After a four-month pause in court action on a lawsuit filed against the Ann Arbor Transportation Authority – for its refusal to place an anti-Israel ad on its buses – a ruling came earlier this week. Federal judge Mark Goldsmith did not agree with Blaine Coleman and the ACLU’s argument that the preliminary injunctive relief to which they were entitled should take the form of placing the ad on AATA buses.
On the general motion for a preliminary injunction made by the ACLU, Goldsmith had earlier ruled in the case that the AATA’s policy – under which the advertisement had originally been rejected – was unconstitutional. In light of that ruling, the AATA then changed its advertising policy to remove a “good taste” requirement and to add a clear prohibition against political ads in general, not just those for political candidates.
The AATA then reconsidered the original ad under its revised policy. The text of the proposed ad reads “Boycott ‘Israel’” and “Boycott Apartheid” and features an image of a spider-like creature with a skull for a head. [.pdf of image and text of proposed ad].
The AATA then rejected the ad under its new policy, which the court has found to be constitutional.
Goldsmith then entertained arguments from both sides on the question: Should further preliminary injunctive relief be granted, beyond the revision of the advertising policy and the ad’s reconsideration and rejection? The ACLU argued that it would be appropriate to grant injunctive relief by forcing the AATA to place the ad on its buses. The AATA argued that this kind of relief was not justified. And four months after the last briefs were submitted on that question, Goldsmith ruled that the ACLU had not met the criteria for injunctive relief in that form.
In Goldsmith’s ruling, he lays out the importance of establishing a clear argument on “viewpoint discrimination” – which he felt that the ACLU had not adequately developed within the frame of its request for preliminary injunctive relief. But the ruling seems to indicate a willingness on Goldsmith’s part to entertain further arguments along the specific lines of “viewpoint discrimination” – if the ACLU is able to make them – as the case proceeds. [.pdf of June 4, 2013 ruling]
The next step is a June 12, 2013 status conference. The ACLU can at this point proceed to trial, where one result could be that the AATA is forced to place the ad. Or the ACLU could immediately appeal the ruling on the injunctive relief.
In an earlier ruling, Goldsmith found that Coleman’s proposed ad had originally been denied on both the “good taste” provision and the “scorn and ridicule” provision. The “good taste” provision itself was ruled unconstitutional. But based on Goldsmith’s June 4 ruling, a main issue at trial – if it were to proceed – will be whether the AATA applied the “scorn and ridicule” provision in a way that was constitutional.
If the AATA can defend its application of that provision as constitutional, then the AATA could argue: Coleman was not damaged by having his ad denied for an unconstitutional reason (“good taste”) – because there was some other, constitutional reason for denying the ad. So the ACLU will likely make an effort to establish that the denial of the ad was based on an application of the AATA’s “scorn and ridicule” provision that included viewpoint discrimination, and was thus also not constitutional.
The lawsuit was filed on Nov. 28, 2011.