Rocky Mountain Sign Law By Brian J. Connolly May 31, 2017
The union representing Spokane Transit Authority employees will have an opportunity to continue its challenge to the STA’s bus advertising policy, now that a federal court has denied the transit authority’s motion to dismiss.
Like many transit agencies, the STA has an advertising policy. Until November 2016, the STA delegated administration and enforcement of the policy to an advertising contractor called ooh Media LLC. The policy allows “Commercial and Promotional Advertising” and “Public Service Announcements.”
Commercial and promotional advertising includes general commercial advertisements for products, services, events, and the like. Public service announcements are required to meet three criteria: the sponsor must be a governmental or 501(c)(3) nonprofit entity, the announcement must relate to one of five topics (including public health, safety or personal well-being, family or child social services, broad-based contribution campaigns, or services for low-income people or persons with disabilities), and the announcement may not include a commercial message. The policy also prohibits deceptive advertising, political speech, or ideological or religious messages.
In 2016, the union, the Amalgamated Transit Union Local 1015, sought to advertise on the side of STA buses. The content of the advertisement was to promote the union’s services and inform the public about the workers’ rights. The proposed advertisement specifically called out ride-sharing services such as Uber, Lyft, and other organizations and encouraged workers to organize. The advertising contractor never responded to the proposed advertisement, and STA has not responded to the proposed advertisement since November 2016. The union filed suit against STA, bringing facial and as-applied challenges to the advertising policy, arguing that STA has disallowed the union’s advertisement because the advertising policy does not allow union speech.
In analyzing the STA’s motion to dismiss, the district court noted that, in the Ninth Circuit, bus-side advertising constitutes a limited public forum. With respect to the plaintiff’s facial challenge, the court denied the STA’s motion to dismiss. The court reasoned that, because the STA’s lawyers indicated that union advertising could not be commercial and promotional advertising, and acknowledged that a union is neither a government nor 501(c)(3) organization, the union’s complaint plausibly alleged that the STA’s advertising policy denied it the right to advertise on STA buses.
On the as-applied challenge, the STA argued that the union’s challenge was not ripe because the STA had neither approved nor denied the advertisement in question. But, because of evidence referenced in the complaint that indicated that the STA had terminated its contract with ooh Media because the contractor intended to approve the union’s advertisement, the court denied the motion to dismiss.