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Appeals Court Rules Against Geller, Spencer

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.

Comments

  1. Sastra says

    Interesting case. On the surface, the ad looks very similar to ads for help against spousal abuse, or bullying, or dealing with a troubled teen. One pictures the phones being manned by sympathetic social workers and psychologists giving advice, or perhaps directing people to shelters, counseling, or support groups. In which case, the ad should be allowed under the criteria.

    Apparently, though, that’s not the point. Which makes me wonder — exactly what happens when you call the number? Is there a concerned person on the other end bursting with info and aid on personal resources and solutions on avoiding forced marriage or similar? Or do you just get some political hack and a bunch of arguments against creeping sharia? I don’t get it. Who calls? Who answers? What do they say?

  2. laurentweppe says

    You know what? The third point of SMART policy state that:

    Advertising that is false, misleading, or deceptive is forbidden.
    .
    The AFDI ads is built on the pretense that it can provides help to Muslims suffering from religious abuse from within their community.
    We’re talking about Wingnuts Supremes Spencer and Geller. Who would be naive enough to believen even for one tiny fraction of a second, that these two and their band of thugs would genuinly, honestly, sincerely provide help to people trying to escape abuse from within their community, given that their anti-islam rhetoric is only a front meant to disguise their crass racism.
    .
    Let say that someone suffering from abuse from within the Muslim read the ad, and go to this group seeking help.
    They will not provide help: they’ll use whoever comes to them as meat for their propaganda and keep treating such a person with scorn and contempt because their brain run on Limpieza de Sangre 2.0
    .
    So this ad quite qualifies as “misleading, and deceptive”: hair splitting or not, letting it run -appart from letting these racist nutjobs becoming even more unhinged- would have been harmful.

  3. eric says

    But this is where I think the arbitrariness comes in. Couldn’t the same thing be said about the atheist ad?

    Well, I’m just working on your post and not the links, but…

    I think that, by looking at the web site the ad points to, you can draw a distinction. The atheist ads point to atheis clubs, while the Geller and Spencer ads seem to point to an organization whose purpose is to pass legislation, promote candidates, etc… At least that’s the way I read your excerpts.

    If that’s not the case here, then I think that would still be a reasonable distinction to draw in future cases. The courts would basically be saying: a political entity can’t make a seemingly non-political ad, have the ad point people to their political organization, and call it “nonpolitical” advertising. If you’re the state GOP, you’re not going to get away with a bus ad saying “Buy waffles! Visit www dot republicans dot com for details.” Which is sort of what the Gellar ad seems to be doing.

  4. says

    I concur with laurentweppe that AFDI’s ad contravened the false/misleading/deceptive part of the SMART policy.

    I would add that, while the parts of the ruling cited by Ed do not seem to mention the defamatory/scorn part of the SMART policy, Ed does in the OP (though only briefly), and it seems to me that the AFDI ad contravenes that policy item in a way the Detroit Coalition of Reason ad does not.

    In addition, the AFDI ad could have been reworded as “Thinking of Leaving Islam?” plus a link to their website/hotline. In such a case it would definitely pass muster with SMART policy item #4. Even if it was inflammatory due to the presence of Dearborn, the revised ad wouldn’t be implying American Muslims, as an aggregate, are violent & abusive.

    Not sure if it would hold up to scrutiny with regards to being false/misleading/deceptive, though.

  5. anandine says

    I agree with the court with the ad as written, but if it were cut to “Leaving Islam? Got Questions? Get Answers! RefugefromIslam.com” I think it would pass muster. It leaves the public service message without the anti-Islam flavor.

  6. Crip Dyke, MQ, Right Reverend Feminist FuckToy of Death & Her Handmaiden says

    Ed, I agree with you that there is potentially problematic hair splitting going on.

    But I also agree with the court – the job of sorting speech into categories **inevitably** requires judgement calls and hair splitting. Not every decisino requires it. Hopefully with enough clarity over time, few decisions will. But you can’t make a system that has a bright line, non-hair splitting test for sorting speech into categories. Just try making up some nice P,~P categories and invite comments that people are sure belong in one or the other. Quickly you’ll find that some people don’t get the intent of the speaker, or not all speakers type and/or spell well, etc. And then you get your inevitable close calls, even though you only asked for the crystal clear cases.

    I’m not fussed that the courts are making nit-picky judgement calls. They always have.

    It may be true that when 2 ads come close to the dividing line, any number of small factors might push it into P or into ~P. That doesn’t mean the big criteria are useless or that the decision is irrational. It just means that when you account for the big things and end up teetering on the edge, it’s the small things that seem trivial to others that end up dragging you down on one side or the other.

    And that’s okay.

    Me personally? I don’t think the atheist ad is as clse to the edge as implied by the circuit court, but it doesn’t worry me that hair splitting is going on – that would be happening whether there was an atheist ad or not.

  7. aluchko says

    I think it is valid to reject due to the mention of Fatwas at the start. That tells me the audience is not Muslims but non-Muslims, and the purpose is to defame. The bit about being threatened is also worrisome but a harder call.

    Without the bit about Fatwas I’d probably give it a pass.

  8. chrisdevries says

    In the case of the atheist ad, the group potentially being “scorned” (in the case of point 4) is a huge majority of Americans (monotheists). Now, the atheist ad was pretty mild, but given the sensitivity of Christians and their known low threshold for “oppression”, I am surprised that the ad was approved. Nonetheless, when the views being called into question are those of the majority, it is harder to convince someone that the advertisement in question does any real harm. No reasonable judge will accept the claim that anti-Christian or anti-religious sentiment stirred up by the atheist ad will likely lead to church burnings and the lynching of the faithful. Christians often imagine they are an oppressed minority in the USA, but an unbiased examination of the facts shows that they enjoy almost exclusive privilege from their faith.

    The Refuge from Islam advertisement “scorns” a small minority; it is easy to see how such an advertisement could provoke more than scorn, but actual violence against those perceived to be the evil Muslims who won’t let their brethren convert to Christianity. And given the large number of Muslims in the area, it could be argued that the group is specifically targeting Muslims for scorn.

    The ads ARE different; it seems that the atheists designed their ad to be as polite and reasonable as possible, while the Refuge from Islam people designed theirs to draw attention to known Muslim behavior that most Americans would find abhorrent. So, while it is a slippery slope, I think that the ad, in its current form, should not be allowed. However, if the suggested revised wording “Thinking of Leaving Islam? Got Questions? Get Answers” was implemented, the advertisement should be allowed, in my opinion.

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