978 F.3d 481
6th Cir.2020Background
- SMART (Suburban Mobility Authority for Regional Transportation) contracted with CBS Outdoor to sell bus and shelter ad space and adopted Advertising Guidelines that bar, among other things, “political” ads and ads likely to hold a group up to “scorn or ridicule.”
- AFDI (American Freedom Defense Initiative) submitted a bus ad reading in part “Fatwa on your head? … RefugeFromIslam.com.” SMART rejected it as both “political” and likely to hold Muslims up to “scorn or ridicule.”
- SMART has displayed many issue and religious ads (including an atheist ad) and has rejected only a handful of ads under the Guidelines.
- Procedural history: district court granted a preliminary injunction; this court reversed on interlocutory appeal (698 F.3d 885 (6th Cir. 2012)); after discovery the district court granted summary judgment to SMART; on this appeal the Sixth Circuit revisited the issues in light of intervening Supreme Court decisions.
- The panel treated the bus ad space as private (not government) speech and, without deciding designated vs. nonpublic forum, applied the nonpublic-forum test and held that SMART’s two restrictions violate the First Amendment.
Issues
| Issue | Plaintiff's Argument (AFDI) | Defendant's Argument (SMART) | Held |
|---|---|---|---|
| Whether bus ad space is government speech or a private forum | Ads are private speech; SMART’s space is not government speech | SMART disavows government-speech claim but contends forum is nonpublic and restrictions are permissible | Court: Ads are not government speech; applied nonpublic-forum review and did not decide designated vs. nonpublic forum |
| Whether SMART’s ban on “political” ads is reasonable in a nonpublic forum | Ban is vague and grants unbridled discretion; cannot be applied objectively | Ban furthers permissible interests (avoid captive‑audience imposition, revenue loss, appearance of favoritism) and is administrable | Held: Unreasonable under Mansky — “political” is indeterminate and lacks objective, workable standards; invalidated as-applied to this ad |
| Whether ban on ads likely to hold persons to “scorn or ridicule” is viewpoint neutral | Ban targets disparaging viewpoints about a group and thus discriminates based on viewpoint | Ban is content‑neutral prohibition of disparagement meant to protect riders | Held: Violates viewpoint‑neutrality rule (Matal/Iancu) — prohibition on scorn/disparagement facially and as‑applied discriminates against derogatory viewpoints |
Key Cases Cited
- Minn. Voters All. v. Mansky, 138 S. Ct. 1876 (2018) (nonpublic‑forum reasonableness requires objective, workable standards; vague political bans invalid)
- Matal v. Tam, 137 S. Ct. 1744 (2017) (disparagement bans entail viewpoint discrimination; “giving offense is a viewpoint”)
- Iancu v. Brunetti, 139 S. Ct. 2294 (2019) (offensive‑ideas prohibition is viewpoint discriminatory)
- Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) (advertising space on transit vehicles is private speech, not a traditional public forum)
- Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788 (1985) (forum classification and nonpublic‑forum standards: restrictions must be reasonable and viewpoint neutral)
- Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995) (viewpoint discrimination forbidden even where government subsidizes private speech)
- Walker v. Tex. Div., Sons of Confederate Veterans, 576 U.S. 200 (2015) (context of specialty license plates and government‑speech analysis; advertising context traditionally available for private speech)
- Greer v. Spock, 424 U.S. 828 (1976) (examples of permissible content restrictions in nonpublic forums like military bases)
- Am. Freedom Def. Initiative v. Suburban Mobility Auth. for Reg'l Transp., 698 F.3d 885 (6th Cir. 2012) (prior Sixth Circuit panel decision finding a nonpublic forum and upholding SMART’s restrictions)