American Freedom Defense Initiative v. SMART

In May 2010, AFLC Co-Founders and Senior Counsel David Yerushalmi and Robert Muise filed a federal lawsuit challenging the refusal of a Detroit-area transportation authority—the Suburban Mobility Authority for Regional Transportation (SMART)—to display a religious freedom advertisement on its buses.

The ad stated: “Fatwa on your head?  Is your family or community threatening you?  Leaving Islam?  Got questions?  Get Answers!”

The “Leaving Islam” ad was sponsored by the American Freedom Defensive Initiative (AFDI), founded by Pamela Geller and Robert Spencer.  The lawsuit alleged violations of the Free Speech and Equal Protection Clauses of the United States Constitution.  [A copy of the complaint is available here].

Sharia law prescribes the penalty of death for a Muslim who leaves the religion of Islam.  A recent example is the case involving Rifqa Barry, the seventeen-year-old Ohio girl, who fearing for her life, ran away from home after her parents discovered she had converted to Christianity.

According to its website, AFDI’s “objective is to go on the offensive when legal, academic, legislative, cultural, sociological, and political actions are taken to dismantle our basic freedoms and values.”  AFDI’s advertisement is an effort to reach out to Muslims, such as Barry, and to offer them sanctuary should they feel threatened for exercising their constitutional right to religious freedom—a right that is contrary to the dictates of Sharia law.

AFDI’s religious freedom advertisement was rejected even though SMART had no problem accepting and running an anti-religion ad sponsored by an atheist organization.  That approved ad stated, “Don’t Believe in God? You are not alone.”

In July 2010, Yerushalmi and Muise requested that the federal court grant a preliminary injunction halting the unconstitutional speech restriction.  Under well established case law, even the momentary loss of First Amendment liberties constitutes irreparable harm sufficient to warrant an injunction.

In March 2011, the court granted the injunction, finding that SMART’s decision to deny AFDI’s advertisement was arbitrary and unreasonable in violation of the First Amendment.  [A copy of the order granting the preliminary injunction is available here and below].

SMART appealed that ruling to the U.S. Court of Appeals for the Sixth Circuit, which sits in Cincinnati, Ohio.  AFDI is defending the decision.    [A copy of AFDI’s appellate brief is available here and below].

CASE UPDATE: (July 23, 2012): AFLC filed a “supplemental authority” letter with the U.S. Court of Appeals for the Sixth Circuit, informing the court of the recent favorable decision by the N.Y. federal court in the case of AFDI v. MTA.  On July 26, 2012, AFLC attorneys will be arguing before the Sixth Circuit in the case of AFDI v SMART, which raises similar First Amendment issues.

CASE UPDATE (November 7, 2012): AFLC files petition with Sixth Circuit, asking the full court to review and reverse a panel decision that upheld a plainly unconstitutional speech restriction.

CASE UPDATE (June 21, 2013): AFLC filed a motion to compel to discovery in light of SMART’s decision to withhold information pertaining to their censorship of our clients’ advertisement because they claim the information is attorney-client privileged. AFLC is arguing that SMART’s privilege was waived because they already produced documents similar to those requested without raising the privilege.

CASE UPDATE (July 12, 2013): AFLC filed its reply in support of its motion to compel to discovery in light of SMART’s decision to withhold information pertaining to their censorship of our clients’ advertisement because they claim the information is attorney-client privileged. AFLC is arguing that SMART’s privilege was waived because they already produced documents similar to those requested without raising the privilege.

CASE UPDATE (August 15, 2013): AFLC filed its motion for summary judgment, arguing the SMART’s restriction of the advertisement was not based on any guideline but was an arbitrary, capricious, and subjective ad hoc decision.

CASE UPDATE (September 4, 2013): AFLC filed its response in opposition to SMART’s motion for summary judgment, arguing that the factual record developed through discovery and SMART’s feckless attempt to justify their patently unconstitutional speech restriction through contorted and inconsistent arguments reveal that SMART’s restriction on our clients’ message clearly violated the Constitution.

CASE UPDATE (September 18, 2013): AFLC filed its reply in support of its motion for summary judgment.

CASE UPDATE: As of July 10, 2018, we are still waiting for the court to rule on the cross-motions.  We requested a status conference with the court, which was held in May.  During this conference, the court informed the parties that it would be rendering its decision “next week.”  No decision has arrived as of yet.

CASE UPDATE (January 10, 2019): We filed a petition for writ of mandamus, asking the Sixth Circuit to order the district court to rule on the parties’ cross-motions for summary judgment, which have been pending for more than five years!

CASE UPDATE (February 22, 2019): The Sixth Circuit issued an order “inviting” the district court to respond to our petition within 28 days.

CASE UPDATE (May 17, 2019): We filed our opening brief in the U.S. Court of Appeals for the Sixth Circuit.

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