American Freedom Defense Initiative v. Suburban Mobility Authority for Regional Transportation, No. 19-1311 (6th Cir. 2020)Annotate this Case
SMART manages a public-transportation system for the counties in and around Detroit. For a fee, parties may display advertisements on the inside and outside of SMART’s buses and bus shelters. SMART guidelines prohibit “political” ads; ads that engage in “scorn or ridicule”; advertising promoting the sale of alcohol or tobacco; advertising that is false, misleading, or deceptive; advertising that is clearly defamatory or likely to hold up to scorn or ridicule any person or group of persons; advertising that is obscene or pornographic or advocates imminent lawlessness or unlawful violent action.
AFDI sought to run an ad that said: “Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got Questions? RefugefromIslam.com.” SMART rejected this ad as “political” and as holding up a group of people to “scorn or ridicule.”
Initially, the Sixth Circuit held that the advertising space on SMART’s buses is a nonpublic forum and that SMART likely could show that its restrictions were reasonable and viewpoint neutral. In light of subsequent Supreme Court decisions, the Sixth Circuit reversed. SMART’s ban on “political” ads is unreasonable because SMART offers no “sensible basis for distinguishing what may come in from what must stay out.”. SMART’s ban on ads that engage in “scorn or ridicule” is not viewpoint-neutral. For any group, “an applicant may [display] a positive or benign [ad] but not a derogatory one.”