In American Freedom Defense Initiative (AFDI) v. Suburban Mobility Authority for Regional Transportation (SMART) (6th Cir. Oct 25, 2012), AFDI had tried to buy an ad on the sides of SMART city buses reading,

Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got Questions? Get Answers! RefugefromIslam.com

SMART’s established policy was not to take ads that, among other things, were “[p]olitical or political campaign advertising,” or were “clearly defamatory or likely to hold up to scorn or ridicule any person or group of persons,” and SMART cited both these exclusions as reasons not to take the ad. The district court concluded that applying the policy this way violated the First Amendment, but the Sixth Circuit reversed: Restrictions on what ads a city would carry on its buses were constitutional if they were reasonable and viewpoint-neutral, the ban on political advertising qualified, and this ad qualified as “political.” (The court saw no need to consider the constitutionality of the “scorn or ridicule” policy.)

Now government agencies do have the right to exclude political ads (not only election-related ads but political ads more broadly) when they set up a program for selling ad space; see Lehman v. City of Shaker Heights (1974). And I do think it’s plausible to view the ad as conveying a political message. But the AFDI pointed out that the city had accepted another ad, which said,

Don’t believe in God? You are not alone. DetroitCoR.org

If that ad is acceptable because it’s not political, AFDI argued, ours must be, too. Not so, the court replied:

The atheist advertisement could be viewed as a general outreach to people who share the Detroit Coalition’s beliefs, without setting out any position that could result in political action. The fatwa advertisement, however, addresses a specific issue that has been politicized. Two hypothetical changes to the advertisements demonstrate the difference. Had the atheist advertisement read, “Being forced to say the Pledge of Allegiance even though you don’t believe in God? You are not alone. DetroitCoR.org,” the advertisement would likely be political. The hypothetical advertisement would address an issue that has been politicized — requiring atheists to recite “under God,” see, e.g., Myers v. Loudoun Cnty. Pub. Schools, 418 F.3d 395 (4th Cir. 2005) — and the advertisement would presumably not be permitted under SMART’s policies. Similarly, had AFDI changed its advertisement to read, without more: “Thinking of Leaving Islam? Got Questions? Get Answers,” SMART presumably could not ban the advertisement. These changes reflect differences in the two actual advertisements that a reasonable administrator, applying an objective standard, could identify.

Now this strikes me as not that persuasive. Atheism and pro-atheist activism seems to me pretty “politicized” today, with public assertion of atheism often being linked to “separation of state and church activism” (a quote from the DetroitCoR.org site itself, which says, “From civil rights and separation of state and church activism, to scientific, rational and freethought presentations and discussions, to networking and camaraderie, Detroit CoR Groups have so much to offer”). Likewise, consider these explanations of the message discussed with regard to the same ad in Salt Lake City:

The Utah Coalition of Reason also seeks to act as a counterbalance to public discussions embracing religion and the blurring of lines between church and state, [Coalition director Elaine] Ball explained. “It’s a concern that candidates embrace God publicly,” she said. “We’re in a political climate where it’s not acceptable to embrace humanism. We’d like to change that.” Ball also said a strong emphasis on Christianity by politicians, including some Republican presidential aspirants, serves to alienate other Americans, including Muslims or Jews. “It ought to be a cause of concern,” she said, “for people of all beliefs and religions who don’t identify with people like [Texas Gov.] Rick Perry.” … [Matthew Burbank, a University of Utah political scientist who was apparently called by the newspaper for a comment on the billboard] said the billboard serves a purpose. “Freedom of religion also means, I’m free not to choose any religion,” he said. “It’s useful to remind people of that, because it’s part of the American experience.” Among other things, the Salt Lake City billboard is part of a national campaign that seeks to remove any social stigma for those who do not believe in a deity, according to Fred Edwords, director of the United Coalition of Reason….

These are perfectly plausible political messages to send; indeed, I agree with some of them. But they are political messages, and many viewers of the atheist ad would see the ad as implicitly sending those messages, just as many viewers of the AFDI ad would see the ad as implicitly sending a political message about the danger Islam poses to American life. (To be sure, some other viewers might see the atheist ad as simply being about telling atheists that they can get help in accepting their atheist identity; but likewise some might see the AFDI ad as simply being about telling Muslims that they can get help in rejecting their Muslim identity.)

So the political/nonpolitical distinction, as applied by the Sixth Circuit, strikes me as having been inconsistently applied here. And in any event, it is at least highly malleable, subjective, and thus open to viewpoint discrimination. Such vague standards are unconstitutional even in a nonpublic forum, precisely because of the risk of viewpoint discrimination. See Board of Airport Comm’rs v. Jews for Jesus, Inc. (1987).

Finally, note that the court also suggested that the atheist ad might have been accepted in error, and that this error isn’t enough to invalidate the policy as a whole (or to bar the policy from being applied here). But the court did not rely on this as a basis for its decision, and instead argued that the policy could indeed correctly both allow the atheist ad and bar the AFDI ad. Thanks to How Appealing for the pointer.