Today, Oregon's Court of Appeals held that Oregon's constitutional protection of free speech prohibits Tri-Met from excluding advertisements based upon issue or political content. In Karuk Tribe and Friends of the River Foundation v Tri-County Metropolitan Transportation Dist., the tribe and the Friends, wanted to post an ad with a graphic showing salmon confronting an impenetrable dam of wall sockets with the tagline, "Salmon shouldn't run up your electrical bill. They should run up the Klamath River."
Tri-Met turned down the business. Tri-Met cited its policy against advertisements containing political campaign speech. Under the policy, one can buy ads to sell stuff, but not to sell ideas.
In court, Tri-Met said it was acting like a business, not in a governmental capacity, so Oregon's Constitution should not apply to it. (Tri-Met also argued that the Tribe should not be able to sue for personal speech rights.) The trial court said, "no." It held that the policy violated Oregon's Constitution and the First Amendment to the U.S. Constitution.
Oregon's Court of Appeals avoided the First Amendment. Oregon's Article I, section 8 prohibits the government from deciding what content is okay, even when acting in a proprietary capacity, it held. There are historic exceptions to that rule. For example, fraudulent speech or assistance in criminal activity. But the exceptions do not include issue ads linking dams, power, rates and salmon.
Perhaps the biggest consequence of this decision is that political candidates can now buy Tri-Met ads on bus lines in their districts.
Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234
The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.
