On Nov. 29, 2011, the American Civil Liberties Union of Michigan filed with the U.S. District Court (Eastern District of Michigan) a motion for a preliminary injunction or temporary restraining order, to compel the Ann Arbor Transportation Authority to accept an advertisement it had previously rejected. [.pdf of Nov. 29 ACLU motion]
The previous day, on Nov. 28, the ACLU filed a lawsuit on behalf of activist Blaine Coleman, who had sought to purchase an advertisement for the sides of AATA buses. The AATA refused to run the ad. The proposed ad includes the text, “Boycott ‘Israel’ Boycott Apartheid,” and an image depicting a scorpion-like creature with a skull for a head. [.pdf of image and text of proposed ad] The image appears to stem from an original by Mexican artist José Guadalupe Posada.
The ACLU’s position, as put forth in the Nov. 29 motion, is that the controlling authority for deciding the issue is a 1998 case involving a labor union that had proposed an advertisement on a regional transit authority’s vehicles. The union ad had been rejected on the grounds that it was “too controversial and not aesthetically pleasing.” The case was argued and won by the union in the U.S. Court of Appeals Sixth Circuit. [.pdf of United Food & Commercial Workers Union, Local 1099, v. Southwest Ohio Regional Transit Authority]
The standard of review for the preliminary injunction, now sought by the ACLU, includes: (1) the likelihood that the party seeking the preliminary injunction will succeed on the merits of the claim; (2) whether the party seeking the injunction will suffer irreparable harm without the grant of the extraordinary relief; (3) the probability that granting the injunction will cause substantial harm to others; and (4) whether the public interest is advanced by the issuance of the injunction.
In the motion for a preliminary injunction, the ACLU’s argument is laid out in greater detail than in the initial lawsuit [.pdf of Nov. 28, 2011 lawsuit]. Among the issues raised by the suit is whether the AATA has created a public forum through its advertising program. The ACLU contends that the AATA has, in fact, created a public forum, but does not rely exclusively on that conclusion in arguing that Coleman’s constitutional rights were violated. In addition to the First Amendment claims (free speech), the suit alleges Fourteenth Amendment violations (due process).
In a similar case in Seattle, the ACLU has now filed a notice of appeal after the federal district court ruled in October 2011 in favor of the transit authority – over an ad with the text, “Israeli War Crimes: Your Tax Dollars at Work,” and featuring a picture of children next to a bomb-damaged building. [.pdf of the Seattle Mideast Awareness Campaign (SeaMAC) v. King County ruling]
In contrast to the AATA case, the transit authority in Seattle at first accepted the SeaMAC ad. Then, when advance publicity about the prospects of the ad’s future appearance resulted in proposed counter-ads, possible demonstrations, and the specter of violence, the transit authority decided not to allow the ad to appear.
The AATA case evolved after Coleman tried unsuccessfully to place the ad, and the ACLU sent a letter to the AATA in August 2011 supporting Coleman’s position. [.pdf of ACLU Aug. 12, 2011 letter] [.pdf of AATA advertising policy]
At its Nov. 17 meeting, the AATA board affirmed the decision to reject the proposed ad in its current form, and passed a resolution to that effect, inviting Coleman and the ACLU to discuss the advertising policy. [.pdf of AATA board resolution rejecting advertisement] According to ACLU staff attorney Dan Korobkin, communication took place between the ACLU and the AATA’s legal counsel after the board’s resolution was passed. However, that communication did not avert the filing of the lawsuit.
[Coverage of AATA board meeting when action was taken regarding the ad: "Bus Ad Rejection Affirmed"]