Sixth Circuit: Michigan Can Ban Anti-Islam Ads from Buses
By Joe Palazzolo
Does First Amendment protect our right to say what we want in advertisements on the side of a city bus?
Yes and no.
A federal appeals court ruled Thursday that a Michigan transit authority could bar from the side of its buses an advertisement that read: “Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got Questions? Get Answers! RefugefromIslam.com”
The group behind the ads is the the American Freedom Defense Initiative, which describes its mission as acting “against the treason being committed by national, state, and local government officials, the mainstream media, and others in their capitulation to the global jihad and Islamic supremacism.”
The group had sought in 2010 to place the ads on the buses in Michigan’s four southeastern-most counties, but the authority refused, on the grounds that the ads violated a policy against political advertisements and offensive speech.
AFDI sued, claiming First Amendment violations, and won. A federal district judge ruled in March 2011 that the ad policy gave inadequate guidance on what was permissible. The court noted, for instance, that the authority had allowed an atheist group to advertise on the buses.
The U.S. Court of Appeals for the Sixth Circuit said Thursday said that the side of the bus, in this case, wasn’t a public forum because the transit authority – Suburban Mobility Authority for Regional Transportation, or SMART – rejected all political advertisements. The state never opened the space for discourse.
Once SMART established that the space on the buses was a nonpublic forum, it could ban political speech, as long as it did so in a “reasonable and viewpoint neutral” way. The Sixth Circuit held that it did.
In recent months, federal district courts have ruled that transit authorities in New York and Washington, D.C., violated AFDI’s First Amendment rights by refusing to put up an ad that reads: “In any war between the civilized man and the savage, support the civilized man.”
In the New York case, U.S. District Judge Judge Paul A. Engelmayer ruled that the exterior of buses was a public space, because the New York Metropolitan Transit Authority accepted both political and commercial advertising. Thus, MTA couldn’t restrict AFDI’s political speech.
Update 4:25 p.m.
SMART send us this statement from General Manager John C. Hertel.
SMART is very pleased with the unanimous decision of the U.S. Court of Appeals for the Sixth Circuit in recognizing that SMART did not violate AFDI’s First Amendment rights and in establishing that SMART does not arbitrarily determine who can and cannot advertise on our buses. SMART is first and foremost dedicated to providing good, reliable and safe public transportation and is not a public forum for political discourse.
In an email, Pamela Geller, AFDI’s executive director, called the opinion “tortured and twisted.” Ms. Geller said the ad was religious, not political, in nature. The group plans to ask the Sixth Circuit to rehear the case, Ms. Geller added.
Moreover, this is just a preliminary ruling and not a final ruling on the merits. We intend to engage in aggressive discovery to demonstrate on a complete record that SMART’s speech restriction was arbitrary and ultimately unconstitutional. This case is not over.
Original post: Sixth Circuit: Michigan Can Ban Anti-Islam Ads from Buses