Transit Authority Unreasonably Rejected Union’s Proposed Bus Advertisements

Category: Fire Watch
Date: Aug 8, 2019 03:27 PM

The Spokane Transit Authority (“STA”) generates revenue through ads on its buses. After receiving complaints about the content of a number of ads on its buses, STA adopted its Commercial Advertising Policy (“Ad Policy”).  STA only permits two types of ads under its Ad Policy: “commercial and promotional advertising” and “public service announcements.” Further, the Ad Policy expressly prohibits “public issue” advertising, which is defined as advertising “expressing or advocating an opinion, position, or viewpoint on matters of public debate about economic, political, religious or social issues.”

In 2016, Amalgamated Transit Union Local 1015 (“ATU”), the union that represents all of STA’s transit operators and maintenance, clerical and customer service employees,  submitted a proposed ad to the media vendor STA contracted with to run ads.  The ad stated, “Do you drive: Uber? Lyft? Charter Bus? School Bus? You have the Right to Organize! Contact ATU 1015 Today at 509-395-2955.” The ad prominently featured ATU’s logo.

However, after a delay in the approval process for the proposed ad, STA informed ATU that it had terminated its contract with the media vendor and was no longer accepting new ads until it chose a new vendor through a public proposal process.

Following STA’s rejection of its ads, ATU filed a lawsuit alleging violations of its rights under the First and Fourteenth Amendments of the U.S. Constitution. ATU alleged that STA discriminated on the basis of viewpoint by prohibiting only labor organizations from placing ads. ATU also alleged that the Ad Policy’s restrictions on ads were unreasonable. While the trial court found no viewpoint discrimination, it concluded that:   it did not need to defer to STA’s way of applying its Ad Policy; and that ATU’s proposed ad constituted “commercial and promotional advertising,” not “public issue” advertising. Therefore, the court found that STA was unreasonable in denying the ad.

On appeal, STA argued that the trial court should have deferred to its way of applying its Ad Policy as courts in other jurisdictions have done. STA also argued that it was reasonable to reject the ad as “public issue” advertising because the ads could be interpreted as a foray into the public debate between labor unions and opposition groups. Finally, STA argued that ATU’s ad did not constitute “commercial and promotional advertising.” The Ninth Circuit Court of Appeals rejected all of STA’s arguments.

The Ninth Circuit noted that STA’s buses are limited public forums, which means that STA can restrict the content of speech on its buses so long as the restrictions are reasonable and viewpoint neutral. The court identified the three components of the reasonableness requirement: (1) “whether [the policy]’s standard is reasonable ‘in light of the purpose served by the forum,’”; (2) whether “the standard [is] ‘sufficiently definite and objective to prevent arbitrary or discriminatory enforcement by [the government] officials’”; (3) and “whether an independent review of the record supports [the agency]’s conclusion” that the ad is prohibited by the agency’s policy. The court applied this three-part test in addressing each of STA’s arguments.

First, the court found that the trial court should not defer to how STA applied its advertising policy. The court noted that while other jurisdictions give agencies deference, the case law in the Ninth Circuit is clear and does not require deference.

Second, the court applied the three-part test to review STA’s decision to exclude ATU’s ad under “public issue” advertising. The court noted that the decision was unreasonable under the third part of the test because an independent review of the facts did not support STA’s decision. The record showed that since 2008, STA buses have carried stickers on the inside that displayed ATU’s logo and stated that “This vehicle is operated and maintained by union members Amalgamated Transit Union AFL CIO/CLC.” Further, these stickers, and other union ads that STA ran previously, never elicited a complaint. Thus, the facts did not suggest that ATU’s ads would cause conflict or debate to the detriment of STA, and STA unreasonably rejected the ads.

Lastly, the court considered whether STA properly rejected ATU’s proposed ad because it did not qualify as “commercial and promotional advertising.” Again, the court, relying on the third part of the test, determined that STA’s decision was unreasonable. The court noted that STA’s definition of “commercial and promotional advertising” is broad and promotes any entity engaged in commercial activity. The court found that because ATU’s ad promotes an organization that engages in commercial activity, STA unreasonably rejected ATU’s ad.

Amalgamated Transit Union Local 1015 v. Spokane Transit Authority, 2019 WL 2750841 (2019).

Note:

An individual or entity’s free speech rights depends on the forum in which the speech occurs: a public forum; a limited public forum; or a nonpublic forum. Speakers enjoy the strongest First Amendment protections in public forums and the weakest in nonpublic forums.

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