Judge Rules Against TriMet in Free Speech Case
TriMet's refusal to accept a bus ad involving salmon and dams violates constitutional free speech protections.
UPDATE: July 2009 – TriMet has appealed to the Oregon Court of Appeals. The parties have fully briefed the matter and are awaiting an oral argument date from the court.
June 3, 2008 -- Judge Henry C. Breithaupt ruled Monday that TriMet’s refusal of a "political" advertisement was unconstitutional, on both state and federal grounds. The ACLU of Oregon’s victory on behalf on the Karuk Tribe of California and the Friends of the River Foundation makes clear that TriMet cannot violate free speech protections as it picks and chooses what ads to accept or deny.
Judge Breithaupt ruled that TriMet does not have to make its buses available for advertisements, but that if it does “it places itself in the same position as a government … (and) may not … violate the Oregon Constitution.” TriMet’s decision to deny an ad, the judge ruled, may not be based on the content of that ad.
The Karuk Tribe and Friends of the River had sought to place an ad on TriMet buses regarding the damage done to salmon runs by electricity-generating dams, owned by Portland-based Pacific Power, on the Klamath River. The ad depicts three salmon facing a wall of electrical sockets, along with the caption, “Salmon shouldn’t run up your electric bill. They should run up the Klamath River.” The ad then directs the public to a website for more information.
TriMet’s Advertising Standards Committee rejected the proposed ad on the grounds that it did not constitute an “advertisement” and that the public transit agency did not want its buses or property “to become a public forum for the dissemination, debate, and/or discussion of public issues.” The ACLU appealed the committee’s decision to TriMet’s general manager, who in a letter dated Jan. 18, 2008, upheld the rejection.
The ACLU argued that both rejections represent an unlawful restriction on speech in violation of Article 1, section 8, of the Oregon Constitution and the First Amendment of the U.S. Constitution. The judge agreed with the ACLU on both counts. TriMet may appeal the decision to the Oregon Court of Appeals.
Thomas M. Christ of Cosgrave Vergeer Kester LLP is ACLU’s cooperating attorney on this case.