SEATTLE (CN) - A labor group barred from highlighting the problem of low-paying airport jobs on Washington trains urged the 9th Circuit to issue an injunction.
Working Washington paid to have Sound Transit light rail trains run their ad on working conditions at Seattle-Tacoma International Airport. The ad's tagline reads, "Let's Make All Airport Jobs Good Jobs," and features a skycap who has worked at the airport for 31 years and makes only minimum wage.
The agency refused to run the advertisement, saying it did not allow "political type ads."
In an April 2012 federal complaint, Working Washington claimed that Sound Transit's rejection of the ad amounted to a violation of its free-speech rights.
The nonprofit labor coalition asked for a mandatory injunction, but U.S. District Judge John Coughenour shot it down after finding that "no showing that extreme or very serious damage would result in the absence of preliminary relief."
Working Washington argued before a three-judge appellate panel last week that it is "suffering irreparable harm" by having its speech censored.
American Civil Liberties Union attorney La Rond Baker told the panel on behalf of Working Washington that Sound Transit presented "no evidence other than bald assertions" that the ad would cause any problems.
Case precedent allows a transit agency to exclude controversial speech, but the 9th Circuit has found that terms like "controversial" are too subjective without further guidance for administrators, Baker argued.
Judge David Ebel asked if a "reasonable argument" could be made that the ad's speech is controversial.
Baker replied that "almost anything" could be construed as controversial.
"Someone who loves the Mariners and says, 'Go Mariners,' that speech could be deemed controversial by someone who does not agree with that," the attorney said. "That's the problem with using these broad definitions that are subjective. What is controversial to one person may not be controversial to another."
Ebel asked why the labor group doesn't just wait for the issues to play out during a trial instead of seeking a mandatory injunction.
Baker said that Working Washington's speech had been silenced and censored for too long already.
Sound Transit, represented by Paul Lawrence, meanwhile argued that it has the right to restrict advertising because its light rail cars are "non-public forums."
Judge William Fletcher said it was "bothersome" that there was so much discretion in Sound Transit's advertisement policy. He asked Lawrence why the agency ran Working Washington's other ads that basically said "stand up for good paying jobs," but took offense with this particular a.
Lawrence said that the rejected ad was part of a "campaign to advocate for a particular result," which was to make the Port of Seattle change its wage policy.
He said that there will always be some discretion within Sound Transit's advertisement policy, but the panel should decide it amounts to "reasonable discretion."
The case is currently stayed pending the appeal of the injunction denial.
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