There’s been an ongoing court case here in Michigan involving an ad that Pam Geller and Robert Spencer wanted to place on buses in the Detroit area. The public bus system, called SMART, rejected the ad because they said it violates their policy regarding political and controversial content. Geller and Spencer’s group, the American Freedom Defense Initiative (AFDI), filed a federal lawsuit and the district court issued a preliminary injunction in the group’s favor. But now the appeals court has overturned that injunction. You can read the full ruling here.
SMART has a policy that forbids certain types of ads. Their policy says:
In order to minimize chances of abuse, the appearance of favoritism, and the risk of imposing upon a captive audience, [SMART] shall not allow the following content:
1. Political or political campaign advertising.
2. Advertising promoting the sale of alcohol or tobacco.
3. Advertising that is false, misleading, or deceptive.
4. Advertising that is clearly defamatory or likely to hold up to scorn or ridicule any person or group of persons.
5. Advertising that is obscene or pornographic; or in advocacy of imminent lawlessness or unlawful violent action.
The ad that AFDI wanted to put on the buses said this:
Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got Questions? Get Answers! RefugefromIslam.com
SMART rejected the ad, saying it violated the 1st and 4th prohibitions in their policy. But the district court issued a preliminary injunction pending the outcome of the case, saying that AFDI could likely win the argument that SMART’s decision was “arbitrary and capricious.” The 6th Circuit Court of Appeals, however, overturned that decision, saying, “The injunction should not have issued, however, because plaintiffs are not likely to succeed in demonstrating that
SMART unreasonably excluded this political speech from a nonpublic forum.”
Prior to this controversy, there was a similar one over ads placed on those same buses by the Detroit Coalition for Reason. Those ads said:
Don’t believe in God? You are not alone. DetroitCoR.org
AFDI argued that because this ad was accepted, despite great controversy, but theirs was rejected, SMART’s policy was too arbitrary to pass constitutional muster. The district court accepted that argument on a preliminary basis, issuing the injunction. The legal principle in the court precedents on this sort of thing is referred to as viewpoint discrimination, which is forbidden by a government agency when they establish a forum for expression. But there are three kinds of forums — traditional public, designated public, or nonpublic — and the standard of review changes depending on which one the court determines the forum to be.
In this case, the appeals court ruled that the ad spaces on buses constitute a nonpublic forum, which means the lowest level of scrutiny by the courts. AFDI had argued that it was a designated public forum, but the precedents they pointed to all involved bus systems that allowed political ads, while SMART does not. That was an important factor in this ruling; since SMART bans all political ads, it’s not engaging in viewpoint discrimination by rejecting a political ad.
But is this really a political ad? I don’t think it is. It may have some relevance to political controversies, but that doesn’t make it a political ad. The ad focuses only on religion and does not mention any political ideology or organization, just like the atheist ad mentioned above (which the court also said was non-political). So I don’t think the first restriction in the policy is particularly important here. The real key is the fourth restriction, prohibiting any content that is “likely to hold up to scorn or ridicule any person or group of persons.”
The appeals court noted that any such policy is going to have some close calls:
It was reasonable for SMART to focus on longer-term commercial advertising in an effort to boost revenue instead of short-term political advertisements that might alienate riders. SMART reasonably concluded that permitting any political advertisement could interfere with the forum’s revenue generating purpose. It was generally permissible, in other words, for SMART to permit commercial and public service ads, but to turn down political ads.
Assuming this is so, it necessarily follows that such distinctions must be made on an ad-by-ad basis, and that some cases will be close. A commercial ad may have political overtones, such as the ad in the New York Magazine case, which read, “Possibly the only good thing in New York Rudy hasn’t taken credit for.” Determining the extent to which such an ad is political requires some judgment in marginal cases, with knowledge of the current political context, while in contrast a “Vote for Giuliani” ad clearly would be political and a “Buy New York Magazine” ad clearly would not. However, merely because it is sometimes unclear whether an ad is political does not mean the distinction cannot be drawn in the case of a nonpublic forum. The holding in Lehman demands that fine lines be drawn. Otherwise, as a practical matter, a nonpublic forum could never categorically exclude political speech.
Having ruled that the policy prohibiting political ads is constitutional, the court then said that SMART’s decision was reasonable under that policy:
Because the ban on political advertising was permissible, it was reasonable for SMART to turn down the fatwa advertisement as political. Through the fatwa advertisement, AFDI seeks to oppose the perceived sanction of violence that AFDI believes threatens people in the United States. The plain language of the advertisement—“Fatwa on your head? . . . Leaving Islam?”—can well be read to suggest that Muslim-Americans who decide to leave Islam will be threatened or killed. The decision to place the advertisement in a Detroit suburb rather than in the Middle East
indicates that the authors believe that such threats are present in the United States. To substantiate our understanding of the apparent message of the advertisement, we may look beyond the four corners to websites that the advertisement incorporates by reference. A visit to the website listed in the Fatwa advertisement, RefugeFromIslam.com, confirms our understanding of the advertisement’s message. The website is a blog that contains postings about both AFDI and an organization called “Stop Islamization of America.” RefugeFromIslam.com (last visited October 23, 2012). The site also refers to conferences about “Islamic Law in America,” accusations of threatened honor killings in the United States, and numerous other political issues.
Based on recent court cases, legislative actions, and political speeches, it was reasonable for SMART to conclude that the content of AFDI’s advertisement—the purported threat of violence against nonconforming Muslims in America—is, in America today, decidedly political. The very idea of having Islamic law apply in the United States has become one of political controversy.
But this is where I think the arbitrariness comes in. Couldn’t the same thing be said about the atheist ad? Certainly, atheism has many implications involved in active political controversies. The Detroit Coalition for Reason takes stances on political issues just like AFDI does. The appeals court finds a distinction:
AFDI contends that SMART’s actions could not have been viewpoint neutral because SMART allowed the atheist advertisement but disallowed the fatwa advertisement. AFDI contends that because both advertisements discuss religion,
SMART must have discriminated against the fatwa advertisement based on viewpoint. The analogy, however, does not hold. The atheist advertisement could be viewed as a general outreach to people who share the Detroit Coalition’s beliefs, without setting out any position that could result in political action. The fatwa advertisement, however, addresses a specific issue that has been politicized. Two hypothetical changes to the advertisements demonstrate the difference. Had the atheist advertisement read, “Being forced to say the Pledge of Allegiance even though you don’t believe in God? You are not alone. DetroitCoR.org,” the advertisement would likely be political. The hypothetical advertisement would address an issue that has been politicized—requiring atheists to recite “under God,”—and the advertisement would presumably not be permitted under SMART’s policies. Similarly, had AFDI changed its advertisement to read, without
more: “Thinking of Leaving Islam? Got Questions? Get Answers,” SMART presumably could not ban the advertisement. These changes reflect differences in the two actual advertisements that a reasonable administrator, applying an objective
standard, could identify.
Actually, I doubt both of those conclusions. I have no way of knowing, of course, but I suspect that SMART would have accepted the hypothetical atheist ad and still rejected the AFDI ad (mostly because SMART’s area includes Dearborn, which is heavily populated by Muslims). At any rate, I’m mildly disturbed by such hair-splitting and I can easily see how this could be used to prohibit a lot of potential ads whose content I would agree with.
This is all preliminary, not a final ruling. The lawsuit is still in the district court and this ruling involved only the question of whether the preliminary injunction was properly ordered. But the district court will now likely rule against AFDI, based on this new ruling, and then it will be appealed. I’m not sure whether the same three judge panel would hear the appeal of the full case. If they do, it’s clear how they’ll rule. But if it’s a different panel, they may well come to a different conclusion.