As you know, we won our lawsuit against Detroit SMART (transit) to run our bus ads helping Muslims living in dangerous domestic situations. Our "Leaving Islam?" bus campaign was designed for girls like Rifqa Bary and Jessica Mokdad and Noor Almaleki and Amina and Sarah Said and any one of these individuals.…
Apostasy is punishable by death, and we are seeing a spike in these horrific murders in the West.
We won our case against Detroit, and our ads were supposed to be up by now, but the city appealed, and we are back in court.
Perhaps if our bus campaign ran, maybe Jessica Mokdad would be alive today. Shame on the city of Detroit, shame on you. How do they look at themselves in the mirror?
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But no. the city, with your taxpayer dollars, is appealing our free speech victory on behalf of Iaslamic supremacists and the imposition of the sharia. Detroit SMART (transit) is appealing the Preliminary Injunction ordering SMART to run ourad. SMART filed a motion to “stay the proceedings” while they appeal for the obvious reason that if they can’t stay the order, the ads go up and will run long before the appeal is heard.
Why are they fighting so hard to subjugate those who have no voice, no way out? Eqyal rights for all, you evil clowns.
Above: Our AFDI/SIOA bus ad
Back on April 2, I happily announced that we had won in our year-long struggle against the violation of our first amendment rights in Dearborn/Detroit after they refused AFDI/SIOA's bus ads offering assistance to apostates under death fatwas. Thousands of Muslims who have left Islam have been murdered under the sharia (Islamic law). We have seen an increase in honor killings in the United States, and resources for Muslims are limited as the threat comes not just from the family but many times from the mosque and the community.
Despite the fact that we won and free speech prevailed, Detroit Transit is appealing the ruling. Your taxpayer dollars are being used to enforce the sharia. Ghastly. After the court ruled in our favor, we submitted the new contracts to CBS. But late last week, SMART filed an emergency motion to ask the court to stay its order so that SMART can appeal. To get the court to stay its own order, they must show that the court totally blew the call and SMART has a high probability of succeeding on its appeal. Keep in mind the court granted our initial relief because the court found I had a “likelihood of success.” Essentially this is SMART appeal is attempting to call a mulligan, seeking a second and third bite at the apple.
The bottom line is they will also lose the appeal if the facts and law mean anything.
Michigan is a dangerous state for Muslim girls who wish to live a free life. They are currently being sued for cover uping and hiding these honor killings.
Here is our opposition to the motion to stay – Robert Muise, Thomas More Law Center and David Yerushalmi fighting the righteous fight here: Download Opp to Mot for Stay of PI_w_exhibit
Case 2:10-cv-12134-DPH-MJH Document 32 Filed 05/03/11 Page 1 of 16
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
AMERICAN FREEDOM DEFENSE INITIATIVE; PAMELA GELLER; and ROBERT SPENCER,
SUBURBAN MOBILITY AUTHORITY for REGIONAL TRANSPORTATION (“SMART”); GARY L. HENDRICKSON, individually and in his official capacity as Chief Executive of SMART; JOHN HERTEL, individually and in his official capacity as General Manager of SMART; and BETH GIBBONS, individually and in her official capacity as Marketing Program Manager of SMART,
THOMAS MORE LAW CENTER Robert J. Muise, Esq. (P62849) Richard Thompson, Esq. (P21410) 24 Frank Lloyd Wright Drive
P.O. Box 393 Ann Arbor, MI 48106 email@example.com (734) 827-2001 Fax: (734) 930-7160 Co-Counsel for Plaintiffs
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)
PLAINTIFFS’ RESPONSE TO DEFENDANTS’ EMERGENCY MOTION FOR STAY OF ORDER GRANTING PLAINTIFFS’ PRELIMINARY INJUNCTION [DOCKET NO. 24] PENDING APPEAL
Hon. Denise Page Hood Magistrate Judge Hluchaniuk
SMART Avery E. Gordon, Esq. (P41194) Anthony Chubb, Esq. (P72608) 535 Griswold Street, Suite 600 Detroit, MI 48226 firstname.lastname@example.org email@example.com (313) 223-2100 Fax: (248) 244-9138 Co-Counsel for Defendants
VANDEVEER GARZIA, P.C. John J. Lynch (P16887) Christian E. Hildebrandt (P46989) 1450 W. Long Lake Road, Suite 100 Troy, MI 48098 firstname.lastname@example.org email@example.com
P.O. Box 6358 Chandler, AZ 85246 firstname.lastname@example.org (646) 262-0500 Fax: (801) 760-3901 Co-Counsel for Plaintiffs ______________________________________________________________________________
Co-Counsel for Defendants
Case 2:10-cv-12134-DPH-MJH Document 32 Filed 05/03/11 Page 2 of 16
Whether this court should grant Defendants’ request to stay enforcement of the preliminary injunction pending their interlocutory appeal to the United States Court of Appeals for the Sixth Circuit when Defendants have no chance of success on the merits of their appeal, when Plaintiffs have been and continue to be irreparably harmed by Defendants’ unlawful restriction of their First Amendment rights, and when the public interest supports the enforcement of the injunction.
Case 2:10-cv-12134-DPH-MJH Document 32 Filed 05/03/11 Page 3 of 16
CONTROLLING AND MOST APPROPRIATE AUTHORITY
Connection Distrib. Co. v. Reno, 154 F.3d 281 (6th Cir. 1998) Elrod v. Burns, 427 U.S. 347 (1976) G & V Lounge, Inc. v. Michigan Liquor Control Comm’n, 23 F.3d 1071 (6th Cir. 1994) Hilton v. Braunskill, 481 U.S. 770 (1987) Perry Educ. Ass’n v. Perry Local Educators, 460 U.S. 37 (1983)
United Food & Commercial Workers Union, Local 1099 v. Southwest Ohio Reg’l Transit Auth., 163 F.3d 341 (6th Cir. 1998)
Case 2:10-cv-12134-DPH-MJH Document 32 Filed 05/03/11 Page 4 of 16
Defendants’ motion is without merit and should be summarily denied. Defendants are simply delaying the inevitable (and wasting valuable judicial resources and causing further irreparable harm in the process) by rehashing the same arguments that were previously rejected by this court. Defendants’ latest motion asks this court to ignore sworn testimony that is dispositive, to disregard the controlling case law, and to credit their utterly false contention that “the parties are in agreement that Plaintiffs’ advertisements are political advertisements.” (Defs.’ Mot. at 8). This last contention—refuted, no less, by the sworn testimony of Defendants’ Fed. R. Civ. P. 30(b)(6) witness and the advertisement itself—is a feckless attempt to create an issue where none exists. Plaintiffs’ advertisement, which expresses a religious freedom message on its face, is substantively similar to the atheist message that was accepted by Defendants and maintained on Defendants’ buses even after the atheist message subjected the buses to vandalism. Defendants continue to maintain their position that the atheist message was acceptable under the applicable policy (see Defs.’ Mot. at 6-7, 9), which, as this court properly concluded, is unconstitutional in that “there is nothing in the policy that can guide a government official to distinguish between permissible and impermissible advertisements in a non-arbitrary fashion.” (Order Granting Pls.’ Mot. for Prelim. Inj. at 8) (Doc. No. 24) (hereinafter “Order”). In sum, Defendants cannot escape the facts of this case nor the controlling law which compel this court to deny their motion.
I. DEFENDANTS CANNOT MEET THE HEAVY BURDEN REQUIRED FOR GRANTING A STAY PENDING APPEAL.
Defendants request a stay of this court’s Order granting Plaintiffs’ motion for a preliminary injunction pending appeal of that order to the United States Court of Appeals for the
Case 2:10-cv-12134-DPH-MJH Document 32 Filed 05/03/11 Page 5 of 16
Sixth Circuit. This court granted Plaintiffs’ motion after both parties had an opportunity to present evidence and live testimony at the hearing held on July 13, 2010. Defendants carry a heavy burden in their effort to stay this court’s ruling, particularly when such a stay will have the effect of causing further irreparable harm to Plaintiffs and is overwhelmingly contrary to the public interest.
This court’s ruling, which is essentially “appeal proof” in that it relies on controlling law and undisputed facts—facts derived principally from Defendants’ designated Rule 30(b)(6) witness—will be given great deference by the appellate court upon its review. As the Sixth Circuit stated,
This court reviews a challenge to the grant or denial of a preliminary injunction under an abuse of discretion standard and accords great deference to the decision of the district court. The district court’s determination will be disturbed only if the district court relied upon clearly erroneous findings of fact, improperly applied the governing law, or used an erroneous legal standard.
Blue Cross & Blue Shield Mut. of Ohio v. Blue Cross & Blue Shield Ass’n, 110 F.3d 318, 322 (6th Cir. 1997) (emphasis added).
In sum, Defendants’ appeal is futile and thus a stay in this court would be improper. And
this is particularly true in light of the important First Amendment interests at stake.
II. THE RELEVANT FACTORS WEIGH STRONGLY AGAINST GRANTING THE REQUESTED STAY.
In deciding whether to issue the requested stay, this court considers the following:
(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.
Hilton v. Braunskill, 481 U.S. 770, 776 (1987). Upon application of these factors, this court should deny Defendants’ motion.
Case 2:10-cv-12134-DPH-MJH Document 32 Filed 05/03/11 Page 6 of 16
A. Defendants Cannot Make a “Strong Showing” of Success on the Merits.
In its Order, this court concluded that Plaintiffs demonstrated a “strong likelihood” of success on their First Amendment claim. (Order at 7-8) (“There is a strong likelihood that Plaintiffs could succeed in demonstrating that Defendant[s’] decision not to run the advertisemen
t was not reasonable, but rather arbitrary and capricious.”). Consequently, Defendants invite this court to completely reverse itself without presenting any new law or facts. Defendants’ invitation should be rejected.
While Plaintiffs dispute the court’s conclusion that the forum at issue is a “nonpublic forum,”1 the analysis the court applied for speech restrictions in a nonpublic forum was correct. In order for a speech regulation in a nonpublic forum to withstand constitutional challenge it must be “reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.” (Order at 5) (quoting Perry Educ. Ass’n v. Perry Local Educators, 460 U.S. 37, 46 (1983)). As a matter of law, a speech restriction that permits arbitrary and capricious application is not reasonable. As this court properly noted in its Order, “Under Sixth Circuit law, ‘[t]he absence of clear standards guiding the discretion of the public officials vested with the authority to enforce the enactment invites abuse by enabling the official to administer the policy on the basis of impermissible factors.’” (Order at 8) (quoting United Food & Commercial Workers Union, Local 1099 v. Southwest Ohio Reg’l Transit Auth., 163 F.3d 341,
1 Plaintiffs argued that the forum is a designated public forum because Defendants willingly accepted an atheist advertisement that was controversial and generated conflict in the community. See United Food & Commercial Workers Union, Local 1099 v. Southwest Ohio Reg’l Transit Auth., 163 F.3d 341, 355 (6th Cir. 1998) (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”). As the Supreme Court explained, “[A] public forum may be created by government designation of a place or channel of communication for use by the public at large for assembly and speech, for use by certain speakers, or for the discussion of certain subjects.” Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 802 (1985) (emphasis added).
Case 2:10-cv-12134-DPH-MJH Document 32 Filed 05/03/11 Page 7 of 16
359 (6th Cir. 1998)); see also Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123, 130 (1992) (“A government regulation that allows arbitrary application . . . has the potential for becoming a means of suppressing a particular point of view.”). Thus, Defendants cannot refute the conclusion that this court properly applied the governing law.
Turning now to the undisputed facts of this case, it is evident that Defendants’ decision to reject Plaintiffs’ advertisement was arbitrary and capricious and simply an effort to suppress Plaintiffs’ view. Indeed, there were no objective standards applied by Defendants to deny Plaintiffs’ advertisement. Defendant Gibbons, who was testifying on behalf of SMART pursuant to Rule 30(b)(6),2 testified at the hearing as follows:
2 It is important to recognize the significance of testimony provided under Fed. R. Civ. P. 30(b)(6). In United States v. Taylor, 166 F.R.D. 356 (M.D.N.C. 1996), the court provided the following comprehensive explanation regarding the testimony of a Rule 30(b)(6) witness:
The testimony elicited at the Rule 30(b)(6) deposition represents the knowledge of the corporation, not of the individual deponents. The designated witness is “speaking for the corporation,” and this testimony must be distinguished from that of a “mere corporate employee” whose deposition is not considered that of the corporation and whose presence must be obtained by subpoena. Obviously it is not literally possible to take the deposition of a corporation; instead, when a corporation is involved, the information sought must be obtained from natural persons who can speak for the corporation. The corporation appears vicariously through its designee. If the persons designated by the corporation do not possess personal knowledge of the matters set out in the deposition notice, the corporation is obligated to prepare the designees so that they may give knowledgeable and binding answers for the corporation. Thus, the duty to present and prepare a Rule 30(b)(6) designee goes beyond matters personally known to that designee or to matters in which that designee was personally involved.
The Rule 30(b)(6) designee does not give his personal opinions. Rather, he presents the corporation’s “position” on the topic. Moreover, the designee must not only testify about facts within the corporation’s knowledge, but also its subjective beliefs and opinions. The corporation must provide its interpretation of documents and events. The designee, in essence, represents the corporation just as an individual represents him or herself at a deposition. Were it otherwise, a corporation would be able to deceitfully select at trial the most convenient answer presented by a number of fingerpointing witnesses at the depositions. Truth would suffer.
Case 2:10-cv-12134-DPH-MJH Document 32 Filed 05/03/11 Page 8 of 16
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. of Hr’g on Mot. for Prelim. Inj. at 15) (Doc. No. 18) (hereinafter “Tr.”).
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.3 She testified as follows:
Q: So when you examined [Plaintiffs’] ad, there was nothing about the ad itself that was political?
A: Correct. (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 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 Plaintiffs ran a similar advertisement in Florida, it was controversial. (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.
Id. at 361 (internal quotations, punctuation, and citations omitted). 3 Consequently, contrary to Defendants’ naked and unsupported assertion that “the parties are in agreement that Plaintiffs’ advertisements are political advertisements” (Defs.’ Mot. at 8), the irrefutable facts evidence that even Defendants understood that the content of Plaintiffs’ advertisement was not and is not “political or political campaign advertising.” (See Order at 3 (quoting “Restriction on Content”); see also Order at 9 (noting that “the advertisement in Lehman [v. City of Shaker Heights, 418 U.S. 298 (1974)] was clearly political advertising, promoting a specific candidate for an upcoming election”)).
Case 2:10-cv-12134-DPH-MJH Document 32 Filed 05/03/11 Page 9 of 16
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).
Indeed, the Miami Herald article4 referenced by Defendant Gibbons does not report on the political content of Plaintiffs’ advertisement. And the only matter referenced by Defendant Gibbons in her direct testimony was not related to the advertisement’s content, but
the “controversy” over whether the Miami transit authority would run it, which they did and without incident. (See Tr. at 25). Defendant Gibbons testified as follows:
Q: I would like to change topics now, Ms. Gibbons, and ask you one or two questions following up on a question that Mr. Yerushalmi asked you regarding the political content of the FDI ad. In both reading the controversy surrounding the Miami Dade Transit issue, can you tell us whether you were able to determine that the FDI ad was political?
A: I 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.
(Tr. at 19). In other words, Defendant Gibbons reacted to a newspaper article’s rendering of a question raised about whether the Miami transit authority would run the advertisement—not whether the advertisement itself represented a “political” advertisement.
Defendant Gibbons further testified that the only basis for rejecting Plaintiffs’ advertisement was this single news article—literally nothing else—not the advertisement’s subject matter, not its content, and not any report of “adverse effects” arising from the running of the advertisement in Miami or anywhere else:
Q: You indicated that as a result of a newspaper article, you determined that [Plaintiffs’] ad was political?
A: That it was a political issue, yes. Q: You had already testified earlier that the content was not political but that you
looked at what occurred in Miami? A: Correct.
4 A copy of this article was previously marked during the July 13, 2010, hearing as Defendants’ Exhibit J. (See Tr. at 18). For ease of reference, it is attached to this response as Exhibit 1.
Case 2:10-cv-12134-DPH-MJH Document 32 Filed 05/03/11 Page 10 of 16
Q: And all you know about what occurred in Miami is the article that you looked at earlier that you referenced?
A: Yes. (Tr. at 23).
The dilemma for Defendants’ argument, of course, is that there is nothing in the news article itself—even assuming its content was legitimately and constitutionally relevant to Defendants’ decision not to run Plaintiffs’ advertisement—to suggest that the content of the advertisement was political. The news article merely quotes a single Muslim organization objecting to the viewpoint of the advertisement. (Miami Herald Article at Ex. 1). The First Amendment cannot wilt simply because a single voice in a news article takes issue with the viewpoint of another’s protected speech.5 It is precisely the speech/counter-speech dialogue the First Amendment seeks to promote. See generally N.Y. Times v. Sullivan, 376 U.S. 254, 270 (1964) (acknowledging “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open”).
Finally, there was no evidence presented anywhere in the record that violence, vandalism, or threats of violence or vandalism occurred as a result of Plaintiffs’ advertisement in Florida (or New York, for that matter). In fact, just the opposite. In all prior cities where the advertisement had run, there were zero incidences of violence or even the threat of violence. (Tr. at 25). 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
5 Indeed, when denying Plaintiffs’ advertisement, Defendants 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”). Consequently, this is not a restriction based on content; it is a restriction based on viewpoint, which is impermissible in any forum.
Case 2:10-cv-12134-DPH-MJH Document 32 Filed 05/03/11 Page 11 of 16
and continued to run even after the violence and public controversy surrounding the advertisement came to light. (Tr. at 7-8, 11-12).
Defendants’ claim of error regarding the “scornful speech” issue is similarly misplaced. (Defs.’ Mot. at 9). Indeed, Defendants make the following verifiably false claim: “Although Plaintiffs’ counsel questioned Ms. Gibbons about the political nature of the advertisement, there was no clear testimony whatsoever, by any witness, as to whether the advertisement was considered scornful or disparaging to the adherents to Islam.” (Defs.’ Mot. at 10) (emphasis added). Contrary to Defendants’ bold assertion, Defendant Gibbons testified as follows:
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) (emphasis added). Thus, it is evident that the court was paying close attention to the “scornful speech” issue
and properly concluded, based on Defendants’ very own testimony, that this was not a relevant factor. Indeed, this testimony simply verifies the correctness of the court’s ruling that Defendants’ speech restriction was arbitrary and capricious and thus unconstitutional.
In fact, Defendants’ entire argument on this point amounts to little more than unsupported assertions putatively proffered in their motion as a kind of replacement testimony for the actual sworn testimony of Defendant Gibbons. This ploy is unavailing as a rudimentary matter of the Rules of Evidence. See Fed. R. Evid. 602 & 603.
Moreover, it is important to note that the “scornful speech” policy itself is facially invalid in that it is a viewpoint-based restriction. See, e.g., Nieto v. Flatau, 715 F. Supp. 2d 650 (E.D.N.C. 2010) (holding that a speech restriction on a military base, a nonpublic forum, was viewpoint based as applied to anti-Islam speech in violation of the First Amendment).
Case 2:10-cv-12134-DPH-MJH Document 32 Filed 05/03/11 Page 12 of 16
Viewpoint discrimination is the most egregious form of content discrimination and is impermissible regardless of the nature of the forum. Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995). Viewpoint discrimination occurs when the government “denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject.” Cornelius, 473 U.S. at 806; Cogswell v. City of Seattle, 347 F.3d 809, 815 (9th Cir. 2003) (“[If speech] fall[s] within an acceptable subject matter otherwise included in the forum, the State may not legitimately exclude it from the forum based on the viewpoint of the speaker.”). As Defendants readily admit, “religion” constitutes an “otherwise includable subject” in the relevant forum. (Defs.’ Mot. at 9). Thus, to disagree with the viewpoint on Islam expressed by Plaintiffs is a prototypical viewpoint-based restriction, which itself violates the First Amendment. Consequently, Defendants’ argument does not help their cause; it only further strengthens the legitimacy of the court’s Order granting the injunction and provides yet another reason for denying Defendants’ motion for a stay.
B. Defendants Will Not Be Harmed by Denying the Requested Stay.
By denying the stay and enforcing this court’s Order so as to allow Plaintiffs to run their requested advertisement, Defendants will suffer no harm because the exercise of constitutionally protected expression can never harm any of Defendants
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