State board concedes it violated free speech rights of red-light camera critic
I have been writing in opposition to traffic cameras for a few years now (you can find all of my articles and posts on traffic cameras here). They are consistently controversial and violative of basic rights as described in the article below.
A state panel violated a Beaverton man’s free speech rights by claiming he had unlawfully used the title “engineer” and by fining him when he repeatedly challenged Oregon’s traffic-signal timing before local media and policymakers, Oregon’s attorney general has ruled.
Oregon’s Board of Examiners for Engineering and Land Surveying unconstitutionally applied state law governing engineering practice to Mats Järlström when he exercised his free speech about traffic lights and described himself as an engineer since he was doing so “in a noncommercial” setting and not soliciting professional business, the state Department of Justice has conceded.
“We have admitted to violating Mr. Järlström’s rights,” said Christina L. Beatty-Walters, senior assistant attorney general, in federal court Monday.
The state’s regulation of Järlström under engineering practice law “was not narrowly tailored to any compelling state interests,” she wrote in court papers.
In April, Järlström joined with the national Institute for Justice in filing a federal civil rights lawsuit against members of the state engineering board. The suit contends state law and the board’s actions that disallow anyone from using the word “engineer” if they’re not an Oregon-licensed professional engineer amount to an “unconstitutional ban on mathematical debate.”
Järlström and his lawyers argued that’s not good enough.
They contend Järlström isn’t alone in getting snared by the state board’s aggressive and “overbroad” interpretation of state law.
They contend others have been investigated improperly and want the court to look broader at the state law and its administrative rules and declare them unconstitutional. In the alternative, the state law should be restricted to only regulating engineering communications that are made as part of paid employment or a contractual agreement.
“The existence of these laws and the way they’ve been applied time and time again has violated free speech rights,” argued attorney Samuel Gedge, of the national Institute for Justice. “Past history suggests the board can’t be trusted on how the laws should be applied constitutionally.”
Jarlstrom has a bachelor of science degree in engineering and has repeatedly challenged the state’s timing of yellow traffic lights as too short. The state board had fined him $500 for “unlicensed practice of engineering.” Järlström identified himself as an engineer in emails he sent to city officials and the Washington County sheriff challenging the traffic light signal timing.
Järlström’s interest in the matter stemmed from a red-light-running ticket that his wife received in the mail in 2013. Since then, Järlström has conducted his own studies, presented his findings to local media and “60 Minutes” and even to the annual meeting last summer of the Institute of Transportation Engineers.
Another case cited in Järlström’s lawsuit, for example, is the state board investigation of Portland City Commissioner Dan Saltzman, launched after receiving a complaint in 2014 that the Voters’ Pamphlet described Saltzman’s background as an “environmental engineer.” Saltzman earned a bachelor of science degree in environmental and civil engineering from Cornell University and a master’s degree from MIT School of Civil Engineering.
He isn’t, however, an Oregon-licensed professional engineer. The board ended up warning Saltzman against using the word “engineer” in incorrect ways.
On Monday, U.S. Magistrate Judge Stacie F. Beckerman presented the state’s lawyer with several hypothetical scenarios, attempting to understand what constitutes professional or commercial speech: What if someone had paid Järlström to present his points, would that be commercial speech regulated by the state board? What if someone had hired Järlström pro bono to do research on the traffic light timing and present his findings, would that constitute professional speech?
If the court and the state’s lawyer are having trouble properly defining what constitutes “commercial or professional” speech on engineering that the state board can regulate, “how can we expect the board to apply these rules in a constitutional way?” Beckerman asked.
The judge pressed further: “If the board got it wrong in this case, why should the court defer to the board going forward?”
That’s why the state engineering board would have to exercise caution with each case, Beatty-Walters replied.
Järlström’s lawyer argued that the state essentially is trying to close Järlström’s case without allowing him to seek the relief he wants.
“The board’s proposed judgment goes nowhere close to what Mr. Järlström is seeking,” Gedge said. “Mr. Järlström should have the right to present his case for all of the relief he’s seeking.”
The judge said she will issue her findings in two to three weeks.
Both sides can then challenge the findings, and the matter would be referred to U.S. District Judge Anna J. Brown, who would decide whether to adopt the magistrate judge’s decision.
By: Maxine Bernstein and published on Oregon Live on December 4, 2017 and can be seen here.