Sixth Circuit Strikes Down Ban on Political Speech in Bus Ads

(Photo via skeeze/Pixabay)

CINCINNATI (CN) — An appeals court panel sided with a conservative free speech group Friday and ruled a Detroit-area public transit authority’s ban on political speech in ads violates the First Amendment because such speech is not clearly defined.

The American Freedom Defense Initiative filed suit against the Suburban Mobility Authority for Regional Transportation, or SMART, in 2010, after two of its proposed ads regarding Islam were rejected for placement on buses. The ads were part of an outreach by AFDI to Muslims who wanted to leave the Islamic faith and promoted the website RefugefromIslam.com.

AFDI was initially successful and obtained an injunction from a federal judge, but the Sixth Circuit overturned the ruling in 2012 and held SMART had enacted a permissible total ban on political advertising.

Discovery was conducted following a remand to federal court, and U.S. District Judge Denise Hood sided with SMART in a 2019 decision after she determined the buses are a nonpublic forum.

The case was argued before a different panel of Sixth Circuit judges in December 2019, and Friday’s ruling focused heavily on recent Supreme Court decisions, including the 2018 case Minnesota Voters Alliance v. Mansky.

Mansky involved a ban on political apparel at polling locations, but the Supreme Court struck the law down as unconstitutional because of the lack of a definition of the term “political.”

U.S. Circuit Judge Eric Murphy, an appointee of President Donald Trump, wrote that the Mansky decision required he and his colleagues to invalidate SMART’s political speech restriction and reverse the decision of the district court.

Murphy conceded that in a nonpublic forum, a government restriction on speech need only be reasonable to pass constitutional muster, but pointed out that SMART’s failure to precisely define political speech runs afoul of the precedent established in Mansky.

“The word [‘political’] has a range of meanings,” Murphy said. “It can have an ‘expansive’ reach, covering ‘anything of, relating to, or dealing with the structure or affairs of government, politics, or the state.’ SMART, however, does not follow this broad reading. Under this definition, even get-out-the-vote drives or public-service announcements encouraging individuals to report drunk drivers would qualify. Yet SMART allows such public-issue ads.”

Murphy also explained that SMART’s failure to adequately define political speech has led to an erratic and inconsistent application of its advertising guidelines, and cited an atheist ad that was allowed by the transit authority as an example.

“Are fractions of society fractured on the existence of God, such that members of society have taken up different positions on the issue? Yes, a range of views exists. Does this ad ‘advocate’ for one of those views? One could reasonably read it as promoting the view that God does not exist,” he wrote.

The judge added, “In fact, members of the public complained about the ad and drivers refused to drive buses displaying it. When one considers that the Detroit Area Coalition of Reason advocates for the separation of church and state, it is not at all clear why SMART’s definition permits this ad.”

Murphy said the lack of a workable definition has forced SMART to “apply the ban on the fly” as each ad is presented to it, which cannot be allowed under the Supreme Court’s decision in Mansky.

SMART had also argued that it rejected the AFDI ad because it subjected a group of people – in this case, Muslims – to “scorn or ridicule,” but the panel rejected the argument and held the transit authority’s application of this standard would be viewpoint discrimination.

“SMART conceded,” Murphy wrote, “that an ad implying that Islam is a ‘religion of peace’ likely would not violate its scorn-or-ridicule restriction. Yet SMART found that AFDI’s ad violated the restriction because it implied that Islam was violent by suggesting that members of the faith would threaten family members. On its face and as applied, therefore, SMART’s restriction engages in impermissible viewpoint discrimination.”

In his conclusion, Murphy called SMART’s attempts at restrictions on divisive speech “understandable,” but nevertheless said the agency must find a reasonable way to enforce its advertising guidelines that protects its ridership but does not infringe on advertisers’ First Amendment rights.

Chief U.S. Circuit Judge R. Guy Cole Jr., a Bill Clinton appointee, and Senior U.S. Circuit Judge Eugene Siler Jr., a George H.W. Bush appointee, joined Murphy on the unanimous panel.

Neither party immediately responded to a request for comment.

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