Coleman v. Ann Arbor Transp. Auth.

• Decision Date: 04 June 2013
• Docket Number: Civil Action No. 11–CV–15207.
• Parties: Blaine COLEMAN, Plaintiff, v. ANN ARBOR TRANSPORTATION AUTHORITY, et al., Defendants.
• Court: U.S. District Court — Eastern District of Michigan

947 F.Supp.2d 777

Blaine COLEMAN, Plaintiff,

v.ANN ARBOR TRANSPORTATION AUTHORITY, et al., Defendants.

Civil Action No. 11–CV–15207.

United States District Court,

E.D. Michigan,

Southern Division.

June 4, 2013.

Michael L. Steinberg, Rick A. Haberman, Daniel S. Korobkin, American Civil Liberties Union of Michigan, Detroit, MI, for Plaintiff.

Harvey R. Heller, Kathleen H. Klaus, Thomas W. Werner, Maddin, Hauser, Wartell, Roth & Heller, Southfield, MI, Jerod Lax, Rebecca L. Takacs, Pear Sperling Eggan & Daniels, P.C., Ann Arbor, MI, for Defendants.

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 injunctive 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 Plaintiff's 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 Plaintiff's 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 “nonpublicforum”—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, Plaintiff's ad now stands rejected on a basis against which Plaintiff cannot mount a successful facial challenge. As a consequence, Plaintiff's challenge to the request for additional preliminary injunctive relief based on a challenge to AATA's policy and the rejection of Plaintiff's 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, Plaintiff's 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 “[d]efames 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 Plaintiff's 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.

• 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 Plaintiff's motion for injunctive 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 preliminary 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 December17, 2012, the Court issued an order requiring AATA to reconsider Plaintiff's ad under the revised policy (Dkt. 62).⁴ On January 4, 2013, AATA notified the Court that it had reconsidered Plaintiff's ad and had rejected it under the revised policy, invoking both the new “no political ads” provision and the “scorn or ridicule” provision, as independent grounds (Dkt. 63).⁵

Following AATA's reconsideration of Plaintiff's proposed ad, the Court conducted a status conference, and subsequently issued an order (Dkt. 65) for an additional round of supplemental briefing, addressing “the impact, if any, of AATA's adoption of a revised policy and rejection of Plaintiff's ad on Plaintiff's request for further preliminary injunctive relief in the form of an order to run Plaintiff's advertisement.” The parties filed supplemental briefs on this issue (Dkts. 66, 67), which the Court has reviewed.

III. ANALYSIS

A. Parties' Arguments

Plaintiff effectively concedes that, under SMART, the “no political ads” provision invoked by AATA is a constitutionally sound basis for rejecting an ad. Pl. Second Supp. Br. at 1 (Dkt. 67). However, he claims that, in the context of the instantcase, AATA's adoption of that policy should not dissuade this Court from ordering AATA to run his ad because AATA's action is simply a post-hoc rationalization of its hostility to Plaintiff's message. Id. at 1–2. In other words, Plaintiff argues that, in adopting the new policy, AATA was motivated by actual viewpoint discrimination. Id. at 3–4. Plaintiff also argues that the Court should order AATA to run the ad to avoid creating a “perverse” incentive for a government to adopt intentionally unclear standards to block unpopular messages on the theory that the government might cynically determine that, if it is sued, it would simply revise the policy to a facially neutral one. Pl. Supp. Br. at 8–9 (Dkt. 52); Pl. Second Supp. Br. at 8–9 (Dkt. 67). In addition, he argues that, without the reward of having his ad run, he will be “chilled” in the exercise of his First Amendment rights. Pl. Supp. Br. at 9; Pl. Second Supp. Br. at 8–9.

In response, AATA argues that ordering it to reconsider Plaintiff's ad under the revised policy was sufficient injunctive relief. Def. Supp. Br. at 3–4 (Dkt. 54); Def. Additional Supp. Br. at 2 (Dkt. 66). AATA maintains that government agencies are free to change the nature of the forums that they create. The...