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

Volokh, Eugene VOLOKH at law.ucla.edu
Mon Apr 19 13:12:38 PDT 2010

	Any thoughts on whether the policy might violate the Free Exercise Clause, even if it doesn't violate the Free Speech Clause?  After all, it restricts religious proselytizing, and in a way that doesn't seem religiously neutral: while the policy isn't limited to religious proselytizing, it does restrict speech because of its reference to religion, and not for religion-unrelated reasons.


> -----Original Message-----
> From: William Funk [mailto:funk at lclark.edu]
> Sent: Monday, April 19, 2010 1:09 PM
> To: 'Howard Wasserman'; Volokh, Eugene; 'CONLAWPROFS professors'
> Subject: RE: "Miami-Dade Transit to Remove 'Offensive' [Anti-Islam] Bus Ads"
> 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

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