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TriMet loses case over its ad rejection

June 04, 2008, The Oregonian Staff

An Oregon judge has ruled that TriMet's rejection of a bus ad criticizing dams on the Klamath River violated constitutional free speech protections.

Judge Henry C. Breithaupt ruled that TriMet doesn't have to accept ads on public transportation. But if the Portland-area mass transit agency does so, the Oregon and federal constitutions prohibit refusing ads based on their content.

TriMet rejected the ad, proposed by Friends of the River and the Karuk Tribe of California, because it was a political ad.

TriMet policy allows only commercial ads and public service announcements.

" 'Advertisement,' as used in this policy, means a communication that promotes or offers goods or services. The definition of advertisement notwithstanding, TriMet may, in its discretion, accept 'public service announcements' as defined herein," according to the policy.

In court papers, TriMet officials argued that they did not want public transportation to become a "public forum for the dissemination, debate and/or discussion of public issues."

But by allowing nonpolitical public service announcements, Breithaupt ruled, TriMet discriminated based on content.

"That action was not viewpoint neutral and was therefore invalid under the First Amendment," he wrote.

TriMet officials said they are considering an appeal.

The ACLU hailed the decision.

"This is an important victory for free speech in Oregon," said David Fidanque, executive director of the ACLU of Oregon.