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.
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.
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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