Sixth Circuit Strikes Down Transportation Agency’s Exclusion on “Political” Ads and Ones That “Scorn or Ridicule”
From American Freedom Defensive Initiative v. Suburban Mobility Auth. for Regional Transp. (6th Cir.), written by Sixth Circuit Judge Murphy and joined by Judges Cole and Siler; I think this is analysis is quite correct:
The Free Speech Clause limits the government’s power to regulate speech on public property. The government has little leeway to restrict speech in “public forums”: properties like parks or streets that are open to speech by tradition or design. It has wider latitude to restrict speech in “nonpublic forums” that have not been opened to debate. Even there, however, speech restrictions must be reasonable and viewpoint neutral. See Minn. Voters All. v. Mansky (2018).
In this case, we must consider how these rules apply to the restrictions that a public-transit authority imposes on parties who seek to display advertisements on its buses. The American Freedom Defense Initiative sought to run an ad that said: “Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got Questions? Get Answers! RefugefromIslam.com.” Michigan’s Suburban Mobility Authority for Regional Transportation (SMART) rejected this ad under two of its speech restrictions. The first prohibits “political” ads; the second prohibits ads that would hold up a group of people to “scorn or ridicule.”
Earlier in this case [in 2012], we found, first, that the advertising space on SMART’s buses is a nonpublic forum and, second, that SMART likely could show that its restrictions were reasonable and viewpoint neutral. Since then, the Supreme Court has issued a pair of decisions that compel us to change course on our second conclusion. SMART’s ban on “political” ads is unreasonable for the same reason that a state’s ban on “political” apparel at polling places is unreasonable: SMART offers no “sensible basis for distinguishing what may come in from what must stay out.” Mansky.
Likewise, SMART’s ban on ads that engage in “scorn or ridicule” is not viewpoint neutral for the same reason that a ban on trademarks that disparage people is not viewpoint neutral: For any group, “an applicant may [display] a positive or benign [ad] but not a derogatory one.” Matal v. Tam (2017). We thus reverse the district court’s decision rejecting the First Amendment challenge to these two restrictions….
Speech restrictions in nonpublic forums must be reasonable and viewpoint neutral…. Mansky shows how this test applies to a speech restriction analogous to the one at issue here. That case addressed a Minnesota law that banned voters from wearing “political” apparel at polling places. The Court treated polling places as nonpublic forums. When applying this reasonableness test, it found that Minnesota had pursued permissible ends because the state could reasonably seek to reinforce the solemnity of voting. Voters “reach considered
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