Coleman v. Ann Arbor Transportation Authority

947 F. Supp. 2d 777, 2013 WL 2420811, 2013 U.S. Dist. LEXIS 78100
CourtDistrict Court, E.D. Michigan
DecidedJune 4, 2013
DocketCivil Action No. 11-CV-15207
StatusPublished
Cited by5 cases

This text of 947 F. Supp. 2d 777 (Coleman v. Ann Arbor Transportation Authority) 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
Coleman v. Ann Arbor Transportation Authority, 947 F. Supp. 2d 777, 2013 WL 2420811, 2013 U.S. Dist. LEXIS 78100 (E.D. Mich. 2013).

Opinion

OPINION AND ORDER DENYING FURTHER PRELIMINARY INJUNCTIVE RELIEF

MARK A. GOLDSMITH, District Judge.

I. INTRODUCTION

In this First Amendment case, Plaintiff Blaine Coleman challenges the bus advertising policy of Defendant Ann Arbor Transportation Authority (AATA) and the rejection, under that policy, of his proposed ad, which is critical of Israel. He filed a motion for a preliminary injunction and/or temporary restraining order (Dkt. 3), arguing that the policy—which required that ads be “in good taste” and not likely to subject any “group of persons” to “scorn or ridicule”—was unconstitutional. The Court issued an Opinion and Order (“the initial Opinion”) (Dkt. 59), in which it agreed that the policy was, in part, unconstitutional. However, the Court ordered additional briefing on what specific injunc-tive relief should be awarded, including whether AATA should be required to run the ad, or ordered to reconsider the ad under a revised policy that is constitutionally sound. AATA subsequently revised its advertising policy, by deleting the constitutionally offensive “good taste” provision and by adding a provision barring “political ads”—a provision identical to one expressly held to be constitutional by the United States Court of Appeals for the Sixth Circuit in a bus-advertisement case decided shortly after this Court issued the initial Opinion. See Am. Freedom Def. Initiative v. Suburban Mobility Auth. for Reg’l Transp. (SMART), 698 F.3d 885 (6th Cir.2012). Following AATA’s adoption of the revised policy, this Court concluded that, at a minimum, it was appropriate to order AATA to reconsider Plaintiffs ad under the new policy, while noting that additional relief requested by Plaintiff— ordering AATA to run his ad—might later be granted. Order (Dkt. 62). . Because AATA proceeded to reject Plaintiffs ad under the revised policy based on two provisions—one of which was the “no political ads” provision—the Court now considers whether further preliminary injunctive relief is required.

As the Court will discuss in detail below, events that occurred after the issuance of the initial Opinion have dramatically changed the legal landscape. The policy that Plaintiff initially challenged has been significantly changed. And the new policy has also changed the forum, for purposes of the First Amendment, from a “designated public forum”—where content-based restrictions typically fail under strict scrutiny—to a “limited public forum” or “non[780]*780public forum”—in which the “no political ads” restriction, invoked by AATA in its renewed rejection of the ad, has been found constitutionally sound.1 Further, with AATA’s invocation of the “no political ads” provision, Plaintiffs ad now stands rejected on a basis against which Plaintiff cannot mount a successful facial challenge. As a consequence, Plaintiffs challenge to the request for additional preliminary in-junctive relief based on a challenge to AATA’s policy and the rejection of Plaintiffs ad are now moot, because they present no ongoing constitutional violation or threat of harm. While Plaintiff suspects that AATA’s revised policy and recent rejection of his ad are the product of actual viewpoint discrimination, Plaintiffs motion as presently framed and supported does not properly raise that issue. Accordingly, the Court will deny any additional preliminary injunctive relief at present.

II. FACTUAL AND PROCEDURAL BACKGROUND

Because the Court’s initial Opinion set out in detail the relevant factual and procedural background to this case, only a brief recitation of the background is necessary here.

Plaintiff submitted a proposed advertisement, critical of Israel, for placement on AATA buses. AATA rejected the ad on the grounds that it violated two provisions of AATA’s advertising policy: a provision requiring that all advertising be in “good taste,” and a provision barring advertising that “[djefames or is likely to hold up to scorn or ridicule a person or group of persons.” Advertising Policy (Dkt. 3-21).

In his injunction motion challenging that rejection, Plaintiff raised the following issues:

• The provision requiring that ads be “in good taste” and “uphold the aesthetic standards as determined by AATA” is facially unconstitutional on vagueness grounds.
• The “scorn or ridicule” provision was facially unconstitutional because AATA’s advertising space is a designated public forum, in which rejection of Plaintiffs ad on content grounds violates the First Amendment.
• Even if AATA’s advertising space is not a designated public forum, the “scorn or ridicule” provision is facially unconstitutional because it is not viewpoint neutral.
[781]*781• The portion of the advertising policy that prohibits ads that are “likely to hold up to scorn or ridicule a person or group of persons” is unconstitutionally vague as applied because the decision to include Israel as a “group of persons” was based on an insufficiently clear standard.

The Court issued its initial Opinion (Dkt. 59) granting Plaintiffs motion for injunc-tive relief. The Opinion concluded that Plaintiff had established a likelihood of succeeding on the merits with respect to the following:

• The “good taste” provision of the advertising policy was unconstitutionally vague.
• The AATA bus advertising space was a designated public forum under United Food & Commercial Workers Union, Local 1099 v. Southwest Ohio Regional Transit Authority, 163 F.3d 341 (6th Cir.1998) because the policy’s “good taste” provision was unconstitutionally vague.
• In such a designated public forum, the appropriate test was strict scrutiny, which the “scorn or ridicule” provision could not meet because it was a content-based restriction. Op. at 25-34 (Dkt. 59).

The Court also concluded that the remaining prehminary injunction factors weighed in favor of granting preliminary injunctive relief to Plaintiff. Id. at 37-38. Finally, the Court ordered additional briefing on the issue of what preliminary injunctive relief would be appropriate. Id. at 38-39.2

Before the additional briefing was completed, the Sixth Circuit issued the SMART decision. In SMART, the district court had enjoined a public transit authority from banning an ad critical of Islam under a policy prohibiting political ads. The Sixth Circuit reversed, holding that such a ban was not an unconstitutional restriction on speech because the advertising space was a nonpublic forum, and because the exclusion of political ads was reasonable and viewpoint neutral.

On December 6, 2012, AATA notified the Court that AATA had amended its advertising policy in response to SMART (Dkt. 61). The new policy reiterated the old policy’s stated intent not to create a public forum. But it broke new ground by deleting the “good taste” provision—in accordance with the Court’s prior ruling finding that provision unconstitutional— and by adding a ban on “political or political campaign advertising”—the identical provision that the SMART decision had recently found constitutional.3 On Decem[782]*782ber 17, 2012, the Court issued an order requiring AATA to reconsider Plaintiffs ad under the revised policy (Dkt.

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947 F. Supp. 2d 777, 2013 WL 2420811, 2013 U.S. Dist. LEXIS 78100, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coleman-v-ann-arbor-transportation-authority-mied-2013.