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"When the Side of a Bus Isn't a Public Space" Wall Street Journal, October 28, 2012
Does the First Amendment protect our right to say what we want in advertisements on the side of a city bus? Yes and no.
A federal appeals court ruled Thursday
that a Michigan transit authority could bar from the side of its buses
an advertisement that read: "Fatwa on your head? Is your family or
community threatening you? Leaving Islam? Got Questions? Get Answers!
The group behind the ads, the American
Freedom Defense Initiative, had sought in 2010 to place them on the
buses in Michigan's four southeastern-most counties, but the authority
refused, saying the ads violated a policy against political
advertisements and offensive speech. AFDI sued, claiming First Amendment
The U.S. Court of Appeals for the Sixth
Circuit said that the side of the bus wasn't a public forum because the
transit authority involved, the Suburban Mobility Authority for
Regional Transportation, or SMART rejected all political ads. Once
SMART established that the space on the buses was a nonpublic forum, it
could ban political speech, as long as it did so in a "reasonable and
viewpoint-neutral" way, the court said.
SMART General Manager John C. Hertel said the transit authority was pleased with the decision.
In an email, Pamela Geller, AFDI's executive director, called the opinion "tortured and twisted."
Ms. Geller said the ad was religious,
not political, in nature. The group plans to ask the Sixth Circuit to
rehear the case, she added.
Over the summer, a federal court ruled
that New York transit authorities violated AFDI's First Amendment rights
by refusing to put up an ad that reads: "In any war between the
civilized man and the savage, support the civilized man."
U.S. District Judge Paul A. Engelmayer
ruled that the exterior of buses was a public space, because the New
York Metropolitan Transit Authority accepted both political and
commercial advertising. Thus, MTA couldn't restrict AFDI's political
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