Rejecting Union Bus Ads Violated First Amendment, 9th Cir. Says

The transit authority of Spokane, Wash., violated the First Amendment rights of the city’s transport workers’ union by rejecting its proposed bus advertisements urging Uber and Lyft drivers to organize.

Although the Spokane Transit Authority’s policy banning “public issue” advertising isn’t necessarily unconstitutional on its face, the STA applied the ban in an inconsistent and unreasonable way, the U.S. Court of Appeals for the Ninth Circuit ruled July 2. The STA policy also restricts bus advertisements to those that are “commercial and promotional in nature.”

The ruling hands a win to Local 1015 of the Amalgamated Transit Union.

Judge Richard A. Paez, writing for the court, acknowledged that city buses are “limited” public forums where free speech protections aren’t at their fullest. The STA’s interest in preventing controversial ads from disrupting operations is legitimate, Paez said.

“This does not mean, however, that courts should abdicate their role in protecting the First Amendment rights of those seeking access to that advertising space,” he wrote.

The court rejected the STA’s argument that the ads would invite inflammatory counter-advertisements by “right to work” activists that the transit authority would then have to run, leading to acrimony on its buses.

All Spokane buses already bear stickers promoting the ATU, and the STA previously ran similar ads from a different union, without incident, Paez noted. The agency is entitled to restrict speech in the name of orderly operations, but not to apply its policy in a way unsupported by the facts, he said.

The STA also argued unsuccessfully that the ads weren’t “commercial” in nature because they promote a cause rather than products for sale. The agency stressed that the union doesn’t collect fees for its organizing work.

Paez disagreed. The STA policy explicitly permits any ads that “generally promote” an entity with a commercial purpose, he noted. The agency’s interpretation would ban many obviously commercial ads, including those taken out by social media companies or law firms that work on contingency, Paez said.

Judges Ronald M. Gould and Dean D. Pregerson, sitting by designation from the Central District of California, joined the ruling.

The union is represented by Despres Schwartz & Geoghegan. The STA is represented by Witherspoon Brajcich McPhee PLLC.

The case is Amalgamated Transit Union Local 1015 v. Spokane Transit Auth., 9th Cir., No. 17-35955, 7/2/19.