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Detroit Free Speech Lawsuit Status: Eight Months Later Still No Decision

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"[T]he Constitution does not permit government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer." AFDI/SIOA motion filed today

 

Bus NYC

New York City Freedom Bus

Back in May of last year, I filed a lawsuit against the city of Detroit Transit SMART Geller Vs. Detroit. Our group, the Freedom Defense Initiative, sued the city of Detroit for refusing our religious liberty bus ads — the same ads that were dropped and then allowed on free speech grounds in Miami, and which ran without legal challenge in New York City and San Francisco.

SIOA/FDI lawsuit against the city of Detroit.

Despite the desperate need for resources for Muslims under threat for leaving Islam, the city of Detroit refused to run our freedom campaign on the Dearborn and Detroit buses. Instead, they caved to Islamic supremacism and violated their own ad guidelines of freedom of speech.

Here is guideline number one for the government agency that handles bus ads:

Advertising Guidelines

As a governmental agency that receives state and federal funds, SMART is mandated to comply with federal and state laws.  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

Muslims have responded overwhelmingly in favor of the ad campaign (here). And according to the Washington Times:

A public educator in Dearborn, speaking on the condition of anonymity owing to fear of retribution, said there is a climate of fear in the Detroit area's Muslim community.

"The fear is palpable. I know there are things I am 'not allowed' to say. A discussion of religion with a Muslim person is often prefaced by the statement, 'Dont say anything about the Prophet [Muhammad].' In free society, open and honest conversation is not usually begun by a prohibition. Threats and intimidation are just part of life here."

Bus ad 55

SMART  was saying that our ads offering help to those threatened for leaving Islam were political. They were effectively admitting that Islam was political — an admission that has immense implications (far beyond, I'm sure, what Detroit imagined). If Islam is political, it ought to be subject to the restrictions and scrutiny to which all political entities in the U.S. are subject. This could open the door to a reevaluation of the unthinking assumption that Islam is simply a religion like Judaism or Christianity, and transform anti-terror efforts that are now hamstrung by the all-too-common idea that all that goes on in mosques is purely "religious." Defendants sought to distance themselves from their own 'equal access' speech policy, which was likely drafted to comport with the First Amendment, so as to retain for themselves the unconstitutional power to censor messages they dislike. Consequently, Defendants’ evidence and arguments demonstrate a fundamental misapprehension of the First Amendment and its limits on the power of government to suppress free expression."

“The fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection.” AFDI/SIOA motion

Despite various status updates, there was little to report as the Judge sat on her hands and did nothing.

I flew to Detroit to testify in the suit back in July 2010. I came prepared for my hearing against the city of Detroit DOT and SMART. David Yerushalmi and Robert Muise, who is with the Thomas More Law Center, represented me. 

I was armed with hundreds of pictures of honor killing victims, Rifqa Bary's testimony, screenshots of facebook fatwas on apostates, and the actual death fatwa issued at Al-Azhar University in Cairo, the most important institution of islamic law in the Sunni world and the authority that approved the revealing English-language guide to the Sharia (Islamic law): Reliance of the Traveller. Reliance of the Traveller is a one-volume manual of Sharia. (The title implies that this is a handy compendium of Islamic law so that when you're on the road, you know how to behave in unfamiliar situations.) It is a product of the Shafi'i school of Islamic jurisprudence, which is one of the four Sunni schools of Islamic law. It is all the more valuable because it often notes how the other schools, the Maliki, Hanbali and Hanafi, differ from Shafi'i rulings where there is a difference.

The judge in the case promised a decision the following week (July 2010), and here we are in March 2011 and still no decision. How can the court continue to sit on this? 

Now, SMART is trying to use the court’s decision in Seattle not to run the anti-Israel ad (based on threats).
 
We have responded. It is attached and has been filed with the court. Today Robert Muise of the Thomas More Law Center filed Download Pdf-1 in response: PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO AMEND THEIR RESPONSE TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
Hon. Denise Page Hood Magistrate Judge Hluchaniuk and restated the obvious:

The atheist advertisement, which Defendants [Detroit SMART]  accepted and ran on the SMART buses in February/March 2010, read as follows: “Don’t believe in God? You are not alone. DetroitCoR.org.” (Prelim. Inj. Hr’g Tr. (hereinafter “Tr.”) at 6).

Nonetheless, Defendants’ restriction on Plaintiffs’ [Geller/AFDI] advertisement was unreasonable in light of the evidence. Therefore, this restriction is unconstitutional even if the SMART advertising space was a limited public forum (which it isn’t). See generally SeaMAC.
Unlike the situation in SeaMAC, in this case there are no objective standards that were applied to deny Plaintiffs’ advertisement. Defendant Gibbons testified at the preliminary injunction hearing as follows:

Q: So in fact, there is no policy or guideline or training manual or anything else that would set out why [Plaintiffs’ advertisement] is political [and thus impermissible] and the Atheist Ad is not political [and thus permitted]?
A. Right. (Tr. at 15).

[SMART'S] For example, Defendant Gibbons admitted that she did not look to anything extrinsic to the atheist advertisement to determine whether it was permissible—she looked only at its “four corners.” (Tr. at 6-7). However, she denied Plaintiffs’ advertisement based solely on a news story in the Miami Herald, indicating that when Plaintiff ran a similar advertisement in Florida, it was controversial (i.e., “political”).4    (Tr. at 10, 17, 19, 22). Thus, Defendants did not use the same practice and procedure for Plaintiffs’ advertisement as they used for the atheist advertisement. As noted above, based on the “four corners” of Plaintiffs’ advertisement, Defendants concluded that it was not political and, therefore, should have allowed it to run. (Tr. at 10).Moreover, there was no evidence presented that violence, vandalism, or threats of violence or vandalism occurred as a result of Plaintiffs’ advertisement in Florida. And there was no evidence presented that Plaintiffs’ advertisement would subject SMART buses to violence or vandalism if they ran here in Michigan. Indeed, the only evidence of violence and vandalism presented in this case related to the atheist advertisement, which SMART accepted and continued to run even after the violence and public controversy surrounding the advertisement came to light.

SMART equated “political” with “controversial.” (Tr. at 19) (answering the question as to whether she was “able to determine that [Plaintiffs’ advertisement] was political” by stating, “I [Defendant Gibbons] knew that it was of concern in that there is controversy on both sides of the issue on whether they should be posted or shouldn’t be posted”).

Mind you, Detroit still has our payment for the bus ads.

Read the whole thing: Download Pdf-1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
LAW OFFICES OF DAVID YERUSHALMI, P.C. David Yerushalmi, Esq. (Ariz. Bar No. 009616; DC Bar No. 978179; Cal. Bar No. 132011; NY Bar No. 4632568) P.O. Box 6358 Chandler, AZ 85246 david.yerushalmi@verizon.net (646) 262-0500 Fax: (801) 760-3901 Co-Counsel for Plaintiffs ______________________________________________________________________________

Case 2:10-cv-12134-DPH-MJH    Document 22    Filed 03/14/11    Page 2 of 8
INTRODUCTION
On March 8, 2011, Defendants filed a “motion to amend their response to Plaintiffs’ motion for preliminary injunction” (Doc. No. 21), in an apparent effort to bring to this court’s attention supplemental authority that Defendants believe supports their position in the litigation. Specifically, Defendants bring to the court’s attention (and attach as Exhibit A to their motion) a district court order on a motion for a preliminary injunction that was entered in Seattle Mideast Awareness Campaign v. King County, No. C11-94RAJ, a case arising out of the U.S. District Court for the Western District of Washington at Seattle.
Plaintiffs will treat Defendants’ motion as a notice of supplemental authority, which is what it is in essence.
ARGUMENT
Defendants’ reliance on Seattle Mideast Awareness Campaign v. King County (hereinafter “SeaMAC”), is misplaced. As an initial matter, the district court’s ruling in SeaMAC, which essentially effectuated a “heckler’s veto,” is exceedingly suspect in terms of its precedential value. Indeed, the ruling appears to run contrary to U.S. Supreme Court precedent. See Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123, 134 (1992) (holding that speech cannot be “punished or banned, simply because it might offend a hostile mob”); Boos v. Barry, 485 U.S. 312, 321 (1988) (O’Connor, J.) (“The emotive impact of speech on its audience is not a ‘secondary effect’ [that can justify restriction].”); Terminiello v. City of Chicago, 337 U.S. 1 (1949) (“[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”); Simon & Schuster, Inc. v. Members of N.Y. Crime Victims Bd., 502 U.S. 105, 118 (1991) (“The fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection.”); Erznoznik v. City of Jacksonville, 422 U.S. 205, 210 (1975)

(“[T]he Constitution does not permit government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer.”). And it appears to run contrary to Ninth Circuit precedent. See Ctr. for Bio-Ethical Reform, Inc. v. L.A. Cnty. Sheriff Dep’t, 533 F.3d 780, 790 (9th Cir. 2008) (“It would therefore be an unprecedented departure from bedrock First Amendment principles to allow the government to restrict speech based on listener reaction simply because the listeners are children.”). Nonetheless, SeaMAC is factually and legally distinguishable from the case at bar, and its reasoning compels this court to issue the requested injunction.
Defendants claim that SeaMAC stands for the proposition that “Defendant King County’s transit advertising space was a properly created limited public forum because they established a policy that evinced intent to restrict the type of speech allowed upon the forum, and enforcement of this policy was not ‘haphazard or inconsistent.’” (Defs.’ Br. at ECF pages 5 to 6) (citing SeaMAC at 12-13).

In SeaMAC, the court stated that “government restrictions (via policy and practice) on access to a forum based on objective standards indicate a limited public forum.”1    SeaMAC at 8 (emphasis added). The court further noted that the advertisement at issue was denied “on the basis of the threats generated by the” advertisement in light of the policy restrictions. SeaMAC
1 The policy standards at issue in SeaMAC were King County’s restrictions on “material that is so objectionable under contemporary community standards as to be reasonably foreseeable that it will result in harm to, disruption of, or interference with the transportation system,” and “material directed at a person or group that is so insulting, degrading or offensive as to be reasonably foreseeable that it will incite or produce imminent lawless action in the form of retaliation, vandalism or other breach of public safety, peace and order.” SeaMAC at 2, 12.

According to the court, this basis was legitimate because it was well supported by the evidence in the record. SeaMAC at 3-5, 15-17. It is also important to highlight that “[t]here [was] no suggestion in the record . . . that other advertisements generated threats to disrupt orderly transit operations but were nonetheless published.” SeaMAC at 14.

Therefore, having concluded that the forum was a limited public forum, the court denied the request for an injunction and ultimately upheld the restriction because it was reasonable in light of the threats of vandalism and violence generated by the advertisement. SeaMAC at 17 (finding that based on the evidence it was “reasonably foreseeable that [the advertisement] ‘will result in harm to, disruption of, or interference with the transportation system,’ and ‘will incite or produce imminent lawless action in the form of retaliation, vandalism or other breach of public safety, peace and order’”).

The facts of this case in light of the court’s reasoning in SeaMAC compel the opposite conclusion—i.e., that a preliminary injunction is warranted.
Here, SMART has designated its advertising space as a public forum (i.e., designated public forum) based on its policy and its practice—particularly its practice of accepting controversial advertisements, such as an atheist advertisement.2    See United Food & Commercial Workers Union, Local 1099, 163 F.3d at 355 (concluding that the bus advertising space was a public forum and stating that the acceptance of advertisements “which by their very nature generate conflict, signals a willingness on the part of the government to open the property to controversial speech”). Thus, Defendants’ content- and viewpoint-based restriction on Plaintiffs’ speech cannot stand. See Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 800
2 The atheist advertisement, which Defendants accepted and ran on the SMART buses in February/March 2010, read as follows: “Don’t believe in God? You are not alone. DetroitCoR.org.” (Prelim. Inj. Hr’g Tr. (hereinafter “Tr.”) at 6).

Case 2:10-cv-12134-DPH-MJH    Document 22    Filed 03/14/11    Page 5 of 8
(1985) (stating that a speaker cannot be excluded from a designated public forum “without a compelling government interest”).
Nonetheless, Defendants’ restriction on Plaintiffs’ advertisement was unreasonable in light of the evidence. Therefore, this restriction is unconstitutional even if the SMART advertising space was a limited public forum (which it isn’t). See generally SeaMAC.
Unlike the situation in SeaMAC, in this case there are no objective standards that were applied to deny Plaintiffs’ advertisement. Defendant Gibbons testified at the preliminary injunction hearing as follows:
Q: So in fact, there is no policy or guideline or training manual or anything else that would set out why [Plaintiffs’ advertisement] is political [and thus impermissible] and the Atheist Ad is not political [and thus permitted]?
A. Right. (Tr. at 15).
Defendant Gibbons also admitted during her testimony that when she examined Plaintiffs’ proposed advertisement (i.e., its “four corners”), she found nothing about the ad itself that was political, nor could she say that it disparaged or scorned any particular people.3    (Tr. at 10).
With regard to how Defendants decide whether or not an advertisement is permissible, Defendant Gibbons’ testimony reveals that SMART’s practices and procedures are “haphazard
3 Defendant Gibbons testified as follows: Q: So when you examined [Plaintiffs’] ad, there was nothing about the ad itself that was
political? A: No.
** * Q: There is nothing in the ad that disparages or scorns any particular people?
A: Correct, yes. I’m not sure. Court: You’re not sure whether it scorns any particular people; is that your answer?
A: Right. (Tr. at 10-11).

Case 2:10-cv-12134-DPH-MJH    Document 22    Filed 03/14/11    Page 6 of 8
and inconsistent.” For example, Defendant Gibbons admitted that she did not look to anything extrinsic to the atheist advertisement to determine whether it was permissible—she looked only at its “four corners.” (Tr. at 6-7). However, she denied Plaintiffs’ advertisement based solely on a news story in the Miami Herald, indicating that when Plaintiff ran a similar advertisement in Florida, it was controversial (i.e., “political”).4    (Tr. at 10, 17, 19, 22). Thus, Defendants did not use the same practice and procedure for Plaintiffs’ advertisement as they used for the atheist advertisement. As noted above, based on the “four corners” of Plaintiffs’ advertisement, Defendants concluded that it was not political and, therefore, should have allowed it to run. (Tr. at 10).

Moreover, there was no evidence presented that violence, vandalism, or threats of violence or vandalism occurred as a result of Plaintiffs’ advertisement in Florida. And there was no evidence presented that Plaintiffs’ advertisement would subject SMART buses to violence or vandalism if they ran here in Michigan. Indeed, the only evidence of violence and vandalism presented in this case related to the atheist advertisement, which SMART accepted and continued to run even after the violence and public controversy surrounding the advertisement came to light. (Tr. at 7-8, 11-12).

CONCLUSION
Based on the evidence of this case in light of the court’s reasoning in SeaMAC, this court should grant Plaintiffs’ request for a preliminary injunction.
 

Case 2:10-cv-12134-DPH-MJH    Document 22    Filed 03/14/11    Page 7 of 8
Respectfully submitted, THOMAS MORE LAW CENTER
/s/ Robert J. Muise Robert J. Muise, Esq. (P62849)
LAW OFFICES OF DAVID YERUSHALMI, P.C.
/s/ David Yerushalmi David Yerushalmi, Esq.
Counsel for Plaintiffs

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