Atheists sue over refusal of bus ad

 by Max Brantley Arkansas Times

The Central Arkansas Transit Authority and its advertising agency were sued today in federal court for refusing more than $5,000 in bus advertising aimed at atheists and agnostics.

The image above shows the proposed ad, which was to be put on 18 buses serving Riverfest crowds last weekend.

Here’s a full news release from the Central Arkansas Coalition of Reason. That link takes you to a page with links to the lawsuit, filed by the Washington-based United Coalition of Reason, and other documents. Here’s the group’s website.

The First Amendment claim argues that the bus company, through its ad agency, put "burdensome" requirements, specifically a huge damage deposit (initially $10,000, then an unspecified but much higher amount), on controversial speech. This amounts to viewpoint discrimination, the group said. FOI documents show that the plaintiffs believe CATA’s ad agency refused the ad purchase ultimately because the agency owner, Lydia Robertson, deemed it "controversial."

"It’s only fair that, when religious groups are allowed to advertise on Little Rock buses, atheist and agnostic groups be allowed to advertise as well," declared LeeWood Thomas of Central Arkansas CoR. "The world needs to know that people can be decent human beings without believing in a god or gods."

The ads have run in 36 markets, including Fayetteville, without incident, in 2010. Damage was done to the ads only in three places and a billboard was damaged in one market, the group said. Some bus signs were defaced in one city.

Betty Wineland, director of CATA, said the agency didn’t want to inhibit free speech and didn’t refuse the ad. The lawsuit says otherwise, arguing that the damage deposit was a ruse and that CATA threw up numerous obstacles to the ad buy. After reviewing documents filed with the suit, Wineland said she was "mortified" by some notes sent by Robertson’s lawyer that she hadn’t seen. She insisted the bus company remained open to running the group’s ads.

Wineland said the authority’s ad agency, On the Move Advertising, also named in the lawsuit, said there’d been vandalism against the ads in other cities and wanted a $10,000 refundable damage deposit, something it had never required of any other advertiser. Wineland said a couple of churches — Fellowship Bible and Geyer Springs First Baptist — have purchased bus advertising from CATA but have not been charged a damage deposit.

Wineland insisted she believed negotiations were ongoing and said she was surprised by the lawsuit. "I did not want to get into litigation and I’m willing to run the ads. I had no idea it was going to come to this."

Documents obtained by plaintiffs also show Wineland has in the past discouraged a bus ad by PETA as "too suggestive" and reacted negatively to a female condom ad as well. The agency also reacted negatively to a car insurance ad seen as critical of buses.

Robertson has not responded to my request for a comment, but there’s plenty from her lawyer in a link below.

Internal discussions about the ad show a more adversarial reaction from CATA and its ad agency than Wineland first indicated to me:

In response to an e-mail message dated February 28, 2011, from Plaintiff’s media broker to the Advertising Agent conveying the content of the Proposed Advertisement, the Advertising Agent forwarded the message to Betty Wineland, the Executive Director of the Authority, stating in her accompanying message (in its entirety): “Dear God……HELP!” Ms. Wineland replied: “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.” Lydia Robertson, president of the Advertising Agent, then replied to Plaintiff’s media broker, stating that “we are placing this order in a special category” due to the risk of “damage/vandalism done to the buses or signage due to its message.” She then stated that “in reality, Arkansas is the buckle of the Bible Belt and I can easily envision zealots or upstanding citizens with a strong faith acting out.”

A request for a preliminary injunction ordering CATA to sell bus ads at the same terms offered others quotes further from internal e-mail in alleging that CATA and the ad agency had conspired to defeat the ad purchase.

On Thursday, March 10, 2011, Lydia Robertson prepared an email which was purportedly to be “strictly from On the Move” but which, in fact, she asked Betty Wineland and CATA’s counsel to review.

That email was forwarded to Betty Wineland and her counsel. The subject line read “RE: Coalition-let On the Move take heat!” In her email to Betty Wineland, she stated: “Below is the note I would like to send. It is strictly from On the Move and in previous emails, I’ve written every word with an eye toward the very position they have taken. I am extremely conscious regarding the First Amendment and covering everyone while I do it. Please know I serve on a gubernatorial appointment to a State Agency, I am a Class A licensed private investigator and am not a stranger to court action. I am NOT an attorney, but I have never liked being bullied.”

The email continued: “Why not let me take the heat for awhile? Leave CATA out of it; CATA can say On the Move responded on our own. See what Carolyn [Witherspoon, CATA’s attorney] thinks about the brief note below. Probably since he has contacted us, I don’t need Shaun’s permission to share the emails – that IS a question for Carolyn.”

Robertson pursued her plan. The ad agency put its lawyer to work and told the ad buyer that $10,000 wouldn’t be nearly enough damage deposit. Wrote the ad agency’s lawyer, UnitedCoR’s Executive Director Stuart:

Please be advised, further analysis will not be a one or two day process, as it will involve obtaining quotes for the anticipated costs of new or replacement buses, quotes for anticipated miscellaneous damage other than total destruction (as an aside, OTMA’s initial quote for miscellaneous damage was $36,000), and an analysis of OTMA’s insurance policies to see if they would cover the replacement of one or more CATA buses and resulting personal injuries and death, which could occur from someone possibly committing a terroristic act, such as tossing a Molotov Cocktail at the UCOR advertisement on the side of a CATA bus loaded with passengers. Further, OTMA will have to consider the other business factors generally outlined above to determine the additional terms and conditions necessary to ensure profitability and adequate compensation for OTMA’s business risk.

So there you have it. The ad agency owner who didn’t like to be bullied conspired with a publicly financed agency to bully a group with excessive charges on account of its unacceptable religious beliefs. Turns out the group has lawyers, too.

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