based in violation of the st amendment regardless of the nature of the four indeed the two bases for rejecting plaintiffs violate recent u s supreme court precedent smarts a ban on scornful ads is an unlawful viewpoint based restriction under mattel versus tam and smarts a ban on political ads is unlawful under minnesota voters alliance versus minsky now these two cases compel this court to reverse the district court and up hold the plate is st amendment rights what it should be to the viewpoint discrimination issue st smar bans ads that in this is the language of the restriction likely to hold up to scorn or ridicule any person or group of persons and quote this is a viewpoint based restriction under mattel versus t m a case which made it clear that restrictions prohibiting demeaning or disparaging or in this case scornful speech a viewpoint restrictions and those are unlawful regardless of the nature of the former the be a does native form a public form or a a nonpublic form mattel vs sam the court made clear they giving offense is view point and in this case their restriction on it's face is a viewpoint based restriction which is unlawful and can't be used as a basis so what is the is there any limit in principle to your argument the most kind of compelling commonsense instinctive smart trying to run a business and business likes to avoid controversy because controversy upsets its consumers there you don't want to lose consumers so would your position lead to smart having to put up things like cary advertisements things of that sort or is there some type of limiting principle that you could provide us that that type of kind of advertisement would not be covered by it but r and certainly you know hard cases oftentimes make bad law as we found to say and i mean obviously in this case and we had you know we cited the american freedom defense initial bursars cain county with a nice circuit just recently in a bus every ties in case nonpublic form my clients had an ad that they determined was demeaning disparaging to muslims in fact the case went up twice similar to this one to the to the th circuit where we lost the st time around then after  any in a nonpublic form they certainly get more more leeway but in a nonpublic form the courts have said that the restrictions must be reasonable and viewpoint based if it's a viewpoint based restrictions unconstitutional this is the government right in what is their option they can close  form altogether but they don't have to permit advertising that they're in the sense that you know this is a revenue stream for them they're not doing this to promote speech i mean the basic idea for this is it helps us  our buses just like it seems like it puts them at a competitive disadvantage as compared to a private party or as an earlier decision a fast food joint is not going to get up there at a competitive disadvantage because we have something called the st amendment and you want to put your signs on your own property but this is their this is their property and one of the problems for example you look at that look at the as if they have accepted to say that they that they want to be immune from all controversy whatsoever i think is absurd i mean look at this record they have the atheist ad which this court previously said well was just you know an adolescent one off but they've continued to this day defend this play of that atheist ad which bus drivers refused to drive the buses with that ad on it look at that status actually campaign and those who had those advertised are inside the buses as well and we know that's a lewd campaign at best they have ads or they promote the use of contraception i'm a catholic i find that very offensive so they're they've gone down this road and this almost goes more to the form question well there's a nonpublic form over there they've opened their forum up to such a controversial speech that it's in fact a public form and even content based restrictions are unlawful we don't have to go there even assuming that it's a nonpublic form under  that restriction is unlawful as a matter of law they're a government agency they have to abide by the st amendment but at the end of the opinion a yeah we found  problematic but we're not we're only deciding this case and there could be could be rules under which a political ban is objectively applied i know you disagree operate on that a little bit absolutely are in beer my man struck down the restriction on its face so it was an even dozen as a player was on his face it because it wasn't guided by objective standards they looked at what the limiting restrictions they put on it and quite choices issue in the polling place smarts is even even broader and less objective theirs is any advocacy of a position of any politicized issue and then they go on to say politicized if society is fractured on an issue and factions of society  nancy that where there potentially could be political could have an objective standard that could be applied they cited the layman case and in layman case it was a politician who put up a claim a political campaign ad there was greer versus spock which was a politician who want to engage in political campaigning on a military base and then there was the combined federal campaign and the could nearly as case in what sense think of the can in this case because that was more about who was going to have access to this to this program and so they prohibited it from political advocacy groups and groups that were legal defense groups but what more of a limited construction that is who could be who have access the c f c and they said central your that provide goods and services by way of charity to individuals so those are the three cases that they relied on and i think if you had if it was you know if they want to ban political campaigns belt questions politicians political campaign ads i think under one of the cases and even under maskey the courts you know that's that's likely an objective standard for political but when you have this sliding amorphous you know  whether or not it's contentious or how contentious it is that's unlawful and quite frankly even under this court's decision in united food which the original panel distinguished but i think after manske it's not distinguishable they are they said controversial advertisements appears reasonable and constitutional on his face that holding no longer stands after mancy i mean nancy compels this court to reverse the th circuit your best case your best post man's case applying manthey in the context of it's likely no longer a constitutional holding so that's the only one that i have we're we're manske is applied there but it's a reason why what is your view of whether the context of because i mean  you have to determine reasonable this in light of the purpose of before and what or is it your view that there should be less leeway when it comes to bus advertisements as compared to voting or more of the way and why i think with  compatibility of the forum goes to the question in quite frankly i mean these are bus ads in the form is compatible for a bus and in a polling place it wouldn't be compatible for example to have you know a noise making device that was saying you know bus ads are compatible for the form because they want bus ads on their on their buses and they put them in the you know the diner amazon and other places and go back to you when you read your very st question about you know if there's a member the st amendment there is also there are certain can't he's a speech that you can prescribe right defamation obscenity incitement to love those and they're very very narrowly construed i think for good reason same with fighting words but even so if there's something that was that would that caused you know so much harm to the to the bus advertising agency even though it's a fundamental right there are times when the government does by strict scrutiny but then in the problem we have here is that this is operating as a prior restraint scene for them to say that well you know this might cause disruption in the buses but it's our party as a party are sure ain't the st memory quite at least the running if there's a compelling reason later that maybe they can they might have a basis for taking it off but again i go back to that atheist said in the atheist said you actually had bus drivers who refused to drive the bus and they position is well that's not political the question of whether god exists or doesn't exist they had to say during the deposition is not a politicized issue i can't think of a more politicized issue but it all goes to the point of giving them on threat or discretion which  the st amendment doesn't allow with dealing with the st amendment and government officials restriction on freedom of speech  of today seems to assume that at least we're dealing with a public forum in this case and i think that the fact that it's a nonpublic forum was very well supported by this court in two thousand and twelve i think it was very well it's very well supported by the standards that smart or the advertising guidelines rather that smart has presented in this case they've indicated that this is a  limited this is a limited place this is a place where we don't accept all speech in order to minimize the chance of abuse the appearance of favoritism and the risk of imposing upon a captive audience of smarts as we limit the speech that can be put on our advanced yeah i mean everybody agreed with a limited forum and the court still said you needed objective guidance to distinguish what was considered political advocacy f r i mean if anything i would think that there minnesota standard in that case an objective observer would think that the advocacy is expressing a view about something that is on the ballot seems more objective than what has been presented in this case well i think i think the point of manske it was less that it wasn't objective i think the point of that man's q was that it was a haphazard standard that is it would change with every position that a candidate took it would change with ever happened with here because it seems like to me when i read the depositions that the definition you have provided of political and your guidelines has changed with the witness in some respects the thirty six witness now says that political means an issue that has been politicized and then politicized means something on which society disagrees so i guess i'd add that leads to all sorts of hypotheticals you know and thanksgiving saturdays after thanksgiving the biggest controversy in ohio and michigan is ohio michigan football size is defined as an issue on which people disagree with the state's unfair isn't what he said what he said was it was an issue upon which current in the current current state of things you're right there's a lot more disagreement than there should be on things going on but what do you what do you do with why wouldn't the contraceptive violate that definition because the contraceptive ad wasn't promoting contraceptives wasn't against contraceptives it was informing people from a commercial standpoint of family planning things that the state of michigan provides to low incom no i think abortion is definitely one of the larger fractured issues you know i agree with i agree with that there's more but then is it like do we do a poll and do we say is that fractured fi versus contraceptive maybe that's eight thousand and twenty and it's only the five thousand and fifty issues that are fractured that you know no i don't i don't think so but i think if the and from the michigan department of community health had been different it been political but as it was it says if you're low income you can come for family planning services and it has birth control available as part of that but it was so how's that different than bush and hypothetical where it's just planned parenthood isn't necessarily advocating for abortion they're just letting consumers of abortion potentially know that they're available for planned parenthood in society does advocate for abortions a s you well know typically as part of our review process we review the content of the we review the organization and their website and if you go to prime parenthood website namak doneness quite frankly i'm probably guessing they they are strong advocates of abortion rights and that is a very politicized issue whether up whether people should be able to have abortions versus whether people shouldn't be able to have abortions is a politicized issue there's no i don't think them out of the bush i'm sorry planned parenthood can you keep that name off the bus or just oh no no and absolutely not i think that planned parenthood has every right to advertise on the bus i just think that they can do it in such a way that the message is a political message they can certainly provide i was i mean but would that be ok well i think it's the content of the message in the head that that's appropriate we also review the website but i don't think the website itself is enough in think the example of that is play just rd and in this case they tell you that they submitted to edge to us but they submitted a rd and to us as well one that said don't believe in mohammed you're not alone with out the truth about m y website reference and we accepted it and we said yes we'll put that on our bus we're more than willing to do so that's a religious outreach message just like the atheist in the much like the union church and it was presented to this court it's a it's an organization that says you're not alone come join us and i don't think that that's a political issue they're not saying don't believe in that god as this court noted they're not saying do you have a problem with the pledge of allegiance they're saying you're not alone come join us that's not a political issue but a website and occasion makes it a political issue putting in the web site indication the truth about muhammad dot com and then you go to that website now on the very st page it says pedophile and miss saddam is cetera et cetera and then goes through all of their political objectives absolutely that makes it a political issue but once they took that off we said fine you can post it and then they didn't follow through but the president's picture on the bus there  politicized was defined as if society is fractured on an issue and factions of society have taken up positions on it that are not in agreement it's politicized and so i see a completely divorced from politics almost that's why i thought i can think of areas where society disagrees and it has nothing to do with politics state football game with the example that was obvious in the state so do you want to revise that definition to say  i'm not in agreement about proper government or or is there some type of component of well yeah i mean clearly the way we've applied it it deals in that it was trying to send you think that that would be allowed or do you think that that nike ad would be i would have to see the ad to be honest with you but if what you're describing is just a picture of c that says something along the lines of stand up for you believe for what you believe no matter what you believe in which i think is close enough to the ninety eight dollars i would not see that personally as a clue a political issue that it would be taken we're trying to determine what we're trying to determine is if this ad on the bus is indicating a favoritism on the part of the smart or is a captive audience problem smart is a governmental entity that represents an entire metropolitan area essentially and so what we're trying to do is not take a position on these things we don't want to say muslims are imposing sharia law in america we don't want to say muslims are not imposing sharia law in america we don't want and that say the impeachment proceedings against trump are appropriate we don't want ads that say the impeachment proceedings against trump are inappropriate we don't want ads that say more chinese tariffs we don't want ads that say he's an idiot for imposing tariffs on such a big country that's going to kick our but undefinable manske he says that using the word political and applying it in the way minnesota did is the problem here minnesota changes that definition based upon what this candidate says and that it says and this election judge over here has to keep a mental telly of that so that he knows whether he can exclude somebody or not exclude somebody and the problem with that is that the people who are trying to go devote can't really ever know what to allowed and what's not allowed that's not the problem here we have a definition that's being applied consistently but i think government that actually imposed it isn't the problem you need to have a guideline in place that makes the answer to the hypotheticals we've been giving obvious and i guess based on the thirty six deposition it wasn't obvious to me when i came in here with what your answers were going to be to a lot of our hypotheticals so potentially you could draft a guideline that would have clear guidance but that takes away from me and i at least the way i read the opinion is that you need you needed to be objective in the sense when we apply the hypotheticals that they apply to me and you know what the answer would be and here it's just i mean it's not clear to me what the answer should be to a lot of these  hypotheticals giving what this court has already previously determined that this is something that a reasonable person can look at and determine these are guidelines that are essentially internal to smart they that they are applied by smart or when we are told when somebody is told your ad has been banned or barred they get an explanation this is a political issue this is something that that smart to take  exactly what occurred now is that is that problematic is it perfect it can't ever really be perfect i'm afraid no one anytime you put something in the hands of a person it's never going to be perfect but i can tell you this the definition that mr cho applies to every one of the ends that's before this court and explains the decision on every one of the and before this court and they were correct decisions now if you're going to go as far as the wolverines versus the buckeyes or you're going to go as far as i like carnations versus rosa's i mean  then then you're taking this to illogical extremes you really are and the fact of the matter is and then you can modify this as as we do in our application to be about governmental issues  or or explanation from his deposition is maybe a little bit problematic well problematic i wouldn't necessarily say it's problematic certainly that's not the right word but certainly least a lot of questions so well i would agree that it doesn't go on to say over relating to government but the word politics itself is of or relating to government as this court has recognized as the man gordon itself indicated that that's part of what politics is and when you're talking about from mr muse's questioning standpoint his question of what's politicized then you know you're assuming already then it's all over relating to government when you say it's a as the court's questions two opposing counsel make clear the standard is utterly unworkable this is man this is man ski in spades you know one of the problems we had john and we had the plumber an injunction that was granted there thirty six witness that they designated who testified before judge hood was asked specifically about the ad is right thing about my client said that the content was political and she said no she said what why how they defined political is because it created a controversy down in florida and that was the smoking gun but this court said well that was just beth given his opinion so they disregarded it well beth givens is a decision maker so now when they had to thirty six they don't have any other written guidelines on what the standard is this is that we have to specifically what is this guideline how does how does smart apply political just like a man ski and you got the child definitions description a warrior who they does designated as their rule thirty six when if that's the standard it's unlawful on its face a couple real quick you look at that was it say have a baby when the time is right for you put yourself plan st that's advocating for contraception it's not this innocuous oh we just have free contraception that he wants it to be when you look at my clients that it's rather innocuous leaving islam fall on your head got questions get answers the on the mohamed they were when the ad without the website but they won't run it with the website and you look at the what is the detroit coalition website that was on the ad that they did accept our mission quote from civil rights and separation of state and church activism how is that not politics i mean it's so haphazard how they're applying it in the problem with nancy makes this point united food in this court made the point when you have this lack of objective standards which haphazard you're now allowing policy makers government officials based on their own personal predilections to decide what speech is acceptable and which is not and that you