Next Step in AATA Ad Lawsuit Uncertain

Ann Arbor Transportation Authority board special meeting (Jan. 3, 2013): The board had a single item on the agenda for a special meeting that had been announced on Dec. 27. That item was to convene a closed session as allowed under Michigan’s Open Meetings Act – to consider pending litigation.

AATA board members: Clockwise from left bottom: Roger Kerson, Sue Gott, David Nacht, Charles Griffith, Jesse Bernstein, Anya Dale, Eli Cooper. (Photo by the writer.)

After about two hours in closed session, the board emerged and voted unanimously to reject – for a second time – an advertisement that had been submitted by Ann Arbor resident Blaine Coleman for placement on the sides of AATA buses. The ad included the text “Boycott ‘Israel’ Boycott Apartheid” and a graphic that depicts a scorpion-like creature.

Both the text and the image figured into reasoning for the board’s decision to reject the ad – based on a new advertising policy that the AATA board adopted in November. [See Chronicle coverage: “AATA Adopts New Advertising Policy”]

The board’s resolution stressed that there were two reasons for rejecting the advertisement, either of which the board considered to be sufficient on its own to warrant rejection. First, the proposed ad violates the policy’s provision against political advertisements. Second, the advertisement is likely to hold up a group to scorn or ridicule, according to the board’s resolution – by dint of the enclosure of the word “Israel” in quotes, and the inclusion of the image. [.pdf of new ad policy, with changes indicated]

The AATA board reconsidered the advertisement using the new policy because of a court order issued on Dec. 17. [.pdf of Dec. 17, 2012 court order] That order came from judge Mark Goldsmith of the U.S. District Court for the Eastern District of Michigan, who’s presiding over the case. The reconsideration of the ad is part of the injunctive relief that Goldsmith is proposing, having ruled in favor of Coleman on his request for a preliminary injunction. Granting the preliminary injunction was based on Goldsmith’s finding that the AATA’s old advertising policy was in part unconstitutional. Coleman’s requested relief, however, was for the AATA to run the advertisement. Goldsmith has not yet explicitly ruled on that request.

Under the court order, the AATA had until Jan. 4 to notify Coleman of its decision on the re-submitted advertisement.

A status conference scheduled for Jan. 9 will focus on whether the injunctive relief that’s been granted thus far is sufficient, and will allow the parties to talk to each other and the judge about how they’d like to move forward. The lawsuit, filed in late 2011, has not yet proceeded to trial. However, the legal standard of review for granting Coleman’s motion for a preliminary injunction is based in part on the likelihood that Coleman would prevail, if the case were to go to trial.

Public commentary at the Jan. 3 special meeting of the AATA board was focused on the possible conflict of interest that judge Goldsmith has, given his membership in various Jewish organizations. 

Public Commentary: NRA Analogy

Addressing the board during public commentary at the start of the meeting was Henry Herskovitz, who offered an analogy to board members that the board might use to understand what he contends is a conflict of interest on the part of Mark Goldsmith, the judge who is presiding over the advertising lawsuit case.

Herskovitz invited the board to consider a situation where an Ann Arbor citizen wanted to put an anti-handgun sign on the side of a bus as part of the local bus company’s advertising program, with text like “Guns are bad,” and possibly with a graphic image. The image might be drawn from the Sandy Hook tragedy, he suggested – not something grisly, but rather just painful. Or the image might be of a gun dripping blood, he said. Continuing the analogy, he described the board of the hypothetical bus company as one that included several members of the  National Rifle Association (NRA). In that scenario, there would be a conflict of interest, Herskovitz contended.

Herskovitz then added to the hypothetical situation he was describing by suggesting that a lawsuit was filed and it turned out that the presiding judge was also a member of the NRA, and perhaps a member of the local Michigan Coalition for Responsible Gun Owners. And he asked the AATA board members to imagine that the judge owned a lot of guns himself – as a collection, or for target shooting and hunting. How would that judge fairly decide a case that involves placement of a sign on a bus that calls into question handgun ownership? Herskovitz asked.

A federal judge would need to abide by the canons of judicial conduct, he said, which includes a requirement that: “A judge should avoid impropriety and the appearance of impropriety in all activities. …  A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment.” In the hypothetical, Herskovitz said, it would be reasonable to question that judge’s ability to decide fairly the question of whether to allow an anti-handgun sign on a bus.

Encouraged to wrap up his comments by board chair Charles Griffith, noting that Herskovitz was at the two-minute time limit, Herskovitz allowed that he didn’t know if Goldsmith was a member of the NRA. But he did know that Goldsmith was a member of many pro-Israel groups, including the Anti-Defamation League, and has other strong ties to the state of Israel. Goldsmith sends his daughter to Israel to study, Herskovitz said, and is a cantor at the synagogue. Using the analogy of the anti-handgun advertisement, he said, allows the bias to be understood more clearly. He said that the Goldsmith’s bias was obvious in his mind – but Herskovitz allowed that he had his own point of view.

Rejection of Ad

When the board finished its closed session, the open session portion of the meeting was brief. Jesse Bernstein read aloud the board’s resolution, outlining the board’s conclusion that the ad was to be rejected and its reasoning in doing so. The only commentary on it was from Roger Kerson.

Kerson said the board had discussed the issue “quite a bit” and had wrestled with it. He did not think that anyone joined the AATA board for an opportunity to increase their expertise in dealing with “knotty constitutional matters,” but he indicated this was simply part of being a public body. The board had tried as best it could to observe and comply with all the relevant court decisions. The language the AATA had adopted for its new policy, Kerson continued, was specifically approved in the AFDI v. SMART decision from the 6th Circuit Court of Appeals late last year. The advertisement, he said, is not in conformance with the new policy – based on the political issue and the defamation issue.

Rejection of Ad: Defamation Issue

The scorn-and-ridicule provision was part of the AATA’s original policy, under which Coleman’s ad was initially rejected over a year ago. Included among the kind of ads that can be disallowed under the policy is any advertisement that:

B5: Defames or is likely to hold up to scorn or ridicule a person or group of persons.

In support of the conclusion that Coleman’s ad violates B5, the AATA board’s resolution states:

The placement of quotation marks around the word “Israel” implies that Israel does not exist. Further, the graphic combined with the text of the proposed advertisement hold a group of people up to scorn and ridicule.

The board’s resolution highlights the fact that it views the violation of B5 to be a sufficient basis for disallowing the proposed ad. The basis for the original rejection of the ad a year ago was the subject of some of the lawsuit’s discovery process – as AATA staff members and Jesse Bernstein, who was board chair at the time, were deposed and asked specifically about their reasons for rejecting the ad under the advertising policy current at the time.

In granting the preliminary injunction to Coleman, Goldsmith had found that the AATA rejected the ad at least in part based on a provision he found to be unconstitutionally vague – the “good taste” provision – which is not a part of the AATA’s new policy. From the ruling: “… the Court concludes that it is likely that Plaintiff’s ad was rejected under both the ‘good taste’ provision and the ‘scorn or ridicule’ provision. ”

The “good taste” provision, which has since been stricken from the AATA’s advertising policy, read as follows:

All advertising must be considered in good taste and shall uphold the aesthetic standards as determined by AATA.

Rejection of Ad: Political Issue

Also considered by the AATA board to be a sufficient and independent reason for rejection is the portion of the policy that disallows an ad that:

B7: Contains political or political campaign advertising.

The version of this clause that was included in the AATA’s original advertising policy was more specific and does not appear to provide an adequate basis for rejecting Coleman’s ad:

B7 (old version): Supports or opposes the election of any person to office or supports or opposed any ballot proposition.

Bus advertisements for 2008 judicial candidates Joan Lowenstein and Margaret Connors were accepted by the AATA in error, according to court documents. Lowenstein and Connors were running for the 15th District judgeship eventually won by Chris Easthope.

Outcome: The board voted unanimously to reject the ad as submitted by Coleman, evaluated against the criteria of the new advertising policy. 

Present: Charles Griffith, David Nacht, Jesse Bernstein, Eli Cooper, Sue Gott, Roger Kerson, Anya Dale.

Next regular meeting: Thursday, Jan. 17, 2013 at 6:30 p.m. at the Ann Arbor District Library, 343 S. Fifth Ave., Ann Arbor [Check Chronicle listings to confirm date]

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