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

Filing 65

REPLY to Response re 58 MOTION for Summary Judgment filed by All Plaintiffs. (Muise, Robert)

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

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

ISSUES PRESENTED
I.

Whether Defendants created a public forum for the expression of a

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

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

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

Whether Defendants’ advertising “guidelines” facially and as applied

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

Whether Defendants’ advertising “guidelines” facially and as applied

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

i

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

ii

As Defendants’ response brief makes painfully clear, SMART’s incoherent
advertising “guidelines”—which provide no objective guide whatsoever as
required by the Constitution—force Defendants into making incoherent arguments
and resorting to red-herrings1 in a feckless attempt to justify their prior restraint on

1

In their response, Defendants claim that Plaintiffs have misrepresented the record.
(Defs.’ Resp. at 1-2). Plaintiffs will address these impertinent and demonstrably
false claims by way of this footnote. First, Defendants state, “Plaintiffs appear to
argue . . . that Ms. Gibbons had decision-making authority during [relevant] time
periods . . . .” (Defs.’ Resp. at 1 [asserting that “Plaintiffs know this to be
untrue.”]). To be clear, this is not an “argument”; it is a fact based on SMART’s
testimony. (See, e.g., SMART Dep. at 16 [“Q: Does Beth Gibbons have any role at
SMART with regard to the application of any policies that would apply as to
whether or not an advertisement will be accepted or rejected by SMART? A. Yes.
* * * Q: Does she have authority to make determinations [i.e., ‘whether there is a
violation of the policy and the advertising restriction content’] on her own? A.
Yes.” (emphasis added)] [Doc. 58-5]; see also Gibbons Dep. at 23 [“Q: But you
have authority to make a determination to run an ad or not run an ad; isn’t that
correct? A. I could.”], see also 15-16 [Doc. 58-7]).
Next, Defendants claim that “Plaintiffs also mischaracterize their
relationship with CBS Detroit (sic) with respect to this Leaving Islam ad,” claiming
further that Plaintiffs “are intentionally misleading the Court” by stating that
Plaintiffs “entered into a contract through SMART’s advertising agent to run the
advertisement.” (Defs.’ Resp. at 2). Not only do these remarks by Defendants’
counsel warrant sanctions by this court, they are incorrect as a matter of fact.
Indeed, in her declaration filed in support of Plaintiffs’ motion for preliminary
injunction, Plaintiff Geller set forth in detail the facts demonstrating that an
agreement had been entered into with CBS Outdoor to run the “Leaving Islam”
advertisement on SMART’s buses (n.b., Plaintiff Geller’s declaration filed in
support of Plaintiffs’ motion for summary judgment was a simple reaffirmation of
this undisputed fact). In her declaration, Plaintiff Geller testified, in relevant part,
as follows:
On or about May 12, 2010, I emailed Mr. Hawkins and asked him to modify
the CBS-FDI Agreement-Detroit to have the Advertising placed on SMART
buses running in the Detroit metropolitan area for the existing contract price,
which FDI had already paid. By return email the next day, Mr. Hawkins
1

Plaintiffs’ speech. Unfortunately for Defendants, in doing so, they concede the
very points they are attempting to rebut.
Defendants argue that SMART’s advertising “guidelines” are not what
Plaintiffs claim in their motion. (See Defs.’ Resp. at 5-6). Yet, Defendants cite to
the very same testimony in support of their opposition (i.e., that “political” means
“any advocacy of a position of any politicized issue” and that “politicized” means
“if society is fractured on an issue and factions of society have taken up positions
on it that are not in agreement, it’s politicized.”). (SMART Dep. at 41 [Doc. 585]) (emphasis added). Thus, it is impossible—and, indeed, utterly dishonest—for
Defendants to argue with a straight face that this definition of “political” means
anything but contentiousness (or controversy).2 See, e.g., http://www.merriam-

confirmed the request and that he had sent our Advertising copy to his
contact at SMART for approval. Our Advertising request met all of the
procedural requirements for running an advertisement on the SMART buses.
See a true and correct copy of the emails between Mr. Hawkins and me
switching the Advertising from DDOT to SMART attached as Exhibit I and
incorporated herein by this reference.
(Geller Decl. at ¶ 15, Ex. I, [Doc. 8-2]) (emphasis added). Indeed, Defendants
admit that CBS Outdoor is their agent. Defendants admit that CBS Outdoor
contracts for advertising on behalf of SMART. And Defendants admit that Robert
Hawkins is an employee of CBS Outdoor who, as an agent for SMART, contracts
for advertising on SMART’s buses. (SMART Dep. at 17 [Doc. 58-5]).
2
Defendants’ reference to the decision in Coleman v. Ann Arbor Trans. Auth., No.
11-CV-15207, U.S. Dist. LEXIS 78100 (E.D. Mich. June 4, 2013), in which the
court upheld the rejection of an advertisement that was “critical of Israel” under a
“no political ads” provision is not helpful to their position. It is not objectively
unreasonable to conclude that an advertisement critical of Israel—a sovereign
nation—is an advertisement that includes political content.
See
2

webster.com/dictionary/contentious (defining “contentious” as “likely to cause
disagreement”) (i.e., tak[ing] up positions . . . that are not in agreement).
But Defendants go a step further into the abyss. They admit—as they must
based on the facts—that, despite their definition of “political,” their advertising
“guidelines” actually permit the display of contentious and controversial public
issues.3 (See, e.g., Defs.’ Resp. at 7 [admitting that “to the extent these ads are

http://www.merriam-webster.com/dictionary/political (defining “political” as “of
or relating to government, a government, or the conduct of government”). Under
SMART’s rendering of “political,” however, a government official would have to
make a subjective and arbitrary determination as to whether some vague,
amorphous, and indeterminate “faction” of society has taken up a position that is
not in agreement with the position taken up by some other vague, amorphous, and
indeterminate “faction” of society with regard to the official’s perception of the
advertisement’s message to determine whether it is “politicized”—i.e., not simply
“political” in its content (Note: It is the government official’s arbitrary perception
of the advertisement’s message that matters as evidenced by the way in which
Defendants seek to impute a message that does not appear in Plaintiffs’ “Leaving
Islam” advertisement [i.e., arguing that the message is advocating a position with
regard to the implementation of sharia law in the U.S.] and then turn a blind eye to
the message conveyed by the “StatusSexy” advertisement campaign [i.e., arguing
that the advertisement no way “encourages or advocates sex at all, let alone
between men”] (see Defs.’ Resp. at 11-12).
3
Any effort on the part of Defendants to claim that they only permit “commercial”
advertisements and not “public issue” advertisements is feckless in the extreme.
(See Defs.’ Resp. at 8 [falsely asserting that “Plaintiffs cannot show that SMART
has accepted any . . . public-issue advertisements”]). The “Don’t believe in God?”
atheist advertisement, the “Knowing your HIV status before you get down. That’s
SEXY” advertising campaign, the “Put Yourself First, Plan First, Have a baby
when the time is right for you” free birth control advertisement, the “Feeling Lost?
Find Your Path!” Christian advertisement, the “After You Have A Lung Removed,
Take Short Breaths” stop-smoking advertising campaign, and a host of other
advertisements are “public issue” advertisements. Period. They are not, as a
matter of fact and law, “innocuous and less controversial commercial”
3

controversial, that was not a determining factor in SMART’s decision-making
process”).

Thus, perhaps unwittingly, Defendants now concede that their

advertising space is a designated public forum for Plaintiffs’ “Leaving Islam”
advertisement. And this point is underscored by the very case that Defendants
claim is controlling on this issue: Lehman v. City of Shaker Heights, 418 U.S. 298,
304 (1974), in which the Court found that the 26-year, consistently enforced ban
on noncommercial advertising was consistent with the government’s role as a
proprietor precisely because the government “limit[ed] car card space to
innocuous and less controversial commercial and service oriented advertising.”
(emphasis added).
Other courts, including the Sixth Circuit,4 see United Food & Commercial
Workers Union, Local 1099 v. Sw. Ohio Reg’l Transit Auth., 163 F.3d 341, 355
(6th Cir. 1998) (hereinafter “United Food”) (“Acceptance of political and publicissue advertisements, which by their very nature generate conflict, signals a
willingness on the part of the government to open the property to controversial
advertisements. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y.,
447 U.S. 557, 561 (1980) (defining commercial speech as “expression related
solely to the economic interests of the speaker and its audience”) (emphasis added).
4
As Defendants acknowledge in their response, the Sixth Circuit in Am. Freedom
Def. Initiative v. Suburban Mobility Auth. for Reg’l Transp., 698 F.3d 885 (6th Cir.
2012), is in accord with this conclusion, stating in the opinion the following: “An
outright ban on political advertisements is permissible if it is a ‘managerial
decision’ focused on increasing revenue to limit advertising ‘space to innocuous
and less controversial commercial and service oriented advertising.’” Id. at 892
(quoting Lehman, 418 U.S. at 304) (emphasis added); (see Defs.’ Resp. at 9-10).
4

speech, which the Court in Lehman recognized as inconsistent with operating the
property solely as a commercial venture.”) (emphasis added), have followed
Lehman to hold that a total ban on noncommercial speech may be consistent with
the government acting in a proprietary capacity and have thus found transportation
advertising space to be a nonpublic forum when the government “consistently
promulgates and enforces policies restricting advertising . . . to commercial
advertising.” Children of the Rosary v. City of Phoenix, 154 F.3d 972, 978 (9th
Cir. 1998); see also N.Y. Magazine, 136 F.3d at 130 (“Disallowing political
speech, and allowing commercial speech only, indicates that making money is the
main goal. Allowing political speech, conversely, evidences a general intent to
open a space for discourse, and a deliberate acceptance of the possibility of clashes
of opinion and controversy that the Court in Lehman recognized as inconsistent
with sound commercial practice.”) (emphasis added).
As the Sixth Circuit stated, a forum analysis “involve[s] a careful scrutiny of
whether the government-imposed restriction on access to public property is truly
part of the process of limiting a nonpublic forum to activities compatible with the
intended purpose of the property.” United Food, 163 F.3d at 351-52 (internal
quotations and citation omitted) (emphasis added). Courts will hold “that the
government did not create a public forum only when its standards for inclusion and
exclusion are clear and are designed to prevent interference with the forum’s
5

designated purpose.” Id. at 352 (emphasis added). Thus, permitting speech on
exceedingly controversial, public issues—including speech on issues that cause
vandalism to SMART’s buses and that SMART’s own bus drivers object to by
refusing to drive the buses on which the advertisements are posted (we refer here
to the atheist advertisement) (Gibbons Dep. at 29 [Doc. 58-7])—creates a public
forum as a matter of fact and law. See Grace Bible Fellowship, Inc. v. Maine Sch.
Admin. Dist. No. 5, 941 F.2d 45, 47 (1st Cir. 1991) (noting that when conducting a
forum analysis, “actual practice speaks louder than words”). Consequently, as
Defendants now tacitly acknowledge in their response, they have “created a forum
that is suitable for the speech in question . . . .” Christ’s Bride Ministries, Inc. v.
Southeastern Pa. Transp. Auth., 148 F.3d 242, 252 (3d Cir. 1998).
Thus, having conceded the forum issue, the analysis as to whether
Defendants’ as applied rendering of their advertising “guidelines” comports with
the constitutional requirements that the speech restriction (1) be “reasonable,” see
Perry Educ. Ass’n v. Perry Local Educators, 460 U.S. 37, 46 (1983) (stating that
speech restrictions in a nonpublic forum must be “reasonable and not an effort to
suppress expression merely because public officials oppose the speaker’s view”);
(2) not “offend[] the First Amendment” by “grant[ing] a public official unbridled
discretion such that the official’s decision to limit speech is not constrained by
objective criteria, but may rest on ambiguous and subjective reasons,” United
6

Food, 163 F.3d at 359 (internal quotations and citation omitted) (emphasis added);
and (3) viewpoint neutral—an analysis under which Defendants’ prior restraint on
Plaintiffs’ speech fails miserably as to all three5—is somewhat beside the point
because the admittedly content-based restriction on Plaintiffs’ speech (SMART
Dep. at 18 [Doc. 58-5]), violates the First Amendment as a matter of law, see,
Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 800 (1985) (holding
that “[s]peakers can be excluded from a public forum only when the exclusion is
necessary to serve a compelling state interest and the exclusion is narrowly drawn
to achieve that interest”); Rosenberger v. Rector & Visitors of the Univ. of Va., 515
U.S. 819, 828 (1995) (“It is axiomatic that the government may not regulate speech
based on its substantive content or the message it conveys.”).
CONCLUSION
Plaintiffs respectfully request that this court grant their motion and enter
judgment in their favor on all claims as a matter of law.
Respectfully submitted,
AMERICAN FREEDOM LAW CENTER
/s/ Robert J. Muise
Robert J. Muise, Esq.
/s/ David Yerushalmi
David Yerushalmi, Esq.

5

See also Pls.’ Resp. in Opp’n to Defs.’ Mot. for Summ. J. at 27-39 (Doc. 63).
7

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

8

CERTIFICATE OF SERVICE
I hereby certify that on September 17, 2013, a copy of the foregoing was
filed electronically. Notice of this filing will be sent to all parties for whom
counsel has entered an appearance by operation of the court’s electronic filing
system. Parties may access this filing through the court’s system.
AMERICAN FREEDOM LAW CENTER
/s/ Robert J. Muise
Robert J. Muise, Esq. (P62849)

9