It took over well a decade…..but we won!
Background: In 2008, I was in Florida covering the Rifqa Bary court hearings to return her to her devout family, which had promised to kill to her because the teen had left Islam. I was waiting on my ride to the courthouse when I saw this ad on a bus:
Thus began the very first of my many bus ad campaigns.
I responded with this ad and the greatest putsch against free speech commenced:
Pamela Geller Wins Free Speech Case Against Detroit Public Transportation Censorship
Writer and activist Pamela Geller has won her free speech case in a case against Detroit’s public transportation agency, which tried to block her from placing a series of ads advising the public about “leaving Islam.”
The case, American Freedom Defensive Initiative v. Suburban Mobility Auth. for Regional Transp., came before a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit — and the decision Friday was unanimously in her favor.
The decision said that the Detroit public transportation system’s decision to ban the ads was an unreasonable constraint on speech, and was also not “viewpoint neutral.”
The decision cited recent Supreme Court jurisprudence in its explanation:
The Free Speech Clause limits the government’s power to regulate speech on public property. The government has little leeway to restrict speech in “public forums”: properties like parks or streets that are open to speech by tradition or design. It has wider latitude to restrict speech in “nonpublic forums” that have not been opened to debate. Even there, however, speech restrictions must be reasonable and viewpoint neutral. … The American Freedom Defense Initiative sought to run an ad that said: “Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got Questions? Get Answers! RefugefromIslam.com.” Michigan’s Suburban Mobility Authority for Regional Transportation (SMART) rejected this ad under two of its speech restrictions. The first prohibits “political” ads; the second prohibits ads that would hold up a group of people to “scorn or ridicule.”
Earlier in this case, we found, first, that the advertising space on SMART’s buses is a nonpublic forum and, second, that SMART likely could show that its restrictions were reasonable and viewpoint neutral. Am. Freedom Def. Initiative v. Suburban Mobility Auth. for Reg’l Transp., 698 F.3d 885, 890–96 (6th Cir. 2012). Since then, the Supreme Court has issued a pair of decisions that compel us to change course on our second conclusion. SMART’s ban on “political” ads is unreasonable for the same reason that a state’s ban on “political” apparel at polling places is unreasonable: SMART offers no “sensible basis for distinguishing what may come in from what must stay out.” Mansky, 138 S. Ct. at 1888. Likewise, SMART’s ban on ads that engage in “scorn or ridicule” is not viewpoint neutral for the same reason that a ban on trademarks that disparage people is not viewpoint neutral: For any group, “an applicant may [display] a positive or benign [ad] but not a derogatory one.” Matal v. Tam, 137 S. Ct. 1744, 1766 (2017) (Kennedy, J., concurring in part and concurring in the judgment); id. at 1763 (Alito, No. 19-1311 Am. Freedom Defense v. Suburban Mobility Auth. Page 3 J., opinion). We thus reverse the district court’s decision rejecting the First Amendment challenge to these two restrictions.
In a statement, Geller said:
It took nearly twelve years, but we did it. My organization, the American Freedom Defense Initiative (AFDI), has just won an important victory for the freedom of speech. Back in 2009, the Detroit area’s SMART transit refused to run our AFDI ads offering help to people who were in fear for their lives for wanting to leave Islam, or having left it. After an incredibly protracted court battle, the Sixth Circuit Court of Appeals just stood up for the First Amendment and completely reversed the judgment banning our ads.
This is all common-sensical and clear even to those with no legal training or experience, but it has taken an incredibly long time to get here. The American Freedom Law Center, whose ace lawyers David Yerushalmi and Robert Muise fought long and hard to win this case, noted: “AFDI’s religious freedom advertisement was rejected even though SMART had no problem accepting and running an anti-religion ad sponsored by an atheist organization. That approved ad stated, ‘Don’t Believe in God? You are not alone.’” However, now “the Sixth Circuit ruled unanimously in favor of AFLC, finding that SMART’s rejection of the ad was unreasonable and viewpoint based in violation of the First Amendment. This is a final ruling.”
Geller has been targeted in the past by radical Islamic terrorists for her outspoken views.
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