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82 Ohio St. L.J. Sixth Cir. Rev. 1 (2021)

handle is hein.journals/osljsxcr82 and id is 1 raw text is: OHIO STATE LAW JOURNAL ONLINE A SMART Approach to First Amendment Line Drawing? Free Speech Restrictions in Nonpublic Forums TAYLOR G. MACDONALD' I. IN TRO D U CTIO N ................................................................................1 II. SMART 2012 DECISION AND REVERSAL ..........................................2 III. ALIGNING SMART WITH DIFFERENT THEORIES OF FREE SPEECH . .6 I. INTRODUCTION Despite the deceptively absolutist language of the First Amendment, the Court has struggled with inevitable line-drawing problems. The Free Speech Clause primarily restricts the government from regulating speech in public places--traditionally spaces open to public debatel--but grants it more leeway in nonpublic forums.2 In American Freedom Defense Initiative v. Suburban Mobility Authority (hereinafter SMART 2020), the Sixth Circuit ruled that Michigan's Suburban Mobility Authority for Regional Transportation (SMART) violated the First Amendment by adhering to guidelines restricting buses from allowing ads that were political or promoted scorn or ridicule.3 SMART 2020 underlines the disjointedness of First Amendment jurisprudence and compels us to develop a more unified theory of the First Amendment. The SMART 2020 decision involves two First Amendment questions: whether public transit bus advertising space qualifies as a public or nonpublic forum; and whether SMART's ban on ads that are political or hold a certain group up to scorn or ridicule is permissible. Earlier in the SMART case (hereinafter SMART 2012), the Sixth Circuit found the advertising space on SMART's buses constituted a nonpublic forum and the restrictions on advertising were likely reasonable and viewpoint neutral.4 Two recent Supreme Court cases have provided additional guidance on free speech restrictions in nonpublic forums. In Minn. Voters All. v. Mansky (2018), the Court ruled that speech restrictions in nonpublic forums must be reasonable and viewpoint * Taylor G. MacDonald is a J.D. candidate at The Ohio State University Moritz College of Law and writes for THE OHIO STATE LAW JouRNAL Sixth Circuit Review. 1 Hague v. Comm. for Indus. Org., 307 U.S. 496, 515 (1939); Schneider v. State of New Jersey, 308 U.S. 147, 162. 2Adderley v. Florida, 385 U.S. 39 (1966); Greer v. Spock, 424 U.S. 828 (1976); Members of the City Council of the City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984). 3 American Freedom Def. Initiative v. Suburban Mobility Auth., No. 19-311, slip op. at 11-19 (6th Cir. Oct. 23, 2020). 4 American Freedom Def. Initiative v. Suburban Mobility Auth., 698 F.3d 885, 890- 96 (6th Cir. 2012), rev'd, No. 19-311 (6th Cir. Oct. 23, 2020). 2021]1 1

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