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1 2 3 4 5 6 7 8 9 10 Plaintiff, 11 12 13 14 15 v. CENTRAL PUGET SOUND REGIONAL TRANSIT AUTHORITY, Defendant.

THE HONORABLE JOHN C. COUGHENOUR

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE WORKING WASHINGTON, CASE NO. C12-0566-JCC ORDER

This matter comes before the Court on Plaintiffs Motion for a Preliminary Injunction

16 (Dkt. No. 2). Having thoroughly considered the parties briefing and the relevant record, the 17 Court finds oral argument unnecessary and hereby denies the motion for the reasons explained 18 herein. 19 I. 20 BACKGROUND On or about February 3, 2012, Plaintiff Working Washington, a nonprofit advocacy

21 organization, contacted Defendant Central Puget Sound Regional Transit Authority (Sound 22 Transit) through an agent, Clear Channel, for the purpose of placing an advertisement on the 23 interior of light rail trains. (Dkt. No. 2 at 2.) Clear Channel generated a contract for the proposed 24 advertisement, and Working Washington executed the contract and paid for the advertisement by 25 March 7, 2012. (Dkt. No. 2 at 3.) 26 Sound Transits contract with Clear Channel calls for advertisements to be reviewed for

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1 compliance with Sound Transits advertising policy before they are placed in any Sound Transit 2 facility. (Dkt. No. 16 at 3.) On March 16, Working Washington provided a copy of the 3 advertisement (the Airport Ad) to Clear Channel. (Dkt. No. 2 at 4.) It contained the tagline 4 Lets Make All Airport Jobs Good Jobs and, according to Working Washingtons Complaint, 5 was intended to draw public attention to the problem of low wage jobs at Seattle-Tacoma 6 International Airport. (Dkt. No. 1 at 3.) Clear Channel flagged it for Sound Transits review, 7 assessing the advertisement as possibly inconsistent with the advertising policy. (Dkt. No. 14 at 8 7.) Sound Transit subsequently rejected the advertisement. Id. Working Washington filed this 9 lawsuit on April 4, 2012, alleging a violation of its First Amendment rights and seeking 10 declaratory and injunctive relief. Working Washington now moves for a preliminary injunction 11 compelling Sound Transit to run the Airport Ad. 12 II. 13 DISCUSSION A preliminary injunction is an extraordinary remedy never awarded as of right. Winter

14 v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). To obtain a preliminary injunction, a 15 plaintiff must plead and establish (1) a likelihood of success on the merits, (2) the likelihood of 16 irreparable harm in the absence of preliminary relief, (3) that the balance of hardship tips in favor 17 of an injunction, and (4) that an injunction is in the public interest. Id. Under the Ninth Circuits 18 sliding scale test, a plaintiff can satisfy the first and third elements by showing serious 19 questions going to the merits of the case and that the balance of hardships tips sharply in its 20 favor. See Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). 21 The principal function of a preliminary injunction is to preserve the status quo and

22 prevent irreparable loss before trial. See Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 23 1415, 1422 (9th Cir. 1984). Thus, it is not usually proper to grant the moving party the full relief 24 to which it might be entitled if successful at trial. Tanner Motor Livery, Ltd. v. Avis, Inc., 316 25 F.2d 804, 808-09 (9th Cir. 1963); see also LGS Architects, Inc. v. Concordia Homes of Nev., 434 26 F.3d 1150, 1158 (9th Cir.2006) ([The requested relief] will not further the purpose of a

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1 preliminary injunction, which is merely to preserve the relative positions of the parties until a 2 trial on the merits can be held.). It therefore stands to reason that mandatory injunctions, in 3 which the movant seeks to compel rather than prevent specific action, entail heightened 4 standards of proof and are particularly disfavored. See Marlyn Nutraceuticals, Inc. v. Mucos 5 Pharma GmBh & Co., 571 F.3d 873, 879 (9th Cir. 2009). In general, mandatory injunctions are 6 not granted unless extreme or very serious damage will result and are not issued in doubtful 7 cases. Id. 8 The instant motion is doubly disfavored. Working Washington does not merely seek to

9 preserve the status quo, but rather moves for a mandatory injunction compelling Sound Transit to 10 publish the Airport Ad. Moreover, granting the motion would amount to awarding full relief to 11 Working Washington, essentially mooting trial. The Court considers that these reasons alone 12 justify denying the motion, as Working Washington has made no showing that extreme or very 13 serious damage would result in the absence of preliminary relief. Nonetheless, the Court 14 proceeds to consider the motion under the four-factor test above. 15 16 A. Likelihood of Success

Assessing Working Washingtons First Amendment claim requires the Court to identify

17 the nature of the forum, because the extent to which the Government may limit access depends 18 on whether the forum is public or nonpublic. See Cornelius v. NAACP Legal Defense and Educ. 19 Fund, Inc., 473 U.S. 788, 797 (1985). If the forum is public, speech exclusions must be 20 necessary to serve a compelling state interest and the exclusion [must be] narrowly drawn to 21 achieve that interest. Id. at 800. If the forum is nonpublic, the government can restrict speech 22 as long as the restrictions are reasonable and [are] not an effort to suppress expression merely 23 because public officials oppose the speakers view. Id. 24 The Supreme Court, the Ninth Circuit, and this Court have found that public

25 transportation vehicles are either nonpublic or limited public forums for the purpose of 26 advertising. See Lehman v. City of Shaker Heights, 418 U.S. 298, 303 (1974); Children of the

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1 Rosary v. City of Phoenix, 154 F.3d 972, 978 (9th Cir. 1998); Seattle Mideast Awareness 2 Campaign v. King County, 771 F. Supp. 2d 1266, 12721273 (W.D. Wash. 2011). A limited 3 public forum is a type of nonpublic forum that the government intentionally has opened to 4 certain groups or to certain topics. DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ., 196 5 F.3d 958, 965 (9th Cir. 1999). Speech restrictions in limited public forums are subject to the 6 same standard as those in nonpublic forumsthey must be reasonable and viewpoint neutral. Id. 7 Here, the parties appear to agree that the advertising space on Sound Transits light rail

8 trains is a limited public forum. Although Working Washington argued in its opening brief that 9 Sound Transit had designated the space as a public forum, it abandoned that argument in its reply 10 brief. (Dkt. No. 20 at 3.) Regardless, in line with Lehman, Children of the Rosary, and Seattle 11 Mideast, this Court concludes that the advertising space in this instance constitutes a limited 12 public forum. Sound Transit has adopted a written advertising policy that permits commercial 13 and noncommercial advertisements, with specific exceptions for, inter alia, tobacco or alcohol 14 advertisements; sexual, illegal, or violent advertisements; or anything that could disrupt safe 15 and comfortable service on the commuter train. (Dkt. No. 16, Ex. D at 3.2-3.3.) This policy 16 shows a clear intent to prohibit speech on certain topics and to avoid controversy that could bear 17 the imprimatur of the government. Sound Transit also has submitted evidence that it has rejected 18 various advertisements that it deemed inconsistent with the policy. (Dkt. No. 16 at 3-4.) Thus, 19 Sound Transits policy and practice evince a limited public forum. 20 As such, speech restrictions will be upheld as long as they are reasonable and viewpoint

21 neutral. Working Washingtons briefing can be read to pose a facial challenge to the 22 reasonableness of the policy, in that it argues that the policy does not include objective standards 23 for the content of permitted speech. (Dkt. No. 20 at 4.) The Ninth Circuit has warned of the 24 potential for abuse when government officials exercise unbounded discretion or limit 25 expression based on inherently subjective criteria, and it has required that standards be reduced 26 to objective criteria set out in advance. Hopper v. City of Pasco, 241 F.3d 1067, 1079-80 (9th

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1 Cir. 2001). Here, Sound Transits advertising policy necessarily requires the exercise of some 2 discretion in assessing whether a proposed advertisement conforms to the policy. But that 3 discretion is not unboundedthe policy includes numerous categories with specific, detailed 4 descriptions of impermissible material. (See Dkt. No. 16-4 at 3-4.) Moreover, the fact that the 5 policy mentions controversial matters does not make it per se unreasonable. First, the policy 6 does not restrict advertising on controversial matters outright; it merely states Sound Transits 7 intention of maintaining a position of neutrality on controversial matters. Second, the policy 8 clarifies at length the kinds of advertisements that could be deemed controversial, including 9 those that include obscenity or nudity, disparaging statements, profanity, or adult-oriented 10 material. (Id.) The Court concludes that the policy provides sufficiently objective standards for 11 prospective advertisers. 12 The heart of Working Washingtons argument is that Sound Transits application of the

13 policy was unreasonable in this case, for two reasons. First, Working Washington contends that 14 the Airport Ad did not fall under any of the categories specifically restricted under the policy. 15 This argument is not persuasive. Paragraph 3.3(a) of the policy states Sound Transits general 16 policy of restricting advertising that would undermine its position of neutrality on political, 17 religious and controversial matters. (Dkt. No. 16-4 at 2.) Paragraph 3.3(b) then enumerates 18 specific categories of advertisements deemed unacceptable. Here, Working Washington admits 19 that the Airport Ad is political speech. (Dkt. No. 2 at 16.) Regardless of whether the Airport Ad 20 fell within the narrow definition of Political in Paragraph 3.3(b), Sound Transit could 21 reasonably reject the Ad under Paragraph 3.3(a) on the ground that it would undermine Sound 22 Transits position of neutrality on a political matterlabor conditions at SeaTac Airport. 23 The Court is also unconvinced by Working Washingtons second argument, which is that

24 Sound Transit failed to apply its policy consistently. Working Washington points to two previous 25 advertisements which Sound Transit accepted and ran, and which are purportedly at odds with its 26 rejection of the Airport Ad. The firstan advertisement by the Vitae Foundation regarding

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1 unplanned pregnanciesis easily disposed of, in that Sound Transit accepted it prior to the 2 adoption of the current policy. (See Dkt. No. 14 at 3.) The standards for reviewing 3 advertisements at that time differed materially from those contained in the current policy. The 4 second was one of Working Washingtons own advertisements, which stated, Our Bridges Need 5 Work. So Do We, and bore the tagline Stand Up For Good Jobs. (Dkt. No. 2 at 4-5.) The 6 acceptance of this advertisement, which, like the Airport Ad, called attention to the need for 7 well-paying jobs, undercuts the notion that Sound Transit has targeted Working Washingtons 8 particular views on the subject. Moreover, Sound Transit could reasonably conclude that an 9 advertisement stating a general need for infrastructure work did not violate its policy, whereas an 10 advertisement regarding the more sensitive issue of labor conditions at the very airport to which 11 light rail passengers were traveling did violate its policy. 12 For these reasons, Plaintiff has not shown that it is likely to prevail on the merits of its

13 First Amendment claim. 14 15 B. Other Factors

Working Washingtons arguments as to the remaining factors derive from the assumption

16 that Sound Transit violated its right to free speech. (See Dkt. No. 2 at 15-17.) Indeed, Working 17 Washington does not allege any harm, monetary or otherwise, aside from the alleged denial of 18 First Amendment rights. Because the Court has concluded that Working Washington has not 19 shown a likelihood of success on the First Amendment claim, it similarly concludes that 20 Working Washington has failed to show that irreparable harm will likely result from Sound 21 Transits rejection of the advertisement. This is all the more the case given the numerous other 22 advertising venues available for the Airport Ad. Nor, absent a likelihood of success on the 23 merits, can the Court conclude that the balance of hardships tips sharply in Working 24 Washingtons favor or that the public interest favors its position. 25 III. 26 CONCLUSION In light of the foregoing and the fact that mandatory injunctions are particularly

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1 disfavored, the Court concludes that Working Washington has failed to establish that a 2 preliminary injunction is warranted here. Plaintiffs motion for a preliminary injunction (Dkt. 3 No. 2) is therefore DENIED. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DATED this 29th day of June 2012.

John C. Coughenour UNITED STATES DISTRICT JUDGE

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