Employment Law Daily Transit authority unreasonably restricted union advertising
Wednesday, October 11, 2017

Transit authority unreasonably restricted union advertising

By Gregory Kane, J.D., M.B.A., and Lisa Milam-Perez, J.D.

The Spokane, Washington transit authority unreasonably interpreted the “public issues” provision of its advertising policy when it rejected a union’s bus ads stating that commercial drivers have the right to organize as a union, a federal district court in Washington held following a bench trial. The transit authority did not engage in viewpoint discrimination and no facial challenge was made to the revised advertising policy as a whole; rather, the union brought a successful “as applied” challenge, and established a violation of its First Amendment rights (Amalgamated Transit Union Local 1015 v. Spokane Transit Authority, September 28, 2017, Quackenbush, J.).

Amalgamated Transit Union Local 1015 (ATU) brought suit against the Spokane Transit Authority (STA) after it refused to accept a bus advertisement that stated commercial drivers—those who drive for Lyft, Uber, school buses and charter buses—had the right to organize as union members and provided the ATU telephone number. The union alleged the STA violated its First Amendment rights.

“Public issues” restriction. STA had denied the union’s advertisement based on a “public issues” prohibition added to its advertising policy, which was designed to avoid the sort of public complaints and backlash that followed such advertisements as those by local religious institutions, local unions targeting specific businesses, and adult-oriented businesses. The public issues prohibition barred advertising “expressing or advocating an opinion, position, or viewpoint on matters of public debate about economic, political, religious or social issues.” The provision was approved in December 2012, although the STA’s board of directors had still not issued guidance on the proper interpretation of the provision, as to what constitutes “matters of public debate.”

The ATU contacted the STA’s third-party advertising coordinator about running bus ads and went through a lengthy process with that coordinating entity and STA representatives. The process culminated in ATU submitting its proposed advertisement. While ATU was still awaiting approval of its ad, STA terminated its contract with its third-party coordinator (for its “repeated errors” in applying the STA’s advertising policy), and rejected the proposed ATU advertisement as disallowed. Specifically, the STA contended that union representation and collective bargaining falls under “the ‘right to organize’ movement” and constitutes a matter of public debate within the meaning of the public issues policy. If it ran the ATU ad, it also would have to run anti-union and “right to work” ads, the STA explained.

No viewpoint discrimination. STA buses are a limited public forum and any advertising limitations must be reasonable and viewpoint-neutral. There was no evidence showing STA intended to silence union speech when it created the public issue provision, and STA included a labor representative when it revised the advertising policy. ATU’s broad arguments with only two examples of union advertisements rejected or removed did not establish a motivating ideology for restricting speech, the court found.

As-applied challenge. ATU did not challenge the advertising policy’s public issue provision as written, but only as applied to its ad. The court found STA’s disallowance of the ad unreasonable. It observed that, prior to implementing the public issue policy, the STA had received complaints about an ad from a local union that targeted a specific employer for its poor treatment of workers. However, the STA received no backlash when a different union ran an advertisement substantially similar to ATU’s during the summer of 2016. In addition, the ATU advertisement was general in nature and did not criticize any business or person, or call on consumers to take action in support of union members.

The court also was unpersuaded by the STA’s attempt to establish the existence of a “public debate” by citing the right-to-work movement, since the STA presented no evidence that the movement sought to advertise on STA buses, nor evidence of any nexus between the ATU’s ad and the right-to-work movement. As such, this argument was too speculative to warrant consideration. Therefore, STA’s disallowance of ATU’s ad under the public issue portion of the advertising policy was unreasonable.

Commercial and promotional advertising. STA further challenged the ATU advertisement as lacking a commercial purpose, which, in accordance with its advertising policy, would allow the ad to be rejected on that basis. However, the policy is not so narrowly worded as to limit all ads to those that propose a commercial transaction, and it does allow for the promotion of entities that engage in commercial activity in general. Thus, to deny the advertisement because it doesn’t promote a commercial activity specifically also was unreasonable, the court held.

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