Supreme Court Rejects Petition for AFDI’s Writ of Certiorari for Free Speech Case

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The Supreme Court declined to take up our free speech case against Washington Metropolitan transit. It was expected. We filed petition for writ of certiorari (A type of writ, meant for rare use, by which an appellate court decides to review a case at its discretion.   A writ of certiorari orders a lower court to deliver its record in a case so that the higher court may review it. ). It was denied.

Preeminent lawyer, Robert Muise of the American Freedom Law Center explains:

“This important First Amendment case is far from over. It is likely that the Supreme Court denied review because the D.C. Circuit reversed, in part, the lower court’s ruling in WMATA’s favor on whether its rejection of AFDI’s ad was ‘reasonable’ under the First Amendment in light of recent precedent, remanding the case back to the district court for its opinion on the issue. We argued that the high court should take up the case regardless because the issue was a legal one. However, the Supreme Court typically wants to hear the views of the lower courts on an issue before deciding it. Consequently, if we don’t prevail on the ‘reasonableness’ issue in the district court, we will file another appeal to the D.C. Circuit and then petition the Supreme Court once again if necessary.”

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We prevailed in part in the D.C. Circuit on whether the rejection of our free speech ad was reasonable. The case was remanded back down for that determination but then stayed because the Archdiocese case was working its way up to SCOTUS (as noted in the ad). So rather than waiting for the Archdiocese case (which is a Paul Clement case—former Solicitor General—so there is a likelihood the Court will grant it), we filed a cert petition on our and similar claims since the case was stayed. The Court denied our petition. So we have to wait for the Archdiocese case to work its way through the system until the stay in our case is lifted.

Every major city has instituted the Geller ban on free speech.

WMATA originally rejected the ads because the ad copy “advocates free speech and does not try to sell you a commercial product” in violation of WMATA’s advertising guideline prohibiting “[a]dvertisements intended to influence members of the public regarding an issue on which there are varying opinions.”

WMATA now claims that the ads also violate its guideline prohibiting “[a]dvertisements that support or oppose any religion, religious practice or belief.”

AFLC contends that both guidelines are unlawful viewpoint-based restrictions.

The district court upheld the speech restrictions, and AFLC appealed that ruling to the U.S. Court of Appeals for the D.C. Circuit.

The D.C. Circuit reversed, in part, the adverse ruling and remanded the case for the district court to determine whether WMATA’s rejection of the ads was “reasonable.”

In its ruling, however, the circuit court affirmed that WMATA’s advertising space was a nonpublic forum and that its speech restrictions were viewpoint neutral.

Note Hill headline. “Anti–Muslim” because I defend freedom and oppose jihad and sharia.

Supreme Court rejects anti-Muslim group’s challenge to DC Metro ads ban

By Jacqueline Thomsen, The Hill, June 3, 2019:

The Supreme Court has declined to take up the case of an anti-Muslim group that sought to run ads depicting the Prophet Muhammad on public transit in Washington, D.C.

The justices, in an unsigned order issued Monday, rejected the request from the American Freedom Defense Initiative (AFDI) to hear their case over the ads, which they asked to be displayed on the D.C. Metro system. The Southern Poverty Law Center has labeled AFDI as an anti-Muslim hate group.

AFDI has labeled SPLC a hate group.

The ad submitted by the group featured the phrase “Support Free Speech” and then an image of Muhammad, the winning picture of an art contest sponsored by the group.

The Washington Metropolitan Area Transit Authority (WMATA) quickly issued a ban on “issue-oriented” ads in 2015 after receiving the submissions, and later rejected the ads.

Sharia enforcement.

AFDI, led by anti-Muslim activist Pamela Gellar [sic], argued that the WMATA’s ad space was a public forum and was protected under the First Amendment right to free speech, and that rejecting their ads was also unconstitutional.

WMATA is facing another legal challenge over the issue-oriented ads ban from the Archdiocese of Washington, which sought to run religious-themed ads on the D.C. Metro.

The Court of Appeals for the D.C. Circuit ruled last year in favor of WMATA’s ad policy, finding that the Metro system was a non-public forum.

The Supreme Court is now weighing whether it should take up that case.

The National Review’s take:

The Supreme Court has declined to hear a challenge brought against the Washington, D.C. Metropolitan Area Transit Authority’s (WMATA) ban on subway and bus “issue oriented” advertisements, which was instituted in response to a proposed ad depicting the prophet Muhammad.

The Court issued an unsigned order Monday declining to take up the American Freedom Defense Initiative’s (AFDI) request that the justices intervene to protect its free-speech rights. AFDI, led by activist Pamela Gellar, submitted an ad to WMATA in 2015 that read “Support Free Speech” above an image of the prophet Muhammad that was chosen from a group of submissions entered into their “Draw Muhammad” contest.

In response, WMATA banned all “issue oriented” ads and rejected the AFDI’s submission.

AFDI held an event associated with the “Draw Muhammad” contest in Garland, Texas in May 2015. The gathering, which organizers claimed was intended to serve as a defense of free speech, made national news after two gunmen opened fire on police outside the venue. The gunmen were the only fatalities.

WMATA is also facing another challenge to the ad policy leveled by the Archdiocese of Washington, which tried and failed to run religious ads on the Metro. The D.C. Circuit Court of Appeals ruled in WMATA’s favor in that case last year and the Supreme Court is now considering whether it will take up the Archdiocese’s appeal.

In a similar case brought in 2012, a federal judge required New York and Washington, D.C. transit authorities to accept an ad that read: “In Any War Between the Civilized Man and the Savage, Support the Civilized Man. Support Israel. Defeat Jihad.” AFDI has also won similar lawsuits in New York and Philadelphia.

Washington Examiner:

Supreme Court rejects Pamela Geller’s appeal over ads depicting Prophet Muhammad on DC Metro

Related:

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felix1999
felix1999
4 years ago

COWARDS!
Free speech INCLUDES the right to be CRITICAL OF OTHERS!

U.S. Court of Appeals for the District of Columbia Circuit is stacked with Obama appointee judges.comment image

delilahdriver
delilahdriver
4 years ago
Reply to  felix1999

Again and again, the lunatics are running the asylum.

DemocracyRules
DemocracyRules
4 years ago

Tyrants ALWAYS crush free speech
– because free speech interferes with subjugation
– “Why should freedom of speech and freedom of press be allowed? Why should a government which is doing what it believes to be right allow itself to be criticized? It would not allow opposition by lethal weapons. Ideas are much more fatal things than guns. Why should any man be allowed to buy a printing press and disseminate pernicious opinions calculated to embarrass the government?”
– Lenin

felix1999
felix1999
4 years ago

Is Barack Obama trying to ‘pack’ the D.C. Circuit Court of Appeals?
By Louis Jacobson on Wednesday, June 5th, 2013 at 10:59 a.m.

(He was doing this across the country.)

In the Rose Garden on June 4, 2013, President Barack Obama named three nominees to the U.S. Court of Appeals for the D.C. Circuit, a pivotal moment in a long-simmering partisan fight over the nation’s second-most influential court.

That prompted Republican lawmakers to sharpen their rhetoric, accusing Obama of trying to “pack” the court — a phrase that invokes the 1937 proposal by President Franklin D. Roosevelt to increase the size of the Supreme Court by as many as five justices.

It’s no small charge: FDR’s scheme was seen, then and now, as a naked power grab. By proposing to sidestep a court that had blocked much of his New Deal agenda, Roosevelt alienated many Americans, and the plan ended up in history’s dustbin.

Court packing “had always had a bad name, but Roosevelt’s proposal was such a fiasco that no subsequent president has even seen it as an option open to them,” said Jeff Shesol, author of Supreme Power: Franklin Roosevelt vs. The Supreme Court and a speechwriter for President Bill Clinton.

Several senators, including Minority Leader Mitch McConnell and Mike Lee, R-Utah, have recently made the “packing” charge. (Of course they did NOTHING about it.)

In a May 16 hearing, the ranking Republican on the Senate Judiciary Committee, Chuck Grassley of Iowa, used a variation of the word “pack” no fewer than six times. He repeated the charge in a news release on the eve of Obama’s announcement: “It’s hard to imagine the rationale for nominating three judges at once for this court given the many vacant emergency seats across the country, unless your goal is to pack the court to advance a certain policy agenda.”

Superficially, Obama’s actions don’t seem to mirror FDR’s, since Obama is seeking to fill existing vacancies, rather than creating new seats he can fill. But do the Republicans have a point?
(Splitting hairs doesn’t change what Obama did.)

What’s the definition of “court packing”?

Most historians and legal scholars offer similar definitions of “court packing.”

Burt Solomon, author of FDR v. The Constitution: The Court-Packing Fight and the Triumph of Democracy, called it an effort to “expand the size of the court” to stack it with supporters. Kermit Roosevelt, a University of Pennsylvania law professor, agreed, saying it “indicates a departure from the ordinary process.” (Roosevelt is the great-great-grandson of President Theodore Roosevelt and a distant relative of FDR.)

And Carl Tobias, a University of Richmond law professor, called it a “manipulation of court membership to achieve certain substantive results in cases the court will decide.”

Historical examples of court packing

The highest-profile examples have come at the Supreme Court level.

The Constitution doesn’t specify the number of Supreme Court seats. Starting at six in 1789, it briefly fell to five in 1801 before returning to six in 1802. It rose to seven in 1807 and nine in 1837. It rose to 10 in 1863, then shrunk to seven in 1866 before stabilizing at nine in 1869.

These changes weren’t necessarily nefarious. Initially, the nation was growing geographically, which required more justices, and the increase in 1863 can be explained by the Civil War, which left the court with several justices from states in rebellion.

We found three pretty clear historical examples in which one branch of government sought to change the makeup of the courts for political reasons.

• The “midnight judges.” In 1801, following a contentious election, the lame-duck Federalist administration of President John Adams sought to stymie the incoming Democratic-Republicans of President Thomas Jefferson by adding six new federal circuits with 16 judges, all appointed by Adams. The last-minute appointees came to be known as “midnight judges.” The Jeffersonians sought to abolish the new courts, and in 1803, the Supreme Court upheld their right to do so in Stuart vs. Laird.

• The post-Civil War era. After President Abraham Lincoln’s assassination, a southerner, Andrew Johnson, was elevated to president. After clashing with the Republicans who controlled Congress, they shrunk the Supreme Court from 10 seats to seven, effectively denying Johnson any appointments. After Johnson was succeeded by victorious Union Gen. Ulysses S. Grant, Congress restored the Supreme Court to nine justices. It has not varied since.

• The third example, as we’ve noted, is Roosevelt’s doomed 1937 proposal.

The Republicans’ arguments

A spokeswoman for Grassley argued that, “just as FDR did, Obama is trying to influence the courts because neither president liked being overturned. The president and Senate Democrats have made that clear in their comments.”

Republican lawmakers make two main arguments.

The court is under-worked, so Obama is trying to fill unneeded seats with Democrats. “It is evident that the D.C. Circuit is the least busy court” in the nation, Grassley said at the May 16 hearing. “In fact, it ranks last or almost last in nearly every category that measures the workload of the courts.”

In fact, Grassley has introduced the Court Efficiency Act of 2013, which would, among other things, reduce the number of D.C. Circuit judges from 11 to eight.

Grassley’s proposal is “understandable,” said Ilya Shapiro, a legal scholar at the libertarian Cato Institute. “The court isn’t overworked, the openings are there because of filibusters of Bush nominees, and Obama’s had five years to nominate people and hasn’t,” he said. “There are lots of overworked courts out there to which these three slots could go, but he wouldn’t be making it if Obama weren’t making his political play.”

Senate Democrats are threatening a structural change that would affect judicial nominations. In the Senate, a single lawmaker can hold up Senate business unless supporters can muster a 60-vote majority. Over the years, due to actions by senators from both parties, such blocking tactics have become increasingly common.

Frustrated by this trend, recent Senate majorities from both parties have considered invoking the “nuclear option” — a procedural move that would allow a minority blockage to be overcome with just 51 votes.

In 2005, a bipartisan group of 14 senators successfully headed off a Republican attempt to invoke the nuclear option by pledging not to support judicial filibusters. Now, the tables have turned: Senate Majority Leader Harry Reid, D-Nev. has threatened the nuclear option to combat Republican opposition to Obama’s nominees.
(Reid followed through with the “nuclear option”.)

The Democrats’ arguments

Democrats challenge both arguments. In his Rose Garden announcement, Obama cited an April report by the Judicial Conference of the United States, a nonpartisan body headed by Chief Justice John Roberts, which told Congress that the circuit should remain at 11 judges. Court observers add that caseload counts don’t account for the complexity of the circuit’s cases.

Meanwhile, Democrats say they have been driven to consider the nuclear option by strenuous GOP obstructionism. Obama said on June 4 that his judicial nominees “have waited three times longer to receive confirmation votes than those of my Republican predecessor” and added that he had to withdraw the nomination of Caitlin Halligan for a D.C. Circuit vacancy earlier this year after waiting fruitlessly for confirmation since September 2010.

“I recognize that neither party has a perfect track record here,” Obama said. But calling the present deadlock “unprecedented,” he added, “For the good of the American people, it has to stop.”

Who has the better of the arguments?

Our experts agreed that Obama is trying to put his imprint on the court — but they said he’s doing so within the bounds of his constitutional duty to fill court vacancies. Ironically, the experts said, Grassley’s bill comes closer to the kind of structural meddling typical of court packing than does Obama’s approach, even if Grassley’s bill would result in a shrinkage.

The experts agreed with Grassley that judicial resources could be better allocated, but they added that this question is better addressed by a more politically insulated entity such as the Judicial Conference of the United States.

Arguing for efficiency wasn’t enough to shield FDR from backlash, Shesol said. “Everybody knew the game,” Shesol said. “The fact that he was dishonest about it was what really hurt him.”

The nuclear option would be a structural change, but one focused more narrowly on one branch’s procedures. This keeps the argument from being a slam dunk — and it hasn’t happened yet

“If the Democrats eliminate the filibuster, I would call that hardball,” Roosevelt said. “But it’s a change to the Senate rules, so it’s not an attack on the integrity and independence of the judiciary in the way that court-packing is. It’s also something that the other side can benefit from later, which neither packing nor shrinking really is.”

Our ruling

The claim that Obama is “packing” the D.C. Circuit Court largely runs counter to American legal and political history.
Genuine court packing has involved one branch of government proposing to change the structure of the courts, either expanding or decreasing the number of judges. That’s not what Obama’s doing. We rate the claim False.

(LOL Obama was STACKING THE COURTS! Proof is in their rulings AGAINST the WILL OF THE PEOPLE!)

https://www.politifact.com/truth-o-meter/statements/2013/jun/05/chuck-grassley/barack-obama-trying-pack-dc-circuit-court-appeals/

felix1999
felix1999
4 years ago

comment image

MuhamMUDTheFakeProphet
MuhamMUDTheFakeProphet
4 years ago

They write ‘anti-muslim’ as if it’s a bad thing.

felix1999
felix1999
4 years ago

As you already know, TRUTH threatens the LEFT and TRUTH is their biggest ENEMY.

SeRiOuSLy!!??
SeRiOuSLy!!??
4 years ago

Freedom of speech shouldn’t be selective, but corporations, big tech and sadly the courts are making it so. How one side can say the most horrible, evil crap and beg for the torture, death and murder of those that disagree with them have nothing happen to them and the other side gets deplatformed for saying “Hi!” I’d say we have a problem!

ed
ed
4 years ago

Obama packs the courts….LOL….that’s not the only thing Obama “packed”….

John Acord
John Acord
4 years ago

I have a gut feeling that this will eventually become a landmark case and Pamela will have the last laugh. Its important to let he circuit and appeals courts stick their feet inthe crap before the Supreme Court rules.Just be patient and keep up the fight!

iprazhm
iprazhm
4 years ago

Perfect example of why our amazing founders mandated a ‘Separation of Powers’ to prevent overreach of the federal gov’s three branches that would allow one to rule over the other two. We must end the courts tyrannical overreach of constitutional boundaries. It does not have the authority to create law, or change law. A breach it performs frequently and freely. Also it must be held accountable, and pay the price of recall, when it fails to perform it’s only relegated duty of rightfully dividing the truth, by determining if a law or action is constitutional or unconstitutional.

MTC
MTC
4 years ago

Speaking of free speech (or lack thereof in this case), I’m in 30-day Fascistbook jail yet again because of this meme, which I posted nearly 2 years ago.comment image

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