But this column is not about deer versus people. It’s about corporations versus people. Also football. Even the U.S. Constitution.

This is the electronic time clock at the public speaking podium in Ann Arbor’s city council chambers. The elements in red (except for the American flag in the background) have been digitally added.

First, here’s some background. On Aug. 18, the anti-Israel activists had not been able to address the council during reserved public comment time at the start of the meeting – because the council rules stipulate that preference is given to speakers who want to address an agenda item. A boycott against Israel was not on the agenda.

So during that comment period, the council heard from five people who spoke in favor of spending the $20,000 on a deer management plan. The other five reserved slots were taken by: Thomas Partridge, who was officially signed up to talk about the planning commission’s work plan (one of the attachments in the clerk’s report); two people who signed up to talk about revisions to the taxicab ordinance; and two people who had signed up to talk about the lease agreement with the University of Michigan for three parking lots at Fuller Park.

That meant that anti-Israel activists were not able to reprise their demonstration at the previous council meeting, on Aug. 7, when eight of their group were signed up to speak. On that occasion, nearly all the commentary was complete. But then chants of “Boycott Israel” led mayor John Hieftje to recess the meeting. And he eventually decided to have Ann Arbor police clear the room of more than 50 activists. In this case, “clearing the room” translated into two officers telling the group’s leaders – Blaine Coleman and Mozghan Savabieasfahani – that they and their group had to leave. And after a few minutes, amid more loud chants and heated statements, the group left council chambers under their own power.

The contrast on obvious display at the Aug. 18 meeting was between two types of meeting attendees: (1) those who wanted to address the city council about an agenda item; and (2) those who wanted to address the council, but not on an agenda item.

That’s not the contrast I want to focus on. I want to focus on the contrast between two speakers who were alternates on the waiting list for reserved speaking time – both of whom wanted to address the council about an agenda item.

The two alternates were: Larry Baird, an Ann Arbor resident who signed up to talk about the Fuller Park lease agreement; and Michael White, a representative of Uber who was attending the meeting to speak against regulation of drivers for hire. Baird was slotted ahead of White on the alternate list.

The Person

Under the council’s rules, alternate speakers are assigned the slots of other speakers on the list if those slots are “vacated.” On Aug. 18, the first speaker on the list was Rita Mitchell, who was signed up to talk about the Fuller Park lease. When mayor John Hieftje started off public commentary, he called Mitchell’s name. A 10-second pause ensued as Mitchell did not approach the podium or say anything. Hieftje scanned the room. Ward 4 councilmember Jack Eaton then pointed her out, in the audience on the north side of the council chambers.

She remained there, telling Hieftje, “I’m electing not to speak.” Under the council’s rules, it would not have been allowed for Mitchell to transfer her speaking time to someone else. But she was within her rights to vacate the slot – which she did, first by not saying anything and then, when Hieftje addressed her, replying, “I’m electing not to speak.” So when the other nine speakers had completed their turns, Larry Baird – as the first alternate – should have been allowed to speak, according to the council’s rules.

Here’s what happened instead. Hieftje ended the public commentary section. Ward 2 councilmember Jane Lumm ventured there was another speaker left. But Hieftje disallowed Baird’s turn as Baird approached the podium, explaining “Ms. Mitchell was here and chose not to speak. It’s not as if she wasn’t here. And so we’re gonna continue with our agenda.”

The incorrect application of the council’s rule by Hieftje meant that Baird’s only guaranteed opportunity to speak during the meeting would come after the council’s action on the Fuller Park lease, at the end of the meeting.

The Corporation

In that regard, Uber – in the form of Michael White – was in the same boat as Baird. But later in the meeting, the council chose to invoke a different rule, which worked to Uber’s benefit.

When the council came to the taxicab ordinance on the agenda, Uber was invited to the podium to speak. Under the council’s rules, any councilmember can invite someone to address them outside of public commentary reserved time, unless three councilmembers object. No one objected when Lumm invited Uber to the podium.

Uber spent about 25 minutes at the podium doing a great job of not actually answering point-blank yes/no questions posed by councilmembers, but hammering all of Uber’s standard marketing points.

Having used Uber a half dozen times, I would note in passing that I think those are easy marketing points to hammer – because Uber provided a great travel alternative when I used it. If concerns about safety and equity can be sorted out, I think rideshare services should have a place in Ann Arbor’s transportation marketplace.

However, based on Uber’s performance at the podium, I’ll probably be giving Lyft a try.

People Versus Corporations

When the council came to the Fuller Park lease item, Baird was still present in council chambers and available to speak. But no councilmember was stirred to invite Baird to the podium to deliver the three-minutes of rightful in-person public commentary he’d been denied. The council voted to postpone the lease item, without hearing from Baird, who was not able to stay until the end of the meeting to address the council at that time.

So the real contrast on display at the Aug. 18 Ann Arbor city council meeting was not deer versus people. It was corporations versus people. What I observed was a council that was – at least on that occasion – more interested in hearing from a corporation than it was from a person who lives here.

Bear in mind that Ann Arbor city councilmembers are the sort of folks who are content to state publicly their personal opposition to the U.S. Supreme Court’s Citizens United v. Federal Elections Commission decision – which determined that corporations are people for the purposes of political campaign contributions. (That statement about the sentiments of councilmembers appears to be true, even if not all of them were willing to vote yes on a resolution in 2012 calling for the U.S. Congress to send a constitutional amendment to the states to overturn the ruling.)

And councilmembers routinely compete with each other in this kind of contest: Who can talk longer about the importance of public input? A few years ago, the council even enacted a public participation ordinance, requiring all developers to meet with residents in the early stages of proposed new developments.

Political Football

But when it comes to the practical implementation of that stated value of public participation, John Hieftje dropped the ball on Aug. 18.

As a quarterback of the council, Hieftje has never been particularly sure-handed, so that fumble wasn’t surprising – and consequently, not all that disappointing. What’s truly disappointing, to me at least, is that no one on Team Council dove into the pile to make the recovery. Jane Lumm might have come closest to that, when she ventured that there was another speaker remaining – after Hieftje announced that public commentary was over.

So Lumm at least yelled “FUM-BLE!” But Hieftje responded by declaring that the alternate speaker wouldn’t be allowed to speak – because Rita Mitchell was present in the audience.

At that point, no one on the council threw a red challenge flag – by asking that the text of the rule be reviewed, to see if and how it applied. At the end of the meeting, during council communications, Sumi Kailasapathy raised the question by citing the relevant council rule, stating that a mistake had been made. She asked if the situation could be rectified in some way. But as Chuck Warpehoski pointed out, following up on Kailasapathy’s sentiment: A point of order needs to be raised at the time the issue arises.

Otherwise put, you can’t ask for a review of the play after the game is over. So in the future, the council has to be ready to throw that challenge flag onto the field before the next play starts.

Knowing the Rule Book

Kailasapathy knew the exact wording of the rule by the end of the meeting, because I showed her the text of the rule during a recess. During that recess, I gave her and Stephen Kunselman (who were standing together) not just the rule but also a piece of my mind – because they’d sat mute at the council table and had not defended Baird’s right to speak under the council’s rule.

Kunselman responded by saying he didn’t have all the council’s rules memorized. Well, I don’t have them memorized, either. But I do know how to look stuff up [emphasis in bold italics]:

Public Commentary – Reserved Time:
A total of 10 speakers shall be allowed to address Council during the time designated as Public Commentary – Reserved Time by signing up with the City Clerk either in person or by telephone. Each person may speak a maximum of 3 minutes. Speaking times are not transferable, and vacated speaking times shall be assigned to the two alternate speakers on the waiting list. Speakers may not use public commentary-reserved time to address Council on an agenda item for which a public hearing is scheduled for the same meeting.

And the only thing any councilmember needed to do was to ask for a pause in the action: “Is that really the rule, Mr. Mayor? Can we take a minute and look that up?” To look up the rule would have taken any councilmember about as long as it took me, even while I was typing out live updates of the meeting – about 10 seconds at their laptop computer.

Granted, the inclination to look something up in the council rules is premised on having some doubt about the presiding officer’s determination. But I think any scenario that involves a citizen poised to speak, like Baird was, followed by a denial of that opportunity to speak, should itself trigger a big floppy red flag of doubt: Are we really justified under our own rules in denying someone the right to address us right now?

That didn’t happen, because the culture of the Ann Arbor city council does not include routine, matter-of-fact consultation of rules and laws – even though they are really easy to look up with modern digital technology.

Knowingly Misapplying the Rule

The day after the council meeting, I sent each councilmember a one-question emailed survey. It asked for their assessment of Hieftje’s application of the rule, which had the effect of prohibiting Baird from taking his rightful turn during reserved public commentary.

Of the eight councilmembers who responded, some hedged a bit, but all indicated at least some inclination toward the idea that the rule had been misapplied and that Baird should have been allowed to speak. Ward 2 councilmember Sally Petersen’s response was interesting, because she speculated about Hieftje’s interpretation of the rule. From Petersen’s email:

I considered this a “vacation” rather than a “transfer” of speaking time. I think Mayor Hieftje considered it otherwise because Rita was there in person. It’s up to interpretation because the rule doesn’t specify the condition when the person is present.

Hieftje himself was quite clear about his own interpretation of the rule. During the council’s recess, when I confronted him about his apparent mistake, I assumed his error stemmed from the fact that he just didn’t know the exact rule. But he insisted he already knew what the rule was, when I recited it to him: “I know what the rule says, Dave.” So I told him that only a perverse interpretation of the rule would allow Mitchell’s words – “I’m electing not to speak” – to be interpreted as an attempt to “transfer” speaking turns, or as an actual speaking turn.

Hieftje’s reply was incredible to me: He stated that it was not his interpretation that Mitchell’s words were an attempt to transfer her speaking turn to someone else; however, “I was concerned that someone else might think that.”

I’ve made an emailed query to Hieftje to invite any elaboration he might like to make on that statement, to which I have not received a reply. But based on the context of the Aug 18 and Aug. 7 meetings, it appears that Hieftje deliberately misapplied the rule due to the presence of anti-Israel activists – because he was afraid they might use that as an opportunity to object to an inappropriate “transfer” of speaking turns and possibly cause a disruption of the meeting.

Hieftje’s response to Kailasapathy at the end of the meeting is consistent with that understanding. Hieftje came close to admitting that he misapplied the rule. He told Kailasapathy that the council’s rules were under very close scrutiny, and pointed to the events of the last few days:

I will take another look at that. I’m happy to do that. The speaker was indeed here … I understand that it states “vacate” and I will agree to take a close look at that. But I also want you to understand that our rules are under a special scrutiny right now given what’s transpired at the last few council meetings, and we are paying very close attention, both at the clerk’s office, and throughout the city, to make sure that people believe that those rules are being administered fairly. At the last meeting we had three or four people who showed up to speak because they’d been told they could speak under public comment and yet they didn’t have a spot on the agenda. So we’re just being especially careful right now. And maybe I was being too careful.

So this unfortunate incident ultimately stemmed from an apparent concern by Hieftje that his own preferred interpretation of the council’s public speaking rule – about vacated speaking turns being assigned to the alternate speakers on the waiting list – might provoke the ire of anti-Israel activists. So he opted to err on the side of denying someone a rightful opportunity to speak.

A slightly different possibility – one raised by Margie Teall in her response to the emailed one-question survey – was that the mayor’s concern related to a possibility that a “loophole” would be created. Teall was absent from the meeting, but clearly got an account of the meeting from other sources. From Teall’s response:

My concern is that this could become a loophole around the sign-up time. Had [Baird] been one of the first 10 to sign up, he would have spoken regardless. What Rita [Mitchell] did gives me pause, and could be used in the future to secure speaking times for others who are unable, for whatever reason, to sign up when others are required to.

It’s worth noting that alternate speakers are required to sign up, just like the other speakers. So it’s not allowed for someone to sign up for a speaking slot, and then take some action to cause the slot to transfer to a person who has not signed up. That’s the “non-transferable” clause of the council rule.

It’s not clear to me what advantage this purported “loophole” described by Teall might afford to anyone who sought to exploit it. Nor is it clear what detriment there might be to anyone, if someone were to choose to exploit this “loophole.”

U.S. Constitution

To sum up, the council used its own internal rules to give greater deference to a corporation’s right to speak at its Aug. 18 meeting than it did to a person’s right to speak under those rules.

But who cares about the Ann Arbor city council’s dumb old rules? They’re just the stupid rules of a local government unit. It’s not like they’re the U.S. Constitution.

But they are like the U.S. Constitution. And here’s why. Take a look at the First Amendment, just look at it – with emphasis added in Hieftje’s preferred email font:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

So the First Amendment is, among other things, about a right to petition the government. This is more fundamental even than a requirement imposed by Michigan’s Open Meetings Act (OMA): A public body must provide an opportunity for the public to address it during its meeting.

So when the city council sets up rules for public commentary, it’s not just establishing the exact manner in which the council will comply with the OMA. Those rules also establish one formal mechanism under which someone can petition the local government – which is a constitutional right. So when the council mucks about with the application of its public speaking rules, it’s mucking about with the right to petition the government.

That’s not to say that it’s necessarily a violation of someone’s constitutional right to petition if their right to speak under the council’s rules is denied. There are plenty of other ways to petition the Ann Arbor city council, including sending them email. Uber knows that well enough. Margie Teall noted in her response to my one-question survey that she’d received over 1,800 emails (!) about the taxicab ordinance via Uber’s online petition.

And Baird told me that he’d sent his planned remarks by email to the council before the meeting. Of course, that doesn’t justify Hieftje’s misapplication of the public speaking rule. Listening to someone read aloud for three minutes is not the same thing as glancing through a few hundred words of text. Written petitions are different in kind from oral petitions.

Conclusion: Simplify Access

Most Ann Arborites won’t care if someone did or didn’t get a chance to speak at a city council meeting. That’s because most Ann Arborites don’t think of their local government as a government of them, by them, or for them – because they’ve got way better things to do with their giant brains than think about anything as trivial as local government. I’d hazard that there are more Ann Arborites with a deeply held opinion about Obamacare than have a strong view on a need for a new, improved local rail station.

So we’ll continue to elect folks to the jobs of city council and mayor who are content to engage in a regular tussle over a relatively small fraction of the total votes that could potentially be cast in a local election. I don’t think there’s any particular incentive for our current local electeds to look for ways to increase participation in those elections, or in the boring, routine work of our collective governance.

That boring work might entail showing up to a city council meeting every once in a while and telling councilmembers what’s on your mind – for a minute or two, or even for the current maximum of three.

If someone does show up and they’ve followed the rules, the least we can do is ensure they’re allowed to speak. Figuring out what the rules are – when you have to sign up, which speakers get preference, and (now apparently) what counts as vacating a speaking turn – is one barrier to participation in Ann Arbor’s local governance. That’s because the Ann Arbor city council has enacted procedures designed to limit and discourage public comment, not to promote and market it.

I think it should be possible in one sentence to explain to any newly-arrived resident in Ann Arbor how to address our local city council: Show up at one of their regular meetings, at 7 p.m. on the first and third Mondays of the month, and sign in. That’s it.

Of course, if everyone who shows up and wants to speak is allowed three minutes, then we could routinely wind up with a citizens filibuster. But suppose we set an upper limit on the total time for public commentary. And suppose everyone who showed up and signed in was allowed 30 minutes divided by the number of people who’d signed up – with the proviso that the minimum time allowed to any speaker was a minute. That type of scheme would be a lawful way to provide for public commentary under Michigan’s Open Meetings Act, according to Attorney General Opinion #5332.

So that’s one small specific concrete suggestion for improving the ease of participation in our local governance. If the new edition of the council to be elected in November has additional or better ideas for including a wider swath of the community in our local governance, I will cheer for all that. But after Sept. 2, of course, my cheers won’t come from the hard benches of city council chambers.

AATA Bus. Advertisements appear on the sides of buses. (Photo illustration by The Chronicle – which consists of applying a graphics filter and digitally adding the word “settlement” to an image that included the original text “out of service.”)

In an email responding to an inquiry from The Chronicle, American Civil Liberties Union attorney Dan Korobkin, who represented plaintiff Blaine Coleman in the case against the Ann Arbor Transportation Authority, stated: “After the court ruled that AATA’s advertising policy was unconstitutional, AATA made significant changes to its policy based on the ruling and current case law. Both sides decided that a settlement was appropriate, and we ultimately reached an agreement that worked for everyone.”

Korobkin added: “I am able to say that Mr. Coleman did not ask for any payment as part of the settlement, and that the ACLU accepted payment for some of its expenses and attorneys’ fees.”

In 2011, the Ann Arbor Transportation Authority had refused to place the ad on its buses as a part of its advertising program. 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]

According to AATA controller Phil Webb, the AATA is currently projecting that its net revenue from the advertising program – which is managed under a contract with CBS Outdoor Advertising – will come to about $276,000 for the fiscal year. This is the first year of the contract with CBS Outdoor. Compared with the previous contractor, CBS is generating about 2.5 times as much revenue to the AATA. [.pdf of billings through May 2013]

The lawsuit was filed by Coleman – an Ann Arbor resident who was represented by the ACLU – over a year and a half ago, on Nov. 28, 2011.

The case had remained in the preliminary injunction phase and had not yet proceeded to trial. Before the settlement, the most recent court action had come in early June, after a four-month pause in activity. In his June 4, 2013 ruling, federal judge Mark Goldsmith did not agree with the ACLU’s argument that the preliminary injunctive relief to which Coleman was 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 in fact 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. Under this new policy, which the court has found to be constitutional, the AATA rejected the ad again.

Goldsmith then entertained arguments from both sides on the question: Should further preliminary injunctive relief be granted, beyond AATA’s revision of its 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.

But in Goldsmith’s June 4 ruling, he laid 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. The ruling seemed to indicate a willingness on Goldsmith’s part to entertain further arguments along the specific lines of “viewpoint discrimination” – if the case had gone to trial.

The ACLU could have proceeded to trial, where one result could have been that the AATA was forced to place the ad or that the case was adjudicated in favor of the AATA. Or the ACLU could have immediately appealed the June ruling on the injunctive relief. After a June 17 status conference between the parties, another status conference was scheduled for June 27. In the interim, however, the AATA board met on June 20 in closed session about the case. And on June 21, at the request of the parties, the case was referred to magistrate judge Mark A. Randon for settlement. A settlement conference took place on June 26.

But the parties did not reach an immediate settlement and the court forged ahead by setting a schedule for a trial. [.pdf of June 28, 2013 scheduling order] The settlement on July 17 came nine days before disclosures were scheduled to be served on opposing counsel as a part of the trial schedule.

In the key earlier ruling in the case, on Sept. 28, 2012, Goldsmith had found the AATA’s advertising policy – in effect at the time when Coleman’s proposed ad had originally been denied – to be unconstitutional. Goldsmith had determined that the ad had been denied on both the “good taste” provision and the “scorn and ridicule” provision of the AATA’s advertising policy. The “good taste” provision itself was ruled unconstitutional. That provision was eliminated from the AATA’s revised advertising policy.

Based on Goldsmith’s June 4 ruling, a main issue at trial – if it had proceeded– would have been whether the AATA applied the “scorn and ridicule” provision in a way that was constitutional.

The AATA would have likely contended that its application of that “scorn and ridicule” provision was constitutional, setting up the argument: 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 would have likely made 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.

However, the settlement reached on July 17, 2013 means none of those arguments will be necessary.

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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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The vote came in the context of a lawsuit against the AATA – over the rejection of the same advertisement over a year ago. The current reconsideration of the ad came under a court order. It was reconsidered under the criteria set forth in a newly revised advertising policy, which the board adopted in late November.

Grounds for rejecting the ad cited by the board were the policy’s prohibition of political or political campaign advertising, as well as a prohibition against holding a person or group up to scorn and ridicule. The resolution passed by the board rejecting the ad highlighted the graphic associated with the ad, which is a scorpion-like creature. The enclosure of the word “Israel” in quotation marks implies that Israel does not exist, according to the resolution, and was part of the reason that the board found the ad to violate the AATA’s new ad policy.

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

It was a Dec. 17, 2012 court order in which judge Mark Goldsmith of the U.S. District Court for the Eastern District of Michigan ruled that the AATA had to reconsider the ad. [.pdf of Dec. 17, 2012 court order]

In the course of the lawsuit, which was filed over a year ago, the court has ruled in favor of Coleman on his request for a preliminary injunction, based on a finding that the original advertising policy had unconstitutional portions. 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 Chronicle coverage: “AATA Adopts New Advertising Policy.”] So the court’s order on Dec. 17 required the AATA to reconsider the advertisement under its new policy. [.pdf of marked up new ad 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 also established a timeline: (1) By Dec. 21, 2012, Coleman had to resubmit the ad – either the original version of the ad or a revised version. (2) By Jan. 4, 2013, the AATA had to reconsider the ad under its revised advertising policy and notify Coleman. (3) On Jan. 9, 2013 a status conference with the court will be held to discuss whether additional preliminary injunctive relief is proper and what will happen next.

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

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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The ordinance would also create liability not just for the person who might deposit commercial handbills or newspapers onto someone’s property, but also for the corporate entities who “cause” that activity to take place.

First Amendment issues raised by the city’s attempt to restrict unwanted delivery include the possibility that the proposed ordinance has created a content-based distinction between newspapers and commercial handbills. [.pdf of City of Fresno v. Press Communications, Inc. (1994)] However, the U.S. Supreme Court has established a right of residents to regulate the degree to which they must contend with printed matter delivered to their property. [.pdf of Rowan v. U.S. Post Office Dept. (1970)] And in a more recent New York Supreme Court case, the court ruled that “neither a publisher nor a distributor has any constitutional right to continue to throw a newspaper onto the property of an unwilling recipient after having been notified not to do so.” [.pdf of Kenneth Tillman v. Distribution Systems of America]

Carsten Hohnke (Ward 5) indicated that the ordinance was expected to be taken up again sometime in January 2012.

This brief was filed from the city council’s chambers on the second floor of city hall, located at 301 E. Huron. A more detailed report will follow: [link]

The previous day, on Nov. 28, the ACLU filed a lawsuit on behalf of activist Blaine Coleman, who had sought 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.

The ACLU’s position, as put forth in the Nov. 29 motion, is that the controlling authority for deciding the issue is a 1998 case involving a labor union that had proposed an advertisement on a regional transit authority’s vehicles. The union ad had been rejected on the grounds that it was “too controversial and not aesthetically pleasing.” The case was argued and won by the union in the U.S. Court of Appeals Sixth Circuit. [.pdf of United Food & Commercial Workers Union, Local 1099, v. Southwest Ohio Regional Transit Authority]

The standard of review for the preliminary injunction, now sought 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 the issuance of the injunction.

In the motion for a preliminary injunction, the ACLU’s argument is laid out in greater detail than in the initial lawsuit [.pdf of Nov. 28, 2011 lawsuit]. Among the issues raised by the suit is whether the AATA has created a public forum through its advertising program. The ACLU contends that the AATA has, in fact, created a public forum, but does not rely exclusively on that conclusion in arguing that Coleman’s constitutional rights were violated. In addition to the First Amendment claims (free speech), the suit alleges Fourteenth Amendment violations (due process).

In a similar case in Seattle, the ACLU has now filed a notice of appeal after the federal district court ruled in October 2011 in favor of the transit authority – over an ad with the text, “Israeli War Crimes: Your Tax Dollars at Work,” and featuring a picture of children next to a bomb-damaged building. [.pdf of the Seattle Mideast Awareness Campaign (SeaMAC) v. King County ruling]

In contrast to the AATA case, the transit authority in Seattle at first accepted the SeaMAC ad. Then, when advance publicity about the prospects of the ad’s future appearance resulted in proposed counter-ads, possible demonstrations, and the specter of violence, the transit authority decided not to allow the ad to appear.

The AATA case evolved after Coleman tried unsuccessfully to place the ad, and the ACLU sent a letter to the AATA in August 2011 supporting Coleman’s position. [.pdf of ACLU Aug. 12, 2011 letter] [.pdf of AATA advertising policy]

At its Nov. 17 meeting, the AATA board affirmed the decision to reject the proposed ad in its current form, and passed a resolution to that effect, inviting Coleman and the ACLU to discuss the advertising policy. [.pdf of AATA board resolution rejecting advertisement] According to ACLU staff attorney Dan Korobkin, communication took place between the ACLU and the AATA’s legal counsel after the board’s resolution was passed. However, that communication did not avert the filing of the lawsuit.

[Coverage of AATA board meeting when action was taken regarding the ad: "Bus Ad Rejection Affirmed"]

The ad features the text “Boycott Israel” and “Boycott Apartheid,” with an image depicting a scorpion-like creature with a skull for a head. At its Nov. 17 meeting, the AATA board voted to affirm the rejection of the ad, inviting Blaine Coleman – whom the ACLU is representing in the case – and the ACLU to discuss the advertising policy. The board’s vote had come in response to a letter the board had received in August 2011 asking the AATA to reverse the decision to reject the ad. [Chronicle coverage of the board's decision, the legal issues and some other similar cases are included in a report of that meeting: "Bus Ad Rejection Affirmed"]

According to Korobkin, after the AATA board’s resolution was passed, there was some communication between the ACLU and the AATA before the suit was filed.

The complaint now filed in U.S. District Court for the Eastern District of Michigan (Southern Division) includes two counts alleging violation of the First Amendment (free speech) and two violating the Fourteenth Amendment (due process) for a total of four counts.

The ACLU is contending 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 contends that the AATA’s advertising policy generally violates the First Amendment on its face – because it is overly broad (count 2).

The Fourteenth Amendment counts can be similarly paired, and are based on vagueness. One count alleges that the way in which Coleman’s specific ad was rejected was vague (count 3). The other Fourteenth Amendment count alleges that the AATA’s ad policy on its face is vague (count 4) and it’s generally not the case that “a person of ordinary intelligence can readily identify the applicable standard for inclusion or exclusion.”