"Miami-Dade Transit to Remove 'Offensive' [Anti-Islam] Bus Ads"

[William Funk]

In Rosenberger, the Court said that denying religious groups equal funding
was viewpoint discrimination, but that was because an anti-religious group
could obtain funding.  My proposed policy for Miami-Dade Transit would not
allow ads on buses that were for or against religion.  
I really don't see how Good News Club is relevant. 
Bill Funk

-----Original Message-----
From: Howard Wasserman [mailto:wasserma at fiu.edu] 
Sent: Monday, April 19, 2010 12:44 PM
To: William Funk; 'Volokh, Eugene'; 'CONLAWPROFS professors'
Subject: RE: "Miami-Dade Transit to Remove 'Offensive' [Anti-Islam] Bus Ads"

Would it, after Rosenberger and Good News Club? Those cases seem to say that
a forum that religion is a viewpoint on some matter of public concern (say,
the future of America). So a policy that permits all positions on the future
of America but excludes the religious perspective on the future of America
is viewpoint-discriminatory.


Howard M. Wasserman
Associate Professor of Law
FIU College of Law
University Park, RDB 2065
Miami, Florida  33199
(305) 348-7482
(786) 417-2433
howard.wasserman at fiu.edu
Faculty Page:http://law.fiu.edu/faculty/faculty_wasserman.htm
http://ssrn.com/author_id=283130
________________________________________
From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu]
On Behalf Of William Funk [funk at lclark.edu]
Sent: Monday, April 19, 2010 3:40 PM
To: 'Volokh, Eugene'; 'CONLAWPROFS professors'
Subject: RE: "Miami-Dade Transit to Remove 'Offensive' [Anti-Islam] Bus Ads"

It sounds like the lawyers got it right.  Now, how about a "policy" that
does not allow ads concerning religion on the buses.  That would be
viewpoint, if not content, neutral.
Bill Funk


From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Monday, April 19, 2010 11:20 AM
To: 'CONLAWPROFS professors'
Subject: Re: "Miami-Dade Transit to Remove 'Offensive' [Anti-Islam] Bus Ads"

            A quick follow-up:  I called Miami-Dade Transit to try to find a
copy of the policy; they weren't sure that there was a policy, or that they
could release the contract language that might indicate what material is
allowed and forbidden - they said they'd check into that - but they did
report that, following consultation with the County Attorney's office,
Miami-Dade Transit reversed course, and decided to reinstate the ads.  I'm
still interested, though, in what others think about the question.

            Eugene

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Monday, April 19, 2010 11:09 AM
To: 'CONLAWPROFS professors'
Subject: "Miami-Dade Transit to Remove 'Offensive' [Anti-Islam] Bus Ads"

Any thoughts on this story, at
http://www.miamiherald.com/2010/04/16/1581903/miami-dade-transit-says-it-wil
l.html?  I sympathize with Miami-Dade Transit's desire to exclude ads that
offend prospective passengers.  But I wonder whether the exclusion of ads
that are "offensive" because of their viewpoint is consistent with the view
that ad space on government-run buses is a nonpublic forum (a rule that
seems to have emerged from Lehman v. City of Shaker Heights) and that
restrictions on speech in nonpublic fora should be viewpoint-neutral.  (I
can't find the precise policy, if any, that Miami-Dade is applying, but it
sounds like it removed the ad because it was seen as offensive, not because
there's a viewpoint-neutral policy barring, for instance, all ads except
commercial advertising.)

For a glimpse of the ad, see
http://www.nbcmiami.com/news/local-beat/Miami-Dade-Transit-Throws-Islamic-Ad
-Under-the-Bus-91024204.html .  Here's the story from the Herald:

Miami-Dade Transit is pulling advertisements from 10 buses that South
Florida Muslims have said are offensive to Islam.

The ads, which went up Tuesday, said "Fatwa on your head? Is your community
or family threatening you?'' and directed Muslims to a website encouraging
them to leave Islam.

Robert Spencer, associate director of New York-based Stop the Islamization
of America, which purchased the ads for one-month as the first leg of a
national campaign, said they were "offered in defense of religious
liberty.''

But on Thursday, Miami-Dade Transit spokeswoman Karla Damian said that after
reviewing the ads, the department decided they "may be offensive to Islam''
and would remove them before the buses ran on Friday.

Damian said the ads were able to initially go up because Miami-Dade Transit
has an outside company sell ad space and does not routinely review ads
before they run.

The South Florida chapter of the Council on American-Islamic Relations had
critiqued the ads as promoting ``bigotry'' and making false statements about
Islam.

"Islam guarantees freedom to and freedom from religion. . . . [We] reject as
un-Islamic any extremist interpretation that sanctions the killing of any
individual because she decided to `leave Islam,'' said director Muhammed
Malik.

Eugene