                    FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 AMALGAMATED TRANSIT UNION                       No. 17-35955
 LOCAL 1015,
               Plaintiff-Appellee,                 D.C. No.
                                                2:17-cv-00053-
                     v.                              JLQ

 SPOKANE TRANSIT AUTHORITY,                        OPINION
             Defendant-Appellant.

        Appeal from the United States District Court
            for the Eastern District of Washington
      Justin L. Quackenbush, District Judge, Presiding

            Argued and Submitted March 5, 2019
                    Seattle, Washington

                          Filed July 2, 2019

  Before: Ronald M. Gould and Richard A. Paez, Circuit
     Judges, and Dean D. Pregerson, * District Judge.

                    Opinion by Judge Paez




     *
       The Honorable Dean D. Pregerson, United States District Judge
for the Central District of California, sitting by designation.
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                          SUMMARY **


                        First Amendment

    The panel affirmed the district court’s judgment in favor
of a union in a case involving the union’s challenge to the
Spokane Transit Authority (“STA”)’s decision, under its
advertising policy, not to run a proposed advertisement from
the union on STA’s buses.

    The panel affirmed the district court’s holding that the
STA unreasonably rejected the proposed ad in violation of
the union’s First Amendment rights. The panel declined to
accept the First and Sixth Circuit’s approaches of giving
deference to a transit agency’s application of its advertising
policy. The panel held that the STA’s bus advertising
program was classified as a “limited public forum” which
allowed content-based restrictions as long as they were
reasonable and viewpoint neutral.

    The panel applied the three-part test for a limited public
forum to review STA’s decision to exclude the union’s ad
under “public issue” advertising. First, the panel held that
the policy was reasonable in light of the forum because
STA’s concern with engaging in matters of public debate
was related to the purpose of running an efficient and
profitable transit system. Second, the panel held that STA’s
standard lacked objective criteria to provide guideposts for
determining what constituted prohibited “public issue”

    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
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advertising. Third, the panel held that, based on an
independent review of the record, STA’s application of its
“public issue” advertising ban to exclude the union’s
proposed ad was unreasonable.

    Finally, the panel held that because the union’s ad
promoted an organization that engaged in commercial
activity, STA unreasonably applied its “commercial and
promotional advertising” policy to reject the union’s ad.


                       COUNSEL

James Andrew McPhee (argued) and John T. Drake,
Witherspoon Brajcich McPhee PLLC, Spokane,
Washington, for Defendant-Appellant.

Michael Persoon (argued), Despres Schwartz & Geoghegan
Ltd., Chicago, Illinois, for Plaintiff-Appellee.


                        OPINION

PAEZ, Circuit Judge:

    This case concerns a First Amendment challenge by the
Amalgamated Transit Union Local 1015 (“ATU”) to the
Spokane Transit Authority (“STA”)’s decision, under its
advertising policy, not to run a proposed advertisement from
the union on STA’s buses. After a court trial, the district
court held that STA unreasonably rejected the proposed ad
in violation of ATU’s First Amendment rights, enjoined
STA from rejecting ATU’s ad and awarded attorneys’ fees
to ATU. On appeal, STA argues that we should follow the
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First and Sixth Circuits, and afford transit agencies a degree
of deference in the application of their advertising policies.

    We reject STA’s argument because we have consistently
held that we must independently review the record, without
deference to the assessment made by transit officials, to
determine whether a transit agency reasonably applied its
advertising policy. See Am. Freedom Def. Initiative v. King
Cty. (AFDI II), 904 F.3d 1126, 1134 (9th Cir. 2018); Seattle
Mideast Awareness Campaign v. King Cty. (SeaMAC),
781 F.3d 489, 500–01 (9th Cir. 2015). Applying the
appropriate limited public forum test from these recent
transit agency cases, we affirm the district court’s
judgment. 1

                                  I.

    ATU is a 501(c)(5)-registered nonprofit union that
represents all transit operators, maintenance, clerical and
customer service employees at STA in Spokane,
Washington. Since at least 2008, all STA buses have carried
stickers on the inside displaying ATU’s logo and stating,
“This vehicle is operated and maintained by union members
Amalgamated Transit Union AFL CIO/CLC.” In exchange
for dues charged to its members, ATU provides collective
bargaining services, contract enforcement and assistance in


    1
      STA appealed both the district court’s permanent injunction and
award of attorneys’ fees to ATU, but has raised arguments challenging
only the district court’s judgment. STA does not otherwise contest the
injunction or attorneys’ fees. Accordingly, because we affirm the
judgment, we affirm the district court’s orders as to the permanent
injunction and award of attorneys’ fees. See Harper v. City of L.A.,
533 F.3d 1010, 1015 n.2 (9th Cir. 2008).
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organizing new members. It also engages in advertising to
promote ATU and reach new workers to help organize.

   STA provides public transportation in the Spokane,
Washington region. It runs an advertising program to
generate non-tax revenue. Under its former Vehicle and
Facilities Advertising Policy, STA confronted complaints
and operational disruptions during several episodes
involving controversial bus ads. For instance, in 2009, the
United Food and Commercial Workers (“UFCW”) Local
1439 ran attack ads against two local grocery chains,
Albertsons and Fred Meyer. In response, STA received
complaints from customers about these ads. And one driver
expressed concern that STA was sending conflicting
messages by running anti-Fred Meyer ads while still serving
bus stops near Fred Meyer locations.

    In 2011, the Coalition of Reason ran an ad on STA buses
stating, “Are you good without God? Millions Are.” STA
received more complaints than normal, both before and after
the ad appeared on STA buses. The media attention and
public response negatively affected operations by creating
negative perceptions, prompting statements from people
about no longer using STA’s service and generating unease
amongst STA’s bus operators and customer service
representatives.

    Concerned about funding and the potential impact of
customer unhappiness on bus operators, STA’s board
adopted the current Commercial Advertising Policy (“Ad
Policy”) in late 2012, placing more limits on advertising
content than under its prior policy.

   The Ad Policy permits advertising space for only two
types of ads, “commercial and promotional advertising” and
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“public service announcements.”          “Commercial and
promotional advertising” is defined as advertising that:

       [P]romotes or solicits the sale, rental,
       distribution or availability of goods, services,
       food, entertainment, events, programs,
       transaction [sic], donations, products or
       property for commercial purposes or more
       generally promotes an entity that engages in
       such activity.

For both “commercial and promotional advertising” and
“public service announcements,” the Ad Policy prohibits
certain categories of content. Most relevant here, the Ad
Policy prohibits “public issue” advertising, defined as
advertising “expressing or advocating an opinion, position,
or viewpoint on matters of public debate about economic,
political, religious or social issues.”

    When ATU sought to place its ad, Ooh! Media LLC was
STA’s advertising contractor. Ooh! Media made the initial
determination of whether a proposed ad complied with the
Ad Policy. If it was unable to make a determination, then
the decision was referred to the Director of
Communications. STA’s Chief Executive Officer (“CEO”),
however, had the final word on advertising content. STA’s
board has not issued any guidance on how the “public issue”
prohibition should be interpreted, but STA’s CEO interprets
“public issue” to constitute “subjects on buses that would
create a negative impression of the organization that would
be hard on [its] employees and hard on the organization.”

    Shortly after the Ad Policy was adopted, the Seventh
Day Adventist Church of Spokane proposed a series of ads
for STA buses stating, “Jesus Cares About Your Future,”
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“You Matter to Jesus,” and “Jesus Head of Lost and Found.”
Ooh! Media rejected the proposed ads, prompting a letter
and public records request from the church’s advertising
agent for an explanation of the rejection. STA and the
church then worked together on creating an ad that STA
determined complied with the Ad Policy. The revised ads
stated, “YOU MATTER TO SOMEONE,” “SOMEONE
CARES ABOUT YOUR FUTURE,” and “WE CARE
ABOUT YOU.” A separate ad depicted only the church’s
website. STA considered these ads to be “public service
announcements” that did not take a position on a “public
issue.”

     In the summer of 2016, after approval from the
contractor Ooh! Media, UFCW Local 1439 ran a series of
ads on STA buses. These ads stated, “GET UNITED!” along
with other messages such as “Get the wages, healthcare, and
safe working conditions you deserve, for a happier home
life,” “Stand up & have a voice in your workplace . . . for
better wages, healthcare, and a happier home life!” and
“Union workers banding together have better healthcare,
wages, working conditions, & a happier home life.” The ads
were meant to promote services that UFCW Local 1439
provides to workers. STA never received a complaint about
these ads. Upon seeing them, however, STA’s CEO had the
UFCW Local 1439 ads removed because she interpreted
them to constitute “public issue” advertising.

    In August 2016, ATU’s President and Business Agent,
Thomas Leighty, contacted Ooh! Media about running bus
ads to promote ATU and urge others to organize. Leighty
was inspired by the UFCW Local 1439 ads, although he
learned upon contacting UFCW Local 1439 that its ads had
been taken down and that UFCW Local 1439 was no longer
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allowed to advertise. Nonetheless, Leighty emailed Ooh!
Media, who responded by sending a copy of STA’s Ad
Policy. Leighty proposed that ATU could run its ad under
“commercial and promotional advertising.” Ooh! Media
responded that ATU’s proposed ads were solicitations to join
a union, and therefore neither had a commercial purpose nor
promoted an entity that engages in commercial activity.

    As a result of this exchange, ATU sent STA a letter,
conveying its concern that the Ad Policy excluded unions
and was not legal. Hoping to resolve any misunderstandings
that it was anti-union, STA officials met with ATU
representatives and asked the union to submit an ad copy to
Ooh! Media with the goal of creating an ad with acceptable
content, as had been arranged with the Seventh Day
Adventist Church of Spokane.

   Following the meeting, ATU submitted a proposed ad to
Ooh! Media that stated, “Do you drive: Uber? Lyft? Charter
Bus? School Bus? You have the Right to Organize! Contact
ATU 1015 Today at 509-395-2955.”              The ad also
                                   2
prominently featured ATU’s logo. In October 2016, Ooh!
Media informed ATU that they were ready to move forward
with the ad and offered a pricing rate. Later that same day,
Ooh! Media reached out to explain they were delayed in
securing final approval from STA.

    About a month later, ATU inquired of STA about the
delay in reviewing its proposed ad, to which STA responded
that it had terminated its contract with Ooh! Media and was
no longer accepting new ads until it chose a new advertising
vendor through a public proposal process. STA explained it

    2
        A copy of the proposed ad is displayed in the attached Appendix.
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terminated the contract based on Ooh! Media’s repeated
errors in applying the Ad Policy to proposed ads.

    Following this rejection, ATU filed a lawsuit against
STA in district court, alleging violations of its rights under
the First and Fourteenth Amendments. ATU alleged that
STA committed viewpoint discrimination by prohibiting
only labor organizations from placing ads that promote the
availability of their services and from making public service
announcements. It also alleged that the content restriction
was unreasonable as applied to ATU’s ad.

    After the district court denied STA’s motion to dismiss,
the parties stipulated to an expedited court trial. At trial,
three witnesses testified to the facts recounted above:
Leighty, ATU’s President; Elizabeth Susan Meyer, STA’s
CEO; and Steve Blaska, STA’s Director of Operations.

    After the trial, the district court reached the following
conclusions: First, it rejected STA’s argument that the court
should give deference to STA in applying its Ad Policy.
Second, the court found that STA did not engage in
viewpoint discrimination. Third, it concluded that ATU’s
proposed ad did not constitute “public issue” advertising
prohibited by the Ad Policy and that STA’s determination to
the contrary was an unreasonable application of the Ad
Policy. Finally, the court concluded that ATU’s proposed ad
qualified as “commercial and promotional advertising” as
defined in the policy and, therefore, STA’s determination to
the contrary was an unreasonable application of the Ad
Policy. Given these rulings, the district court concluded that
STA violated ATU’s First Amendment rights by rejecting
the proposed ad. The court did not address whether ATU’s
proposed ad could run as a public service announcement.
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    After issuing its findings of fact and conclusions of law,
the district court entered a permanent injunction, enjoining
STA, if it resumes its advertising program, from rejecting
ATU’s proposed ad, subject to reasonable and appropriate
artistic modifications. 3 The district court also granted
ATU’s petition for attorneys’ fees under 42 U.S.C. § 1988.
STA timely appealed.

                                   II.

    We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review questions of law de novo and findings of fact for clear
error. See Am. Beverage Ass’n v. City & Cty. of S.F.,
916 F.3d 749, 754 (9th Cir. 2019) (en banc).

                                  III.

    STA raises three issues with the district court’s
judgment. First, STA argues that the district court should
have extended a level of deference to STA’s application of
its advertising policy as the First and Sixth Circuits have
done in similar circumstances. See Am. Freedom Def.
Initiative v. Mass. Bay Transp. Auth., 781 F.3d 571, 587–88
(1st Cir. 2015); Am. Freedom Def. Initiative v. Suburban
Mobility Auth. for Reg’l Transp., 698 F.3d 885, 893–94 (6th
Cir. 2012). Second, STA argues that—even without
deference—its decision to reject ATU’s ad as “public issue”
advertising was reasonable because the ad could reasonably
be interpreted as a foray into the public debate between labor

     3
      Under the terms of the injunction, STA is not required to accept or
run the ATU ad while its advertising program is suspended, and the
injunction remains in effect as long as STA maintains its Ad Policy in its
current form. Nothing in the district court’s order prohibits STA from
revising its advertising policies.
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unions and opposition groups, and might provoke responses
from the “right to work” movement. Lastly, STA argues that
it reasonably concluded that ATU’s ad did not qualify as
“commercial and promotional advertising” because the ad’s
goal was to advise workers of their right to organize into a
labor union, and that this was too attenuated from the
promotion of commercial transactions.

    We address each argument in turn and reject all three.

                                 A.

    The First Amendment inquiry begins with identifying
the type of forum under review, either “traditional public
forums, designated public forums, [or] limited public
forums.” SeaMAC, 781 F.3d at 496. “In traditional and
designated public forums, content-based restrictions on
speech are prohibited, unless they satisfy strict scrutiny.” Id.
“In limited public forums, content-based restrictions are
permissible, as long as they are reasonable and viewpoint
neutral.” Id.

    The parties agree that we classify STA’s bus advertising
program as a “limited public forum.” 4 See id. at 495–99
(holding that a metro bus advertising program was a limited
public forum); see also Am. Freedom Def. Initiative v. King
Cty. (AFDI I), 796 F.3d 1165, 1168–70 (9th Cir. 2015)




    4
     “Limited public forums” have also been referred to as “nonpublic
forums” interchangeably. AFDI I, 796 F.3d at 1169 n.1.
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(applying SeaMAC to conclude the same for King County
Metro’s bus advertising program). 5

    Because STA’s advertising program constitutes a limited
public forum, its rejection of ATU’s proposed ad “must be
reasonable and viewpoint neutral.” AFDI I, 796 F.3d
at 1170. There are three components of the reasonableness
requirement: (1) “whether [the policy] standard is reasonable
‘in light of the purpose served by the forum’”; (2) whether
“the standard [is] ‘sufficiently definite and objective to
prevent arbitrary or discriminatory enforcement by [the
government] officials’”; (3) and “whether an independent
review of the record supports [the agency]’s conclusion” that
the ad is prohibited by the agency’s policy. Id. at 1170–71
(quoting SeaMAC, 781 F.3d at 499–500).


     5
      We acknowledge there is a circuit split over this classification. See
Am. Freedom Def. Initiative v. King County, Wash., 136 S. Ct. 1022,
1024–25 (2016) (Thomas, J., joined by Alito, J., dissenting from denial
of certiorari) (describing how the Second, Sixth, Seventh and D.C.
Circuits classify transit advertising as a designated public forum while
the First and Ninth Circuits give transit authorities more leeway to limit
speech by classifying such advertising as a limited public forum). The
holding in SeaMAC was adopted over a vigorous dissent, which argued
that because of the history and continuing practice in King County of
accepting controversial ads, the advertising program should be classified
as a designated public forum. See 781 F.3d at 504–08 (Christen, J.,
dissenting). Even if we were not limited by SeaMAC, STA’s bus
advertising program would still qualify as a limited public forum. The
circumstances surrounding the adoption of STA’s Ad Policy in 2012
evince STA’s intent to limit any potential negative impact on advertising
revenues and avoid association with certain viewpoints on the ads. See
Children of the Rosary v. City of Phoenix, 154 F.3d 972, 976 (9th Cir.
1998) (describing how “a review of the city’s standards and practices
indicates that the city has not opened a public forum”).
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    STA’s argument relies on a misreading of the third prong
of this test. STA argues that we should afford its rejection
of ATU’s ad a degree of deference to be consistent with the
general reasonableness standard applied to speech
restrictions in limited public forums. STA’s argument,
however, is squarely foreclosed by our precedent. 6 See
AFDI II, 904 F.3d at 1134; AFDI I, 796 F.3d at 1171;
SeaMAC, 781 F.3d at 500–01.

    In SeaMAC, King County Metro rejected an anti-Israel
ad as prohibited material that would foreseeably result in
disruption of the transportation system or incite a response
that would threaten public safety. 781 F.3d at 493–95. We
held that “[w]e must independently review the record,
without deference to the threat assessment made by County
officials, to determine whether it ‘show[s] that the asserted
risks were real.’” Id. at 500–01 (second alteration in
original) (quoting Sammartano v. First Judicial Dist. Court,
303 F.3d 959, 967 (9th Cir. 2002), abrogated on other
grounds by Winter v. Nat. Res. Def. Council, Inc., 555 U.S.
7, 22 (2008)). In other words, we must independently review
the record to determine whether it supports the reason for

    6
       Moreover, the cases cited by STA discuss deference in analyzing
the reasonableness of the policy behind the exclusion (the first prong)
and not the reasonableness of the application of the policy (the third
prong). See Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S.
672, 683–85 (1992) (considering whether it was reasonable to ban
solicitation from airport terminals); Cornelius v. NAACP Legal Def. &
Educ. Fund, Inc., 473 U.S. 788, 808–09 (1985) (same for limiting federal
charity program to health and welfare charities); Lehman v. City of
Shaker Heights, 418 U.S. 298, 303–04 (1974) (same for bus advertising
exclusion of political ads); Children of the Rosary, 154 F.3d at 978–79
(same for city limiting bus advertising to commercial advertising). Thus,
those cases are inapplicable to the as-applied challenge that ATU brings
here.
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applying the speech limitation. In SeaMAC, we reviewed the
record and agreed “that the threat of disruption . . . was real
rather than speculative,” and we proceeded to uphold the
County’s rejection of the ad. Id. at 501.

    We applied the same test in AFDI I. There, King County
Metro rejected an ad showing faces of suspected terrorists
on the basis that Metro’s contained factual inaccuracies and
so fell within its prohibition of “false or misleading” ads.
796 F.3d at 1168. On interlocutory appeal, we undertook
“independent review of the record” and held that the third
prong was satisfied because the two prominent statements in
the proposed ad were indisputably false. Id. at 1171.

    When the case returned to us after summary judgment,
King County Metro had rejected a revised version of the
plaintiff’s ad for different reasons from those in the first
appeal. AFDI II, 904 F.3d at 1129–30. We rejected Metro’s
call for substantial deference and reversed after independent
review of its decision. Id. at 1134. Metro had rejected the
proposed ad as “harmful or disruptive” to the transit system. 7
Id. at 1133. We reasoned that while the disruption clause
was facially valid in light of the forum’s purpose and had a
sufficiently definite and objective standard, Metro’s
rejection was not supported by the record. Id. at 1133–34.
Although Metro’s analysis “ha[d] some foundation,”
including an expert’s report describing the invidious nature
of similar ads, we ultimately concluded that “Metro’s
rejection of Plaintiffs’ revised ad on the ground of disruption

     7
      Metro had also rejected the ad under its “disparagement” clause
but we held that this constituted impermissible viewpoint discrimination
under the Supreme Court’s recent decision in Matal v. Tam, 137 S. Ct.
1744, 1751 (2017). AFDI II, 904 F.3d at 1131–33.
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to the transit system was unreasonable.” Id. at 1134. We
relied on the fact that Metro had run an ad similar to the one
at issue, and the earlier ad had not caused Metro’s transit
system to experience any harm, disruption or interference,
disproving Metro’s concerns about the rejected ad. Id.
“Applying the disruption standard without deference to
Metro’s assessment,” we concluded that Metro acted
unreasonably. Id. (emphasis added).

    STA provides no compelling reason to stray from this
precedent. 8 Without intervening higher authority that is
irreconcilable with SeaMAC and our transit agency cases, we
must follow circuit precedent. See Miller v. Gammie,
335 F.3d 889, 892–93 (9th Cir. 2003) (en banc). Thus, we
decline to adopt the First and Sixth Circuit approaches of




    8
       Independent review here would also be consistent with our practice
when reviewing the reasonableness of government speech limitations in
other limited public forums.             See, e.g., Eagle Point Educ.
Ass’n/SOBC/OEA v. Jackson Cty. Sch. Dist. No. 9, 880 F.3d 1097, 1105–
06 (9th Cir. 2018) (rejecting school district’s justification that picketing
ban was necessary because “there was no evidence that the policies were
actually needed to prevent disruption”); Brown v. Cal. Dep’t of Transp.,
321 F.3d 1217, 1222–23 (9th Cir. 2003) (noting that CalTrans’s
proffered reasons for allowing flags, but not any other banners, to be
displayed on highway overpasses was “patently unreasonable,” in part
because the agency “offer[ed] no credible evidence for its supposition
that flags are less distracting than other types of banners”); Sammartano,
303 F.3d at 967–68 (finding “lack of support in the present record” to
justify exclusion of articles of clothing with certain biker or gang
symbols because there was no evidence of any disturbances or
“tend[ancy] to incite problems in the courthouse” from the wearing of
such clothing).
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giving deference to a transit agency’s application of its
advertising policy.

                                    B.

    We next apply the three-part test to review STA’s
decision to exclude ATU’s ad under “public issue”
advertising. 9 At trial, STA’s CEO characterized this policy
as a prohibition on ads that would generate “public interest
around issues about which there could be an economic,
social or political debate.”

                                    i.

    First, the exclusion of “public issue” advertising must be
reasonable in light of the forum. AFDI I, 796 F.3d at 1170.
“This requirement focuses on whether the exclusion is
consistent with ‘limiting [the] forum to activities compatible
with the intended purpose of the property.’” SeaMAC,
781 F.3d at 499 (alteration in original) (quoting Perry Educ.
Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 49
(1983)).      “The advertising standards need only be
reasonable; they need not be the most reasonable or the only
reasonable limitation.” Children of the Rosary, 154 F.3d
at 978–79 (internal quotation marks and alteration omitted).

     9
       The district court construed ATU’s challenge as an as-applied one,
so it analyzed only the third part of the test—reasonableness of the
application of the policy. ATU has not made clear whether it has
abandoned its facial challenge. During oral argument, ATU argued that
it did not matter whether this is a facial or as-applied challenge, because
“words are only given meaning through their interpretation and
application.” ATU then expressed skepticism toward this “broad
policy.” Out of an abundance of caution, we address all three parts of
the limited public forum test.
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    At the outset, STA identified five interests behind the Ad
Policy: maximization of revenues by advertising;
maintenance of an orderly administration and operation of
the Spokane transportation system, which includes
maximizing revenues through passenger patronage; safety of
passengers; protection of minors who travel in the system;
and avoidance of any potential identification of STA with
the viewpoints expressed in the advertisements. Similar to
the motives behind the restrictions in prior transit agency
cases, STA adopted its “public issue” advertising ban out of
concern of losing ridership and revenue, as well as service
disruptions and the negative association of STA with
controversial subjects. See SeaMAC, 781 F.3d at 500
(upholding ban on “[a]ny speech that will foreseeably result
in harm to, disruption of, or interference with the
transportation system” since that is “compatible with the
intended purpose of the property,” the buses (quotation
omitted)); Children of the Rosary, 154 F.3d at 979 (noting
that “[t]he city’s interests in protecting revenue and
maintaining neutrality on political and religious issues are
especially strong”); see also Lehman, 418 U.S. at 303–04
(upholding ban on political advertising inside buses after
noting that the advertising space “is a part of the commercial
venture” in providing transportation services and that “a city
transit system has discretion to develop and make reasonable
choices concerning the type of advertising that may be
displayed in its vehicles”).

    Because STA’s concern with engaging in matters of
public debate is related to the purpose of running an efficient
and profitable transit system, we conclude the policy is
reasonable in light of the forum.
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                             ii.

    We next ask whether the “public issue” standard is
sufficiently definite and objective to prevent arbitrary or
discriminatory enforcement. AFDI I, 796 F.3d at 1170.
“Absent objective standards, government officials may use
their discretion to interpret the policy as a pretext for
censorship.” Hopper v. City of Pasco, 241 F.3d 1067, 1077
(9th Cir. 2001). Thus far, we have approved policies
limiting advertising to commercial advertising, see Children
of the Rosary, 154 F.3d at 982–83, excluding content likely
to cause disruption, see SeaMAC, 781 F.3d at 500, and
excluding false or misleading information, see AFDI I,
796 F.3d at 1170–71. We have yet to address a “public
issue” policy like the one before us.

    Because ATU does not challenge the trial court’s
conclusion that STA’s policy is definite and objective, we
need not address this prong in depth. We are skeptical,
however, that STA’s “public issue” standard would survive
a facial challenge.

    Beyond the definition in the Ad Policy, STA provides no
written guidance on how to assess whether an ad might
express or advocate “an opinion, position, or viewpoint on
matters of public debate about economic, political, religious
or social issues.” STA’s CEO is the final arbitrator on what
constitutes “public issue” advertising, but her standard
seems entirely driven by what she believes would reflect
badly on STA. As the district court pointed out, “[t]o the
extent that STA’s position suggests the prohibition applies
to any advertisement touching on any issue having any level
of public debate, such an interpretation is unreasonable”
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given that “[f]or most every good or service, there is some
level of debate.” 10

      On the one hand, a transit agency could construe the right
to organize as a statement of fact. See 29 U.S.C. § 157
(“Employees shall have the right to self-organization, to
form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing
. . . and shall also have the right to refrain from any or all
such activities.”). On the other hand, STA insists that such
an ad might prompt a response from the “right to work”
movement and would thus cause “highly emotional debate.”
STA’s broadly phrased policy provides no guidance as to
how to discern between the two interpretations.

    For that reason, STA’s “public issue” standard is unlike
the standard we addressed in SeaMAC, which excluded
speech that was “so objectionable under contemporary
community standards as to be reasonably foreseeable that it
will result in harm to, disruption of, or interference with the
transportation system.” 781 F.3d at 500. Even though the
“objectionable” prong, standing alone, “would be too vague
and subjective to be constitutionally applied,” we

    10
        For instance, under STA’s broad prohibition of “public issue”
advertising, there is no principled way of discerning whether or not STA
would accept or reject ads about potentially controversial topics, such as
Nike’s sponsorship of Colin Kaepernick, see Kevin Draper & Ken
Belson, Colin Kaepernick’s Nike Campaign Keeps N.F.L. Anthem
Kneeling in Spotlight, N.Y. Times (Sept. 3, 2018),
https://www.nytimes.com/2018/09/03/sports/kaepernick-nike.html, or
businesses associated with the President, see Matthew Reisen, UNM
Draws Fire Over Ad for Trump Hotels, Albuquerque Journal (Feb. 2,
2019), https://www.abqjournal.com/1276266/unm-draws-fire-over-ad-
for-trump-hotels.html.
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determined that the impact on the transit system provided a
sufficiently “definite and objective benchmark against
which to judge the ‘disruption’ assessments made by County
officials.” Id. Conversely, STA’s standard lacks objective
criteria to provide guideposts for determining what
constitutes prohibited “public issue” advertising.

                              iii.

    All parties agree that the case turns on the third prong of
the test. We agree with the district court that, based on an
independent review of the record, STA’s application of its
“public issue” advertising ban to exclude ATU’s proposed
ad is unreasonable. See AFDI II, 904 F.3d at 1134.

    STA characterizes any ad referencing “collective
bargaining, worker organization and worker representation”
as “a matter of public debate” because of the debate between
the right to organize and right to work. At trial, STA’s CEO
expressed concerns that the right to organize includes worker
representation and collective bargaining, which constitute
economic, social and political issues. She testified that
accepting the ATU ad could reflect badly on STA because
“[a]ny time there is a conflict or a public debate on
something, about something that has been on our buses, it
has the potential to impact the community’s perception of
us.” Lastly, STA asserts that if it were to accept ATU’s ad,
it would be required to accept any inflammatory anti-
organizing ad from an anti-union organization.

    STA points to its history with union attack ads against
local employers to justify its apprehension with ATU’s ad.
Other aspects of the record, however, disprove STA’s
concerns. For instance, STA buses have, since 2008, carried
stickers on the inside displaying ATU’s logo and stating,
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“This vehicle is operated and maintained by union members
Amalgamated Transit Union AFL CIO/CLC.” These
stickers never elicited a complaint. Moreover, during the
time that STA ran the UFCW Local 1439 “Get United!” ads
in 2016, STA never received a complaint about them either.
ATU’s proposed “You Have the Right to Organize!” ad
conveys a similar message as UFCW Local 1439’s “Get
United!” ad, and they are both distinguishable from the
perceived hostile attack ads against Fred Meyer and
Albertsons. Yet, STA’s CEO feared that riders would still
perceive STA as wading into a public issue that reflected
badly on the transit agency.

    As was the situation in AFDI II, “we have an unusual
opportunity to test [the agency]’s hypothesis,” 904 F.3d at
1134, about the potential negative consequences from
running a union promotional ad because STA ran such an ad
before rejecting ATU’s. The record does not suggest that
ATU’s “You Have the Right to Organize!” ad would cause
conflict or debate to the detriment of STA because neither
the ATU stickers nor the UFCW Local 1439 “Get United!”
ads prompted any complaints. See id.; see also Lehman,
418 U.S. at 303 (holding that “the policies and practices
governing access to the transit system’s advertising space
must not be arbitrary, capricious, or invidious”).

   Because STA’s rejection of ATU’s ad as “public issue”
advertising is not supported by the record, we affirm the
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district court’s conclusion that it was unreasonable for STA
to apply that policy to reject ATU’s ad. 11

                                 C.

   Lastly, we must decide whether STA properly rejected
ATU’s proposed ad because it did not qualify as
“commercial and promotional advertising.” 12

    The first two prongs of the three-part test are easily met.
We already have held that a ban on noncommercial
advertising from a bus advertising program “is reasonable in
light of the interests asserted” by the government agency.
See Children of the Rosary, 154 F.3d at 979 (noting that
“[t]he city’s interest in protecting revenue and maintaining
neutrality on political and religious issues are especially
strong”). We also have no trouble concluding that STA’s
standard is sufficiently definite and objective. In Children
of the Rosary, we dismissed assertions that the commercial
advertising standard is overbroad, under-inclusive, or vague.
Id. at 982–83.

    The parties contest the third prong: whether STA
properly applied the policy to exclude ATU’s proposed ad.
STA relies on Children of the Rosary, in which we upheld
the exclusion of a civil rights organization and anti-abortion
organization’s ads because they did not only propose a

     11
      Because we affirm the district court on this ground, we do not
address ATU’s alternative argument that STA’s rejection of its ad was
motivated by viewpoint discrimination.
     12
      The parties agree that ATU could not run a public service
announcement as it is neither a registered 501(c)(3) entity nor a
government entity.
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commercial transaction and hence failed the test for
commercial speech. Id. at 982. According to STA, ATU’s
ad also does not qualify as commercial advertising because
it does not promote commercial products or services but,
rather, promotes the cause of organizing amongst workers.
STA points to testimony that ATU provides its services
without the express goal of collecting members’ fees and
does not charge a fee for any of its services in navigating the
process of forming a labor union.

    STA’s argument, however, overlooks the difference
between the scope of “commercial and promotional
advertising” in the Ad Policy compared to the commercial
advertising policy in Children of the Rosary. There, the city
explicitly adopted the Supreme Court’s standard for
identifying commercial speech, limiting bus advertisements
to those that only propose a legitimate commercial
transaction. Id. at 975, 983 & n.4. But STA did not adopt
such a policy. STA’s definition of “commercial and
promotional advertising” is broader, allowing for advertising
that “more generally promotes an entity that engages in such
[commercial] activity.” It need not strictly propose a
commercial transaction. Thus, STA’s rationale for rejecting
ATU’s ad is belied by the breadth of its own policy.

    As the district court pointed out, STA recognizes that
ATU engages in interstate commerce, and ATU’s activities
are ultimately geared toward changing the labor and
commercial markets to the benefit of its members. STA
relies heavily on the fact that ATU does not collect fees
while helping workers organize or may never collect fees if
the organizing effort fails. By that logic, however, STA’s
policy would also exclude ads from entities which would
otherwise likely be considered “commercial and
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promotional advertising,” such as: law firms who provide
legal services for contingency fees; social media platforms
that do not charge fees to users but generate profit from
widening their user base; and business leagues, real estate
boards, and other 501(c)(6)-registered organizations that
have a commercial purpose.

    Because ATU’s ad promotes an organization that
engages in commercial activity, STA unreasonably applied
its “commercial and promotional advertising” policy to
reject ATU’s ad.

                            IV.

    We have designated a transit agency’s advertising
program to be limited public forums because we recognize
the legitimate concerns with transportation services and
safety. This does not mean, however, that courts should
abdicate their role in protecting the First Amendment rights
of those seeking access to that advertising space. Because
neither of STA’s reasons for rejecting ATU’s proposed ad is
supported by an independent review of the record, we affirm
the district court’s judgment that STA violated ATU’s First
Amendment rights, as well as the permanent injunction and
award of attorneys’ fees to ATU.

     AFFIRMED.
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              APPENDIX
