MARK A. GOLDSMITH, District Judge.
This matter is presently before the Court on Plaintiff's motion for a temporary
Defendant Ann Arbor Transportation Authority (AATA) operates the local public transit system in the Ann Arbor, Michigan area. AATA has a program that allows advertisers to place ads on AATA buses. The program is administered by a contractor, former Defendant Transit Advertising Group AA (TAG).
Plaintiff Blaine Coleman filed the instant action challenging AATA's refusal to accept an advertisement that he submitted for display on the exterior of its buses. The proposed ad consists of two phrases: "Boycott `Israel'" and "Boycott Apartheid" — with the word Israel in quotation marks. The two phrases are separated by a graphic consisting of an insect-like figure with a skull as its head; the figure is gripping another skull in one hand and a bone in the other hand; disembodied bones and skulls float in the background:
See Compl., Attachment 1 (Dkt. 1-2).
Plaintiff contacted Defendants via email in January 2011 indicating that he would like to advertise on AATA buses, and requesting the necessary form and a copy of all applicable rules. He also attached his proposed advertisement. Coleman email of 1/12/11 (Dkt. 46-9). In February 2011, former Defendant Randy Oram, president of TAG, responded. In his email to Plaintiff,
AATA's advertising policy states:
Advertising Policy (Dkt. 3-21) (emphasis added). The policy has been in place since AATA decided to permit commercial advertising on its vehicles, sometime in 2005. Evid. Hr'g Tr. at 15.
In August 2011, Plaintiff's counsel wrote the board of directors of AATA and its chief operating officer, Defendant Michael Ford, (i) advising them of Plaintiff's position that the AATA advertising policy was unconstitutional, (ii) requesting that Plaintiff's ad be accepted, and (iii) urging that the policy be reformed. Thereafter, the issue was presented to the AATA board. Stasiak Aff. ¶ 17 (Dkt. 19-3 at 7, CM/ECF pagination). The board voted to reject the ad and issued a written resolution explaining its rejection. Id. at 18 (11/17/11 Board resolution). The resolution states, in relevant part:
Pursuant to the resolution, AATA's counsel advised Plaintiff's counsel of the board's decision to reject the ad. Lax Letter of 11/17/11 (Dkt. 19-2).
On November 28, 2011, Plaintiff filed this action pursuant to 42 U.S.C. § 1983, alleging in four counts violations of the First and Fourteenth Amendments (Dkt. 1). Count I alleges a violation of the First Amendment on the theory that Defendants operate a "designated public forum" and have unconstitutionally discriminated against Plaintiff on the basis of the content of his ad. Alternatively, under Count I, Plaintiff alleges that Defendants operate a "limited" or "nonpublic" forum, and that they have unconstitutionally discriminated against Plaintiff based on viewpoint. Count II makes the same allegations, but denominates this count as a facial challenge under the overbreadth doctrine. Count III asserts a Fourteenth Amendment due process violation, under a "vagueness as applied" theory, claiming that Defendants exercised unbridled discretion in rejecting Plaintiff's ad, and that exclusion of the ad rests on "ambiguous and subjective reasons." Count IV asserts another Fourteenth Amendment due process challenge based on vagueness, but characterized as a facial challenge, grounded in the theory that the policy grants unbridled discretion such that exclusion of advertising may rest on ambiguous and subjective reasons.
Shortly after filing the complaint, Plaintiff filed a motion for a preliminary injunction and/or a temporary restraining order (Dkt. 3), raising some — but not all — of the issues contained in his complaint. Specifically, Plaintiff sought preliminary injunctive relief on the theory that he was likely to prevail, on the merits, on the following specific issues:
Defendants AATA and Ford filed a response to Plaintiff's motion for injunctive relief (Dkt. 19) and, in addition, filed their own motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) (Dkt. 20). Former Defendants Oram and TAG filed an answer denying the material allegations of the complaint and also joined the motion to dismiss (Dkts. 21, 22). Both motions are fully briefed. All parties initially agreed that the Court could and should rule on the motions without discovery or an evidentiary hearing, and the Court held oral argument on the motions on April 17, 2012. After oral argument, the Court consulted with the parties and determined that an evidentiary hearing was necessary regarding the reasons for the rejection of Plaintiff's ad, and the history of Defendants' enforcement of the advertising policy. See Order Re: Evidentiary Hearing (Dkt. 35). After a period of expedited discovery, the Court held a day-long evidentiary hearing on July 23, 2012, and the parties subsequently submitted post-hearing briefs (Dkts. 46, 48).
The evidentiary hearing was convened to afford the parties an opportunity to supplement and critique the positions that had been staked out in the motion papers regarding the reasons for the rejection of Plaintiff's ad and the enforcement history of the advertising policy. On the former issue, Plaintiff had maintained that his ad was rejected both under the "good taste" provision and the "scorn or ridicule" provision, while Defendants claimed that it had been rejected only under the "scorn or ridicule" provision. The Court believed that resolution of that threshold issue might limit or otherwise impact the issues that the Court would have to resolve.
The enforcement history was thought relevant, as it might bear on forum analysis. As explained in detail below, the government's authority to impose restrictions on expression is more circumscribed in a "traditional public forum," such as a park or street, or its functional equivalent — a "designated public forum" — than in a "limited public forum," i.e., a venue that the government has reserved for certain subject matter or speakers. See, e.g., Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 469-470, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009). On this issue, the parties' motion papers presented sharply opposing views as to whether AATA had created a designated forum, as claimed by Plaintiff, or had created a limited public forum, as claimed by Defendants.
In his papers, Plaintiff maintained that AATA's advertising space was a designated public forum for several reasons: (i) AATA's written policy stating that it was not creating a public forum was not determinative; (ii) AATA's actual practice is not to enforce the written policy; (iii) AATA runs a wide array of ads, including political and public-issue ads; (iv) AATA rarely rejects ads; and (v) the criteria for whether an ad will be accepted or rejected are unclear. TRO Mot. at 10-13 (Dkt. 3).
Defendants responded that (i) the government's stated intent, while not dispositive, is relevant (TRO Resp. at 10); (ii) with the exception of two mistakes in 2008, AATA has rigorously enforced its own policy
At the evidentiary hearing, the parties' contentions were variously supported and undercut by the four witnesses who testified: Mary Stasiak, AATA's manager of community relations; former Defendant Randy Oram, the president of TAG; Dorrie Gabay, the deputy CEO of AATA; and Jesse Bernstein, board chairman of AATA.
Regarding the reasons for rejection of the ad, Ms. Stasiak testified that she believed Plaintiff's ad should be rejected because it "defamed or was likely to hold up to scorn or ridicule a person or group of persons specifically," and because the graphic on the ad was "frightening." Evid. Hr'g Tr. at 37. Ms. Stasiak further testified that the frightening nature of the ad violated the purposes of the AATA policy, which she characterized as "increase revenue, increase ridership and the safety and sense of security for riders and the public." She also testified that the ad violated the "good taste" provision "as it relates to [the purposes of the policy]." Id. at 37-38.
Ms. Gabay testified that Plaintiff's ad violated the provisions that "all advertising must be considered in good taste" and that "it should not defame or be likely to hold... up to scorn or ridicule a person or groups of person." Id. at 161. Ms. Gabay further testified that the graphic "was not in good taste" because it "would not create a pleasant atmosphere." Id. at 162. Ms. Gabay stated that Plaintiff's ad also "held up to defame and it was likely to hold to scorn." Id. at 177. She also testified that she reviewed the ad in the context of the purposes of the policy, "to encourage ridership and for people to use buses." Id. at 177-178.
Mr. Bernstein was asked if the board rejected Plaintiff's ad because it violated the "good taste" provision, to which he replied, "[G]enerally yes, but specifically because it defamed and held up to scorn and ridicule a group of people." Id. at 195. He then stated, "[F]ormally it was B5 [the "scorn or ridicule" provision] that was the overriding issue." Id. at 196. Mr. Bernstein explained that his personal decision was based on the graphic of a skull and spider's body, and "the fact that Israel is in quotes," and he affirmed that the graphic in context of the quotation marks violated the "scorn or ridicule" provision. Id. at 209. He explained that "the quotes imply Israel doesn't exist, that it somehow demeans that group of people that are citizens of that country." Id. at 210.
Based on the testimony of the witnesses, the Court concludes that it is likely that Plaintiff's ad was rejected under both the "good taste" provision and the "scorn or ridicule" provision.
Turning to the second issue — the history of Defendants' enforcement of the advertising policy — Ms. Stasiak testified that the advertising policy has been in effect since "around 2005." Evid. Hr'g Tr. at 15. Under the general AATA procedure, Ms. Stasiak testified that she would review proposed ads and, if compliant with the policy, approve them. If she was concerned that an ad might violate the policy, she would forward it to a group of senior AATA employees for them to make the final decision. Id. at 14, 70.
Mr. Oram testified that, if TAG received proposed ads, the standard policy and procedure was for TAG to forward them to AATA for review. Id. at 92, 132. Although he gave input, the AATA group
Regarding AATA's history of rejecting ads, only two ads were rejected prior to Plaintiff's submission of his proposed ad. One of these ads was an ad for Jimmy John's that used the term "kick-ass," which, according to Ms. Stasiak, was rejected, at least in part, for violating the "good taste" provision of the AATA policy. Id. at 20-22. The other ad was for a Vespa motorcycle company, which had used the term "gas-hole." Id. at 72. According to Ms. Stasiak, this ad was also rejected, at least in part, for violating the "good taste" provision. Id. at 20-21.
Several weeks after reviewing Plaintiff's ad, AATA initially rejected an ad for StatusSexy.com, an HIV-prevention website, depicting a man naked from the waist up. Id. at 41-45. Ms. Stasiak's testimony indicates that this ad was rejected because the website referenced in the ad was not yet established and functioning. Id. at 42-44 (noting that "the public cannot view it" and "the ability for me not to go to the website was a concern of mine"). Mr. Oram testified that a major concern with the StatusSexy ad's link not working was the uncertainty regarding what the website would contain when it went live. Id. at 141-142 ("you get concerned that it might incite violence, it might hurt somebody, you just don't know so you're better off safe than sorry"). Ms. Gabay testified that an additional reason for rejection of the ad was the "good taste" provision. Id. at 168. Eventually, the ad was run, after the website was functioning. Id. at 178-179.
In 2011, the board rejected, under the "scorn or ridicule" provision, an ad submitted by People for the Ethical Treatment of Animals, which asserted that the University of Michigan's animal labs were cruel. Id. at 47.
Regarding ads run in violation of the AATA policy, there was evidence of only two such ads. Both were ads endorsing political candidates in 2008 and were approved in violation of Section B(7) of the policy, which prohibits ads that support or oppose the election of any person to office. Id. at 28-30. Regarding these instances, Ms. Stasiak testified that she recalled approving only one of the ads, but that both had been submitted during a personally difficult time in her life, when two family members had died. Id. at 75. She acknowledged that the ads had been run in error. Id. at 75.
The Court's conclusions regarding this testimony are addressed in connection with its discussion of forum analysis below.
In deciding a motion for a preliminary injunction, a court must consider the four traditional factors for awarding equitable relief: (i) movant's likelihood of success on the merits, (ii) irreparable harm to movant if relief is not granted, (iii) the probability that granting the injunction will cause substantial harm to others, and (iv) whether the public interest will be served by issuing an injunction. Six Clinics Holding Corp. v. Cafcomp Sys., Inc., 119 F.3d 393, 399 (6th Cir.1997). These same factors are utilized in evaluating whether to issue a temporary restraining order. Ohio Republican Party v. Brunner, 543 F.3d 357, 361 (6th Cir.2008). The factors are not independent prerequisites, but rather are to be balanced against each other. Overstreet v. Lexington-Fayette Urban Cnty. Gov't, 305 F.3d 566, 573 (6th Cir.2002). Preliminary injunctive relief is deemed an "extraordinary remedy," which a court should grant "only if the movant carries
In the context of the First Amendment, the central issue in determining the propriety of preliminary injunctive relief often turns on the merits of the constitutional claim:
Jones v. Caruso, 569 F.3d 258, 265-66 (6th Cir.2009).
The Court discusses each of these four factors, in turn.
The First Amendment guarantee of the freedom of speech has played a cherished and essential role in the life of our Nation. Freedom of speech is a "fundamental value," Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968), safeguarding the viability of our democracy by ensuring that our national dialogue remains robust, informed, and penetrating. New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). As Justice Brandeis observed:
Whitney v. California, 274 U.S. 357, 375, 47 S.Ct. 641, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring).
The contours of this fundamental principle have been delineated by numerous cases resolving the inevitable conflicts that have historically arisen, in various contexts, between freedom of expression and important government interests. One such context is transit advertising, where the government's interest in attracting ridership to promote economically viable transit is evaluated against an individual
In the merits analysis that follows, the Court first discusses the standards applicable to the facial and as-applied challenges raised by Plaintiff in his motion.
The standards governing facial challenges are different from those governing as-applied challenges. As the Sixth Circuit has explained:
Women's Med. Prof'l Corp. v. Voinovich, 130 F.3d 187, 193 (6th Cir.1997).
Courts generally address an as-applied challenge before a facial challenge to increase efficiency, reduce the need to address unnecessary facial attacks, and avoid encouraging "wholesale attacks upon state and federal laws." Connection Distr. Co. v. Holder, 557 F.3d 321, 327-328 (6th Cir.2009) (citations omitted). Although the general judicial reluctance to entertain facial challenges is "diminished in the First Amendment context," Roulette v. City of Seattle, 97 F.3d 300, 303 (9th Cir.1996), facial attacks remain disfavored even in First Amendment cases because "they frequently require courts to `anticipate a question of constitutional law in advance of the necessity of deciding it' or to `formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.'" Holder, 557 F.3d at 336.
Nonetheless, a facial challenge may be entertained where the plaintiff can demonstrate that there are, at most, only a "few circumstances" where the challenged enactment would be constitutional:
Holder, 557 F.3d at 335.
In his motion, Plaintiff delineates some challenges explicitly as facial challenges (viz. vagueness as to the "good taste" provision and viewpoint discrimination as to the "scorn or ridicule" provision). He also expressly delineates one challenge as an as-applied challenge (viz. the vagueness/due process challenge to the phrase "person or group of persons" contained in the "scorn or ridicule" provision). However, Plaintiff fails to denominate, as facial or as-applied, his challenge to the "scorn or ridicule" provision on grounds that it is a content-restriction in a designated public forum. Because the argument is premised to some extent on the nature of Plaintiff's ad, the Court assumes Plaintiff intended this to be an as-applied challenge. See Voinovich, 130 F.3d at 193 ("In an as-applied challenge, the plaintiff contends that application of the statute in the particular context in which he has acted, or in which he proposes to act, would be unconstitutional.")
As the analysis below demonstrates, there are no circumstances under which the "good taste" provision would be constitutional. Therefore, Plaintiff's facial challenge to that provision is appropriate. Similarly, his as-applied challenge to the "scorn or ridicule" provision is appropriate because, under the particular circumstances presented to the Court, the current characterization of the forum supports Plaintiff's entitlement to relief.
The government's authority to restrict speech on its own property varies, to some extent, based on the nature of the forum in which the restriction is exercised. In a traditional public forum, such as streets or parks, the government may enact (i) content-based restrictions if it can satisfy the rigors of strict scrutiny, and (ii) content-neutral regulations as to "time, place, or manner" if they are reasonable, narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels of communication; however, restrictions based on viewpoint are presumptively prohibited. Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983); Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 469-470, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009). As explained in Perry:
460 U.S. at 45, 103 S.Ct. 948 (citations omitted).
The same restrictions apply in a "designated public forum," i.e., a non-traditional forum that "the state has opened for use by the public as a place for expressive activity." Id. at 45-46, 103 S.Ct. 948. This forum has been described as one that "shares the essential attributes of a traditional public forum." Summum, 555 U.S. at 469-470, 129 S.Ct. 1125.
Finally, "public property which is not by tradition or designation a forum for public communication is governed by different standards." Perry, 460 U.S. at 46, 103 S.Ct. 948. In this limited public forum,
A designated public forum may only be created by the intentional actions of the government. See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985) ("The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse."). To discern the government's intent, courts "look[ ] to the policy and practice of the government to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public forum," as well as "the nature of the property and its compatibility with expressive activity." Id. See also Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 267, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988) (noting that school facilities are deemed public forums only if "school authorities have `by policy or practice' opened these facilities `for indiscriminate use by the general public,' or by some segment of the public").
The Sixth Circuit undertook a forum analysis in the transit context in United Food & Commercial Workers Union, Local 1099 v. Southwest Ohio Regional Transit Authority, 163 F.3d 341 (6th Cir.1998), the case on which Plaintiff principally relies. In United Food, the plaintiff-union challenged the decision of a regional transit authority (SORTA) to reject the union's bus advertisement as violative of the policy's prohibitions on "advertising of controversial public issues" and advertising that was not "aesthetically pleasing." The majority opinion concluded that the transit advertising space was a designated public forum, and that the policy prohibitions were content restrictions that failed under the strict scrutiny test. Alternatively, the majority held that, even if the forum were deemed to be a limited public forum, SORTA's application of the policy was unreasonable, because the evidence demonstrated that the rejected ad was unlikely to affect adversely the company's proprietary interests. Id. at 358.
Of critical importance to this Opinion is the majority opinion's treatment of forum analysis. The majority announced that a two-step analysis should be used to determine whether the government has intentionally created a public forum:
Id. at 352. The majority concluded that the first step had been satisfied because those seeking access to the advertising space had to obtain permission. Id. at 353. As to the second step, the majority opinion undertook a multi-factor analysis, but also announced a dispositive, bright-line test as to one particular factor.
The dispositive, bright-line factor concerned whether the government agency involved had operated under "clear standards":
Id. at 352 (quotation marks and citations omitted). By employing this dispositive language, the majority opinion appears to make irrelevant whether there is other evidence that might indicate that the government's intent was not to designate a public forum.
Even though that dispositive criterion had been satisfied — given the majority's later conclusion that the "controversial issue" and "aesthetically pleasing" provisions were vague — the majority nonetheless proceeded to evaluate a number of factors that it found supported its conclusion that SORTA had intended to create a designated public forum. The majority reviewed the total number of ads rejected — six ads over the course of approximately two years — and concluded that it was unable to "readily surmise that SORTA's exercise of control over access to its advertising space operates so as to ensure that the speech is compatible with the forum's larger purpose." Id. at 354. The majority also considered the acceptance of a wide array of political and public-issue speech to be evidence of an intent to create a designated forum. Id. at 355. Finally, it found that there was "no established causal link" between its goals of attracting ridership, enhancing the transit environment, enhancing its community standing, and the restrictions on controversial and aesthetically unpleasant ads. Id. at 354.
Judge Wellford, in his concurring opinion, disagreed with the majority's forum analysis:
United Food, 163 F.3d at 365.
The gist of Judge Wellford's concurrence is that the majority had departed from the essence of the Supreme Court's teaching that courts should seek to determine whether the government intended to limit access to the forum through a consistent policy and practice of selective access. Judge Wellford also disagreed that Christ's Bride — the progenitor of the "unclear standards" factor held to be dispositive by the majority — had any application because the policies and practices there — permitting rejection of ads "for any reason" — differed markedly from those in United Food.
Indeed, the majority opinion's invocation of Christ's Bride is puzzling because that decision did not hold that "unclear standards" would mandate a finding of a designated public forum. In Christ's Bride, the transit authority reserved "the right in its sole discretion to reject or to remove any advertisement that it deems objectionable," 148 F.3d at 251, yet that court proceeded to examine other factors — including the history of allowing "virtually unlimited access to the forum" and the written policy itself — to reach its conclusion that a designated public forum had been created. Id. at 252. The failure to adopt a bright-line test in that case is telling, given that a policy of allowing ad rejection "for any reason" would be the high-water mark for "unclear standards." See United Food, 163 F.3d at 352 (characterizing the policy of allowing ad rejection "for any reason" in Christ's Bride as "the potential for government censorship ... at its greatest").
The dispositive nature of the rule is troubling because it overlooks the importance of several countervailing considerations. It ignores the fact that there may be weighty counter-evidence of the government's intent. It ignores, as well, that "unclear standards" may come in varying degrees of vagueness. See, e.g., Kentucky Div., Horsemen's Benevolent & Protective Ass'n, Inc. v. Turfway Park Racing Ass'n, Inc., 20 F.3d 1406, 1413 (6th Cir.1994) ("The degree of vagueness that the Constitution tolerates depends in part on the nature of the enactment.") (citation and internal quotation marks omitted). Thus, a marginally unclear standard might be unconstitutional, but it may not necessarily demonstrate the government's intent to create a designated public forum. Further, given that a policy may consist of numerous provisions, any one of which may be "unclear," the United Food majority does not articulate how the rule would operate should the unclear standard not be the primary cause for an ad's rejection.
The majority not only failed to address any of these issues, it failed to articulate any reason why the rule should be dispositive. Indeed, there is no clearly articulated explanation of the relevance of this rule to the forum issue to be decided, i.e., a chain-of-reasoning as to how the absence of "clear standards" was probative of the government's intent to create a public forum — a failure noted in academic criticism. See Marc Rohr, The Ongoing Mystery of the Limited Public Forum, 33 Nova L.Rev. 299, 347 (2009) ("[T]he question must be asked: why must the gatekeeper of a governmental forum be limited by definite standards, in the exercise of discretion regarding access to that forum, in order for the forum to be deemed non-public? Indeed, what does the issue of standardless discretion have to do with the ostensibly governing criterion of the government's intent to create, or not to create, an open forum?").
A theory of relevance might be that the failure to establish clear standards reflects a government that is not serious about exercising control over the forum. But an alternative explanation of all the relevant evidence, in a particular case, may be that the government endeavored to exercise control, but simply failed to fashion a particular standard that satisfied constitutional vagueness standards, despite its best efforts to do so. Thus, in a particular case, the unclear nature of the standards may have little or no probative value in determining the government's intent.
The various criticisms that may be lodged against the "unclear standards" rule enunciated by the United Food majority may explain why numerous courts have employed a multi-factor analysis without mentioning "unclear standards" as a factor, much less as a dispositive one.
Because Plaintiff is moving for a preliminary injunction, he bears the burden of persuasion on the merits of his claim. Leary v. Daeschner, 228 F.3d 729, 740 (6th Cir.2000). Therefore, Plaintiff bears the burden of demonstrating that the AATA advertising space is a designated public forum. See Huminski v. Corsones, 386 F.3d 116, 154 (2d Cir.2004) (plaintiff moving for preliminary injunction did not satisfy burden of showing governmental intent to designate government property as a public forum).
The Court finds that Plaintiff has met that burden because the "clear standards" language utilized in United Food is dispositive in this case. It appears to require a court to find that a forum is a designated public forum if any of its standards are not clear. As explained below, this Court finds the "good taste" provision of the AATA policy to be vague because it is indistinguishable from the "aesthetically pleasing" provision that the Sixth Circuit found to be unconstitutionally vague in United Food. Therefore, the Court must conclude that Plaintiff has shown a likelihood of demonstrating that the AATA
If the "unclear standards" factor were not conclusive under United Food, the Court would conclude that Plaintiff has not met his burden of demonstrating a designated public forum. There was strong evidence adduced at the evidentiary hearing that AATA intended to create a limited public forum, quite aside from its written statement of intent to that effect. It created an orderly process involving several persons to review ads, with the ultimate decision to reject an ad in the hands of a committee of senior employees, rather than at the discretion of one individual, as was the case in United Food. Id. at 346-347 (noting that the general manager of SORTA decided whether to approve or reject ads). AATA staff testified, credibly, that they attempted to enforce the "good taste" provision in accordance with their understanding of the underlying purposes of the advertising policy, namely to prevent negative impacts on ridership, to increase revenue, and to ensure the safety of riders. Evid. Hr'g Tr. at 23, 177, 202. The written policy further corroborated that a detailed, even if constitutionally flawed, framework had been enacted to limit access to the forum in particular ways. Although there were only two ads rejected before Plaintiff submitted his ad, there was no evidence regarding the total number of rejections, leaving the Court unable to conclude that the two rejections reflect a less-than-diligent effort to enforce standards.
Plaintiff contends that the policy's requirement that ads be "in good taste and shall uphold the aesthetic standards as determined by AATA" is unconstitutionally vague. The Court agrees because United Food is conclusive on this issue. In pertinent part, the United Food court wrote:
163 F.3d at 358-359.
United Food applied the above standard to conclude that language substantially similar to the language at issue in the present case was unconstitutionally vague. Specifically, the court concluded that the plaintiff was likely to succeed on the merits of its vagueness challenge to the requirement that all ads "be aesthetically pleasing," 163 F.3d at 360 — language materially indistinguishable from the requirement here that "[a]ll advertising must be in considered in good taste and shall uphold the aesthetic standards as determined
163 F.3d at 360.
The above critique unquestionably applies to the "good taste" requirement at issue here.
Plaintiff contends that the advertising policy's restriction on advertising that "defames
Because the AATA advertising space is a designated public forum pursuant to United Food, Defendants must demonstrate either that: (i) the policy at issue is a content-neutral "time, place, or manner" restriction; or (ii) if it is content-based, it meets strict scrutiny. As the Supreme Court has explained:
Perry, 460 U.S. at 45-46, 103 S.Ct. 948 (citations omitted); see also Summum, 555 U.S. at 469-470, 129 S.Ct. 1125 ("Government restrictions on speech in a designated public forum are subject to the same strict scrutiny as restrictions in a traditional public forum.").
If the "scorn or ridicule" provision is deemed a content restriction, Defendants must demonstrate that it can survive strict scrutiny, which the Supreme Court has defined as a determination that the restriction is narrowly tailored to promote a compelling government interest, for which there is no less restrictive alternative. U.S. v. Playboy Entm't Grp., Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000).
If the "scorn or ridicule" provision is content-neutral, Defendants would then have the burden of demonstrating that the provision is a reasonable "time, place, or manner" restriction, "justified without reference to the content of the regulated speech," that is "narrowly tailored to serve a significant governmental interest," and that leaves open "ample alternative channels for communication of the information." Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989); see also Doe v. City of Albuquerque, 667 F.3d 1111, 1134 (10th Cir. 2012) (emphasizing that the burden is on the state actor to show that the restriction serves a substantial state interest in a direct and effective way).
Here, Plaintiff argues that the "scorn or ridicule" provision is not content-neutral. Pl. Rep. Br. at 9 (Dkt. 26). He contends that whether an ad is allowed "depends entirely on its message," and that by a "commonsense understanding" of the term, the policy is content-based. Id. (citing City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993)). Plaintiff points out that strict scrutiny is a demanding standard, and argues that "increasing the use of public transportation," while legitimate, is not a compelling interest. Pl. Resp. Br. at 10. Plaintiff also contends that the policy is not a "time, place, or manner" restriction because it is not narrowly tailored, or the least restrictive alternative, to further the goal of increasing use of public transit. Id.
The threshold question is whether the "scorn or ridicule" provision is content-based or content-neutral. A content-neutral provision is justified "without reference to the content of the regulated speech," Ward, 491 U.S. at 791, 109 S.Ct. 2746, and is "applicable to all speech irrespective of content." Consol. Edison Co. v. Pub. Serv. Comm'n of New York, 447 U.S. 530, 536, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980). The Supreme Court, in City of Cincinnati v. Discovery Network, 507 U.S. 410, 429, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993), applying a "commonsense" understanding of the term "content-based," concluded that a city's policy of banning only newsracks distributing commercial handbills was content-based, because whether any newsrack fell within the scope of the ban was determined by assessing the content of the publication in the newsrack.
Furthermore, the United Food court, after determining that the transit advertising space was a designated public forum, stated that "[we] think it self-evident that excluding the Union's advertisement based on aesthetics and the limited possibility of controversy fails this historically stringent [strict scrutiny] test." 163 F.3d at 355. See also Ridley, 390 F.3d at 91 (characterizing transit restriction barring "demeaning and disparaging" ads as restricting "content," even though no particular viewpoint was excluded).
Applying these standards, the Court concludes that the "scorn or ridicule" provision is content-based. Although Defendants argue that the policy is justified without regard to the content of the speech, this argument is not persuasive. To determine whether an advertisement is scornful or ridiculing, it is necessary to assess the content of the ad and the speech it conveys. The "scorn or ridicule" provision is not applicable to all speech as, for example, a size limitation on ads would be; instead, it restricts only some types of speech, depending on the message the speaker is conveying. Because under the "commonsense" view of the term, the "scorn or ridicule" provision operates by reference to the content of the speech, it must be deemed a content-based restriction.
The narrow confines of that term are demonstrated by the precious few cases where governmental interests have been found to be compelling. See, e.g., Burson, 504 U.S. at 211, 112 S.Ct. 1846 (holding that a law requiring solicitors to stand 100 feet from the entrances to polling booths survives strict scrutiny because the right to vote free from intimidation and undue influence is a compelling interest) (plurality); Grutter v. Bollinger, 539 U.S. 306, 343, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003) ("[T]he Equal Protection Clause does not prohibit the [University of Michigan] Law School's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body."). Defendants cite no cases indicating that furthering public transportation is a "compelling" interest, and the Court is aware of none. Therefore, Defendants have not met their burden of demonstrating that the "scorn or ridicule" provision furthers a compelling interest.
Moreover, the "scorn or ridicule" provision cannot be justified as a reasonable "time, place, or manner" restriction. Permissible restrictions on the manner of speech generally restrict the method of speech — not the underlying content. For example, in Consolidated Edison Company, 447 U.S. at 536, 100 S.Ct. 2326, the Supreme Court held that:
In Hill v. Colorado, 530 U.S. 703, 719-722, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), the Court upheld as a reasonable "time, place, or manner" restriction a statute prohibiting people from knowingly approaching others within a certain distance of a health care facility for the purpose of speaking, showing signs, or passing out leaflets. The Court held that this was content-neutral because it regulated only the places where speech would occur, and it applied to all speakers without reference to the content of the speech. See also Prime Media, Inc. v. City of Brentwood, Tenn., 398 F.3d 814, 818-819 (6th Cir.2005) (quotations omitted) (stating it is "common ground that governments may regulate the
The "scorn or ridicule" provision is not a reasonable "time, place, or manner" restriction because it does not regulate a temporal, spatial, or physical element of the speech, or another aspect of the speech that is unrelated to content; instead, it regulates based on an aspect of the underlying expression.
For the above reasons, the Court concludes that the "scorn or ridicule" provision is a content-based restriction on speech that does not survive strict scrutiny and cannot be justified as a reasonable "time, place, or manner" restriction.
Defendants argue that the ads run on AATA buses are "government speech." Def. Resp. to TRO Mot. at 6-7 (Dkt. 19). Defendants cite Summum for the proposition that the government may select the views that it wants to express when it is "speaking on its own behalf." 555 U.S. at 467, 129 S.Ct. 1125. Defendants contend that, because there is no sponsor identification in Plaintiff's proposed ad, the ad would be attributable to AATA.
Plaintiff argues, in response, that courts have never held that privately paid advertisements are government speech just because they are displayed on public property. Pl. Rep. Br. at 7 (Dkt. 26). Plaintiff also argues that it is universally understood that when a public transit agency displays ads of private groups, those ads contain the speech of the private group and not the government agency. Id. Plaintiff contends that AATA's failure to require a sponsor identification does not allow AATA to turn its ads into government speech. Id. Finally, Plaintiff cites Miller v. City of Cincinnati, 622 F.3d 524, 536-537 (6th Cir.2010) for the proposition that the Sixth Circuit has rejected the argument that a private group's speech is converted into government speech just because it is expressed on government property. Id.
The Court agrees with Plaintiff that his speech is not government speech, based on Miller, which held that private group gatherings at a city hall did not constitute government speech:
622 F.3d at 536-537. Employing the above analysis, the Miller court drew a distinction between governmental erection of monuments in public parks — which is often interpreted by the public as reflecting views of the government — and private group gatherings held inside governmental buildings, which are not so viewed. Id.
Similarly, there is a difference between monuments in public parks and advertisements on public buses. Defendants have not cited any authority indicating that the speech in ads on transit authority buses are reasonably attributable to the transit authority, and Miller indicates that even if private speech takes place on government property, that does not, without more, suffice to create government speech. An additional element creating government speech might entail a long tradition of the government using the private speech to "speak to the public," id., or the government dictating the "overarching message" and "retaining the power to approve every word," id. (citing ACLU v. Bredesen, 441 F.3d 370, 375 (6th Cir.2006)). The Court concludes that no additional element is present here and, therefore, the ads on AATA buses are not government speech.
Because the Court concludes that Plaintiff is likely to succeed on his challenges to the "good taste" and "scorn or ridicule" provisions, this merits-factor weighs strongly in favor of awarding preliminary injunctive relief.
The remaining three factors are (i) whether there will be irreparable harm to the movant if relief is not granted, (ii) the probability that granting the injunction will cause substantial harm to others, and (iii) whether the public interest will be served by issuing an injunction.
With regard to irreparable harm to the movant, as the United Food court explained, "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." 163 F.3d at 363 (citing Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976)). Accordingly, Plaintiff's demonstration of a likelihood of success on the merits also serves to demonstrate irreparable harm if relief is not granted. See United Food, 163 F.3d at 363.
Defendants argue that Plaintiff has not suffered irreparable harm because Plaintiff "can and has expressed his views in public and private fora in the past and where he has not suffered any retaliation for submitting the ad." Def. Resp. to TRO Mot. at 24 (Dkt. 19). However, Defendants' argument proves too much; given the ubiquitous opportunities for expression through the internet and otherwise, acceptance of Defendants' argument would make it virtually impossible for a First Amendment plaintiff to establish irreparable harm. Further, Defendants' argument is precluded because the Sixth Circuit, in United Food, after considering a context very similar to the one presented here, concluded that that irreparable harm had been established.
With regard to the probability that granting the injunction will cause substantial harm to others, Defendants argue that if AATA is forced to run Plaintiff's ad, its ridership and reputation will be impaired. Defendants have also presented a report by a professor of marketing that tends to support this position. See Report ¶ 2 (Dkt. 19-4). However, the Court concludes that, while such potential harm may
Furthermore, First Amendment concerns must trump any potential harm to Defendants' commercial concerns. See Déjà Vu of Nashville, Inc. v. Metro. Gov't of Nashville, 274 F.3d 377, 400 (6th Cir. 2001) ("[I]f the plaintiff shows a substantial likelihood that the challenged law is unconstitutional, no substantial harm to others can be said to inhere in its enjoinment."); accord Bays v. City of Fairborn, 668 F.3d 814, 825 (6th Cir.2012) (citing Déjà Vu, 274 F.3d at 400).
In a similar vein, the Sixth Circuit has repeatedly recognized that it is always in the public interest to prevent a violation of a party's constitutional rights. See Connection Distr. Co. v. Reno, 154 F.3d 281, 288 (6th Cir.1998); Jones v. Caruso, 569 F.3d 258, 278 (6th Cir.2009). Accordingly, where, as here, a plaintiff has demonstrated a likelihood of success on the merits, courts have consistently concluded that the public interest counsels issuance of injunctive relief.
Balancing the four preliminary injunction factors, the calculus weighs in favor of Plaintiff. Accordingly, it is clear that some form of preliminary injunctive relief is appropriate.
Having established that Plaintiff is entitled to relief at the preliminary injunction stage, the Court must determine what relief is appropriate. In his motion for preliminary injunction, Plaintiff requests that the Court enter an order directing Defendants to immediately accept and display Plaintiff's advertisement on terms no less favorable than those given to other advertisers. This is certainly a legitimate relief option. See, e.g., United Food, 163 F.3d at 346, 364 (affirming district court's issuance of an injunction requiring transit authority to accept the proposed ad). Another option could be to allow AATA to craft a new policy without the constitutional infirmities identified by this opinion. See, e.g., McCollum v. City of Powder Springs, Ga., 720 F.Supp. 985, 990 (N.D.Ga.1989) ("The Court will issue an order enjoining the City Council from failing to issue a ... license to plaintiffs unless defendant amends its ordinance so that it is constitutionally valid and acts upon plaintiffs' application pursuant to the amended ordinance....") (emphasis in original). There may be other legitimate outcomes that remedy the constitutional violation.
Although the parties touched briefly on the question of relief in their post-hearing briefs, they have not comprehensively addressed the issue. The Court will give the parties the opportunity to address this important issue fully before specifying what preliminary injunctive relief it will order. Accordingly, the Court directs the parties to submit to the Court their positions, along with appropriate authority, on the proper relief in the current circumstances. The parties must also state what further proceedings are anticipated regarding any remaining issues, whether by way of discovery, motion practice, or trial.
In evaluating a motion to dismiss pursuant to Rule 12(b)(6), courts "must construe the complaint in the light most favorable to the plaintiff, accept all well-pled factual allegations as true, and determine whether the complaint states a plausible claim for relief." Albrecht v. Treon, 617 F.3d 890, 893 (6th Cir.2010) (citations
Regarding the other issues raised by Defendant's motion to dismiss and not addressed in this Opinion (i.e., viewpoint discrimination and the as-applied vagueness challenge to the "persons or group of persons" language), the Court will determine whether such issues remain to be adjudicated after it reviews the parties' forthcoming supplemental briefs. Therefore, it would be premature for the Court to rule on the balance of any issues raised by the motion to dismiss at this time. Because the Court has discretion to postpone an ultimate decision on the issues raised by a motion to dismiss, see Fed.R.Civ.P. 12(a)(4)(A) (allowing postponement of decision until trial), the Court will deny that aspect of Defendants' motion without prejudice, subject to renewal at a later point in the proceedings.
For the foregoing reasons, Plaintiff's motion for temporary restraining order and/or preliminary injunction (Dkt. 3) is granted; Defendants' motion to dismiss (Dkt. 20) is denied. Plaintiff shall file his brief on remedy and further proceedings on or before October 14, 2012. Defendants shall file their response brief within fourteen days of the service of Plaintiff's brief. The briefs shall not exceed ten pages, exclusive of attachments. The Court will determine whether a hearing will be required.
SO ORDERED.
