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.

John U. Bacon

Congratulations! You not only survived that annual orgy of conspicuous consumption called the Super Bowl, you also survived the two weeks of endless stories without news that lead up to the big day.

And when the big game arrived, what was our reward? On the one day we actually look forward to watching TV ads, they were so bland and boring and just plain bad, we had no choice but to turn our attention to the actual football game.

Has it come to this?

But back to the point of the whole exercise: The Super Bowl ads.

To say a bunch of ads were disappointing is like complaining that your dentist’s routine cleaning is getting predictable. We usually don’t expect ads to do anything more than annoy us.

But with Super Bowl ads, all the hype raises our expectations, and all the money companies spend – a record four million dollars for a 30-second ad – only increases the pressure.

Trying to be funny is the one, surefire way to make sure you’re not. And, because the ads are so expensive, every executive at every company has got to throw in his two cents, which is trying to create comedy by committee. And that’s the second surefire way to be sure you ain’t funny.

MiO Fit sports drinks, for example, decided to pick the overweight, un-athletic comedian Tracy Morgan to pitch their product. Which is kind of like hiring Manti Te’o to shill for Match.com. Good luck with that.

Race car driver Danica Patrick is forever telling us she wants to be taken seriously, while she is forever taking millions of dollars to appear in GoDaddy.com’s sexist, sophomoric ads.

As a friend of mine once said, if you wear the clown nose and the clown hat and you honk the clown horn, sooner or later, you’re a clown.

At the other end of the spectrum, Subway spared itself the trouble of trying at all. The entire ad consisted of people trying to say “February,” or “Feb-RU-ary,” or “Febuany,” or something, and screwing it up. I want to say, “You had to be there,” but even the people who were there weren’t laughing.

Mercedes made a mildly clever ad featuring a Rolling Stones song and Willem Dafoe as the devil, and that gets a little sympathy from me. Simply by virtue of not stinking, it made my top five.

The marketing on Super Bowl Sunday hits you like a fire hose. Even if you skipped every TV commercial, you’d still get splashed with ads.

Corporate logos flashed in front of the sportscasters’ desk, and more popped up behind it. The coin toss was sponsored by Papa John’s Pizza, the game ball was brought to you by… someone selling something – I can’t recall – and after that you could enjoy the Pepsi Half Time.

They could not stop themselves. They ran commercials right before an extra point, then ran more right after it – a 20-to-1 ratio of ads to action.

The flood of commercialism was so great, the Mercedes-Benz Superdome just couldn’t take it. She’s breakin’ up! The 34-minute blackout provided the most peaceful portion of the event. It was also the most spontaneous, which showed us that, without their cue cards, the analysts are incapable of stringing together two coherent thoughts. Maybe CBS should try hiring a couple journalists.

Good news: Next year, the blackout will be brought to you by the good folks at DTE.

Lost in all this was a football game. As I suspect you’ve heard, the teams were coached by John and Jim Harbaugh, brothers from Ann Arbor. John, the older brother, has lived in Jim’s shadow his entire life. Jim’s team came back from a 28-6 deficit to pull within one play of winning. But the pass fell incomplete, and John’s team won. Good for him.

In the old days, the game stunk, but the game day experience was – dare I say it – almost pure, by today’s standards. Now, it’s the opposite – but you can’t see the game from the trees, which are brought to you by the good folks at Weyerhaeuser lumber company.

About the writer: John U. Bacon is the author of “Bo’s Lasting Lessons” and “Three and Out: Rich Rodriguez and the Michigan Wolverines in the Crucible of College Football” – both national bestsellers. His upcoming book, “Fourth and Long: The Future of College Football,” will be published by Simon & Schuster in September 2013. You can follow him on Twitter (@Johnubacon), and at johnubacon.com.

The Chronicle relies in part on regular voluntary subscriptions to support our publication of columnists like John U. Bacon. Click this link for details: Subscribe to The Chronicle. And if you’re already supporting us, please encourage your friends, neighbors and colleagues to help support The Chronicle, too!

In the course of the lawsuit, which was filed by Ann Arbor resident Blaine Coleman over a year ago, the court found in favor of Coleman on his request for a preliminary injunction. But Goldsmith left the question of appropriate relief to be determined. Since that initial ruling, the AATA board, at its Nov. 29, 2012 meeting, revised its advertising policy. For detailed coverage, see “AATA Adopts New Advertising Policy.”

The court is now ordering the AATA to reconsider the advertisement under its new policy. Crucially, the new policy omits a “good taste” provision, which the court found to be unconstitutional. The policy also includes a revised provision that previously disallowed ads supporting or opposing political candidates or ballot propositions. The new policy more broadly bans “political or political campaign advertising.”

The court’s order establishes a timeline: (1) By Dec. 21, 2012, Coleman resubmits the ad – either the original version of the ad or a revised version. (2) By Jan. 4, 2013, the AATA reconsiders the ad under the revised advertising policy and notifies Coleman. (3) On Jan. 9, 2013 a status conference will be held to discuss whether additional preliminary injunctive relief is proper and what will happen next.

Left to right: AATA board members Sue Gott, Roger Kerson and Anya Dale. (Photo by the writer.)

Among other clarifying changes, a key clause that’s been deleted from the policy is one that previously allowed the AATA to disqualify an ad based on “good taste.”  That clause was crucial in the court’s analysis – as part of an initial ruling in the case – that the AATA’s advertising policy was unconstitutional.

The revised policy is meant still to exclude the ad that the AATA rejected, prompting the lawsuit. The change to the AATA advertising policy was characterized at the meeting as bringing the policy into compliance with a ruling from late October of this year made by the 6th Circuit of the U.S. Court of Appeals – involving a different transit advertising case. The AATA, in a recent brief filed with the court in the current lawsuit, has argued that the 6th Circuit ruling provides support for the AATA ad policy’s “scorn and ridicule” clause.

At the Nov. 29 meeting, board chair Charles Griffith also indicated that the AATA hopes the changes to the ad policy would resolve the issues that had been brought against the AATA in connection with the lawsuit. The suit was filed a year ago by Ann Arbor resident Blaine Coleman, who’s being represented by the ACLU.

The case has not yet proceeded to trial, but the court made an initial ruling on Sept. 28 on a motion for a preliminary injunction, finding in favor of Coleman. What the court is currently weighing is the determination of appropriate relief in connection with the preliminary injunction. The court has indicated it’s willing to consider a range of possibilities – from forcing the AATA to place the ad on its buses to allowing the AATA to revise its advertising policy.

A status conference among the parties in the lawsuit is scheduled for Dec. 6. The next regularly scheduled AATA board meeting had been for Dec. 20 – which prompted the special meeting before the status conference. The AATA has argued to the court that the form of injunctive relief that’s appropriate in the case is to allow the AATA to revise its advertising policy. The status conference will now take place in the context of the AATA having already taken the step it’s argued would be appropriate.

The AATA anticipates a net of $120,000 from its advertising program for FY 2013, in a total revenue budget of roughly $32 million.

A second piece of business transacted by the board at the Nov. 29 special meeting was a resolution that acknowledged the Title VI requirements related to the AATA’s planned service improvements on Route #5, which runs down Packard toward Ypsilanti, and that set Jan. 27, 2013 as a start date for the more frequent service. Two weeks earlier – at the board’s Nov. 15, 2012 meeting – a re-programming of funds necessary to pay for the increased Route #5 service had been authorized by the board. Title VI is the civil rights legislation that in the context of public transportation requires proof that a service change has no adverse effect on disadvantaged populations.

Route #5 has two branches – between downtown Ann Arbor and downtown Ypsilanti, and between downtown Ann Arbor and the Carpenter Road Meijer. The current service level runs buses every 15 minutes on the main trunk of the two branches. It’s on the branch that is primarily within the city of Ann Arbor where frequency will be increased – with the result that service on the main trunk will be every 10 minutes.

The Route #5 item was added to the agenda the same day as the Nov. 29 meeting, in an effort to eliminate the need for the board’s regular December meeting – on Dec. 20. The Route #5 service had been the only voting item anticipated for that regular meeting, so the Dec. 20 meeting has now been cancelled. 

AATA Ad Policy

The board decision to revise the AATA’s advertising policy comes in the context of a still-pending lawsuit filed against the AATA for refusing to allow an anti-Israel advertisement to appear on the sides of AATA buses. The proposed ad includes the text, “Boycott ‘Israel’ Boycott Apartheid,” and an image depicting a scorpion-like creature with a skull for a head. The court made an initial ruling on Sept. 28, 2012 that determined the plaintiff Blaine Coleman, represented by the ACLU, should be granted injunctive relief.

But the court stopped short of deciding the nature of that relief. One option currently being weighed by the court is for the AATA to craft a new advertising policy that does not have the constitutional problems the court has identified. The board’s action at the special meeting on Nov. 29 anticipates a ruling on injunctive relief along those lines; however, the court could still find it appropriate to compel the AATA to immediately place Colelman’s proposed ad on its buses. [See Chronicle coverage of the Sept. 28, 2012 ruling on the lawsuit: "AATA Ad Case: Court Grants ACLU Motion"]

AATA Ad Policy: Preliminary Injunction

The case stemmed from Coleman’s attempt to purchase an advertisement for the sides of AATA buses. The AATA refused to run the ad. [.pdf of image and text of proposed ad] The image appears to stem from an original by Mexican artist José Guadalupe Posada. Last year, on Nov. 28, 2011, the ACLU filed suit on behalf of Coleman. The one substantive ruling on the case has been a preliminary injunction in which the court found in favor of Coleman and the ACLU.

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.

AATA Ad Policy: Relief

In the court’s decision to grant the motion for a preliminary injunction, it stopped short of making a decision on the nature of the injunctive relief. Coleman had asked for injunctive relief in the form of immediate placement of his ad on the sides of AATA buses – and the court allowed in its decision that: “This is certainly a legitimate relief option.”

But the court also wrote that another option would be to allow the AATA to craft a new advertising policy that does not have the constitutional problems that the court identified in its opinion. So the court asked both parties to file briefs focused exclusively on the question of appropriate relief. Coleman and the ACLU argued that the relief should take the form of the AATA immediately accepting and placing Coleman’s ad on its buses. The AATA argued that it should be allowed to craft a revised policy. The AATA board’s action on Nov. 29 anticipates the possibility that the court would decide to accept the AATA’s argument on injunctive relief.

[.pdf of Oct. 12, 2012 supplemental brief by ACLU on appropriate relief] [.pdf of Oct. 26, 2012 response brief by AATA on appropriate relief] [.pdf of Oct. 30, 2012 additional supplemental brief by ACLU] [.pdf of Nov. 2, 2012 AATA response to ACLU additional supplemental brief] [.pdf of court opinion]

AATA Ad Policy: Text of the New Policy

In the court’s ruling granting the preliminary injunction to Coleman and the ACLU, the court concluded – based on evidence presented by both parties – that Coleman’s ad was rejected based on both the “good taste” and the “scorn or ridicule” standard in the AATA’s advertising policy at the time.

Here’s the marked-up version of the advertising policy with changes that the board adopted [added text in bold italics; deleted text in strike-through]:

Proposed Revised AATA Advertising Policy
A. The AATA, by permitting commercial advertising in or on its vehicles, shelters, informational material, buildings, and benches, does not thereby intend to create a public forum. Further, AATA requires that such advertising comply with specified standards to further the purposes of providing revenue for AATA, increasing ridership, and assuring that AATA riders will be afforded a safe and pleasant environment. AATA reserves the right to approve all advertising, exhibit material, announcements, or any other display and their manner of presentation. All advertising must be in considered in good taste and shall uphold the aesthetic standards as determined by AATA.
B. In order to minimize the chances of abuse, the appearance of favoritism, and the risk of imposing upon a captive audience, advertising in or on AATA vehicles, in AATA shelters, buildings, benches or informational material which does any of the following shall be prohibited:

1.  Contains false, misleading, or deceptive material.
2.  Promotes an illegal activity.
3.  Advocates violence or crime.
4.  Infringes copyright, service mark, title or slogan.
5.  Defames or is likely to hold up to scorn or ridicule a person or group of persons.
6.  States or implies the endorsement of a product or service by AATA.
7.  Supports or opposes the election of any person to office or supports or opposed any ballot proposition. Contains political or political campaign advertising.
8.  Contains material which is obscene, as defined by MCL 752.362 or sexually explicitly, as defined by MCL 722.673, and as such statutes shall be amended or supplemented. Contains advertising that is obscene or pornographic, or in advocacy of imminent lawlessness or violent action.
9.  Promotes alcohol or tobacco products

The 6th Circuit of the U.S. Court of Appeals, in an Oct. 25, 2012 ruling, overturned a district court’s decision to grant a preliminary injunction in a case similar to the one Coleman filed against the AATA. The appeals court found essentially that the advertising policy of the Suburban Mobility Authority for Regional Transportation (SMART) was constitutional. The language in the AATA’s revised policy points (7) and (8) is taken from SMART’s policy. [.pdf of the 6th Circuit Court of Appeals ruling]

If the revised AATA policy were to be applied to Coleman’s advertisement, the ad could likely be excluded based on the revised “political advertising” clause – based on the idea that encouraging people to boycott Israel is to make a political statement. The corresponding clause in force at the time that Coleman’s ad was rejected would not have allowed its rejection, because a call to boycott is not a statement in support of someone’s election or in support of a ballot proposition.

Even if the court rules that the preliminary injunctive relief that’s to be granted is only to compel the AATA to revise its advertising policy – which it has now already done – this would not preclude an eventual outcome to the case in which the advertisement must be placed on AATA buses.

AATA Ad Policy: History of Income

Added after initial publication: Since the AATA’s advertising program began in 2005, through 2012 it’s generated an average of about $88,000 a year. That average is boosted by the second and third years of the program, when the program generated $169,000 and $134,000, respectively. Over the last four years, revenue dropped to a low of $33,000 before climbing back to $81,000 and $70,000 in the last two years. So far this year – from July to November, the ad program has generated about $67,000, which is almost as much as it generated for all of last year.  [.jpg of chart showing AATA advertising income]

Since mid-August, the AATA has had a new vendor for placement of ads on its buses and bus stops – CBS Outdoor Advertising of Lexington, New York. The decision to switch vendors, from Transit Advertising Group (TAG) of Farmington Hills, Mich., was approved by the AATA board at its Aug. 16, 2012 meeting. The AATA board upheld that decision after it was protested by TAG.

According to AATA controller Phil Webb, under the terms of the contract with CBS Outdoor Advertising, the AATA is guaranteed an annual minimum of $100,000 a year.

AATA Ad Policy: Board Discussion

Michael Ford, CEO of the AATA, told the board during his report that the advertising policy was something for which board action was needed. He told them that the outside legal counsel was available to provide support during the closed session that was on the agenda. Ford indicated the action to approve a revised policy was being requested in advance of the Dec. 6 status conference the following week with the judge and the opposing counsel.

The board’s roll call vote to go into closed session under the Michigan Open Meetings Act was unanimous. Unlike some public bodies that conduct their closed sessions by retreating to a different venue, when the AATA board meets at its headquarters building on South Industrial, it doesn’t have a convenient alternate space. So the audience is asked to leave the boardroom. Board chair Charles Griffith made an effort to soften the request: “I hate to do this to all our fine guests.”

When the board came back into open session, there was one amendment proposed to the resolution that enacted the revised advertising policy. The amendment tied the rationale for the change to the 6th Circuit Court of Appeals decision. Sue Gott proposed the addition of the phrase “to comply with current case law” to one of the “whereas” clauses:

Whereas, the board now desires to update the advertising policy, to comply with current case law which has been approved by legal counsel;

That addition was made on a friendly basis, and the board did not vote separately on it.

Griffith indicated that the board had heard from the attorneys about why the policy is recommended – to address the issues that were brought forward, responding to the judge’s request of the parties. Griffith said he thinks this change in policy would address “the issues that have been brought against us” and hoped that the AATA would be “in good standing moving forward” as other advertising requests are made.

Jesse Bernstein added that the revised policy provides clarification based on the 6th Circuit Court of Appeals decision. Roger Kerson noted that the 6th Circuit case involved a different transit authority, but the changes to the AATA’s policy make it one that that was accepted by that court as lawful. Kerson added that the AATA wants to operate within the law.

Outcome: The board voted unanimously to approve the changes to the AATA advertising policy.

Route #5 Improvements

At its Nov. 29 special meeting, the board was asked to approve a resolution that acknowledged the Title VI requirements related to the AATA’s planned service improvements on Route #5, and that set Jan. 27, 2013 as a start date for the more frequent service. As it relates to public transportation, Title VI of the Civil Rights Act of 1964 requires that changes to transit service have no disparate impact on disadvantaged populations.

Route #5 Improvements: Background

At the its Nov. 15, 2012 meeting, the AATA board had approved a funding resolution to support increased frequency on Route #5, which runs down Packard toward Ypsilanti. The funding took the form of a re-programming of funds from the AATA’s AirRide service, which is covering its costs and generating more passenger revenue than forecast. AirRide service will not be affected by the board’s move.

Route #5 has two branches – between downtown Ann Arbor and downtown Ypsilanti, and between downtown Ann Arbor and the Carpenter Road Meijer. The current service level runs buses every 15 minutes on the main trunk of the two branches. The board’s vote will result in an increase in service on the second branch, which is primarily within Ann Arbor, so that service on the main trunk would be every 10 minutes.

The annual cost of the increased frequency is $156,700. Pro-rated from the end of January through the end of September 2013, which is the end of the AATA’s fiscal year, the cost is $90,700. The vote at the Nov. 15 meeting to allocate the $90,700 came with dissent from board members Jesse Bernstein and Roger Kerson, who supported the need for increased service, but were inclined to follow the timetable recommended by AATA staff. That timeline would have involved a more comprehensive financial assessment of other services in the coming months and possible implementation of increased Route #5 frequency at the end of April.

During his report to the board at the start of the Nov. 29 meeting, CEO Michael Ford told the board that AATA was moving forward with board’s support on Route #5 improvements. The point of the resolution at the Nov. 29 meeting, Ford said, was to make sure the board is aware of the Title VI requirements – which ensure that there’s no disenfranchising of disadvantaged populations. That information had not been available at the previous meeting, Ford noted, but it was ready now.

Route #5 Improvements: Board, Staff Discussion

Asked to elaborate on the resolution, Chris White – AATA manager of service development – noted that the board had now been provided with the documentation that had been described at the board’s previous meeting. It included public input gathered on the changes, which White called uniformly positive.

In addition, White said, the Federal Transit Authority had promulgated a new circular on Title VI requirements, which disallows discrimination based on race. He described how the new circular did not really change what the compliance rules are, but rather how compliance is to be demonstrated. The analysis showing no disparate impact on minority populations isn’t required to be complete at this point, White said, but it’s required that the board specifically acknowledge receiving information about the analysis.

In summarizing the analysis, White noted that it’s a service increase, which is not typically what the Title VI regulations are concerned with. Subsequent back-and-forth between White and Roger Kerson drew out the fact that typically Title VI compliance is important when there’s a fare increase or a service reduction.

White then walked the board through four maps, two each for census tracts that have higher minority populations and lower incomes. White noted that there’s some overlap but pointed out that the areas for those categories are very different.

Route #5 service area plotted with minority census tracts (in red). The yellow and blue circles denote quarter-mile and half-mile radii around bus stops.

Route #5 service area plotted with low-income census tracts (in green). The yellow and blue circles denote quarter-mile and half-mile radii around bus stops.

White pointed out that Route #5 goes through many areas that are high minority and low income. White reiterated that the analysis is not yet complete – and it is not required to be at this point – but said there would be no adverse affect on minority or low-income populations, because what’s being proposed is a service increase.

Outcome: The board voted unanimously to approve the resolution adopting the revised service for Route #5 and setting a start date of Jan. 27, 2013.

December Board Meeting

After adjournment of the meeting, a brief discussion ensued between staff and board members about the need for December’s regular monthly board meeting. CEO Michael Ford indicated that the Route #5 item had been the only item slated for that meeting.

Jesse Bernstein indicated that if the Dec. 20 meeting were cancelled, he still wanted to make sure the board was kept up to date on possible developments on regional transit authority (RTA) legislation that the state legislature might enact in the lame duck session. State legislators have been considering a regional transit authority (RTA) for southeast Michigan, including the city of Detroit and the counties of Washtenaw, Wayne, Oakland and Macomb. The Detroit News and other media reported that the state Senate passed RTA legislation on Nov. 27, but it has not yet been passed in the House. The Washtenaw County board of commissioners voted earlier this month to rescind its previous support of the RTA as currently proposed, though the county board’s chair – Conan Smith – has been a strong advocate for the effort.

On Nov. 30, the AATA announced that the Dec. 20 meeting was cancelled.

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

Absent: David Nacht.

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 event listing to confirm date]

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David Erik Nelson

I voted to re-elect Barack Obama. I doubt that’s a terrible shocker, but I want to explain why I did so – and why, regardless of how the economy looks on Jan. 1, or next summer, or in four years, I will still be proud of that decision.

In the run-up to Nov. 6 we kept hearing – and by extension kept telling each other – that this election was “about the economy, stupid!” I beef with that claim, but don’t reject it entirely – certainly not so long as I’m writing under the banner of being “In It for the Money.”

A lot of Americans frame the American Dream as one of economic security. While economic security is obviously a vital component of the Dream, to see that as the whole Dream is – as I’ve sorta harped on in the past – more than a little sad. When Jefferson cribbed Locke for the Declaration of Independence, he revised those original unalienable rights from “life, liberty, and estate” to the often ironically snarked “Life, Liberty and the pursuit of Happiness.” I doubt that was a typo.

Call me a sucker, but like Honest Abe, I believe in the Declaration of Independence as the fundamental expression of what our Unfinished Work [1] is all about – now in its 236th year. And, while you may need to bank some Estate in order to pursue that Happiness, it’s a bit shallow to argue that acquiring the Estate is the same thing as acquiring Happiness.

When I stood at the flimsy little voting station – a plastic tray with telescoping metal legs, set up in Allen Elementary School – I wasn’t there to vote for a smaller national debt or expanded social programs or lower taxes or higher unemployment. I was there to vote to advance our Unfinished Work.

And that meant filling in the bubble next to Obama/Biden. Let me explain.

An Experiment In Liberty And Equality

Back in 1790 the Jews of Newport, Rhode Island were a little anxious. Newport (at that time called “New Port,” because that’s just exactly what it was) had been largely a loyalist community, and was occupied by the British throughout the Revolution. Jews were not equal under British law. They wouldn’t be emancipated in the United Kingdom until the mid-1800s(!), and weren’t even precisely recognized citizens of the Crown. They were naturalized in Great Britain by the Jew Bill of 1753, but were then de-naturalized the following year due to public outcry. The bigotry under which they lived, as British subjects, was legally sanctioned and popularly supported.

These Jewish colonists had been treated well in New Port when it was a British Colony, but were understandably a bit more interested in being part of this experimental new national government “erected by the Majesty of the People.” When Washington swung through New Port on his post-election victory lap, the Jews of New Port wrote him a letter of support, signed by Moses Sexias [2].

Washington’s oft-quoted reply, which echoes Sexias’s turn of phrase, goes like so [emphasis mine]:

The Citizens of the United States of America have a right to applaud themselves for giving to Mankind examples of an enlarged and liberal policy: a policy worthy of imitation. All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection, should demean themselves as good citizens.

That phrase, calling ours a government “which gives to bigotry no sanction, to persecution no assistance” is my National Anthem. It makes my heart sing every time I come across it, and always has – even before I’d learned that it wasn’t just the gracious words of Our First President, but also the ardent articulation of the hopes of a bunch of my (largely anonymous) fellow Jews.

Improving the Unfinished Work

Lincoln nailed it when he called ours an Unfinished Work. When Washington bit the lines of Sexias, this bouncing baby nation still sanctioned plenty of bigotry and assisted in lots of persecution. Article IV, Section 2 of our damned Constitution assured slaves that there was no way they could outrun their involuntary servitude on U.S. soil, and would keep doing so right up until Lincoln signed the 13th Amendment.

Because I understand the Human Project to be one of fixing up a messy world [3], I’m sort of accustomed to Unfinished Work in need of incremental improvement. When I step into a voting booth, when I need to pick a president, I don’t ask myself, “Am I better off than I was four years ago?” [4] I ask myself, “Who brings us closer to being the thing we’re supposed to be: The Nation that gives to bigotry no sanction, to persecution no assistance?”

And, I’m sorry, but there was no indication anywhere in the Romney/Ryan platform of our nation, under their leadership, even inadvertently stumbling toward giving bigotry less sanction. Meanwhile – and perhaps this sounds crass, but it’s just as true as a plumb bob – by dint of skin tone alone Barack Obama did more to move our national needle away from the “Sanctioned” end of the Bigotry dial than any living president. Add in his support of marriage equity, his abandoning of the Defense of Marriage Act and “Don’t Ask, Don’t Tell,” his championing of the Lilly Ledbetter Fair Pay Act of 2009 and reproductive rights, and you have a president who has done more to de-sanction bigotry in this country than any in 150 years.

Before everyone I know and love freaks out and tears my head off because of Wall Street and “murder drones” and Bradley Manning and energy independence and the economy (stupid!) and Israel and Palestine and Libya and Syria and David Petraeus and everything else that isn’t gonna be under the Yule Tree this year, or next year, or the year after, listen: I’m not saying that the PotUS is a Magical Wish-Granting Negro come to make all of our Progressive dreams come true. I am saying that he’s a President of the United States of America and that, since George Washington’s inauguration in 1789, that job has primarily been about improving the Unfinished Work by moving us closer to Giving Bigotry No Sanction – even if the white, slave-owning Christians who started us down this road could hardly fathom how far we’d run with their flowery talk.

That is the job – not shepherding the economy, not brokering peace in the Fertile Crescent, not energy independence, not any of our pet projects. The job is to bring the nation we’ve got closer to being the Nation We Set Out For: The one that, like no other to ever grace this globe, Brings Justice to All.

Expanding The Electorate Expands Equality

Perhaps what’s most emblematic of the progress embodied by the Obama’s re-election is how he pulled it off. Often elections seem to focus almost exclusively on first solidifying support among the party faithful, and then with wooing “independents” (i.e., registered voters who show no party affiliation). What was extra-special about the Obama Campaign – and resulted in both a tidy majority in the popular vote and pretty stunning chunk of the Electoral College [5] – was how deeply it focused on expanding the electorate instead of wooing the independents. The campaign sought out citizens who were likely to support the president but had never voted before, and brought them into the conversation. From a marketing perspective, this is an entirely different activity from traditional campaigning, because you aren’t seeking to shift an existing behavior (“Buy Coke instead of Pepsi!”) but to create a new behavior (“Go to the gym instead of standing around drinking pop!”)

So, that’s one last nudge away from sanctioning bigotry and assisting persecution: Bringing the disenfranchised into the national conversation. I can think of nothing that better exemplifies what our democracy should be about than dropping millions of dollars on convincing people who don’t think their voice is valid or valuable that they need to join the conversation.

In the days following the election, as I heard both the Romney/Ryan campaign and Mitt Romney himself bemoaning – and even demonizing – this project of expanding the electorate, I was left to wonder what the hell country he thought we were living in. Just to review some basic American Civics: If you’re running for an elected position in a democracy and your opponent can rally more citizens who agree with his views than yours, it’s your views that are fucked up, not the People.

Cash Rules Everything Around Me? [6]

Our jaded election-season canard is that elections are bought, plain and simple. In or defense, this cynicism [7] seems to be born out by experience: Elections do tend to go the candidate who’s raised the most money, and it’s easy to construct a narrative whereby spending lots of money results in winning an election. [8]

We all grant the reality of the correlation between campaign spending and winning elections. But correlation isn’t causation. We can all imagine lots of possible mechanisms that would explain how high campaign spending could result in winning elections, but that by no means proves that spending all of that money causes a candidate to win an election. In fact, to the contrary, we’ve got decent evidence that it doesn’t.

Back in 2005 Steven Levitt and Stephen J. Dubner (last decade’s Nate Silvers) took this on in their book “Freakonomics: A Rogue Economist Explores the Hidden Side of Everything,” and their finding was that elections aren’t won because Candidate X raises and spends the most money, but instead that popular candidates are able to raise the most money. The cash doesn’t buy them votes, but is instead a signal of the votes that they are most assured of receiving. [9]

Every election cycle since 2005 Levitt and Dubner have taken a beating. People don’t like Levitt and Dubner’s “the money doesn’t matter” conclusion, and hasten to point out that if the money doesn’t matter, it’s weird that the candidates expend so much juice and burn so much karma separating us form our cash. And, to give the doubters their due, it’s hard to find clear-cut cases where the Fat Cat doesn’t seem to have at least possibly won by virtue of lucre.

Levitt and Dubner are (nominal) economists. They don’t have the opportunity to devise and run actual experiments and see what happens when, say, you take an emotionally neutral issue (like, oh, I dunno, maybe bridge construction) and run a well-funded campaign encouraging voters to make a terrible decision that no rational person would ever purposefully endorse. If the world of marketing is any indication, a well-funded ad campaign for something of dubious value trounces un-marketed healthy behavior every time, no mater how obvious the healthy choice is. [10]

Oh, wait a second – this year we ran just such an experiment, in the form of Matty Moroun’s odious Prop 6. One side spent upwards of $34 million to run wickedly manipulative video ads and a direct-mail campaign that will go down in the Annals of Excessive Advertising. On top of that, Moroun poured untold dollars (thousands? millions?) into running live phone banks (they called me – and argued with me! And wouldn’t frikkin drop it even as I got sorta spittle-flying-screamy!) and manning polling places on Election Day with folks handing out more misleading “literature.” On the other side, at most $100,000 was spent on a very modest video and print advertising campaign. [11] Maroun spent at least 340 times as much as his opponents – and yet Prop 6 was crushed.

Despite this excellent experiment in how much of an impact money really has on how people vote, I don’t imagine anyone will stop picking fights with the Freakonomics Boys any time soon – for two reasons. First, I think we like cynically carping about how it’s all crooked and that the votes are bought. We’ve made our electoral system into a sort of game show, and so we tune in for much the same reasons: To watch the money (and then to grouse about what a waste all that money was).

Secondly, believing that cash rules everything around us gives us an out. It makes us feel smart for not bothering to really participate – because we see through the bullshit, man. As long as we focus on just the cash-money – and the fact that someone other than you or me or my mom or your neighbor has most of it – we get to ignore our individual failures to bring that Unfinished Work a bit closer to completion. And we get to sidestep the basic question: What have we done to advance the Justice that we, as schoolchildren, pledged was for All?

Notes

[1] “It is for us the living, rather, to be dedicated here to the Unfinished Work which they who fought here have thus far so nobly advanced.”

[2] Sexias was the the head of New Port’s Congregation Kahal Kadosh Yeshuat Israel, and the most pertinent bit of this letter reads:

Deprived as we heretofore have been of the invaluable rights of free Citizens, we now with a deep sense of gratitude to the Almighty disposer of all events behold a Government, erected by the Majesty of the People – a Government, which to bigotry gives no sanction, to persecution no assistance – but generously affording to all Liberty of conscience, and immunities of Citizenship: deeming every one, of whatever Nation, tongue, or language equal parts of the great governmental Machine.

[3] Please see tikkun olam for further details.

[4] Which has always struck me as an incredibly selfish way to think about government. Shit, I’m better off than I was four years ago, on balance, but plenty of folks I know aren’t, and plenty more continue to teeter on the brink. Is it really for the best that I vote my best interest? Is that the road to progress?

[5] Stunning in that it exceeded expectations despite census-driven changes in the apportionment of the Electoral College, which shifted about a dozen votes from traditionally blue states to red ones.

[6] Which is the Wu Tang Clan’s gloss of Adam Smith’s Wealth of Nations, and abbreviated “C.R.E.A.M.” For the curious, here’s my favorite remix of “C.R.E.A.M.”, which layers the lyrics over the Beatles’ “And I Love Here.”

[7] Still recalling that cynicism is cheap wisdom for dumb people.

[8] Something like “A candidate is a product, like anything else. Whoever raises the most money has the biggest advertising budget and can run the most ads, and thus get the most people to ‘buy’ their product – everyone in the world knows who Ronald McDonald is, and it isn’t because that clown makes the best burger or fries in any given locale.”

Incidentally, when people let this assumption go unquestioned and then defend it when challenged, it sorta makes me wonder if they’re really stupid, or if they think everyone else in the world is really stupid. I mean, is it too much to credit our fellow citizens with just maybe treating their choice of president with a little more gravity than their choice of value meal?

Anyway, if you’re really interested in the myriad ways that this kind of “narrative thinking” leads us astray, check out “The Science of Fear: How the Culture of Fear Manipulates Your Brain” by Daniel Gardner.

[9] How Levitt and Dubner came to this conclusion is a bit too nitty-gritty for me to summarize here – I suggest reading the book, or just hitting this recent interview with one of the authors, which offers a nice, tidy summary of their findings.

[10] Just one quick e.g.: It wasn’t until we mounted huge anti-smoking ad campaigns – and curtailed cigarette advertising via government regulation – that we began to chisel away at a behavior that we’d know for decades was basically a death sentence. See also drunk driving and M.A.D.D.

[11] Incidentally, I’ve yet to meet anyone who saw any anti-Prop 6 material; did you? Did that money even get spent?

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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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TAG president Randy Oram addressed the board during public commentary at the Sept. 5 meeting. Also during the meeting, AATA CEO Michael Ford pointed the board to his written response to the protest and asked the board to uphold his decision to award the contract to CBS. The board voted in a formal resolution to uphold the award to CBS.

At its Aug. 16, 2012 meeting, the AATA board authorized a three-year contract with CBS Outdoor Advertising of Lexington, New York, to handle placement of ads on its buses and bus stops. Previously, the contract had been held by TAG for the last seven years, but expired. The AATA selected CBS Outdoor Advertising from seven respondents to an RFP (request for proposals).

In the written protest, Oram details a number of objections, among them a contention that the proposal from CBS did not actually respond to the AATA’s request for proposals. TAG also points to the recent elimination of a CBS staff position for someone who’s named in the CBS proposal as a person who would be part of a team fulfilling the terms of the contract. For its part, the AATA maintains that it followed its RFP procedures, that it violated no laws, and that CBS was able and willing to meet the requirements of the RFP but that TAG, based on its proposal, was either unwilling or unable to meet the requirements. TAG felt that the contingencies it had included in its proposal – based on its experience as the vendor over the last seven years – had been held against it in the AATA’s evaluation of the proposal. [.pdf of TAG protest and AATA response]

This brief was filed from AATA headquarters at 2700 S. Industrial Highway, where the board’s Sept. 5 meeting was held. A more detailed report will follow: [link]