Free Speech and Salmon

By Phil Hayworth

Pioneer Press

Fort Jones , CA

Wednesday, June 11, 2008

page #E6, column  2

pioneerp@sisqtel.net

One of the most liberal cities - nay, most liberal municipal transportation entities - in the country in January refused to allow the Karuk Tribe and other proponents of dam removal along the upper Klamath River to advertise on its buses.

The Tribe was so ticked off that they, along with the ACLU of Oregon, filed suit against Portland 's Tri-County Metropolitan Transportation District of Oregon, alleging the public bus company violated federal and state constitutional free speech protections in its rejection of an advertisement it deems "political."

But last week, Judge Henry C. Breithaupt ruled that, if TriMet accepts ads, the Oregon and federal constitutions prohibit refusing any ads based on their content.

The Karuk ad depicts three salmon facing a wall of electrical sockets, along with the caption, "Salmon shouldn't run up your electric bill. They should run up the Klamath River ." The ad then directs the public to a website - www.salmonforsavings.com - for more information.

While most folks here in the State of Jefferson don't agree with the Tribe's assertion that the dams along the Klamath River - Iron Gate, Copco I and II and J.C. Boyle - contribute to higher energy costs, the ad was directed at Portland's typically ultra-liberal citizens.

Portland-based newspapers have consistently argued that farmers and ranchers here in the Klamath Basin and along the Klamath River are getting by with much cheaper energy prices - or subsidies, if you will.  

Meanwhile, TriMet argued the whole advertising concept was too controversial. That came as quite a shock to supporters of the ad.

"They claim the right to refuse for just about any reason they want, but their policy is that they don't want to become a public forum for the dissemination, debate and or discussion of public issues," said ACLU attorney David Fidanque.

In other words, sleazy jeans ads or even those pitching fast food are OK. Anything that has any true substance isn't, TriMet argued.

But Judge Breithaupt agreed with Fidanque, ruling that governments - and TriMet is a government entity - can't discriminate against free speech based on content. Fidangue agrees, however, that racist diatribes and other such screed are generally off limits and that any sane company would argue against it.

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," according to media reports out of Portland .

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.

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