When Working Washington, a non-profit coalition that lobbies for workers' rights and fair wages, tried to place ads on Sound Transit Link light rail trains running from Westlake Center to SeaTac Airport, ads which called into question the compensation of low-wage workers at SeaTac, Sound Transit balked. The matter ended up in court, with Working Washington, aided by the ACLU, filing a lawsuit arguing that Sound Transit's decision to reject the ad violates the agency's preexisting advertisement policies as a "designated public forum," and more importantly the First Amendment.
In filing the lawsuit, Working Washington and the ACLU only sought to have a court order Sound Transit to run the ads - the organizations didn't ask for monetary compensation or other sanctions.
On June 29, U.S District Court Judge John Coughenour shot them down, rejecting a motion for a preliminary injunction that would have required Sound Transit to run the ad. Coughenour ruled that Sound Transit's decision to reject the ad was within the rules of the agency's policy regarding political advertisements, calling the lawsuit's argument "unpersuasive" in that regard, and also saying the suit "has not shown that it is likely to prevail on the merits of its First Amendment claim."
Not ready to throw in the towel, however, yesterday the ACLU announced it has appealed that decision - sending the case to the U.S. Court of Appeals for the Ninth Circuit.
"Getting a preliminary injunction aren't always the easiest things to prevail on," says Honig. "We always hoped to win, and thought we had a strong case, but we certainly were prepared for the possibility that this would go up on appeal."
See the ad in question on the next page ...
The ad at the center of the dispute, submitted to Sound Transit in March, features SeaTac skycap Hosea Wilcox and the tagline "Let's make all airport jobs good jobs." Seen below, the ad features pictures of a champagne glass representing "first class," a standard airplane seating cabin representing "coach class," and Wilcox, representing "poverty class." The ad states that Wilcox has been a skycap at SeaTac for 31 years and still earns minimum wage.
Working Washington says it paid $6,300 on March of this year to place the ad in Sound Transit Link light rail trains, through Clear Channel, which runs Sound Transit's advertising program. On March 20, however, Working Washington says it received a refund, along with the news that Sound Transit had rejected the ad on the basis it violates its advertising policy - which is designed to avoid ads that are controversial or overtly political. Sound Transit said the ad was both.
"A government agency that operates an advertising program open to a wide variety of messages cannot just leave it to the discretion of individual government officials to decide subjectively what is 'controversial.' What Sound Transit has done in rejecting the 'Good Jobs' ad is to censor a message without a reasonable basis," says ACLU of Washington legal director Sarah Dunne in a press release distributed to the media yesterday.
"The Working Washington ad does not fit any of the grounds Sound Transit gives [in its advertising policy] for prohibiting political ads. In rejecting it, the agency is misapplying its own policy," Dunne says later in the release.
Honig expands on the sentiment: "We believe that in creating this advertising program, Sound Transit established what's known as a designated public forum for speech, and in situations like that the agency sponsoring the advertising program can't arbitrarily exclude speech based on the content or message," he says. "In this case, that's what we believe happened.
"Since the agency's policy doesn't define what controversial speech is, in practice that means it's up to individual government officials each time to determine what they believe is controversial, and that really opens the door to discrimination based on viewpoint."
While Working Washington contends Sound Transit's decision to reject the ad violates the agency's own policies, noting the fact the agency has run ads in the past that could be viewed as controversial or political (such as a condom ad for Planned Parenthood) Geoff Patrick, media relations and public information manager for Sound Transit, says the agency is confident its decision was the correct one, and that it will continue to hold up in court.
"Sound Transit has an advertising policy that includes restrictions on advertisements that are political or controversial since such advertisements could cause people to not want to ride our trains and buses," says Patrick in an email to Seattle Weekly. "The U.S. District Court ruling [posted on the following page] denying Working Washington's request for an injunction reflects the clear basis under the law for reasonable and viewpoint-neutral restrictions on advertising. If an advertisement were submitted to Sound Transit in opposition to a unionization effort at the airport it would also be rejected.
"Sound Transit will review and respond to the appeal," Patrick continues. "We are very confident in the legal basis for our policy."
Find the June 29 ruling from U.S District Court Judge John Coughenour denying the ACLU and Working Washington's motion for a preliminary injunction on the following page.