AATA Ad Case: Court Grants ACLU Motion
A court ruling on Friday did not settle the issue of whether the Ann Arbor Transportation Authority must run an anti-Israel ad on the side of its buses.
However, the Sept. 28 ruling – by judge Mark Goldsmith of the U.S. District Court for the Eastern District of Michigan – did deny AATA’s motion to dismiss the lawsuit, filed last year on Nov. 28.
Advertisement for a TV series on the side of an Ann Arbor Transportation Authority bus.
The court granted the American Civil Liberties Union motion, filed on behalf of plaintiff Blaine Coleman, for a preliminary injunction against the AATA. But the court stopped short of granting the ACLU’s requested relief, which was to force the AATA to run the ad.
The court’s ruling calls forcing the AATA to run the ad “certainly a legitimate relief option.” However, another possibility sketched out by the court would be to have the AATA craft a “new [advertising] policy without the constitutional infirmities identified by this opinion.” On that scenario, the court allowed the possibility that the injunctive relief to which Coleman would be entitled could be this: Reconsideration of his ad under a revised advertising policy that is constitutional.
A decision on the relief to be granted to Coleman and the ACLU will emerge from a process defined in the Sept. 28 ruling. The ACLU has until Oct. 15 to file a brief on what it thinks the proper remedy and relief should be. From the time the ACLU files that brief, the AATA will have 14 days to respond. The court will then weigh those written briefs before making a decision on relief, and might schedule a hearing before deciding that issue. [.pdf of Sept. 28, 2012 court ruling on AATA advertising case]
The case stemmed from Coleman’s attempt 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.
In its initial filing, the ACLU contended that the application of the AATA ad policy to Coleman’s ad, and the AATA’s rejection of the ad under that policy, is a violation of the First Amendment’s guarantee of freedom of speech (count 1). The ACLU further contended that the AATA’s advertising policy generally violates the First Amendment on its face – because the policy is overly broad (count 2). So the case was both an “as-applied’ as well as “facial” challenge to the AATA advertising policy.
The standard of review for the preliminary injunction won 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 issuing the injunction.
Considering the first of the standards (merit of the claims), the court found in its Sept. 28 ruling that the AATA is in effect operating a public forum with its advertising program, because the “good taste” advertising provision is unconstitutionally vague. The court also concluded that AATA’s “scorn or ridicule” provision is not constitutional as applied – because it’s a content restriction that does not serve a compelling state interest. So the court concluded that the ACLU was likely to succeed on the merits of the claim.
With respect to the other standards, the court rejected the AATA’s argument that Coleman would not suffer irreparable harm. The AATA contended that Coleman had myriad other venues in which to express his views. To that, the court’s response was that the “[d]efendants’ argument proves too much; …” If that argument were to be accepted, the court concluded, it would be almost impossible – given “the ubiquitous opportunities for expression through the Internet and otherwise” – for a First Amendment plaintiff to establish irreparable harm.
With respect to the “public interest” standard, the court found that it’s always in the public interest to prevent a violation of a party’s constitutional rights.
With respect to the “substantial harm to others” standard, the court appeared to see some merit in the AATA’s contention that forcing it to run the ad would impair its ridership and reputation. However, the court saw that argument as affecting the kind of relief that might be granted, not whether some kind of relief should be granted at all.
That’s why the court has decided to solicit briefs from both parties regarding what they view as the proper relief.
Timeline
An annotated timeline of key events in the lawsuit so far:
- 2011-28-Nov: Complaint filed by ACLU on behalf of Blaine Coleman.
- 2011-29-Nov: Motion by ACLU for preliminary injunction to compel AATA to run the ad.
- 2012-31-Jan: Motion by AATA to dismiss the case.
- 2012-17-April: Motion Hearing. [ACLU asks for preliminary injunction forcing AATA to run the ad; AATA asks for dismissal of the case.] Court takes the motions under advisement.
- 2012-10-May: Status Conference. ACLU expresses preference for court to rule based on the current record of evidence and arguments. AATA would like extended discovery period and evidentiary hearing.
- 2012-29-May: Order on Evidentiary Hearing. Court sets evidentiary hearing for July 23, 2012 with expedited discovery. Purpose of the hearing is to address: the reason(s) for the rejection of Coleman’s advertisement; and the history of AATA’s enforcement of the advertising policy.
- 2012-05-June: Under the discovery process, ACLU makes eight specific requests for documents from AATA.
- 2012-18-June: AATA responds to eight ACLU requests for documents, with objections to several of them, but agrees to provide documents subject to those objections for most of the requests. The exceptions are items #5 and #6. Item #5 is a request that includes “all ads AATA has ever accepted or run, along with documentation regarding the date(s) of publication and purchaser/sponsor of the ad.” Item #6 is a request that includes “all documents related to the ACLU’s Freedom of Information Act requests in June and July 2011.” AATA objects to #5 and #6, saying that they are, among other things, over broad or unduly burdensome.
- 2012-25-June: Status Conference on the objections to requests #5 and #6.
- 2012-26-June: Court orders AATA respond to request #5. Court orders that each party file a memo making arguments on how the court should treat request #6.
- 2012-27-June: AATA submits memo arguing that request #6 asks for “information that is not relevant or likely to lead to the discovery of admissible evidence and because the discovery is beyond the scope of the court’s order setting the case …”
- 2012-27-June: ACLU submits memo arguing that request #6 seeks information that could reveal AATA internal communications about how AATA’s advertising polices are enforced from a practical point of view.
- 2012-29-June: Court rules for ACLU and orders AATA to respond to request #6 by July 5.
- 2012-23-July: Evidentiary hearing held.
- 2012-25-July: Court orders parties to file briefs based on evidentiary hearing.
- 2012-02-Aug: ACLU responds to order to file brief after evidentiary hearing. Additional evidence adduced includes the rejection of an ad after the ACLU lawsuit – proposed by an HIV-prevention website sponsored by the Michigan Department of Community Health, featuring a man with his shirt off. Email correspondence obtained by ACLU through the discovery process shows AATA staff weighed the current lawsuit in their decision initially to reject the ad. ACLU contends the HIV-prevention website ad did not actually violate any of the AATA’s advertising policies and argues that AATA was trying simply to establish that its advertising policy was not a de facto “public forum.” That’s part of one main argument made in the brief – that the AATA’s standards for inclusion or exclusion of an ad are unclear. The second main argument is that the AATA’s advertising policy, as it’s implemented, is viewpoint-based. Both parties address in their Aug. 2, 2012 briefs the question of how the court should rule if some reasons for rejecting the ad were constitutional, and some unconstitutional. ACLU argues that if there’s an unconstitutional reason for rejecting the ad, then the preliminary injunction requested by the ACLU should be granted – because the AATA has not shown that the ad would have been rejected anyway, even absent the unconstitutional reason.
- 2012-02-Aug: AATA responds to the order to file a brief after the evidentiary hearing. AATA argues that it followed its advertising policy consistently for all the ads that were submitted. The two parts of the advertising policy that are at issue include Section A and Section B(5). Section A states the intent of the advertising program is not to create a public forum, but rather to increase ridership and revenue, and that it provides grounds for rejection of an ad based on good taste and aesthetic concerns. Section B(5) allows for exclusion of ads that demean or hold a person or group up to scorn or ridicule. AATA argues that the parts of Section A can’t be parsed into component parts and must be considered as part of a whole. Both parties address in their Aug. 2, 2012 briefs the question of how the court should rule if some reasons for rejecting the ad were constitutional, and some unconstitutional. AATA argues that if there’s a constitutional reason for rejecting the ad, then the preliminary injunction requested by the ACLU should be denied.
- 2012-28-Sept: Court denies AATA motion to dismiss, and grants ACLU the preliminary injunction, but with relief to be determined. The requested relief was that AATA would be compelled to run the ad. The court calls this a legitimate option, but describes another alternative – that the AATA could come up with an alternative ad policy that does not have the constitutional infirmities the court identified. ACLU has until Oct. 15 to file a brief on remedy and future process. AATA will have 14 days to respond. A possible hearing on remedy is to be scheduled after the briefs are filed.
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The AATA has a tiny fraction of the advertising market, and nothing remotely resembling the law-making power of Congress (the subject of the 1st Amendment’s freedom of speech rule). For the AATA’s advertising program to work, it has to be (1) inoffensive to the riders and voting public, and (2) cheap & hassle-free for the AATA to run.
Scorpions and skulls would fail on (1), even if the ad was for UM’s family-friendly Halloween concert. Having to nit-pick its advertising policy, let alone running lawsuits, certainly blows (2).
This looks to me like a classic case of government’s ability to regulate useful and harmless activities to death.
Advertising is a tiny bit of the AATA’s income. I don’t know why they continue this practice. It would make more sense to drop it altogether. It would remove all such freedom of speech vs. appropriate subject matter questions from the table. This would be better for their brand as well, so that buses don’t suddenly take on strange colors and confusing graphics.
Wow – thanks to the Chronicle for not only following the ins and outs of this lawsuit, but for also posting all the court documents, even the most obscure!
I always thought the AATA’s rejection of the ad was stupid, and would lead to just this result. Hopefully the AATA will give up contesting this suit as a “bad job” and will run Coleman’s ad.
Thanks to the Ann Arbor Chronicle for the detailed analysis of this case; I understand the Associated Press is carrying it story nationally due to its legal significance, however the Chronicle’s version is clearly more informative.
Three points I would like to make:
(1) There were some who were questioning Judge Mark Goldsmith’s ability to decide this case fairly given his ties to various Jewish organizations. I knew Mark Goldsmith when I litigated against him when he practiced law at Honigman Miller Schwartz and Cohn and later practiced before him when he was an Oakland County Circuit Judge; he always had integrity and was a skilled jurist. The last thing he would want to do is make an erroneous decision in a case like this which would have the possibility to become a landmark ruling on the rights of citizens under the First Amendment.
(2)Earlier, David Askins had investigated pursuant to an issue I raised at how the defense of this case was being financed with respect to the two prominent law firms that were retained to defend the AATA. My understanding was that the legal bill for one of the firm’s first month of retention was almost $7,000 for the Maddin Hauser Wartell law firm that had been appointed by the AATA’s liability insurance carrier; the AATA’s insurance policy called for the AATA to pay a deductible of the first $50,000.00 in legal defense costs for that firm; I assume that the AATA had made a liability insurance claim was due to the monetary damage relief sought in Mr. Coleman’s complaint pleading. The AATA retained a second law firm that was local – my recollection it was Jerry Lax’s firm – to also defend the action. I would like to see someone obtain through FOIA or otherwise the the billing and payment history associated with this the defense of this case and so citizens can find out how much has been expended on this matter with public funds. I am also wondering what “funding pool” is paying for this – does it come out of the advertising budget of the AATA, the general budget of the AATA, the general fund of the City of Ann Arbor – or somewhere else.
(3) The AATA should try to negotiate a settlement with Mr. Coleman at this juncture as the only issue remaining to be decided at this court level is how big a legal victory will the ACLU be handed; the case is far from over at the District Court level and a serious of further hearings and expensive appeals could follow which could run into exponentially greater amounts of legal fees and costs being expended. I am reasonably certain that, given the federal civil rights statutes that are pled in the ACLU action, plaintiff’s costs and attorney fees will be sought as a remedy agaonst the AATA; this could run into six figures.
Thanks to Judge Goldsmith for his efforts and congratulations to the American Civil Liberties Union for successfully enforcing the First and Fourteenth Amendments.
I too would love to see an accounting of how much the lawsuit is costing us. I’d like to see the total cost, not just the insurance deductible. Insurance claims over the deductible aren’t free of course, they come back as higher rates. Then I’d like to see a justification for this cost. If it doesn’t fit with AATA’s mission to provide transportation services to the people of Ann Arbor and Washtenaw County, and I don’t see how it possibly could, I’d like to hear how the AATA board justifies spending our money on this.
@Jim Rees:
Agreed. My take in this case was that you had two sides in this case that essentially wanted to argue over a foreign policy matter that had precious little to with the City of Ann Arbor, the AATA or its ridership.
Taxpayers are footing the legal bill over this nonsense and I have heard that it may run into hundreds of thousands of dollars before it is all said and done. Why didn’t the City Attorney Steve Postema have his office defend this?
An expensive lesson will have been learned before this fiasco is over.
Does the city attorney’s office even have a role to play in this? As I understand it, AATA is not a department of the city. (Do I have that right?)
Right, the AATA has its own administrative and legal structure. Last time I heard, their attorney was Jerry Lax.
Why are we talking about “remedies”? Could the AATA just change their ad policy and evade compliance with the 1st Amendment? They lost, and should just run the ad and save the taxpayers additional court time and lawyers’ fees.
I concur with the concerns of prior posters as to the costs that are being incurred by the Ann Arbor Transportation Authority in defending this federal case.
I especially think that Vivienne’s advice is well-taken that the ad program realizes only a small amount of annual revenue and perhaps dropping it altogether would be sound public policy to avoid the costly situation that occurred here.
I am wondering what attempts at mediation may have been offered by the AATA that could have resolved this dispute early on.
Dave Cahill’s comment that rejection of the ad was “stupid” seems like a possibly apt characterization at this juncture given the costs to the AATA and ruling of the court. Wm. Treat’s comment that the impetus for posting the ad and the ferocious response in defending it likely results from two opposing groups vigorously arguing a “foreign policy” issue has some degree of merit as well; I am assuming that behind-the-scenes pressures upon the AATA board likely fueled the federal litigation and I know for a fact that the ACLU received angry correspondences from citizens over their decision to file this action.
It seems to be any ad could potentially offend someone who is a riding customer. A Mitt Romney ad could cause Democrats to stop riding the bus in protest. An ad promoting a church could cause atheists to get upset and so on, and so on…..
One thing that has not been discussed is how this court ruling will affect others who have had their proposed ads rejected; will they have the right to sue now?
Also, what about others who may submit ads like or even more offensive than Mr. Coleman’s? What about if the KKK or some other hate group wants to purchase ad space? Will the AATA have to post it on the buses to avoid possible legal action?
The citizens of Ann Arbor should encourage the AATA board to enter settlement negotiations with the ACLU so that public funds will shall be conserved.
It remains to be seen if this case will be decided fairly. If Judge Goldmsith allows AATA to come up, ex post facto, with a revised policy with which to exclude the ad then that would not be a fair decision. If, as Judge Goldsmith has ruled, the AATA policy in place at the time that Coleman submitted his ad is unconstitutional then the appropriate remedy is to run Coleman’s ad and not let AATA have another bite at the apple. AATA can revise their policy but they should not be allowed to apply it retroactively.
Furthermore, Goldsmith has left open the door to dismissing Coleman’s suit on other grounds, writing “Regarding the other issues raised by Defendant’s motion to dismiss and not addressed in this Opinion (i.e., viewpoint discrimination and the as-applied vagueness challenge to the ‘persons or group of persons’ language), the Court will determine whether such issues remain to be adjudicated after it reviews the parties’ forthcoming supplemental briefs.” Opinion at p. 40. Goldsmith’s opinion is, by no means, a clear vindication of the plaintiff’s First Amendment rights.
To my knowledge, no one expressed concern about whether Goldsmith is biased due to “his ties to various Jewish organizations”. His ties to Israel and pro-Israel advocacy groups are what raise concerns. Goldsmith’s 2010 federal Financial Disclosure Report (Section VII) indicates that he doesn’t own any US bonds but he does own Israel Bonds and they’re the only asset for which he did not declare a value. Furthermore, in his confirmation hearing it was revealed that Goldsmith and his wife sent their sixteen-year-old daughter to study in Israel. In the nominee’s questionnaire Goldsmith submitted to the judiciary committee, he discloses that he became Vice-President for Religious Affairs of B’nai B’rith Barristers in 2009. “Advocacy for Israel” is second on B’nai B’rith’s list of “Our Prime Issues”. B’nai B’rith has publicly “condemned” supporters of the international boycott of Israel, such as Archbishop Desmond Tutu. Furthermore, Goldsmith has been a member of the American Israel Public Affairs Committee since the 1990s, according to his nominee’s questionnaire.
Unless one has legal experience with Goldsmith on matters concerning Israel then you wouldn’t necessarily know whether he has integrity when it comes to litigation concerning Israel. The relevant standard for judicial bias is Canon 3C(1) of the Code of Conduct for United States Judges says: “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be
questioned …”
@Peacemonger:
The real issue is whether it should be decided at all at taxpayers’ expense.
This litigation was fueled by anti-Israel and pro-Israel activists with the the ACLU and Ann Arbor Transportation Auhority acting as surrogates providing the legal services; the AATA’s legal representation is being financed by public funds.
I’ll bet 90% of the City of Ann Arbor taxpayers don’t give a hoot about how this case is decided – only the fact that there is the potential of hundreds of thousands of dollars in potential attorney fee and cost exposure payable with public monies. The AATA, additionally, retained a University of Michigan business professor as an expert at the rate of $250.00 per hour to opine on how such a proposed sign may impact public attitudes about the AATA.
At what point does the AATA invite the ACLU to sit down and try to work out a solution to this silly dispute?
I agree with you John Dory that the AATA should promptly settle this suit. I don’t agree that the taxpayer expense is the “real issue” though. The AATA’s denial of Mr. Coleman’s First Amendment right is a real issue. The ACLU is doing what they do, standing up against government infringement of civil liberties. They didn’t pick this fight, the AATA did by silencing a particular viewpoint in a venue they control.
Have you notified the AATA Directors of your desire that they settle? Have you shared that with Mayor John Hieftje, who appointed all of the AATA Directors?