Refusing group violates speech rights, judge rules
Linda Satter – Arkansas Democrat-Gazette
Aug 12, 2011

If Central Arkansas Transit Authority is going to give some groups a forum by allowing them to advertise on the sides of its buses, it can’t refuse others, a federal judge said Thursday, finding that the system violated a non-theist group’s First Amendment rights in refusing its ads questioning the existence of God.

“Being a minority here — a nontheist in the Bible Belt — nobody wants to hear what I have to say,” LeeWood Thomas, a spokesman for the Central Arkansas Coalition of Reason, told reporters shortly after the ruling was handed down, “but I have a constitutional right to say it.”

What Thomas’ group wanted to say in 18 bus-size ads was, “Are you good without God? Millions are.”

In February, the United Coalition of Reason, a national organization that helps local groups of atheists and agnostics achieve higher visibility, tried to place those words — set against a back-drop of blue sky and clouds — on the public buses that operate in Little Rock, North Little Rock, Sherwood, Maumelle and unincorporated areas of Pulaski County.

The group hoped to place the month-long ads in time for Riverfest, the annual Memorial Day festival that ultimately attracted an estimated 260,000 people.

But On The Move Advertising Inc., a private agency that sells ads for the transit system, cited the risk of vandalism, as reported in other states with similar bus ads and billboards, in requiring the group to provide an unprecedented $36,000 damage deposit, on top of the $5,200 for the ads themselves.

The requirement effectively killed the deal, and led the United Coalition of Reason to file a federal lawsuit June 1 against CATA and On The Move.

Until the case can be fully aired before a jury, the group sought a preliminary injunction to immediately force the defendants to lease the advertising space under the same terms available to other advertisers.

That request was granted after an all-day hearing Wednesday before U.S. District Judge Susan Webber Wright, leading Betty Wineland, CATA’s executive director, to tell reporters afterward that the system is considering changing to a “message-neutral” advertising policy.

Wineland said that mean while, the system will comply with the court’s order and let the group place its ads on buses “as soon as they want.”

Gerry Schulze, a Little Rock attorney who represented the coalition, noted that a policy change would require public notice. He also said, “I’m not sure I care as long as it doesn’t discriminate against me.”

Asked what issues would still need to be resolved at trial if CATA and On The Move comply with the preliminary injunction, Schulze conceded, “There may not be a whole lot left for trial.”

Earlier, in the courtroom, Lydia Robertson, On The Move’s president, testified that she required the refundable $36,000 deposit only after her office manager searched the Internet and discovered numerous reports of vandalism in other cities where the coalition placed similar ads.

Robertson and Wineland both testified that their understanding of the advertising contract is that On The Move, a small business, would be held liable for any damage to buses as a result of ad-inspired vandalism.

Robertson said she obtained estimates for repainting and placing new decals on the buses before determining that she faced up to $2,000 per bus side, or $36,000 for 18 buses, to repair any spray-painted graffiti.

In an affidavit, Robertson added that the amount would nevertheless be “substantially inadequate if someone was offended enough by [the] religiously focused ‘message advertisement’ to act out in a manner similar to the religiously motivated attacks on the World Trade Center in New York on Sept. 11, 2001.”

After the coalition countered her request by offering to provide a $10,000 security deposit instead, Robertson ended negotiations and told the coalition that she wouldn’t sublease bus space to the group.

Robertson and Wineland maintained that the transit system and ad agency are entirely separate entities, that CATA wasn’t the one that rejected the ads, and that On The Move had a sound business reason for rejecting them. But Schulze insisted that they conspired to keep the nontheistic message off the buses simply because they didn’t like the message.

He introduced e-mails exchanged between the two women and others. They included Robertson telling Wineland, “Dear God … HELP!” in forwarding the proposed ads for CATA’s review, and Wineland replying, “I need Him now more than ever. Good grief. I think we need to throw religion into the advertising policy — as a negative. Stall while CATA reviews.”

The lawsuit asserted that CATA has previously allowed bus ads from religious advertisers, political candidates and public-issue groups, although Robertson said she makes politicians pay upfront because she has gone unpaid when campaigns have run out of money.

Wineland said CATA has to look over and approve any proposed bus ads, and although the transit authority doesn’t have a policy, it disapproves of ads with profanity or that tout tobacco or alcohol.

CATA has accepted ads from Fellowship Bible Church and Geyer Springs Baptist Church, even after rejecting the coalition ads, she acknowledged.

Wineland said she was “not at all” offended by the message in the coalition’s ad, but “I just had some concerns that CATA would receive some negative publicity.”

Still, she said, CATA approved the ads while warning Robertson that her small ad agency might end up covering damage costs. Robertson testified that CATA provides about 20 percent of On The Move’s revenue.

Wineland also testified that CATA buses “don’t service Riverfest,” so none of the ads — had they been in place before the three-day festival — would have received any additional audience from festivalgoers.

The ads appeared on buses operated by Ozark Regional Transit, based in Springdale, beginning in April 2010. Philip Pumphrey, executive director of the transit system, said the system’s attorney said at the time that refusing the advertisements would likely have resulted in a lawsuit.

David Bentley, president of the Arkansas Society of Freethinkers, testified that he first approached On The Move and CATA by e-mail, using his position as Webmaster of the Little Rock Ski Club and making it appear that he was seeking ad information on behalf of the club.

“It is very common for our message not to be accepted, especially in the South,” he replied when questioned about his tactics.

Wright said the coalition established by a preponderance of the evidence that CATA and On The Move “were in fact working together in determining” whether the ads would be allowed on the buses.

“This was protected speech,” she said. “CATA must treat the plaintiffs as they would any other advertiser.”

She required the coalition to post a refundable $15,000 bond with the court, calling the bond a “close call,” but one she believed necessary under a court rule and if some “mean people” end up vandalizing the ads.