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

Filing 8

MOTION for Preliminary Injunction /TRO by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 Declaration of Pamela Geller, # 3 Exhibit A Certificate of Incorporation for FDI, # 4 Exhibit B FDI Religious Freedom Message, # 5 Exhibit C CBS-FDI Agreement-Miami, # 6 Exhibit D CBS-FDI Agreement-NYC, # 7 Exhibit E CBS-FDI Agreement-Detroit, # 8 Exhibit F Email thread--DDOT rejection, # 9 Exhibit G Atheist Bus Advertisement, # 10 Exhibit H SMART "Advertising Guidelines" and "Policies and Regulations", # 11 Exhibit I Email thread--SMART request, # 12 Exhibit J Email thread--SMART rejection) (Muise, Robert)

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EXHIBIT 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN AMERICAN FREEDOM DEFENSE INITIATIVE; PAMELA GELLER; and ROBERT SPENCER, Plaintiffs, 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. DECLARATION OF PAMELA GELLER Hon. Denise Page Hood Magistrate Judge Hluchaniuk 2:10-cv-12134-DPH-MJH THOMAS MORE LAW CENTER Robert J. Muise, Esq. (P62849) Richard Thompson, Esq. (P21410) 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, MI 48106 rmuise@thomasmore.org (734) 827-2001 Fax: (734) 930-7160 Co-Counsel for Plaintiffs LAW OFFICES OF DAVID YERUSHALMI, P.C. David Yerushalmi, Esq. (Ariz. Bar No. 009616; DC Bar No. 978179; Cal. Bar No. 132011; NY Bar No. 4632568) P.O. Box 6358, Chandler, AZ 85246 david.yerushalmi@verizon.net (646) 262-0500 Fax: (801) 760-3901 Co-Counsel for Plaintiffs ______________________________________________________________________________ 1 I, Pamela Geller, make this declaration pursuant to 28 U.S.C. § 1746 based on my personal knowledge: 1. 2. I am an adult citizen of the United States and a resident of the State of New York. Robert Spencer and I co-founded American Freedom Defense Initiative ("FDI"), which is incorporated under the laws of the State of New Hampshire. I am the Executive Director of FDI, and Mr. Spencer is the Associate Director. Mr. Spencer and I engage in political and religious speech through FDI's activities, including FDI's religious freedom bus and billboard campaigns. 3. The State of New Hampshire incorporation documents for FDI were filed on or about April 4, 2010, and a Certification of Incorporation dated April 5, 2010, was promptly issued by the New Hampshire Office of Secretary of State. See a true and correct copy of the Certificate of Incorporation attached as Exhibit A and incorporated herein by this reference. 4. FDI's specific objective is to go on the public relations offensive when legal, academic, legislative, cultural, sociological, and political actions are taken to dismantle our basic freedoms and values. One of our cherished freedoms is religious liberty, which includes the freedom to change one's religion without fear of retribution and harm. 5. FDI achieves its objective through a variety of lawful means, including through the exercise of its right to freedom of speech under the U.S. Constitution. 6. One example of FDI's exercise of its right to freedom of speech is the sponsoring of religious freedom bus and billboard campaigns. To that end, FDI purchases advertising space on bus lines operated in cities throughout the United States to express various political and 2 religious messages. FDI's religious freedom message states as follows: "Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got questions? Get answers!" The message also includes the following website address: RefugeFromIslam.com. 7. Beginning on or about May 3, 2010, FDI sponsored a religious freedom message (hereinafter "Advertisement" or "Advertising") to be displayed on Miami-Dade County Transit buses running throughout the City of Miami for one month. See a true and correct copy of the Advertising attached as Exhibit B and incorporated herein by this reference. The Advertising ran on the Miami-Dade County Transit buses for the full one-month period. 8. Prior to running the Advertising on the Miami-Dade County Transit buses, FDI entered into an advertising agreement with CBS Outdoor acting as the advertising agent for the Miami-Dade County Transit ("CBS-FDI Agreement-Miami"). See a true and correct copy of the CBS-FDI Agreement-Miami attached as Exhibit C and incorporated herein by this reference. 9. Beginning on or about May 17, 2010, FDI sponsored the Advertising to be displayed on New York City Metropolitan Transportation Authority ("MTA") buses for a period ending on June 13, 2010. 10. Prior to running the Advertising on the MTA buses, FDI entered into an advertising agreement with CBS Outdoor acting as the advertising agent for the MTA ("CBSFDI Agreement-NYC"). See a true and correct copy of the CBS-FDI Agreement-NYC attached as Exhibit D and incorporated herein by this reference. The CBS-FDI Agreement-NYC is identical in form and has the identical "Terms and Conditions" as the CBS-FDI AgreementMiami. 3 11. On or about April 30, 2010, FDI entered into an advertising agreement to place the Advertising on Detroit Department of Transportation ("DDOT") buses with CBS Outdoor acting as the advertising agent for the DDOT ("CBS-FDI Agreement-Detroit"). See a true and correct copy of the CBS-FDI Agreement-Detroit attached as Exhibit E and incorporated herein by this reference.1 The CBS-FDI Agreement-Detroit is identical in form and has the identical "Terms and Conditions" as the earlier agreements for Miami and New York City. Pursuant to the CBS-FDI Agreement-Detroit, FDI paid CBS Outdoor $4,801.50. 12. On or about May 7, 2010, CBS Outdoor representative Robert B. Hawkins informed me by email that the DDOT rejected FDI's Advertising. He did not explain why the DDOT rejected the Advertising, but instead told me to contact Natalie Starks at the DDOT for clarification. 13. After several emails, on May 12, 2010, Ms. Starks informed me that the DDOT refused to run the Advertising and provided no explanation. See a true and correct copy of an email thread between Mr. Hawkins and me and then between Ms. Starks and me attached as Exhibit F and incorporated herein by this reference. 14. After the DDOT rejection, I researched other bus lines in the Detroit metropolitan area and learned that the Suburban Mobility Authority for Regional Transportation ("SMART") also operates bus lines in the Detroit area. I was confident SMART would run the Advertising for two reasons. First, SMART had previously permitted advertising promoting atheism. See Exhibit G attached to this declaration and incorporated herein by this reference. And second, SMART, as a governmental agency, had published its own "Advertising Guidelines," which 1 The handwritten dates of "5/28/10" appearing at the signature lines of the CBS-FDI Agreement-Detroit are scrivener's errors and should have been dated April 28, 2010. 4 includes the following free speech policy statement: "First Amendment free speech rights require that SMART not censor free speech and because of that, SMART is required to provide equal access to advertising on our vehicles." True and accurate copies of SMART Web pages setting forth SMART's "Advertising Guidelines" and its "Policies and Regulations" are attached to this declaration as Exhibit H, which is incorporated herein by this reference. The free speech policy statement is also available at http://www.smartbus.org/Smart/mktg/advertise.aspx. 15. 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 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. 16. On or about May 24, 2010, Mr. Hawkins emailed me and informed me that SMART refused to run the Advertising. He suggested I contact Beth Gibbons of SMART, who is his primary contact there, and he provided me with Ms. Gibbons' email address. I immediately emailed Ms. Gibbons and asked her: "What was it about the ad that was `not approved' and what would have to be changed? Please let me know so we can get this campaign on the road." See a true and correct copy of the emails from Mr. Hawkins to me and from me to Mr. Hawkins and Ms. Gibbons attached as Exhibit J and incorporated herein by this reference. 5 17. I have heard nothing from Ms. Gibbons or from any other SMART representative. The only information that I received from SMART, as relayed to me through Mr. Hawkins, was that SMART rejected my Advertisement, and thus rejected my religious freedom message. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed this 15th day of June 2010. 6

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