October 26, 2012
Sixth Circuit Rejects First Amendment Claim of Anti-Muslim Advertisers
In its opinion in American Freedom Defense Initiative v. Suburban Mobility for Regional Transportation (SMART), the Sixth Circuit upheld SMART's rejection of advertisements for city buses.
The potentional advertising group, American Freedom Defense Initiative, is indeed the same one whose advertisements on NYC subways caused controversy last month. The Sixth Circuit, unlike the district judge in New York, rejected the Intiative's First Amendment claim when it challenged the refusal to run its advertisements. In large part, the distinction between the two situations rests upon the policies of the transportation agencies.
SMART, a state transportation agency in Southern Michigan, does allow advertising on its vehicles, but its policy prohibits several categories of advertising including "political or political campaign advertising" and "advertising that is clearly defamatory or likely to hold up to scorn or ridicule any person or group of persons." SMART - - - wisely - - - rested its rejection on the political rationale. The advertisement that SMART had refused read: "Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got Questions? Get Answers! RefugefromIslam.com." Interestingly, to determine the meaning of "political," the court not only consulted the website in the advertisement but found confirmation in the language of American Freedom Defense Initiative's own complaint:
According to the complaint, AFDI “acts against the treason being committed by national, state, and local government officials . . . in their capitulation to the global jihad and Islamic supremacism.” Compl. ¶ 7. The complaint explains that AFDI “promotes its political objectives by, inter alia, sponsoring anti-jihad bus and billboard campaigns, which includes seeking advertising space on SMART vehicles.” Id. ¶ 8. By its own admission, therefore, AFDI sought to place advertisements on the SMART vehicle to “promote its political objectives.” Moreover, by denying the placement of the fatwa advertisement, AFDI alleges that SMART “denied Plaintiffs’ advertisement, and thus denied Plaintiffs access to a public forum to express their political and religious message.” Id. ¶ 21. 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.
Doctrinally, SMART's ability to enforce a political exclusion rests upon the court's acceptance of the city buses as nonpublic forums. Yet there is some circularity here: SMART's "tight control" over the advertising space, as well as the fact that it "has banned political advertisements, speech that is the hallmark of a public forum" support the court's conclusion.
The panel recognized that there are close calls, and even suggested an advertisement that would not be political, but ultimately validated SMART's call as correct and consistent with its practices.
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The notion that the government can sell space to the public for commercial speech purposes, but exclude political speech, pretty much reverses the values protected by the freedom of speech clause. How a court could find the space sold to be a "nonpublic" forum is also perplexing, even it if is located in what might otherwise be considered a nonpublic forum. By allowing the public to use the space for speech, doesn't that, by definition, make it a designated public forum? Lehman v. Shaker Heights is as wrong now as it was when it was decided. Permitting the government to open a place for public speech and then make content-based (and viewpoint-based) distinctions, then justifying the distinctions with reference to those very distinctions (e.g., it is a nonpublic forum because the government has a policy to exclude political speech) simply removes any constitutional constraints on the government. The best remedy for false speech is true speech, and that should be the only permissible remedy under the Constitution, unless the narrow requirements of a low-protection category such as advocacy of unlawful action is applicable. If it were a "close call," which I don't think it is, then the call should be for freedom of speech, not government control of speech.
Posted by: Jeffrey G. Purvis | Oct 27, 2012 12:42:31 PM