CINCINNATI (CN) – A conservative free speech group appeared successful Friday at persuading a Sixth Circuit panel that a Detroit-area public transit authority cannot ban its anti-Muslim ads for being overtly political.
The American Freedom Defense Initiative sued the Suburban Mobility Authority for Regional Transportation in 2010 in an attempt to get its “Refuge From Islam” ad on the sides of public transit vehicles in metro Detroit.
The ad reads: “Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got questions? Get answers! RefugefromIslam.com.” It was rejected by the transit authority, known as SMART, as being political speech.
Although a federal judge initially granted AFDI’s motion for a preliminary injunction, the Sixth Circuit overturned the injunction in a 2012 ruling and told the district court that SMART’s ban on political advertisements is both reasonable and constitutional.
Upon remand, both parties conducted discovery and filed motions for summary judgment.
U.S. District Judge Denise Hood sided with SMART, ruling in March that because the public transit vehicles are a nonpublic forum, the speech contained in the ad is afforded less protection under the First Amendment.
AFDI appealed the decision, which returned the case to the Sixth Circuit for Friday’s arguments in front of a different panel of judges.
Attorney Robert Muise argued on behalf of AFDI, and cited a pair of recent U.S. Supreme Court decisions throughout his argument – the 2017 case Matal v. Tam and the 2018 case Minnesota Voters Alliance v. Mansky.
In Tam, the nation’s high court found the Lanham Act’s disparagement clause, which prohibits scornful or offensive speech in trademarks, is viewpoint-based and violates the First Amendment, while Mansky found a ban on political apparel at polling places was unconstitutional.
U.S. Circuit Judge Eric Murphy, an appointee of President Donald Trump, asked Muise if there would be any limitations on the ads allowed on buses if the panel struck down SMART’s restrictions, including whether the KKK could advertise on vehicles.
“Hard cases oftentimes made bad law,” Muise responded, adding that if SMART wanted to eliminate potentially political advertising, “they don’t have to permit advertising.”
The attorney told the panel that while banning campaign ads is an objective standard, SMART’s sliding restrictions on what constitutes political speech is subjective and allows “unfettered discretion” on behalf of the government agency to dictate speech.
Attorney Christian Hildebrandt argued on behalf of SMART and faced a barrage of hypotheticals from Murphy, who pounced on a deposition witness’ definition of political as anything that produces divided viewpoints in society.
“You can’t get our society to agree on anything,” the judge said, and asked about putting a “Go Bucks” sign in a bus, referencing the college football rivalry between the Ohio State Buckeyes and Michigan Wolverines.
Murphy pressed on, asking whether Planned Parenthood or the National Rifle Association would be allowed to advertise on SMART’s buses.
Hildebrandt said it would depend on the ads, and that such groups could advertise but not advocate specific positions. He added that examples like the “Go Bucks” ad take the matter to “illogical extremes.”
“The point of Mansky,” the attorney told the panel, “was that it was as haphazard standard.”
Murphy pointed out that SMART’s standard seems to be continually changing, and that the agency’s definition of “politicized speech” took it out of the realm of politics entirely.
Hildebrandt responded that SMART analyzes the proposed ad, as well as the advertiser’s website, before it makes a final decision.
“I completely feel for you,” Murphy said, “but we have these recent Supreme Court decisions.”
The judge added that the point of a definitive standard is to make answers to hypothetical scenarios straightforward.
“It’s not clear to me what the answer would be to a lot of these hypotheticals,” he said.
In his rebuttal, Muise said SMART’s restriction is unlawful on its face.
“The standard is utterly unworkable,” he said. “This is Mansky in spades.”
Muise said in an interview after the hearing that he “would be surprised if we don’t prevail,” based on the precedents set in Tam and Mansky.
Hildebrandt declined to comment after the argument.
Chief U.S. Circuit Judge R. Guy Cole Jr., an appointee of Bill Clinton, and Senior U.S. Circuit Judge Eugene Siler Jr., a George H.W. Bush appointee, also sat on the panel.
No timetable has been set for the court’s decision.