"When the Side of a Bus Isn't a Public Space" Wall Street Journal, October 28, 2012
Does the First Amendment protect our right to say what we want in advertisements on the side of a city bus? Yes and no.
A federal appeals court ruled Thursday that a Michigan transit authority could bar from the side of its buses an advertisement that read: "Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got Questions? Get Answers! RefugefromIslam.com"
The group behind the ads, the American Freedom Defense Initiative, had sought in 2010 to place them on the buses in Michigan's four southeastern-most counties, but the authority refused, saying the ads violated a policy against political advertisements and offensive speech. AFDI sued, claiming First Amendment violations.
The U.S. Court of Appeals for the Sixth Circuit said that the side of the bus wasn't a public forum because the transit authority involved, the Suburban Mobility Authority for Regional Transportation, or SMART rejected all political ads. Once SMART established that the space on the buses was a nonpublic forum, it could ban political speech, as long as it did so in a "reasonable and viewpoint-neutral" way, the court said.
SMART General Manager John C. Hertel said the transit authority was pleased with the decision.
In an email, Pamela Geller, AFDI's executive director, called the opinion "tortured and twisted."
Ms. Geller said the ad was religious, not political, in nature. The group plans to ask the Sixth Circuit to rehear the case, she added.
Over the summer, a federal court ruled that New York transit authorities violated AFDI's First Amendment rights by refusing to put up an ad that reads: "In any war between the civilized man and the savage, support the civilized man."
U.S. District Judge Paul A. Engelmayer ruled that the exterior of buses was a public space, because the New York Metropolitan Transit Authority accepted both political and commercial advertising. Thus, MTA couldn't restrict AFDI's political speech.—Joe Palazzolo