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TriMet loses free speech case over bus, train ads -- again (poll)

March 16, 2011 by By Joseph Rose, The Oregonian

 (KBC NOTE: Craig Tucker, trained by Green Corp as an environmental activist, was spokesperson for Friends of the River, and presently spokesman for the Karuk Tribe in the KBRA negotiations to destroy the Klamath River dams. George Soros funds Earthjustice which litigates for Klamath Riverkeeper, Friends of the River, Waterkeeper Alliance, and other environmental groups at the KBRA negotiation table. Soros funds the ACLU. Earthjustice with several KBRA environmental groups is in the coalition Save the Wild Salmon with the purpose of destroying the Snake and Columbia River dams. A KBRA author Glen Spain is on their board of directors.)

Atheism. Booze. Sex. Charlie Sheen reruns. Political agendas. Anyone selling anything can keep plastering TriMet buses and MAX trains with ads, despite the transit agency's objections.

On Wednesday, the Oregon Court of Appeals upheld a 2008 ruling that TriMet's long-running policy of accepting only commercial ads violates constitutional free speech protections.

Oregon’s largest transit agency has long maintained that is acting in a “proprietary capacity” by establishing guidelines and standards for what advertising Portland-area commuters and others see on and in its vehicles.
But in June 2008, an Oregon judge ruled that because TriMet is a government agency, it was wrong in refusing a bus ad criticizing dams on the Klamath River. The refusal, said Judge Henry C. Breithaupt, violated the Oregon Constitution.

The Court of Appeals upheld that ruling Wednesday, questioning whether state law allowing contractual policy set up and maintained by TriMet’s general manager should repress free speech.

Since the 2008 ruling, TriMet has accepted all advertising, regardless of content, as it awaited the appellate court ruling. The agency is still in “a holding pattern,” said spokeswoman Mary Fetsch.

In the past 2 1/2 years, the agency has received about 175 complaints from commuters about ads, ranging from a local TV station’s “Tail Blazers” campaign for Charlie Sheen’s “Two and a Half Men” to placards asking “Are you good without God?” in fall 2009.
TriMet said it will continue to fight for its policy. “We’re going to the state Supreme Court,” Fetsch said.

Bus and train ads generated about $4 million in revenue last year, TriMet said.

The transit agency has long maintained that the space on its vehicles should advertise only goods and services in a way that is friendly to families and younger riders. “Also, we didn’t want it to become a public forum,” Fetsch said, “so we didn’t allow political ads.”

But when TriMet rejected an ad proposed by Friends of the River and the Karuk Tribe of California, the American Civil Liberties Union of Oregon sued on the tribe's behalf.

The rejected ad depicted three salmon in front of a wall of electrical outlets. A caption reads: "Salmon shouldn't run up your electric bill. They should run up the Klamath River."

ACLU officials celebrated their second victory in the case.

“We’ve felt from beginning this was a very simple case of censorship by TriMet,” said David Fidanque, executive director of ACLU of Oregon. “As a public agency, it should be obvious to them that they’re required to follow the Oregon Constitution, which clearly prohibits restrictions based on subject being communicated.”

Because the case moving its way through the courts deals with political speech, Fidanque declined to discuss how the ACLU might react to the transit agency barring ads for adult entertainment and other things widely considered too mature for children.

However, he said, “the Oregon Supreme Court has made clear that restrictions to protect children in a captive audience may well be a historical exception. But this case is not going to answer that question.”

In a progressive state where freedom of speech often tests limits, the rulings open up sorts of possibilities for transit advertising.

So far, however, the messages and images have remained relatively tame.
 View full size

TriMet says this Family Guy ad would have probaby been rejected before a 2008 court ruling.

In 2009, United Food and Commercial Workers Local 1439 had no trouble taking its “Just Wrong” campaign against Fred Meyer’s alleged firing policies to the back of TriMet buses.

Fetsch could think of plenty of recent controversial ads that probably wouldn’t have gone up if TriMet had its way.

There was the one urging commuters to support last fall’s pro-casino Measure 75. Another promoted Mike’s Hard Lemonade. And there was the one showing Peter from the “Family Guy” sitting in his recliner, telling people, “Go green. Don’t drive. Sit on your butt.”

TriMet received complaints about all of those.

If a local strip club, adult bookstore or other sex-related business is interested in  covering a MAX train with an ad, TriMet says it feels compelled to allow it. But so far, the agency hasn't had to with such a request.  “Not yet,” Fetsch said.



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