ACLU Threatens to Sue City of Eugene

In an August 22, 2011 letter to Eugene’s city attorney, the American Civil Liberties Union of Oregon (“ACLU”) stated that it intends to sue the city if it does not suspend enforcement of the city’s sign code. The dispute stems from a controversial transit project that the Lane County Transit District has proposed for west Eugene. The city believes some signs that some property owners opposing the project have posted violate the sign code. The ACLU contends that the sign code is unconstitutional under both the Oregon and U.S. Constitutions. The ACLU asserts that the sign code restricts speech on the basis of its content and acts as a prior restraint on speech. A more detailed discussion of the issues, along with a copy of the ACLU’s letter, can be found here.

Sign codes are a proverbial thorn in the side of many cities and, by extension, city attorneys. Oregon’s Constitution – or at least the way the Oregon Supreme Court has interpreted its free expression provision – only makes this thorn larger and more painful. We will monitor the progress on this interesting sign dispute and update the blog in the weeks to come.

Court Rules Against Local Government in Free Speech Case

The Oregon Court of Appeals recently ruled against TriMet in a case concerning advertising on its buses and light rail cars.  TriMet provides public transportation in the Portland, Oregon metro area.  Consistent with previous decisions, this case makes it more difficult for local government to regulate expression in Oregon. In Karuk Tribe of California v. TriMet, __ Or App __ (March 16, 2011), TriMet denied the Tribe’s offer to pay for advertising space on the side of TriMet’s buses and light rail vehicles.  The proposed ad depicted three salmon swimming in a stream facing a wall of electrical sockets and said “Salmon should not be running up your electrical bill, [t]hey should run up the Klamath River.”  TriMet denied the ad based on its policy prohibiting any of its Property to become a public forum for discussion of political issues.  It essentially argued to the court that it was operating in a proprietary capacity when it denied the ad, and that it should be permitted to control the content of advertisements in that capacity.

The court rejected TriMet’s argument.  It relied on a long line of existing case law to rule that TriMet could not reject advertisements on the basis of their content.  As a side note, the decision could impact local governments’ ability to regulate content on social media pages they may create to communicate with constituents.  We expect the decision will be appealed and we will continue to watch the case closely.