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

Filing 68

MOTION for Leave to File Supplemental Brief by American Freedom Defense Initiative, Pamela Geller, Robert Spencer. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4) (Yerushalmi, David)

EXHIBIT 1

In The Matter Of:
American Freedom Defense Initiative v.
SMART

Cross Motions for Summary Judgement
November 13, 2013

Cheryl E. Daniel, Official Federal Court Reporter
313.961.9082

Original File AMFEDvSMART111313.txt

Min-U-Script®

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF MICHIGAN

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SOUTHERN DIVISION

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AMERICAN FREEDOM DEFENSE

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INITIATIVE,

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V

CASE NO:

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SUBURBAN MOBILITY AUTHORITY

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FOR REGIONAL TRANSPORTATION

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10-12134

(SMART), JOHN HERTEL,

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BETH GIBBONS and

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GARY I. HENDRICKSON,

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Defendants
____________________________/

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CROSS MOTIONS FOR SUMMARY JUDGEMENT

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BEFORE THE HONORABLE DENISE PAGE HOOD

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U.S. DISTRICT JUDGE

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231 THEODORE LEVIN BUILDING

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DETROIT, MI 48226

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Wednesday, November 13, 2013

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APPEARANCES:

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FOR THE PLAINTIFF:

ROBERT J. MUISE,

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AMER. FREEDOM LAW CENTER

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P.O. BOX 131098

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ANN ARBOR, MI 48113

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(APPEARANCES CONTINUED)
FOR THE DEFENDANTS:

AVERY E. GORDON,

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SMART

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535 GRISWOLD STREET

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SUITE 600
DETROIT, MI48226
And

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CHRISTIAN E. HILDEBRANDT

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VANDEVEER GARZIA

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1450 W. LONG LAKE ROAD
SUITE 100
TROY, MI 48098

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I N D E X

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CROSS MOTIONS FOR SUMMARY JUDGMENT

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BY MR. MUISE

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BY MR. HILDEBRANDT

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REBUTTAL BY MR. MUISE

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Wednesday, November 13, 2013

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Detroit, Michigan

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At approximately 3:00 p.m.

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THE CLERK:

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Calling civil case number.

10-12134, American Freedom versus SMART.

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THE COURT:

Put your appearances on, please.

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MR. MUISE:

Good afternoon, Your Honor.

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Robert Muise on behalf of all the Plaintiffs.
MR. HILDEBRANDT:

Your Honor, Christian

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Hildebrandt on behalf of the Defendants with the

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exception of Mr. Hendrickson.

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MR. GORDON:

Avery Gordon, Your Honor, for

Defendants SMART, Hertel and Gibbons.
THE COURT: I'm ready to proceed.
These are cross motions for summary judgment, right?

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MR. MUISE: That's correct, Your Honor.

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THE COURT:

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MR. HILDEBRANDT:

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THE COURT:

You can go first then, Counsel.

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MR. MUISE:

Thank you, Your Honor.

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This afternoon I want to cover what

Who filed first?
I'm not sure I remember.

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essentially are the main issues that arise in these

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cross motions for summary judgment.

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the forum at issue, which is an important for the First

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Amendment analysis; SMART's advertising guideline at

And particularly,

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issue; the application of the guidelines in general.

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And then more specifically, a decision to reject

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Plaintiff's "Leaving Islam" advertisement under those

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guidelines.

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interrelated at some level.

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And all of those issues are somewhat

Indeed, SMART's advertising guidelines, which

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provide no objective guide whatsoever as required by the

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Constitution, in fact forces the Defendants into making

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what are essentially incoherent arguments and thus

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incoherent decisions.

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After going through discovery, we learned

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that "political", which was a primary basis for

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rejecting my client's advertisement, does not refer to

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some objective category of subject matter but political

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campaign, ballot initiatives, even matters dealing with

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government.

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In fact, if you look up the definition of

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political, it says all related to government, a

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government or a covenant of government.

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That is not how SMART applies that term
"political".
In fact, through the course of the

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depositions and the discovery taken in this case, we

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have learned that "political" means, and this is a quote

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from SMART, any advocacy or the position of any

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politicized issue, end quote.
Now to explain this obvious tautology, they

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tell us that politicized means this, quote, if society

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is fractured on an issue and factions of society have

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taken up positions on it that are not in agreement, it's

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politicized.

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And this is based on some hypothetical

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spectrum of whether something is sufficiently

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politicized to be rejected.

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So that is what we learned during the course

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of discovery how SMART defines for itself the term

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"political" as it applies to the advertisements.

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Another important fact that we learned

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through the course of discovery is that there are three

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Departments that independently have authority on behalf

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of SMART to decide whether an advertisement should be

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accepted or rejected, and those are the Marketing

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Department, the Office of General Counsel and the

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General Manager's Office.

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unilaterally or they can collaborate on a

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decision-making process.

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And each Department can act

And this is important because Defendant

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Gibbons, who was one of the decision-makers in the

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Marketing Department whose testimony at the Sixth

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Circuit in the appeal in this case essentially ignored,

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even though she was SMART's designated Rule 30(b)(6)

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witness at the preliminary injunction hearing, as all of

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us in this courtroom understood, is, as we learned

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through discovery, as I stated, one of the

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decision-makers with regard to the application of the

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guidelines.

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Consequently, while her testimony may be

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ignored as a 30(b)(6) witness, it cannot be ignored by

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the fact that she is a decision-maker and her statements

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are now admission by a party opponent.

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So as this Court knows that when she

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testified during the preliminary injunction hearing she

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candidly admitted that there was nothing about the ad

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itself that was political.

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the transcript, document number 18.

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And that is at page 10 of

She testified that she read about a

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controversy in Miami as to whether the ad should be

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posted, and because there was a controversy on whether

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the ad should go up or not go up, that made it

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political.

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And interestingly enough, her testimony in

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that regard was in response to questions by her very own

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counsel.

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And that is at the transcript at page 19.

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And that was Mr. Avery Gordon at the time.

But continuing further, during deposition,

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she testified that she understood the term "political"

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for the purposes of applying the advertising guidelines

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was, quote, when somebody advocates for a particular

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side, end quote.

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And that is interesting because she also

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said that she was now able to qualify the definition of

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"political" with words only after having read the

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deposition transcript of SMART's 30(b)(6) witness at the

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deposition, Mr. Anthony Chubb, who at the time was one

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of the counsel for SMART.

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Elizabeth Dryden, her deposition was also

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taken.

During the relevant time she was the Director of

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External Affairs, Marketing and Communications, and a

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person who worked for SMART who was authorized to

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enforce the advertising guidelines.

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Now, she understood, commonsensically, that

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"political" for purposes of the advertising guidelines

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meant subject matter which was, quote, ballot proposals,

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campaign initiatives or individuals if they're running

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for office.

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Now, despite this common sense understanding

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of "political" which provides some measure of an

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objective, definitive, articulated standard for what

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subject matter might be political, we also learned

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during the deposition that a get-out-the-vote drive,

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which is obviously a message that's trying to urge

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citizens to exercise their political franchise which is

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quintessentially a political subject matter, is, in

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fact, not political according to SMART.

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Ms. Dryden also further explained, which

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helps, I believe, to explain why Ms. Gibbons testified

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the way she did at the preliminary injunction hearing,

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that "political" also refers to, quote, hotly contended

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in the media.

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So matters that are hotly contended in

the media are also, quote, unquote.
In sum, SMART's use of the standard

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"political" is no different substantively than the

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controversial standard that was found unconstitutional

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in United Food by the Sixth Circuit.

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F.3d 341, a case decided in 1998.

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And that is 163

In fact, "political", by SMART's own

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definition in rendering equals contentiousness or

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controversy.

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for it, there is no escaping that fact.

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When you look at their specific definition

But United Food as well as Defendants'

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application of their own guidelines creates a further

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quandary for the Defendants because it forces them to

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claim that they don't, in fact, reject controversial

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advertisements in looking at, for example, the atheist

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ad or the Status Sexy ad and others.

So they admit, as

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they must, based on the fact that despite their

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definition of "political", they don't, in fact, reject

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advertisements that are contentious or controversial,

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contentious or controversial public issue advertisements

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because those advertisements certainly address public

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issues.

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Now, continuing the logic further, they now

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are on an impossible horns of a dilemma, and that is

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because of this:

Because accepting controversial in

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noncommercial advertisements, these controversial

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public-issue advertisements that they accept, in light

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of not only United Food but also Lehman, demonstrates

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that the forum itself is a designated public forum.

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In fact, even the atheist advertisement,

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which the Sixth Circuit was somewhat dismissive of as

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sort of an abberent decision, which we know from

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discovery is not the case.

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defended the decision to put up the atheist

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advertisement even though it caused vandalism to their

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buses and bus drivers to refuse to drive their very own

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buses.

In fact, they steadfastly

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So SMART acknowledges that they permit these

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contentious, controversial, public-issue advertisements.

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And because of that, the forum is a
designated public forum.

And this point is underscored

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by the very case that the Defendants claim is

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controlling and that is the Lehman versus City of Shaker

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Heights, the Supreme Court case at 418 U.S. 298.

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In that court case, the Supreme Court found

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that the 26 year consistently enforced ban on

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noncommercial advertising was consistent with the

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government's role as a proprietor precisely because the

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government, and this is a quote right from the case,

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limiting the car card space to innocuous and less

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controversial commercial and service oriented

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advertising, end quote.

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So not only the Supreme Court and other

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courts, including the Sixth Circuit, have followed that

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lead.

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Circuit said in United Food:

In fact, this is precisely what the Sixth

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"Acceptance of political and public-issue

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advertisements, which by their very nature

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generate conflict, signals a willingness on

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the part of the government to open the

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property to controversial speech, which the

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Court in Lehman recognized as inconsistent

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with operating the property solely as

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a commercial venture."

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The Ninth Circuit has said that when you have

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policies that permit the noncommercial advertising, that

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that is indicative of the government's intent to create

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a designated public forum.

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The New York Magazine case, Second Circuit,

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said this, quote, disallowing political speech and

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allowing commercial speech only indicates that may be

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one of the main goals.

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conversely, evidences a general intent to open a space

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for discourse and a deliberate acceptance of the

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possibility of clashes of opinion and controversy that

Allowing political speech,

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the Court in Lehman recognizes as inconsistent with

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sound commercial practices.

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If you look at those host of advertisements

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that SMART has accepted from the atheist advertisement

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to the statussexy.com advertisements to the

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advertisement that advocates for the use and actually

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the availability of contraception, I mean, these are

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controversial, contentious public-issue advertisements

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and they signal -- in fact, they demonstrate that the

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true intent -- and practice speaks louder than words --

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the true intent is to create a public forum.

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In fact, again the Sixth Circuit said the

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Courts will hold that, quote, that the government did

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not create a public forum only when its standards for

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inclusion or exclusion are clear and designed to

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interfere with the forum's designated purposes.

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Their definition of "political" is far from

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clear and far from providing an objective standard for

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restricting speech.

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And, oh, by the way, if their concern is

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that it's going to disrupt the workings of the transit

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authority, by their very own testimony, the atheist

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advertisements comply with the guidelines yet their

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buses were vandalized as a result and drivers refused to

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drive it.

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Yet again, even today they say that comports

with our advertising guidelines.

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Here is what the Sixth Circuit said in the

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appeal in this case with regard to the issue on the

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forum.

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advertisement is permissible if it's a managerial

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decision focused on increasing revenue, for limiting

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advertising space, innocuous and less commercial and

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less controversial commercial and service oriented

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advertising, end quote.

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They said, quoting, outright ban on political

Again, when you look at the litany of

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advertisements that the Defendants claim satisfy their

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advertising guidelines, there is no objective from the

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guidelines from the "Don't believe in God", the atheist

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advertisement, to the "Knowing your HIV status before

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you get down, that's sexy" campaign, to "Put yourself

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first, plan first, have a baby when the time is right

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for you" free birth control advertisement, "Feeling

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lost, find your path", Christian advertisement.

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are public service advertisements, they're not innocuous

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commercial advertisements and they demonstrate that this

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forum is, in fact, a designated public forum, and

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therefore, they cannot make the content-based

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restrictions, as they did here on my client's

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advertisement.

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These

So these advertising guidelines, they do two

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things.

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them is absolutely inconsistent because the advertising

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themselves prohibits ads that are controversial,

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contentious, but yet they permit controversially

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contentious advertisements, but yet they say we don't

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have a public forum, but yet permitting these

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controversial and contentious advertisements

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demonstrates that they have, in fact, opened up the

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forum.

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One is you can see how their application of

And here is what the Sixth Circuit said about

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the types of standards that the government is allowed to

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have.

They said this in United Food:

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"The absence of clear standards guiding

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the discretion of the public official

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vested with the authority to enforce the

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enactment invites abuse by enabling the

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Official to administer the policy on the

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basis of impermissible factors.

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"Consequently, a speech restriction

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'offends' the First Amendment when it grants

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a public official 'unbridled discretion'

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such that the official's decision to limit

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speech is not constrained by objective

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criteria, but may rest on 'ambiguous and

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subjective reasons'."

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Defendants' definition of "political" is

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based on subjective and ambiguous reasons and not any

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objective guidelines.

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And in fact, the Sixth Circuit again in the

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appeal in this case did not have the benefit of the --

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who assumed that there was a presumed articulating

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definitive standard for "political" in that case didn't

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have the benefit from what we know now from discovery

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how they defined "political".

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find unbridled discretion having vested in the

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decision-maker because there is no articulated

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definitive speech in determining what was controversial.

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They even said this, we

In the United Food situation, the employees

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would have to determine where on a hypothetical spectrum

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of controversy an advertisement fit in.

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They admitted in their testimony, and I

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cited it in our brief, that to determine whether or not

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something is sufficiently politicized, the government

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official must make that determination on some

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hypothetical spectrum of whether or not it is political

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enough.

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So while, as Ms. Dryden's testimony reveals,

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"political" could have an objective meaning, it could

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have -- be based on some objective subject matter, the

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way in which the Defendants apply these guidelines is

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entirely arbitrary and subjective and no different in

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the way that the controversial public issue standard was

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employed in United Food and found by the Sixth Circuit

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as being unconstitutional.

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And I want to just spend a moment on the

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scornful speech issue, which really if you look at

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Gibbons' testimony, there was no -- she even testified

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right here in court that she didn't find anything

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scornful about this.

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There is nothing in the "Leaving Islam"

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advertising that there is any scornful language.

It

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addresses a very serious and a very real issue.

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different than if somebody was running a battered

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shelter advertisement and the advertisement says is your

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spouse threatening you?

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about that?

No

Is there any scornful language

Of course not.

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And why isn't "Don't believe in God", why is

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that not scornful?

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believe in God, you lack reason.

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By Defendants' standards, if you

There is no language per se in the "Leaving

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Islam" advertisement that Defendants would object to,

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what they object to is the viewpoint that is being

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expressed by it.

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And as we know through all the briefing
throughout here that viewpoint consideration is the most

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egregious form of content discrimination and is

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prohibited in any form.

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One last comment on the advertising

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guidelines.

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comes before us, we're going to look at the web site

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that is listed on the advertisement, and if the web site

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contains information that is political by their

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definition of "political" then that is a basis for

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rejecting the advertisement.

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They also tell us that while every ad that

Well, if you go look at the atheist

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advertisement and you look at the web site that is cited

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on the atheist advertisement, in that very own web site

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they talk about advocating for civil rights and

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advocating for the position of the separation of church

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and state.

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witnesses of SMART is issues addressing the separation

And so when I asked the three 30(b)(6)

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of church and state politicized?

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Of course they're

politicized.

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So based on their very own ambiguous

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standards they're trying to apply to my client's

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advertisement, the atheist advertisement, again, should

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have been rejected.

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And in looking at that statussexy.com

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advertising, if you look at that web site, it makes very

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plain the articles of the test that web site that that

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advertisement advocates that men who have sex with men

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should get HIV tested.

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advertisement is not politicized by their definition of

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political speech?

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You tell me that the Status Sexy

Of course they are.

In sum, discovery has revealed the fig leaf

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that SMART's policy -- advertising policy restricting

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political advertisement.

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subjective guideline and allows government officials to

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pick and choose which advertisement messages they favor

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and which ones they don't.

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It is a purely arbitrary and

Discovery revealed that the decision to

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accept the highly controversial atheist advertisement

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was not, in fact, an aberration, and that SMART, indeed,

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accepts a wide array of highly controversial

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public-issue advertisements.

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space to innocuous and less controversial commercial and

They don't limit their

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service oriented advertisements, and thus, evidencing an

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intent to create a designated public forum.

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In short, the factual record in view of the

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controlling law compels one conclusion and that is that

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SMART's restriction on my client's advertising violates

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the U.S. Constitution.

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THE COURT:

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MR. HILDEBRANDT:

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Okay, thank you, Counsel.
Good afternoon, Your Honor.

How are you today?

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THE COURT: I'm fine, thank you.

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MR. HILDEBRANDT:

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THE COURT: Do you think that at the time of

Just terrific, thank you.

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the testimony at the preliminary injunction hearing that

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SMART had the definition of "political" that apparently

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they have at this time?

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MR. HILDEBRANDT:

Your Honor, there was no

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written definition of "political" in place at the time

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of the preliminary motion, the preliminary injunction

19

motion such that is the same as was disclosed in the

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testimony in this case.

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THE COURT: So I want to just understand this,

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and maybe it doesn't really have anything to do with

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your motion, but it is important to me to understand it.

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MR. HILDEBRANDT:

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THE COURT:

I understand.

For my own benefit.

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At the time of the preliminary injunction,

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there wasn't any written definition of "political"; is

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that right?

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MR. HILDEBRANDT:

Your Honor, at the time of

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the preliminary injunction, there was no separate

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written definition of "political".

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THE COURT:

You put "separate" before it.

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Was there any written definition of "political" at that

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time?

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MR. HILDEBRANDT:

Well, in the guidelines,

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"political" is expressed there, but there is no separate

12

definition beyond the use of that word "political" --

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THE COURT:

And you would agree that the

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witness that appeared did not give any particular --

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point to any particular thing that informed her about

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what was political?

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MR. HILDEBRANDT:

I would agree that the

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witness that was provided as the 30(b) witness did not,

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but she was not part of the decision-making process at

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the time.

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decision-maker at the time.

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in the Marketing Department who was unavailable at the

23

time.

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Marketing Department, in the General Counsel's

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Department and in the General Manager's office.

She was not an individual who was a
She had a direct supervisor

And that person was the decision-maker in the

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There were decisions, there were different

2

decision-makers, but Beth Gibbons has never been a

3

decision-maker at any time relevant to this ad.

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5

She was presented as the 30(b)(6) witness
and provided testimony --

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THE COURT:

When she gave her deposition,

7

would she have been considered a decision-maker at that

8

time?

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MR. HILDEBRANDT:

When she gave her

10

deposition post-Sixth Circuit decision in the discovery

11

of this case?

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THE COURT:

Well, that is when she gave it.

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MR. HILDEBRANDT:

14

Yes, at that time she was --

All right, that's fine.

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THE COURT:

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really clear so I understand this.

17

Excuse me, Counsel, I want to be

She testified as a 30(b)(6) witness, but she

18

was not a decision-maker at that time; that is your

19

position, right?

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MR. HILDEBRANDT:

21

THE COURT:

Okay.

Well, that is correct, yes.
So now I'm asking at the

22

time of her deposition, which was subsequent to the

23

Sixth Circuit decision, she was then a decision-maker?

24
25

MR. HILDEBRANDT: At that time she was the
head of the Marketing Department, correct.

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THE COURT:

All right, okay, thank you.

2

MR. HILDEBRANDT:

At the time of the

3

preliminary injunction hearing, Your Honor, she provided

4

in response to questions the position of SMART as she

5

was expected to do.

6

to questions her own opinion when she was asked what do

7

you think, Beth Gibbons?

8

recognized that what she thought, based upon her own

9

analysis, was her personal opinion and not binding on

10
11

And she also provided in response

And the Sixth Circuit

SMART.
She specifically indicated the position of

12

SMART at other parts of that testimony.

13

THE COURT: Okay, thank you.

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MR. HILDEBRANDT:

Now, Your Honor, the

15

primary question in this case, of course, I believe, is

16

whether this is a designated forum or a non-forum.

17

I think that that has really already been decided for

18

this Court by the Sixth Circuit.

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THE COURT:

Okay, let me ask you that.

And

Now

20

that we have discovery, do you think that the Court has

21

the authority to say here are items not before the Sixth

22

Circuit and so they go to whether or not it is a

23

designated public forum?

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25

MR. HILDEBRANDT: I certainly believe that the
Court has that authority.

I do not believe that the

23
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Sixth Circuit rulings on the facts in this matter are

2

binding on this Court.

3

THE COURT: Okay.

4

MR. HILDEBRANDT:

I do believe, however, that

5

the legal rulings that they made are certainly a great

6

indication of what should occur based upon this factual

7

record.

8
9

The factual record really hasn't changed in
this matter, Your Honor.

That is, Plaintiff does not

10

come before this Court and demonstrate any political ad

11

ever having been posted by SMART.

12

come before this Court and demonstrate any scornful ad

13

that has ever been posted by SMART.

14
15

The fact of the matter is the Sixth Circuit
--

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THE COURT:

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MR. HILDEBRANDT:

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THE COURT:

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Plaintiff does not

Is that a question of fact?
Is what a question of fact?

Whether or not any of the ads

that SMART has allowed before were scornful?

20

MR. HILDEBRANDT: I think that is a question

21

of fact, but I don't think it is a material question of

22

fact.

23

I think that the --

24

THE COURT:

25

I'm sorry?

Then if it is not material, he

doesn't need to demonstrate that?

24
1

MR. HILDEBRANDT:

Let me say genuine issue.

2

I don't believe it is a genuine a issue, I misspoke,

3

pardon me.

4

The fact of the matter is the ads that he is

5

referring to, Your Honor, are not political ads.

6

ads that he is referring to as having been posted are

7

not scornful ads.

8
9
10

In order for Mr. Muise to come before this
Court and say the definition is wrong, he has to change
what the guidelines are.

11
12

The

The guidelines are political and political
campaign speech, scornful and disparaging speech.

13

It is not contentious.

It is not

14

controversial, that is not the test, A.

15

has a very amorphous definition of even what

16

controversial means.

17

It is true a lot of these ads may have shock

18

value.

19

your attention.

20

in these ads.

21

B, he kind of

That is the purpose of advertising is to get
But there is nothing really contentious

In any of these ads.

The Status Sexy ad is not a contentious ad.

22

All it is is indicating people should know their HIV

23

status before they have sex.

24
25

Who would object to that?
contending that that was incorrect?

Who would be

25
1
2

It may be shock value based upon the picture
that is shown, but that doesn't make it political.

3

The same with the atheist ad, Your Honor.

4

The Sixth Circuit has already reviewed the atheist ad

5

and they have said that ad is a general outreach ad.

6

It is reasonable for SMART to have looked at

7

it that way and that it is not a violation of the

8

political ads guideline.

9

So each and every one of these ads that he

10

points to -- stopping smoking, Your Honor, how is that a

11

contentious issue?

12

stop smoking on the other side? There is not a fractured

13

society on which side to take in factions.

14
15
16
17
18

Who gets up and says you shouldn't

Now, Mr. Muise indicated that he was going to
start with the primary reason why -THE COURT:

Have you had any complaints

about any of those ads he mentioned?
MR. HILDEBRANDT:

19

only one I'm aware of.

20

THE COURT:

Just the atheist ad is the

21
22

Would you think then that means

there is some fractured opinion out there?
MR. HILDEBRANDT: Your Honor, I don't believe

23

that the message of the ad or the web site it refers to

24

makes it political.

25

Now, does that mean --

26
1

THE COURT:

That wasn't my question.

If you

2

want to answer my question, I'm happy for you to do that

3

and then to argue, but that wasn't my question.

4

question was different than that.

5

MR. HILDEBRANDT:

My

Was there a controversy

6

arising out of that ad?

Yes, there was a controversy

7

arising out of that ad.

Are there people who strongly

8

feel that their belief in God is important to their

9

life?

Yes, there are.

10

THE COURT:

And so the word you use was

11

"fractured", do you think that exists relative to that

12

ad?

13
14

MR. HILDEBRANDT:

I don't think that that

applies to that ad.

15

I think, as the Sixth Circuit thought, is

16

the message of that ad was are you being forced to

17

recite under God in the Pledge of Allegiance, that that

18

would be more of a political issue.

19

fractured issue.

That would be a

20

But all this ad does is invite people of a

21

common ilk to join together, much like the Union Grace

22

ad does.

23

et cetera.

Much like an Easter celebration ad would do,

24
25

The message of the ad itself is not
political.

Even if some aspect of the issue of the

27
1

belief in God may be, this particular ad doesn't touch

2

that particular issue.

3

Does that answer your question?

4

THE COURT:

5

You may continue your argument.

6

MR. HILDEBRANDT:

Yes, it does, thank you.

The Sixth Circuit

7

recognized that the word "political" is specific enough

8

that a reasonable person could determine if something

9

was political or not political.

And they also

10

recognize, Your Honor, that it wasn't going to be an

11

exact science.

12

this in a close call.

13

That is, there may be situations where

But they nevertheless indicated it was not

14

necessary that we had a specific definition written down

15

or that we had additional guidelines to guide the

16

governmental official because it, in and of itself, was

17

enough to do that.

18
19
20

And they recognized that setting forth those
particular guidelines made this a non-public forum.
Now, the question after it becomes a

21

non-public forum becomes whether SMART has improperly

22

applied those guidelines such that it is taken away that

23

-- and I have addressed that a little bit in these ads

24

-- and I don't believe any of these ads that are

25

referred to by the Plaintiffs are in any way political

28
1

or scornful.

And I have explained that in great detail

2

in my briefs, and unless the Court has any questions

3

concerning any specific ad, I would like to kind of move

4

on beyond that.

5

THE COURT:

You may.

6

MR. HILDEBRANDT:

Now, if we're in a

7

non-public forum, we address whether our guidelines have

8

a rational basis.

9

briefs because the mission critical purpose of SMART, of

And we have addressed that in our

10

course, is to provide transportation to the tri-county

11

area and we sell advertising to allow funding to be able

12

to do that.

13

for the policies that we have in place.

14

That certainly provides a reasonable basis

Plaintiff's ad, although, "A" purpose or "A"

15

reason of why it was rejected was that it was political

16

was also rejected on the separate and distinct basis

17

that it disparaged Muslims as well.

18

analyzed separately.

19

Those need to be

Plaintiff stands up here this morning and

20

says the primary reason why it was rejected was

21

political, but there are two separate and distinct

22

reasons why it was rejected.

23

The Sixth Circuit recognized this is a

24

politicized issue.

25

politicized ad.

In the context of this ad, this is a

29
1

We believe that that really is binding on

2

this Court at least from the stand or, I'm sorry, not

3

binding, but certainly persuasive on this Court on the

4

issue of whether Plaintiff's ad is political.

5

Plaintiff admits it is political in their

6

pleadings and the Court recognized that it addresses

7

specifically the idea of the application of Sharia law

8

in America which is a politicized issue.

9

It is also a disparaging issue; that is,

10

this particular ad insults not only the Muslim community

11

but Muslim families by indicating that they are

12

threatening people that would want to leave Islam.

13

is a direct slap in the face of the Muslim community.

14

It

Now, that is not viewpoint discrimination.

15

That is, we don't say because you're talking about

16

Islam.

17

leaving Islam you can't post this.

18

scornful language in any ad.

19

We don't say because you're talking about
We say you can't use

And that is a provision that is allowable

20

under the Ridley case that was cited by the Sixth

21

Circuit and cited in our brief which indicates that

22

because we don't allow any disparaging speech, it has

23

absolutely nothing to do with the viewpoint that is

24

being provided.

25

disparaging speech, atheists can't use disparaging

That is, Christians can't use

30
1

speech, Muslims can't use disparaging speech, candidates

2

can't use disparaging speech.

3

an advantage one way or another over the other.

4

Nobody can.

No one gets

So it is not viewpoint discrimination and I

5

believe that the Sixth Circuit recognized that to be the

6

rule based upon the Ridley case and this case as well.

7

And there is really nothing that has been put

8

forward from discovery or in Plaintiff's briefs that

9

would belie what SMART's viewpoint is.

There is nothing

10

in the testimony that indicated that SMART disagreed

11

with Plaintiff's message or agreed with Plaintiff's

12

message.

13

took a position one way or the other.

14

exactly what SMART intends to do is to be completely

15

neutral.

16

There is nothing that indicates that SMART
And that is

So to the extent that it violates that

17

second and separate provision, even if this is one of

18

those close calls on whether it's political or not, the

19

fact that it is scornful or disparaging or -- and I

20

don't have the language directly in front of me -- or

21

likely to hold up to scorn or ridicule any person or

22

group of persons is a separate and distinct reason why

23

this ad could not be posted.

24
25

And that applies equally to Plaintiff's
second ad that they also implicated.

31
1

I think I have addressed every one of the

2

other ads that they pointed to in some way or another

3

except for the family planning ad from the Michigan

4

Department of Community Health.

5

That is a commercial ad, Your Honor.

It does

6

not advocate one way or the other for family planning or

7

birth control or abortion services or anything.

8

indicates is if you're interested in these services that

9

are available here.

10

All it

That is a commercial ad, it is

11

non-controversial.

12

the other.

13

It is not advocating it one way or

So, Plaintiff comes before this Court today

14

and says we have a distasteful message, and therefore,

15

the only reason it must have been rejected is because

16

they must have disagreed with it.

17

That is not the case.

SMART did not disagree because it was

18

distasteful.

SMART did not disagree because it was

19

controversial or contentious.

20

it scorned a group of persons, Muslims, Muslim families,

21

Muslim communities.

22

that was specifically politicized.

23

fractured society was divided in factions on.

24

large part because the Plaintiff herself created those

25

factions, but nevertheless because of people taking

SMART disagreed because

And because it addressed an issue
An issue that a
And in

32
1

strong arguments or taking strong positions on either

2

side of the application of Sharia law in America, we

3

determined it to be political.

4

THE COURT:

5

that the point.

6

And --

I don't think you can point to

You might point to her as an advocate

for --

7

MR. HILDEBRANDT:

8

THE COURT:

9

Your Honor, may be I --

Excuse me, Counsel.

You might

point to her as someone who advocates the position

10

relative to the ad, but it sounds like you were making

11

her the cause of the faction and I don't believe she is.

12

Probably the evidence wouldn't show that either.

13
14

MR. HILDEBRANDT:

Maybe I overspoke, Your

Honor.

15

THE COURT:

I think so, Counsel.

16

MR. HILDEBRANDT:

But her blog is certainly

17

a large part of voicing her opinion on one side in a

18

fractured society, I would agree with that.

19

that standpoint it is certainly politicized and

20

certainly political.

21
22

And from

THE COURT: Well, blog maybe; I don't know
about her ad.

23

MR. HILDEBRANDT:

Well, Your Honor, the web

24

site referred to in the ad -- but I do know about the

25

ad.

The ad is, as the Sixth Circuit specifically

33
1

indicated, directly impacts or directly addresses the

2

issue of Sharia law in America.

3

Honor, that is clearly a political issue and I think

4

that that makes that ad itself political.

5

going to refugefromislam.com strengthens that even more.

6
7
8
9
10
11

THE COURT:

I think that, Your

But then

And so on the ad from the

Michigan families, does it go to a web site?
MR. HILDEBRANDT:

It does, Your Honor.

It

goes to the Michigan -THE COURT:

What is on that web site relative

to family planning?

12

MR. HILDEBRANDT:

13

Department of Community Health web site.

14

THE COURT:

It is the Michigan

Is there anything on it that

15

would be, for instance, objectionable, for instance, to

16

Roman Catholics?

17

MR. HILDEBRANDT:

Well, I guess the question

18

is, Your Honor, objectionable in what sense?

19

say there are available family planning things.

20

not say we offer only the rhythm method.

21

there are birth control services available.

22

that there are abortion services available.

23

It does
It does

It does say
It does say

I imagine there are some Roman Catholics who

24

find the idea of abortion itself to be objectionable.

25

So I'm not certain that that web site itself -- that

34
1

web site itself does not advocate for somebody to get an

2

abortion.

3

THE COURT:

4

MR. HILDEBRANDT:

5

THE COURT:

I know I asked about the web

site, but that's okay, go to the rest of your argument.

8
9

It does not advocate for

family planning, the ad does not.

6
7

But what about family planning?

MR. HILDEBRANDT:

I'm looking at my notes

relative to Mr. Muise's argument.

10

Mr. Muise has referred to what he calls a

11

hypothetical spectrum based upon the testimony of Mr.

12

Chubb, and Mr. Chubb was asked two questions to set up

13

this argument for hypothetical spectrum, one of which

14

was, well, Mr. Chubb, I disagree with you, if the two of

15

use disagree, does that make it political.

16

Chubb said I don't believe that that makes it political.

17

And then he was asked about large factions disagreeing

18

in which he said and that is the definition of

19

political.

20

disagree versus large factions of society, Mr. Chubb

21

responded if you call that a spectrum, then so be it.

22

But he never indicated that there was a spectrum.

23

And Mr.

And so to the extent that two people

But the Sixth Circuit did recognize that

24

there is a spectrum of sorts by saying sometimes this is

25

going to be a close call.

There is no bright line

35
1

where one side is going to be political and the other

2

side is not.

3

But Plaintiff's ad doesn't reach the line

4

itself.

5

and from that standpoint, this idea that it might be

6

unconstitutional as applied doesn't apply in the case of

7

this particular ad.

8
9
10

Plaintiff's ad is far into the political side,

Your Honor, unless you have additional
questions, I think I could be done at this time.
THE COURT:

All right, thank you very much.

11

I don't have any additional questions.

12

Thank you for

answering the questions I posed.

13

Counsel, do you wish to reply?

14

MR. MUISE: Yes, Your Honor, briefly.

15

THE COURT: You may.

16

MR. MUISE:

Your Honor, I will answer

17

directly the first question you asked about whether or

18

not the atheist advertisement addresses an issue that is

19

are there factions of society that have disagreement, I

20

can't think of an issue that is probably more fractious

21

using their definition of political.

22

Bear in mind, again, political isn't what

23

any average person would understand political to mean,

24

like political campaigns, political delegations dealing

25

with issues of government, ballot initiatives and so

36
1

forth.

2

controversial or contentious.

3

advertisement that under their definition of "political"

4

is quintessentially political.

5

Their definition of "political" is essentially
And that atheist ad is an

And oh, by the way, and I like how he

6

defines and describes these advertisements like this

7

Status Sexy, and I'm sure the Court has seen them.

8

"Know your HIV status before you get down", with this

9

shirtless male with his hands behind his back.

Talk

10

about an issue that is a fractious and contentious

11

issue.

12

Look at this advertisement.
Nobody is required to check their common

13

sense at the courtroom door and think this is just about

14

testing for HIV.

15

And if there is any question about that, one

16

of the articles attached to the web site says the Status

17

Sexy campaign uses images of attractive shirtless men to

18

convey the message to encourage men who have sex with me

19

to be tested for HIV.

20

Well, in the world apparently that

21

Defendants live in, that is not a contentious issue.

22

And I obviously have strong disagreement with that and I

23

think common sense would show it very much is political

24

pursuant to their definition.

25

And looking at the -- you asked questions

37
1

about the advertisement that he said was just a

2

commercial advertisement for family planning services.

3

Here is what it says in big bold up top:

4

first, plan first."

5

birth control and related health care services.

6

baby when the time is right for you.

7

responses, free family planning services including birth

8

control, including pills, IUDs, condoms and diaphragms."

9

"Put yourself

How is that not advocating?

"Free
Have a

Plan for

Yes, this is a very contentious issue and

10

I'm sure this Court is aware having dealing with the

11

contraceptive services mandate.

12

To say that this or to argument that this

13

advertisement is not a political advertisement, again

14

based on their definition, is just absolutely absurd.

15

Looking at, and we cited to the comments in

16

Ridley, relying on Ridley that the scornful standard,

17

Ridley made the point in the guideline point of the use

18

of specific scornful words or scornful language.

19

There is no language you can point to in my

20

client's ad that is scornful.

21

language so it is a battered women's shelter.

22

spouse threatening you?

23

threatening you?

24

women's shelter.

25

Again, change the
Is your

Is somebody in your community

You can find refuge at our battered

There is not anything in the web site we

38
1

have seen that is considered scornful that they disagree

2

with such that change a few words around.

3

What they disagree with and what is clear

4

from the argument today is the viewpoint that is being

5

expressed by that advertisement and that is prohibited

6

in any forum.

7

And again Your Honor, if you look at the

8

Sixth Circuit decision, the Sixth Circuit did not have

9

the benefit of knowing what they assumed political is

10

what probably an average person would consider political

11

to be and not the definition now that they provided for

12

us which again provides in many respects it provides and

13

explanation why Beth Gibbons testified that it was

14

controversy over the advertisement and that is why they

15

determined to it to be political.

16

Thank you, Your Honor.

17

THE COURT:

18
19

Okay.

Do you have dates coming

up?
MR. HILDEBRANDT:

Your Honor, we just passed

20

the time for the final pretrial schedule.

21

last week or this week.

22

scheduled, but --

23
24
25

MR. MUISE:

It was either

I think we had a trial

With the dispositive motions

outstanding -THE COURT:

I know I do have an outstanding

39
1

motion to rule.

I just wanted to know if you had any

2

dates coming up, but I'll address that in the order.

3

Court's in recess.

4

(Proceedings concluded)

5

* * * * * * * *

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C E R T I F I C A T I O N

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I, CHERYL E. DANIEL, Official Federal Court

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Reporter, after being first duly sworn, say that I

7

stenographically reported for foregoing proceedings held

8

on the day, date, time and mace indicated.

9

caused those stenotype notes to be translated through

That I

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Computer Assisted Transcription and that these pages

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constitute a true, full and complete transcription of

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those stenotype notes to the best of my knowledge and

13

belief.

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I further certify that I am not of counsel
nor have any interest in the foregoing proceedings.

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/S/

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CHERYL E. DANIEL,

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FEDERAL OFFICIAL COURT REPORTER

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