Amalgamated Transit Union Local 1015 v. Spokane Transit Auth.

• Decision Date: 02 July 2019
• Docket Number: No. 17-35955,17-35955
• Citation: 929 F.3d 643
• Parties: AMALGAMATED TRANSIT UNION LOCAL 1015, Plaintiff-Appellee, v. SPOKANE TRANSIT AUTHORITY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

929 F.3d 643

AMALGAMATED TRANSIT UNION LOCAL 1015, Plaintiff-Appellee,
v.
SPOKANE TRANSIT AUTHORITY, Defendant-Appellant.

No. 17-35955

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 5, 2019 Seattle, Washington
Filed July 2, 2019

929 F.3d 646

James Andrew McPhee (argued) and John T. Drake, Witherspoon Brajcich McPhee PLLC, Spokane, Washington, for Defendant-Appellant.

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.

OPINION

PAEZ, Circuit Judge:

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This 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.

We 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.¹

I.

ATU is 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.

STA 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

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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.

In 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.

Concerned 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.

The Ad 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 that:

[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.

For 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."

When 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."

Shortly 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 "public issue."

In the summer of 2016, after approval from the contractor Ooh! Media, UFCW Local 1439 ran a series of ads on STA

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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 issue" advertising.

In 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.

As a 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 with acceptable content, as had been arranged with the Seventh Day Adventist Church of Spokane.

Following the meeting, ATU submitted a proposed ad to Ooh! Media that 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 also prominently featured ATU’s logo.² In October 2016, Ooh! Media informed ATU that they were ready to move forward with the ad and offered a pricing rate. Later that same day, Ooh! Media reached out to explain they were delayed in securing final approval from STA.

About a month later, ATU inquired of STA about the delay in reviewing its proposed ad, to which STA responded that it had terminated its contract with Ooh! Media and was no longer accepting new ads until it chose a new advertising vendor through a public proposal process. STA explained it terminated the contract based on Ooh! Media’s repeated errors in applying the Ad Policy to proposed ads.

Following this rejection, ATU filed a lawsuit against STA in district court, alleging violations of its rights under the First and...