and Submitted March 5, 2019 Seattle, Washington
from the United States District Court for the Eastern
District of Washington Justin L. Quackenbush, District Judge,
Presiding D.C. No. 2:17-cv-00053-JLQ
Andrew McPhee (argued) and John T. Drake, Witherspoon
Brajcich McPhee PLLC, Spokane, Washington, for
Michael Persoon (argued), Despres Schwartz & Geoghegan
Ltd., Chicago, Illinois, for Plaintiff-Appellee.
Before: Ronald M. Gould and Richard A. Paez, Circuit Judges,
and Dean D. Pregerson, [*] District Judge.
panel affirmed the district court's judgment in favor of
a union in a case involving the union's challenge to the
Spokane Transit Authority ("STA")'s decision,
under its advertising policy, not to run a proposed
advertisement from the union on STA's buses.
panel affirmed the district court's holding that the STA
unreasonably rejected the proposed ad in violation of the
union's First Amendment rights. The panel declined to
accept the First and Sixth Circuit's approaches of giving
deference to a transit agency's application of its
advertising policy. The panel held that the STA's bus
advertising program was classified as a "limited public
forum" which allowed content-based restrictions as long
as they were reasonable and viewpoint neutral.
panel applied the three-part test for a limited public forum
to review STA's decision to exclude the union's ad
under "public issue" advertising. First, the panel
held that the policy was reasonable in light of the forum
because STA's concern with engaging in matters of public
debate was related to the purpose of running an efficient and
profitable transit system. Second, the panel held that
STA's standard lacked objective criteria to provide
guideposts for determining what constituted prohibited
"public issue" advertising. Third, the panel held
that, based on an independent review of the record, STA's
application of its "public issue" advertising ban
to exclude the union's proposed ad was unreasonable.
the panel held that because the union's ad promoted an
organization that engaged in commercial activity, STA
unreasonably applied its "commercial and promotional
advertising" policy to reject the union's ad.
case concerns a First Amendment challenge by the Amalgamated
Transit Union Local 1015 ("ATU") to the Spokane
Transit Authority ("STA")'s decision, under its
advertising policy, not to run a proposed advertisement from
the union on STA's buses. After a court trial, the
district court held that STA unreasonably rejected the
proposed ad in violation of ATU's First Amendment rights,
enjoined STA from rejecting ATU's ad and awarded
attorneys' fees to ATU. On appeal, STA argues that we
should follow the First and Sixth Circuits, and afford
transit agencies a degree of deference in the application of
their advertising policies.
reject STA's argument because we have consistently held
that we must independently review the record, without
deference to the assessment made by transit officials, to
determine whether a transit agency reasonably applied its
advertising policy. See Am. Freedom Def. Initiative v.
King Cty. (AFDI II), 904 F.3d 1126, 1134 (9th
Cir. 2018); Seattle Mideast Awareness Campaign v. King
Cty. (SeaMAC), 781 F.3d 489, 500-01 (9th Cir.
2015). Applying the appropriate limited public forum test
from these recent transit agency cases, we affirm the
district court's judgment.
a 501(c)(5)-registered nonprofit union that represents all
transit operators, maintenance, clerical and customer service
employees at STA in Spokane, Washington. Since at least 2008,
all STA buses have carried stickers on the inside displaying
ATU's logo and stating, "This vehicle is operated
and maintained by union members Amalgamated Transit Union AFL
CIO/CLC." In exchange for dues charged to its members,
ATU provides collective bargaining services, contract
enforcement and assistance in organizing new members. It also
engages in advertising to promote ATU and reach new workers
to help organize.
provides public transportation in the Spokane, Washington
region. It runs an advertising program to generate non-tax
revenue. Under its former Vehicle and Facilities Advertising
Policy, STA confronted complaints and operational disruptions
during several episodes involving controversial bus ads. For
instance, in 2009, the United Food and Commercial Workers
("UFCW") Local 1439 ran attack ads against two
local grocery chains, Albertsons and Fred Meyer. In response,
STA received complaints from customers about these ads. And
one driver expressed concern that STA was sending conflicting
messages by running anti-Fred Meyer ads while still serving
bus stops near Fred Meyer locations.
2011, the Coalition of Reason ran an ad on STA buses stating,
"Are you good without God? Millions Are." STA
received more complaints than normal, both before and after
the ad appeared on STA buses. The media attention and public
response negatively affected operations by creating negative
perceptions, prompting statements from people about no longer
using STA's service and generating unease amongst
STA's bus operators and customer service representatives.
about funding and the potential impact of customer
unhappiness on bus operators, STA's board adopted the
current Commercial Advertising Policy ("Ad Policy")
in late 2012, placing more limits on advertising content than
under its prior policy.
Policy permits advertising space for only two types of ads,
"commercial and promotional advertising" and
"public service announcements." "Commercial
and promotional advertising" is defined as advertising
[P]romotes or solicits the sale, rental, distribution or
availability of goods, services, food, entertainment, events,
programs, transaction [sic], donations, products or property
for commercial purposes or more generally promotes an entity
that engages in such activity.
both "commercial and promotional advertising" and
"public service announcements," the Ad Policy
prohibits certain categories of content. Most relevant here,
the Ad Policy prohibits "public issue" advertising,
defined as advertising "expressing or advocating an
opinion, position, or viewpoint on matters of public debate
about economic, political, religious or social issues."
ATU sought to place its ad, Ooh! Media LLC was STA's
advertising contractor. Ooh! Media made the initial
determination of whether a proposed ad complied with the Ad
Policy. If it was unable to make a determination, then the
decision was referred to the Director of Communications.
STA's Chief Executive Officer ("CEO"), however,
had the final word on advertising content. STA's board
has not issued any guidance on how the "public
issue" prohibition should be interpreted, but STA's
CEO interprets "public issue" to constitute
"subjects on buses that would create a negative
impression of the organization that would be hard on [its]
employees and hard on the organization."
after the Ad Policy was adopted, the Seventh Day Adventist
Church of Spokane proposed a series of ads for STA buses
stating, "Jesus Cares About Your Future," "You
Matter to Jesus," and "Jesus Head of Lost and
Found." Ooh! Media rejected the proposed ads, prompting
a letter and public records request from the church's
advertising agent for an explanation of the rejection. STA
and the church then worked together on creating an ad that
STA determined complied with the Ad Policy. The revised ads
stated, "YOU MATTER TO SOMEONE," "SOMEONE
CARES ABOUT YOUR FUTURE," and "WE CARE ABOUT
YOU." A separate ad depicted only the church's
website. STA considered these ads to be "public service
announcements" that did not take a position on a
summer of 2016, after approval from the contractor Ooh!
Media, UFCW Local 1439 ran a series of ads on STA buses.
These ads stated, "GET UNITED!" along with other
messages such as "Get the wages, healthcare, and safe
working conditions you deserve, for a happier home
life," "Stand up & have a voice in your
workplace . . . for better wages, healthcare, and a happier
home life!" and "Union workers banding together
have better healthcare, wages, working conditions, & a
happier home life." The ads were meant to promote
services that UFCW Local 1439 provides to workers. STA never
received a complaint about these ads. Upon seeing them,
however, STA's CEO had the UFCW Local 1439 ads removed
because she interpreted them to constitute "public
August 2016, ATU's President and Business Agent, Thomas
Leighty, contacted Ooh! Media about running bus ads to
promote ATU and urge others to organize. Leighty was inspired
by the UFCW Local 1439 ads, although he learned upon
contacting UFCW Local 1439 that its ads had been taken down
and that UFCW Local 1439 was no longer allowed to advertise.
Nonetheless, Leighty emailed Ooh! Media, who responded by
sending a copy of STA's Ad Policy. Leighty proposed that
ATU could run its ad under "commercial and promotional
advertising." Ooh! Media responded that ATU's
proposed ads were solicitations to join a union, and
therefore neither had a commercial purpose nor promoted an
entity that engages in commercial activity.
result of this exchange, ATU sent STA a letter, conveying its
concern that the Ad Policy excluded unions and was not legal.
Hoping to resolve any misunderstandings that it was
anti-union, STA officials met with ATU representatives and
asked the union to submit an ad copy to Ooh! Media with the
goal of creating an ad ...