Bus System Barred (at least Temporarily) from Excluding "Leaving Islam" Ad

by Eugene Volokh
Volokh Conspiracy Blog
March 31, 2011

https://www.legal-project.org/1263/bus-system-barred-at-least-temporarily-from

Excerpt:

This happened in American Freedom Defense Initiative v. Suburban Mobility Authority for Regional Transportation (SMART) (E.D. Mich., decided today). The ad said, "Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got questions? Get answers!," and included the Web site address "RefugeFromIslam.com." SMART — the Detroit-area public transportation system — rejected the ad, arguing that its policy was not to include "Political or political campaign advertising" or "Advertising that is ... likely to hold up to scorn or ridicule any person or group of persons."

The court disagreed with SMART, and granted the advertisers' motion for a preliminary injunction ordering SMART to allow their ad. The court concluded that the advertising space is likely not a "designated public forum" but rather a "nonpublic forum." (This is likely a labeling mistake, I think, since under the Supreme Court's caselaw the forum would probably be labeled a "limited public forum," which is sometimes seen as a variant of a "designated public forum." But not much turns on this, since the Court's most recent decisions set up the same rule for limited public fora and for nonpublic fora.) In a nonpublic forum or a limited public forum, a speech restriction is constitutional if it's viewpoint-neutral and reasonable. But the court concluded:

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