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

Filing 66

REPLY to Response re 57 MOTION for Summary Judgment in favor of Defendants filed by Beth Gibbons, John Hertel, Suburban Mobility Authority For Regional Transportation (SMART). (Attachments: # 1 Index of Exhibits, # 2 Exhibit Exhibit A - RefugeFromIslam.com website print, # 3 Exhibit AFLC blog/website print) (Hildebrandt, Christian)

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

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

DEFENDANTS’ REPLY BRIEF IN
SUPPORT OF MOTION FOR
SUMMARY JUDGMENT [D# 57]

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

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

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

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

DEFENDANTS’ REPLY BRIEF IN SUPPORT OF DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DOCKET NO. 57]
TABLE OF CONTENTS

Argument................................................................................................................. 1
1. There is no genuine issue of material fact that Plaintiffs’ message in their
advertisement, in their website RefugeFromIslam.com, and in their mission is
political, even if the topic is also related to religion. .............................................. 1
2. Plaintiffs conflate issues and create facts that are not in the record to make
their arguments; when these errors and misrepresentations are corrected, the
arguments are shown to be without merit ............................................................... 3
3. Defendants’ restrictions, for all of the reasons stated before, do not violate the
Equal Protection Clause of the U.S. Constitution................................................... 7

ii

STATEMENT OF MOST
CONTROLLING AND APPROPRIATE AUTHORITY
Defendants hereby assert that the most controlling and appropriate authority
necessary for the resolution of Defendants’ Motion for Summary Judgment is as
follows:

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

iii

TABLE OF AUTHORITIES
Cases
Amer. Freedom Def. Init. v Suburban Mobility Auth for Reg. Trans., 698 F.3d 885
(2012) ...........................................................................................................................2

iv

ARGUMENT
1.

There is no genuine issue of material fact that Plaintiffs’ message in
their advertisement, in their website RefugeFromIslam.com, and in
their mission is political, even if the topic is also related to religion.
It is astounding that, in its response, Plaintiffs still argue that their message,

as embodied in the proposed advertisement, and in the website that the
advertisement refers to, is not political. As Plaintiffs seek to put this issue “to
rest,” it is important to note that Plaintiffs and Plaintiffs’ counsel regularly take the
position in other forums that their entire mission, as an organization, is political.
Plaintiff, Pamela Geller acknowledged in her deposition that her initiative,
Stop the Islamisation of America 1 (“SIOA”), is an “arm of AFDI,” and that the
transit ads run by the Plaintiffs are run “in tandem” as a joint initiative of AFDI
and SIOA. (Docket No. 57, Exhibit O, Deposition of Pamela Geller, at pp. 44-45).
The website, RefugeFromIslam.com, prominently features the SIOA logo, with an
invitation to join SIOA, demonstrating that SIOA is behind the initiative. (Exhibit
A).
Based upon this, Defendants assert that Plaintiffs are arguing this point in
bad faith. Counsel for the Plaintiffs know and in fact have argued that SIOA exists
1

Although counsel spells “Islamization” with a “z,” the organizational name for
SIOA spells the word, “Islamisation.” It is presumed that this spelling was
intended to mirror the more European spelling of the term in the name of the
organization Stop the Islamisation of Nations (“SION”). Either way, Microsoft
Word does not recognize the word in its spelling dictionaries.
1

to protect against the creep of Sharia Law in American society. In a webpage
printed from the website of the American Freedom Law Center, 2 reporting on other
issues faced by the Plaintiffs in other forums, counsel for the Plaintiffs discuss
their appeal of a ruling from the Trademark Trial and Appeal Board (“TTAB”).
That ruling disallowed trademark protection for SIOA. The original ruling was
based on the finding that the name of the organization was disparaging to Muslims
and linked Muslims to terrorism. In their appeal brief in that matter, as reported by
Plaintiffs’ counsel, Plaintiffs Geller and Spencer argued that “‘Islamisation’ is the
process of implementing sharia into a society in order to convert that society to a
sharia-compliant Islamic state.” (Exhibit B).
Addressing sharia law in America is precisely what the Sixth Circuit held, in
this case, was the nature and message of Plaintiffs’ advertisement. Amer. Freedom
Def. Init. v Suburban Mobility Auth for Reg. Trans., 698 F.3d 885, 894-96 (2012).
Further, it is what Plaintiffs’ counsel recognizes to be the message conveyed by the
putative trademark “SIOA.” In this regard, commenting on the decision of the
TTAB, Mr. Yerushalmi stated:
The TTAB’s opinion upholding the USPTO’s rejection of the mark
was forced to bend itself into a pretzel to get around the only evidence
in the record. The term ‘Islamisation’ is a political movement—not
religious conversion—and it can be traced to the Muslim
Brotherhood, where it is found in their own documents advocating
‘civilizational jihad.’ Furthermore, the term is used frequently in
2

The law firm representing Plaintiffs
2

professional and academic contexts. Therefore, ‘stopping
Islamisation’ and linking this doctrine to terrorism does implicate
good, patriotic, loyal Muslims in America; instead, it is an important
educational tool that raises awareness about those who seek the
demise of our constitutional Republic through a sharia-based political
process.
(Exhibit B, pp. 1-2). Robert Muise also commented as follows:
It is crucial that Americans understand the threat that our Nation faces
from sharia-adherent Islam, especially from stealth jihadists who
covertly seek to perpetuate sharia into American society. This
trademark does exactly that.
(Exhibit B, p. 2). The trademark, and mission of SIOA, an arm of the Plaintiffs, is
to protect America’s constitutional Republic from the creep of sharia-compliant
law promoted by stealth jihadists. SIOA runs this ad in tandem with the Plaintiffs
and is prominently featured on the referred-to website.
Aside from admissions in their Complaint and Declarations, Plaintiffs argue
that their message is political to everyone but this Court; here, when they face a
valid content restriction, they change their tune. Defendants’ counsel asks: What
could be more political than Plaintiffs’ message?
2.

Plaintiffs conflate issues and create facts that are not in the record to
make their arguments; when these errors and misrepresentations are
corrected, the arguments are shown to be without merit.
For all of Plaintiffs’ argument about cavils and tautologies, it is the Plaintiffs

who have manufactured facts and misstated the record to this Court, often talking
out of both sides of their mouth, to argue their case. This section of the reply brief
3

will attempt to address some of these issues in a coherent manner to allow the
Court to see them in the light of day.
Plaintiffs’ argument
1. Plaintiffs spend a considerable
amount of time arguing that Ms.
Gibbons was the decision-maker at
SMART and applied the guidelines
improperly.

Actual record facts
Ms. Gibbons did not make the decision
to reject Plaintiffs’ advertising, as stated
by the Defendants from the very
beginning, before this Court, at the
inception of this case, SMART
informed the Court that it was the
General Manager, John Hertel, who
made the decision to reject the
advertisement. Ms. Gibbons personal
testimony about what she reviewed or
considered is immaterial. Inexplicably,
Plaintiffs never requested Mr. Hertel’s
deposition, and prefers instead to
attempt to impute Ms. Gibbons’
testimony to him vicariously.
Ms. Gibbons was not, at the relevant
times, a decision-maker relative to the
advertising policy and instead answered
to her supervisor, Elizabeth Dryden
throughout the relevant times. In either
case, however, it was John Hertel,
General Manager of SMART, who
made the decision to reject Plaintiffs’
ad, and not Ms. Gibbons or Ms. Dryden.
In fact, the decision to accept the atheist
ad, which is not violative of SMART’s
content policy, was also made by the
then-General Manager.
This is factually untrue. While Ms.
Gibbons was aware of the Miami Dade
article, she became aware of it some
weeks before Plaintiffs even submitted
the at-issue advertisement. She was
aware of the controversy, but she never
testified that it was the reason why the

2. In the same vein, Plaintiffs continue
to argue that Ms. Gibbons previous
personal testimony is binding on
SMART despite the ruling of the Sixth
Circuit that her personal observations
and beliefs were not binding. Further,
Plaintiffs argue that Ms. Gibbons was a
director-level employee whose personal
courtroom testimony was binding.

3. Plaintiffs argue that Ms. Gibbons
relied on the Miami Dade article to
reject the advertisement.

4

ad was rejected.
This is important because while a
controversy over an issue may trigger a
review of the advertisement to
determine if the ad touches a politicized
issue, the existence of a controversy has
no bearing on whether the advertisement
is allowable under the policy. In this
regard, see the extensive discussion on
this point in Defendants’ Response to
Plaintiffs’ Motion for Summary
Judgment.
In addition, Ms. Gibbons did not make
the decision to reject the ad. This is just
a red herring introduced by Plaintiff’s
counsel.
This is an example of Plaintiffs talking
out of both sides of their mouths. In
order to avoid admitting the obvious—
that the ad is political—Plaintiffs
instead try to characterize it in several
different ways. Then they argue it can’t
be these and political (see next note).

4. Plaintiffs argue in some places in
their brief that the ad concerns religion
and in others that it expresses concern
for the safety of Muslim girls.
Plaintiffs’ deny that their advertisement
is political or a public-issue ad
seemingly because they believe it
cannot be both.
5. Plaintiffs repeatedly distinguish their
ad as religious, and therefore not
political. Plaintiffs appear to take the
position that these are mutually
exclusive categories and cannot overlap.
(Interestingly, later in the brief and in
exhibits, they also point out that
Muhammad was a “political” figure in
history.)
6. Plaintiffs argue that “the
advertisement says what it says” (Dkt.
63, p. 6, n. 6) but then ignore that the
referred-to website also “says what it
says.”

The Sixth Circuit recognized, in this
case, that Plaintiff’s message was both
religion-based and politicized. 698 F.3d
at 895. As a politicized public issue,
regardless of whether it touches on
religion or other issues, it is prohibited
by SMART’s policy.

The website, RefugeFromIslam.com, as
shown in Argument 1 herein and in the
Defendants’ Motion for Summary
Judgment, contains extensive political
commentary and concerns, primarily,
5

the politicized issue of the application of
Sharia law in America. The Sixth
Circuit recognized that SMART was
entirely reasonable in its analysis of the
issue and the ad and related website.
7. Plaintiffs argue in the same note 6
To do this, Plaintiffs twist the atheist ad
that there is no principled distinction
to add the comment that the ad offered
between the atheist ad and the Leaving
refuge for those who did not believe in
Islam ad.
God. The atheist ad, which this Court
has seen numerous times, does not offer
or promise refuge at all, whereas the
Leaving Islam ad expressly does so.
Plaintiffs cannot change the text of the
ads to say they are the same. It is a
misrepresentation to this Court.
8. Plaintiffs argue that there is some
Despite there being no evidence
hypothetical spectrum of political that
provided that SMART has allowed any
SMART applies to its review, and that
political advertising of any kind,
therefore SMART’s application must be SMART’s guidelines are not a
arbitrary.
spectrum. If an ad is political, it is
barred by the guidelines. There is no
discretion granted to any SMART
employee, such as was the case in the
United Food case where the regulation
barred controversial ads, an entirely
subjective test.
9. Plaintiffs conflate and argue that
If such a distinction exists, it is a
there is a distinction between ads that
distinction without a difference in this
contain political content and ads that
case. SMART’s content policy bars
represent political speech. (Dkt. 63,
advertisements that are “political” and
p.19).
“political campaign” ads. It is not
limited to ads that are political on their
face (which Plaintiffs’ ad is). Under
either circumstance, the advertisement is
political and barred by the policy. This
conflation makes a point that is not at
issue in this case. Despite what
Plaintiffs want the policy to read, it does
not bar only those ads with direct
political content.
6

10. Plaintiffs argue that SMART has
allowed public issue advertisements and
attempts to list several examples
throughout the brief.

As discussed in Defendants’ response to
Plaintiffs’ Motion, none of these ads are
“public issue” ads that would be barred
and in fact are mischaracterized by
Plaintiffs.
SMART has never allowed the posting
of any ad that promoted or opposed
homosexuality, contraceptive use, or the
existence or non-existence of God, or in
fact, any public issue. SMART has
never posted ads that expressed any
view opposing Plaintiffs’ ad or any
competing message either.
In this regard, there is no evidence of
viewpoint discrimination.

3.

Defendants’ restrictions, for all of the reasons stated before, do not
violate the Equal Protection Clause of the U.S. Constitution.
Plaintiff provides no evidence to this Court that any speaker has been treated

differently than Plaintiffs with regard to this issue or any issue, and therefore, for
the reasons stated throughout the extensive briefing provided by Defendants, there
has been no violation of the Equal Protection Clause of the U.S. Constitution.
By: /s/ Christian E. Hildebrandt_____
JOHN J. LYNCH P16887
CHRISTIAN E. HILDEBRANDT
P46989
Co-Counsel for Defendants
1450 W. Long Lake Rd., Ste. 100
Troy, MI 48098-6330
[phone]

By: ___/s/ Avery E. Gordon_____
SUBURBAN MOBILITY
AUTHORITY FOR REGIONAL
TRANSPORTATION
Avery E. Gordon (P41194)
Co-Counsel for Defendants
535 Griswold Street, Suite 600
Detroit, MI 48226

7

CERTIFICATE OF SERVICE
I hereby certify that on September 18, 2013, I electronically filed the
attached papers, Defendants’ Response to Plaintiffs’ Motion for Summary
Judgment, with the Clerk of the Court using the Court’s ECF system which will
send notification of such filing to the following:
Robert J. Muise (P62849)
David Yerushalmi, Esq.
Co-Counsel for Plaintiffs
3000 Green Rd., #131098
Ann Arbor, MI 48113
[phone]
[e-mail]

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

[e-mail]

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

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

8

VANDEVEER GARZIA
By: /s/ Christian E. Hildebrandt
JOHN J. LYNCH P16887
CHRISTIAN E. HILDEBRANDT P46989
Attorneys for Plaintiffs
1450 W. Long Lake Rd., Ste. 100
Troy, MI 48098-6330
[phone]
Dated: September 18, 2013

9