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 4

AMERICAN FREEDOM DEFENSE INITIATIVE, ET
AL v. SUBURBAN MOBILITY AUTHORITY FOR
REGIONAL TRANSPORTATION, ET AL
ANTHONY CHUBB

May 21, 2013

Prepared for you by

Bingham Farms/Southfield • Grand Rapids
Ann Arbor • Detroit • Flint • Jackson • Lansing • Mt. Clemens • Saginaw

ANTHONY CHUBB
May 21, 2013
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DEPOSITION
DEPOSITION
DEPOSITION
DEPOSITION

EXHIBIT 38
EXHIBIT 39
EXHIBIT 40
NUMBER 41

181
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186

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Christian Hildebrandt, who I understand is
representing you during the course of this deposition.
I want to review some ground rules,
hopefully to facilitate the record, making a clear
record during this case, because to my left and your
right obviously is our court reporter here who is
diligently trying to take down everything that you and
I or an attorney during this deposition says.
Have you ever given a deposition before?
A. I have not.
Q. Have you testified under oath before?
A. I have not.
Q. My understanding is you're actually one of the
attorneys of record in this case; is that right?
A. I am.
Q. So you have some familiarity with the deposition
process; is that fair to say?
A. That is true.
Q. Okay. And you understand that your testimony today is
being given under oath as if you were testifying in a
court of law?
A. I do understand.
Q. Okay. And as I said, our court reporter here is
diligently trying to take down everything that is
said. Consequently one of the most important rules

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Ann Arbor, Michigan
Tuesday, May 21, 2013
9:48 a.m.
ANTHONY CHUBB,
was thereupon called as a witness herein, and after
having first been duly sworn to testify to the truth,
the whole truth and nothing but the truth, was
examined and testified as follows:
MARKED FOR IDENTIFICATION:
DEPOSITION EXHIBIT 1
9:48 a.m.
EXAMINATION
BY MR. MUISE:
Q. Sir, could you please state your full name?
A. Anthony Chubb.
Q. Sir, my name is Robert Muise, and I represent the
plaintiffs in this case, and those plaintiffs being
the American Freedom Defense Initiative, Pamela
Geller, and Robert Spencer.
And present at this deposition today, to my
right is Daniel Piedra, who is a legal assistant at
the American Freedom Law Center, and to his right is
Mr. Avery Gordon who is representing the defendants in
this case, and to his right and your left is Mr.

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during the course of this deposition is ensure that
only one of us are speaking at a time, okay?
A. Understood.
Q. And it's also going to be important that the two of us
speak up and speak clearly so the court reporter can
understand what you are saying, okay?
A. Understood.
Q. One of the tendencies in normal conversation is that a
person will anticipate a question being asked and then
want to start answering the question before the
question is completely asked. I would ask you to
resist that temptation, let me get my question out
completely before you start answering, okay, sir?
A. Understood.
Q. And I will likewise do the same, not to follow up with
any other questions until you have answered the
question that's on the table, okay, sir?
A. Understood.
Q. If there is a document that might assist you in your
testimony today, let me know. I have got quite a few
of them here with me, there is a good chance we might
have that available if that will help you give a more
complete and thorough answer, okay, sir?
A. Understood.
Q. If there is question that I am asking you that you

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ANTHONY CHUBB
May 21, 2013
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don't understand, I'm from the Boston area, every now
and then I cut words off at the end, and I tend to
speak quickly, so I apologize ahead of time to our
court reporter. So I want to make sure you fully
understand my question before you answer, sir.
A. Understood.
Q. If you need a break at all this morning, let me know.
We will certainly do that. This is not enhanced
interrogation by any stretch, so if you need a break,
we will certainly do that. What I typically do is
probably after about 50 minutes I tend to take a 10
minute break, that's usually how it works out, but
again, if you need a break, let me know. The only
caveat being that if we are in the middle of a
question and answer, I would ask that you finish your
answer to the question before we take a break, okay?
A. Understood.
Q. Now, is there any reason as you are sitting here today
why it would be difficult for you to fully understand
and answer my questions, meaning are you under any
doctor's care, do you have any personal issues, and I
don't need to know the details, I just want to know if
there is anything that might effect your ability to
fully understand and answer my questions this morning.
A. No.

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Q. But does such a document exist?
A. I don't believe so. Actually, no.
Q. Anything you can recall about any other documents you
may have reviewed that are separate or distinct from
the documents that were provided in the production,
including the document that was produced yesterday?
A. I don't believe so.
Q. Did you discuss your deposition this morning with
anyone other than counsel?
A. No.
Q. I'm handing you what has been marked as Deposition
Exhibit Number 1. Have you seen this document prior
to today?
A. Yes, I have.
Q. And do you understand that this document is the
deposition notice directed to defendant SMART, which
is Suburban Mobility Authority For Regional
Transportation, pursuant to rule 30 (b)(6) of the
Federal Rules of Civil Procedure?
A. Yes, I do.
Q. And pursuant to this deposition notice, you have been
identified by -- and let me just back up.
Is it okay with you, I will be using the
acronym SMART, S-M-A-R-T, to refer to defendants
Suburban Mobility Authority for Regional

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Q. In preparation for this deposition, did you review any
documents that might help you to recall facts related
to the issues in this case?

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A. Yes.

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Q. Do you recall what those documents were that you

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reviewed?
A. I reviewed the document production that SMART has
given to the plaintiffs.
MR. HILDEBRANDT: Including the CBS stuff

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that we gave to you yesterday that came up in his

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review.

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A. And various other internal memorandums and documents
related to the case.

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BY MR. MUISE:

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Q. Do you recall any specifics of what these internal

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memoranda and documents related to the case were?

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A. I really -- no, I couldn't say.

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Q. Were they e-mails amongst individuals that work for

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SMART?

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A. Not beyond those which were produced in the discovery.

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Q. Was there a document that was created regarding the

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application of the SMART policy to the advertisement

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that's at issue in this case?

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A. Any such document would be privileged if there was a
review of it.

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Transportation, is that okay with you?
A. Understood.
Q. And I'm sure our court reporter will appreciate that
as well.
So pursuant to this notice you have been
designated as the witness to testify on behalf of
defendant SMART; is that your understanding?
A. Yes.
Q. And if you look at page 2 and 3, there are subject
matter that have been identified in this deposition
notice, again the numbers are 1 through 6 paragraphs,
do you see those, sir?
A. Yes.
Q. And are you prepared to testify on behalf of those
matters on behalf of SMART this morning?
A. Yes.
Q. And so I just want to be clear, so for purposes of
your answers in this deposition, those answers are the
answers of SMART, do you understand that?
MR. HILDEBRANDT: I'm going to object to
the question. It assumes that all of your questions
are going to be properly asked and properly
configured. To the extent that you ask him about his
personal opinions, you may receive personal opinions.
To the extent that your questions are directed to

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ANTHONY CHUBB
May 21, 2013
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questions against SMART, you will receive answers that

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are on behalf of SMART.

A. Understood.

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BY MR. MUISE:

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Q. Do you understand my question, sir, that I am going to

MR. MUISE: Okay. Mark this Exhibit Number
2.

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MARKED FOR IDENTIFICATION:

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be asking you questions regarding and expecting

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DEPOSITION EXHIBIT 2

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answers on behalf of SMART, do you understand that?

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9:58 p.m.

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A. Understood.

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BY MR. MUISE:

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Q. And I just want to be clear that if I use the pronoun

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Q. Sir, I'm handing you what's been previously marked as

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you during the course of this deposition, the you is

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Exhibit Number 2, which I can represent to you these

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were documents that were produced pursuant to the

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referring to SMART, do you understand that?

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A. Understood.

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document production. The front appears to be an

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Q. Unless I preface a question specifically asking for a

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e-mail from, the top it says Beth Gibbons, but an

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personal opinion of Anthony Chubb, every one of my

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e-mail from Robert Hawkins to Ms. Beth Gibbons dated

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questions during the course of this deposition will be

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May 13, 2010. It has as a subject line forward:

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directed towards you as the witness for SMART, do you

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Leaving Islam, and then it has attachment of a jpeg,

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understand that?

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leaving Islam.

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A. Understood.

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If you look at the second page of that,

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Q. Now, at issue in this case is an advertisement that my

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again, is this advertisement that's listed on the

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clients submitted to SMART for them to display on

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second page the advertisement at issue that my clients

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their buses, do you understand that?

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submitted to SMART for display on the buses?

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A. Yes.

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A. Yes.

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Q. And I'm handing you what has been previously marked as

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Q. Do you know who Beth Gibbons is?

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Deposition Exhibit Number SS from the Geller

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A. Yes.

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deposition. Do you see that, sir?

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Q. And who is Beth Gibbons?

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A. Beth Gibbons is the manager of marketing and external

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A. Yes.

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Q. Is it your understanding that that, the advertisement

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that's depicted in Exhibit Number SS, is in fact the

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Q. Does Beth Gibbons have any role at SMART with regard

advertisement at issue in this case?

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to the application of any policies that would apply as

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to whether or not an advertisement will be accepted or

A. Yes.
MR. HILDEBRANDT: When you use the pronoun
your, you mean SMART as well, right?

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affairs for SMART.

rejected by SMART?
A. Yes.

MR. MUISE: Absolutely, I do. I want to

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make sure that we are crystal clear on the record that

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BY MR. MUISE:

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Q. And what is her role?

this is SMART's deposition testimony. I'm not looking

MR. HILDEBRANDT: Objection, vague.

for the personal opinions of Mr. Chubb during the

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course of this.

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which is our current, SMART's current advertising

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vendor, and so pursuant to the contract, if they

MR. HILDEBRANDT: Well, to be fair, your

A. Beth Gibbons is the contact person with CBS Outdoors,

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question asked him whether it was his understanding

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question whether there is a violation of the policy

that that's the ad at issue, and I'm assuming you

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and the advertising restriction content, then they

meant was it SMART's understanding that that's the ad

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contact Beth, and she makes determinations or looks

at issue, and I'm certain that that's how he answered

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for internal advice regarding violations of the

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that, based upon your admonition.

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BY MR. MUISE:

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Q. And I don't want you to have any assumptions

contract.
Q. Does she have authority to make determinations on her

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own?

whatsoever. All my questions directed to you, whether

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A. Yes.

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I use the pronoun him, his, you, your, any other

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Q. And sometimes she might seek other advice to assist in

reference that's directed to the person sitting in the

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chair across from me is a question directed to SMART

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A. Yes.

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and I expect an answer from SMART. Do you understand

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Q. And would that be in the application of the policy

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that?

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making the determination; is that correct?

that was applied to reject my client's advertisement?

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ANTHONY CHUBB
May 21, 2013
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A. Yes, I believe she has authority to make that
determination in certain circumstances.

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Q. I understand. You mentioned Robert -- well, let me
back up.

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contract between CBS and SMART.
Q. Certainly. That actually was going to be the next
exhibit, so why don't we just move to that.
You refer to it as the contract between?

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A. Between CBS and SMART.

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You mentioned CBS Outdoor, but I want to

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ask you, Robert Hawkins, do you know who Mr. Hawkins

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MR. MUISE: Let's mark this as number 3.

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is?

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MARKED FOR IDENTIFICATION:

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DEPOSITION EXHIBIT 3

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A. He was, at the time of this e-mail, he was their sales
representative for the Detroit area.

10:03 a.m.

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CBS Outdoor?

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BY MR. MUISE:

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Q. Okay. And you say their. You are referring to the

Q. Sir, I'm handing you what's been marked for this

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A. Correct, yes.

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deposition as Exhibit Number 3, and I will represent

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Q. And what is the relationship of CBS Outdoor to SMART

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to you that this was Exhibit A that was submitted by

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SMART as document number 12-2 in this case, and it was

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with regard to these advertisements?

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A. CBS Outdoor is our agent and contractor for the sale

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my understanding based on responses to the document

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and placement of advertising on the buses, the sale

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production as well as representations made in court

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production and placement, sorry.

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that Exhibit A depicts in fact the policy for

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accepting or rejecting advertisements with SMART; is
that correct, sir?

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Q. I'm sorry. Does CBS Outdoor have any role whatsoever

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in making determinations as to whether an

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advertisement would be accepted or rejected?

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MR. HILDEBRANDT: We will stipulate to

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A. Generally, no. The way that the contract is set up,

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that.

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if they feel that there is any potential violation of

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A. Correct.

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the advertising content policy, they go directly to

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BY MR. MUISE:

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SMART for a determination to be made.

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Q. Okay. And I believe I had a question, I asked you a

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question was there a particular, what you call this

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Q. Do you know if CBS Outdoor had any role whatsoever in

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particular policy, does it have a particular title?

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the decision to reject the placement of my client's ad

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on SMART buses?

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A. It's the advertising guidelines.

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Q. And the advertising guidelines I believe you are

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A. They may have -- yes.

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referring to I believe is listed on this Exhibit

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BY MR. MUISE:

5

Number 3 as 5.07 advertising guidelines; is that

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Q. And what would have been their role?

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A. They may have communicated the rejection to your

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A. That's correct.

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Q. And it appears on page 40, the page number at the

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bottom of this document, but this document doesn't

MR. HILDEBRANDT: Objection, vague.

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client.
Q. In terms of the actual the decision to reject the

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advertisement, do you know if CBS Outdoor or any of

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its officers played any role in making that decision?

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correct?

have 40 pages, correct?
A. That's correct. It's page 40 of the contract. This
is a portion of that contract.

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A. I do. They did not.

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Q. Okay. Thank you.

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Q. Now, with regard to determinations that are made on

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Now, my client's advertisement, the one I

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the content of the advertisement, whether to restrict

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have been referring to in Exhibit SS in Deposition

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it or to permit it, is the entire guidelines listed

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Exhibit Number 2, was rejected by SMART based on its

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under section 5.07 as indicated in this Exhibit Number

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content; is that correct?

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3?

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A. That's correct.

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A. No.

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Q. And it was rejected based on its content based on

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Q. What other guidelines are applied?

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A. There are other guidelines with regard to the size of

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SMART's content policy; is that right?

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A. That's correct.

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the advertising that are listed elsewhere in the

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Q. Do you have a name for that policy? I refer to it as

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contract, but they aren't regarding the content of the

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content policy. Is there an official name for the

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policy that was used to reject the advertisement?

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A. Could I have a copy of that? It's section 5.07 of the

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advertising.
Q. And I appreciate your response to clarify. It helps
me to clarify my follow-up question now.

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ANTHONY CHUBB
May 21, 2013
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So with regard to advertising guidelines
related to content, whether to accept or reject an
advertisement, is the entirety of those guidelines
listed in section 5.07 in Exhibit 3?
A. Yes.
Q. Are there any sections that would provide any
definitions for any of those -- let me back up.
Is there a definitional section that is
related to section 5.07 of Exhibit 3?
A. No.
Q. Are there any other guidelines, manuals or criteria
that relate to the application of section 5.07 of
Exhibit 3?
MR. HILDEBRANDT: I'm going to object to
the question. It's compound. Guidelines are
different than criteria.
BY MR. MUISE:
Q. Let me ask it -- are there any other -- I will break
it down.
Section 5.07, the advertising guidelines
here on Exhibit 3, are the guidelines that SMART uses
to either accept or reject an advertisement based on
content, correct?
A. Correct.
Q. Are there any other guidelines that address the

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BY MR. MUISE:
Q. Now, these advertising guidelines, 5.07, the content
restrictions, they apply to bus advertisements,
correct -A. Correct.
Q. -- in SMART?
Are there other fora for advertising that
SMART, that SMART permits? I believe I have seen ads
for like bus shelters, for example?
A. Yes.
Q. So you have buses, you have bus shelters. Are there
other locations where people can advertise that SMART
controls?
A. No.
Q. So bus shelters and buses is the extent of it?
A. That's correct.
Q. And with regard to buses, I have seen advertisements
that appear to be inside the buses; is that right?
A. Correct.
Q. Is there a particular name for those advertisements?
A. Just interior bus advertisements.
Q. So you have exterior bus advertisements and interior
bus advertisements?
A. Correct.
Q. And on the exterior I have seen that some have been

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application of section 5.07?
MR. HILDEBRANDT: Objection, vague.

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posted on the long edge of the buses; is that right?

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A. Correct.

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A. No.

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Q. And on the back side of the buses as well?

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BY MR. MUISE:

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A. Correct.

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Q. Do you understand the question?

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Q. And these advertising guidelines regarding contents,

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A. I believe so. Within the contract there are no other

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section 5.07 in Exhibit 3, does it apply to all those

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guidelines that speak to the application of 5.07.

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Q. Is there -- are there any other guidelines outside

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this contract that speak to the application section,

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A. Yes.

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Q. Now, I would like for you to explain to me the process

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5.07?
MR. HILDEBRANDT: Objection, vague.

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advertising spaces that we have just described?

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that SMART uses for when an advertisement is presented

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for determination of whether it will run or not run on
the SMART buses. Are you familiar with that process?

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A. No.

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BY MR. MUISE:

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A. Yes.

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Q. Are there any other instructions outside of this

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Q. Okay. Would it begin with, as we had in Exhibit 2,

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contract that speak to section, the application of

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for example, you had Robert Hawkins who would then

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section 5.07?

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present an advertisement to SMART or how does the

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A. No.

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process go? My client wants to put this advertisement

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Q. So if an official at SMART was going to make a

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listed on Exhibit 2 and Exhibit SS on a SMART bus ad.
What were the steps that the person would have to take

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determination of whether content was acceptable or

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impermissible for display on its buses, the entirety

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of the guidance that that official would be operating

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under is contained in section 5.07 of these

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Outdoor as our agent, as SMART's agent. They will --

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advertising guidelines?

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they will explain the pricing and everything regarding

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the actual placement, timing, the available space, and

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then the ad copy is submitted to CBS from the

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MR. HILDEBRANDT: Objection, vague.
A. Correct.

for that to happen?
A. Generally an advertiser will speak first to CBS

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ANTHONY CHUBB
May 21, 2013
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advertiser. CBS then will, if it believes that there

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is a potential violation of section 5.07, it will give

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determination, is there -- is it set forth in any

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a copy of the advertising to Beth Gibbons or the

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rules, guidelines or regulations as to what the

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person in that role obviously, and Beth then will seek

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procedure will be employed if Beth Gibbons has to go

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advice internally as necessary to make any final

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determination as to violations of section 5.07.

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A. No. It's fairly consistent, though.
Q. So you have the office of the general counsel, the

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Q. Okay. If there is a determination that it violates

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section 5.07, is there a process or procedure that

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SMART employs to notify the advertiser?

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A. Generally, although there could be exceptions, Beth

Q. Is the procedure for reviewing beyond Beth Gibbons'

beyond her own determination?

general manager and perhaps other individuals?
A. Well, first the marketing department or the external

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affairs and communications department, which is Beth

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Gibbons will then go back to CBS to tell them to

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Gibbons, the office of the general counsel, and the

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notify the advertiser that their advertisement has

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general manager is the standard process.

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been rejected.

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Q. So marketing department, and who is it after that?

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A. The office of the general counsel, and the general

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Q. Is it the policy or practice of SMART to give a reason
as to why the advertisement was rejected?

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A. Yes.

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Q. Would they specifically cite to section 5.07 if it was

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a content based issue?

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A. They would -- no, not necessarily. They would say --

manager's office.
Q. Does it have to go to all of those or can at any point
somebody make a determination that it's either good or
it fails?

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A. At any point someone could make a determination if

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I mean in a vague sense, yes. They wouldn't

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they thought that it was clear-cut and didn't need to

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necessarily say section 5.07, but they would say it's

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be escalated further, they could make a determination

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against SMART's content policy.

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Q. Is it the practice to explain what part of the content
policy the particular advertisement violated?

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A. No.

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and the decision would be made.
Q. And that's a decision whether to run it or to reject
it?
A. Correct.

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Q. And I believe you testified previously that in the

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sequence that you have described, Beth Gibbons, if she

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based on her determination concluded that it violated

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the content restriction, she could then tell Mr.

5

Hawkins that the advertisement has been rejected

6

without any further, seeking any further advice; is

7

that right?

8

A. That's correct.

9

Q. And in some cases she may seek further advice; is that

10

right?

11

A. Correct.

12

Q. Who are the other officers or persons to whom she

13

would seek advice?

14

A. Generally the office of the general counsel, the

15

general manager, and other individuals within

16

administration potentially if the ad is of a certain

17

nature that it would impact -- that they would have

18

some technical expertise in it.

19

Q. For example, what would be an example of that?

20

A. It would be hard to come up with one. I was thinking

21

SMART has a drug and alcohol compliance person that

22

may have specialized knowledge in that area if it was

23

something related to drugs or alcohol potentially, or

24

our deputy general manager of administration has also

25

been sought generally if more opinions are needed.

Page 28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

Q. Is this the general direction it goes, marketing
department, office of general counsel, and then
general manager's office?
A. Yes.
Q. And using a, I guess a trite phrase, the buck could
stop at one of those departments; is that right?
A. That's correct.
Q. You know what I mean by that -A. Yes.
Q. -- a final decision could be made in any one of those
departments?
A. Yes.
Q. Are there any guidelines that, for example, Beth
Gibbons in the marketing department would review to
make a determination whether it then needed to be
bumped up to the office of general counsel?
MR. HILDEBRANDT: Objection, vague. You
mean in addition to 5.07?
MR. MUISE: Exactly.
A. Common sense.
BY MR. MUISE:
Q. Anything other than common sense?
A. No.
Q. Do you know if there was anyone other than Beth
Gibbons who in the marketing department reviewed my

Pages 25 to 28

ANTHONY CHUBB
May 21, 2013
Page 29
1

client's advertisement at issue in this case?

3

1

MR. HILDEBRANDT: Objection, vague. What

2

Page 31

do you mean by reviewed?

2
3

Q. And was the decision to deny, reject my client's
advertisement was made then by the general manager's
office; is that right?

4

BY MR. MUISE:

4

A. In consultation with the other departments, yes.

5

Q. Do you understand what I mean by reviewed?

5

Q. So the final decision then went through all three of

6

A. Yes, I believe so. I believe that at the time we had

6

7

a direct -- there was a SMART director of marketing

7

A. That's correct.

8

and external affairs, Beth Dryden, and I believe she

8

Q. Who was the general manager at the time?

9

has reviewed the advertisement.

9

A. John Hertel.

10

Q. Okay. Other than Beth Gibbons and Beth Dryden,

10

those levels up to the general manager's office?

Q. Did the marketing department make a recommendation to

11

anybody else in the marketing department that you are

11

the office of general counsel as to whether my

12

aware of that reviewed my client's advertisement to

12

client's ad should be accepted or rejected?

13

determine whether it satisfied the content based

13

14

requirements?

14

That's privileged information. The advice that they
sought from the attorney from SMART is privileged.

15

A. No.

15

16

Q. Do you know if the decision to reject my client's

MR. HILDEBRANDT: I'm going to object.

16

17

advertisement was made by the marketing department?

MR. MUISE: I'm not asking for the

17

advice --

18

A. It was not.

18

BY MR. MUISE:

19

Q. So there was something about my client's advertisement

19

Q. Is Beth Gibbons an attorney?

20

that then caused either Ms. Gibbons or Ms. Dryden to

20

A. She is not.

21

push the decision up to the office of the general

21

Q. Is Beth Dryden an attorney?

22

counsel; is that correct?

22

A. She is not.

23

A. Presumably, yes.

23

Q. Do either of them hold a role as an attorney?

24

Q. Well, do you know?

24

A. Not that I'm aware of, no.

25

A. I can't speculate as to their -- what they were

25

Q. So they are not engaging in the lawful practice of law

Page 30

Page 32
at SMART; is that fair to say?

1

thinking, but they did push it beyond the marketing

1

2

department, and so based on our policy, yes, there was

2

A. Correct.

3

something that caused them uncertainty and they needed

3

Q. Do you know what recommendations either Beth Dryden or

4

further review.

4

Beth Gibbons made as to whether this advisement should

5

be accepted or rejected?

5

Q. Okay. So they didn't -- even though she had the

6

authority to either approve or reject the

7

advertisement, it's your understanding that Beth

7

Gibbons or Beth -- was it Beth Dryden too?

MR. HILDEBRANDT: I'm objecting, that's

6
8

8
9

A. Correct.

9

attorney client privileged.
MR. MUISE: Are you directing the witness
not to answer the question?
MR. HILDEBRANDT: I am directing the

10

Q. So two Beths, I'm sorry. So Beth Gibbons and Beth

10

11

Dryden in the marketing department did not make a

11

witness not to answer the question because the fact

12

decision one way or the other and they pushed it up to

12

that she sought legal counsel and the discussions that

13

the office of general counsel, correct?

13

she had with legal counsel are absolutely privileged.

14

A. Correct.

15

Q. Do you know if the decision to reject my client's ad

15

was made from the office of the general counsel?

MR. MUISE: Are you instructing the client

14

not to answer the question?

16

BY MR. MUISE:

17

A. Can you restate that question?

17

Q. Are you going to answer the question?

18

Q. Sure. Do you know if the decision then to reject my

18

A. Are you directing me?

16

MR. GORDON: Can I hear the question again,

19

client's ad was made at the office of the general

19

20

counsel?

20

21

A. It was not.

21

(The following record was read by the

22

Q. So then the office of the general counsel decided it

22

reporter at 10:21 a.m.

please?

23

needed to be pushed up to the general manager's

23

"QUESTION: Do you know what

24

office?

24

recommendations either Beth Dryden or Beth

25

Gibbons made as to whether this advisement

25

A. That's correct.

Pages 29 to 32

ANTHONY CHUBB
May 21, 2013
Page 37

Page 39
assumes that the guidelines themselves are

1

review of whether this ad should be accepted or

1

2

rejected?

2

3

A. It did not.

3

A. I would answer that the advertisement -- or the

4

Q. Did the office of general counsel -- well, let me back

4

guideline as written is articulated, but something

5

up. I believe you already answered that question.

5

beyond that is not contained within 5.07 to explain

6

So the decision to deny the advertisement

6

7

insufficient to be articulated standards.

what that means.

was ultimately made at the general manager's office as

7

BY MR. MUISE:

you testified, correct?

8

Q. Okay. And so then going beyond 5.07, are there any

9

A. That's correct, and the advice, the contents of which

9

guidelines, manuals, guidance or any written criteria

10

is privileged, from the office of the general counsel.

10

that would provide a definitive, articulated -articulation of the -- let me back up.

8

11

Q. And what was the basis for rejecting my client's

11

12

advertisement, the one depicted in Exhibit 2 and

12

13

Exhibit SS?

13

instructions beyond 5.07 that would provide an

14

articulated definition or definitive standard of what

15

political means for purposes of application of these

16

guidelines?

14
15

A. Right. It was rejected based upon 5.07 B 2 and 5.07 B
4 of the contract.
MR. HILDEBRANDT: 1 and 4.

16
17

A. My apologies, yeah. 5.07 B 1 which is political or

17

Are there any guidelines, manuals, or

MR. HILDEBRANDT: I'm going to object to

18

political campaign advertising and 5.07 B 4 which is

18

the question as compound. Guidelines, manuals and

19

advertising that is clearly defamatory or likely to

19

instructions are completely different things. You can

20

hold up to scorn or ridicule to any person or group of

20

ask each separately, you will get better answers.

21

persons.

21

22

BY MR. MUISE:

22

A. Would you like -- should I answer?

23

Q. Looking at these advertising guidelines, is there any

23

BY MR. MUISE:

24

articulated definitive standard to determine what is

24

Q. Go ahead.

25

considered political in violation of this advertising

25

Guidelines could include published case law.

MR. HILDEBRANDT: If you can.

Page 38
1

guideline?

Page 40
1

A. There are no -- if you are asking about internal

2
3

A. Within the advertising guideline itself?

2

documents, internal posted documents, for example,

Q. Yes.

3

SMART authored documents, there are none beyond those

4
5
6

A. This states political or political campaign

4

7
8
9
10
11

advertising.

BY MR. MUISE:

6

Q. Okay. And same question with regard to restriction

determine whether something is political or not in

7

5.07 B 4, are there any other guidelines, manuals or

violation of these advertising guidelines?

8

instructions that would provide an articulated,

9

definitive standard to determine what is likely to

that the guideline itself is not an articulated

10

hold up to scorn or ridicule of any person, what

standard.

11

advertisement would fit that criteria?

Q. Is there any articulated definitive standard to

MR. HILDEBRANDT: Objection, that assumes

12
13

A. I'm not clear as to whether you are asking me the

14
15

BY MR. MUISE:

14

Q. Is there anything beyond section -- well, let me ask

15

16
17
18
19
20

that are clearly articulated within the policy itself.

5

contents of 5.07 or beyond that.

12
13

MR. HILDEBRANDT: Same objection, the
question is vague and compound.
A. Again, there is nothing beyond -- I mean SMART doesn't
author common sense, but there is nothing that SMART
authored to further define these guidelines.

this, within 5.07 is there anything in your view that

16

is an articulated definitive standard of what

17

BY MR. MUISE:

qualifies as political under this restriction?

18

Q. And how then does an individual who has the authority,

A. I think political is articulated, but beyond that

19

for example, Beth Gibbons, somebody in the marketing

within 5.07 nothing further explains political.

20

department who has the authority to make a

21

determination as to whether something is accepted or

there any articulated definitive standards to

22

rejected, what is the definition of political that
that individual would employ?

21
22
23

Q. Okay. And then with regard to, same question, are
determine whether something in advertising is likely

23

24
25

to hold up to scorn or ridicule any person or group?

24

MR. HILDEBRANDT: Same objection, it

25

MR. HILDEBRANDT: Objection, it assumes
that Beth Gibbons would make a decision on the

Pages 37 to 40

ANTHONY CHUBB
May 21, 2013
Page 41
1
2
3

question of political.

Page 43
1

A. I'm not -- could you do the question again? I'm
sorry.

2

A. If you find my previous definition inconsistent with
that definition, then yes.

3

Q. So it doesn't -- you don't just reject advertisements
that relate to government, a government, or the

4

BY MR. MUISE:

4

5

Q. Sure. What is the standard or definition that SMART

5

6

employs to determine whether an advertisement is

6

A. I think that is correct.

7

political under its advertising guidelines?

7

Q. In terms of the political component of it?

8

A. Yes.

MR. HILDEBRANDT: Asked and answered.

8

conduct of government; is that right?

9

A. I would just -- political is any -- is any -- I mean

9

Q. Would it be fair to say that when you use the term

10

in the context of the advertising policy, is any

10

politicized, that's referring to public issues that

11

advocacy of a position of any politicized issue.

11

have become controversial?

12

BY MR. MUISE:

12

13

Q. How do you determine whether an issue has been

13

your questioning. I don't think controversial is -- I

14

don't think your definition is consistent with my

14

politicized?

A. I have already given a definition for politicized in

15

A. I would say -- I would say if -- within society if an

15

16

issue -- if there are -- if society is fractured on an

16

17

issue and factions of society have taken up positions

17

have become politicized, and I believe you indicated

18

on it that are not in agreement, it's politicized.

18

that its people have taken different sides on a public

19

Q. Does political for purposes of the advertising

19

20

guidelines we are discussing, would this definition

20

21

hold of or relating to government, a government or the

21

22

conduct of government?

22

23

A. That is -- if you are not -- I mean if you are

23

24

literally looking at the word political, yes, that's

24

25

the definition of political.

25

definition that I previously gave.
Q. Well, I'm not clear on what you said, matters that

issue and that makes it politicized?
A. In so many -MR. HILDEBRANDT: I object that it
misconstrues the previous testimony.
A. Insofar as that's consistent with my previous
statement, yes.
BY MR. MUISE:

Page 42
1
2

Q. Is that the definition that SMART employs to reject
advertisements that it deems to be political?
MR. HILDEBRANDT: Asked and answered.

3
4

A. That -- that's a consideration, but that's the -- I

Page 44
1

Q. I want to be clear. How is it that SMART determines

2

whether an advertisement is political or not political

3

advertising?

4

A. I would have to refer to what I have already said to
ensure that I'm consistent. I have already answered

5

believe that's the Black's Law definition of

5

6

political.

6

7

BY MR. MUISE:

7

8

Q. But that's not the definition -- back up.

8

advertisement is political or not political? You

9

didn't answer that. You said if an issue has been

SMART doesn't limit its view of what is

9
10

political to that definition; isn't that correct?

10

that question.
Q. How is it -- how do you determine whether an

politicized.
A. I said if it's an advocacy of a topic that has been

11

A. In the determination of political advertising, I think

11

12

you would have to say that is correct, based on my

12

13

prior explanation of what is political.

13

meant, and I answered that.

14

Q. And what does politicized mean?

14

Q. And so the definition that SMART employs to determine

politicized, and then you asked me what politicized

15

what is political is broader than the definition that

15

MR. HILDEBRANDT: Asked and answered.

16

I just explained to you; is that right?

16

A. You would have to ask her to review the transcript. I

17
18
19
20
21
22
23

A. Than the -- could you read the definition again, I
guess?
Q. Sure. Of or relating to government, a government, or
the conduct of government.
A. I guess -- sorry, repeat the question then. My
apologies.
Q. No problem. SMART's definition of political for

17

want to make sure I'm consistent.

18

BY MR. MUISE:

19

Q. You don't know how SMART defines politicized?

20
21

MR. HILDEBRANDT: Now, wait a second.
A. I have already said it.

22

MR. HILDEBRANDT: You are using you and

23

SMART in the same question now. Are you asking if

24

purposes of its content based guidelines is broader

24

SMART knows how SMART does it --

25

than that definition; is that correct?

25

MR. MUISE: Exactly.

Pages 41 to 44

ANTHONY CHUBB
May 21, 2013
Page 45
MR. HILDEBRANDT: -- or are you asking him

1
2

if he knows how SMART does it?

4

Q. So any advertisement that references the application
of sharia law is rejected as political by SMART?

MR. HILDEBRANDT: He has already answered

3

MR. HILDEBRANDT: Object to the

4

at SMART.

5

1
2

MR. MUISE: My questions are all directed

3

Page 47

hypothetical. Do you have examples as to whether

5

things were rejected or not other than this particular
ad?

6

the question about what political means for the

6

7

purposes of this contract. You can go back and review

7

BY MR. MUISE:

8

the transcript, you can ask the court reporter to read

8

Q. Do you understand my question?

9

it back, which is what he has indicated you should do

9

A. Could you restate the question? I'm sorry.

10

if you want to continue asking the same question.

10

(The following record was read by the

11

Asked and answered.

11

reporter at 10:40 a.m.

12

"QUESTION: So any advertisement that

13

references the application of sharia law is

MR. MUISE: That's fine. I want to get to

12
13

the point of --

14

BY MR. MUISE:

14

rejected as political by SMART?")

15

Q. Let me ask this, is there anywhere in this advertising

15

A. I would have to -- I can't speculate on anything

16

guideline where the term politicized is used?

16

beyond this. I would have to see it.

17

A. No.

17

BY MR. MUISE:

18

Q. Is there any guideline that you are aware of that

18

Q. So is it SMART's position that a fatwa is a political

19

defines politicized for the purposes of the officials

19

20

at SMART that have to apply these guidelines?

20

MR. HILDEBRANDT: Objection, vague as to

21

21

22

the word guidelines and what it includes and what can

22

23

be reviewed by the legal counsel's office to do that.

23

24

A. In a loose sense of the word, of course we use case

24

25

law, and I think that the sixth circuit in this case

25

edict?
A. Well, within the context of this advertisement it is.
I can't speculate as to whether in a different context
it wouldn't be.
Q. And what makes it political in the context of this
advertisement?
A. Well, the review -- the review of this advertisement

Page 46

Page 48

1

referred to politicized, and but we don't have any

1

involved the review of the website as well, because it

2

internal guideline on these issues beyond the

2

is clearly in this advertisement, and in this

3

advertising guideline itself.

3

situation this is -- the website is clearly
anti-Islam, and therefore its reference to the sharia

4

BY MR. MUISE:

4

5

Q. If you look at my client's advertisement, you can look

5

6

at Exhibit Number 2, if you like, is there anything in

6

7

this advertisement that relates to government, a

7

8

government or the conduct of government?

8

9
10
11
12

A. Are you speaking of the American government or -could you clarify the question? I'm sorry.
Q. Well, government in general, is there anything in this
advertisement that refers to government?

9

law is taking a position on Islam generally.
Q. And I believe in your prior definition of
politicalization -- is that the term you used, or
politicized?
A. Politicized, yeah.

10

Q. Politicized was if people are taking a position on a

11

particular issue that have competing positions, that

12

makes the issue politicized?

13

A. No.

13

MR. HILDEBRANDT: Object to the

14

Q. What was it about this advertisement that SMART

14

mischaracterization of the prior testimony. I think

15
16

concluded was political?
A. This advertisement refers to a fatwa, which is an

15

he said advocating.

16

A. Sorry, could you repeat the question?

17

edict issued by a Muslim cleric, it's part of sharia

17

BY MR. MUISE:

18

law. That's clearly political.

18

Q. Your last reference was that when you went to the

19

website you saw that it was taking a position on

19
20

Q. You say it's clearly political. What makes it
political?

20

Islam, correct?

21

A. It's referencing sharia law.

21

A. Correct.

22

Q. And what is political about sharia law?

22

Q. And by taking a position on Islam, does that make the

23

A. It is a system of law, and it's referencing its

23

24

application, you know, and -- it's referencing its

24

25

application.

25

advertisement politicized?
MR. HILDEBRANDT: The position taken itself
or the fact that positions are taken on the issue?

Pages 45 to 48

ANTHONY CHUBB
May 21, 2013
Page 49
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

Page 51
1

BY MR. MUISE:

BY MR. MUISE:

2

Q. Does it have to -- is there a scale of how politicized

Q. I'm trying to figure out this politicized adjective

3

an issue must be in terms of how, you know, how

4

controversial it is at the moment or how do you

5

determine whether something is sufficiently

out what the question is so that I know whether to

6

politicized?

object or not.

7

What is your question?

that you are using and how it applies.
MR. HILDEBRANDT: And I'm trying to figure

MR. MUISE: I understand.

8

MR. HILDEBRANDT: Object to vague. Nobody
used the word controversial.

unintelligible.

9

A. I would have to have an example. We don't -- I -- we

10

MR. HILDEBRANDT: The question to me is

have never had an issue where this wasn't clear by
common sense or logic.

BY MR. MUISE:

11

Q. You're saying an issue has become politicized if there

12

BY MR. MUISE:

are advocates on both sides of the issue; is that

13

Q. Okay. Well, let's look at the advertisement that you

right?

14

rejected from my client. I will refer you to Exhibit

15

2. Is there anything on the face of this

MR. HILDEBRANDT: I'm going to object to
the oversimplification of the prior testimony.

16

advertisement that addresses a politicized issue?
A. I think you have already asked that question, and yes,

A. That's consistent with my explanation, yes.

17

MR. MUISE: Let's take a break, because I

18

want to go pull that transcript, we are going to go

19

back and look at the transcript so we are talking on

20

the same page here. Why don't we take a 10 minute

21

break right now. It's 10:45.

22

A. Fatwa, a fatwa is an edict issued under sharia law.

MR. HILDEBRANDT: All right.

23

Q. And how do you know that?

(Recess taken at 10:43 a.m.)

24

A. It was reviewed by SMART representatives.

(Back on the record at 11:03 a.m.)

25

Q. And SMART determined that a fatwa was something that

fatwas and the application of sharia law is a
politicized issue.
Q. Okay. Is sharia law mentioned anywhere on this
advertisement?

Page 50

Page 52

1

BY MR. MUISE:

1

2

Q. Sir, I went back and reviewed the transcript, and here

3

is how you had explained the definition of political:

3

4

Political is any advocacy of a position of any

4

5

politicized issue. Does it sound familiar?

5

was issued under Islamic law?

2

6

A. Yes.

6

7

Q. Okay. And then the following question asked about

7

8

politicized, and here how it was described: If

8

9

society is fractured on an issue and factions of

9

10

society have taken up positions on it that are not in

10

11

agreement, it's politicized. Sound correct?

11

MR. HILDEBRANDT: Is that something that is
being contested in this case, Mr. Muise?
MR. MUISE: I want to get to the bottom of
how they determined that this is politicized
advertisement.
A. A fatwa is an edict issued by a Muslim cleric that was
determined -- or yes.
BY MR. MUISE:
Q. I believe you testified previously you understood it
to be a religious edict; is that right?

12

A. Correct.

12

A. Yes, under -- pursuant to sharia law, yes.

13

Q. So with regard to determining -- how is it that SMART

13

Q. And was it because it's pursuant to sharia law that

14
15
16

determines that an issue is politicized?
A. I'm not sure how to answer that beyond what I have
already explained politicized to mean.

14
15
16

the issue has become politicized?
A. Yes. There is a lot more -- this is very complex and
that's a very finite question. That was a
consideration in making the determination, yes.

17

Q. So if there is any issue that's addressed by an ad in

17

18

which society has taken up positions on it that are

18

Q. That sharia law has become politicized?

19

not in agreement, it's prohibited content?

19

A. The application of sharia law on people of the Islamic

20
21
22

MR. HILDEBRANDT: Object to

20

mischaracterization. Fractured, fractured society was

21

an important part of that.

22

faith, yes.
Q. And is that because factions of society have taken up
positions on it that are not in agreement?

23

A. Well, then it's determined to be politicized, and you

23

A. Yes.

24

have to look at if it's an advocacy of one of those

24

Q. And not in agreement in what respect, whether it

25

viewpoints on the issue.

25

should be applied or shouldn't be applied, what is the

Pages 49 to 52

ANTHONY CHUBB
May 21, 2013
Page 53

Page 55

1

lack of agreement with regard to sharia law that made

1

2

it a politicized issue?

2

A. Or any of the other rejections -- or any of the other
restrictions on content, yes.

3

A. Certainly we have in many states, I think we have

3

4

bills pending, and I believe we did at the time, that

4

violate one of your content restrictions, leaving

5

this is just the most acute example I can think of

5

aside the, you know, the size restrictions and that

6

that banned the placement of sharia law within our

6

sort of thing, but with regard to the content

7

system of government or the application of sharia law

7

restrictions, commercial advertising is permitted,

8

within our borders. Certainly factions -- that

8

correct?

9

certainly seems to be a faction and an issue of great

9

10

debate.

10

11

Q. Now, you said it was an issue of great debate. If it
had been an issue of little debate, does that make it

12

13

a politicized issue?

13

MR. HILDEBRANDT: Are we assuming that your
client's advertisement is noncommercial?

11

12

Q. But commercial advertisement in general, if it doesn't

MR. MUISE: I am not asking that. That's
not even an assumption built into the question. It's
a pretty straightforward question.

14

MR. HILDEBRANDT: I'm going to object to

14

BY MR. MUISE:

15

the hypothetical. I don't think that he can make a

15

Q. Commercial advertising is accepted by SMART in

16

determination as to what would have happened under

16

17

different circumstances without having an ad presented

17

A. Pursuant to the advertising guidelines, yes.

to him that would be on an issue of little debate.

general, correct?

18

Q. Okay. And same with noncommercial advertising?

19

A. I need a further example. It doesn't require great

19

A. Correct.

20

debate, although that's not a finite term, I guess.

20

Q. And my understanding based on representations that

18

21

BY MR. MUISE:

21

have been made in this case so far, religion is not a

22

Q. Okay. And let's cut to the chase here. How does a --

22

subject matter that is per se excluded from the

23

how does an objective government official look at an

23

24

advertisement, determine whether something is

24

A. That is correct.

25

sufficiently politicized to either accept or reject

25

Q. And public service messages are accepted by SMART; is

advertising guidelines?

Page 54
1

under SMART's advertising guidelines?

Page 56
1

that correct?

2

A. This policy for the 7 years that I have been at SMART

2

A. Pursuant to the advertising guidelines, yes.

3

has been implemented without issue, and so obviously

3

Q. And in terms of specific categories that are excluded

4

it's -- based on just the face of the advertising

4

5

policy, that isn't an issue.

5

by these guidelines, campaign advertising is a
category that's excluded, correct?

6

Q. Well, there has to be some judgement made by the

6

A. Correct.

7

officials who are making determinations on behalf of

7

Q. And you indicated alcohol or tobacco sales are

8

SMART whether something is sufficiently politicized to

8

9

be rejected; isn't that true?

9

10

A. Yes.

10

11

Q. And what are they base that judgement upon?

11

12

A. Everything that we have just gone over, all of the

12

excluded, correct?
A. Advertising promoting the sale are alcohol or tobacco,
correct.
Q. Did SMART determine, referring back to my client's
advertisement, did SMART determine that this

13

explanations that I have just given you. You look at

13

advertisement was not a religious advertisement?

14

the advertisement, you make the determination, and

14

A. An advisement that has religion -- that involves

15

it's just -- it's just like determining if something

15

religion still has to be reviewed against the content

16

promotes the sale of alcohol or tobacco, and we have

16

policy. This speaks directly to Islam. Obviously it

17

successfully done it for the 10 years that I know of

17

18

the policy and until your client filed suit.

18

19

Q. Now, I want to back up to your -- the SMART's

19

has religious content.
Q. Okay. And it was politicized because it refers to
fatwa which is a reference to sharia, and sharia has

20

advertising guidelines. My understanding is SMART

20

21

permits commercial advertisement, correct?

21

A. If that's consistent with my testimony, correct.

22

Q. And the reference to sharia as plain from this

22
23

A. If it's within the restriction -- if it's acceptable
under 5.07, yes.

been a politicized issue?

23

advertisement, it doesn't show on its face it refers

24

Q. So a commercial advertisement could be rejected

24

to sharia, you said you went to the website; is that

25

because it represents a politicized issue as well?

25

correct?

Pages 53 to 56

ANTHONY CHUBB
May 21, 2013
Page 57
1

A. To RefugeFromIslam.com?

2

Q. Yes.

3

A. Correct.

4

Q. Is it from RefugeFromIslam.com that you determined

5

that this advertisement was about sharia?

6

A. Well, the fatwa, as I have already explained, a fatwa

7

is an edict made under sharia law by a Muslim cleric,

8

and sharia law governs Muslim or people of the Islamic

9

faith.

10
11

Q. And it was decided that sharia law is politicized that
made this advertisement politicized?

12

A. Yes, in concert with that which was found on the

13

website. Again, it's not any one piece of this, this

14

is looking at everything together to make these

15

determinations.

16

Q. And what was it from the website that SMART reviewed

17

to make the determination that this was a politicized

18

issue?
MR. HILDEBRANDT: Do you need to see the

19
20

website for that?

21

A. Yeah, if I could see the website from that day. I

22

could try to recall from three years ago, but if I

23

could see the website I could give you more detail.

24

BY MR. MUISE:

25

Q. So as you sit here today, you don't have any specific

Page 59
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

was advertisements to other sites.
Q. Was there, other than advertisements to other sites,
was there any content that you can recall as you sit
here today from the RefugeFromIslam.com website that
led to the conclusion that this was a politicized ad?
MR. HILDEBRANDT: You know, this is going
beyond the topics set forth in the deposition notice,
and so to the extent that he can answer this, the
answer is not binding on SMART because we were not
given prior notice of questions concerning the content
of your client's blog website, so to the extent that
he can answer at all, I don't consider that binding on
SMART because it's beyond the topics that the
deposition notice identified.
MR. MUISE: I understand the objection,
it's noted. It's incorrect. The notice is pretty
specific dealing with the application of your policy
to my client's advertisement.
MR. HILDEBRANDT: Well, show me in your
deposition notice then where it indicates that he is
to identify information on the website that was
reviewed or what part that that would fall under.
MR. MUISE: You are saying that he's not
testifying here as to how SMART applied its policy to
reject my client's advertisement?

Page 58
1

recollection of what from the website that --

2

A. It --

3

Q. Let me finish the question. So as you sit here today,

4

you don't have any specific recollection of what it

5

was on the website that led you to conclude that this

6

was a politicized advertisement?

7
8
9
10
11

MR. HILDEBRANDT: Is that question asking
him to recite word for word what he referred to -MR. MUISE: No.
MR. HILDEBRANDT: -- or just the ideas that
he referred to, which he has already testified to?

12

MR. MUISE: I'm asking --

13

MR. HILDEBRANDT: The question is vague.

14
15

MR. MUISE: I'm asking him if he has any
specific recollection of anything.

16

BY MR. MUISE:

17

Q. And you being SMART, the corporate knowledge of SMART,

18

have any specific recollection of anything that was

19

reviewed on the website RefugeFromIslam.com that led

20

to the conclusion that this is a politicized

21

advertisement?

22

A. A large portion of the website was really just links

23

or advertisements to stop Islamization of America and

24

the American Freedom Defense Initiative, they weren't

25

actually anything related to RefugeFromIslam.com, it

Page 60
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

MR. HILDEBRANDT: He has already testified
as to how it is applied.
MR. MUISE: No.
MR. HILDEBRANDT: Now you are asking him to
identify what was on your client's website.
MR. MUISE: I am asking him how they
applied -MR. HILDEBRANDT: That's a little
different.
MR. MUISE: He said they looked at the
website to apply this policy.
MR. HILDEBRANDT: He said they looked at
the website in conjunction with the ad because it was
referred to in the ad, and that -MR. MUISE: I understand.
MR. HILDEBRANDT: -- the aggregate of all
of this was identified as both a political and a
politicized issue, that's what he has testified to.
However, there is nothing here that indicates that he
is to identify what is in your client's website today
on behalf of SMART.
MR. MUISE: Your objection is noted. It's
incorrect.
BY MR. MUISE:
Q. Do you recall when you were applying your SMART

Pages 57 to 60

ANTHONY CHUBB
May 21, 2013
Page 61

Page 63

1

policies what was determined from the RufugeFromIslam.

1

2

com website that led SMART to conclude that this was a

2

3

politicized ad?

3

BY MR. MUISE:

4

Q. How is SMART's definition of politicized in their

MR. HILDEBRANDT: Same objection.

4

MR. HILDEBRANDT: Well, then you have to
repeat your question.

5

A. Beyond what I already said, I believe that the website

5

application of the policy different from the

6

stated that those leaving Islam were in danger because

6

definition of controversy?

7

sharia law dictated that -- let me make sure I explain

7

MR. HILDEBRANDT: This is beyond the

8

this right. Because under Islam, those leaving the

8

deposition notice. These are not topics upon which we

9

faith are governed by sharia law, and sharia law

9

were asked to prepare a witness, that is to provide

10

dictates that people leaving the faith be put to death

10

definitions on behalf of SMART, and so I don't

11

or -- and that's why you would be in danger leaving

11

consider any answer that he may or may not be able to

12

the faith, and it's my recollection it said you needed

12

13

to call the police.

13

A. I'm not -- I don't know how to answer your question.
They aren't consistent, but I'm not sure what -- how

give to be binding on SMART as a result.

14

BY MR. MUISE:

14

15

Q. So that is information that's SMART would use to

15

16

conclude that this advertisement is politicized?

16

BY MR. MUISE:
Q. Well, politicized based on your definition on behalf

17

A. Correct.

17

18

Q. And what is politicized about what you just described?

18

MR. HILDEBRANDT: Objection, asked and

19
20

answered.

19

you would like me to answer or what you are asking.

of SMART, is you have opposing views on a particular
issue; isn't that correct?

20

A. I said -- well, we can have her pull that back up if

21

A. I'm not sure how far back within my testimony --

21

you would like, but I believe I said it's a topic of

22

BY MR. MUISE:

22

debate within society and that there are factions of

23

Q. That last answer --

23

24

A. -- but the application of sharia law and stating that

24

25

the laws governing people of the Islamic faith require

25

society that differ on the issue.
Q. How is it any different than having opposing views on
a particular issue?

Page 62

Page 64

1

that they die if they attempt to leave the faith

1

A. It's in a bigger scheme, I guess. I mean I'm sure you

2

clearly shows the application of this law governing

2

and I disagree on things, but I wouldn't say it really

3

them, and that's a politicized issue.

3

politicizes it because you and I independently as two

4
5
6

Q. Politicized because factions of society have taken up

4

positions that are in disagreement as to how sharia

5

applies?

6

7

A. As to whether it should apply.
Q. How is your definition of politicized different from

8

opposing views or the disagreements to be politicized?
MR. GORDON: Do you know the answer to this

7

8

individuals disagree.
Q. So how large of factions do these need to be for the

9

controversy?

11

personal opinion?
MR. MUISE: Never, not in this deposition

12
13
14
15

9

A. I'm not sure how to answer your question.

at all.
A. So you're asking for -MR. HILDEBRANDT: So you're asking him --

10

BY MR. MUISE:

11

Q. I'm trying to get an understanding of how SMART

12

applies this concept of politicized to accept or

13

MR. HILDEBRANDT: Are you asking for his

10

question?

reject advertisements, that's what I am trying to

14

discern based on the description that you gave.
MR. HILDEBRANDT: To be fair, he has

15

16

A. -- SMART's definition?

16

actually already told you that, you just simply didn't

17

BY MR. MUISE:

17

like the answer and you have asked him several more

18

Q. Definition of politicized --

18

times.

19
20
21

(Speaking simultaneously).

19

MR. MUISE: That's not fair.

A. We already agreed we wouldn't do that. My apologizes.

20

BY MR. MUISE:

MR. HILDEBRANDT: And I guess the question

21

Q. You say factions of society have taken up positions on
the issue that are not in agreement, correct?

22

really becomes are you asking him to act as a -- to

22

23

give you a definition of controversy today on behalf

23

MR. GORDON: Are you intentionally leaving

24

of SMART?

24

out the part of the advocacy or are you just wanting

25

to focus on that particular element, which you are

25

MR. MUISE: That's not my question.

Pages 61 to 64

ANTHONY CHUBB
May 21, 2013
Page 65

Page 67

1

certainly entitled to, I'm just asking for some

1

talked about a situation where two people disagreeing

2

clarification.

2

does not make something politicized. We have talked

3

about a situation where a critical mass of people

4

disagreeing and forming these factions on these

5

issues, as is already in the record, does. So if you

MR. MUISE: Well, in his definition of

3
4
5

politicized, he didn't say advocacy.
A. I said advocate -- in political, I said advocacy of a

6

politicized issue. Is the record clear on that?

6

7

MR. HILDEBRANDT: The record is clear on

7

8
9

call that a spectrum, yes, that's a spectrum.
Q. There was an example that your counsel presented to

8

BY MR. MUISE:

the sixth circuit in the reply brief dealing with the

9

that.

BP Oil Company, if it sought advertisement on the

10

Q. Here is how I wrote it down from the court reporter's

10

SMART buses. And I want to ask you, since you're

11

transcript: If society is fractured on an issue and

11

SMART testifying whether this is a proper

12

factions of society have taken up positions of it that

12

understanding or application of SMART's content based

13

are not in agreement, it's politicized.

13

guidelines on advertising.

14
15

A. Correct.

14

MR. HILDEBRANDT: What more do you need?

MR. HILDEBRANDT: So you are using an

15

example of counsel in argument to determine what

16

SMART's position is on an ad that has never been

17

position on a politicized issue. We don't --

17

submitted; is that correct?

18

politicized is nowhere in this advertising guideline,

18

19

and it alone will have no bearing, it alone will have

19

20

no bearing on the placement of an ad. The 5.07

20

21

advertising guidelines are what have bearing on the

21

MR. MUISE: I understand.

22

placement of an ad and whether it's political

22

MR. HILDEBRANDT: Okay.

23

advertising.

23

16

24
25

A. I said a political advertisement was advocating for a

Q. And whether something is political advertising,
according to your testimony, is any advocacy of a

24
25

MR. MUISE: No.
MR. HILDEBRANDT: Well, a BP ad has never
been submitted --

MR. MUISE: And I'm trying to gather the
understanding of how this policy is applied.
MR. HILDEBRANDT: Which you have gotten

Page 66
1
2
3

position of any politicized issue?
A. I don't know if that's what I said, but I will trust
your restatement to me.

4

Q. And so --

5

A. And I have already said it.

6

Q. And then the question is what is a politicized issue,

7

and we went through how you described a politicized

8

issue, and I'm trying to understand what you mean by

9

factions of society have taken up positions on it.

10

You used an example of we may have opposing

11

views, but we are not factions of society, and how do

12

you determine how large or how small a faction of

13

society has to take up a side before the issue is

14

politicized?

15
16
17

MR. HILDEBRANDT: And he has already
indicated he can't answer that question.
A. I can't -- this is a case by case issue. I can't tell

18

you with specificity down to the exact number of the

19

people of society it required to make a critical mass

20

that would satisfy the definition.

21

BY MR. MUISE:

22

Q. Is there then sort of a spectrum of whether something

23

is sufficiently politicized as to not politicized to

24

be accepted or rejected by SMART?

25

A. I would have to look at a specific example. We have

Page 68
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4
5
6
7
8
9
10
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12
13
14
15
16
17
18
19
20
21
22
23
24
25

much testimony on, but if you are going to be talking
about the BP example that I used in my brief to the
sixth circuit, you are going well beyond the
deposition notice, and any answer he gives is going to
be not binding on SMART.
MR. MUISE: Well, that's your objection.
We will let the court decide.
MR. HILDEBRANDT: Unless, unless you can
tell me how that example fits into categories 1
through 6 of your deposition notice as we sit here
today, then this answer is not going -- he's not been
prepared on this issue.
MR. MUISE: That's fine. It's the
application of the policy.
MR. HILDEBRANDT: Well, he has not been
asked to apply the policy to a hypothetical BP ad
based upon the argument of counsel, and he wasn't
asked to, and also we have already identified or
already objected in this deposition that ads need to
be submitted to be determined under the policy, and
hypothetical ads cannot be determined without the
actual information, and by the way, that example in my
brief is not as to a particular ad, but speaks to
whether an issue has become politicized, not whether
there was an ad submitted or an ad proposed.

Pages 65 to 68

ANTHONY CHUBB
May 21, 2013
Page 81
1
2

MR. HILDEBRANDT: Asked and answered.
A. Because it -- it intimates that people of the faith

Page 83
1
2

applied to my client's ad in part was the prohibition
of political advertising, correct?

3

will resort to these tactics if someone wants to leave

3

A. Correct.

4

the faith, and that's likely to hold someone up to

4

Q. And so then based on your definition of political

5

ridicule or scorn.

5

advertising, this advertisement then did not advocate
a position of any politicized issue; is that right?

6

BY MR. MUISE:

6

7

Q. And do you know if it's not true that if you have a

7

A. That is correct.

8

fatwa on your head for leaving Islam that you could be

8

Q. So whether one believes in God or doesn't believe in

9

subject to threats of violence?

9

God is not a politicized issue according to SMART?

10
11

MR. HILDEBRANDT: Objection, I don't think
truth is a defense to scorn or ridicule.

10
11

12

A. I don't know.

12

13

BY MR. MUISE:

13

14

Q. I'm sure we will be moving back to this a little

14

15

later, but I want to hand you -- let's mark this as

15

16

another exhibit.

MR. HILDEBRANDT: Whether one believes in
God or does not believe in God is not a politicized
issue according to SMART? Okay. I'm sorry.
A. I don't believe that -- well -MR. HILDEBRANDT: What is SMART's position,
remember, not what you believe.

16

A. The determination was made that it wasn't -- it's not

17

MARKED FOR IDENTIFICATION:

17

broken down like that, so if it's determined to be a

18

DEPOSITION EXHIBIT 4

18

politicized issue regardless, it's -- it's still

19

11:46 a.m.

19

reviewed as whether it's an advocacy of such a

20

BY MR. MUISE:

20

position, but just to be clear about the process, but

21

Q. I will hand you what has been marked as Exhibit Number

21

this is -- whether one -- sorry, could you repeat your

22

4, and I will represent to you this was submitted as

22

question? I just want to make sure I'm answering or

23

Exhibit G to the Geller declaration document number

23

I'm answering exactly what you said. Whether one --

24

80 -- excuse me, document number 8-9 in this case. Do

24

sorry. I will rely on you.

25

you recognize the advertisement depicted on the second

25

(The following record was read by the

Page 82
page of Deposition Exhibit 4?

Page 84
1

reporter at 11:49 a.m.

2

A. Yes, I do.

2

"QUESTION: So whether one believes in God

3

Q. And what is this?

3

or doesn't believe in God is not a

1

4

MR. HILDEBRANDT: Do you have a copy of

4

5

this that is not an example of a defaced version for

5

A. I think that's correct.

6

use in this deposition?

6

BY MR. MUISE:

7

Q. The DetroitCoalition.org, that's a website that is

7

MR. MUISE: We may later. The deposition

8

notice specifically references Exhibit G, so that's

8

9

why I'm using this one for now.

9

politicized issue according to SMART?")

cited on this advertisement, correct?
A. DetroitCoR.com. Or I'm sorry, DetroitCoR.org. It's

10

A. I do recognize this.

10

11

BY MR. MUISE:

11

12

Q. And what is this advertisement?

12

did SMART go to the Detroit Coalition of Reason

13

A. This is an advertisement that was submitted by the

13

website listed here on this advertisement to make a

the Detroit Coalition of Reason.
Q. Did you go to the Detroit, and I'm referring to SMART,

14

Detroit Coalition of Reason that was placed on SMART

14

determination of whether or not this ad was

15

coaches.

15

permissible or impermissible under the content

16

Q. And this was an advertisement that SMART accepted?

16

17

A. That's correct.

17

A. Yes. The website is intrinsic to the advertisement,

18

Q. And SMART did not determine that this advertisement

18

and prior to approval of the ad the website was

19

contained any advocacy of a position of any

19

20

politicized issue; is that correct?

20

guidelines?

reviewed.
Q. Is the question of civil rights a politicized issue

21

A. SMART reviewed the advertisement against the --

21

22

against the content policies set forth in 5.07, and it

22

23

did make a determination it did not violate the

23

content policy.

24

MR. HILDEBRANDT: And overly broad.

25

A. Generally speaking -- I'm not sure exactly what you

24
25

Q. And one of those content policies, the one that you

according to SMART?
MR. HILDEBRANDT: Objection, vague.
A. The question of civil rights?

Pages 81 to 84

ANTHONY CHUBB
May 21, 2013
Page 85

Page 87

1

mean. There are civil rights in their legal context

1

2

and those which you are allowed by law, certainly

2

seems politicized topic.

3

3

and answered.
A. Anti-religious message theoretically could be, I
suppose. I would have to have more information.

4

BY MR. MUISE:

4

BY MR. MUISE:

5

Q. What about the separation of church and state, is that

5

Q. Well, what do you know about the Detroit Coalition of

6

a politicized issue?

6

7

A. It is certainly a politicized issue.

7

8

Q. Now, my understanding from representations that have

8

Reason as an organization?
A. From the review of the website it is a support site
for those that don't believe in God.
Q. And that alone wasn't sufficient for SMART to

9

been made previously in this case, and I want to

9

10

confirm with you since you are testifying now on

10

11

behalf of SMART, that this -- the content of this

11

12

advertisement was permissible because it was

12

it provides -- it's a resource site or a resource

13

considered to be purely religious; is that correct?

13

tool. It provided locations or contact information

14

perhaps of those that don't believe in God. And now I
have lost your question, my apologies.

14

A. It was considered not to be political. It was -- I

determine that this was a political advertisement?
A. It provided -- can I just say a support site -- I mean

15

don't know if -- in the context of whether something

15

16

was political or religious, yes, it was considered to

16

(The following record was read by the

17

be purely religious, but I can't say that every word

17

reporter at 11:55 a.m.

18

on this and the art involved are purely religious.

18

"QUESTION: And that alone wasn't

19

sufficient for SMART to determine that this
was a political advertisement?")

19

Q. Was it fair to say that the message was a purely

20

religious message and none of its content violated any

20

21

of the content restrictions?

21

22

MR. HILDEBRANDT: Objection, compound,

22

MR. MUISE: You probably have to go to his
answer.

23

(The following record was read by the

24

BY MR. MUISE:

24

reporter at 11:54 a.m.

25

Q. Is that correct?

25

"QUESTION: Well, what do you know about

23

that's two questions.

Page 86
1
2
3

MR. HILDEBRANDT: One that was just asked
and answered.
A. I'm sorry, could you repeat the questions?

Page 88
1

the Detroit Coalition of Reason as an

2

organization?

3

ANSWER: From the review of the website it

4

(The following record was read by the

4

is a support site for those that don't

5

reporter at 11:53 a.m.

5

believe in God.

6

"QUESTION: Was it fair to say that the

6

QUESTION: And that alone wasn't

7

message was a purely religious message and

7

sufficient for SMART to determine that this

8

none of its content violated any of the

8

9

content restrictions?")

9

was a political advertisement.")
A. That's correct.

10

A. As just said, in speaking political versus religious,

10

BY MR. MUISE:

11

it was determined that it did not have any political

11

Q. And as counsel noted in this Exhibit 4, it appears

12

content, and it did not violate the advertising

12

that there was some vandalism that was done to these

13

guidelines.

13

advertisements while they were posted on SMART buses;

14

BY MR. MUISE:

14

is that correct?

15

Q. And the fact that it conveyed a religious message did

15

A. That's correct.
Q. Do you know how many of the advertisements were in

16

not exclude it from being displayed on SMART buses; is

16

17

that correct?

17

18
19
20

A. Religious language is not prohibited under the SMART
advertising guidelines.
Q. Or even arguably anti-religious -MR. HILDEBRANDT: Object to the mis --

18

fact vandalized?
A. It's my recollection that two were vandalized, but -MR. HILDEBRANDT: That's all, that's the

19
20

question.

21

A. Yeah.

22

BY MR. MUISE:

22

BY MR. MUISE:

23

Q. -- messages?

23

Q. You believe two of them were vandalized?

24

A. That's correct.

25

Q. And the one depicted here in Exhibit 4, was this one

21

24
25

MR. HILDEBRANDT: Objection to the
mischaracterization of the ad, objection to it asked

Pages 85 to 88

ANTHONY CHUBB
May 21, 2013
Page 89
of the buses that was vandalized?

Page 91
1

damaged by the wash rags in operation on these

2

A. Correct.

2

vehicles. They run tens of thousands of miles a year,

3

Q. And it appears that somebody was attempting to scratch

3

and things happen.

1

4

out the don't, is that a fair characterization?

MR. HILDEBRANDT: Can we take the next

4

A. It's difficult to tell. Some of believe is missing as

5

6

well, but don't is scratched out or portions of it.

6

7

Q. And I believe from one of the e-mails that there is --

7

5

8

there was an indication that one of the buses might
have been vandalized by a worker while the bus was

9

MR. MUISE: Absolutely. Do you want to
take a 30 minute lunch break or something?

8

9

logical break, Mr. Muise?

10

kept on the docks or wherever they are kept?

12
13

10

A. That's a mischaracterization of that e-mail. There

(Off the record at 11:59 a.m.)

12

mischaracterization.

MR. MUISE: Let's go off the record.

11

MR. HILDEBRANDT: Objection,

11

MR. HILDEBRANDT: I just need a short
break.

(Back on the record at 1:08 p.m.)

13

MR. MUISE: During the break, the parties

14

was a question as to whether it had occurred, if you

14

discussed a stipulation that will apply through the

15

are referring to the e-mail that I wrote to Keith

15

course of this litigation, and that being that the

16

Taylor.

16

documents that were produced pursuant to the discovery

17

BY MR. MUISE:

17

request, the parties will stipulate to the

18

Q. Do you have any information about who actually did the

18

authenticity of those documents, meaning that they

19

will authenticate by the stipulation that the

20

documents are what they purport to be. For example,

21

an e-mail from Elizabeth Dryden to Anthony Chubb is in

22

fact an e-mail as such, and that no further

19
20
21
22

vandalizing of these vehicles?
A. No SMART employees were determined to have done it or
to have played a role in it.
Q. And it's my understanding, and correct me if I'm

23

wrong, that even after the vandal -- after some of the

23

authentication of the documents are required. Is that

24

advertisements were vandalized, the ad campaign was

24

a fair statement?

25

allowed to continue to run?

25

MR. HILDEBRANDT: That is a fair statement.

Page 90

Page 92

1

A. That is correct.

1

If for some reason in the future Beth Dryden comes

2

Q. And I believe it was allowed to run beyond its

2

forward and says that ain't my e-mail, though, I don't

3

contract end date to make up for time that some of the

3

know what we will do with it by then, but for purposes

4

ads were taken down because of the vandalism; is that

4

as far as I'm concerned, they are all authentic. I

5

correct?

5

think they are authentic, yes, I stipulate.

6

A. Generally under the contract, if an ad doesn't show

6

7

for any reason because the vehicle is broken, the

7

BY MR. MUISE:

8

advertisement is ripped off, then as part of the

8

Q. Sir, I want to pick up where we were. I was asking

9

advertising contract we will -- we will run the ad for

9

you some questions about the advertisement listed in

MR. MUISE: So stipulated. Thank you.

10

any lost show time, if that doesn't need further

10

Exhibit G which is Exhibit Number 4 to this

11

explanation.

11

deposition.

12
13

Q. Right. But that in fact then happened with this
advertisement?

12

Do you know at what level was it that this

13

advertisement was determined to be acceptable to run?

14

A. That would be consistent with our policy.

14

And I'm referring to you testified previously that

15

Q. And as I understand from the e-mails, that CBS Outdoor

15

there were three potential levels of review, the

16

actually paid for the replacement advertisements; is

16

marketing department, the office of general counsel,

17

that correct?

17

and the general manager's office.

18

A. And again, pursuant to the contract, SMART -- or CBS

18

19

will repair ads however they are damaged, if it's an

19

decision when it was made, all were consulted.

20

accident, a wash rag, you know, when they are cleaning

20

Q. Was the general manager then the one that would have

21

the buses if it's damaged or if it's vandalized, I

21

22

guess we will say this is. And again, no one was ever

22

A. I think I previously testified it's not a -- it's not

23

charged in this, what is believed to be vandalism or

23

a strict appellate review with each level that it

24

was alleged to be vandalism.

24

goes; it's more of a consensus. He does have the

25

ultimate determination as the CEO of the company, but

25

I have several advertisements that are

A. I believe all, all parties mentioned were aware of the

made the final decision for it to run?

Pages 89 to 92

ANTHONY CHUBB
May 21, 2013
Page 93

Page 95

1

in his determination he was in support of the

1

2

determination to post the ad.

2

Q. Under the contents based guidelines 5.07 that we have
been referring to, is Islam as a subject matter
prohibited by those restrictions?

3

Q. So just to follow up there then, as the general

3

4

manager, could he veto any decision to run an

4

A. That calls for some speculation. I would have to see

advertisement as the general manager?

5

the ad. We review the ad in its entirety, but Islam

6

as a subject matter, I would presume an ad that

7

involved Islam is not necessarily violative of 5.07,

5
6

A. As the CEO.
MR. HILDEBRANDT: Object to the form of the

7
8

question.

8

9

A. As the CEO.

9

no.
Q. What about with regard to sharia in light of the

10

BY MR. MUISE:

10

determination that my client's advertisement was

11

Q. Okay. Now, was it determined by SMART that this

11

considered political, is sharia not permitted as a

12

advertisement that we are referring to, the Don't

12

subject matter pursuant to the content based

13

Believe in God, that it contained no political

13

14

component whatsoever?

14

15

A. As set forth in the advertising guidelines, correct.

15

16

Q. Is there ever a case where an advertisement might be

16

guidelines of SMART?
A. It seems like that would be speculative on my part,
but I would have to see the ad to make that
determination.

17

partially political and partially not political that

17

Q. Okay. As you sit here today it wouldn't necessarily

18

it would be acceptable?

18

be prohibited under these restriction contents, an

19
20
21
22
23

A. If an advertisement contains political contents, it's

advertisement that had sharia as a subject?

not allowed pursuant to the advertising guidelines in

20

A. Sharia MULAN governs people of the Islamic faith. It

5.07 of the contract.

21

seems to me that therefore it would be political, but

22

I would have to see the advertisement to make such a

23

determination because theoretically it could -- I

24

can't come up with such example, but if --

Q. If any component of it whatsoever is determined to be
political, is that correct?
MR. HILDEBRANDT: Asked and answered.

24
25

19

A. Consistent with the application of political that we

25

MR. HILDEBRANDT: When you say it seems to

Page 94
1

have previously talked about, yes.

Page 96
1

me, do you mean you or SMART?

2

BY MR. MUISE:

2

BY MR. MUISE:

3

Q. Now, the -- and I just want to make sure we are clear

3

Q. And I don't want an answer from you. I want an answer

4

on this. We were referring to the advertising

4

from SMART, so I want to -- if we have to reemphasize

5

guidelines that were previously provided to as Exhibit

5

that point since the break, let's do that.

6

Number 3, correct?

6

I'm just asking, because as I look at this

7

A. Section 5.07 of the contract, yes.

7

content restriction, plainly any advertisement for the

8

Q. And those were enacted in 2008; is that correct?

8

sale of alcohol or tobacco is per se prohibited under

9

A. Yes, this is a 2008 contract, yes.

9

10
11

Q. Okay. Have those advertising guidelines changed
between 2008 till today?

this policy; is that correct?

10

A. Correct.

11

Q. So is any advertisement that mentions sharia per se
prohibited by this content restriction?

12

A. They have not.

12

13

Q. And this advertising that we have been referring to,

13

14

the Don't Believe in God advertisement in Exhibit 4

14

MR. HILDEBRANDT: Calls for speculation.

15

was accepted pursuant to the same guidelines by which

15

A. It would have to be reviewed under the policy, but as

16

my client's advertisement was rejected; is that

16

I have explained, sharia is a politicized issue. If

17

correct?

17

it spoke in support or if it -- you know, now we have

A. It would have to be --

18

A. That is correct.

18

had lunch and I can't remember exactly how I have

19

Q. And so nothing has changed from these policing

19

testified, so maybe we should go back, but if it

20

guidelines content restrictions since 2008 to the

20

advocated for it or against it or in some position

21

present; is that correct?

21

regarding it, it would certainly be in violation of
this contract, of this -- and therefore in violation

22

A. That's correct.

22

23

Q. And would this Don't believe in God advertisement

23

24
25

still run today under your current guidelines?
A. Yes, I have answered yes, the policy has not changed.

24
25

of the policy and therefore not permissible.
Q. Right. And just -- and simply if it's -- if it's not
advocating one way or another but it mentions sharia,

Pages 93 to 96

ANTHONY CHUBB
May 21, 2013
Page 97

Page 99
our buses and was accepted.

1

is the sharia itself a forbidden content under the

1

2

content based restrictions?

2

Q. And that's Exhibit 4?

3

A. Correct.

4

Q. Upon reviewing this advertisement, SMART did not

MR. HILDEBRANDT: Calls for speculation.

3
4
5

A. Literally -- I can't answer that question without
seeing the advertisement. Generally I -MR. HILDEBRANDT: You have answered.

6

5

determine that this advertisement conveyed a

6

defamatory or likely to hold up to scorn or ridicule
message against individuals who do believe in God?

7

BY MR. MUISE:

7

8

Q. You have answered the question about Islam, so Islam

8

A. That is correct.

9

is different than sharia in terms of your application

9

Q. Is it not a fair view of this advertisement as

10

10

of this policy?

conveying the message that if you do believe in God
you lack of reason?

11

A. There is no difference in application of this policy.

11

12

Q. Well, God itself is not a subject matter that's

12

MR. HILDEBRANDT: SMART's position on that.
A. I disagree with you if that's your opinion. SMART

prohibited under the content based restrictions; isn't

13

14

that correct?

14

15

A. That is correct.

15

BY MR. MUISE:

16

Q. And the subject of atheism, that's not prohibited

16

Q. And do you think it's unreasonable for a person to

13

disagrees with you if that's your opinion.

17

under this -- your content based restriction; is that

17

look at this advertisement and conclude that it holds

18

right?

18

up to scorn or ridicule people who believe in God?

19

A. That's correct, pursuant to vetting it through, the

20

proposed ad through the advertising guidelines, et

20

cetera.

21

MR. HILDEBRANDT: Give SMART's position

19

21

now.
A. That's not reasonable. I don't -- from reviewing this
advertisement, that's not a reasonable conclusion.

22

Q. Right. And I'm just saying the subject matter itself,

22

23

regardless if it advocates one way or another, just

23

BY MR. MUISE:

24

the subject matter itself is not prohibited by these

24

Q. And despite the fact that you have had vandalism where

25

restrictions; that's correct, is it not?

25

somebody actually went out of their way to scratch on

Page 98

Page 100

1

A. Which subject matter, sir?

1

the Don't aspect of this, your position is you don't

2

Q. Well, I think the last one we were on was atheism.

believe it's reasonable for somebody to look at this

3

A. Correct.

2
3

4

Q. Okay. And but is sharia different than the subject

4
5
6

of scorn or ridicule towards people who believe in

5

matter of Islam and God?

6

A. It would be reviewed -- sharia would be reviewed the

7

same as Islam, God, atheism, and therefore I guess

8

there is not a blanket -- it's, you know, it isn't

9

absolutely a violation because it is being mentioned

10
11

necessarily, but it has to be reviewed by the policy.
Q. Do you know if the -- and I have been referring to it

12

as the atheist ad. Is that okay if I refer to it as

13

the atheist ad, Exhibit Number 4, do you have a

14

preference?

15

A. That will be understood.

16

Q. Exhibit 4, the atheist ad, do you know if when they

17

made the request for this to be displayed whether or

18

not SMART required the Detroit Coalition of Reason to

19

make any modifications to what was proposed?

20

A. No modifications were required.

21

Q. And so the advertisement that's listed on Exhibit 4

22

was the one that they proposed, there wasn't a

23

different variation that SMART said we need to modify

24

at all?

25

A. This was the one that was proposed for the sides of

and conclude that it conveys a scornful or a message
God?
MR. HILDEBRANDT: Does your question assume
that vandalism is reasonable?

7
8
9
10
11

A. Could you restate the question? I'm sorry.

12
13

restate. I think there is a -- he was not confused

14
15

MR. MUISE: That's not what my question
was.
MR. HILDEBRANDT: I think it was.
MR. GORDON: He didn't say repeat. He said
about what he heard.
MR. MUISE: Well, let's see.

16
17

(The following record was read by the

18
19
20

"QUESTION: And despite the fact that you

21
22
23

don't aspect of this, your position is you

24
25

conveys a scornful or a message of scorn or

reporter at 1:20 p.m.
have had vandalism where somebody actually
went out of their way to scratch on the
don't believe it's reasonable for somebody
to look at this and conclude that it
ridicule towards people who believe in

Pages 97 to 100

ANTHONY CHUBB
May 21, 2013
Page 101
2
3

1

A. I don't believe it's reasonable, I have already said
that.

authority. It shares no employees, no assets other

2

than by mutual agreement. It's entirely different.

3

God?")

1

Page 103

There is no -- and we both run buses, but beyond

4

MARKED FOR IDENTIFICATION:

4

5

DEPOSITION EXHIBIT 5

5

1:21 p.m.

that -Q. And so does -- do you know if CBS Outdoor is the

6

advertising agency for DDOT, and the only reason why

7

BY MR. MUISE:

7

I'm asking is because some of the e-mails there seems

8

Q. I'm handing you what has been marked as Exhibit Number

8

to be some overlap from DDOT employees as well as
SMART employees on some of these advertising

6

9

5. Do you recognize what this document is? And I

9

10

will represent to you it is a document that we took

10

11

off of the SMART website. Can you confirm that?

11

MR. HILDEBRANDT: Is the date on this, June

12
13

14, 2010, was that when this was actually printed?
MR. MUISE: The way the system works, yes,

14
15

that would have been printed off on June 14, 2010.

campaigns?
A. CBS, it's my understanding, although again we have no

12

formal -- or we don't have any shared -- we don't have

13

any shared management, but it is my understanding that

14

CBS does run or does contract for advertising with the

15

City of Detroit.
Q. Do you know like, for example, if somebody says I want

16

A. Sorry, I have to read through this.

16

17

BY MR. MUISE:

17

to run an advertisement in the Detroit area, they

18

Q. And just so you know, while you are reading it, all

18

submit it to CBS Outdoor, CBS Outdoor might send it to

19

I'm going to ask you is whether or not the section,

19

DDOT as well as to SMART and determine whether one or

20

the first paragraph that is highlighted, if that is an

20

both will run the advertisement, do you happen to

21

accurate statement.

21

know?

22

A. Okay.

22

A. I couldn't speculate.

23

Q. Is that a correct statement?

23

Q. I have seen e-mails that have DDOT with the SMART, and

24

A. I'm sorry, you would have to repeat the question.

24

it's just not clear to me what the relationship is if

25

Q. On Exhibit 5 there is a paragraph, the very first

25

any between the two, but they are two distinct,

Page 102
1

paragraph which is highlighted, do you see that, sir?

Page 104
1

separate entities, correct?

2

A. Yes.

2

A. Absolutely.

3

Q. Is that a correct statement of fact?

3

Q. And I understand -- your understanding is you're not

4

A. Governed could be taken many ways. It is overseen by

4

sure what CBS Outdoor's relationship is with DDOT, but

5

all of those entities and is subject to some of their

5

6

regulations and rules, but governed, if you are trying

6

7

to take a highly technical definition of it, you could

7

8

read it in an accurate way -- in an inaccurate way.

8

Q. Do you ever coordinate with DDOT in terms of various

9

Generally speaking this is correct if you see -- if

9

advertisements that might be proposed through CBS

10

you understand governed to mean overseen.

10

they might have some relationship with them?
A. That's correct. It's my understanding they do place
advertisement on their buses.

Outdoor?

11

Q. And SMART is a governmental agency, correct?

11

A. No, not directly with DDOT, whether CBS does such a

12

A. It is an authority created pursuant to Public Act 204

12

coordination for the purpose of contracts, I couldn't

13

of 1967.

13

14

Q. Does that make it a government agency?

14

15

A. It is a government agency.

15

16

Q. And I have seen in some of the e-mails, is there a

16

speculate, but SMART does not.
Q. Do you know if my client's advertisement was rejected
by DDOT and then brought to your attention?
A. I don't know.

17

distinction between SMART and -- the acronym is DDOT,

17

MARKED FOR IDENTIFICATION:

18

I assume is the Detroit Department of Transportation,

18

DEPOSITION EXHIBIT 6

19

is there a distinction between SMART and the Detroit

19

20

Department of Transportation?

20

BY MR. MUISE:
Q. Let me hand you what has been marked as Exhibit 6.

21

A. They are entirely unrelated.

21

22

Q. Okay. What is the Detroit Department of

22

23
24
25

Transportation?
A. The Detroit Department of Transportation is a
subsection of the City of Detroit, it is not a state

23

1:27 p.m.

Mr. Hertel is, John Hertel, H-E-R-T-E-L, he's the
general manager of SMART; is that right?

24

A. That is correct.

25

Q. And I think you referred to him as CEO as well. Is

Pages 101 to 104

ANTHONY CHUBB
May 21, 2013
Page 105
1
2
3
4

that sort of a dual hat?

Page 107
1

A. His title is general manager. I use CEO only in a

2

loose sense. He is the chief executive officer of the

3

company, but his title is general manager.

4

don't know in a 30(b)(6) situation what I am supposed
to do if I don't recall.
Q. You answer truthfully you don't recall. There is not
much we can do about that.

5

Q. Thank you. If you look at what I have handed you as

5

A. I don't recall.

6

Exhibit Number 6, if you would take a minute and look

6

Q. Do you know if --

7

at that, I want to ask you if you have seen this

7

8

portion of the SMART website prior to today.

8

9
10

A. Okay.

MR. HILDEBRANDT: We can break and find out
the answer to that question if you would like.
MR. MUISE: Well, let's -- let me just

9

Q. If you look under the section, the first paragraph

10

proceed here for a moment, and then maybe we can get

11

under the advertising guidelines section, it says as a

11

back to that.

12

governmental agency that receives state and federal

12

BY MR. MUISE:

13

funds, SMART is mandated to comply with federal and

13

Q. In a previous affidavit submitted in this case by Beth

14

state laws, do you agree with that statement?

14

Gibbons, she said in paragraph 6, and this is document

15

12-9, after advertisements regarding an atheist

16

organization were posted by SMART, I prepared a notice

15
16

A. SMART is a governmental agency and it is required to
comply with federal and state laws.

17

Q. So that's a correct statement?

17

for posting on the SMART website stating that SMART

18

A. That is a correct statement.

18

must comply with applicable laws in policy in the

19

Q. And then the statement after that, First Amendment

19

posting of advertisements. Do you know if that

20

free speech rights require that SMART not censor free

20

21

speech and because of that, SMART is required to

21

22

provide equal access to advertising on our vehicles.

22

23

Do you see that, sir?

23

24

A. I see that.

24

25

Q. Is that a correct statement?

25

statement is correct?
A. I believe that to be correct, and if that is in the
exhibit, I'm certain that it is, if that's my exhibit.
MR. HILDEBRANDT: That is an exhibit of an
affidavit of Beth Gibbons.
A. All right.

Page 106
1

A. Again in a legal sense, the area that we are talking

Page 108
MR. MUISE: It's document 12-9. I don't

1

2

about is a nonpublic forum, and so free speech rights

2

3

that are present in a nonpublic forum I would agree

3

4

with that statement.

need to mark it.

4

5

Q. Do you know if that statement was added to this

MR. HILDEBRANDT: No, you do not.
MR. MUISE: It's Paragraph number 6.

5

A. Okay.

6

BY MR. MUISE:

7

When SMART accepted the atheist

7

Q. Do you know if the posting on the website that Ms.

8

advertisement that we have been discussing to be

8

Gibbons is referring to is that paragraph that we just

9

displayed on its vehicles, did that create a public

9

reviewed on Exhibit 6?

6

10
11

website after -- let me back up.

controversy as far as you know?
A. I don't necessarily -- could you define public

11

under advertising guidelines is what you are referring
to?

12

controversy? I'm sorry, I don't mean --

12

13

Q. I would define it as you just defined politicized.

13

14

MR. HILDEBRANDT: Objection to the form of

MR. HILDEBRANDT: That first paragraph

10

14

MR. MUISE: It is what I am referring to.
A. I believe that everything under advertising

15

guidelines, including the second paragraph which

16

BY MR. MUISE:

16

refers to the advertising guidelines was all posted --

17

Q. Let me ask you --

17

it is the posting that is referenced in paragraph 6 of

18

A. There were --

18

19

Q. Go ahead.

19

BY MR. MUISE:

20

A. There were news stories written about the

20

Q. Okay. So did it also include that, what appears to be

21

advertisement after it was placed. I don't

21

a disclaimer at the bottom, do you know if that was

22

necessarily know that that politicized it, but there

22

23

were news stories written about it.

23

A. I believe that it was, yes.

24

Q. Did SMART receive complaints about it?

24

Q. We cut each other off. I want to make sure I'm clear.

25

A. I don't -- I don't recall. I can get that answer. I

25

A. I'm sorry, yes, all three paragraphs or the two

15

the question.

the document we just reviewed.

posted pursuant to this reference in Ms. Gibbons --

Pages 105 to 108

ANTHONY CHUBB
May 21, 2013
Page 113

Page 115

1

talked about the marketing department, general

1

2

counsel, and general manager, do you know where the

2

3

decision, the final decision was made to reject this

3

A. I did not say that. I did not say that.

4

advertisement?

4

BY MR. MUISE:

5

Q. And so what -- was this rejected on its four corners,

5

A. I believe this was with the general manager, in

MR. HILDEBRANDT: Object to the
mischaracterization of the testimony.

6

consultation with everyone else that you previously

6

on its face in terms of the message that's conveyed by

7

mentioned.

7

the Exhibit 7 as being political?

8

MR. MUISE: Can you mark this?

8

9

MR. HILDEBRANDT: Is this from our records?

9

10

MR. MUISE: No.

10

11

MR. HILDEBRANDT: What is it, please?

11

12

MARKED FOR IDENTIFICATION:

12

13

DEPOSITION EXHIBIT 8

13

1:41 p.m.

MR. HILDEBRANDT: Including its intrinsic
website? I mean we have defined face, on its face as

14

14
15

BY MR. MUISE:

15

16

Q. I'm handing you what has been marked as Exhibit 8, and

what, just what -MR. MUISE: Just what you are reading here.
MR. HILDEBRANDT: Without going anywhere
else?
MR. MUISE: Exactly.
A. A determination was not made based solely -- I mean at

16

this time we went to the websites, the

17

I will represent to you it's taken off the home page

17

projectLIFEBOARD website, as well as it's my

18

of RachelsVineyard.org, the website that's referenced

18

recollection the Rachel's Vineyard website contained

19

in the Pinckney advertisement number 7. Do you know

19

political information -- political content. Certainly

20

who viewed the website of RachelsVineyard.org upon

20

the projectLIFEBOARD did, website did, so the

21

making the determination to reject the Pinckney

21

determination was made that it was political. It was

22

Pro-Life advertisement in Exhibit 7?

22

never therefore necessary to make a determination as

23

to absent these websites whether it would be deemed

23

A. Again there are two websites listed with on the

24

advertisement, and they were both viewed by the office

24

political, but I could speculate to that if you would

25

of the general counsel. I can't be certain that

25

like me to.

Page 114

Page 116
MR. HILDEBRANDT: No, you can't.

1

that's an exhaustive list, though. I can get that

1

2

information if you need it.

2

BY MR. MUISE:
Q. I don't need to.

3

Q. Do you know if SMART had any understanding that

3

4

Rachel's Vineyard was an organization that assisted

4

5

post-abortive women with medical, social and other

5

needs?

6

6
7
8
9

A. I'm not certain of your question. I'm sorry, could
you repeat your question?
Q. Sure. And let me -- I guess I will come at it this

Handing you what has been previously marked
as Geller deposition Exhibit TT, tango, tango.
A. Is this our exhibit?
MR. HILDEBRANDT: Yes.

7
8

BY MR. MUISE:

9

Q. Do you recognize -MR. HILDEBRANDT: It's not part of our

10

way. What was SMART's understanding of what Rachel's

10

11

Vineyard actually was?

11

production, but it was marked in the previous

12

deposition of Pam Geller. It was provided to us by

12

MR. HILDEBRANDT: Object to relevance.

their counsel. That is what was submitted.

13

A. Such a determination as part of the review of the

13

14

content policy does not need to be made. If a

14

A. I do recognize this.

15

determination is made that there is political content

15

BY MR. MUISE:

16

within the advertisement or that which it directs the

16

Q. And you recognize that as an advertisement that my

17

reader to, then the advertisement is rejected. A

17

client submitted to SMART to be run on the SMART

18

determination of their scope, their goal, their

18

19

product is not necessary if it's determined

19

A. That's correct.

20

independently that a portion of the advertisement is

20

Q. And that advertisement as depicted there in Exhibit TT

21

political.

21

22

BY MR. MUISE:

22

A. That's correct.

23

Q. And if I understand your answer then, so going to

23

Q. Do you know on what bases that advertisement was

24

RachelsVineyard.org was not necessary to determine

24

25

that this advertisement was political?

25

buses?

was rejected, correct?

rejected?
A. It was determined to be political, and I don't know if

Pages 113 to 116

ANTHONY CHUBB
May 21, 2013
Page 117

Page 119

1

further determinations were made for bases of

1

Q. And you say previous ad referring to the atheist ad?

2

rejection, but I can get that if you need that.

2

A. Correct. The artwork is similar is what I mean by

3

Q. What was it about this advertisement that made it

3

4
5

political?

that.

4

A. The referenced website referred back to the Freedom

MARKED FOR IDENTIFICATION:

5

DEPOSITION EXHIBIT 9

6

Defense Initiative's website or the Stop the

6

7

Islamization of America website. I am not recalling

7

BY MR. MUISE:

8

right now as to which one it referred back to, or

8

Q. Sir, I'm going to hand you what has been marked as

9

perhaps it referred back to both, but therefore it

9

Exhibit Number 9. Do you recognize what is depicted

1:50 p.m.

10

incorporated their content, which was clearly

10

11

political.

11

A. Yes.

in that exhibit?

12

Q. Are you sure it referenced those two websites?

12

Q. And what is that?

13

A. I would have to go back to the information that we

13

A. This is an advertisement that was proposed to be

14

have, and I don't know if we have produced that, but

14

15

additionally within the website itself, it's my

15

16

recollection that it referred to Muhammad as the

16

Q. And was that advertisement accepted by SMART?

17

pedophile prophet almost at the top of the website,

17

A. It was not.

18

and the remainder of the contents were consistent with

18

Q. And why?

19

that.

19

A. It was determined to be, if I can refer to --

20

Q. Absolutely.
A. -- section 5.07 of the contract, which is the

20

Q. And my understanding is an offer or suggestion was

advertised on SMART vehicles for a product, a game Red
Dead Redemption.

21

made to run this advertisement without the website

21

22

listed on there, is that your recollection?

22

advertising guidelines, in violation of 5.07 B 5, in

23

A. Yes.

23

that it was in advocacy of imminent lawlessness or

24

Q. And without that website listed SMART indicated they

24

unlawful violent action.

25

would run this advertisement?

MR. MUISE: Can you mark this?

25

Page 118
1
2
3
4
5
6

A. That is correct.
MR. HILDEBRANDT: Do you have a copy of the
graphic without the website?
MR. MUISE: I don't. I don't know if there
ever was one, to be honest with you.
MR. HILDEBRANDT: Fair enough.

Page 120
1

MARKED FOR IDENTIFICATION:

2

DEPOSITION EXHIBIT 10
1:53 p.m.

3
4

BY MR. MUISE:

5

Q. I'm handing you what has been marked as Exhibit Number

6

10. And the top document appears to be an e-mail from

7

BY MR. MUISE:

7

Anthony Chubb to Beth Gibbons, and in this e-mail

8

Q. And so it's the content of the TruthAboutMuhammad.com

8

Anthony Chubb indicates that they amended it and we

9

approved it without the gun, referring to the Red Dead

9
10

that made this advertisement political; is that
correct?

10

11

A. Correct.

11

12

Q. Do you know at what level of review it was determined

Redemption advertisement; is that accurate?
A. That is the statement in the e-mail. This e-mail was

12

looking for clarification from Beth Gibbons, because

13

that this advertisement, the one before you, tango

13

when I sent it it was three years later, and so I was

14

tango with the website address would be rejected?

14

asking for her to confirm that my recollection -- that

15
16
17
18
19

A. It was viewed by all of the groups that we previously

15
16

counsel, and the general manager.

17

you know if that is the advertisement that was

18

approved by SMART?

Q. And how about the decision to allow it to run without
the website?
A. All groups would have made that determination as well.

20

21

Q. Is it SMART's understanding that the reference to

21

23
24
25

Muhammad in this website is to the Prophet Muhammad

22

from Islam?

23

A. That's the presumption, yes, because this is a parity
of the previous ad.

Q. And if you look at the document on the second page, do

MR. HILDEBRANDT: Whether that's the actual

19

20
22

Anthony Chubb's recollection was correct.

mentioned, marketing, the office of the general

24
25

one?
MR. MUISE: Yes.
A. I -- based upon these e-mails, it does look like that
is correct, that this was the ad without the -without the gun that was approved.
BY MR. MUISE:

Pages 117 to 120

ANTHONY CHUBB
May 21, 2013
Page 121
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

Page 123
1

MR. HILDEBRANDT: Are you asking for a

just mark this, because hopefully this will help out,

2

definitive answer or for SMART's answer on that?

number 11.

3

Q. Just so we are -- there is clarity here, why don't we

MR. MUISE: His -- SMART's answer.
A. The relationship is far more tangential for -- this is

MARKED FOR IDENTIFICATION:

4

DEPOSITION EXHIBIT 11

5

selling the product that people would have to go by as

1:54 p.m.

6

opposed to a website which is incorporated wholly
within the document or within the advertisement.

BY MR. MUISE:

7

Q. Sir, I'm handing you what has been marked as Exhibit

8

Q. How about with a television program that somebody

9

would turn on their TV, any different than looking at

was in 2013. Exhibit 11 there is an e-mail from Beth

10

a website, do you watch every television show that is

Gibbons -- excuse me, from Robert Hawkins to Beth

11

advertised on SMART vehicles to determine whether any

Gibbons in 2010 with an image. It says here is the

12

of its content might be restricted under the

image without the gun. Do you recognize if that image

13

which is on the second page was the same as the one in

14

Exhibit Number 10 and in fact was the one that ran on

15

A website that is on -- that is explicitly set forth

SMART buses?

16

in the advertisement itself is a smartphone away from

17

being reviewed, whereas there is a lot of -- it's not

reproduced in an incomplete way on Exhibit 10.

18

that easy to go watch a movie or a show that's on once

Q. Now, in Exhibit, the second page of Exhibit Number 11,

19

a week or go to the theater to watch a movie or to go

on this advertisement it still says outlaws to the

20

buy a game, so that isn't the policy to review them

end, do you see that?

21

Number 11, and I realize Exhibit Number 10 the e-mail

A. I believe that that's correct, I think it just

advertising guidelines?
A. No. Again the relationship is much more tangential.

all.
Q. Can you not go on your same smartphone and pull up

A. Yes.

22

Q. That statement isn't advocating imminent lawlessness

23

videos on YouTube of television shows, movies, other

24

things that might be advertised on the SMART vehicles?

or unlawful violent action?
A. On its face, no, and this is -- on its face, no.

25

MR. HILDEBRANDT: Are you saying at the

Page 122
1

Q. Do you know if anyone from SMART actually watched the

Page 124
1

time of this ad?

2

game that's referenced here to see whether or not it

2

MR. MUISE: At any time. These are the

3

contained any content that is prohibited by your

3

advertisement guidelines that apply as of today.

content based restrictions?

4

4
5

A. It's my recollection that this was leading up to the

5

MR. HILDEBRANDT: He has indicated this ad
was anticipatory to the release.

6

release of the game, so this was prior to its

6

MR. MUISE: I'm not asking about the

7

availability, but in this situation -- so in this

7

specific ad, I'm asking about what SMART's policy is

8

situation I guess it was not available, so I would

8

on reviewing the content of the advertisement to make

9

presume no.

9

10

Q. Is it the policy or practice of SMART that if an

10

its determination as to whether it's prohibited.
A. We reviewed -- and I have told you, we review the

11

advertisement references a movie or a video that SMART

11

content of the advertisement. A television show that

12

will actually review that movie or video to determine

12

is advertised is tangential, it's not -- and therefore

13

whether any content in that movie or video might

13

it's not a policy of SMART to review the entire

14

contain content that is restricted under the

14

15

advertising guidelines?

15

BY MR. MUISE:

contents of the movie or the television show.

16

A. For a product such as a movie or video, it's not a

16

Q. Any other advertisement that you are aware of since

17

general policy to review every single one of them,

17

2008 that SMART has rejected because it contained

18

that's correct.

18

political content other than the three advertisements

19

Q. Is it the general policy, though, to review every

19

that we discussed? For political content that would

20

single website that might be referenced on an

20

have been my client's advertisement, the one that is

21

advertisement that is submitted by SMART?

21

at issue here, Leaving Islam, the Pinckney Pro-Life

22

A. Yes.

22

advertisement, and then my client's subsequent

23

Q. What is the difference between the content of a

23

advertisement that had the Truth About Muhammad

24

website compared to the content of the actual product

24

25

that's being promoted by the advertisement?

25

website.
A. I do not recall any others that were rejected due to

Pages 121 to 124

ANTHONY CHUBB
May 21, 2013
Page 125
1
2

being political.

Page 127
1

Q. And then the one other advertisement that was rejected

did we produce this?
MR. MUISE: No. It was downloaded from the

2

3

by SMART under its content based guidelines is the one

3

4

referred to in Exhibit Number 11, and that was because

4

BY MR. MUISE:

5

it advocated imminent lawlessness or unlawful violent

5

Q. I'm handing you what has been marked as Exhibit Number

6

action. And let me back up, Exhibit 11 was modified

6

12, and you may or may not have knowledge of this.

7

to remove the gun to accept it, but the advertisement

7

You had mentioned in rejecting my client's

8

with the gun was rejected under that provision?

8

advertisement marked as Geller deposition Exhibit TT

9

that it was the content of the TruthAboutMuhammad.com

9
10

A. Correct.
Q. Any other advertisements since 2008 that you are aware

TruthAboutMuhammad.com website.

10

website that was the basis for the rejection. I have

11

of that SMART rejected under its advertising

11

handed you Exhibit 12 which is entitled a document

12

guidelines that we have been discussing today?

12

that is 14 pages long entitled the Truth about

13

Muhammad. Do you recall seeing any of that content
prior to today?

13

MR. HILDEBRANDT: I'm going to object just

14

to the vagueness of the question, and I would like you

14

15

to kind of clarify that a little bit, because there

15

16

are ads that are submitted that are rejected out of

16

17

hand if they are for Winston's or they are for whiskey

17

18

or something like that, but they are not sent on to

18

the foundation independently. He may not have any

19

SMART for review at all because they are clearly

19

recollection of reading this or seeing this or seeing

20

violative of the second paragraph. Do you mean those

20

the content. My question to him in terms of what his

21

as well or just the ones that were reviewed by SMART

21

personal knowledge is as SMART --

22

and rejected?

22

23

MR. MUISE: My question is advertisements

MR. HILDEBRANDT: What is the foundation
for this document? Where does it come to you from?
MR. MUISE: Well, I mean I can establish

MR. HILDEBRANDT: It's not being presented

23

in the manner of a website. As a matter of fact, it's

24

that were rejected by SMART pursuant to its

24

actually a Word document that is still in the editing

25

advertising guidelines.

25

phases according to this track changes notation on the

Page 126
A. Section -- the ones that were reviewed by SMART

Page 128
1

ad. I have no idea where this came from, and you

2

personnel that were rejected pursuant to section 5.07

2

know, for him to be asked whether this is the same

3

B of the contract are the four that we have spoken

3

content that was on the website that was reviewed is

4

about. I'm not aware of any others that were reviewed

4

kind of unfair unless you are going to give him the 14

5

directly by SMART.

5

pages of the website to compare one word to each.

1

6

Q. Do you know how many advertisements, even if you know

7

generally, SMART has accepted since 2008?

8

A. I can get that information. There are -MR. HILDEBRANDT: We have produced copies

MR. MUISE: Either he knows --

6
7

MR. HILDEBRANDT: I mean this was similar

8

certainly to what was on the website, I can say that.

9

A. The only independent recollection that I have of this

10

of all of them, but I will be honest with you, neither

10

is it did say the Truth about Muhammad at the top, is

11

of us have counted them.

11

my recollection, and pedophile prophet as I previously

12

stated, I do recall that. I don't recall the contents

9

12
13
14

A. There are hundreds since 2008.
MR. MUISE: Mark this as the next, which is
what number?

13
14

of every other -- of everything else in this document.
Q. Do you recall going to the website and there was

15

MR. HILDEBRANDT: 12.

15

16

MR. MUISE: 12.

16

17

MARKED FOR IDENTIFICATION:

17

download? Was there a web page at that address, is

18

DEPOSITION EXHIBIT 12

18

that what your question is?

19

2:03 p.m.

19

20

MR. HILDEBRANDT: Mr. Muise, do you know if

20

21

this is the version that was in effect on the day of

21

22

the presentation of that ad?

22

23
24
25

MR. MUISE: That's what I am going to ask
the witness if he knows.
MR. HILDEBRANDT: Where did you get this,

23

actually a document posted on the website to download?
MR. HILDEBRANDT: A document posted to

MR. MUISE: No, I'm -- what his
recollection was about the website
TruthAboutMuhammad.com.
A. SMART went to TruthAboutMuhammad.com and reviewed the
contents on the website.

24

BY MR. MUISE:

25

Q. Right.

Pages 125 to 128

ANTHONY CHUBB
May 21, 2013
Page 129

Page 131

1

A. It is not my recollection that there was a document to

1

2

download, but there was information that you could

3

review directly on the website.

3

content based restriction?

2

4

Q. And your recollection is, I don't want to put words in

4

MR. HILDEBRANDT: Object, calls for
speculation and based upon a hypothetical.
A. Presumably it could, yes, if the title of the movie,

5

your mouth, but your recollection is some of the

5

whatever, was in violation, its plain language was in

6

information at least that was contained in Exhibit 12

6

violation of language section 5.07 B, it would be

7

is similar to the information that you recall seeing

7

8

at the website?

8

BY MR. MUISE:

rejected pursuant to 5.07 B.

9

Q. Are you aware of any instances in which a television

10

prophet is language that I recall seeing when we

10

program, a video game or a movie advertisement was

11

reviewing the website.

11

9

12

A. The language the Truth about Muhammad and pedophile

Q. Do you recall when you reviewed the website whether

12

13

there were references cited to any of the information
contained on the TruthAboutMuhammad.com website?

14

MR. MUISE: Can you mark this as the next

13

14

rejected because of its title?
A. No.
exhibit?

15

A. I don't have a recollection of that.

15

MARKED FOR IDENTIFICATION:

16

Q. Okay.

16

DEPOSITION EXHIBIT 13

MR. MUISE: Why don't we take a break until

17
18

2:23 p.m.

17
18

2:15 right now.

BY MR. MUISE:

19

(Off the record at 2:07 p.m.)

19

Q. Sir, I'm handing you what has been marked as Exhibit

20

(Back on the record at 2:20 p.m.)

20

Number 13. That first page is an advertiser agreement

21

BY MR. MUISE:

21

and the second page appears to be a posted

22

Q. Before we broke, I was asking you some questions about

22

advertisement. Do you know if this was an

23

whether or not SMART would review the content of a

23

24

television program or a video game or a movie prior to

24

25

making a determination under its content based

25

advertisement that SMART accepted?
A. I'm just trying to review the pictures to see if I
recognize this particular bus stop as a SMART bus

Page 130
1
2
3
4
5
6
7
8
9
10
11
12

Page 132

restrictions whether to accept or reject the ad. Do

1

stop, but it is my -- SMART has approved -- that will

you remember those questions, sir?

2

do it, yeah. I don't recognize this specific bus

A. Yes.

3

stop, but it does look like it has SMART information.

Q. And my understanding is that SMART would not review

4

any of those three categories of items advertised on

5

an advertisement; is that correct?

6

SMART has approved these advertisements, yes.
Q. And these advertisements reference a website
statussexy.com, do you see that?

A. In the past we have not, that's correct.

7

A. Yes.

Q. And what about if they are advertising a book, would

8

Q. And pursuant to your policies, SMART reviewed that

it be the same thing, would anyone from SMART read the

9

content of the book to determine whether or not there

10

was any political content or other prohibited content

11

in that book before allowing an advertisement for
that?

13

17

of that website was political; is that correct?
A. According to our policy it would be reviewed, yes.

12

13
14
15
16

website and found that there was nothing, no component

18
19
20

MR. HILDEBRANDT: I'm going to object that

MR. MUISE: Mark that as the next exhibit,
14.

14

MARKED FOR IDENTIFICATION:

it calls for a review of a nonspecific hypothetical

15

DEPOSITION EXHIBIT 14

ad, and I'm not sure this witness can speak on behalf

16

of SMART relative to that. As he said, anything would

17

BY MR. MUISE:

have to be done under the policy.

18

Q. Handing you what has been marked as Exhibit Number 14,

2:25 p.m.

A. Generally speaking we would not.

19

BY MR. MUISE:

20

21
22
23

Q. Do you know if -- has SMART ever considered when they

21

are reviewing advertisements for television programs

22

or movies or video games whether the actual title of

23

Number 13 the sexy -- the statussexy.com advertisement

24

the video game, movie or television show, whether that

24

at a bus stop. Do you know if this is the same bus

25

might present content that's prohibited under the

25

shelter, SMART bus shelter but from a broader view?

do you recognize that, sir?
A. I understand it to be a couple of SMART bus stops,
yes.
Q. And we just saw in the previous Exhibit, Exhibit

Pages 129 to 132

ANTHONY CHUBB
May 21, 2013
Page 133

Page 135

1

A. I don't know. I presume it to be.

1

2

Q. Do you recognize that the bus shelter in Exhibit

certain as to his title.

2

3
4
5

Number 14 is a SMART bus shelter?

3

MR. MUISE: Can you mark that as the next
one?

yes.

4

MARKED FOR IDENTIFICATION:

5

A. In Exhibit 14 I know that to be a SMART bus shelter,

DEPOSITION EXHIBIT 16
2:30 p.m.

6

MARKED FOR IDENTIFICATION:

6

7

DEPOSITION EXHIBIT 15

7

BY MR. MUISE:

8

2:27 p.m.

8

Q. I'm handing you what has been marked as Exhibit Number

9

BY MR. MUISE:

9

16. Do you recognize what is depicted in Exhibit
Number 16?

10

Q. Handing you what's been marked as Exhibit Number 15.

10

11

Do you recognize this as an advertisement that was

11

A. Yes.

accepted by SMART?

12

Q. And what is that?

13

A. This is another advertisement that was proposed for

12
13

A. I couldn't be certain. If this is the same

advertisement on SMART property.

14

advertisement that we have just looked at --

14

15

Q. And I can represent to you that was a document that

15

Q. Do you know if this advertisement was accepted?

was produced in the document production by SMART.

16

A. I believe it was accepted.

16
17

A. Okay. Okay.

17

MR. MUISE: Let's go to the next one.

18

Q. And so there is nothing about the advertisement

18

MARKED FOR IDENTIFICATION:
DEPOSITION EXHIBIT 17

19

depicted in Exhibit Number 15 that violated any of

19

20

SMART's content restrictions?

20

2:31 p.m.

21

A. That's correct.

21

BY MR. MUISE:

22

Q. Nothing about this advertisement or statussexy.com,

22

Q. I'm handing you what has been marked as Exhibit Number

23

any component of it was political pursuant to SMART's

23

24

content guidelines?

24

A. Just one second. I'm getting a little mixed up here.

25

Q. Do you recognize this advertisement, sir?

25

A. That's correct.

17.

Page 134
Q. If you look at Exhibit Number 13, it appears that this

Page 136
1

A. Yes, I do.

2

advertisement at least was submitted sometime in 2012;

2

Q. And is this an advertisement that SMART accepted for

3

is that right?

3

1

4

A. It appears that's correct. I couldn't tell you when

posting on its vehicles?

4

A. Yes.
Q. So that at the time didn't violate any of the content

5

it was posted on SMART property, but it does appear it

5

6

was -- the agreement was entered into between CBS and

6

7

its partnership with Michigan in March 2012.

7

8

Q. There is some handwriting, it says 3/13 and there is

8

MR. MUISE: Next one.

9

MARKED FOR IDENTIFICATION:

9
10

some like handwritten names, Tom, Bob, Karen, Nancy,
Alisha, Robert, do you see that?

based restrictions?
A. That's correct.

DEPOSITION EXHIBIT 18

10

11

A. Yes.

11

12

Q. Do you know what that is referencing?

12

BY MR. MUISE:

13

A. I would speculate it's internal --

13

Q. I'm showing you what has been marked as Exhibit Number

14

MR. HILDEBRANDT: Don't speculate.

14

2:32 p.m.

18. Do you recognize this, sir?

15

BY MR. MUISE:

15

A. Yes.

16

Q. I don't need you to speculate, but is this something

16

Q. And what is it?

17

A. I think it's the same advertisement as Exhibit 17.
Q. And again I will represent to you this was a document

17

that SMART put on there?

18

A. No, these are not SMART employees.

18

19

Q. Do you recognize these names as people who are

19

produced by SMART in their document production. Is

20

this an advertising space that's on the inside of the

20

employed by CBS Outdoor?

21

A. Robert is Robert Hawkins, and Tom is Tom Carroll.

21

22

Q. Who is Tom Carroll?

22

23

A. Another CBS employee.

23

24

Q. Do you know what his role is at CBS?

24

MARKED FOR IDENTIFICATION:

25

A. I believe he oversees the region, but I couldn't be

25

DEPOSITION EXHIBIT 19

buses?
A. This looks like a picture taken on the inside of a
SMART coach.

Pages 133 to 136

ANTHONY CHUBB
May 21, 2013
Page 137
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20
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2:33 p.m.

Page 139
1

A. Okay, sorry.

BY MR. MUISE:

2

Q. -- what is going on, the second paragraph, there is

Q. This is what has been marked as Exhibit Number 19.

3

And I will represent to you this was pulled up from

4

A. Got you.

the website that is cited on the advisements we just

5

Q. And you click on the link, and this story from 2012

reviewed, statussexy.com?

6

pops up, and that's Exhibit Number 20. Do you see

great story about us on thebody.com, check it out.

A. Okay.

7

Q. Is AIDS a politicized issue from SMART's perspective?

8

A. I see that this is Exhibit Number 20. Now, I make no

9

statement regarding whether this link there is a great

MR. HILDEBRANDT: Are you equating HIV with
AIDS for the purpose of that question?

that, sir?

10

MR. MUISE: Well, it says fighting HIV
slash AIDS on the website.

story about us on thebody.com check it out was present

11

when SMART reviewed this website, just the

12

MR. HILDEBRANDT: Okay.

13

MR. GORDON: Not on this website it

14

doesn't.

statussexy.com website, just to be clear.
Q. Okay. So as you are looking at the statussexy.com
website in Exhibit Number 19 -MR. HILDEBRANDT: Which was printed

15

A. In the body here.

16

yesterday, right?

MR. HILDEBRANDT: Yeah, it does.

17

BY MR. MUISE:

MR. MUISE: It does.

18

Q. -- does that make the advertisements that SMART

MR. GORDON: I apologize, it does. There

19

is that one spot.

20

A. Sorry, could you repeat the question?
MR. GORDON: But I take exception to your
characterization of it being equated as the same.

selected to be now political and prohibited by the
content based restrictions?

21

A. This does not change the answer.

22

Q. Okay. Look at the article that is linked there. The

23

very first sentence of this article says, quote, "the

(The following record was read by the

24

in quotes, status sexy" end quote campaign uses images

reporter at 2:34 p.m.

25

of attractive shirtless men to convey its message

Page 138

Page 140

1

"QUESTION: Is AIDS a politicized issue

1

2

from SMART's perspective?")

2

3

A. As we have spoken about, and perhaps we should get my

encouraging men who have sex with men to be tested for
HIV," end quote, do you see that?

3

A. Yes.
Q. Is that a political statement as SMART understands

4

previous testimony to be sure I'm consistent, but I

4

5

was saying that it is an issue of public debate and

5

6

one that finds factions on both sides. I don't

6

7

necessarily know that there is a faction in support of

7

AIDS if that's your question.

8

under the guidelines that I have previously testified,

9

we make a determination as to whether something is

8
9

BY MR. MUISE:

political to be for the purposes of its content based
restrictions?
A. In determining whether it is a political statement

political?

10

Q. That's not my question. My question is from SMART's

10

11

perspective is AIDS an issue or topic that has been

11

Q. Yes.

12

politicized as you understand that term to be?

12

A. It's not, no, but SMART has never reviewed the body in

MR. HILDEBRANDT: Give him the one word

13
14
15

answer.
A. No.

13

the web's content policy.
MR. HILDEBRANDT: The website, the body,

14
15

you mean, right? You certainly review the body of the

16

MARKED FOR IDENTIFICATION:

16

ad.

17

DEPOSITION EXHIBIT 20

17

A. Yes.

2:36 p.m.

18

18

MR. HILDEBRANDT: Just not the website the
body?

19

BY MR. MUISE:

19

20

Q. Sir, I'm handing you what has been marked as Exhibit

20

A. Exhibit 20.

21

20, and I will represent to you if you look at Exhibit

21

BY MR. MUISE:

22

Number 19, there is a link on the statussexy.com

22

Q. But if it's linked to Exhibit 19, the website cited on

23

website where it says there is a great story about us

23

24

on thebody.com, check it out, and when you click on

24

25

the link, number 19 --

25

the advertisement, pursuant to your policy you would
review all of the ad; is that correct?
A. That's correct.

Pages 137 to 140

ANTHONY CHUBB
May 21, 2013
Page 141

Page 143

1

MR. HILDEBRANDT: Are you indicating that

1

A. -- of the political content restriction policy.

2

he said the policy was to follow every link within the

2

Q. With regard to the advertisement that that website is

3

web page and every link within those links and every

3

4

link within those links?

4

A. With regard to Exhibit 19?
Q. And let's just back up, just with regard to either the

5

BY MR. MUISE:

5

6

Q. Well, you tell me --

6

MR. HILDEBRANDT: Is that what you

7
8
9

7

cited to?

ads, any of the ads accepted as Exhibit 16, 17 -- or
15, 16, or 17?

8

BY MR. MUISE:

A. Those were all accepted under the content policy.

9

understood him to say?

Q. Right. And the fact that that article, Exhibit 20

10

Q. You tell me what the policy is. At what point do you

10

would be referenced in the advertisement cited in

11

decide which link you are going to follow and which

11

statussexy.com itself would not prohibit these

12

one you're not going to follow?

12

13
14
15
16

advertisements from being displayed?

have Exhibit Number 20, correct?

A. Once again, there is no determination here that this
was -- that Exhibit 20 was referenced by statussexy,

15

which is Exhibit 19 which is referenced in Exhibits

16

reader is directed to within the ad.
Q. Okay. You have one website, and one click away you

13
14

A. We take every reasonable measure to follow what the

15, 16, 17, and 18, but if it were -- you are asking
if it were, would it be a violation of the content

17

A. That's correct.

17

18

Q. And --

18

policy. I don't believe so.

19

A. Now of course again, we haven't said as to whether

19

Q. I will hand you what has been --

20

this link was present on this website at the time --

20

21

on the statussexy website that's in Exhibit Number 19,

21

22

nobody in this room seems -- knows whether that was

22

MARKED FOR IDENTIFICATION:

23

there, the link to the website in Exhibit 20 was on

23

DEPOSITION EXHIBIT 21

24

the website in Exhibit 19 at the time it was reviewed

24

25

by SMART.

25

MR. MUISE: I will mark this as the next
exhibit.

2:44 p.m.
BY MR. MUISE:

Page 142

Page 144
Q. Do you know who at SMART or at what level at SMART the

1

Q. And based on your understanding of the policy looking

1

2

at Exhibit 19 and Exhibit 20, neither of those would

2

3

cause the advertisement to be prohibited under SMART's

3

A. I could confer and find that out. I don't know.

content restriction; is that correct?

4

Q. Do you know if it was reviewed at least at the legal

4

statussexy.com advertisements were approved?

counsel level?

5

A. I will have to review Exhibit 20 if you want to --

5

6

Q. Yes.

6

A. It was.

7

A. -- have me speculate as to what the answer would be if

7

Q. Hand you what has been marked as Exhibit Number 21.

8

And this too is a document that was linked to Exhibit

9

Number 19. If you hit the top link where it says

8
9

it was reviewed under the content policy.
MR. HILDEBRANDT: And again this is going

testing together is a new way to go status sexy with

10

beyond the topics that were identified as topics of

10

11

conversation for this 30(b)(6) witness, and so any

11

12

answer that he gives is beyond the scope of the notice

12

A. Yes.

13

and not binding on SMART.

13

Q. Take a minute -- let me back up. Do you recall ever

14

seeing this document depicted in Exhibit 21 prior to

14

MR. MUISE: Well, certainly I thoroughly

15

disagree since this advertisement was the

15

16

advertisement provided by SMART.

16

17
18
19
20

MR. HILDEBRANDT: You are entitled to
disagree.
MR. MUISE: Of course, and you are entitled
to object.

your boo, exclamation point.

today?
A. No. This document is a press release that has an

17

immediate release of 10-1-2012. The contract that you

18

put in as Exhibit 13 is dated 3-12-2012, so it

19

predates it by seven months. It's likely it wasn't

20

there, but we can go further with that understanding.
MR. HILDEBRANDT: And by the way, Exhibit

21

A. I don't believe that this -- that the body story

21

22

referenced in Exhibit 20, if it were reviewed by

22

23

SMART, would be determined to be in violation of the

23

24

content restriction policy --

24

BY MR. MUISE:

25

Q. Do you know how long the advertisements ran at the

25

Q. And just to be clear --

20 is also dated two-and-a-half months after the
contract that was referred to in Exhibit 13.

Pages 141 to 144

ANTHONY CHUBB
May 21, 2013
Page 145
1
3

1

statussexy.com?
MR. HILDEBRANDT: According to the

2

Page 147
A. That's correct.

2

Q. Is there anything about this advertisement that

3

contract?

violated any of the content based restrictions that
SMART imposes for advertising content?

4

A. It was, according to the contract it's from the -- it

4

5

looks like it's from the period of 4-2-12 to 4-29-12,

5

6

so that's a one month period -- it's a four week

6

period, a 28 day period.

7

7
8

BY MR. MUISE:
Q. Okay. Looking at Exhibit Number 21.

9

A. What's that?
MR. HILDEBRANDT: Do you want to see the

8

9

MR. HILDEBRANDT: Would you like to see the
website?

MR. HILDEBRANDT: Object to relevance.

10

10

website?
A. I mean that would be necessary to make the

11

BY MR. MUISE:

11

determination. It's fairly detailed to do that, and I

12

Q. Have you had a chance to read it yet?

12

need the content restriction policy as well.

13

A. No.

13

14

Q. Please do.

14

MR. HILDEBRANDT: Exhibit 3?
A. And this ad ran in 2009, so I can't -- what's on the

15

(Off the record at 2:46 p.m.)

15

website now I don't necessarily know would be of

16

(Back on the record at 2:49 p.m.)

16

assistance.
MR. HILDEBRANDT: All right. Looking on my

17

BY MR. MUISE:

17

18

Q. Okay. After reviewing Exhibit Number 21 is there

18

phone today, the website seems to route to the

19

anything in that content that would then make the

19

Michigan Department of Community Health.

20

statussexy.com advertisements prohibited under any of

20

21

these SMART content based restrictions?

21

MR. MUISE: He's not testifying, so I will
have that struck from the record.
A. Well, a determination on this would revolve around

22

A. Once again, the date on this press release is far past

22

23

the date that this advertisement ran, and therefore it

23

whether it was political advertising, and so I

24

was almost certainly -- it seems impossible that it

24

previously had spoken about how a determination of

25

could be linked at the time that it was reviewed or

25

political advertising is made, and it's whether it

Page 146

Page 148

1

that the ad ran.

1

advocates on an issue that has been politicized.

2

Q. Okay. My question --

2

Looking at this advertisement, generally speaking

3

A. But Exhibit 21 is an explanation of a testing, HIV

3

health services are not what I would -- what we would
consider a politicized issue, and SMART advertises

4

testing program that they are running. I don't see

4

5

that as being political. It's a medical testing

5

6

program.

6

BY MR. MUISE:

many health services.

7

MARKED FOR IDENTIFICATION:

7

Q. Is it SMART's position that even after Obamacare being

8

DEPOSITION EXHIBIT 22

8

signed into law in March of 2010 that health care is

9

2:51 p.m.

9

not a politicized issue?

10

BY MR. MUISE:

10

11

Q. Handing you what has been marked as Exhibit Number 22.

11

the nature of the question because that is several

Do you recognize what this is, sir?

MR. HILDEBRANDT: I'm going to object to

12

months, if not years, after this ad ran. It has no --

13

A. Yes.

13

it has no connection to this ad whatsoever.

14

Q. And is this an advertisement that was run by SMART?

14

15

A. Yes.

15

statement, and my question is following up on his

16

Q. And so there was nothing about this advertisement or

12

MR. MUISE: Well, he gave a general

16

general statement, and I will get to the specifics of

17

any website that it's cited to that violated any of

17

his detail.

18

the content based restrictions by SMART?

18

19

A. This -- just one moment. I don't believe that

19

MR. HILDEBRANDT: That generally health
care issues are not a politicized issue is what he

20

SMART -- I think that CBS reviewed this

20

21

advertisement. I don't believe that SMART officials

21

22

did. I can confirm that, though, if you would like me

22

23

to do so.

23

not even --

24

BY MR. MUISE:

25

Q. Okay, well, we will get to the health insurance thing

24
25

Q. Well, this advertisement actually ran on the SMART
vehicles, did it not?

said.
A. This advertisement refers to a specific provider of
health care. Whether payment is made by insurers is

Pages 145 to 148

ANTHONY CHUBB
May 21, 2013
Page 149
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15
16
17
18
19
20
21
22
23
24
25

Page 151
is that correct?

separate. Looking at this is there anything about

1

this advertisement as you are looking at it that is

2

A. I would presume that's likely, yes.

political advertising prohibited by SMART's content

3

Q. Do you know if health care is considered by SMART to

restrictions?

4

MR. HILDEBRANDT: Actually, wait. Before

5

be a politicized issue such that advertisements
addressing that content are prohibited?

he answers that, are you asking for his legal opinion

6

A. I would have to see the advertisement in particular,

and determination on this, because SMART he has said

7

but an advertisement for the provision of health care

did not review this ad.

8

would not be, and again given the explanation of

9

political that I have given you now hundreds of times,

MR. MUISE: This thing is posted on SMART's

10

MR. HILDEBRANDT: I get that, but it was
not reviewed by SMART as he said.

unless it referred to support of nationalized health

11

care, for example, or Obamacare is what you are

12

advertising.

clearly getting at, which is the Affordable Care Act.
MR. MUISE: Can you mark that?

MR. MUISE: He said --

13

MR. HILDEBRANDT: So now you are asking

14

A. If there are any that directly reference that, they

15

may deserve review, but if it's a provider, it's -- it

MR. MUISE: No.

16

would be any relation to the issue of nationalized

MR. HILDEBRANDT: -- to review it and

17

health care or the Health Care Affordability Act are

him --

determine whether it's violative.

18

too attenuated.

MR. MUISE: This is plainly within his 30

19

BY MR. MUISE:

(b)(6) realm since this was an advertisement that was

20

Q. Are you done?

permitted by SMART to be run on its buses.

21

A. Yes.

22

MARKED FOR IDENTIFICATION:

plainly within your 30(b)(6) notice, but it could also

23

DEPOSITION EXHIBIT 23

be privileged depending on where you are going,

24

because if you are asking for the mental impressions

25

MR. HILDEBRANDT: I understand that it's

3:00 p.m.
BY MR. MUISE:

Page 150

Page 152

1

of an attorney for SMART, then that could be work

1

Q. Handing you what has been marked as Exhibit Number 23.

2
3

product and/or attorney client product privilege.

2

A. Okay.

3

Q. Do you recognize what this depicts?

4
5
6

question.

4

A. Yes.

BY MR. MUISE:

5

Q. Were these advertisements that were accepted by SMART?

Q. Answer the question.

6

A. I do not believe SMART approved these ads, but I can

7
8
9
10
11

MR. MUISE: Of course that is not the

MR. HILDEBRANDT: So you're not asking for
his mental impressions?

8

confer and confirm that if you would like.
Q. Do you recognize whether these advertisements were
posted on SMART buses or SMART shelter?

MR. MUISE: I am asking him to apply

9

SMART's policy as we have been doing here for the last

10

A. You didn't ask that, you asked if SMART approved them.

several hours in this deposition.

11

These pictures clearly depict them on a SMART shelter

MR. HILDEBRANDT: Hypothetical?

12

as well as on a SMART vehicle, but I don't believe

MR. MUISE: It's not hypothetical. This

12
13
14
15

7

13

these advertisements were forwarded from CBS to SMART

ran on your buses.

14

for approval.
Q. Well, you know, I understood from your earlier

BY MR. MUISE:

15

16
17

Q. Is there anything about this advertisement that

16

testimony that CBS Outdoor didn't have authority to

violates SMART's content based restrictions?

17

make approval or denial decisions for posting of

18
19
20

A. No.

18

advertisements on SMART's vehicles. Is that not true

Q. Let me ask you, there is quite a few advertisements

19

that we have been provided that have advertising for

20

health services or health care in general. Are you

21

aware that SMART has accepted advertisements that

22

cover health care and health services?

21
22
23
24
25

now?
A. You will have to go back to the testimony. I didn't
say that.
Q. So CBS Outdoor has independent authority to approve

23

ads that can or cannot run on SMART's vehicles?

A. Yes.

24

A. I previously told you Exhibit 3 is the contract

Q. And they have been some accepted post March of 2010;

25

between CBS and SMART. In 5.07 C the contract says

Pages 149 to 152

ANTHONY CHUBB
May 21, 2013
Page 153

Page 155

1

before displaying any advertising exhibit material or

1

2

announcement which contractor, which in this case is

2

3

CBS, believes may be in violation of section 5.07 B,

3

4

restriction on content, contractor shall first submit

4

BY MR. MUISE:

5

the material to SMART for review. SMART shall make

5

Q. Looking at this advertisement, is there anything about

6

the final determination as to all violations of

6

7

section 5.07 B.

7

8

Q. So this policy, the first part of this policy is

by SMART, but it was run on SMART buses.

this advertisement that would violate the content
restrictions, SMART's content restrictions?

8

A. No.
Q. Does it make a difference if Sheriff Wickersham and

9

somebody from CBS Outdoor making a determination of

9

10

whether or not they think it should be brought to your

10

11

attention before it's run on the SMART buses?

11

12

2011.
A. I don't remember if this was -- if this was reviewed

A. They make a determination as to whether there is any

12

Prosecutor Smith were elected officials?
A. They -- this doesn't reference that in any way, so the
answer is no.

13

potential violation of 5.07, and if they believe that

13

MARKED FOR IDENTIFICATION:

14

there is, they review -- they send it to SMART for a

14

DEPOSITION EXHIBIT 25

15

final determination under the content guidelines.

15

3:08 p.m.

16

Q. Okay. And so Exhibit Number 23, are you saying you

16

BY MR. MUISE:

17

don't have any recollection as to whether or not this

17

Q. I'm handing you what has been marked as Exhibit Number

18

was an advertisement that SMART -- that SMART approved

18

25. It appears to be a advertisement from the Kaiser

19

that was posted on its bus shelter and bus?

19

Family Foundation regarding AIDS, according to the

20

contract at the top, and the advertisement appears to
be posted on a bus shelter on the second page. Do you

MR. HILDEBRANDT: In actuality he said he

20
21

did have a recollection and it was not posted. A

21

22

misrepresentation of the testimony.

22

MR. MUISE: Well, it looks like it was

23
24

23

posted. Are you telling me it was not posted?

24

MR. HILDEBRANDT: It was in the approved by

25

recognize that advertisement?
A. I don't recognize this as a SMART property, and I
don't recall this advertisement being posted on SMART

25

property or being approved by SMART or running on

Page 154
1

SMART is what he said.

1

MR. MUISE: Okay. So you misstated?

3

2

MR. HILDEBRANDT: I did, you are right. My

2
4

Page 156

3

apologies.

4

SMART property.
Q. I can tell you this was from documents that were
produced pursuant to the document production request.
A. We produced this?
MR. HILDEBRANDT: It may have been produced

5

A. My apologies, could you please restate the question?

5

6

BY MR. MUISE:

6

to us by CBS at our request and produced by us to

7

Q. Sure, and I will just ask it this way, does this

7

them, I agree, but you are the SMART witness. If you
don't think it's yours, then it's not yours.

8

advertisement, which appears one was posted on a SMART

8

9

bus shelter, one was posted on a SMART bus, do either

9

A. I just don't recognize the names on the contract

10

of these advertisements violate any of the content

10

itself, but if we have produced that and it was on

11

based restrictions under SMART's policy?

11

SMART property, it wasn't approved by SMART directly,

12

it was approved by CBS as our contractor, it's not

12

A. No.

violating section 5.07 B.

13

MARKED FOR IDENTIFICATION:

13

14

DEPOSITION EXHIBIT 24

14

BY MR. MUISE:

3:05 p.m.

15

Q. Is there anything about this advertisement that would

16

BY MR. MUISE:

16

violate it from SMART's perspective your content based

17

Q. I'm handing you what has been marked as Exhibit Number

17

15

18

24. Do you recognize this advertisement?

revisions?

18

A. No.
Q. You said there is names that you don't recognize on

19

A. Yes.

19

20

Q. Is this an advertisement that was run on SMART buses?

20

the contract, what are you referring to? Because it

21

A. It is.

21

appears the handwritten names appear to be the similar

22

Q. Is it an advertisement that was approved by SMART?

22

23

A. I don't have any independent recollection. I would

23

24
25

have to -- what are the dates?
MR. HILDEBRANDT: November, December of

ones from CBS out at least.
A. Perhaps I just haven't -- Sara Levine, I just done

24

recognize the name. I presume one of these is a SMART

25

signature, and I just don't -- I can't pick them out,

Pages 153 to 156

ANTHONY CHUBB
May 21, 2013
Page 157

Page 159

1

and this -- why I'm looking closely is this

1

2

advertising campaign was run on D dot coaches. I

2

Q. Do you recall seeing this advertisement before today?

don't recall it being run --

3

A. I do not.

4

Q. Do you know if this advertisement was approved by

3
4
5

Q. And when you say D dot, you are referring to the
Detroit --

5

6

A. The City of Detroit, correct.

6

7

Q. Detroit Department of Transportation?
A. Sorry.

8

SMART?

7

8

different advertisement, and it's on SMART property.

MARKED FOR IDENTIFICATION:

9

9

A. I can get the -MR. HILDEBRANDT: Object to the form of the
question.
A. I can get that information, but I do not recall.

10

DEPOSITION EXHIBIT 26

10

BY MR. MUISE:

11

3:13 p.m.

11

Q. Do you know if there is anything about this

12

BY MR. MUISE:

12

13

Q. I'm handing you what has been marked as Exhibit Number

13

advertisement that would violate any of SMART's
content based restrictions?

14

26. It appears to be an advertisement that ran

14

15

sometime in June of 2012 on SMART buses; is that

15

advertisement, but from what I can read, it's

16

correct?

16

advocating for or it's a public safety message to get

A. I can't -- I cannot read the writing on the

17

A. Yes.

17

tested for HIV. That would not violate the content

18

Q. Do you recall seeing this advertisement prior to

18

restriction policy.

19

today?

19

MARKED FOR IDENTIFICATION:
DEPOSITION EXHIBIT 28

20

A. Yes.

20

21

Q. Was this an advertisement that SMART approved?

21

22

A. Yes.

22

BY MR. MUISE:

23

Q. Was there anything about this advertisement that

23

Q. This is what has been marked as Exhibit Number 28. It

24

violated any of the content restrictions of SMART?

24

appears to be an advertisement that was submitted by a

25

community food bank. I can't tell if that's Gleaners

25

A. No.

3:19 p.m.

Page 158
1
2
3

Q. So this doesn't convey a political message at all from
SMART's perspective?
A. Correct.

Page 160
1

or Cleaners.

2

A. Gleaners.
MR. HILDEBRANDT: Gleaners.

3

4

MARKED FOR IDENTIFICATION:

4

A. With a G.

5

DEPOSITION EXHIBIT 27

5

BY MR. MUISE:

6

3:16 p.m.

6

Q. Do you know what Gleaners Community Food Bank is?

7

BY MR. MUISE:

7

A. A community food bank.

8

Q. Do you recognize the advertisement depicted in this

8

Q. Is it a -- it's a nonprofit, do you know?

9

A. I couldn't be certain.

9

Exhibit Number 27?

10

A. Yes.

10

11

Q. And it appears from the contract this is from the

11

12

Kaiser Family Foundation slash AIDS, correct?

12

A. Yes.
Q. Do you have recollection of reviewing this

Q. Was this an advertisement that was accepted to be run
on SMART buses?

13

A. Yes.

13

14

Q. Similar to the one that we looked at previously where

14

15

you weren't certain if it was run on SMART buses; is

15

A. I would have to ask if it has been reviewed by SMART.

16

that right?

16

Anthony Chubb was on medical leave during this point.

advertisement?

17

A. That's correct.

17

MR. HILDEBRANDT: All of the ads that SMART

18

Q. Does this appear to be a SMART bus shelter?

18

is aware of having reviewed have been provided to you

19

A. Yes, it is.

19

20

Q. So based on Exhibit 27 is it -- are you fairly certain

20

BY MR. MUISE:
Q. Is there anything about this advertisement that

21

that the Kaiser Family Foundation AIDS advertisements

21

22

ran on SMART property?

22

under those circumstances. This one was not reviewed.

violates any of SMART's content based restrictions?

23

A. Yes, I can't speculate as to whether they ran on D dot

23

A. No.

24

property, and that's what Exhibit 26 might be, but

24

Q. There is nothing about this advertisement that

25

Exhibit 27 is funded by the same foundation, it's a

25

addresses a politicized issue?

Pages 157 to 160

ANTHONY CHUBB
May 21, 2013
Page 161

Page 163

1

A. There is nothing about this that violates section 5.07

1

other than the ones we have discussed that you are

2

B of the advertising -- or of the section 5.07 of the

2

aware of have violated the 5.07 B content

3

content -- of the contract.

3

restrictions, is that your question?

4

MARKED FOR IDENTIFICATION:

4

MR. MUISE: Right.

5

DEPOSITION EXHIBIT 29

5

MR. HILDEBRANDT: Okay.

6

3:21 p.m.

6

7

BY MR. MUISE:

7

8

Q. This has been marked as Exhibit Number 29. Do you

MR. MUISE: Of the advertisements that you

8

9

recognize this advertisement?

have produced to us.
MR. HILDEBRANDT: Fair enough.

9

MR. MUISE: Because it is my understanding

10

A. I do not recognize this.

10

there were none, other than those four, there were

11

Q. Is this an advertisement that actually ran on SMART

11

none of those advertisements that were rejected for

12
13

buses?

12

A. It appears that the picture attached is page 2 of

13

any reason.
A. Can we discuss that -- can I speak with my attorney

14

Exhibit 29 is a -- is the referenced advertisement on

14

15

a SMART bus.

15

MR. MUISE: Do you want to take a break?

16

MR. HILDEBRANDT: Sure.

17

MR. MUISE: Okay. Let's do that.

18

(Recess taken at 3:25 p.m.)

MR. HILDEBRANDT: Yes, it ran on a SMART

16
17
18
19

bus.
A. Yes.
MR. HILDEBRANDT: Okay.

briefly before answering that?

(Back on the record at 3:37 p.m.)

19

20

BY MR. MUISE:

20

BY MR. MUISE:

21

Q. Is there anything about this advertisement that

21

Q. To speed things along here, there were numerous

22

violates any of the content based restrictions that

22

advertisements that were produced by SMART in the

23

SMART applies?

23

document production. We have gone through quite a few

24

A. From what I can see in the attached picture, no.

24

already today, and we have identified the four that

25

Q. Do you know what the film Chain Letter is about?

25

violated the content based restrictions that applied

Page 162

Page 164

1

A. I do not.

1

to deny my client's advertisement, and my question is

2

Q. Let me ask, of all the advertisements that were

2

are any of the other advertisements that SMART

3

produced by SMART in the document production, have you

3

produced, did any of those or do any of those violate

4

had a chance to review those prior to today?

4

any of the content based restrictions at issue in this
case?

5

A. I have had a chance to review.

5

6

Q. We went through just a few, because we could speed

6

A. For all the ads that were produced that were run on

7

this up obviously quite a bit or we could go in more

7

vehicles, none are in violation of the content policy

8

detail. We reviewed the, I believe it was four of the

8

9

advertisements that were produced that were rejected

9

10

under the content based guidelines at issue here, and

10

quick questions about a couple of ads, because I'm not

11

those being the game, the Redemption, was it Red --

11

sure if they actually ran on vehicles or not, and I

12

MR. HILDEBRANDT: Red Dead Redemption.

12

want you to refer to.

that we have spoken about.
Q. Okay. That's going to leave open just a couple of

13

BY MR. MUISE:

13

MR. MUISE: If you could mark this.

14

Q. -- Red Dead Redemption, my client's Leaving Islam ad,

14

MARKED FOR IDENTIFICATION:

15

my client's Don't Believe in Muhammad ad with the

15

DEPOSITION EXHIBIT 30

16

website --

16

17

MR. HILDEBRANDT: And Pinckney Pro-Life.

3:39 p.m.

17

BY MR. MUISE:
Q. I'm handing you what has been marked as Exhibit Number

18

BY MR. MUISE:

18

19

Q. -- and Pinckney Pro-Life. In terms of any of the

19

30. Do you recognize this advertisement, sir?

20

other advertisements that were produced, are there any

20

A. Yes.

21

of those that you are aware of that violated any of

21

Q. Do you know if this -- I did not see one in the

22

those content based restrictions that SMART applied to

22

production as far as I'm aware of this advertisement

23

my client's ad in this case?

23

actually appearing on SMART property, but do you know

24
25

MR. HILDEBRANDT: Other than the ones you
have talked about in a stack between 29, any others

24
25

if this advertisement was run on any SMART property?
A. I would need to confer to make a determination. I do

Pages 161 to 164

ANTHONY CHUBB
May 21, 2013
Page 165
1
2
3

not believe that it was.
Q. Do you know if it was rejected because it violated any
content based restrictions?

4

A. It was not rejected, it was approved.

5

Q. It was approved, it just never ran?

6

A. Correct.

7

MARKED FOR IDENTIFICATION:

8

DEPOSITION EXHIBIT 31

9

3:40 p.m.

10

BY MR. MUISE:

11

Q. I'm handing you, sir, what has been marred as Exhibit

12

Number 31. It appears to be a similar ad to Exhibit

13

Number 30. Do you know if -- and I didn't see in any

14

of the document production that this ad appeared on

15

any SMART property. Do you know if this ad was

16

submitted for approval to SMART?

17

A. It was submitted for approval to SMART, yes.

18

Q. And was it approved?

19

A. It was approved.

20

Q. But it was never run on the buses; is that correct?

21

A. I believe so, that's correct.

22

Q. Do you know why or why Exhibits Number 30 and 31 never

23

actually appeared on SMART property?

24

A. A lot of times -- with specificity to these, no.

25

MARKED FOR IDENTIFICATION:

Page 167
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

MR. MUISE: 33.
MARKED FOR IDENTIFICATION:
DEPOSITION EXHIBIT 33
3:43 p.m.
BY MR. MUISE:
Q. This is what was marked as Exhibit 33. Again this was
a document that was produced, and it appears to be
from Anthony Chubb to Beth Gibbons?
A. Correct, yes.
Q. And given the date of this, this appears to be an
e-mail regarding the modifications, the 2008
modifications to the advertising contract; is that
accurate?
A. That's correct. This was the -- this was in the
process of drafting the 2008 contract, yes.
Q. And it would appear that number 6 on, that's depicted
here in this e-mail as Exhibit Number 33, never made
its way into the advertising guidelines?
A. That's correct.
Q. Do you know why it never made it into the advertising
guidelines?
MR. HILDEBRANDT: Without infringing on
privilege.
A. That's privileged.
BY MR. MUISE:

Page 166

Page 168
Q. Well, I think the question of whether you know is

1

DEPOSITION EXHIBIT 32

1

2

3:41 p.m.

2

separate and distinct from what the information might

3

BY MR. MUISE:

3

be. Do you know why that was -- why it was removed

4

Q. Handing you what has been marked as Exhibit Number 32,

4

from the guidelines?
MR. HILDEBRANDT: Yes or no.

5

and this was a document that came in the document

5

6

production. I do note the date is March 15, 2007,

6

A. Yes.

7

that's referring to an advertisement from an upscale

7

BY MR. MUISE:

8

gentleman's club in Inkster. Do you see that, sir?

8

Q. And my understanding is that you are not going to

9

answer that, the question as to why it was removed

9
10
11

A. Yes.
Q. Do you recall if there was an advertisement that SMART
ran from the gentleman's club in Inkster?

10
11

based on attorney client privilege; is that correct?
MR. HILDEBRANDT: I'm instructing him not
to answer as to why it was removed based upon attorney

12

A. Yes.

12

13

Q. And the name of the club, I guess, is Flight Club?

13

14

A. That's my recollection, yes.

14

BY MR. MUISE:

15

Q. And was this advertisement run under prior content

15

Q. Was paragraph number 6 included in pre 2008

client privilege.

advertising guidelines?

16

restrictions?

16

17

A. That's correct.

17

18

Q. Do you recall what that advertisement was?

18

19

A. What the -- what the advertisement depicted?

19

MARKED FOR IDENTIFICATION:

20

Q. Yes.

20

DEPOSITION EXHIBIT 34

21

A. It was woman holding -- it was a waitress holding a

21

22
23
24
25

tray with drinks on it.
Q. Is there anything about that advertisement that would
violate the 2008 restrictions?
A. No.

A. Some of the language was. It was organized
differently.

3:45 p.m.

22

BY MR. MUISE:

23

Q. This is what has been marked as Exhibit Number 34, and

24

this was a document that was produced by SMART in

25

their document production. It appears that this three

Pages 165 to 168

ANTHONY CHUBB
May 21, 2013
Page 169
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

Page 171

page e-mail is referring to my client's ad at issue in

1

A. Correct.

this case, the Leaving Islam ad; is that correct?

2

Q. And would she be somebody that, based on your prior

A. Just one moment. Okay.

3

testimony, somebody that would be applying the SMART's

Q. Is it accurate to say that this three page e-mail is

4

content based policy to advertisements; is that

referencing my client's advertisement that was

5

rejected by SMART, that being the Leaving Islam

6

advertisement?

7

A. Correct, yes.

8

Q. If you look at the e-mail in the bottom of the first

9

correct?
A. Generally she does, I'm not saying that is what she is
doing in this e-mail. She was a marketing person.
Q. She is, though, one of the people that does review
pursuant to the content based policy; is that right?

page, it appears it's from Elizabeth Dryden to Avery

10

A. That is correct.

Gordon and others. It begins with Avery, do you see

11

Q. Do you know if a meeting was ever held with ACCESS to

that, sir?

12

discuss my client's advertisement?

A. Yes.

13

A. One was not. May I restate that?

Q. On the third line down it says while we don't believe

14

MR. HILDEBRANDT: Sure.

we need to do that, let's meet to discuss slash meet

15

BY MR. MUISE:

with ACCESS about this, something to think about. Do

16

Q. Sure.

you see that?

17

A. If ACCESS is an acronym for --

A. Yes.
Q. Do you know who ACCESS is, A-C-C-E-S-S?

19

A. I do not. I can find that out if you would like me

20

MR. HILDEBRANDT: Arab Community Center for

18

to.

21

Q. Do you know if it's the Arab Community Center For

Economic and Social Services.
A. -- Arab Community Center for Economic and Social
Services, a meeting was never held.

22

BY MR. MUISE:

23

Q. Do you know of any other organization that's, I would

A. I can find that out.

24

assume it's an acronym since it's in all caps, ACCESS,

Q. Is ACCESS an entity that's part of SMART?

25

do you know of any --

Economic and Social Services?

Page 170
1

A. No.

3

1
MR. HILDEBRANDT: Arab Community Center,

2
what?

A. No, none.
MR. HILDEBRANDT: To be fair, he didn't

2
3

MR. MUISE: Economic and Social Services.

4

Page 172

know of that one, though, either.
MR. MUISE: I understand. I didn't know if

4

5

BY MR. MUISE:

5

6

Q. Is it the policy or practice of SMART to discuss

6

there was another organization out there that he might
think it was referring to.

7

contents of advertisement with organizations that

7

A. No.

8

aren't part of SMART to make determinations as to

8

BY MR. MUISE:

9

whether they should be accepted or approved?

9

Q. I have got a question on how payment is made for these

MR. HILDEBRANDT: You mean outside of

10
11

perhaps CBS?

10

advertisements. When an individual such as my client

11

enters into a contract with CBS Outdoor to run an
advertisement, the Leaving Islam advertisement, how

12

BY MR. MUISE:

12

13

Q. Well, I would leave aside CBS since they are a natural

13

14

agent of SMART.

does the payment process work?

14

A. The payment is made to CBS as SMART's agent for sales

15

A. No.

15

of advertising, and under CBS's contract with SMART,

16

Q. Outside of CBS.

16

at the end of any given month, within several weeks

17

thereafter or a couple weeks thereafter, the numbers

And Elizabeth Dryden, what is her position?

17
18

A. She's the director of marketing.

18

are audited for that given month and a determination

19

Q. She --

19

is made as to how much CBS owes SMART for advertising

20

A. She was at the time. She is not currently with SMART.

20

21

Q. Was she Beth Gibbons' boss for lack of a better

21

Q. And how would it work, for example, a client -- so the
first payment for Leaving Islam, for example, would go

sold the previous month.

22

description?

22

23

A. That's correct.

23

24

Q. So she was actually the head of the marketing

24

A. Correct.

25

Q. And then CBS Outdoor would hold that payment until

25

department?

to CBS Outdoor; is that correct?

Pages 169 to 172

ANTHONY CHUBB
May 21, 2013
Page 173

Page 175

1

such time as there is an audit done and the money is

1

2

transferred or is the money transferred at some point

2

3

and then an audit is done to double-check the

3

4

transfer? I'm not sure if I understand completely.

4

A. That's correct.

5

Q. And so that would be a whole year's worth of

5

A. SMART produced additional documents regarding CBS and

Q. So looking at this first page of Exhibit 35 -- and it
looks like the billing period went from March of 2009
to February of 2010; is that correct?

6

the payment. If I could review those, I think I could

6

7

give you a very detailed explanation, because it's

7

A. Correct. This was the first year of revenue recording

8

quite complicated. I have a copy of them.

8

of the contract. I'm sorry, this is the second year.

9

Q. Well, let me mark it for the record so we are not --

9

10

there is no confusion over this.

10

A. Okay.

advertising?

It started in 2008.
Q. And so looking at this, the actual revenue under the

11

contract, aside from making up the deficit, was

12

MARKED FOR IDENTIFICATION:

12

$226,340.39 of actual revenue, the 50 percent split

13

DEPOSITION EXHIBIT 35

13

14

3:53 p.m.

14

11

that came in; is that correct?
A. Well, so for this year, which I'm going to need to

15

BY MR. MUISE:

15

correct myself again, the contract is a 2008 contract,

16

Q. What number is that?

16

but the first month of it must have been in February

17

A. This is 35.

17

2009, so that March 2009 is the first month referenced

18

Q. Okay. You commented about wanting a copy of the

18

on this sheet, is the first month of the contract,

19

document that was previously provided regarding

19

which is why they have zero dollars in revenue for

20

accounting and billing from CBS Outdoors. Do you have

20

that period.

21

that document in front of you?

21

If you look at it for this year, they

22

A. Yes.

22

billed -- CBS billed $452,680.77 in advertising fees.

23

Q. And will this help you to respond more accurately to

23

That entitled SMART to $226,340.39 based upon the

24

50/50 split, however, the contract also has a minimum

25

guarantee of 500,000 per year, and therefore SMART was

24
25

the question?
A. Yes. It's a somewhat complicated scheme, so I'm going

Page 174

Page 176

1

to need to explain it in some level of detail to

1

2

explain how the audits are done at the end of the

2

3

month.

3

A. And 4 cents.

Under the contract CBS is allowed to charge

given 500,000.
MR. HILDEBRANDT: And 4 cents.

4

BY MR. MUISE:

5

vendors separate fees for production and advertising.

5

Q. And so then CBS Outdoor would have to cut in to

6

They retain all of the production cost, and SMART

6

whatever revenues or profits they have generated of

7

never sees those.

7

$273,659.66 to make up the minimum guarantee of

4

8

The advertising costs are split 50 percent,

8

500,000?

9

50 percent SMART and CBS. In addition to that split,

9

10

SMART is guaranteed a minimum amount under -- of

10

11

commercial -- of advertising revenue of 500,000 a

11

12

year, so regardless of whether the 50/50 split ads up

12

13

to 41,666.67 a month, SMART is entitled to that

13

million dollars constitute as a portion of SMART's

14

minimum guarantee, and so at the end of the month the

14

budget?

15

billings for advertising are reviewed, they are

15

16

divided in half because SMART is entitled to half, and

16

17

then compared against the guarantee, and it's at that

17

to give you an accurate number, but our budget is

18

point that it's determined if additional payment

18

approximately -- if you want an approximation, our

19

beyond the $41,666.67 needs to be made as a match up

19

budget is approximately 130 million dollars a year.

20

for the previous month.

20

21

Q. And so the audit is done monthly as opposed to yearly;
is that correct?

A. That's correct.
Q. Do you know how much of the total budget for SMART the
revenue generated through advertising is part of?
MR. HILDEBRANDT: How much does that half a

MR. MUISE: Yes.
A. I would have to look over the fiscal year 2010 numbers

MR. MUISE: You know, it's 4:00 o'clock.

21

Let's take a ten minute break because I need to clean

22

up here, take a look and see what other wrap-ups I

23

A. It's done at the end of every month, and I believe

23

have got.

24

it's pursuant to contract that it's done within the

24

MR. HILDEBRANDT: All right.

25

first couple of weeks of the following month.

25

MR. MUISE: Actually let's make it 15

22

Pages 173 to 176

ANTHONY CHUBB
May 21, 2013
Page 177

Page 179

1

minutes, because the time I spend here figuring out

1

individual who is the speaker of the message wouldn't

2

further will be well spent, so let's come back in 15

2

be a basis for restricting the -- making a restriction

3

minutes.

3

under the content based regulations; is that correct?

4

(Recess taken at 3:59 p.m.)

4

A. That's correct.

5

(Back on the record at 4:19 p.m.)

5

Q. And you're referring to here about crossing the line,

6

MARKED FOR IDENTIFICATION:

6

so at some point looking at the content you would have

7

DEPOSITION EXHIBIT 36

7

to determine whether, for example, in the context of

8

4:19 p.m.

8

the get out the vote drive, whether it's a get out the

9

vote drive that's not a political statement to a point

9
10

BY MR. MUISE:
Q. Here is what has been marked as Exhibit Number 36,

10

where it crosses the line into becoming a political
statement in contravention of the content based

11

which is a document produced by SMART in the document

11

12

production. If you take a minute and look at this,

12

13

I'm assuming you have seen this e-mail before?

13

regulations?
A. Correct.

14

A. Yes.

14

15

Q. In the first sentence it says typically get out the

15

BY MR. MUISE:

MR. HILDEBRANDT: Or political campaign?

vote drives are not political, do you see that?

16

Q. Or political campaign?

17

A. Yes.

17

A. Correct. I was saying generally crosses the line and

18

Q. Is that in reference to the content restrictions that

18

violates section 5.07 here where it was talking about

19

the political or political campaign subsection of the
content restriction policy.

16

19

we have been referring to?

20

A. That's correct.

20

21

Q. And would SMART agree with that statement?

21

MARKED FOR IDENTIFICATION:

22

A. Yes, with the understanding that by get out the vote

22

DEPOSITION EXHIBIT 37

23

drives, I mean drives that encourage participation in

23

24

the voting process only.

24

BY MR. MUISE:

25

Q. Handing you what has been marked as Exhibit Number 37.

25

Q. I understand. Was there an actual advertisement that

4:23 p.m.

Page 178

Page 180

1

was associated with this e-mail where a decision had

1

And on top this appears to be an e-mail from Anthony

2

to be made whether it was accepted or rejected?

2

Chubb to Beth Gibbons, cc's Elizabeth Dryden and Avery

3

Gordon dated January 13, 2010, and I will represent to

4

you this was a document that was produced by SMART in

5

their production. I'm assuming you have seen this

3
4
5

A. I don't believe there was any ad copy of attached to
this, it was a general question.
Q. And in reference to your prior response, it says here

e-mail prior to today?

6

targeted get out the vote drives paid for by

6

7

politicians could very well cross the line. Is that a

7

A. Yes.

8

statement that SMART would agree with?

8

Q. And this is in reference to the atheist advertisement
that we have been discussing earlier in the

9

A. Again, just because I'm kind of using shorthand, but

9

10

consistent with what I previously said, if get out the

10

11

vote that encourages political participation goes to

11

A. That's correct.

12

support a candidate would cross the line as with

12

Q. And in this e-mail again the similar phrase is used

13

regard to section 5.07 of the contract, yes.

13

14

Q. What if it was just endorsed by a political party

14

deposition; is that correct?

about crossing the line and making political
statements, do you see that?

15

encouraging people to go out and vote, would that

15

A. Yes.

16

cross the line?

16

Q. So at some point there is some line between an

17

MR. HILDEBRANDT: Endorsed in what way?

17

advertisement, in this case atheist advertisement,

18

MR. MUISE: Get out the vote, paid for by

18

where it may cross the line into political, but in

19

this case it was on the accepted side of the line; is

19

the Democrat party.

20

A. I would really have to review the document. If it's

20

21

generally solely the source of funding it would not

21

22

impact the review of the four corners of the document,

22

23

of the advertising copy.

23

24

BY MR. MUISE:

24

25

Q. So whoever the actual either company, organization or

25

that correct?
A. This is shorthand, and I note that I'm referencing a
conversation that we had, but -Q. And in that case I, you are referring to Anthony
Chubb? We have been very careful at SMART -A. Yes, it was a conversation that Beth Gibbons, Anthony

Pages 177 to 180

ANTHONY CHUBB
May 21, 2013
Page 181

Page 183

1

Chubb and Avery Gordon had, and this was referring to

1

2

and confirming it, confirming that conversation, and

2

BY MR. MUISE:

3

so I do state we do have to continue being very

3

Q. Handing you what has been marked as Exhibit Number 39.

4

careful on this issue and in making the determination

4

And again this is a document that was produced by

5

of whether proposed advertisements are simple

5

SMART and it appears to be referring to lung, the lung

6

information items or cross the line and make political

6

7

statements.

7

A. If you just give me one moment.

4:28 p.m.

cancer advertisements; is that a fair assessment?

8

Q. Is that a statement that SMART would agree with?

8

Q. Absolutely. Do you know if the e-mail is referring to

9

A. This is again shorthand for a much longer

9

the lung cancer advertisements that we have seen

10

conversation. We in the conversation --

10

MR. HILDEBRANDT: Be careful not to violate

11
12
13
14

previously?
Q. And those were Exhibits 30 and 31?

13

A. I believe that that's correct.

14

conversation.

A. I believe that it is, yes.

12

privilege.
A. -- which is privileged, it's confirming that

11

Q. And I believe you testified that those weren't

15

BY MR. MUISE:

15

16

Q. I understand, but I'm just asking this statement here,

16

rejected, they just might not have run on the SMART ad
space, right?

17

would this be a statement that SMART would agree with?

17

A. Correct.

18

A. Simple information items is too vague. Everything has

18

Q. So they didn't themselves, did not violate the content

19

to be reviewed against section 5.07. If the simple

19

restrictions?

20

information items that I reference don't violate

20

A. That's correct.

21

section 5.07 in any other way, yes, they do post.

21

MARKED FOR IDENTIFICATION:

22

MARKED FOR IDENTIFICATION:

22

DEPOSITION EXHIBIT 40

23

DEPOSITION EXHIBIT 38

23

24

4:26 p.m.

24

BY MR. MUISE:

25

Q. Here is what has been marked as Exhibit Number 40.

25

BY MR. MUISE:

4:30 p.m.

Page 182

Page 184
And Exhibit 40 was a document produced by SMART as

1

Q. Handing you what is marked Exhibit Number 38. Again

1

2

this is a document that was produced pursuant to the

2

3

document production, and do you recognize this e-mail,

3

A. Okay.

sir?

4

Q. Do you recognize this e-mail string, in particular the

4

part of their document production?

very first e-mail?

5

A. I do recognize the e-mail.

5

6

Q. Do you know what the -- well, if you look at the top

6

A. Yes.

7

e-mail, it says this decision turns on whether the

7

Q. Do you know if there is anything in that e-mail, the

8

proposed advertisement is "obscene" in quotes per

8

9

section 5.07. Do you know what specific advertisement

9

10
11
12
13

this is referring to?
A. I don't have an independent recollection of what the
ad copy looked like.
Q. Do you know if it's referring to the television show

10
11
12

top e-mail that SMART disagrees with?
MR. HILDEBRANDT: Doesn't the e-mail just
simply say there are outstanding issues?
A. I don't think SMART would agree with the analysis set
forth under the number 1.

13

BY MR. MUISE:

14

Q. All of it or part of it or --

15

A. Based upon the e-mail, it does appear that that's

15

A. This is referencing a different post than we

16

correct, but this had an image attached which, I

16

previously spoke about for Red Dead Redemption, first

17

presume based on my e-mail, which I don't recall.

17

of all, but I don't believe that SMART would agree
with generally any of it, although it's a different

14

My Generation?

18

Q. Do you know or do you have any recollection of whether

18

19

or not an advertisement by My Generation was run on

19

post which I don't have in front of me to review.

20

SMART buses?

20

Q. Would SMART disagree with this last sentence, further
once we open the door to this type of content it's

21

A. I don't believe that one was.

21

22

Q. Do you know if one was rejected or just not proposed?

22

23

A. I don't believe that one was rejected.

23

A. I think that's privileged.

permanently opened under this contract?

24

MARKED FOR IDENTIFICATION:

24

Q. Okay. Let me ask you this, at the end of number 3, it

25

DEPOSITION EXHIBIT 39

25

it has Marijuana University. Do you know did SMART

Pages 181 to 184

ANTHONY CHUBB
May 21, 2013
Page 185
accept any advertisements from Marijuana University?

Page 187
1

2007 e-mail, at least according to the date on this

2

A. It did not.

2

e-mail. I want to direct your attention to the second

3

Q. Did SMART reject any advertisements from Marijuana

3

line of this e-mail, and it says quote, "to reject

4

it," referring to an advertisement, "based solely upon

1

4

University?

5

A. It's my recollection that SMART did.

5

the company that is making the proposal would

6

Q. Do you know on what basis those advertisements were

6

certainly be questionable constitutionally speaking,"

7

rejected?

7

8

A. I would have to go back and confer with other people

9

related to that determination because as I think about

A. Yes.

9

Q. Does SMART agree with that statement?

10

it further, I don't believe we formally rejected that

10

11

advertisement for whatever reason by the time -- for

11

12

whatever reason a rejection wasn't necessary. They

12

13

weren't interested in posting.

13

14

MR. MUISE: And counsel can perhaps correct

end quotes, do you see that?

8

A. Insofar as that is outside of the advertising
guidelines, yes.
Q. What do you mean it's outside of the advertising
guidelines?

14

A. If this was based solely upon the company making the

15

me. I don't recall seeing any advertisements for

15

proposal and not based upon the guidelines in section

16

Marijuana University in any of the productions; is

16

5.07 of the contract, which was not in effect at the

17

that right?

17

time this e-mail was written, it would be

18

MR. HILDEBRANDT: My understanding is that

18

19

no graphic was conveyed, that this was based upon a

19

20

conversation from Hawkins to Beth about the potential

20

21

for such advertisements but then nothing was submitted

21

to SMART for formal review.

22

22
23

BY MR. MUISE:

23

24

Q. Is that SMART's recollection?
A. Yes, going through this, that's consistent with it,

25

2008 guidelines?
A. Yes.
MR. HILDEBRANDT: He was applying the 2008

24

25

inappropriate.
Q. And would it be inappropriate as well today after the

guidelines.
MR. MUISE: I thought he was referring to
in -- this was before 2008. I just want to make sure

Page 186

Page 188
that we are clear on this.

1

the medical marijuana issue, they approached CBS, but

1

2

it didn't go any further than that, so no ad copy was

2

BY MR. MUISE:

ever submitted for approval.

3

Q. So the statement in 2007 would hold true today after

4

the 2008 guidelines that we are referring to here in

3
4

Q. Has SMART taken any position on whether it would

Exhibit 41, correct?

5

accept or not accept ad copy from Marijuana

5

6

University?

6

A. Yes.

7

Q. I'm going to ask you a question that was posed by

7
8
9
10

MR. HILDEBRANDT: Formally?
A. I would have to review the advertisement itself. If
it met with section 5.07 content restrictions, it
would be approved.

8

counsel to my client in reference to your policy, in

9

particular Exhibit -- excuse me, section number 4 of

10

the advertising guidelines which prohibits clearly

11

BY MR. MUISE:

11

defamatory or likely to hold up to scorn or ridicule

12

Q. Okay. So there hasn't been -- there hasn't been a

12

any person or group of persons, and you are familiar

13

determination one way or another because nothing --

13

with that section, correct, sir?

14

A. Nothing has been submitted for review.

14

A. Correct.

15

Q. Okay. But it's not like SMART would automatically

15

Q. So an advertisement that said Hindus are Heretics,

16

reject an advertisement from Marijuana University, you

16

would that be prohibited under that provision of the

17

still have to review the individual advertisement?

17

18

A. Correct.

18

advertising guidelines?
A. I would think that would be speculative, but I would
have to review the entire ad to be able to make such a

19

MARKED FOR IDENTIFICATION:

19

20

DEPOSITION NUMBER 41

20

21

4:37 p.m.

21

Q. So that content alone wouldn't -- that message alone
wouldn't violate the advertising guidelines 5.07 B 4?

determination.

22

BY MR. MUISE:

22

23

Q. This is Exhibit Number 41. This is a document that

23

MR. HILDEBRANDT: I'm going to object to

24

was produced by SMART pursuant to its document

24

the form of the question. He didn't say that at all.

25

production. And I understand this was a March 13,

25

MR. MUISE: Well, I'm asking him.

Pages 185 to 188

ANTHONY CHUBB
May 21, 2013
Page 189
1

BY MR. MUISE:

2

Q. That message standing alone, you can't make a

3

determination whether that message violates the

4

content restriction 5.07 B 4 on your guidelines?

5

A. I would have to have a definition of heretics.

6

Q. Okay. How about Islam is a religion of violence,

7

would that be a prohibited content under the 5.07

8
9

advertising -- 5.07 B 4?
A. Yes, it would be impermissible under section 5.07 B 4.

10

Q. And if the advertisement said Islam is a religion of

11

peace, would that be prohibited under the content

12

based restrictions?
MR. HILDEBRANDT: Any of the content based

13
14

restrictions or just number 4?
MR. MUISE: Any of them.

15
16

A. That seems quite speculative, but insofar as it was

17

taking a political or making a political statement

18

with regard to Islam, it would be a violation of 5.07.

19

BY MR. MUISE:

20

Q. What about with regard to the section 4, would it

21
22
23

violate section 4?
A. It doesn't appear on its face that saying Islam is a
religion of peace, is that the proper --

24

Q. Yes.

25

A. -- and would be clearly defamatory or likely to hold

Page 191
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8
9
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AMERICAN FREEDOM DEFENSE
INITIATIVE; et al,
Plaintiffs,
vs.

Case No. 2:10-cv-12134-DPH-MJH

SMART,
Defendants.

VERIFICATION OF DEPONENT
I, having read the foregoing deposition
consisting of my testimony at the aforementioned time
and place, do hereby attest to the correctness and
truthfulness of the transcript.

_____________________________
ANTHONY CHUBB
Dated:

Page 190

Page 192

1

up to scorn or ridicule any person or group of

1

2

persons, but you have to understand you are doing this

2

3

lightning round style, and I have explained a process

3

4

that all of these advertisements go through that have

4

5

a multitude of people intake, sometimes several days,

5

6

and certainly several hours, so you are asking for a

6

7

quick response, rapid fire style, and you are not

7

8

going to -- its virtually impossible to recreate an

8

9

answer that would have come out of the process that I

ERRATA SHEET
PAGE LINE READS

PAGE LINE SHOULD READ

9

10

have explained in detail during this deposition.

10

11

Q. All I'm asking for is sworn testimony from SMART on

11

12

its application of its policy, and you are the person

12

13

who has been designated, sir.

13

14
15
16
17
18
19
20
21

MR. HILDEBRANDT: And he has just told you
he can't do it.
MR. MUISE: Well, I believe he answered the
questions.
I think that's a wrap. I have no further
questions.
MR. HILDEBRANDT: I have no questions. We
are going to read and sign.

14
15
16
17
18
19
20
21

22

MR. MUISE: All right.

22

23

(Deposition concluded at 4:42 p.m.

23

24
25

Signature of the witness was requested.

24

Anthony Chubb

25

Dated:

Pages 189 to 192