Am. Freedom Defense Initiative v. Suburban Mobility Auth. for Reg'l Transp. (Smart)

• Citation: 978 F.3d 481
• Decision Date: 23 October 2020
• Docket Number: No. 19-1311,19-1311
• Parties: AMERICAN FREEDOM DEFENSE INITIATIVE; Pamela Geller; Robert Spencer, Plaintiffs-Appellants, v. SUBURBAN MOBILITY AUTHORITY FOR REGIONAL TRANSPORTATION (SMART); John Hertel, individually and in his official capacity as General Manager of SMART; Beth Gibbons, individually and in her official capacity as Marketing Program Manager of SMART, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

978 F.3d 481

AMERICAN FREEDOM DEFENSE INITIATIVE; Pamela Geller; Robert Spencer, Plaintiffs-Appellants,

v.SUBURBAN MOBILITY AUTHORITY FOR REGIONAL TRANSPORTATION (SMART); John Hertel, individually and in his official capacity as General Manager of SMART; Beth Gibbons, individually and in her official capacity as Marketing Program Manager of SMART, Defendants-Appellees.

No. 19-1311

United States Court of Appeals, Sixth Circuit.

Argued: December 13, 2019

Decided and Filed: October 23, 2020

Rehearing En Banc Denied November 24, 2020

ARGUED: Robert Joseph Muise, AMERICAN FREEDOM LAW CENTER, Ann Arbor, Michigan, for Appellants. Christian E. Hildebrandt, VANDEVEER GARZIA, P.C., Troy, Michigan, for Appellees. ON BRIEF: Robert Joseph Muise, AMERICAN FREEDOM LAW CENTER, Ann Arbor, Michigan, David Yerushalmi, AMERICAN FREEDOM LAW CENTER, Washington, D.C., for Appellants. Christian E. Hildebrandt, VANDEVEER GARZIA, P.C., Troy, Michigan, Kirsten Silwanowicz, Ronald E. Beier, II, SUBURBAN MOBILITY AUTHORITY FOR REGIONAL TRANSPORTATION, Detroit, Michigan, for Appellees.

Before: COLE, Chief Judge; SILER and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

The Free Speech Clause limits the government's power to regulate speech on public property. The government has little leeway to restrict speech in "public forums": properties like parks or streets that are open to speech by tradition or design. It has wider latitude to restrict speech in "nonpublic forums" that have not been opened to debate. Even there, however, speech restrictions must be reasonable and viewpoint neutral. See Minn. Voters All. v. Mansky , ––– U.S. ––––, 138 S. Ct. 1876, 1885, 201 L.Ed.2d 201 (2018). In this case, we must consider how these rules apply to the restrictions that a public-transit authority imposes on parties who seek to display advertisements on its buses. The American Freedom Defense Initiative sought to run an ad that said: "Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got Questions? Get Answers! RefugefromIslam.com." Michigan's Suburban Mobility Authority for Regional Transportation (SMART) rejected this ad under two of its speech restrictions. The first prohibits "political" ads; the second prohibits ads that would hold up a group of people to "scorn or ridicule."

Earlier in this case, we found, first, that the advertising space on SMART's buses is a nonpublic forum and, second, that SMART likely could show that its restrictions were reasonable and viewpoint neutral. Am. Freedom Def. Initiative v. Suburban Mobility Auth. for Reg'l Transp. , 698 F.3d 885, 890–96 (6th Cir. 2012). Since then, the Supreme Court has issued a pair of decisions that compel us to change course on our second conclusion. SMART's ban on "political" ads is unreasonable for the same reason that a state's ban on "political" apparel at polling places is unreasonable: SMART offers no "sensible basis for distinguishing what may come in from what must stay out." Mansky , 138 S. Ct. at 1888. Likewise, SMART's ban on ads that engage in "scorn or ridicule" is not viewpoint neutral for the same reason that a ban on trademarks that disparage people is not viewpoint neutral: For any group, "an applicant may [display] a positive or benign [ad] but not a derogatory one." Matal v. Tam , ––– U.S. ––––, 137 S. Ct. 1744, 1766, 198 L.Ed.2d 366 (2017) (Kennedy, J., concurring in part and concurring in the judgment); id. at 1763 (Alito, J., opinion). We thus reverse the district court's decision rejecting the First Amendment challenge to these two restrictions.

I

A

SMART, a government agency, manages a public-transportation system for the four counties in and around Detroit, Michigan. It operates hundreds of buses that stop at dozens of bus shelters. For a fee, parties may display advertisements on the inside and outside of SMART's buses and bus shelters.

In 2008, SMART contracted with a third party, CBS Outdoor, to manage the sale and placement of these ads. Under this contract, SMART is guaranteed to make at least $500,000 per year from the ads. It uses this money to help fund its approximately $130-million budget. The contract includes "Advertising Guidelines" that regulate, among other things, the content of ads that may be placed on buses and bus shelters. The Guidelines prohibit several types of ads, including "political" ads and ads that engage in "scorn or ridicule":

In order to minimize chances of abuse, the appearance of favoritism, and the risk of imposing upon a captive audience, [CBS] 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.

Contract, R.57-2, PageID#1011. The contract requires CBS to obtain SMART's preapproval before displaying any ad that might violate these restrictions.

When a potential advertiser seeks to place an ad, it speaks with CBS about the logistics, including the pricing, timing, and available space. If CBS believes that the ad might violate the Advertising Guidelines, it alerts SMART. Beth Gibbons, a SMART marketing manager, oversees the advertising program and receives these notices. Gibbons bears the initial responsibility to decide if a proposed ad violates an Advertising Guideline because, for example, it is "political." Although she may reject an ad on her own, she regularly seeks input from others at SMART, including its lawyers and ultimately its general manager.

Since 2008, SMART has placed hundreds of ads on its buses. The ads have not been purely commercial. SMART has allowed many issue-oriented ads. It permits "get out the vote drives" encouraging individuals to vote. It has run an ad picturing a county sheriff and prosecutor that asks individuals to report drunk drivers. And it has run public-health ads. Some approved ads have discouraged smoking with provocative pictures of a smoker who has had a tracheostomy

. Others have advertised free birth control and family planning. Still others have encouraged HIV testing. A "status sexy" ad campaign, for example, identified "statussexy.com" as an address to find testing sites, displayed shirtless men in seductive poses, and stated things like "Knowing your HIV status shows confidence. That's always Sexy."

SMART has also allowed religious ads. It has approved an ad promoting services at a local church. And it has approved an ad by the Detroit Area Coalition of Reason asking "Don't believe in God? You are not alone.":

Members of the public and bus drivers complained about this atheist ad. Two buses displaying it were also vandalized (the "Don't" was scratched out). In response, SMART amended its website to state that "First Amendment free speech rights require that SMART not censor free speech and because of that, SMART is required to provide equal access to advertising on our vehicles." The website continued: "Advertising posted on SMART property does not always reflect the views or opinions of SMART, its employees or riders."

Of the hundreds of ads that SMART has been asked to display, it has rejected four under its Advertising Guidelines. The first concerned abortion. Pinckney Pro-Life sought to place an ad that asked "Hurting after Abortion?", displayed a picture of Jesus, identified a number to call for "Confidential Help," and listed two websites:

SMART deemed this ad "political" because the websites contained "pro-life information" advocating against abortion.

SMART also rejected an ad for a video game, "Red Dead Redemption," on a different ground. A character in the ad pointed a gun at onlookers, and SMART found that the ad violated its restriction prohibiting advocacy of unlawful violent action. SMART later approved the video-game ad without the gun.

B

This suit concerns the other two ads that SMART has rejected. In April 2010, Pamela Geller contacted CBS about her organization placing an ad on SMART buses. Geller and Robert Spencer co-founded the "American Freedom Defense Initiative" (AFDI) to engage in free-speech advocacy. AFDI's ad asked various questions ("Fatwa on your head?", "Is your family or community threatening you?", and "Leaving Islam?") and listed the website "RefugeFromIslam.com":

In May 2010, CBS sent this ad to Gibbons for SMART's review. Gibbons did not believe that it was "political." But she had learned from a newsletter that similar ads created controversy in Florida. So she forwarded the proposed ad to others in SMART's administration.

SMART's general manager, in coordination with Gibbons and others, decided to reject the ad. SMART found that the ad was "political" and that it engaged in "scorn or ridicule." SMART viewed the ad as "political" because "fatwa" referred to sharia law and because the website contained anti-Islamic commentary. SMART also found that the ad would likely hold people of the Islamic faith up to scorn or ridicule because it suggested that they might threaten their family members.

During this litigation, AFDI attempted to run a second ad mirroring the atheist ad that SMART had permitted:

SMART rejected this ad too because the content in the listed website was political. SMART did, however, offer to place this ad on its buses if AFDI removed the accompanying website.

C

AFDI, Geller, and Spencer (collectively, AFDI) sued SMART and various employees alleging that SMART's refusal to post the "fatwa" ad violated the First Amendment.

The district court granted AFDI a preliminary injunction. It decided that SMART had created a nonpublic forum, which allowed SMART to adopt reasonable, viewpoint-neutral restrictions. But the court found that AFDI was likely to show that SMART's ban on political ads was unreasonable because "there is nothing in the policy that can guide a...