American Freedom Defense Initiative v. Suburban Mobility Auth. for Reg'l Transp.

376 F. Supp. 3d 763
CourtDistrict Court, E.D. Michigan
DecidedMarch 22, 2019
DocketCASE NO. 10-12134
StatusPublished

This text of 376 F. Supp. 3d 763 (American Freedom Defense Initiative v. Suburban Mobility Auth. for Reg'l Transp.) is published on Counsel Stack Legal Research, covering District Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Freedom Defense Initiative v. Suburban Mobility Auth. for Reg'l Transp., 376 F. Supp. 3d 763 (E.D. Mich. 2019).

Opinion

DENISE PAGE HOOD, CHIEF UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Plaintiff American Freedom Defense Initiative ("American Freedom") is a non-profit "human rights organization dedicated to freedom of speech, freedom of conscience, freedom of religion, freedom from religion and individual rights." Dkt. No. 58, Ex. 7 (Geller Dep. at 15-16). Plaintiffs Pamela Geller ("Geller") and Robert Spencer ("Spencer") co-founded the organization and are Executive Director and Associate Director, respectively. Geller and Spencer engage in free speech activity through projects involving American Freedom. One such project involves posting advertisements on advertising space offered by various government transportation entities throughout the United States. American Freedom sought to place such advertising on Detroit metropolitan area buses operated by Defendant Suburban Mobility Authority for Regional Transportation ("SMART").

SMART is a governmental agency required to comply with federal and state laws, including the U.S. Constitution. At the times relevant to this lawsuit, Defendant Dennis Hertel ("Hertel") was the General Manager for SMART and Defendant Beth Gibbons ("Gibbons") was the Marketing Program Manager of SMART. Hertel had decision-making authority to accept or reject advertising pursuant to SMART's advertising guidelines. Gibbons also had decision-making authority with regard to advertisements on SMART buses.

On May 12, 2010, Plaintiffs submitted the following advertisement to SMART for display on its buses:

Fatwa on your head? Is your family or community threatening you? Leaving Islam?
*767Got questions? Get answers! RefugefromIslam.com

Plaintiffs assert that they entered into a contract with SMART's advertising agent to run the ad. On May 24, 2010, Defendants denied Plaintiffs' request to place the advertisement even though CBS Outdoor, Inc. ("CBS"), which administers the SMART advertising program, had determined that the proposed advertisement did not fall into a category prohibited by SMART's Restriction on Content policy. SMART's Restriction on Content policy provides:

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.

Dkt. No. 57, Ex. A at PgID 1011.

American Freedom filed this lawsuit for equitable relief alleging that SMART violated its rights under the First and Fourteenth Amendments to the United States Constitution when SMART prohibited the placement of their advertisement on SMART buses. American Freedom filed a Motion for Preliminary Injunction, which this Court granted on March 31, 2011. Dkt. No. 24. SMART appealed that decision, and the Sixth Circuit Court of Appeals reversed the Court's finding. See American Freedom Defense Initiative v. SMART , 698 F.3d 885 (6th Cir. 2012) (" AFDI v. SMART "). The Sixth Circuit made the following conclusions:

(1) "the advertising space on SMART buses is a nonpublic forum," id. at 892 ;
(2) "SMART's prohibition of political advertisements is reasonable and constitutional on its face," id. ;
(3) "SMART's policies do not appear to have vested unbridled discretion in the decisionmakers," id. at 893 ;
(4) "the ban on political advertising was permissible," id. at 894 ;
(5) "it was reasonable for SMART to turn down the fatwa advertisement as political," id. ;
(6) "it was reasonable for SMART to conclude that the content of AFDI's advertisement ... is, in America today, decidedly political," id. ;
(7) "[b]y its own admission, therefore, AFDI sought to place advertisements on the SMART vehicle to 'promote[ ] its political objectives,' " id. at 895 ;
(8) "AFDI understood its own advertisement to contain a political message; therefore, it would be reasonable for SMART to read the same advertisement and reach the same conclusion, id. ;
(9) "[n]ot only was the designation of the advertisement reasonable, it was also viewpoint neutral, id. ;
(10) the argument that AFDI "will suffer irreparable injury without the preliminary injunction, ... is unpersuasive because the restrictions imposed on the use of a nonpublic forum are reasonable, viewpoint-neutral limits that do not deny AFDI its First Amendment rights," id. at 896 ; and *768(11) "the public interest would not be served by this preliminary injunction ... because SMART's reasonable, viewpoint-neutral limits on the use of this nonpublic forum neither violate AFDI's constitutional rights nor prevent political discussion in a public fora." Id.

After the case was remanded to this Court, both Plaintiffs and Defendants engaged in discovery and then filed cross-Motions for Summary Judgment.

II. STANDARD OF REVIEW

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Bluebook (online)
376 F. Supp. 3d 763, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-freedom-defense-initiative-v-suburban-mobility-auth-for-regl-mied-2019.