United States District Court, E.D. Washington
MEMORANDUM OPINION, FINDINGS OF FACT, AND CONCLUSIONS
OF LAW RE: BENCH TRIAL
L. QUACKENBUSH SENIOR UNITED STATES DISTRICT JUDGE
February 6, 2017, Plaintiff, Amalgamated Transit Union -
Local 1015 (“Plaintiff” or “ATU”)
filed the Complaint alleging the Defendant, Spokane Transit
Authority (“Defendant” or “STA”)
violated ATU's constitutional rights by refusing to allow
it to run an advertisement stating drivers of various
entities have the right to organize. (ECF No. 1). On May 16,
2017, the court denied STA's Motion to Dismiss. (ECF No.
28). On May 25, 2017, the court granted the parties'
joint request for a bench trial on an expedited basis due to
the minimally disputed facts. (ECF No. 31).
27, 2017, the court held the bench trial in this matter.
Plaintiff was represented by Steven Crumb and Sean
Morales-Doyle. James McPhee and John Drake appeared on behalf
of the Defendant. At the conclusion of the bench trial, the
court ed the parties to submit briefing to address the issues
raised at trial. On July 21, 2017, the parties submitted
briefs and on August 4, 2017, submitted reply briefs.
See (ECF No. 42); (ECF No. 44); (ECF No. 46); (ECF
No. 47). The parties also submitted proposed Findings of Fact
and Conclusions of Law. See (ECF No. 43); (ECF No.
45). This Order memorializes the court's Findings of Fact
and Conclusions of Law in this matter.
Findings of Fact
a nonprofit union representing all transit operators,
maintenance, clerical, and customer service employees at STA,
as well as drivers for STA's para-transit program. (ECF
No. 41 at 43:8-15, 22-25). ATU provides collective bargaining
services, contract enforcement, and assistance in organizing
new members. (ECF No. 41 at 43:17-18).
provides public bus transportation to the Spokane region.
(ECF No. 41 at 112:7-8). STA had an advertising program to
generate non-tax revenue. (ECF No. 41 at 112:13-14). To
implement the advertising program, STA, at all relevant
times, had a “Commercial Advertising Policy”
(“Policy”) setting forth the criteria by which
advertising would be approved for display on STA buses. (ECF
No. 41 at 112:20-21); (Ex. 1). The Policy delegated daily
administration of the policy to an “Advertising
Contractor.” (Ex. 1 at §III.A). Until November 7,
2016, the Advertising Contractor was Ooh Media LLC. (ECF No.
41 at 166:22-25).
Policy permitted two types of advertising content for display
on STA buses: (1) “Commercial and Promotional
Advertising”; and (2) “Public Service
Announcements.” (Ex. 1 at ¶9); (Ex. 1 at §
II.A). “Commercial and Promotional Advertising”
is defined by the Policy as advertising that “promotes
or solicits the sale, rental, distribution or availability of
goods, services, food, entertainment, events, programs,
transaction, donations, products or property for commercial
purposes or more generally promotes an entity that engages in
such activity.” (Ex. 1 at § II.A.1).
qualify as a “Public Service Announcements”
(“PSA”), proposed advertisements were required to
meet three criteria: (1) the sponsor “must be a
government entity or a nonprofit corporation that is exempt
from taxation under § 501(c)(3) of the Internal Revenue
Code”; (2) the “PSA must be directed to the
general public or a significant segment of the public and
relate to: i. Prevention or treatment of illness; ii.
Promotion of safety, health or personal well-being; iii.
Provision of family or child social services; iv.
Solicitation by broad-based employee contribution campaigns
which provide funds to multiple charitable organizations
(e.g. United Way); or v. Provision of services and programs
that support low income citizens or persons of
disability”; and (3) “may not include a
commercial message or mention a festival, show, sporting
event, concert, lecture, or event for which an admission fee
is charged.” (Ex. 1 at § II.A.2.c).
Policy also listed categories of “Prohibited
Advertising Content” including ads containing deceptive
commercial speech, political speech, the promotion of
unlawful goods or services, or “expressing or
advocating an opinion, position, or viewpoint on matters of
public debate about economic, political, religious or social
issues.” (Ex. 1 at § II.B(13)). The
“Prohibited Advertising Content” applied equally
to both “Commercial and Promotional Advertising”
and “Public Service Announcements.” (ECF No. 41
Advertising Contractor was unable to make a determination
whether a proposed advertisement complied with the Policy,
the Director of Communications reviewed the advertisement.
(ECF No. 41 at 113:23-114:2). If the Director of
Communications could not make a decision, the STA CEO made
the final decision on a proposed advertisement. (ECF No. 41
at 113:23-114:2). When proposed advertisements came to the
CEO, she consulted at times with legal counsel before
rendering a decision. (ECF No. 41 at 116:5-8).
prior version of the Policy did not contain prohibitions on
“Public Issues.” Ex. 501 at 3). Under the prior
version of the Policy, the Coalition of Reason ran an
advertisement on STA buses stating “Are you good
without God? Millions Are.” (Ex. 513); (ECF No. 41 at
116:20-117:3). STA received complaints above and beyond
normal complaints concerning this advertisement, both before
and after the advertisement started appearing on STA buses.
(ECF No. 41 at 117:4-6, 120:22-24, 122:15-17, 127:19-23);
(Ex. 514a-b); (Ex. 515a-c). The advertisement brought
attention that negatively affected STA operations in the form
of concerns expressed to STA bus operators who did not want
to drive buses with those advertisements and customer service
representatives who dealt with the complaints and reactions.
(ECF No. 41 at 193:16-24, 194:7-11).
under the old Policy, an advertisement ran on STA buses
stating “Fred Meyer Firing workers for one honest
mistake is JUST WRONG.” (Ex. 511); (ECF No. 41 at
132:10-21). STA received complaints about the advertisement.
(Ex. 512a); (ECF No. 41 at 132:23-25, 133:8-18,
194:23-195:5). The complaints raised concern with STA because
the complaints suggested STA used taxpayer funded buses to
promote messages from particular viewpoints. (ECF No. 41 at
134:15-22). The complaints prompted an internal discussion
within STA to determine if there was anything it could do
about the complained of advertisements. (Ex. 512b); (ECF No.
41 at 134:25-137:1).
the former version of the Policy, another advertisement
campaign ran which was critical of Albertsons and encouraged
shoppers to shop at Rosauers. (Ex. 508); (ECF No. 41 at
137:15-17). STA received complaints about the advertising
campaign. (Ex. 509); (ECF No. 41 at 137:18-19, 138:7-21).
advertisement also ran under the old policy for Busty's
Top Espresso, a bikini espresso. (Ex. 516); (ECF No. 41 at
139:16-23). STA and counsel reviewed the original proposed
advertisement and it was rejected. (ECF No. 41 at 141:18-21).
Local media interviewed STA CEO E. Susan Meyer regarding the
Busty's Top Espresso advertisements and complaints
received by the local media. (Ex. 517b); (ECF No. 41 at
140:21-141:15). STA also received complaints regarding this
advertisement. (Ex. 517a); (ECF No. 41 at 140:10-17).
spent a significant amount of time responding to complaints
under the former policy. (ECF No. 41 at 142:13-24). The
complaints generated STA concerns about the impact on bus
operators and possible funding problems from voter backlash.
(ECF No. 41 at 144:6-19). Based on these issues, in late
2012, STA revised the Policy to its current form with review
of legal counsel and the Communications Manager. (ECF No. 41
at 144:24-145:13); (Ex. 501, 503). On December 5, 2012, the
Performance Monitoring and External Relations Committee,
composed of the STA CEO, a labor representative, and other
community members, reviewed the proposed changes, made its
own changes, and passed the Policy. (ECF No. 41 at
145:14-149:10, 199:2-200:19). On December 20, 2012, the STA
Board of Directors met, discussed the proposed changes to the
Policy, and passed it unanimously. (Ex. 503 at 2-3); (ECF No.
41 at 149:15-151:21, 200:20-201:4).
Board has not issued guidance as to what constitutes a matter
of public debate or how to interpret the “Public
Issue” portion of the Policy. (ECF No. 41 at 186:3-5).
STA interprets the “Public Issue” to constitute
“subjects on buses that would create a negative
impression of the organization that would be hard on our
employees and hard on the organization.” (ECF No. 41 at
187:1-11). Under the current Policy, STA has not received
complaints over advertisements run on its buses. (ECF No. 41
January 2013, the Seventh Day Adventist Church of Spokane
submitted a proposed series of advertisements for STA buses
stating: “Jesus Cares About Your Future, ”
“You Matter to Jesus, ” and “Jesus Head of
Lost and Found.” (Ex. 520); (ECF No. 41 at
155:19-156:3, 157:10-16); (Ex. 522-A). The proposed
advertisements were rejected because they promoted a
religious message that was prohibited as a “Public
Issue” under the revised Policy. (ECF No. 41 at
181:1-7). This prompted a public records request and letter
from the Church as to why the advertisements were rejected.
(Ex. 521-A); (ECF No. 41 at 156:12-23). STA's response
explained the Policy had been changed, the proposed
advertisements which were allowed under the old Policy were
not allowed under the revised Policy, and attached a copy of
the current Policy. (Ex. 522-A); (ECF No. 41 at 157:4-16,
158:3-8). STA worked with the Church on revising the proposed
advertisements to comply with the Policy. (Ex. 522-C); (ECF
No. 41 at 160:2-5). The advertisements accepted by STA stated
“YOU MATTER TO SOMEONE, ” “SOMEONE CARES
ABOUT YOUR FUTURE, ” and “WE CARE ABOUT
YOU.” (Ex. 522-C at 1); (ECF No. 41 at 180:8-25).
Another advertisement only stated the Church's website.
(Ex. 522-C at 1). STA found the advertisements, which
promoted the Seventh Day Adventist Church generally, did not
take a position on a “Public Issue.” (ECF No. 41
summer of 2016, Ooh Media approved advertisements by the
United Food and Commercial Workers' Union Local 1439 that
ran on 11 buses. (ECF No. 41 at 168:1-17, 169:6-12); (Ex.
525). The advertisements all stated “GET UNITED!”
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.” (Ex. 525). Each advertisement had the
Union's logo, website, and phone number. (Ex. 525). Upon
seeing the advertisements on STA buses, CEO Meyer had the
advertisements removed because she believed they did not
comply with the Policy. (ECF No. 41 at 168:4-169:4). STA had
received no complaints about these advertisements. (ECF No.
41 at 176:18-177:3, 206:22-207:4).
August 8, 2016, ATU President/Business Agent Thomas Leighty
contacted Ooh Media about running bus advertisements
“promoting our union and getting others
organized.” (Ex. 3 at 1). On August 9, 2016, Ooh Media
responded by including a copy of STA's Policy. (Ex. 3 at
2). Leighty responded, stating he believed ATU could run
advertisements promoting ATU, highlighting the Policy's
allowance of advertisements promoting the availability of
services. (Ex. 3 at 4). On August 10, 2016, Ooh Media
responded, stating “[t]he ads you wish to post are
simply solicitation to join a union or organizing. This is
not a commercial purpose, nor does it promote an entity that
engages in such activity. Your union would be a 501(c)(5) and
as such your message is not for commercial purposes.”
(Ex. 3 at 6).
point after this email exchange, ATU's attorney sent a
letter to STA threatening legal action if STA did not allow
ATU to advertise. (ECF No. 41 at 154:11-13). After exchanging
emails with ATU's attorney, counsel for STA sent an email
stating she reviewed the emails between Ooh Media and ATU,
and stated “[i]t appears to me that ooh [sic] Media
probably read the request from ATU Local 1015 as seeking to
place ads that would violate its policy and STA's policy,
but that the messaging was muddied by a reference to the tax
status of Local 1015.” (Ex. 5 at 1). Counsel further
stated advertisements “promoting our union and getting
others organized” “does not appear to me to be
commercial advertising promoting a commercial service or
product and Ooh Media apparently interpreted the request in
the same way (although I haven't spoken with ooh [sic]
Media specifically about their thought process and I
don't represent the company).” (Ex. 5 at 1).
Counsel for STA also stated “I think I would have come
to the same conclusion.” (Ex. 5 at 1). STA counsel
ended the email by suggesting the parties meet to “get
the miscommunication [from Ooh Media] cleared up and to allow
a chance of ATU Local 1015 to present [an] ad copy ... to be
fully evaluated by ooh [sic] Media to determine if it is
indeed Commercial or Promotional Advertising, or contains
Prohibited Advertising Content.” (Ex. 5 at 1).
September 15, 2016, ATU and STA representatives and counsel
met to discuss ATU potentially running an advertisement on
STA buses. (ECF No. 41 at 98:13-15, 154:17-155:4). At the
meeting, STA requested ATU submit an advertisement for its
consideration. (ECF No. 41 at 98:16-18, 154:25-155:1).
ATU submitted a proposed advertisement to Ooh Media. The
advertisement stated: “Do you drive: Uber? Lyft?
Charter Bus? School Bus? You have the Right to Organize!
Contact ATU 1015 Today at 509-325-2955.” (Ex. 2). The
advertisement also had ATU's logo. (Ex. 2). At some point
after the advertisement was submitted to Ooh Media, CEO Meyer
contacted Ooh Media to get a status report. (ECF No. 41 at
170:17-22). On October 7, 2016, Ooh Media informed Leighty it
was “meeting with my content reviewer today to go over
the ad. I will let you know later today how things look so we
can move forward with the next step.” (Ex. 4 at 1). On
October 10, 2016, at 10:31 a.m., Ooh Media informed Leighty
“Ooh Media is ready to move forward with your ad
creative proposed recently.” (Ex. 4 at 2). At 6:55
p.m., Ooh Media informed Leighty “[t]hough I believe we
were at a point to approve your content, I actually have a
delay in final approval as I must meet with STA for their
input.” (Ex. 4 at 3).
November 6, 2016, STA terminated its contract with Ooh Media.
(ECF No. 41 at 166:21-25). STA made its decision based on
“[r]epeated errors in applying the [STA] board's
policy to advertisements.” (ECF No. 41 at 167:1-5). STA
asserted Ooh Media “continued to be unable to