Q

When did you start that job?

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A

In August of 2010.

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Q

And were you employed prior to that?

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from the advertising guidelines as to whether an

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A

I was.

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advertising should apply or not?

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Q

And who were you employed with prior to that?

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A

SMART.

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Q

How long were you employed with SMART?

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A

Three years.

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it previously.
Q

Just so I'm clear, is there a policy that's separate

MR. HILDEBRANDT: The contract in
this case actually titles them the advertising
guidelines.
A

Then the advertising guidelines.

Page 10

Page 12

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Q

Do you know approximately when you started?

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BY MR. MUISE:

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A

July or August of 2007.

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Q

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Q

What position did you hold at SMART?

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been previously marked. They're marked "Chubb" and

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A

I was the director of external affairs, marketing

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we'll refer to them as the SMART exhibits that were

and communications.

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admitted as part of the SMART deposition. This one

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Q

As director of external affairs, marketing and

is Exhibit No. 3. Take a look at that, ma'am.

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communications; is that correct?

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A

Correct.

Q

Did you hold that position the entire time you

A

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Okay.

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9

Okay. I want to provide you with a document that's

MR. HILDEBRANDT: So the question
was, is there a policy separate from the advertising
guidelines?

worked for SMART?

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A

I did.

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Q

Why did you leave SMART?

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there was not.

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A

For other professional opportunities.

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BY MR. MUISE:

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Q

Was it your decision to leave SMART?

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Q

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A

Yes.

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question on the table, but I appreciate that

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Q

Do you know who Beth Gibbons is?

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clarification. If you look on Exhibit 3 that I

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A

Yes.

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handed you from the SMART deposition, it's actually

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Q

How do you know Beth Gibbons?

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the third page of the exhibit, but it's marked as

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A

From my time at SMART, working there.

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number 40, and there's a subsection 5.07 titled

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Q

What position did Beth Gibbons hold at the time you

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Q

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A

I don't recall her exact title, but she reported

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Q

directly to me.

A

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Was your department you were director of referred to 24
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as the marketing department?

Not to my knowledge. At the time that I was there,

Okay. I don't know if there was necessarily a

Advertising Guidelines; you see that, ma'am?

were working at SMART?

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A

Yes.
Are these the advertising guidelines that you would
employ while you worked with SMART to determine
whether an ad should be accepted or rejected?

A

Yes.

3 (Pages 9 to 12)

American Freedom Defense v. SMART
Elizabeth Dryden

6/27/2013

Page 13

political; the political you're referring to there

Are you aware of any other manuals, or guidelines,

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or policies that would explain how these advertising

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guidelines would be applied by SMART?

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No.

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can't -- if it's a hotly-contended matter in the

So the sum and substance of the advertising

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media at that time, that might be something that

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Q

Page 15

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A

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Q

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guidelines that SMART would employ to accept or
reject an advertisement is contained in this Exhibit

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3, particularly section 5.07, Advertising

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Q

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A

A

Correct.

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Q

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Q

What is your understanding, if you look at -- let me

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Guidelines; is that correct?

Possibly.
Do you have an example of, when you were working at
SMART, of an issue that was hotly contended in the
media that was deemed to be political as a result?

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back up. Look at section 5.07, Advertising

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Guidelines, subsection B, 1. And based on this, it

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A

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appears that SMART prohibits advertisements that are 14
15
political or political campaign advertising; is that

Q

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Okay. So the fact that it's hotly contended in the
media is what might make the matter political.

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You'd have to look at it on a case-by-case basis. I

could be considered political.

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refers to what?
A

I don't recall.
I'm handing you what's been previously marked as
Exhibit SS from the Geller deposition, and also

correct?

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Exhibit 2 from the SMART deposition. And if you

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A

Yes.

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look at page two of the SMART deposition and Exhibit

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Q

And what was your understanding, when you were

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SS, I'm going to ask you if you've seen the

16

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working with SMART, as to how SMART defined

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advertisement that's depicted in those exhibits.

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"political"?

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Have you seen that advertisement prior to today,

It could be ballot proposals, it could be campaign

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initiatives, or individuals, and that's the

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A

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broad. . .

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Q

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A

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Q

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A

ma'am?
I have.
And do you understand that to be the advertisement
that my client submitted to SMART for display and it

What would make, for example, individuals political? 24
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If they're running for office.

was rejected?

Page 14
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Q

Anything else that would qualify as being a
political advertisement of the SMART guidelines,
based on your understanding when you worked at
SMART?
A We'd have to review that on a case-by-case basis.
Q Was the application of political in the advertising
guidelines, was it limited to just matters that
dealt with politics, such as the example you used,
political campaigns, campaign initiatives, ballot
proposals?
MR. HILDEBRANDT: Object to the form
of the question.
THE WITNESS: Can you repeat the
question.
(The last question was read back.)
A No.
BY MR. MUISE:
Q What other ways were advertisements considered
political that didn't deal directly with politics?
A Again, it would have to be taken on a case-by-case
basis. Some matters that are hot, or hotly
contended, in the media, that an ordinary person
would understand as possibly political, may be
considered political.
Q Hotly contended that a person may consider

Page 16
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A

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Q

Yes.
Were you involved in any of the decisions to reject
the advertisement?

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A

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Q

Yes.
In what manner?

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A

The advertisement was brought to my attention, and I

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shared, I asked legal for an opinion, and was

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involved in discussions regarding the next steps,

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and also informing the general manager, and that was
how I was involved.

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Q

Did you have any discussions with Beth Gibbons about
this advertisement?

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A

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Q

What do you remember about those discussions?

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A

I don't remember any details, but because Beth
reported to me, and she brought the advertisement to

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me, then I would have discussed it with her.

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Yes.

Q

Do you have any general recollection of what was
discussed about this advertisement?

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MR. HILDEBRANDT: I'm going to object

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to the question. Does that --

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BY MR. MUISE:

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Q

With Beth Gibbons.

A

I don't recall any of the details of the

MR. HILDEBRANDT: With Beth Gibbons.

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4 (Pages 13 to 16)

American Freedom Defense v. SMART
Elizabeth Dryden

6/27/2013

Page 17
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conversations that I had with Beth Gibbons regarding
this advertisement.
BY MR. MUISE:
Q Do you recall if this advertisement -- strike that.
Do you know what the basis was for rejecting this
advertisement by SMART?
A I believe it was -- there were two reasons, I
believe, but this was a long time ago, and, you
know, I don't recall all the details of the matter.
Q Do you recall that one of the bases for denying it
was because it was political?
A Again, I'm not absolutely sure today, as I talk to
you, exactly why, the exact reason why it was
declined.
Q Based on your understanding of the application of
the advertising guidelines that we've been
discussing, when you look at this advertisement, is
there anything, looking at that advertisement's four
corners, that you would deem to be political based
on your understanding of the guidelines?
A In the discussion -MR. HILDEBRANDT: In the discussion
with whom? I need to know if I need to object on
privilege here.
MR. MUISE: I didn't ask her anything

Page 19
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line of questioning with, based on your

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understanding of the advertising guidelines, is

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there anything that, as you look at this

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advertisement, that you would deem to be political

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based on your understanding of the guidelines, and

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you responded by referring to the

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RefugeFromIslam.com, the content of that website; is
that correct?

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A

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Q

That's correct.
And then I followed up and said, other than the

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content of that website, is there anything, as

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you're looking at this advertisement, Exhibit SS,

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and page two of Exhibit 2 from the SMART deposition,
anything else from that that's political?

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A

I'm not sure.

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Q

Why aren't you sure?
MR. HILDEBRANDT: Object to the form

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of the question, why aren't you sure.

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A

Why am I not sure. As I said earlier in my

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testimony, the definition of politics can be broad,

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and I would not say precisely that nothing else in
this ad is not political.

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BY MR. MUISE:

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Q

Was anything brought to your attention about a
dispute regarding the display of this ad at another

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Page 18
about --

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Page 20
transit authority in Florida?

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MR. HILDEBRANDT: I understand.

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Don't answer relative to discussions that you've had

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with legal, because those are privileged, okay?

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A
Q

I believe there's one that, we saw an article

THE WITNESS: Okay.

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dealing with the Miami advertising agency; you

MR. HILDEBRANDT: But you can tell

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familiar with the controversy that was involved with

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him, certainly, the underlying facts. He's entitled

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to know the underlying facts of what this ad

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represents.

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In this ad, the website contained within the

A

advertisement, directs people, who are reading the
website, to a political website.

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Again, the details of that are not -- I don't recall
all the details. I recall controversy, as you

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this advertisement in Miami?
A

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I was aware of a dispute at other transit
authorities.

describe it, with a transit agency in Florida, I
believe Miami.
Q

Did you have a discussion with Beth Gibbons about

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BY MR. MUISE:

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Q

Did you ever go look at that website?

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A

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A

I believe so.

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Q

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Q

What recollection do you have of what you saw on

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that was, I guess, using the way you described
previously, hotly contested in the media?

that?
I don't recall.
Do you know if this advertisement contained content

that website?

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A

I can't recall the details.

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Q

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Anything, other than what was found on the website, 19
20
based on your understanding of the application of

BY MR. MUISE:

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SMART's guidelines, anything else about this

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Q

Okay.

22

advertisement that you believe is political per the

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A

Not necessarily.

Q

17

MR. HILDEBRANDT: Hotly contended, I
think, is what she said.

guidelines?

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A

Can you restate that question.

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understanding as to why it was rejected; what basis

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Q

Sure. I'll try to make it clearer. I started this

25

was that?

23

You said there was a second bases that you had an

5 (Pages 17 to 20)

American Freedom Defense v. SMART
Elizabeth Dryden

6/27/2013

Page 21
MR. HILDEBRANDT: Feel free to look

1

1

Q

2

the, I'll just call marketing department for

Okay. As section 5.07, number 4, B, 4, excuse me.

3

simplicity, at the marketing department level, this

Would you like me to read it?

A

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BY MR. MUISE:

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6

Q

advertisement was not rejected; is that right?
A

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A

7

"Advertising that is clearly defamatory or likely to
persons."

Q

Q

What was it about this advertisement that violates

run or not run?
A

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The advertisement implies that people, who are

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Islamic, or practicing Islams, are under, are

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threatened by other members of the community.

Q

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A

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Q

Anything else?

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A

That's the general answer.

Q

Do you know what a fatwa is that's referenced in the 18
advertisement?

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A

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Q

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A

I believe it is a decree for someone to be killed in

Q

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edict?

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A
Q

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A

I'm not sure of that.

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Q

I do not.
Do you know if there's anything in the policy that
would prohibit a display of an advertisement for a
battered women's shelter?

A

All ads are, would be reviewed on a one-by-one
basis.

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Do you know if SMART ever ran any advertisements for
battered women's shelters?

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Do you know if a fatwa is an Islamic religious

The content of the website and the scorn that's
implied through the language on the ad.

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some religions or in legal, in some laws.

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What were the complex issues that were presented by
this advertisement, based on your view?

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It had complex issues that we wanted further
recommendations for and. . .

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that provision?

12

And why was it that marketing department could not
make a determination as to whether this ad should

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10

The advertisement was, we requested the analysis of
the legal department.

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hold up to scorn or ridicule any person or group of

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10
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So what was it about B, 4, that was -- strike that.
Go ahead and read what you're referring to.

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8

Now, my understanding was that, at your level of

at the guidelines, if you need to.

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Page 23

When you reviewed this advertisement, did you have 25

Q

Is there anything, though, as you're looking at
that, that would prohibit an advertisement on a

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any understanding of fatwa or Sharia, or what Islam
calls for if an individual leaves Islam?
A Did I know that at the time when we discussed it?
MR. HILDEBRANDT: Object to the form
of the question. Go ahead.
A Okay. I did not know that when the information was,
when this was first brought to me.
BY MR. MUISE:
Q Did you subsequently learn of that information?
A Yes, I did.
Q When?
A In the process of the discussions about the
advertisement.
Q I want to go back and just follow up on one thing
you had indicated about the website reference on
there. I believe you said that the website was a
political website, or it referred to a political
website; do you remember what it was about the
website that you deemed it to be political?
A I do not.
Q You don't recall if actually you considered the
RefugeFromIslam.com website itself to be political,
or perhaps some links that were on that website,
that were deemed to be political?
A I don't recall that.

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battered women's shelter as an excluded subject from

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the advertising guidelines?
MR. HILDEBRANDT: Object; calls for

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speculation; it's a hypothetical.

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A

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BY MR. MUISE:

Depends what's in the content of the ad.

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Q

As a subject matter is there anything that is

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prohibited, under the advertising guidelines, from

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running an advertisement about a battered women's
shelter?

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A

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Q

the advertising guidelines; is that correct?

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A

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Q

Yes.
So would it be fair to say the same for an
advertisement about a battered women's shelter

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wouldn't necessarily be excluded by the guidelines?

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A

Because of the issue itself, is that what you're
asking?

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We've heard other testimony that, for example,
religion isn't a subject matter that's excluded by

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I don't know. I don't think so.

Q

Yes, 'cause when I look at this there's really two

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categories that are prohibited, well, probably

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three: Political campaigns, alcohol, and tobacco
sales; that fair to say?

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A

That's, yes, here.

6 (Pages 21 to 24)