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Sixth Circuit: Michigan Transit Authority Can Reject AFDI Ads

By Robyn Hagan Cain on October 26, 2012 | Last updated on March 21, 2019

The Sixth Circuit Court of Appeals ruled this week that a Michigan state-run transit authority can refuse to display American Freedom Defense Initiative ads on the sides of city buses, The Wall Street Journal reports.

The appellate court lifted a preliminary injunction against a Suburban Mobility Authority for Regional Transportation (SMART) policy prohibiting content "that is political or that subjects any group to scorn," concluding that AFDI was unlikely to succeed on the merits of its suit. The court found the policy reasonable and viewpoint neutral.

Advertising space on Michigan buses is subject to SMART's "Restriction on Content" policy, which limits the permissible content of advertisements displayed on SMART vehicles. The policy states: In order to minimize chances of abuse, the appearance of favoritism, and the risk of imposing upon a captive audience, SMART does not allow the following content:

  1. Political or political campaign advertising.
  2. Advertising promoting the sale of alcohol or tobacco.
  3. Advertising that is false, misleading, or deceptive.
  4. Advertising that is clearly defamatory or likely to hold up to scorn or ridicule any person or group of persons.
  5. Advertising that is obscene or pornographic; or in advocacy of imminent lawlessness or unlawful violent action.

The plaintiff, AFDI, is a nonprofit corporation that "acts against ... government officials, the mainstream media, and others" who "capitulate to the global jihad and Islamic supremacism." The group promotes "its political objectives by, inter alia, sponsoring anti-jihad bus and billboard campaigns, which includes seeking advertising space on SMART vehicles."

In this case, AFDI wanted to run an ad stating, "Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got Questions? Get Answers!" SMART determined that the ad violated the content restriction against political advertising, as well as the restriction against content "likely to hold up to scorn and ridicule a group of persons." AFDI sued for equitable relief, accusing SMART of violating the First and Fourteenth Amendments.

The district court granted a preliminary injunction, enjoining SMART from applying its content restrictions to AFDI's speech.

The Sixth Circuit Court of Appeals concluded that SMART bus-side advertising was a nonpublic forum and the restrictions were constitutional because they were reasonable and viewpoint neutral.

The AFDI campaign has created a stir in several major cities this year. The ads recently made national headlines after Egyptian-American activist, Mona Eltahawy, was arrested for defacing AFDI posters in a New York City subway station. Federal district courts in New York and Washington have ruled that the transit systems cannot block the campaign.

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