Atu Local 1015 v. Spokane Transit Authority, 929 F.3d 643

Background

ATU Local 1015 (a labor union) sought to run a bus ad reading in substance “You have the Right to Organize! Contact ATU 1015,” using STA’s advertising program; STA rejected the ad under its Ad Policy.
STA’s Ad Policy allows only “commercial and promotional advertising” and “public service announcements,” and prohibits “public issue” advertising (opinions or viewpoints on matters of public debate).
Ooh! Media (STA’s former contractor) initially reviewed the ad; STA’s CEO had final approval and interpreted “public issue” broadly to avoid negative publicity or operational disruption.
STA previously faced controversies from other ads (religious and union-related) and had removed UFCW Local 1439 “Get United!” union ads even though they produced no complaints; STA also has stickers on buses acknowledging ATU members since 2008.
ATU sued alleging First Amendment violations (viewpoint discrimination and unreasonable application of content restrictions); the district court found STA unreasonably applied its policy, enjoined STA from rejecting the ad, and awarded fees to ATU.
The Ninth Circuit affirmed: it rejected STA’s request for deference to the agency, independently reviewed the record, and held STA unreasonably applied both the “public issue” ban and the “commercial and promotional” definition to exclude ATU’s ad.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Forum classification & deference to agency application	Forum is a limited public forum; court should review agency application without deference	STA urged deference similar to First/Sixth Circuits in application of ad policies	Ninth Circuit: advertising program is a limited public forum; no special deference — court must independently review application of policy
Application of “public issue” ban to ATU ad	ATU: ad is promotional, not a public-issue viewpoint; rejecting it was unreasonable as-applied	STA: ad touches collective bargaining/organizing (public debate) and could provoke disruptive responses; rejection reasonable	Held: STA’s application was unreasonable — record did not support predicted disruption; prior similar union ads/stickers caused no complaints
Whether ATU ad qualifies as “commercial and promotional advertising”	ATU: definition is broad and covers entities that engage in commercial activity; ATU’s organizing promotes its members and commercial interests	STA: ATU’s ad does not propose a commercial transaction and is noncommercial political/organizing speech	Held: Under STA’s own broader policy language, ATU’s ad promotes an entity that engages in commercial activity; exclusion was unreasonable
Facial vagueness / objectivity of “public issue” standard	ATU: policy as applied is vague and permits arbitrary enforcement	STA: standard is needed to protect revenue, operations, safety, neutrality	Held: Court skeptical the standard would survive a facial challenge; as-applied, lack of objective guideposts made STA’s invocation unreasonable

Key Cases Cited

Am. Freedom Def. Initiative v. King Cty., 904 F.3d 1126 (9th Cir. 2018) (courts must independently review agency record when excluding ads for disruption)
Seattle Mideast Awareness Campaign v. King Cty., 781 F.3d 489 (9th Cir. 2015) (metro bus advertising is a limited public forum; independent review of disruption claims)
Am. Freedom Def. Initiative v. King Cty., 796 F.3d 1165 (9th Cir. 2015) (limited forum test and reasonableness requirements for ad exclusions)
Children of the Rosary v. City of Phoenix, 154 F.3d 972 (9th Cir. 1998) (upholding limits to commercial advertising on buses as consistent with forum purpose)
Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) (municipal transit systems may reasonably limit political advertising)
Sammartano v. First Judicial Dist. Court, 303 F.3d 959 (9th Cir. 2002) (courts require record support for government assertions of disruption)
Matal v. Tam, 137 S. Ct. 1744 (2017) (discussed in context of viewpoint discrimination and disparagement doctrine)