PORTLAND, Ore. (CN) — The Port of Portland violated the First Amendment when it barred an environmental group’s ad at the Portland airport: “Welcome to Oregon – Home of the Clearcut,” the Oregon Court of Appeals ruled this week.
Oregon Wild sought a lease on advertising space at the Portland International Airport in 2013, for an ad bearing the “welcome” words over a large swath of forest mountaintops denuded of trees.
The Port refused, calling it a “political advertisement,” restricted by the Port’s rules.
Oregon Wild sued, and a Multnomah County judge found that the Port did not meet its “heavy burden” to show the rejection of the ad fell within a historical exception. In December 2013 it ordered the port to accept the ad.
The Port appealed, saying: “We believe that if the Port were to accept and post political and religious advertising in the PDX terminal, the public might conclude that the Port endorses the messages being advertised. This is a particularly troublesome problem in the case of religious advertising, because the Port, as a governmental entity, must maintain the separation of church and state.”
Oregon Wild replied that the case was moot because it did not keep running the ad, so there was no continuing controversy. Rejecting that argument, the Court of Appeals accepted the case for review.
The Port argued that it acted in dual capacities as a governmental and proprietary entity, and the advertising policy for the airport was an administrative policy that did not implicate free speech.
The Court of Appeals rejected that argument on Wednesday.
“Nothing in the reasoning in the cases cited by the Port — which predominantly concern the Legislature’s ability to exercise control over a local government or the ability of a local government to partake of the state’s sovereign immunity — naturally extends to the context of governmental interference with free expression,” Judge Rebecca Duncan wrote for the appeals court.
“The Port has not explained to us why the framers would have intended to give local governments greater latitude to restrict speech while acting in a proprietary capacity.”
Thomas Christ, who represented Oregon Wild, said the ruling reaffirms the Oregon Constitution’s prohibition of content restrictions.
“The government doesn’t have to allow private speech on property it owns; it doesn’t have to turn the property into a public forum for private messages and advertising,” Christ said in an interview. “But if it does, it has to take all comers. It can’t pick and choose who gets to speak there, based on the content of their message.”
The 12 judges on the Court of Appeal affirmed the Multnomah County Court ruling, and dismissed the cross-appeal as moot.
Appeals Judge Rex Armstrong wrote a concurrence in which he stated that he believes major ruling cited in the affirmation, (Karuk Tribe of California v. TriMet, 241 Or App 537, 251 P3d 773 (2011), aff’d by an equally divided court, 355 Or 239, 323 P3d 947 (2014)), was “wrongly decided,” but that it is the Supreme Court, not the Court of Appeals, “that will have to correct the error.” So he concurred citing stare decisis.
Matthew Kalmanson, who represented the Port of Portland on appeal, did not immediately respond to an emailed request for comment.
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