The Suburban Mobility Authority for Regional Transportation (SMART) has filed for a stay of proceedings in order to stop the posting of politically-charged advertisements on the sides of SMART buses.
A lawsuit filed by the American Freedom Defense Initiative (FDI) claims SMART violated the First and 14th Amendments when their proposed ads were rejected in May 2010.
U.S. Eastern District Court Judge Denise Page Hood granted a preliminary injunction against the transportation authority, stating that the decision to reject the ads was “not reasonable, but rather arbitrary and capricious.”
According to SMART Director Beth Gibbons, in April 2010, FDI paid $4,000 to CBS Outdoor, which handles all advertising contracts for SMART. However, SMART objected to the language on the banners that read: “Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got questions? Get answers! RefugeFromIslam.com.”
A fatwa is a religious decree or opinion from a qualified Muslim cleric about the duty of Muslims on a specific subject. Certain fatwas from radical orders have been known to sanction killing of a non-believer.
Pamela Geller, executive director of FDI, also helms Stop Islamization of America, publisher of the blog Atlas Shrugs, and has been a vocal opponent of the Ground Zero mosque project in New York.
“This is a huge win, not just for us, but for the First Amendment,” Geller stated on the FDI website. “This is a direct refutation to all those who claim I am a hater or that my lawyers are ‘haters’ for representing me.”
Advertising on the interior and exterior of its buses helps to enhance revenue for SMART’s operations. 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 its vehicles. However, in their advertising guidelines, SMART prohibits “political or political campaign advertising” and that which is “clearly defamatory or likely to hold up to scorn or ridicule of any persons or group.”
Hood criticized SMART’s ability to assess whether the signs are political or religious by writing that while SMART asserts that the ad content policy is viewpoint-neutral and that it doesn’t delineate what “renders an advertisement as ‘purely religious,’ as opposed to political or likely to hold up to scorn or ridicule any person or groups of persons, both of which are prohibited by SMART’s content restriction policy.”
“These are judgment calls based on criteria that are far too elastic and arbitrary in their implementation, and thus susceptible to political manipulation, as we see in this case,” Geller said.
To add fire to the debate, in March 2010, SMART allowed billboard ads for the Detroit chapter of the United Coalition of Reason, an atheist organization, which read: “Don’t believe in God? You’re not alone.”
“By FDI’s own submission, the ads are political in nature whereas CORE’s was religious,” Gibbons said.
However Geller said she sees SMART’s refusal to display the ads as a double standard.
“There is nothing political about our ads,” Geller said. “They offer help to people who are in danger. That’s all. That SMART would accept the atheists’ ads but reject ours reveals their double standard and their true agenda. They don’t mind offending Jews and Christians, but they won’t accept an ad that Islamic supremacist pressure groups claim offends them.”
“Our message is simply one of help offered to people who are threatened for leaving Islam. This should not be controversial. Muslim groups say it tars all Muslims, but that is like saying that battered women’s shelters tar all husbands as abusive. It’s ridiculous,” Geller added.
SMART General Manager John Hertel contends that the ads are politically driven, and therefore he has the right to reject them.
“We don’t think people who ride SMART and go about their daily life should be confronted with any political advertising at any time,” Hertel said. “Our primary purpose is to provide bus service; commercial advertising is incidental to that.”
SMART is seeking to suspend the preliminary injunction pending an appeal.
“This allows us time to appeal the decision,” Gibbons said. “We contend that advertising on buses is a ‘limited public forum’ and have the ability only to include a ‘viewpoint neutral.’”
SMART also maintains that it has acted consistently and equally in its application of its advertising guidelines, which allow free but not political speech. But Geller adamantly refutes their claim.
“It has been completely inconsistent,” Geller argued. “If it allowed the atheist ads, it should have allowed ours, or banned both. There is no way SMART can justify running those ads but not ours.”
The next court hearing is scheduled for Thursday, May 12.