Petition for Writ of Certiorari — Children of the Rosary v. City of Phoenix

Supreme Court brief1999

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Text

No.

OFFICE OF THE CieRK

In the

Supreme Court of the United States

OCTOBER TERM, 1998

CHILDREN OF THE ROSARY, KATHERINE A. SABELKO,

AND ARIZONA CIVIL LIBERTIES UNION.

Petitioners.

THE CITY OF PHOENIX. ef ai.

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

PAUL BENDER

Counsel for Arizona Civil

JAY ALAN SEKULOW

Counsel of Record

Liberties Union

JAMES WEINSTEIN

COLLEGE OF LAW

ARIZONA STATE UNIVERSITY

Armstrong Hall, Box 877

Tempe, AZ 85287-7906

(602) 965-6181

Attorneys for Arizona Civil

Liberties Union

JAMES M. HENDERSON, SR.

WALTER M. WEBER

AMERICAN CENTER FOR LAW

AND JUSTICE

1000 Thos. Jefferson Street.

Suite 609

Washington, DC 20007

(202) 337-2273

J B

BENJAMIN W. BULL

THE AMERICAN CENTER FOR

LAW AND JUSTICE

7819 E. Greenway Road, # 6

Scottsdale, AZ 85260-1719

(602) 596-0821

Children of the

and Katherine

Attorneys for

Rosary

Sabelko

QUESTIONS PRESENTED

After a rule prohibiting religious messages in its transit

display spaces was declared unconstitutional, the City of

Phoenix amended its regulation to limit all messages that

would be accepted for display to those that propose a

commercial transaction. Two nonprofit organizations

(Petitioners) sought to display messages and were refused. The

Ninth Circuit concluded that the display spaces were nonpublic

fora and that the regulation was viewpoint neutral, reasonable,

and constitutionally applied to exclude Petitioners. The

following questions are presented:

1. Does the intention to prohibit religious and political speech

invalidate a content-based regulation of speech?

Is it constitutional for a City to limit access to its transit

display spaces to only messages proposing a commercial

transaction, thereby excluding political and religious

messages from the forum?

3. Does the judgment in Lehman y. City of Shaker Heights,

418 U.S. 298 (1976), pretermit the public forum status of

transit display spaces on the exterior of city-owned buses?

4. Has the Lehman plurality, over time and in light of the

subsequent development of the public forum doctrine,

proven to be inconsistent with that doctrine and with proper

constitutional constraints on municipal regulation of transit

display spaces?

(1)

RULE 14.1(b) STATEMENT

In addition to the parties listed in the caption, the following

additional parties are Respondents here and were Appellees in

the court below:

Richard C. Thomas, in his official capacity as Public

Transit Director for the City of Phoenix; Neal Manske,

in his official capacity as Deputy Director, Phoenix

Transit Department; ATC/VANCOM Management

Services, Inc.; and, Transportation Displays,

Incorporated.

RULE 29.6 STATEMENT

C ildren of the Rosary has neither a parent company nor

any wholly owned subsidianes. The Anzona Civil Liberties

Union, an affiliate of the American Civil Liberties Union, is a

separately incorporated organization, and has neither a parent

company nor any wholly owned subsidiaries.

TABLE OF CONTENTS

Page

I in OE a a

CI eee il

ELSES REE I ll

ESSE op li ay rey ok Sa V1

ERO I ee a

Jurisdictional Statement .............. NESEOES HOD Penge l

Constitutional Provisions and Municipal Regulations

rk eS Oe l

SI RE he ee. 2

el I aiid odo dbe cg eae cnce a

ey, ME OE MG ii voce be cnccuce.e 4

1. The District Court Decision ................. .4

2. The Court of Appeals Decision ................ 6

REASONS FOR GRANTING THE PETITION ......... 9

1. THE QUESTIONS PRESENTED ARE IMPORTANT

NEE NEN os os eco eek bse vc co sek )

A. The Inversion of the Relative Constitutional

Values of Commercial and Noncommercial

Expression Presents an Important and

Substantial Federal Question .................. Q

TABLE OF CONTENTS-~—cont ‘d

Page

B. The City’s Purposeful Exclusion of Protected

Religious And Political Expression Presents an

Important And Substantial Federal Question . 1]

C. The Ninth Circuit’s Reliance on The Plurality

Opinion Accompanying This Court’s Decision

in Lehman vy. City of Shaker Heights Presents an

Important And Substantial Federal Question ..... 13

THE DECISION OF THE NINTH CIRCUIT

CONFLICTS WITH THE DECISIONS OF OTHER

Bei Ss gp. Se er MR area rears 14

A. The Decision Below Conflicts With A Decision

of the District of Columbia Circuit ............ 14

B. The Decision Below Conflicts With A Decision

Cae ee ee a hare ee dS a lon 18

C. The Decision Below Conflicts With Decisions

of the District of Columbia and Second Circuits

DOP eA Ne ar A ae, AE OM trees hee 2]

BE ERD 5 SIAN Ie ON Os al ea eR Re ai ub ae Reg 24

(iv)

Table of Contents—cont’d

Page

Appendices

A. Opinion, Children of the Rosary v. Cit of f

No. 97-16821 (9th Cir. 1998)

-~hoenix.

B. Memorandum of Decision and Order, Children of

the Rosary v. City of Phoenix. No. 97-138

PHX-SMM (D. Ariz. 1997) . .

Order denying rehearing and rejecting suggestion

of rehearing en banc, Children of the Rosary v

City of Phoenix, No. 97-16821 (9th Cir. 1998) 75

D. Constitutional Provisions and Municipal Regulations

mivoived in the Case... ..-.. ree cae

(Vv)

TABLE OF AUTHORITIES

/ f ige(s )

Cases

AIDS Action Committee v. MBTA, 42 F.3d 1

(1st Cir. 1994)

dirline Pilots Ass'n Intl vy. Dept. of Aviation,

45 F.3d 1144 (7th Cir. 1994) ......... Ny ee

Children of the Rosary v. City of Phoenix, 154 F.3d 972

te Le Aa ae pa Wee Reale a aah oe

Christ's Bride Ministries, Inc. v. SEPTA, 148 F.3d 242

SE ri CR er oe ee 14, 23-24

Church of the Lukumi Babalu Aye v. City of Hialeah,

i BOP AY GL | eg oP ener eran cop 12

Lamb's Chapel vy. Center Moriches Union Free School

District, SG8 U.S. 364 (E993) . cee ccna acme be b

Lebron v. WMATA, 749 F.2d 893

Seg RMS ROA CSS Cay Ge ko eis e keene hee 13, 22-23

LOO ¥. BSCAAN, Dee U0. GSO CLFGZ) 0 cece eeean 17-18

Lehman vy. City of Shaker Heights,

A Sic SST IED. ea heck tiene thea 1, 6, 13-15

Metro Display Advertising v. City of Victorville, 43 F.3d

Ce Cae SE thy a 4 ts oe cw ee eee eee 14

Metromedia, Inc. v. San Diego, 453 U.S. 490

PEER «is Gah ves LEN GLGb MaRS pe Sees 10-11, 17

(v1)

TABLE OF AUTHORITIES—cont’d

Page 4S)

Cases —cont 'd

Multimedia Publishing Co. y. Greenville-Spartanburg

Airport District, 991 F.2d 154 (4th Cir. 1993) ..__. 17

New York Magazine vy. MTA,

ioe eae had (20 Ge. I99G)... ss... Teie ) Soe os

Planned Parenthood Ass'n y. Chicago Transit Authority.

OT Ee tant ree On, IES) 65 A es 13

linker v. Des Moines Indep. School District, 393 U.S. 503

CRE ieee REN ET a ee eee 1]

U.S. Southwest Africa/Namibia Trade & Cultural Council

v. United States, 708 F.2d 760

APN SR ee ey et oi ge 11, 15-17

United Food and Commercial Workers Union v. SORTA.

Mas 2 ee cen Gee. $908) et Ne

Valentine v. Chrestensen, 316 U.S. 52 (gS 3 SR Se ace ae 6

Virginia Pharmacy Board y. Virginia Citizens Consumer

Council, 425 U.S. 750 (1976) ....... ype gee 6, 2]

Wirta v. Alameda-Contra Costa Transit District.

68 Cal.2d 51, 64 Cal. Rptr. 430, 434 P.2d 982 (Cal.

TABLE OF AUTHORITIES—cont'd

Page 4S)

Constitutional Provisions, Statutes, Municipal

Regulations, and Rules

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(vill)

DECISIONS BELOW

The decision of the United States Court of Appeals for the

Ninth Circuit is reported as Children of the Rosary v. City of

Phoenix, 154 F.3d 972 (9th Cir. 1998). App.la.’ The order

denying rehearing and rejecting the Suggestion of a rehearing

en banc is unpublished. App. 75a. The decision of the district

court is unpublished. App. 28a.

JURISDICTIONAL STATEMENT

The United States Court of Appeals for the Ninth Circuit

entered judgment on August 28, 1998. The Court of Appeals

denied the petition for rehearing and a suggestion of arehearing

en banc on December 7, 1998. This Court has jurisdiction

under Title 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS

AND MUNICIPAL REGULATIONS

INVOLVED IN THE CASE

The following constitutional provisions and municipal

regulations, which are involved in the case, are set out in the

Appendix to the Petition:

U.S. Const. Art. I, App. 77a; U.S. Const. amend. XIV,

sec. 1, App. 77a; the City of Phoenix Advertising

Standards [original], App. 78a; the City of Phoenix

Advertising Standards [amended], App. 80a.

1. References to the Appendix to the Petition are indicated as

“App. hes gs

(1)

STATEMENT OF THE CASE

A. Statement of Facts

The City of Phoenix makes display spaces available on the

exterior of its public buses. In a pnor suit, the Children of the

Rosary (“C.O.R.”) and Katherine Sabelko (‘“Sabelko’’)

successfully challenged a regulation’ banning the display of

messages with religious content in those transit display spaces.

See Children of the Rosary, et al. v. City of Phoenix, et al.,

Civil Action No. 95-2161-PHX-RGS (D. Ariz. Oct. 22, 1996).°

The Children of the Rosary and Sabelko had sought to place

two messages in the transit display spaces. Both messages

displayed the corporate name and logo of C.O.R. One message

stated, ““Before I formed you in the womb, I knew you. —

God’ Jeremiah 1:5 CHOOSE LIFE!” The other message

stated, “*‘ All they asked was that we should continue to help the

poor.’ Galatians 2:10.” Having obtained injunctive relief, the

Children of the Rosary displayed its messages, for a brief time,

in the City’s transit display spaces.

After entry of judgment against it, the City amended the

standards governing the messages acceptable for placement in

its transit display spaces.* “In its Answer, the City of Phoenix

admitted the facial ban on non-commercial speech is aimed at

excluding ‘political’ and ‘religious’ speech from advertisement

on City owned buses.” App. at 30a. Under the amended

“

The former regulation is included in the Appendix to the

Petition at 78a.

3. No appeal was taken by the City of Phoenix or other

defendants from the entry of judgment in that case.

4. The amended regulation is included in the Appendix to the

Petition at 80a.

standards, the only messages eligible for display are those

messages proposing a commercial transaction. After that. the

City refused to display C.O.R.’s messages.

The Children of the Rosary changed the content of their

message, adding an invitation to purchase bumper stickers from

C.O.R.° The proposed message included the corporate logo

and name, along with the following message: - “Before |]

formed you in the womb, I knew you.’ - God Jeremiah 1:5

Purchase this message as a bumpersticker for your vehicle!

Contact 602-848-8031 CHOOSE LIFE!” C.O.R. submitted its

proposal on about November 15, 1996.

The City rejected C.O.R.’s proposed message because the

new message did not comply with the amended standards. The

City has persisted in its refusal to display the messages

submitted by C.O.R.

The Arizona Civil Liberties Union (“AzCLU”) also

submitted a written request to display a message for one month

in one of the City’s transit display spaces. The proposed

message stated, “‘The ACLU Supports Free Speech for

Everyone’ To Purchase this bumper sticker please call 602-

650-1967.” The City rejected AzCLU’s proposed message,

explaining, “The transportation department has determined that

your ad does not qualify under the advertising guidelines

enacted November 1, 1996... .”

After the amendment of the City’s policy, the display

spaces included messages:

5. The sale of bumper stickers has long been a significant

source of income for C.O.R. See Children of the Rosary et al. v

City of Phoenix, et al., No. 97-138-PHX-SMM. Third Declaration of

Katherine A. Sabelko in support of Plaintiffs’ Motion for

Preliminary Injunction, ¥§ 3-8 (D. Ariz.).

> suggesting the advisability of population reduction from an

organization called “Zero Population Growth”;

>» from the Anzona Department of Corrections about career

opportunities with that agency;

> soliciting donations to the Special Olympics of Arizona;

» from the American Cancer Society encouraging women to

obtain mammograms;

>» advertising a popular television series, “The X Files”;

>» promoting the Phoenix Zoo and the Phoenix Art Museum;

>» promoting the movies “Absolute Power,” and

“Gndlock’d”’; and,

>» promoting the radio talk shows of conservative raconteurs

G. Gordon Liddy, Michael Reagan, and Oliver North.

App. 66a-73a.

B. Course of Proceedings

1. The District Court Decision

On January 23, 1997, the Petitioners filed this action in the

United States District Court for the District of Arizona.

Petitioners sued under 42 U.S.C. § 1983, alleging violation of

their federal constitutional mghts by the City’s selective

rejection of their proposed messages. Jurisdiction over this

matter in the district court rested on 28 U.S.C. §§ 1331 and

1343.

The district court denied Petitioners’ motion for a

preliminary injunction.

The district court found that Petitioners had satisfactorily

shown irreparable injury. App. 29a. The court did not

doubt that First Amendment nghts were implicated by the

City’s decision to limit access to its transit display spaces based

upon the content of messages proposed to be displayed in them

App. 30a.

The court disagreed with the Petitioners’ argument that the

transit display spaces were limited public fora. App. 32a-36a.

The court reviewed the amended regulation under the standard

for restrictions in nonpublic fora. App. 36a-38a.

The court held that the regulation limiting displays to

messages that propose a commercial transaction was

reasonable. App. 39a-42a. The court identified three

justifications for the amended regulation: maintenance of

perceived political and religious neutrality; fear that display of

political and religious messages might subject buses,

passengers and drivers to possible physical harm resulting from

vandalism, terrorism, sabotage, or mob violence; and, fear that

such uses of its transit display spaces would decrease their

financial value by discouraging commercial entities from

promulgating their messages through the same medium. App.

39a-40a.

The court found that the regulation, although content-based.

was viewpoint neutral. App. 44a. In the court’s view, Phoenix

did “not disallow [C.O.R.’s] proposed advertisements because

they approach an issue from a Christian perspective. Rather.

the Policy disallows all political and religious speech because

they do not ‘propose a commercial transaction.’” App. 47a-

48a.

The court rejected Petitioners’ vagueness, overbreadth, and

Establishment Clause arguments. App. 49a-51a, 5la-55a, 57a.

As to Petitioners’ “as applied” challenge, the court decided

that the Petitioners had “purposefully attempted to blur the

distinction between commercial and non-commercial speech.”

App. 63a-64a. In the court’s view, the City’s policy effectively

limited the category of message that could be displayed to

‘“commercial price and product advertising.” App. 66a

(quoting Virginia Pharmacy Board v. Virginia Citizens’

Consumer Council, 425 U.S. 750, 779-80 (1976)). The court

did “no[t] doubt that the message[s}” of Petitioners were

“ideological communication{s]’ in their most basic sense.”

App. 66a (quoting Virginia Pharmacy Board, 425 U.S. at 779-

80). The court noted particularly its view that Valentine v.

Chrestensen, 316 U.S. 52 (1942), controlled the disposition of

this issue. App. 64a-65a.

Finally, the court considered the other advertisements

appearing in the transit display spaces following the

amendment of the City’s regulation. App. 65a-73a. The court

concluded that those messages either were within the terms of

the amended regulation or were carried only because of pre-

existing contractual arrangements. /d.

2. The Court of Appeals Decision

The Court of Appeals affirmed in an opinion by Associate

Justice White (retired). App. la. Circuit Judge Noonan

dissented from the judgment. App. 23a. A petition for

rehearing was denied and a suggestion for rehearing en banc

was rejected. App. 75a.

The appeals court concluded that the display spaces were

nonpublic fora. App. 6a-lla. The appeals court relied on

Lehman vy. City of Shaker Heights, 418 U.S. 298 (1976), as

persuasive, if not controlling, authonty. App. 7a-10a. The

appeals court found that Justice Douglas’s captive audience

concerns were not limited to those who, because they rode the

buses, were compelled to view messages not of their own

choosing. App. 7a-8a. The appeals court persuaded that,

because Lehman predated the current formulation of the public

forum doctrine, 1t was not a sound basis for decision of the

appeal. App. 8a-9a.

The appeals court next considered whether allowing only

messages proposing a commercial transaction was reasonable

and viewpoint neutral. App. 11la-20a. The court concluded

view that the justifications proffered by the City established

the reasonableness of the amended regulation. App. 12a-13a.

The appeals court found no constitutional fault in the City’s

admitted purpose to exclude political and religious expression:

The city certainly intended to reject political and

religious speakers. But motive is not dispositive when

there is no indication that the city is implementing the

standard in a viewpoint discriminatory manner that

reflects an intent to use the policy to exclude disfavored

perspectives on the issues.

App. 14a-15a.

The appeals court also affirmed the district court’s

judgment that Petitioners had failed to demonstrate any

likelihood of success on their “as applied” challenge. App

| 7a-20a. The court found that the ideologic component of the

Petitioners’ proposed messages overwhelmed any commercial

App. 17a.

component thereof.

The appeals court also affirmed the district court’s rejection

of the Petitioners’ vagueness, overbreadth and under-

inclusiveness arguments. App. 20a-22a.

Dissenting, Judge Noonan concluded that the messages

offered by the Children of the Rosary and the Arizona Civil

Liberties Union proposed commercial transactions. App. 25a

The record, he concluded, amply demonstrated that C.O.R. sold

bumper stickers prior to the amendment of the City’s

Of greater moment, Judge Noonan considered it

“something of an anomaly in First Amendment jurisprudence

for more protection to be accorded commercial speech than_is

accorded noncommercial speech.” App. 25a.

Here, the message of a group acknowledging the

sacredness of human life in the womb is rejected;

Planned Parenthood could run an ad for an abortion

clinic. The views clash; the city of Phoenix would

give space to one and not the other. Analogously, if

Arizona should come to permit physician-assisted

suicide as does Oregon, Dr. Kevorkian could advertise

his services on the sides of the buses of Phoenix, but

the counter advice of advocates offering free counseling

against this course would be forbidden. ... A power

company could extol its product. The Sierra Club,

objecting to more dams, would be denied the forum.

The makers of a pesticide could celebrate their wares;

champions of pesticide- free farms would be barred. A

developer could tout the quality of his homes;

defenders of green space in the suburbs would have to

be silent on the buses. The pornographer could

advertise his shop; the defenders of neighborhood

decency would be denied a reply. /n the America of

1998 to give the commercial advertiser space, without

reference to the product being pushed, is for a city to

take sides more than occasionally on issues of life and

health and energy and the ecosystem.

App. 25a-26a (emphasis added)

Judge Noonan found the City’s justifications unreasonable

Indeed, he concluded, “the avoidance of violence against the

buses seems to border on the absurd; nothing in the record

substantiates the fear.” App. 27a. Of the other rationales.

Judge Noonan concluded that neutrality on politics and religion

and maintenance of standards attractive to business advertisers

could be served by greater precision in identification of the

kinds and contents of messages allowed. App. 27a.

REASONS FOR GRANTING THE PETITION

I. THE QUESTIONS PRESENTED ARE IMPORTANT

AND SUBSTANTIAL.

A. The Inversion of the Relative Constitutional Values of

Commercial and Noncommercial Expression Presents

an Important and Substantial Federal Question.

The City of Phoenix operates a public transit system.

Although it was not required to do so, it chose to create transit

display spaces on the exterior of its system buses. In managing

the transit display spaces, the City of Phoenix has always

objected to the presentation of political and religious messages

thereon and prohibited such messages from being displayed

A prior regulation banning political and religious messages

resulted in the entry of summary judgment against the City of

Phoenix in an earlier lawsuit brought by two of the present

Petitioners. Children of the Rosary, et al. v. City of Phoenix, et

al., Civil Action No. 95-2161-PHX-RGS (D. Ariz. Oct. 22.

1996).

Stymied in its exclusion of political and religious speech

from the transit display spaces by federal judicial interdiction,

the City amended its regulation. The amendment excluded all

messages from the transit display spaces except those that

propose a commercial transaction. Thereafter, C.O.R. and

AzCLU tried to place messages that described products

available for sale from the organizations. The City refused to

place either message. The City’s decisions were approved by

the district court and the Ninth Circuit.

The plurality opinion in Metromedia, Inc. v. San Diego, 453

U.S. 490, 513 (1981), correctly stated that this Court’s

“commercial speech cases have consistently accorded

noncommercial speech a greater degree of protection than

commercial speech.” The plurality found impermissible the

City of San Diego’s decision to “invert this judgment, by

affording a greater degree of protection to commercial speech

than to noncommercial speech.” 453 U.S. at 513. The plurality

opinion in Metromedia, which accorded to core expression the

highest order of consideration and protection, reflects the

purpose, history, and tradition of the nght to freedom of

speech.

The Metromedia plurality found deeply troubling the

vaunting of commercial expression over core speech. For

example, the plurality noted the failure of the City to “explain

how or why noncommercial billboards located in places where

commercial billboards are permitted would be more threatening

to safe dnving or would detract more from the beauty of the

city.” Jd.° Ultimately, in the view of the plurality, the

Constitution simply could not permit the City’s approach:

‘‘{i]nsofar as the city tolerates billboards at all, it cannot choose

to limit their content to commercial messages; the city may

not conclude that the communication of commercial

information . . . is of greater value than the communication of

6. In this respect, the dissent below murors the plurality in

Metromedia, Inc. Judge Noonan, for example, found quite

implausible the City of Phoenix’s asserted fear that allowing

religious or political messages in the transit display spaces would

result in the danger of physical attacks on buses, drivers or

passengers. 154 F.3d at 985 (claimed fear of violence “against the

buses seems to border on the absurd”).

noncommercial messages.” Jd.

The City of Phoenix, to the contrary, took this exac'

approach and the Ninth Circuit has approved the constitutional

inversion wrought in the amended regulation. This Court

should grant the Petition so that it may address the substantial

federal question presented by the constitutional inversion

embodied in the decision of the Ninth Circuit.

B. The City’s Purposeful Exclusion of Protected Religious

And Political Expression Presents an Important And

Substantial Federal Question.

The City of Phoenix elevated commercial expression over

the position formerly enjoyed by core religious and political

expression. The reason that the City did so is its admitted

purpose to exclude political and religious expression from its

transit display spaces. The amended policy reflects the City’s

“undifferentiated fear or apprehension of disturbance,” Tinker

v. Des Moines Indep. School District, 393 U.S. 503. 508

(1969), to the transit system. This purpose to exclude political

and religious expression, which animated both the former and

The Ninth Circuit’s decision below notwithstanding, other

Circuits have adopted and applied the premises of the plurality in

Metromedia. See, e.g., New York Magazine v. MTA, 136 F.3d 123.

131-32 (2d Cir. 1998) (“[w]hile we accord somewhat lowered

scrutiny to government restrictions on the right to propose

commercial transactions, . . . protecting the right to express skeptical

attitudes toward the government ranks among the First

Amendment’s most important functions”) (citations omitted): U.S

Southwest Africa/Namibia Trade & Cultural Council v. United

States, 708 F.2d 760, 770 (D.C. Cir. 1983) (“the government’ s

approval of paid commercial, but not political, advertisements

reverses the normal preference in our jurisprudence for

noncommercial speech’) (citations omitted)

the present regulations of the City of Phoenix, handily passed

the constitutional scrutiny mustered against it in the Ninth

Circuit’s decision. As a result, the City of Phoenix, along with

other government actors, state and federal, is advised that it is

no longer inappropnate to disfavor core constitutional

expression.

This Court has confronted and rejected just that sort of bias

underlying government actions disfavoring religious and

political expression. See, e.g., Lamb’s Chapel v. Center

Moriches Union Free School District, 508 U.S. 384 (1993)

(exclusion of religious perspective unconstitutional even in a

nonpublic forum). Leaving no doubt that such governmental

bias is constitutionally suspect, this Court quickly followed its

decision in Lamb's Chapel with Church of the Lukumi Babalu

Aye v. City of Hialeah, 508 U.S. 520 (1993). In Lukumi Babalu

Aye, this Court spurned Hialeah’s effort to rid itself of the ritual

animal sacrifice by Santeria practitioners. The Court found that

the City’s conduct was not neutral with respect to religion, even

though the challenged regulation was, at least arguably, facially

neutral. 508 U.S. at 533-35.

The litany of decisions in this Court’s constitutional

jurisprudence invalidating government actions that suppress

religious or political expression extends well beyond these

examples. The Ninth Circuit upheld just such an action. The

roles of political speech and religious speech in the

maintenance of our republican form of government should be

inviolate. This Court should grant the Petition to address the

substantial federal question presented by the failure of the

Ninth Circuit to treat with appropriate gravity the City of

Phoenix’s admitted purpose to exclude religious and political

expression from its transit display spaces.

Pee

C. The Ninth Circuit’s Reliance on The Plurality Opinion

Accompanying This Court’s Decision in Lehman \

City of Shaker Heights Presents an Important And

Substantial Federal Question.

No opinion accompanying the judgment of this Court in

Lehman v. City of Shaker Heights, 418 U.S. 298 (1976),

garnered a majority of the Justices of this Court. The Ninth

Circuit, however, invoked and relied upon the plurality opinion,

and to a lesser extent, the opinion concurring in the judgment

by Justice Douglas. App. 7a-10a.* In fact, the decision below

expands on the concurrence, extending Justice Douglas’

solicitous concern for “captive audiences” inside the rapid

transit vehicles to passersby outside on nearby streets and

sidewalks. App. 7a-8a. Unwarranted as it is, the invocation

and reliance on the Lehman plurality and on Justice Douglas’

separate opinion present this Court with the important and

substantial question of the continuing validity of the opinions

and judgment in Lehman.

The Courts of Appeals routinely distinguish Lehman and

have done so on the very point of which the Ninth Circuit had

considered it the dispositive decision. See, e.g., Planned

Parenthood Ass'n v. Chicago Transit Authority, 767 F.2d 1225,

1233 (7th Cir. 1985) (“Lehman stands for the proposition that

the interior of a transit system’s cars and buses is not a

traditional public forum’) (emphasis added); Lebron 1

WMATA, 749 F.2d 893, 896 n.6 (D.C. Cir. 1984) (Lehman

dealt with a ban on advertising “inside a city transit system”)

8. An equal number of Justices to those joining the plurality

opinion disagreed and joined in a dissent from the judgment because

they considered that the city had established “a public forum for

communication.” 418 U.S. at 315.

(emphasis added)

This Court’s reconsideration of Lehman should not be

lumited to the mere question of whether the case stands only for

propositions related to transit display spaces inside buses or

rapid transit vehicles. In the court below, the Petitioners

argued that, because it predates the present formulation of the

public forum doctrine, the Ninth Circuit should not treat

Lehman as dispositive. Significant developments have

occurred in this area of law, as this Court has drawn and refined

the contours of the public forum doctrine. This Court should

grant the Petition to resolve the constitutional questions

presented by this Petition and in common with Lehman.

Il. THE DECISION OF THE NINTH CIRCUIT

CONFLICTS WITH THE DECISIONS OF OTHER

CIRCUITS

A. The Decision Below Conflicts With A Decision of the

District of Columbia Circuit

lhe Children of the Rosary and the Anzona Civil Liberties

nion assert that the City of Phoenix had created a public

forum 1n its transit display spaces, from which their messages

proposing the sale of bumper stickers bearing religious and

political messages have been unconstitutionally excluded. The

lower courts disagreed, and concluded that — as to the political

and religious views sought to be promoted by the Petitioners

the City had not designated the spaces as public fora. App. 1 1a,

9. See also Christ's Bride Ministries, Inc. v. SEPTA, 148 F.3d

242, 254 (3d Cir. 1998) (“ijn Lehman, the Court considered a ban

political advertising in the city’s transit vehicles’) (emphasi

ded); Metro Display Advertising v. City of Victorville, 143 F.3d

91,1194 (9th Cir. 1998) (“the municipality had a contract with the

;

] -4 » Wiicec « ll@ue’’ 2 hacic addted

placed ads in Duses or trolleys ) (empnasis added)

tina?

35a."

This Court has explained that regulations that affect speech

in a nonpublic forum need only be reasonable and viewpoint

neutral. See, e.g., Lamb's Chapel v. Center Moriches Union

Free School District, 508 U.S. 384, 393-94 (1993). The Ninth

Circuit, having concluded that the transit display spaces were

nonpublic fora, examined the amended rule under the

reasonableness standard. App. lla-13a. The court did not

question whether the City’s proposed justifications for

excluding all noncommercial expression, devised to accomplish

the purpose of excluding political and religious messages, rose

to the level of compelling or even substantial interests. The

court did conr:lude, however, that each of the interests asserted

by the City were reasonable. App. 12a

In U.S. Southwest Africa/Namibia Trade & Cultural

Council v. U.S., 708 F.2d 760 (D.C. Cir. 1983), the Federal

Aviation Administration refused to display a message in

display spaces at Washington National Airport or Dulles

International Airport. The message was “rejected solely

because it was political in nature and thus perceived to be

inconsistent with the government’s interests in maintaining a

purely commercial and public service advertising medium.’

708 F.2d at 761. As applied, the FAA’s rules had always been

iQ. Neither the City nor the courts below have contended that

the Petitioners’ proposed messages were ineligible for placement for

other reasons. The Petitioners were not denied space because they

refused to pay for it; the copy was not declined because it was

inelegant or less than aesthetically pleasing. Moreover the

placement of messages for Special Olympics of Anzona and for the

American Cancer Society prove that it was not the not-for-profit

status of the Children of the Rosary and the Arizona Civil Liberties

| . ‘ } . —. | rn " .

Union that prompted the exclusion of the proposed messages

invoked “to prohibit ads “which would be considered political

or issue-oriented in nature, rather than commercial or public

service.’ /d. at 762.

The District of Columbia Circuit reversed the trial court’s

judgment for the FAA. Jd. at 761. The court explained:

we hold only that the airport advertising opportunities

made available to the public by the government cannot

be shut off to political advertisements unless such

advertisements can be shown to be basically

incompatible with the government’s substantial or

compelling, countervailing interests.

Id. at 773."

11. This approach is consonant with that taken by the Supreme

Court of California. In Wirta v. Alameda-Contra Costa Transit

District, 68 Cal.2d 51, 64 Cal. Rptr. 430, 434 P.2d 982 (Cal. 1967),

the California Supreme Court affirmed the entry of injunctive relief

against a transit district from declining to carry messages proposed

by an unincorporated association promoting the cause of world

peace through education. 68 Cal.2d at 52-53, 64 Cal. Rptr. at 431-

32, 424 P.2d at 983-84. Under the transit district’s policy, only

commercial solicitations for the sale of goods and services and

messages related to issues and candidates on ballots during election

seasons were permitted. The transit district had refused “an

advertisement expressing ideas admittedly protected by the First

Amendment for display in a forum which the agency has deemed

suitable for the expression of ideas through the medium of paid

advertisements.” 424 P.2d at 985. The California Supreme Court

concluded, “[t]he vice is not that the district has preferred one point

of view over another, but that it chooses between classes of ideas

entitled to constitutional protection, sanctioning the expression of

only those selected, and banning all others. Thus the district's

regulation exercises a most pervasive form of censorship.” 424 P.2d

at 986. Worse still, “the district's policy . . . goes even further and

Thus, in the Ninth Circuit, the decision to exclude religious

and political messages from a transit display space need only

be reasonable; but, in the District of Columbia Circuit, the

exclusion of political messages from a transit display space can

be justified only if the heightened justifications of a substantial

or compelling interest are demonstrated.” It should go without

affords total freedom of the forum to mercantile messages while

banning the vast majority of opinions and beliefs extant which enjoy

First Amendment protection because of their noncommercialism.”

Id. Presaging the view of the plurality in Metromedia, Inc. v. City

of San Diego, 453 U.S. 490, 513 (1981), the California Supreme

Court concluded, “the policy of the district reverses these acceptable

priorities and perversely gives preference to commercial advertising

over nonmercantile messages.” 424 P.2d at 986.

12. The D.C. Circuit proceeded on the conclusion that the transit

display cases in that case were public fora. 708 F.2d at 764-67. The

Fourth Circuit, however, has stated that the “reasonableness”

standard applicable to restrictions affecting expression in nonpublic

fora means something more than that a “regulation is rationally

related to a legitimate governmental objective, as might be the case

for a typical exercise of the government’s police power. . . .”

Multimedia Publishing Co. v. Greenville-Spartanburg Airport

District, 991 F.2d 154, 159 (4th Cir. 1993). Because, as here, the

regulation at issue in Multimedia Publishing Co. “affect[ed]

protected First Amendment activity that is entitled to special

solicitude even in [a] nonpublic forum,” the Fourth Circuit

concluded, “the reasonableness of a challenged regulation must be

assessed in the light of the purpose of the forum and all the

surrounding circumstances.” 991 F.2d at 159 (internal quotation

marks and citations omitted).

The Fourth Circuit’s approach is consistent with Justice

O’CONNOR’s concurrence in Lee v. ISKCON, 505 U.S. 669 (1992).

Justice O’CONNOR concluded that a ban on leafletting in airport

terminals could not “be upheld as reasonable” on the record in that

saying that the latter approach reflects the actual purpose and

long-understood working of the constitutional night to freedom

of speech: to protect core political speech from government

suppression. This Court should grant the Petition to resolve the

conflict with the District of Columbia Circuit that has resulted

from the decision of the Ninth Circuit.

B. The Decision Below Conflicts With A Decision of the

First Circuit

The City admitted that its purpose in amending its transit

display regulation was to assure the continued exclusion of

political and religious expression. Answer, § 6.10. The

appeals court did not even pause over this troubling admission.

In the appeals court’s view, because the transit display spaces

case. 505 U.S. at 685, 690. As Justice O.; CONNOR explained, “the

Port Authority has not offered any justifications or record evidence

to support its ban on the distribution of pamphlets alone.” 505 U.S.

at 691. Justice O’;CONNOR rejected the flat ban on leafletting

because she could not “see how peaceful pamphleteering is

incompatible with the multipurpose environment of the Port

Authority airports,” consequently, Justice O.; CONNOR could not

“accept that a total ban on that activity is reasonable without an

explanation as to why such a restriction preserves the property for

the several uses to which it has been put.” 505 U.S. at 692 (internal

quotation marks and citations omitted). See also Airline Pilots

Association International v. Department of Aviation, 45 F.3d 1144,

1159 (7th Cir. 1994) (“the reasonableness of excluding political

advertisements must be judged in light of the nature and purpose of

the diorama display cases” “this inquiry . . . does require a

determination of whether the proposed conduct would actually

interfere with the forum’s stated purposes”) (internal quotation

marks and citations omitted; emphasis added); United Food &

Commercial Workers Union v. SORTA, 163 F.3d 341, 357 n.8 (6th

Cir. 1998)

were nonpublic forum properties, the City was free to impose

content-based restrictions on messages, so long as the City

avoided exclusions based on viewpoint. App. 15a-1é6a.

The Ninth Circuit’s decision directly conflicts with AJDS

Action Committee v. MBTA, 42 F.3d 1 (1st Cir. 1994). There.

the MBTA maintained transit display spaces similar to those at

issue here. Under the MBTA’s regulations, both commercial

and public service messages were permitted in transit display

spaces. /d. at 3. The MBTA required that messages “meet the

same guidelines governing broadcast and private sector

advertising with respect to good taste, decency and community

standards”; in particular, such messages “must not describe, in

a patently offensive way, sexual conduct specifically defined

by the applicable state law.” Jd. at 3-4. Under the MBTA’s

regulation, “[a]dvertising containing messages or graphic

representations pertaining to sexual conduct will not be

accepted.” Jd. at 4.

The AIDS Action Committee sought to place messages in

the transit display spaces. Jd. at 3. The messages identified

sexual abstinence as the only sure way to avoid transmission of

the HIV virus, and then encouraged the use of prophylactic

devices to reduce the spread of the virus. Jd. at 3-4. The

messages used “sexual innuendo and double entendre”’ to

communicate these views. Jd. at 3. Because of the sexual

suggestiveness and risque language in the messages, the MBTA

refused to display them. Contemporaneously, the MBTA had

allowed the display of sexually suggestive messages promoting

a movie entitled, “Fatal Instinct.” Jd. at 5.

The First Circuit could not determine on the record before

it whether the MBTA transit display spaces had been

designated as public forum spaces. Jd. at 9. The court

concluded, however, that the district court had correctly

concluded that an injunction should issue. /d. at 13. The court

stated, “we find that, in rejecting the 1993 AAC ads while

running the ‘Fatal Instinct’ ads, the MBTA engaged in content

discrimination which gave rise to an appearance of viewpoint

discrimination, and that it has failed to explain that appearance

away.” Jd. at 10. In a nonpublic forum the MBTA was free to

engage in content discrimination, and it did so. The decisive

factor for the First Circuit was that, in the circumstances, an

appearance of prohibited viewpoint discrimination arose from

that content discrimination. Alone, that unremedied

appearance sufficed to satisfy the court that, despite its facial

constitutionality, the MBTA regulation accomplished the

unconstitutional result of viewpoint discrimination. Jd. at 12."

In the present case, the Ninth Circuit had before it, not

merely the appearance of bias against religious and political

expression, but the admitted animus of the City. Nonetheless,

the court of appeals concluded that there was no likelihood of

success, even on the Petitioners’ as applied challenge. In AJDS

Action Committee, the appearance of viewpoint bias warranted

injunctive relief; here, the admitted fact of bias was

disregarded. This Court should grant the Petition to resolve the

conflict with the First Circuit that has resulted from the

decision of the Ninth Circuit.

13. The Sixth Circuit, consistent with the approach of the First

Circuit, has expressed the view that, “[w]here the proffered

justification for restricting access to a nonpublic forum is facially

legitimate, the government nevertheless violates the First

Amendment when its stated purpose in reality conceals a bias

against the viewpoint advanced by the excluded speakers.” United

Food and Commercial Workers Union v. SORTA, 163 F.3d 341, 356

(6th Cir. 1998) (emphasis added).

C. The Decision Below Conflicts With Decisions of the

District of Columbia and Second Circuits

The offer of product or pricing information is the essence

of commercial speech. Virginia Pharmacy Board v. Virginia

Citizens Consumer Council, 425 U.S. 750, 779-80 (1976).

Under the City’s amended regulation, only messages proposing

a commercial transaction may be accepted for display. To

determine whether a message is eligible for display, the City of

Phoenix preview the content and format of proposed displays.

The City’s review of content and format present a clear and, in

this case, uresistible opportunity to exercise discretion in

determining whether a message is “commercial” or

“ideological.”

The Children of the Rosary and the Arizona Civil Liberties

Union sought to display their messages in the City’s transit

display spaces by advertising bumper stickers bearing those

messages as available for sale through their offices. App. 3a,

62a-63a."* The City rejected these messages because they did

not propose commercial transactions. Despite C.O.R.’s and

AzCLU’s plain invitations to purchase products, the Ninth

Circuit and the district court accepted the City’s determination.

App. 17a, 63a-64a. The Ninth Circuit explained:

14. That the Petitioners offered their political and religious

messages for sale does not detract from the status of those messages

as core expression. This Court has explained, “speech does not lose

its First Amendment protection because money is spent to project it,

as in a paid advertisement of one form or another,” that “[s]peech

likewise is protected even though it is carried in a form that is ‘sold’

for profit,” and “even though it may involve a solicitation to

purchase or otherwise pay or contribute money.” Virginia

Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425

U.S. 748, 761 (1976) (citing cases).

oR,

The district court rejected the challenge, finding that the

advertisements were ‘ideological communications’ and

the essential issue-oriented nature of the advertisements

could not be changed to commercial advertisements by

simply adding an offer to purchase a bumpersticker

containing a political or religious message. We agree

with the district court.

App. 17a. Thus, the Ninth Circuit, as had the district court, left

unchecked the City’s arrogation to itself of discretion in the

message review and selection process. The discretion that the

City exercises — now with the approval of the Ninth Circuit —

is unbridled.

The discretion to sift messages, finding that some are

“contaminated” by ideological perspectives while others are

not, has been found to be a constitutionally sound municipal

function in the Ninth Circuit. In the District of Columbia and

Second Circuits, however, such discretion proves

constitutionally infirm. See New York Magazine v.

Metropolitan Transportation Authority, 136 F.3d 123, 131 (2d

Cir. 1998); Lebron v. WMATA, 749 F.2d 893, 898-99 (D.C. Cir.

1984).

In New York Magazine v. Metropolitan Transportation

Authority, 136 F.3d 123, 131 (2d Cir. 1998), the Second Circuit

found constitutionally defective the very kind of administrative

discretion approved by the Ninth Circuit below. New York

Magazine sought to display a message on city buses that

portrayed its logo and contained the statement, “[p]ossibly the

only good thing in New York Rudy hasn’t taken credit for.”

136 F.3d at 125. The city transportation authority refused to

carry the messages, purportedly to preserve Mayor Guiliani’s

civil nghts under state law. Jd.

The Second Circuit said the transit authority’s regulatory

‘

scheme “vest[s] in government agencies the power to determine

important constitutional questions properly vested in the

judiciary.” Jd. The Second Circuit concluded “that where there

are both commercial and political elements present in speech,

even the determination whether the speech is commercial or not

may be fraught with ambiguity and should not be vested in an

agency such as the MTA.” Jd. The Second Circuit considered

that it “need not decide whether the Advertisement is actually

commercial speech or core-protected speech... .” Jd.

In Lebron v. WMATA, 749 F.2d 893 (D.C. Cir. 1984), the

District of Columbia Circuit found constitutional fault with the

application of just that sort of administrative discretion in

granting access to transit display spaces owned by the

Washington Metropolitan Area Transit Authority. In Lebron,

an artist was denied access to the transit display space to

publish a photomontage bearing the legend, “Tired of the

JELLYBEAN REPUBLIC.” 749 F.2d 894-95. The artist

intended to express his dissatisfaction with the administration

of President Reagan. Jd.

WMATA justified its denial on the ground that it had to

exclude false and misleading messages. 749 F.2d at 895. The

District of Columbia Circuit, in an opinion by Judge Bork

joined by then-Judge Scalia, concluded that the transit display

space regulation impermissibly authorized the Authority to

exercise discretion in granting access to the transit display

spaces based on truth or falsity of political messages. 749 F.2d

at 898-99."

15. The unreliability of such transit authority decisions —

predicted by Judge Bork in Lebron — is confirmed in another

instance. In Christ's Bride Ministries, Inc. v. SEPTA, 148 F.3d 242

(3d Cir. 1997), the Third Circuit rejected an argument from the

Southeastern Pennsylvania Transportation Authority (“SEPTA”) that

[his Court should grant the Petition to resolve the conflict

with the Distnct of Columbia and Second Circuits that has

resulted from the decision of the Ninth Circuit.

CONCLUSION

Phe Petition should be granted.

a message sought to be placed by Christ’s Bride Ministries, Inc., was

not, in fact, a bona fide political or public service message. SEPTA

sought to justify the exclusion because the message included a “1-

800 number listed on the poster” and those who responded to the

message by calling that number “may receive information

advertising the services of medical malpractice attorneys ....” 148

F.3d at 247. The Third Circuit gave no credence to the classification

made by SEPTA. Jd

Respectfully submitted,

PAUL BENDER JAY ALAN SEKULOW

Counsel for Arizona Civil Counsel of Record

Liberties Union JAMES M. HENDERSON, SR.

JAMES WEINSTEIN WALTER M. WEBER

COLLEGE OF LAW AMERICAN CENTER FOR LAW

ARIZONA STATE UNIVERSITY AND JUSTICE

7-7

Armstrong Hall, Box § 1000 Thos. Jefferson Street, NW

fempe, AZ 85287-7906 Suite 609

(602) 965-1305 Washington, DC 20007

(202) 337-2273

{ttorneys for Arizona Civil

Liberties Union BENJAMIN W. BULI

THE AMERICAN CENTER FOR LAW

ND JUSTICE

7819 E. Greenway Road, # 6

Scottsdale, AZ 85260-1719

(602) 596-0821

Attorneys for Children of the

Rosary and Katherine A

Sabelko

Dated: March 8, 1999.

APPENDIX

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHILDREN OF THE ROSARY;

KATHERINE A. SABELKO; ARIZONA

CIVIL LIBERTIES UNION,

Plaintiffs-Appellants,

5 |

Y «

CITY OF PHOENIX; RICHARD C

THOMAS, in his official capacity as No. 97-16821

Public Transit Director for the

City of Phoenix; NEAL MANSKE, D.C. No

in his official capacity as Deputy CV-97-0138-SMM

Director, Phoenix Transit OPINION

Department, City of Phoenix;

TRANSPORTATION DISPLAYS, INC.

Defendants-Appellees,

and

ATC/V ANCOM MANAGEMENT

SERVICES, INC.,

Defendant

Appeal from the United States District Court for the District of

Arizona Stephen M. McNamee, District Judge, Presiding

Argued and Submitted

March 12, 1998--San Francisco, California

Filed August 28, 1998

Before: Byron R. White, Associate Justice, (Ret.), John T.

Noonan and Sidney R. Thomas, Circuit Judges.

Opinion by Justice White; Dissent by Judge Noonan

WHITE, Associate Justice, (Ret.):

The issue presented in this appeal is whether there is a

likelihood that limiting advertising on municipal buses to

"speech which proposes a commercial transaction” violates the

First Amendment. We hold that there is not a sufficient

likelihood of a constitutional violation to justify the grant of a

preliminary injunction and affirm the district court.

The city of Phoenix sells advertising space on the exterior

panels of its buses for the purpose of raising revenue. Prior to

November 1, 1996, the city's advertising standards prohibited

advertising "support[ing] or oppos[ing | a candidate, issue or

cause, or which advocates or opposes a religion, . .. or belief."

Pursuant to this standard, the city rejected an advertisement

submitted by plaintiff-appellant Children of the Rosary (COR)

in September 1995. The proposed advertisement stated:

"Before I formed you in the womb, I knew you" -- God

Jeremiah 1:5 CHOOSE LIFE! [COR Logo] Children

of the Rosary

The COR logo is a fetus surrounded by a rosary, which is

connected to a cross at the top. On October 10, 1995, COR

"The Honorable Byron R. White, Associate Justice of the

United States Supreme Court, (Ret.), sitting by designation,

pursuant to 28 U.S.C. S 294(a).

sued the city and obtained an injunction preventing the city

from enforcing the standard against COR and requiring the city

to display the COR advertisement.

On November 1, 1996, new advertising standards took

effect. The new standards limited the subject matter of bus

advertising to "speech which proposes a commercial

transaction.” On November 15, 1996, the city advised COR that

its advertisement would not be displayed because the

advertisement did not propose a commercial transaction. In

response, COR submitted a revised advertisement for display

on the exterior bus panels. The revised advertisement stated:

"Before I formed you in the womb, I knew you" -- God

Jeremiah 1:5 Purchase this message as a bumpersticker

for your vehicle! Contact [phone number] [COR Logo]

Children of the Rosary CHOOSE LIFE!

The city rejected COR's revised advertisement because, in

the city's view, the primary purpose of the advertisement was

not to propose a commercial transaction, but instead promote

a noncommercial message.

Subsequently, plaintiff-appellant Arizona Civil Liberties

Union (AzCLU) submitted its own advertisement for display

on buses. Their advertisement stated:

The ACLU Supports Free Speech for Everyone To

purchase this bumper sticker please call [phone

number]

The city rejected this advertisement because it did not

comply with the new advertising standard.

ole.

On January 23, 1997, appellants filed suit against the city

under 42 U.S.C. S 1983 in the United States District Court for

the District of Anzona alleging that the city's advertising

standards violated the First Amendment.' On August 1, 1997,

the district court denied appellants’ application for a

preliminary injunction. This appeal followed.

We have jurisdiction under 28 U.S.C. S 1292(a)(1). To

obtain a preliminary injunction, a movant must show a

likelihood of success on the merits and the possibility of

irreparable injury or the existence of serious questions going to

the merits and the balance of hardships tipping in the movant's

favor. See Foti v. City of Menlo Park, 146 F.3d 629, 634 (9th

Cir. 1998).

We review the denial of a preliminary injunction for abuse

of discretion, and will find an abuse of discretion "where the

district court ‘based its ruling on an erroneous view of the law

or on a clearly erroneous assessment of the evidence.’ " Roe v

Anderson, 134 F.3d 1400, 1402 (9th Cir. 1998) (quoting Cooter

& Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990)); see MAI

Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 516 (9th

Cir. 1993).

‘In addition to the city of Phoenix, appellants sued Richard

C. Thomas, the city's Public Transit Director, Neal Manske,

Deputy Director of the transit department, ATC/Vancom

Management Services, Inc., a corporation that manages the

transit system under a contract with the city, and Transportation

Displays, Inc., a corporation that administers the placement of

advertising on city buses in compliance with city standards. For

convenience, we refer to the defendants collectively as the

"city."

To prove a violation of 42 U.S.C.S 1983, appellants must

establish that 1) the city acted under color of state law: and 2)

the city deprived appellants of a right secured by the

Constitution or laws of the United States. See Fred Meyer, Inc

v. Casey, 67 F.3d 1412, 1413 (9th Cir. 1995).

IT]

There are three primary issues we must address in

determining whether the district court applied the correct First

Amendment framework. First, we must properly classify the

advertising panels under the Supreme Court's "forum approach"

for assessing the validity of restrictions on the use of

government property. See International Society for Krishna

Consciousness, Inc. v. Lee, 505 U.S. 672. 678 (1992)

(ISKCON). Second, once we determine the type of forum at

issue, we ascertain the relevant level of scrutiny for this forum

Finally, we must determine whether the city improperly applied

this standard in rejecting the advertisements submitted by

appellants.

The Supreme Court "has adopted a forum analysis as a

means of determining when the Government's interest in

limiting the use of its property to its intended purpose

outweighs the interest of those wishing to use the property for

other purposes." Cornelius v. NAACP Legal Defense & Ed

Fund, Inc., 473 U.S. 788, 800 (1985). Forum analysis divides

government property into three categories: public fora,

designated public fora, and nonpublic fora. A traditional public

forum is a place "that has traditionally been available for public

expression,” such as a public park. ISKCON , 505 U.S. at 678

Neither party argues that a bus advertising panel is a traditional

public forum. Instead, the parties debate whether the bus panel

is a designated public forum or a nonpublic forum.

A designated public forum is a nontraditional forum that the

government has opened for expressive activity by part or all of

the public. See Perry Ed. Assn. v. Perry Local Educators’ Assn.,

460 U.S. 37, 46 & n.7 (1983). The creation of a designated

public forum requires a decision "intentionally opening a

nontraditional forum for public discourse." Cornelius, 473 U.S.

at 802; see Arkansas Educational Television Comm'n v.

Forbes, 118 S. Ct. 1633, 1641 (1998) (AETC). Hence, the

Court has looked to the policy and practice of the government,

the nature of the property and its compatibility with expressive

activity, and whether the forum was designed and dedicated to

expressive activities in determining if the government created

a designated public forum. See Cornelius, 473 U.S. at 802-03;

AETC, 118 S. Ct. at 1641.

In defining the relevant forum, the Court has "focused on

the access sought by the speaker." Cornelius, 473 U.S. at 801.

In this case, we agree with the district court that the relevant

forum at issue is the exterior advertising spaces on the city's

buses.

Appellants contend that the city created a designated public

forum by opening up the exterior panels on buses for

advertising by the general public. However, a review of the

city's standards and practices indicates that the city has not

opened a public forum. The city has consistently restricted

political and religious advertising. See Excerpts of Record at 22

(affidavit of Public Transit Director). Although under its pnor

policy the city did accept some noncommercial advertising,

such as public service announcements, only one percent of the

advertisements displayed on the exterior of buses were

noncommercial. See Excerpts of Record at 22 (affidavit of

Public Transit Director). The city submits that its current ban

on noncommercial advertising supports a finding that the

advertising panels are nonpublic fora.

The Supreme Court's decision in Lehman v. Shaker

Heights, 418 U.S. 298 (1974), strongly supports our conclusion

that the advertising panels are nonpublic fora. In Lehman. the

Court upheld a ban on political advertising on public transit

vehicles. The plurality opinion squarely rejected the argument

that the advertising space on buses constituted a public forum

protected by the First Amendment. Id. at 361-02. The Court

noted that the city was engaged in commerce and had

“discretion to develop and make reasonable choices concerning

the type of advertising" it would display. Id. at 303. In our

view, Lehman undermines appellants’ claim that if a city has

opened a property for communication, the property becomes a

designated public forum. See Perry, 460 U.S. at 49 n.9 (noting

that Postal Service v. Council of Greenburgh Civic Assns., 453

U.S. 114 (1981), reaffirmed Lehman's rationale for rejecting

the argument that because an instrumentality is used for

communication of ideas, it becomes a public forum).

However, appellants suggest Lehman is not persuasive

authority. They assert that Lehman only concerns advertising

inside a bus because Justice Douglas, who supplied the fifth

vote for upholding the ban, based his concurrence on the fact

that commuters were a "captive audience" who would be forced

to view a partisan political message. This interpretation of his

concurrence is far from clear. In Justice Douglas's view, the

night of commuters to be free from forced intrusions on their

privacy "preclude[d]" the city from transforming its buses into

"forums for the dissemination of ideas upon this captive

audience." 418 U.S. at 307. The reference to "captive audience"

arguably suggests Justice Douglas was referencing commuters

inside a bus. However, read in context, his concern about

forcing messages on a captive audience applies to observers on

the street and commuters inside a bus. Justice Douglas wrote:

I agree with Mr. Justice Brandeis who . . . said that the

visual message in streetcars 1s no different [from other

forms of communication imposed on a captive

audience], for "[a]dvertisements of this sort are

constantly before the eyes of observers on the streets

and in street cars to be seen without the exercise of

choice or volition on their part. Other forms of

advertising are ordinarily seen as a matter of choice on

the part of the observer. .. . The radio can be turned off,

but not so the billboard or street car placard.”

418 U.S. at 307-08 (quoting Packer Corp. v. Utah , 285 U.S.

105, 110 (1932)). We reject appellants’ invitation to narrowly

interpret Lehman.*

Appellants also argue that we should not rely on Lehman

because it was decided prior to the Supreme Court's adoption

of its current approach to forum analysis in Perry. They claim

that Lehman is inconsistent with subsequent Supreme Court

decisions and provides little support for finding that the panels

are nonpublic fora. We reject this argument. The Court relied

upon and reaffirmed Lehman's rationale in Perry and

subsequent cases, and there is no suggestion in the Court's

“Appellants also claim that the issue presented in Lehman

was limited to advertising inside transit vehicles. However,

their claim is contradicted by Justice Brennan's dissent, which

stated that the petitioner was denied access to exterior and

interior advertising space pursuant to the city’s prohibition on

political advertising. 418 U.S. at 320 n.12.

jurisprudence that the advertising panels are properly classified

as designated fora. See, e.g., Perry, 460 U.S. at 47 (relying on

restriction upheld in Lehman to support the proposition that

selective access does not transform government property into

a public forum); ISKCON, 505 U.S. at 678 (Lehman reflects

forum-based analysis and supports proposition that lower level

of scrutiny applies when government acts as a proprietor);

Cornelius, 473 U.S. at 803-04, 806, 808-09 (relying on Lehman

to support, inter alia, propositions that "[n]ot every

instrumentality used for communication . . . is a traditional

public forum or a public forum by designation,” and that a

speaker may be excluded from a nonpublic forum if he wishes

to address a topic not within the purpose of the forum); United

States v. Kokinda , 497 U.S. 720, 725-26 (1990) (plurality

opinion) (extensively quoting from Lehman and noting the

lower level of scrutiny applied to the ban on political

advertising); id. at 737 (relying on Lehman as stating the

Court's "usual test for reasonableness” in a nonpublic forum);

R. A. V. v. St. Paul, 505 U.S. 377, 390 n.6 (1992) (Lehman

supports conclusion that there is "room" for "reasonable and

viewpoint-neutral content-based discrimination in nonpublic

forums"); see also Lebron v. National R.R. Passenger Corp., 69

F.3d 650, 657 n.3 (2d Cir. 1995), cert. denied, 517 U.S. 1188

(1996) (rejecting the same argument presented by appellants in

this case and noting that "the Supreme Court has repeatedly

reaffirmed a broader reading of Lehman, often specifically

citing to the plurality opinion").

Thus, Lehman provides sufficient authority for concluding

that the bus advertising panels are nonpublic fora. Our

conclusion 1s also consistent with the reasoning of other

circuits. See Planned Parenthood Ass'n/Chicago Area \

Chicago Transit Auth., 767 F.2d 1225 (7th Cir. 1985): New

10a

York Magazine v. Metropolitan Transit Authority, 136 F.3d

123 (2d Cir. 1998); see also Christ's Bride Ministnes, Inc. v.

Southeastern Pa. Transp. Auth., 1998 WL 334830 (3d Cir. June

25, 1998). In Planned Parenthood, the Seventh Circuit

concluded that advertising space on a bus system became a

public forum where the transit authority permitted advertising

on "a wide variety of commercial, public-service, public-issue,

and political ads." 767 F.2d at 1232. The court distinguished

Lehman because Lehman "upheld the blanket exclusion of an

entire class of potentially controversial speech," while in

Planned Parenthood the transit authority promulgated "no

policy at all" with respect to the acceptance of advertising. 767

F.2d at 1233; see Christ's Bnde Ministries, Inc., 1998 WL

334830, at *13, *16 (distinguishing Lehman where transit

authority promulgated no policy governing removal of

advertisements).

Similarly, in New York Magazine, the Second Circuit

concluded that advertising space on the outside of buses was a

public forum where the transit authority permitted "political

and other non-commercial advertising generally." 136 F.3d at

130. The court found that the transit authority could not reject

an advertisement based on a regulatory interest in upholding a

law prohibiting the use of a person’s name without their

consent. Id. The court distinguished Lehman by arguing that

disallowing political speech, and allowing commercial

speech only, indicates that making money is the main

goal. Allowing political speech, conversely, evidences

a general intent to open a space for discourse, and a

deliberate acceptance of the possibility of clashes of

opinion and controversy that the Court in Lehman

recognized as inconsistent with sound commercial

practice.

—"

Id.

This case is easily distinguished from the decisions of the

second and Seventh Circuits because the city of Phoenix

consistently promulgates and enforces policies restricting

advertising on its buses to commercial adv ertising. The city has

not designated the advertising space on the exterior of its buses

as a place for general discourse, and we therefore do not back

away from our conclusion that the advertising space is a

non-public forum.

In a nonpublic forum, the government has the "right to

make distinctions in access on the basis of subject matter and

speaker identity," Perry, 460 U.S. at 49, but "must not [make

distinctions] based on the speaker's viewpoint," AETC, 118 S.

Ct. at 1643. "The touchstone for evaluating these distinctions

is whether they are reasonable in light of the purpose which the

forum at issue serves." Perry, 460 U.S. at 49. The adv ertising

standards "need only be reasonable: ;[they] need not be the most

reasonable or the only reasonable limitation." ISKCON, 505

U.S. at 683 (internal quotations omitted). In addition, "[w]here

the government is acting as a proprietor . . . its action will not

be subjected to the heightened review to vas its actions as a

lawmaker may be subject." ISKCON, 505 U.S. at 678 (citing

Lehman and noting that the Court ba the political

advertisement ban "even though the city permitted other types

of advertising" on the buses); see Kokinda, 497 U.S. at 726

(action of government acting in proprietary capacity is valid

“unless it is unreasonable, or, as was said in Lehman. ‘arbitrary,

capricious, or invidious."’).

The city sets forth four interests justifying the limitation on

noncommercial speech: 1) maintaining a position of neutrality

12a

on political and religious issues; 2) a fear that buses and

passengers could be subject to violence if advertising is not

restricted; 3) preventing a reduction in income earned from

selling advertising space because commercial advertisers would

be dissuaded "from using the same forum commonly used by

those wishing to communicate pnmarily political or religious

messages;" and 4) aconcern that allowing COR's advertisement

would violate the Establishment Clause. See Answer P 6.10.

The district court concluded that each of the first three interests

sufficiently supported the reasonableness of the revised

standard. The court declined to address the Establishment

Clause issue

We agree with the district court that any one of the three

interests supports the reasonableness of the city's standard. The

city's interests in protecting revenue and maintaining neutrality

on political and religious issues are especially strong. The

Lehman court recognized that:

[(rlevenue earned from long-term commercial

advertising could be jeopardized by a requirement that

short-term candidacy or issue-onented advertisements

be displayed on car cards. Users would be subjected to

the blare of political propaganda. There could be

lurking doubts about favoritism, and_ sticky

administrative problems might arise in parceling out

limited space to eager politicians. In _ these

circumstances, the managerial decision to limit car card

space to innocuous and less controversial commercial

and service oriented advertising does not rise to the

dignity of a First Amendment violation. Were we to

hold to the contrary, display cases in public hospitals,

libraries, office buildings, military compounds, and

l3a

other public facilities would become Hyde Parks open

to every would-be pamphleteer and politician. This the

Constitution does not require.

The city consciously has limited access to its transit

system advertising space in order to minimize chances

of abuse, the appearance of favoritism, and the risk of

imposing upon a captive audience. These are reasonable

legislative objectives advanced by the city in a

proprietary capacity.

Lehman, 418 US. at 304; see Cornelius , 473 U.S. at 809

(“avoiding the appearance of political favoritism is a valid

justification for limiting speech in a nonpublic forum");

Lebron, 69 F.3d at 658 (upholding reasonableness of policy

rejecting displays favoring any political view).

Appellants recognize that the plurality in Lehman "stated

that the exclusion of noncommercial speech was justified by

the city's asserted interest" in protecting its advertising revenue.

Appellants' Opening Brief at 33. However, they argue that

Lehman's low level of scrutiny is no longer valid in light of

subsequent Supreme Court decisions. As we discussed in

concluding that the panels were nonpublic fora, there is little

authority to support this argument. We conclude that the city's

ban on norcommercial advertising is reasonable in light of the

interests asserted by the city.

Appellants’ argument that Metromedia, Inc. v. San Diego,

453 U.S. 490 (1981), prohibits favoring commercial speech

over noncommercial speech in bus advertising is rebutted by

Metromedia's recognition that Lehman presented exactly that

14a

The standard may still violate the First Amendment if it

discriminates on the basis of viewpoint. Cornelius, 473 U.S. at

811. We must determine whether the city's standard is a

permissible subject matter restriction or impermissible

viewpoint discrimination, a distinction that "is not a precise

one." Rosenberger v. Rector and Visitors of Univ. of Va. , 515

U.S. 819, 831 (1995). Viewpoint discrimination is a form of

content discrimination in which "the government targets not

subject matter, but particular views taken by speakers on a

subject." Id. at 829; see General Media Communications, Inc.

v. Cohen, 131 F.3d 273, 281 (2d Cir. 1997), cert. denied, 118

S. Ct. 2367 (1998)

Appellants first argue that even though the standard may

have the facial appearance of neutrality, the standard is

unconstitutional because the intent of the policy is to exclude

religious and political speech. But we are dealing here with a

nonpublic forum. The First Amendment does not prohibit the

government from imposing content-based exclusions, as long

as such are reasonable, which is the case here. Two of the

reasonable exclusions are political and religious speakers in

order to maintain neutrality. It is argued, however, that

"{a]lthough the new Policy has abandoned the previous policy's

language, it has not abandoned its goal." Appellants’ Opening

Brief at 23. The city certainly intended to reject political and

religious speakers. But motive is not dispositive when there is

no indication that the city is implementing the standard in a

situation, and the Court's statement that it upheld the policy in

Lehman because it involved a factual situation different from

the regulation of billboards. Metromedia, 453 U.S. at 514n.19

(plurality opinion)

lS5a

viewpoint discriminatory manner that reflects an intent to use

the policy to exclude disfavored perspectives on the issues.

The city's previous attempt at restricting access to the forum

was struck down because it prohibited the expression of

religious perspectives on issues while possibly permitting

others to express their perspective. The city responded by

enacting a general standard regulating access to the forum.

The city's current standard does not use political or

religious controversy as the test for accepting advertising, but

instead implements a neutral standard based on its desire to

avoid jeopardizing revenue and the city's neutrality. See

Lehman, 418 U.S. at 304 (limiting advertising to commercial

advertising that is generally "innocuous and less controversial"

does not violate the First Amendment); Lebron, 69 F.3d at

658-59.

Of course, a regulation that "is in reality a facade for

viewpoint-based discrimination" is unconstitutional. Cornelius,

473 U.S. at 811. But "[a] facade for viewpoint discrimination

.. . requires discrimination behind the facade." Grossbaum v.

Indianapolis-Marin County Bldg. Auth., 100 F.3d 1287, 1298

(7th Cir. 1996). In Cornelius , the Court was concerned that a

government ban on "advocacy groups" in a charity drive

concealed a bias against a viewpoint expressed by an excluded

group. The government argued that the advocacy organization

was excluded from a government charity campaign based in

part on the government's interest in limiting participation to

groups providing direct services to indigent persons. However,

the Court remanded the case because there was evidence that

other organizations who did not provide direct services to the

poor participated in the campaign, thus raising the possibility

that the organization was excluded because of its viewpoint

l6a

We do not have similar evidence in this case. Although the

city has continued to honor pre-existing contracts involving

noncommercial advertisements to avoid breach of contract

claims, including the display of a COR advertisement, the city

has not accepted new noncommercial advertisements. The

district court carefully reviewed the details of each contract and

advertisement proffered by appellants as evidence of

discrimination, and concluded that the standard was not a

facade for viewpoint discrimination. We find no error in the

district court's findings that the noncommercial contracts were

effective prior to the adoption of the new standard and that

advertisements accepted after the standard took effect were

commercial in nature.

We also reject appellants’ argument, based on R. A. V. v.

St. Paul, 505 U.S. 377 (1992), that the standard discriminates

in practice against a viewpoint because it favors one side in a

debate on public issues. R. A. V. struck down a criminal law

that, among other things, prohibited displays that used certain

words that would arouse anger in others on the basis of race,

color, creed, religion, or gender. However, the law permitted

displays containing the same words if the display did not

invoke race or other classifications. Here, appellants do not

explain how the city's standard prohibits one side of a debate

from employing certain language or methods to express its

view, while permitting the other side to use the same methods.

Or, as the Court put it in R. A. V., the city is not permitting

"one side of a debate to fight freestyle, while requiring the

other to follow Marquis of Queensberry rules." 505 U.S. at

392. Moreover, as compared to the applicable level of scrutiny

when the government acts as a proprietor, the level of scrutiny

is higher when the government is using its sovereign power to

impose criminal penalties to deprive citizens of their liberty for

expressing certain views.

17a

Appeilants claim that the standard might permit an

advertisement for a family planning clinic that offers abortion

services while barring messages opposing abortion, thus

favoring one side of a debate. However, the city is merely

requiring that an advertisement convey a commercial message.

As in Lehman, the city is acting to prevent its advertising

panels from becoming areas for the debate of political and

religious issues with a resulting detrimental effect on the city's

ability to attract long-term commercial advertising. "In these

circumstances, the managerial decision to limit car card space

to innocuous and less controversial commercial and service

oriented advertising does not rise to the dignity of a First

Amendment violation." Lehman, 418 U.S. at 304.

Appellants also bring an as applied challenge, claiming that

the city's rejections of their revised advertisements were

viewpoint-based. The district court rejected the challenge,

finding that the advertisements were "ideological

communications" and the essential issue-oriented nature of the

advertisements could not be changed to commercial

advertisements by simply adding an offer to purchase a

bumpersticker containing a political or religious message. We

agree with the district court.

As an initial matter, we note that if appellants’ challenge is

successful, the reasoning of Lehman is hollow because a

political advertising restriction could easily be avoided by

tacking on a commercial offer to purchase the political

message. For example, any candidate for political office could

convert his political advertisement into a commercial

advertisement by simply offering the message as a

bumpersticker. This would significantly undermine the

government's ability to act as a proprietor and control access to

18a

a nonpublic forum, thereby forcing the government into "an

all-or-nothing choice" where "it might not open the property at

all." AETC, 118 S. Ct. at 1642.

The Court addressed a similar attempt to transform speech

in Valentine v. Chrestensen, 316 U.S. 52 (1942). The petitioner

in Valentine attempted to evade a restriction on commercial

advertising by placing a protest against a city law on the back

of a handbill containing a commercial advertisement. The

Court rejected this attempt ‘to convert a commercial

advertisement into a public protest, concluding:

that the affixing of the protest against official conduct

to the advertising circular was with the intent, and for

the purpose, of evading the prohibition of the

ordinance. If that evasion were successful, every

merchant who desires to broadcast advertising leaflets

in the streets need only append a civic appeal, or a

moral platitude, to achieve immunity from the law's

command.

316 U.S. at 55. Although Valentine's holding that the First

Amendment does not protect commercial advertising has not

survived, see Cincinnati v. Discovery Network, Inc., 507 U.S.

410, 420-21 (1993), the Court has continued to reject attempts

to evade a regulation by appending a message aimed at

transforming the speech.

In Board of Trustees of State Univ. of N. Y. v. Fox, 492

U.S. 469 (1989), the Court rejected another attempt to

transform speech by combining commercial and

noncommercial elements. The prohibition at issue in Fox

banned the operation of commercial enterprises on state

university campuses. Students challenged the prohibition on

First Amendment grounds because they were unable to host

19a

“Tupperware parties" to sell housewares. According to the

students, the parties included presentations on "how to be

financially responsible and how to run an efficient home." 492

U.S. at 474. Thus, the students asserted, the commercial and

noncommercial speech were "inextricably intertwined" and

must therefore be classified as commercial speech. The Court

stated that the "level of First Amendment scrutiny must depend

upon the nature of the speech taken as a whole and the effect of

[any ] compelled statement thereon." 492 U.S. at 474 (internal

quotations omitted). The Court concluded that including the

“home economics elements" did not convert the events into

educational speech.

The district court did not err in finding that the proposed

advertisements were noncommercial and the city did not

engage in impermissible viewpoint discrimination. The Court

has recognized that "there are commonsense differences

between speech that does no more than propose a commercial

transaction and other varieties." Virginia Bd. of Pharmacy v.

Virginia Citizens Consumer Council, Inc. , 425 U.S. 748, 771

n.24 (1976) (internal quotations omitted); see Central Hudson

Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U.S.

557, 562 (1980). In this case, the advertisements are not

“expression{s] related solely to the economic interests of the

speaker and its audience," Central Hudson, 447 U.S. at 561 , but

instead seek to blur the distinction between types of speech by

blending an "ideological communication," Virginia Bd. of

Pharmacy, 425 U.S. at 779 (Stewart, J., concurring), with an

offer to purchase the message. When the government is acting

as a proprietor in this nonpublic forum, the government may

regulate this nonpublic forum by rejecting an advertisement

combining political and religious advertisements with a

commercial offer. The city did not apply the standard in a

20a

viewpoint discriminatory manner by rejecting appellants’

advertisements promoting their views on public issues.

Appellants also argue with little elaboration that the

standard is overbroad, underinclusive, and vague. Appellants

claim that the standard is overbroad because its restrictions are

greater than necessary to protect the city's interests. Appellants

do not explain how the doctrine of overbreadth applies in this

case. Indeed, they do not claim that the standard chills the

speech of third parties or that others may not undertake to

challenge the law. See Board of Airport Comm'rs of Los

Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987).

Appellants fail to argue that there is "a realistic danger" of

compromising the First Amendment nights of third parties and

we find no merit in their facial overbreadth challenge. See Jews

for Jesus, 482 U.S. at 574 (internal quotations omitted).

We also reject appellants’ assertion that the standard is

underinclusive because it does not ban commercial speech

containing religious or political elements. Appellants reliance

on City of Ladue v. Gilleo, 512 U.S. 43 (1994), to support their

argument is misplaced. City of Ladue stated that a regulation

may be underinclusive where it attempts to give one side of a

debate an advantage or where the government seeks to control

"the search for political truth." 512 U.S. at 51 (internal

quotations omitted). Appellants do not argue in their

underinclusive challenge that the city is giving an advantage to

one side in a debate, and we rejected this argument in

discussing whether the standard discriminates on the basis of

viewpoint.

Finally, appellants argue that the standard is

unconstitutionally vague in reliance on a concurring opinion in

2la

Metromedia, 453 U.S. at 536-37, and a citation to that

statement in Cincinnati v. Discovery Network, Inc. . 507 U. S.

410, 423 n.19 (1993). They claim that the standard presents a

danger of discrimination against disfavored subjects in the

guise of determining what is commercial speech. Their brief

vagueness argument makes it difficult to determine if they

claim that the standard is vague because it presents a danger of

viewpoint discrimination, or is vague because it "contains no

standard for guidance as to prohibited and allowable conduct.”

Major Media of the Southeast. Inc. v. City of Raleigh, 792 F.2d

1269, 1272 (4th Cir. 1986). To the extent appellants claim the

standard is unconstitutional because of the discretion granted

to the city, we reject this argument based on our discussion in

previous sections.

[f appellants are simply asserting that we should hold the

Standard unconstitutional because it is difficult to determine

whether the "speech proposes a commercial transaction." we

would reject the argument. First, we note that there is no fine

or other penalty in this case if a person incorrectly classifies

their advertisement: The city simply rejects the advertisement.

This claim is unlike the usual vagueness challenge involving a

fine or other sanction that has the potential to chill conduct. Cf

Jews for Jesus, 482 U.S. at 576 (unrestrained power to arrest).

Second, we agree with the Fourth Circuit that the Supreme

Court has provided sufficient guidance on the meaning of the

standard. See Major Media, 792 F.2d at 1272. The city's

standard goes beyond stating that commercial speech is

allowed; the city enacted the Court's standard for identifying

commercial speech.* "[T]he test for identifying commercial

“Cf. Foti v. City of Menlo Park , 146 F.3d 629. 638-39 (9th

Cir. 1998) (striking down on vagueness grounds a portion of an

22a

speech" is whether the advertisement "propose[s] a commercial

transaction." Fox, 492 U.S. at 473-74. The Fourth Circuit was

not persuaded that the possible difficulty of applying the

Court's guidance in a marginal situation was sufficient to

declare a policy unconstitutionally vague:

Although an occasional marginal case might arise

raising the question of whether on the particular facts

the definition of commercial speech would be correct,

such an infrequent possibility should not in itselfjustify

a generalized charge that the ordinance itself is vague,

given the guidance afforded by court decisions in the

area.

Major Media, 792 F.2d at 1272-73. We agree with the Fourth

Circuit and reject appellants’ vagueness challenge.

CONCLUSION

We AFFIRM the district court's denial of appellants’

request for a preliminary injunction.

ordinance banning signs displayed on vehicles only when the

vehicle has been parked in a manner designed to attract

attention). The statute in Foti was facially invalid because it

required police officers to determine whether the driver

intended to park the car for the purpose of displaying a sign and

provided no standard to guide their discretion. Id. at 639 (citing

Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972)).

Here, by contrast, the city may only reject an advertisement if

it fails to propose a legitimate commercial transaction, a

standard which will leave it with relatively little discretion in

accepting or rejecting advertisements for display.

23a

AFFIRMED.

NOONAN, Circuit Judge, dissenting:

That commercial speech can be distinguished from non-

commercial speech, that the government as proprietor can limit

a non-public forum to commercial speech so that the

government makes money, and that the sides of buses in

Phoenix are meant to be such a forum, are propositions |]

accept. They do not remedy discriminatory application of the

ordinance by the City of Phoenix.

The ordinance restricts advertising to “speech which

proposes a commercial transaction." At first blush, it looks as

though the standard must be good because it incorporates a hint

from a dictum of the Supreme Court: "[t]here are commonsense

differences between speech that does ‘no more than propose a

commercial transaction,’ . . . and other varieties." Virginia

State Bd. of Pharmacy v. Virginia Citizens Consumer Council.

Inc., 425 U.S. 748, 771 n.24 (1976) (citation omitted).

Advertisements for employment that do not express an opinion

on social policy are "classic examples of commercia! speech."

Pittsburgh Press Co. v. Pittsburgh Comm'n on Human

Relations, 413 U.S. 376, 385 (1973). An advertisement that

expresses opinion and seeks financial support for a political

movement is not commercial. New York Times Co. v.

Sullivan, 376 U.S. 254, 266 (1964). The distinction is tangible.

The distinction must be applied in the unique context of the

medium of communication involved. Street car signs have been

lumped with billboards as forming "a class by themselves."

Packer Corp. v. Utah, 285 U.S. 105, 110 (1932) (Brandeis. J.):

see also Lehman v. City of Shaker Heights, 418 U.S. 298.

307-08 (1974) (Douglas, J., concurring, relying on Justice

Brandeis's opinion in Packer). Experience, however, has shown

24a

each medium of communication to be unique. Metromedia,

Inc. v. City of San Diego, 453 U.S. 490, 501 (1981). The

medium here is the exterior panels of city buses. Such panels

are large -- not as big as big billboards but large enough so that

figures on them are more than lifesize and the print on them

shouts its message. Moving and grunting as they move, buses

call attention to themselves. Stuck in traffic beside or behind a

bus, the driver and passengers of a car cannot avoid taking in

what confronts them. It is in their face. Similarly, pedestrians

waiting for a light to turn cannot avert their eyes from what a

waiting bus offers to view. The exterior panels are better than

billboards in their ability to command consideration by those

momentarily before them, and, unlike billboards, they move

down central streets

Not only is each medium of expression unique; the cultural

context changes with the times. The context of a quarter of a

century ago is not today's. We must apply precedents taking

into account the context of contemporary culture. In this culture

ideological conflicts exist in which the commercial side

coincides with one of the two embattled positions. The

commercial-non-commercial distinction should not be

mechanically applied without attention to this distinct modern

phenomenon

As applied, the Phoenix ordinance bans a message that

proposes a commercial transaction and, as an integral part of

that proposal, identifies the product to be bought. What

Children of the Rosary offers for sale is not something devised

to evade the ordinance. As the record demonstrates, the

bumpersticker was a good it sold prior to the ordinance's

enactment. The American Civil Liberties Union offers a

bumpersticker that, containing a message as to the ACLU's

goals, effectively advertises the value of the ACLU as a

25a

participant in the community. A nonprofit organization may

surely sell products incidental to its mission and thereby both

promote its goals and help to support itself. It is hard to see

why Phoenix rejected the ACLU ad -- surely the message was

uncontroversial -- unless the city was trapped into maintaining

a consistent position on bumperstickers. It may be, as the

majority suggests, that the ordinance would be porous if the

sale of bumperstickers is not barred: but that suggestion only

shows the deficiency of the ordinance as applied and the

difficulty of governmental restraint of speech.

lt is something of an anomaly in First Amendment

jurisprudence for more protection to be accorded commercial

speech than is accorded noncommercial speech. As Justice

White has observed, such a result "inverts" the normal rule.

Metromedia, Inc., 453 U.S. at 513. If the inversion is permitted

by precedent, it still must be done in a way that does not

destroy the level playing field of politics or put the

government's seal of approval on one of two sides of a political

issue. Moneymaking is not government's primary business. It

would be ironic if pursuit of profit permitted a unit of

government to discriminate in the messages on government

property.

Here, the message ofa group acknowledging the sacredness

of human life in the womb is rejected; Planned Parenthood

could run an ad for an abortion clinic. The views clash: the city

of Phoenix would give space to one and not the other.

Analogously, if Arizona should come to permit physician-

assisted suicide as does Oregon, Dr. Kevorkian could advertise

his services on the sides of the buses of Phoenix. but the

counter advice of advocates offering free counselling against

this course would be forbidden. The examples from the great

life issues in our present culture speak for themselves. The

26a

clash over the environment affords other examples. A power

company could extol its product. The Sierra Club, objecting to

more dams, would be denied the forum. The makers of a

pesticide could celebrate their wares; champions of pesticide-

free farms would be barred. A developer could tout the quality

of his homes; defenders of green space in the suburbs would

have to be silent on the buses. The pornographer could

advertise his shop; the defenders of neighborhood decency

would be denied a reply. In the America of 1998 to give the

commercial advertiser space, without reference to the product

being pushed, is for a city to take sides more than occasionally

on issues of life and health and energy and the ecosystem.

The case 1s further complicated by the likelihood of

commercial media using the buses to advertise their products.

The record indicates that the city of Phoenix is ready to accept

such advertisements. Commercial media advertising can be full

of political or religious content. In this way a radio station in

hoenix, like a station in San Francisco, could advertise on the

buses that it broadcasts Rush Limbaugh with a photo of the

man accompanying the sales pitch. A Christian radio station

could promote its product with a cross and a relevant message.

A movie house could announce the return of The Last

Temptation of Christ with an illustration of the Magdalen.

If the city of Phoenix is to be truly neutral on political and

religious issues, it must go beyond the simplicity of

"commercial" and be specific as to the content of commercial!

messages it will not accept. The city may, for instarice, specify

that the buses will not carry commercial messages on hot topics

-- e.g., abortion, cigars and cigarettes, environmental disputes,

euthanasia, pornography, radio talk shows, and X-rated movies.

The city will have to discriminate frankly as to content, as it

permissibly may in this commercial context. Such

27a

content-based restrictions are permissible in such non-public

fora. Perry Educ. Ass'n v. Perry Local Educators’ Ass'n, 460

U.S. 37, 49 (1983). What the city may not do is discriminate as

to viewpoint, Arkansas Educ. Television Comm'n v. Forbes,

118 S. Ct. 1633, 1643 (1998), as it did in this case where in the

course of applying its ordinance it effectively rewrote it to

permit only "primarily commercial" messages and thereby

froze out even commercial advertising by nonprofit groups

without significant business transactions to advertise

Of the three rationales for the city's policy, the avoidance of

violence against the buses seems to border on the absurd;

10thing in the record substantiates the fear. The other two

rationales -- neutrality on contentious political and religious

matters and the maintenance of standards attractive to business

advertisers -- would both be served by the kind of precision

Suggested here as essential to constitutionality. Neither

rationale is served by a policy that allows the ideology of one

side but not the other to be smuggled in.

The Phoenix ordinance, as applied, discriminates against

the appellants' commercial speech and the Phoenix ordinance,

as applied, fails to mark off a realm of ideology-free speech

from a realm where ideologues with businesses to advertise can

flourish. The preliminary injunction should have been granted.

28a

IN THE UNITED STATES DISTRICT COURT

IN AND FOR THE DISTRICT OR ARIZONA

CHILDREN OF THE ROSARY, KATHERINE SABELKO.

and ARIZONA CIVIL LIBERTIES UNION,

Plaintiffs,

CITY OF PHOENIX, et al.,

Defendants.

Civ. 97-0138-PHX-SMM

MEMORANDUM OF DECISION AND ORDER

INTRODUCTION

On or about November 1, 1996, the City of Phoenix, a

municipal corporation, adopted a new policy governing

advertising on buses owned by the City and used by members

of the public for public transportation in the greater Phoenix

metropolitan area. Specifically, this policy provides, “[t] he

subject matter of bus advertising shall be limited to speech

which proposes a commercial transaction.” Sabelko Decl. Ex.

H,{§ 25; City of Phoenix Answer § 5.16.

On March 20, 1997, Plaintiffs, the Children of the Rosary,

Katherine A. Sabelko, and The Arizona Civil Liberties Union,

filed suit seeking to have the foregoing Policy declared

unconstitutionally violative of the First Amendment to the

United States Constitution.

STANDARD OF REVIEW

The purpose of a preliminary injunction is to preserve the

status quo among the parties pending the outcome of the action.

Regents of the University of California v. A.B.C., Inc., 747

29a

F.2d 511, 515 (9th Cir. 1974),

To obtain a preliminary injunction, the moving party

must show either (1) a combination ef probable success

on the merits and the possibility of irreparable injury, or

(2) that serious questions are raised and the balance of

hardships tips sharply in its favor. These formulations

are not different tests but represent two points on a

sliding scale in which the degree of irreparable harm

increases as the probability of success on the merits

decreases. Under either formulation, the moving party

must demonstrate a significant threat of irreparable

injury, irrespective of the magnitude of the injury.

Dr. Seuss Enterprises, L.P. v. Penguin Books U.S. A.. Inc.. 109

F.3d 1394, 1397, n.1 (9th Cir. 1997) (quoting Big Country

Foods, Inc. v. Board of Educ., 868 F.2d 1085. 1088 (9th Cir.

1989( ); see also MAI Systems Corp. v. Peak Computer, Inc..

991 F.2d 511, 516 (9th Cir. 1993); Gilder v. PGA Tour, Inc..

936 F. 2d 417, 422 (9th Cir. 1991).

DISCUSSION

1. Irreparable Harm

“It is undisputed that the loss of First Amendment freedoms

for even minimal periods of time unquestionably constitutes

irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).

Thus, the irreparable harm part of the preliminary injunction

test is satisfied and tips in favor of the Plaintiffs. See also

Memphis Comm. School Dist. v. Stachura, 477 U.S. 299

(1986) (holding monetary recovery cannot compensate for

injury to intangible rights guaranteed by the Constitution).

30a

2. Likelihood of Success on The Merits for

Plaintiffs’ Facial Challenge

a. First Amendment Rights Are Clearly Implicated

Facially, the Advertising Policy at issue in this case

purports to ban all non-commercial speech from the forum. In

its Answer, the City of Phoenix admitted the facial ban on non-

commercial speech is aimed at excluding “political” and

“religious” speech from advertisement on City owned buses.

Answer at § 6.10. A governmental restriction targeting

political and/or religious speech clearly implicates the

constitutionally protected freedom of expression under the First

Amendment to the United States Constitution. See, e.g.,

Rosenbergere v. Rector and Visitors of University of Virginia,

115 S. Ct. 2510, 2520 (1995); Boos v. Barry, 485 U.S. 312,318

(1988). These facts are not disputed by the parties.

Given the Defendants Concession in its Answer, the Court

interprets the City of Phoenix Bus Advertising Policy in two

ways for the purposes of constitutional scrutiny. First, the

Court reviews the Policy facially. That is to say, the Court

reviews the constitutionality of the Policy that distinguishes on

the basis of commercial and non-commercial speech. The

Court also reviews the Policy in light of the unwnitten Policy of

interpretation admitted by the City in its Answer, namely that

the Policy is designed to exclude political and religious speech.

“(T] he fact that a policy is not committed to writing does not

itself constitute a First Amendment violation,” nor does it fail

to constitute one. Lebron v. National R.R. Passenger Corp., 69

F.3d 650, 658 (2d Cir.), aff'd on reh’g, 74 F.3d 371 (2d Cir.

1995), cert. denied, 116 S. Ct. 1675 (1996).

3la

b. The Forum That Is Implicated

The parties disagree as to whether the forum at issue in this

case is a limited public forum or a nonpublic forum. The

distinction is important because the level of judicial scrutiny to

be applied to the challenged Policy depends upon the type of

forum implicated. See, e.g., Frisby v. Schultz, 487 U.S. 474.

480 (1988).

i. The Three Types of Fora

The Supreme Court has identified three types of fora. The

first is known as the traditional public forum and includes such

places as public parks, open streets, and other areas open to the

public which “have been immemorially held in trust for the use

of the public, and, time out of mind, have been for purposes of

assembly, communication of thoughts between citizens. and

discussion of public questions.” Id. at 480 (quoting Hague v

Committee for Indus. Org., 307 U.S. 496 (1939)). The

traditional public forum is not implicated by the case at bar.

The second type of forum is known as the “designated” or

“Iumited public forum.” E.g., Rosenberger, 115 S. Ct. at 2516.

lt includes “public property which the State has opened for use

by the public as a place for expressive activity.” Perry Educ.

Ass'n v. Perry Local Educators Ass’n, 460 U.S. 37, 45 (1983):

Kindt v. Santa Monica Rent Control Board, 67 F.3d 266. 269

(9th Cir. 1995). Limited public fora are fora such as school

board meetings and municipal theaters where the government

has intentionally - not by inaction or by permitting limited

discourse - opened a nontraditional forum for public discourse.

See Cornelius v. N.A.A.C.P. Legal Def. & Educ. Fund. 473

U.S. 788, 802 (1985); Perry, 460 U.S. at 45-46.

32a

[he third and final type of First Amendment forum 1s

known as the nonpublic forum. These are places “which [are]

not by tradition or description a forum for public

communication.” Kindt, 67 F.3d at 269; see also Perry, 460

U.S. at 46. Essentially, any government property that is not

either a traditional public forum or a designated public forum

is considered a nonpublic forum. International Soc’y for

Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678-79

(1992) (holding inside of airport terminal was nonpublic

forum).

The relevant inquiry in determining which type of forum is

implicated in a case focuses on whether the government, in this

case the City of Phoenix, has intentionally opened the forum

‘for use by the public as a place for expressive activity.” Perry,

460 U.S. at 45. If the government has intentionally opened a

forum for expressive activity, then the forum is a limited public

forum; if it has not, the forum is a nonpublic one.

11. City Buses Are Not Public Fora

Plaintiffs contend the extenor of City buses constitutes a

limited public forum because “the City allows all members of

Plaintiffs Memorandum in Support of Application for

Preliminary Injunction at 17. This is a factually incorrect

statement. The Policy at issue does not open up City buses for

all types of expression. Rather, it allows only advertisements

that invite a commercial transaction.

It is perfectly permissible for the City to create a limited

public forum certain purposes, but not to open the forum for

others. See, e.g., Rosenberger, 115 S. Ct. at 2116-17. In fact,

the Supreme Court has stated “speech which is constitutionally

protected against state suppression is not thereby accorded a

33a

guaranteed forum on all property owned by the state.”’ Capito!

Square Review & Advisory Board v. Pinette, 115 S. Ct. 2440.

2446 (1995). Under the limited public forum analysis, property

remains a nonpublic forum as to all unspecified and/or

excluded uses and need only be reasonable and viewpoint-

neutral to pass constitutional muster. Deeper Life Christian

Fellowship, Inc. v. Board of Educ., 852 F.2d 676, 679-80 (2d

Cir. 1988) (citing Board of Airport Comm’rs of the City of Los

Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 574-75 (1987):

Cornelius, 473 U.S. at 802; Perry, 460 U.S. at 48). The Perr,

case 1s illustrative of this point.

In Perry, the Supreme Court found that the internal mail

facilities of a school district were not a limited public forum

because those who wished to use the mail system had to seek

permission from each school principal. There was no evidence

in Perry that such permission was routinely granted as a matter

of course. “This type of selective access,” the Court reasoned.

“does not transform government property into a public forum.”

Perry, 460 U.S. at 47.

“The access sought by the speaker” identifies the relevant

forum. Cornelius, 473 U.S. at 801. In the present case, the

forum at issue can be described as the City of Phoenix’s public

bus transportation network, and, more specifically, the

advertising spaces on the outside of these city buses. These

buses are owned by the City of Phoenix and are operated under

its control.

The interior of city-operated transit vehicles has been held

to be a nonpublic forum. Lehman v. City of Shaker Heights,

418 U.S. 298 (1974). In Lehman, a candidate for state office

sought to advertise his candidacy on buses in the City of Shaker

Heights’ transit system. While the City of Shaker Heights

34a

allowed commercial advertisements and messages from public

service groups to be placed in its buses, it refused to permit the

display of political advertisements of any kind. The Supreme

Court upheld this policy.

We have no open spaces, no meeting hall, park, street

corner, or other public thoroughfare. Instead, the city

is engaged in commerce .. . . The car card space,

although incidental to the provision of public

transportation, 1s a part of the commercial venture. In

much the same way that a newspaper or periodical, or

even a radio or television station, need not accept every

proffer of advertising from the general public, a city

transit system has discretion to develop and make

reasonable choices concerning the type of advertising

that may be displayed from its vehicles

Lehman, 418 U.S. at 303

In the Court’s opinion, Lehman is highly instructional in

the case at bar. While the exterior of buses 1s at issue in the

present case, not the interior as was the case in Lehman, the

reasoning in Lehman seems applicable to the exterior of buses

in the present case due to the Lehman Court’s emphasis on the

City of Shaker Height’s advertising policies as being part of a

‘commercial venture.” Id. The City of Phoenix is “engaged in

commerce” when it leases adVertising space on the exterior of

city buses just as the City of Shaker Heights was “engaged in

commerce” when it leased space on the interior of city buses

Id. This commerce is merely “incidental to the provision of

public transportation.” Id.

The fact that the City of Phoenix is acting in a commercial

venture means, although a governmental entity, it 1s acting as

a proprietor rather than a regulator. “Where the government is

35a

acting as a proprietor, managing its internal operations, rather

than acting as lawmaker with the power to regulate or license,

its action will not be subjected to the heightened review to

which its actions as a lawmaker may be subject.” International

soc’y for Krishna Consciousness v. Lee, 505 U.S. 672. 678

(1992) (upholding the government’s refusal to allow a

nonprofit religious corporation to solicit in the interior of an

airport terminal because the government was acting as a

proprietor facilitating passenger air travel).

Moreover, even when the government opens a nonpublic

forum for some speech (as Phoenix did to commercial speech),

the forum does not become a limited public forum if the

government did to intend to open the forum without limitation.

United States v. Kokinda, 497 U.S. 720, 730 (1990) (citing

Comelius, 473 U.S. at 802). Here, the limitation is stated in

plain language directly in the Advertising Policy at issue. A

court is not to find that a public forum has been created in the

face of clear evidence of a contrary intent. Cornelius, 473 U.S.

at 803. The inclusion of plain language of contrary intent in the

very Policy challenged by the Plaintiffs is clear evidence that

the City of Phoenix did not intend to create a limited public

forum for the expression of all types of ideas. There is no

policy or practice that demonstrates the City opened the

advertising space on the side of City buses “for indiscriminate

use by the general public.” Hazelwood School Dist. \

Kuglmeier, 484 U.S. 260, 267 (1988). Accordingly, this Court

holds that the buses owned and operated by the City of Phoenix

constitute nonpublic fora.

This Court is not alone in holding that city transportation

systems, although open to certain types of advertising, are not

imited public fora. The Second Circuit Court of Appeals

reached a similar conclusion in Lebron v. National R.R

36a

Passenger Corp., 69 F.3d 650 (2d Cir.), aff'd on reh’g, 74 F. 3d

371 (2d Cir. 1995), cert. denied, 116 S. Ct. 1675 (1996). In

Lebron, the court concluded a large advertising display space

mounted atop the interior of Penn Station in New York City

was a nonpublic forum, or, at most, “a limited public forum for

purely commercial speech.” Accordingly, the court upheld a

refusal to accept political advertisements as both reasonable

and viewpoint-neutral. Id. at 658; see also Gannett Satellite

Information Network, Inc. v. Metropolitan Transit Auth., 745

F.2d 767 (2d Cir. 1984); Christ’s Bride Ministries. Inc. v.

Southeastern Penn. Trans. Auth 937 F. Supp. 425 (E.D. Pa.

1996).

c. Reduced Scrutiny for Nonpublic Fora

Plaintiffs claim that “‘a content-based restriction (such as

the City’s Advertising Policy) is unconstitutional unless the

City establishes that the [Policy] is ‘necessary to serve a

compelling state interest and that it is narrowly tailored to

achieve that end.’ ”’ Plaintiffs’ Memorandum in Support of

Application for Preliminary Injunction at 20. That would be

the case if a public forum or limited public forum were at issue,

but since the Court has determined a nonpublic forum is at

issue in the present case, a less stringent degree of scrutiny

applies.

The constitutional standard governing speech regulations in

nonpublic fora is somewhat unclear. The Supreme Court has

elaborated on the standard in a number of cases over time, but

the Court’s language has not always been entirely consistent.

The cases have unequivocally held that any speech regulation

in a nonpublic forum must be “reasonable in light of the

purposes served by the forum.” Rosenberger, 115 S. Ct. at

2517; Lamb’s Chapel v. Center Moriches Union Free School

37a

Dist., 508 U.S. 384, 392-93 (1993); Cornelius, 473 U.S. at 806:

Perry, 460 U.S. at 49. “The cases have been less definitive.

however, regarding the neutrality standard that a nonpublic

forum speech regulation must meet.” Grossbaum_ v.

Indianapolis-Marion County Bldg. Authority, 100 F.3d 1287,

1297 (7th Cir. 1996), cert. denied, 117 S. Ct. 1822 (1997).'

In Postal Service v. Council of Greenburgh Civic

Ass’ns, the Court said that such speech restrictions

must be content-neutral. Id. In Perry and Cornelius.

however, the Court shifted its focus to viewpoint

discrimination and particularly to the intent to

discriminate against specific viewpoints. The Court

Stated that a regulation must not be “an effort to

suppress expression merely because public officials

oppose the speaker’s view,” and similarly that a

regulation must not be “in reality a facade for

viewpoint-based discrimination.” In its most recent

cases, meanwhile, the Court has said that nonpublic

forum regulations must be viewpoint neutral, making

no mention of impermissible intent.

Id. at 1297 (internal citations omitted).

The difficulty in sorting through the holdings of various

First Amendment cases and applying them to the specific facts

raised in an individual case is illustrated by the number of

appellate courts that have divided panels in such cases. For

example, Lehman was a plurality opinion. Rosenberger was 5-

4 decision, and two of the justices who voted with majority

wrote special concurrences. Lebron was a 2-1 decision. as was

Yeo v. Lexington, _—-~*F.3d__, 1997 WL292173 (lst Cir

June 6, 1997) (discussed infra)

38a

Having determined that city buses are nonpublic fora, and

further having determined that the City of Phoenix is acting not

as a regulator of speech or conduct, but rather as a proprietor

under the facts and circumstances of the case at bar, this Court

interprets the Supreme Court’s precedent to mean that

regulations against speech in the nonpublic forum that are not

content-neutral may be constitutional so long as they do not

discriminate on the basis of the viewpoint expressed.

Accordingly, the City of Phoenix may restrain speech on its

buses “based on subject matter and speaker identity so long as

the distinctions drawn are reasonable in light of the purpose

served by the forum and are viewpoint-neutral.” Kokinda, 497

U.S. at 730 (citing Cornelius, 473 U.S. at 806); see also

Lamb’s Chapel, 508 U.S. at 392-93.

39a

d. The Restrictions Are Reasonable

“The reasonableness of the Government’s restriction fon

speech in a nonpublic forum] must be assessed in light of the

purpose of the forum and all the Surrounding circumstances.”

Comelius, 473 U.S. at 809. The City has put forth four

governmental interests in banning non-commercial speech on

its buses:

(1) to maintain a position of neutrality on political and

religious issues;

—

a fear that allowing the exterior panels of City

buses to be used for religious and political

advertising may subject bus passengers and

drivers to physical harm including death or

serious personal injury, and may subject the

buses themselves to an increased likelihood of

property damage from acts of vandalism.

sabotage, terrorism, or mob violence:

that permitting the exterior panels on city buses

to be used for non-commercial advertising

purposes would reduce the City’s income

stream generated by this particular advertising

medium by dissuading commercial advertisers

from using the saying forum commonly used by

those wishing to communicate primarily

political or religious messages; and

(4) as to the plaintiff Sabelko’s proposed

advertisements, a concern that by allowing the

display of that plaintiff's religious signs, it will

send a message of endorsement in violation of

40a

the Establishment Clause of the United States

Constitution.

Answer at 9 6.10.’

Given the lower level of scrutiny that applies to the

constitutional review of restriction of freedom of speech in a

nonpublic forum, the Court need not decide if any of the above

stated reasons are “compelling” governmental interest. There

need only be a reasonable governmental interest to support the

City of Phoenix Policy at issue. See, e.g., Kokinda, 497 U.S.

at 732-34. Without reaching the sufficiency of the fourth stated

reason regarding the Establishment Clause, the Court finds

each of the first three purported reasons offered by the City of

Phoenix in support of its Policy banning non-commercial

speech on city buses to be “reasonable” both individually, in

their own right, and, alternatively, taken together as whole.

The Plaintiffs urged the Court at oral argument that none of

the above-referenced reasons were “reasonable” within the

constitutional framework of restrictions on speech in a

nonpublic forum. The Court disagrees. Several of these

justifications have been found to be “reasonable” by other

courts that have considered similar cases. For example, the

Supreme Court itself stated in Lehman that “there could be

lurking doubts about favoritism, and sticky administrative

problems might arise in parceling out limited space to eager

politicians.” 418 U.S. at 304. The Lehman Court also voiced

concern about the potential loss of revenue from other

advertisers. The Second Circuit in Lebron, 69 F.3d at 658, held

that ““Amtrack’s decision, as a proprietor, to decline to enter the

The advertisement is reproduced on page 38 of this

Memorandum of Decision and Order

4la

political arena, even indirectly, by displaying political

advertisements is certainly reasonable.” The Eighth Circuit in

Hubbard Broadcasting v. Metropolitan Sports found a refusal

to allow public interest groups to advertise on the scoreboard

at the Metrodome, determined by the court to be a nonpublic

forum, reasonable in light of potential revenue loss from

commercial vendors who might opt not to advertise in a similar

forum. Hubbard, 797 F.2d 552, 556 (8th Cir.), cert. denied.

479 U.S. 986 (1986).

In International Soc’y for Krishna Consciousness v. Lee,

505 U.S. 672, 678 (1992), the Court held the principal

functions of an airport terminal did not include “promoting the

free exchange of ideas,” but rather was a commercial

enterprise. Lee, 112 S. Ct. at 2707. The City of Phoenix’s

position with respect to its buses is analogous to that of the

government in Lee. The principle function of the City’s buses

is to provide safe transportation, not to “promote the free

exchange of ideas.” Id.; see also Christ’s Bride Ministries, Inc.

v. Southeastern Penn. Trans. Auth., 937 F. Supp. 425, 431

(E.D. Pa. 1996) (stating “commuters use the bus transportation

system to travel, not to debate.”’).

Consistent with its goals to provide safe public

transportation services to commuters, the City of Shaker

Heights had the discretion to develop and make reasonable

choices concerning the types of advertising that may be

displayed in its vehicles. The City of Shaker Heights’ refusal

to accept political advertising was held to be permissible under

the First Amendment. Lehman, 418 U.S. at 303. The City of

Phoenix has no less a right than the City of Shaker Heights to

make policies regarding the type of advertisements it wishes to

have displayed on its buses, especially in light of its stated,

42a

reasonable goals offered in support of the Policy challenged in

this lawsuit.

¢. The Constitutionality of the Restrictions

Because subject matter discrimination is constitutional in

nonpublic fora, see, e.g, Perry, 460 U.S. at 49, classifying a

particular law or policy as a “subject” rather than as a

“viewpoint on a subject” will justify discrimination against the

viewpoint. This inherent malleability of the line between

subject and viewpoint has forced courts to scrutinize carefully

any content-based discrimination. See Air Line Pilots Ass’n v.

Department of Aviation, 45 F.3d ] 144, 1159-60 (7th Cir. 1995)

(warning courts against retreating to an exaggerated level of

generality when examining content-based regulations).

Courts thus have struggled, for example, with the issue

of whether religious discussion should be categorized

as a subject (and therefore excludable from a nonpublic

forum) or as a viewpoint (and therefore constitutionally

protected). The Supreme Court faced a similar issue in

Cornelius where it was understandably dubious of the

argument that excluding all advocacy groups,

regardless of political orientation, from a government

charity drive was just Subject matter discrimination

rather than viewpoint discrimination. Because the

government was distinguishing among groups based on

the content of their messages (either advocacy or non-

advocacy), the Court remanded the case to see whether

the government was really targeting certain viewpoints.

Grossbaum, 100 F.3d at 1298. With these guidelines in mind.

the Court must determine if the challenged City of Phoenix

Policy is permissible content-based discrimination or

impermissible viewpoint-based discrimination.

43a

In Lehman, the key to the Supreme Court’s determination

that the City of Shaker Heights’s policy was constitutional was

that the policy was viewpoint-neutral. The policy did not ban

only those advertisements Supporting candidates from a

particular political party or opposing a particular ballot

initiative. The policy banned all political advertisements of any

kind, regardless of the viewpoint expressed in them. Such a

policy is said to be viewpoint-neutral although content-

restrictive.

i. The City’s Content-Based Restrictions Are Constitutional

The Plaintiffs assert that the content-based distinction

between commercial and non-commercial speech in the case at

bar is unconstitutional. In so arguing, they rely on cases such

as Metromedia, Inc., v. San Diego, 453 U.S. 490 (1981), and

Desert Outdoor Advertising v. City of Moreno Valley, 103 F.

3d 814 (9th Cir. 1996). Plaintiffs’ reliance on Metromedia and

cases in its progeny, however, is misplaced. Applying the

holding of Metromedia. the Desert Outdoor court invalidated

a city ordinance that imposed greater restrictions on non-

commercial speech than on commercial speech. These

ordinances were governmental restrictions on the display of

private signs from private property. The City of San Diego in

Metromedia and the City of Moreno Valley in Desert Outdoor

Were acting as regulators. As discussed above. however, the

City of Phoenix is not acting in its governmental Capacity as a

regulator in the present case. Rather, it is acting as a proprietor

in a commercial venture. and the City’s regulations apply not

to private signs on private property, but rather to its own

proprietary advertising space. Lehman makes clear that when

a governmental entity is acting as proprietor and not as

regulator, content-based distinctions, so long as they are

viewpoint-neutral, are permissible under the First Amendment

44a

The City of Phoenix’s Policy is nearly identical, if not in

form and substance, at least in spirit and interpretation, to the

policy upheld by the Supreme Court in Lehman. Phoenix’s

Policy accepts commercial advertisements but refuses to accept

advertisements that do not propose a commercial transaction,

such as religious or political messages.’ The City of Phoenix,

therefore, has established a content-based restriction on

advertisements on City owned and operated buses. The C ity of

Phoenix has not established a policy that allows some forms of

political advertisement and not others, nor has it established a

policy that allows some types of religious advertisements and

not others. It is a content-based but viewpoint-neutral policy

that, according to the evidence submitted by the parties, has

been consistently applied since its adoption. This Court holds

such a policy does not violate the First Amendment to the

United States Constitutions. Lehman, 418 U.S. at 303.

il. The City’s Restrictions are Viewpoint-Neutral

The Plaintiffs assert that because the intent of the City of

Phoenix’s Policy is to exclude political and religious speech, it

is impermissibly viewpoint-based. The Court disagrees.

Government regulation may not favor one speaker over

another .... Discrimination against speech because of

‘i its message is presumed to be unconstitutional . . __

At this juncture, the Court notes its analysis is on the

City of Phoenix Policy as written since a facial challenge has

been made to it. The Plaintiffs appear to have also made an “as

applied” challenge by submitting evidence that the City’s

Policy is not followed and/or enforced consistently. Such

arguments are not addressed in this section of the Court’s

Order, but rather in Section III.

45a

When the government targets not subject matter, but

particular views taken by speakers on a subject, the

violation of the First Amendment is all the more

blatant.

Rosenberger, 115 S. Ct. at 2516.

The City of Phoenix has a content-based restriction. But

the City’s Policy does not do what Rosenberger warns against.

The City’s Policy does not allow certain political

advertisements and not others, nor does the Policy allow some

religious advertisements and not others. It has not targeted “‘the

particular views taken by speakers” with regard to political or

religious speech. No matter what viewpoint may be espoused

by potential non-commercial advertisers, their advertisements

are banned when the subject matter, taken as a whole, fails to

propose a commercial transaction. The Policy is therefore not

viewpoint-based.

Plaintiffs urge the Court that the Supreme Court’s decisions

in Lamb’s Chapel and Rosenberger require the Court to find

the City of Phoenix’s Policy is impermissibly viewpoint-based.

The Court disagrees. In Lamb’s Chapel, the Court struck down

a regulation that barred the use of New York City public

schools after school hours for religious purposes. The Court

invalidated the policy stating:

That all religions and all uses for religious purposes are

treated alike under [the policy], however, does not

answer the critical question whether it discriminates on

the basis of viewpoint to permit school property to be

used for the presentation of all views about family

issues and child-rearing except those dealing with the

subject matter from a religious standpoint.

46a

Lamb’s Chapel, 508 U.S. at 393. It was clear in Lamb’s

Chapel that lectures or films about child-rearing and family

issues were permitted under the policy since the policy

permitted access for “social, civil, and recreational purposes.”

Id. at 391. Because the films the Lamb’s Chapel plaintiff

sought to show “dealt with a subject otherwise permissible”

under the City of New York’s policy, it was clear the only

reason the plaintiffs were denied access to the forum was

because their treatment of “otherwise permissible” subject

matter was from a viewpoint that was not permitted - a religious

one. Such viewpoint discrimination was held to be

unconstitutional. Id. at 394.

The Rosenberger case was quite similar to the Lamb’s

Chapel case insofar as otherwise permissible content was

banned because it was approached from a religious perspective.

In Rosenberger, the plaintiffs were members of a student

organization at the University of Virginia. The group was duly

chartered and organized under the relevant University

procedures. One of the group’s activities was “to publish a

magazine of philosophical and religious expression and to

facilitate discussion which fosters an atmosphere of sensitivity

to and tolerance of Christian viewpoints.” Rosenberger, 115 S.

Ct. at 2515. Plaintiffs’ organization sought funding for the

publication of their magazine from the University’s Student

Activities Fund (“SAF”). The SAF was funded using monies

from a mandatory student fee. Their request was denied. After

exhausting their university-based remedies, they sought relief

in federal court under 42 U.S.C. Section 1983. The Supreme

Court declared the University’s denial of funding for the

plaintiffs’ magazine to be unconstitutional. The Court found

the University’s denial was impermissibly based on viewpoint

discrimination.

47a

Central to the Supreme Court’s reasoning was that funding

was denied because of the Christian viewpoints expressed in

the magazine. The magazine was not devoted to the advocac\ )

of religion. In the magazines’ first two issues, there were

articles about racism, crisis pregnancy, stress, prayer, C.S.

Lewis’ ideas about evil and free will, homosex uality, Christian

missionary work, and eating disorders. There were also music

reviews and interviews with professors.

By the very terms of the SAF prohibition, the

University does not exclude religior: as a subject matter

but selects for disfavored treatment those student

journalistic efforts with religious editorial viewpoints.

Religion may be a vast area of inquiry, but it also

provides, as it did here, a specific premise, a

perspective, a standpoint from which a variety of

subjects may be discussed and considered. The

prohibited perspective, not the general subject matter,

resulted in [the denial of the requested funds].

Id. at 2517. It thus appears to this Court that a critical feature

in Rosenberger was the fact that topics of intellectual and social

discourse, which are to be fostered in the Univ ersity setting,

had been denied the same abilities for student-funded

publication and the robust debate that follows such publication

because they were addressed from a religious viewpoint.

Additionally, the University of Virginia was regulating the

dissemination of ideas in print media vis-a-vis its SAF policy

in Rosenberger. As stated above, Phoenix. in allowing

commercial advertising on its city buses, is not acting as

regulator but as a proprietor.

Unlike New York City in Lamb’s Chapel or the Univ ersity

of Virginia in Rosenberger, the City of Phoenix does not

disallow Plaintiffs’ proposed advertisements because they

48a

approach an issue from a Christian perspective. Rather. the

Policy disallows all political and religious speech because they

do not “propose a commercial transaction.” Lamb’s Chapel and

Rosenberger are therefore inapposite.

iu. Alternative Channels for Communication

An additional consideration leading to the conclusion that

the City of Phoenix’s restrictions are “reasonable” is the

availability of alternative channels for the Plaintiffs to

communicate their non-commercial messages. See Florida Bar

v. Went For It, Inc., 115 S. Ct. 2371, 2380-81 (1995).

Plaintiffs may use television, radio, and newspaper

advertisements, as well as placards, handbills, and other types

of communication in the public fora to spread their messages.

Plaintiff Sabelko’s Third Declaration in Support of the

Application for Preliminary Injunction demonstrates that

Plaintiffs’ bumper sticker sales are-an alternative forum for

them to communicate their messages and that the business of

disseminating their messages via this medium is alive and well.

The City of Phoenix’s Bus Advertising Policy leaves open all

of these alternative avenues for Plaintiffs to communicate the

messages they seek to disseminate, and many more. All the

Policy does is prevent non-commercial advertisements from

being communicated in a nonpublic forum.

iv. Conclusion on the Constitutionality of the Policy

For the reasons set forth above, the Court has determined

the City of Phoenix’s Policy is constitutional because, although

content-based, it is both viewpoint-neutral and reasonable.

Further, the Court finds there are alternative channels for

Plaintiffs to communicate their messages. Accordingly,

Plaintiffs have not met their burden in demonstrating a

likelihood of success on the merits regarding their forum-based

49a

challenge to the constitutionality of City’s Bus Advertising

Policy. The Application for a Preliminary Injunction on that

‘ ° * . 4

basis 1s therefore denied.

f. Facial Vagueness

Plaintiffs, invoking the third-party standing doctrine to

make a facial challenge to the City’s Policy, assert the Policy

is unconstitutionally vague. At the outset, the Court notes that

it is skeptical of a vagueness challenge to an advertising policy

as opposed to a substantive law.

Vagueness is concerned with the clarity of a law. A

law must be drawn with sufficient clarity so that it

informs people of the conduct they must take to avoid

the sanction of the particular law. Under procedural

due process, a statute is not constitutionally fair if it

fails to give such information. However, an unclear

Statute may have First Amendment a well as procedural

due process impact. A law regulating expression has to

be especially clear because, if it is not specific,

protected expression may be chilled or suppressed.

* The Court’s ruling regarding the constitutionality of the

City of Phoenix’s Bus Advertising Policy is, of course, based

on its determination that a nonpublic form is at issue in the

present case. If the Court erred in this regard, that is to say if

a limited public forum were at issue in the present case, the

Court has little doubt that the City’s Bus Advertising Policy

would not survive strict scrutiny constitutional analysis since

it is not narrowly tailored to achieve the goals set forth by the

City of Phoenix - goals which may or may not be compelling

state interests under a strict scrutiny analysis.

50a

Jerome A. Barron and C. Thomas Dienes. Constitutional Law

303 (West 1995) (hereinafter “Barron’’).

Given the purpose of the vagueness doctrine as explained

by Professors Barron and Dienes above, it is questionable that

the doctrine would apply to the present case since no law is at

issue. There is no statute, ordinance, or judicial order that

would subject a would-be speaker to any type of sanctions in

the present case. Accordingly, it is nearly impossible to see

how the City of Phoenix’s Bus Advertising Policy could have

a chilling effect on the free exercise of the one’s free speech

rights. At worst, someone who wished to place an

advertisement on a City of Phoenix bus could submit an

advertisement and have it rejected under the Policy. There is

no sanction for such a rejection.

The above caveat having been made, the Court nonetheless

examines the City’s Policy for vagueness. Plaintiffs argue that

the use of the phrase “speech that proposes a commercial

transaction” in the City of Phoenix’s Policy is

unconstitutionally vague. A nearly identical argument was

asserted in Major Media of the Southeast v. City of Raleigh,

792 F.2d 1269, 1272 (4th Cir. 1986), cert. denied, 479 U.S.

1102 (1987), in which the plaintiffs challenged an ordinance

that failed to define “commercial” or “non-commercial” speech

as unconstitutionally vague. Both the district court and the

court of appeals held that sufficient guidance was given for

such a distinction by various Supreme Court decisions relating

to billboard and other commercial speech. The court cited the

Supreme Court’s decision in Central Hudson Gas & Elec. v.

Public Servs. Comm’n, 447 U.S. 557, 561 (1980), which stated

that commercial speech was “expression related solely to the

economic interests of the speaker and its audience.”

Sla

This Court finds the Major Media court’s reasoning to be

persuasive. To quote the Major Media court, “although an

occasional marginal case might arise raising the question of

whether, on the particular facts, the definition of commercial

speech would be correct, such an infrequent possibility should

not in itself justify a generalized charge that the [policy] is

vague.” Id. at 1272-73. The present case may be one of the

“marginal cases” of which the Major Media court spoke raising

particular facts that render the City of Phoenix’s Policy as

applied to the Plaintiffs unconstitutionally vague. Id. The

Court, therefore, will undertake an “as applied” vagueness

analysis in Section III of this Order. But the Court refuses to

label the distinction between commercial and non-commercia!

speech unconstitutionally vague in light of prior Supreme Court

precedent. See, e.g., Virginia Pharmacy Bd. v. Virginia

Citizens Consumer Council, 425 U.S. 748, 779-80 (1976)

(defining commercial and non-commercial speech); Edenfield

v. Fane, 507 U.S. 761 (1993) (same). Plaintiffs have thus

failed to establish a likelihood of success on the merits under

a facial vagueness theory, and their Application for Preliminary

Injunction on that basis is denied accordingly.

g. Overbreadth

i. Overbreadth Generally

Plaintiffs also challenge the City’s Policy as overbroad.

Under the First Amendment overbreadth doctrine, regulations

addressed to legitimate governmental concerns cannot “sweep

unnecessarily broadly and thereby invade the areas of protected

freedoms.” N.A.A.C.P. v. Alabama, 377 U.S. 288, 307 (1964).

The doctrine allows an individual whose own speech or

conduct may be prohibited to challenge a statute on its face

“because it also threatens others not before the court — those

who desire to engage in legally protected expression but who

52;

may refrain from doing so rather than risk prosecution or

undertake to have the law declared partially invalid.” Brockett

v. Spokane Arcades, Inc., 472 U.S. 491, 503 (1985).

The overbreadth doctrine, however, is to be used sparingly

and only in rare circumstances. A law may be invalidated on its

face under the doctrine only if the overbreadth is “substantial.”

Jews for Jesus, 482 U.S. at 574 (citing Houston v. Hill, 482.

U.S. 451, 458-59 (1987); New York v. Ferber, 458 U.S. 747.

769; Broadrick v. Oklahoma , 413 U.S. 601, 615 (1973)). The

requirement that the overbreadth be substantial arose from the

Supreme Court’s recognition that application of the

overbreadth doctrine is, “manifestly, strong medicine” to be

employed “sparingly and only as a last resort.” Broadrick v

Oklahoma, 413 U.S. at 613. “There must be a realistic danger

that the statute itself will significantly compromise recognized

First Amendment protections of parties not before the Court for

it to be facially challenged on overbreadth grounds." City

Council of Los Angeles v. Taxpayers for Vincent, 466 U.S.

789, 801 (1984). Barron, supra, at 304, explains the Court's

rationale is due to the fact that it is rarely proper to invalidate

a law based on possible, imagined applications of it in the

future that may never arise.

Given the purposes of the overbreadth doctrine as discussed

above, the Court questions whether the doctrine has any

applicability to the present case because no law is being

challenged. The very purpose of the doctrine is to allow

someone to challenge a law on behalf of someone else not

before a court who might otherwise freely exercise the right to

engage in legally protected expression, but who refrains from

doing so because of the "risk. [of] prosecution" if the

expression is made. Brockett, 472 U.S. at 503. There is no

threat of prosecution or threat of any other sanction in the

present case. At worst, one who desires to express himself or

herself by advertising on City buses must seek an alternative

forum for his or her message.

ul. Analysis Part 1: Other Persons’ Chilled Speech

Even if the doctrine of overbreadth were applicable to the

present case, the doctrine requires that there be a realistic

danger that the proscription being challenged will significantly

compromise recognized First Amendment protections of parties

not before the Court for it to be facially challenged on

overbreadth grounds. See Erznoznik v. City of Jacksonville,

422 U.S. 205, 216 (1975); Ohralik v. Ohio State Bar Assn., 436

U.S. 447, 462 n. 20(1978). Plaintiffs have not met this burden.

While it is true, as Plaintiffs argue, that "a law is void on its

face if it does not aim specifically at the evils within the

allowable area of government control,” see Plaintiffs’

Memorandum in Support of Application for Preliminary

Injunction at 39 (emphasis added), Plaintiffs consistently fail

to see that there is no law at issue in this case. As with the

vagueness doctrine, it is difficult to see how free speech could

be chilled by the City's Policy due to fear of the imposition of

a sanction.

The lack of any possible sanction that might chill otherwise

protected free speech differentiates the present case from cases

like Jews for Jesus and Tucker, two cases the Plaintiffs urged

the Court to follow in terms of the applicability of the

overbreadth doctrine to the facts of the present case. Neither

case, however, convinces the Court that the "strong medicine"

of the doctrine of overbreadth should be used to invalidate the

City of Phoenix's Bus Advertising Policy. Broadrick, 413 U.S.

at 613.

54a

In Tucker v. State of Cal. Dept. of Educ.,97 F.3d 1204 (9th

Cir. 1996), there was an order issued by the California

Department of Education regulating the free speech nrighits of its

employees. Violation of the order subjected the would-be

offender to a sanction. Such is simply not the case with regard

to the City of Phoenix's Bus Advertising Policy in the present

case.

In Board of Airport Comm'rs of City of Los Angeles v.

Jews for Jesus, Inc., 482 U.S. 569 (1987). the City of Los

Angeles enacted a policy banning all First Amendment

expression within the terminals of Los Angeles International

Airport ("LAX"). The policy provided that "the City Attorney

of the City of Los Angeles is directed to institute appropriate

litigation against such individual and/or entity to ensure

compliance with this Policy statement of the Board of Airport

Commissioners." Id. at 571. In light of the possibility of a

legal sanction, "a virtual 'First Amendment Free Zone" at LAX

was held to be unconstitutionally overbroad. Id. The

overbreadth was substantial--"it prohibit[ed} even talking and

reading, or the wearing of campaign buttons or symbolic

clothing. Under such a sweeping ban, virtually ever individual

who enters LAX may be found to violate the resolution of

engaging in some 'First Amendment activit[y].'"" Id. at 575

There is no chance of a similar chilling effect on free

expression in the present case because there is no sanction. An

advertisement that does not meet the City of Phoenix's Bus

Advertising Policy is simply rejected, and other avenues of

communication exist for the speaker to express his or her

messages. Further, there can be no doubt that the Policy at

issue in the present case does not create a "First Amendment

Free Zone" as it does not affect people's ability to talk, read, or

55a

otherwise exercise Free Amendment liberties the way the

Policy in Jews for Jesus did. Id.

iii. Analysis Part 2: Proprietor in Nonpublic Forum

"A city transit system has discretion to develop and make

reasonable choices concerning the type of advertising that may

be displayed from its vehicles." Lehman, 418 U.S. at 303.

Accordingly, the Lehman Court upheld the City of Shaker

Heights' policy banning political advertisements of all kinds as

"reasonable" and did not declare the policy overbroad. Similar

restrictions by governmental entities acting as proprietor rather

than regulator that discriminated based on content using a

commercial versus non-commercial basis have been upheld and

were thus were not unconstitutionally overbroad. See. e.2.,

Lebron v. National R.R. Passenger Corp., 69 F.3d 650 (2d

Cir.), affd on rehq, 74 F.3d 37] (2d Cir. 1995), cert. denied.

116S. Ct. 1675 (1996); Gannett Satellite Information Network,

Inc. v. Metropolitan Transit Auth., 745 F.2d 767 (2d Cir.

1984); Christ's Bride Ministries, Inc. v. Southeastern Penn.

Trans. Auth., 937 F. Supp. 425 (E.D. Pa. 1996).

This Court has already determined that the City of

Phoenix's Policy is a reasonable, content-based. viewpoint-

neutral policy. The fact that there may be less restrictive means

for the City to accomplish its stated interests in having adopted

the Policy does not invalidate the Policy. "The government

need not choose the least restrictive alternative when regulating

speech in a nonpublic forum." Tucker, 97 F.3d at 1216.

Reasonableness, not narrow-tailoredness, is what is required.

E.g., Kokinda, 497 U.S. at 735-36. Plaintiffs have thus failed

to establish a likelihood of success on the merits under an

overbreadth theory, and their Application for Preliminary

Injunction on that basis is denied accordingly.

50a

h. Underbreadth

Plaintiffs assert, relying on City of Ladue v. Gilleo, 512

U.S. 43 (1994), the City's Policy is unconstitutionally under-

inclusive. Specifically, Plaintiffs state:

The City claims an interest in excluding controversial

political and religious issues. However, as discussed

above, much commercial speech is infused with

political and religious elements. Yet, the policy does

not ban commercial speech, let alone commercial

speech containing religious or political elements

Plainuffs Memorandum in Support of Application for

Preliminary Injunction at 41 (citations omitted).

While the Policy at issue very well may be under-inclusive,

that does not render the City's Policy unconstitutional. Under

inclusiveness renders a law uncoustitutional when "its

exemptions discriminate on the basis of the . .. messages" such

that the regulation of expression represents "a governmental

attempt to give one side of a debatable public question an

advantage in expressing its views to the people." Ladue, 512

U.S. 51 (citations omitted) he City of Phoenix's Bus

Advertising Policy does not do this; it allows advertisements

that propose a commercial transaction and disallows those that

contain non-commercial speech (i.e., ideological

communications)

Plaintiffs reliance on Ladue is misplaced. Ladue struck

down a restriction on non-commercial speech at people's

private residences. The City of Ladue was acting as a

governmental entity restricting speech. Such is simply not the

case here. Moreover, the Supreme Court in Ladue made

57a

special comment of the fact that the City of Ladue was

restricting freedom of speech in people's private residences --

a location that is afforded "special respect" for individual

liberty. Ladue, 512 U.S. at 58 (citing Payton v. New York, 445

U.S. 573 (1980), and Spence v. Washington, 418 U.S. 405

(1974)). Plaintiffs’ underbreadth challenge is therefore

rejected, and their Application for Preliminary Injunction on

the basis of underinclusiveness is denied accordingly.°

i. Establishment Clause

Plaintiffs further challenge the City of Phoenix Bus

Advertising Policy as violative of the Establishment Clause of

the First Amendment to the United States Constitution.

Plaintiffs do so relying primarily on Rosenberger v. Rector &

Visitors of the University of Virginia, 115 S.Ct. 2510 (1995),

and Widmar v. Vincent, 454 U.S. 263 (1981). The Supreme

Court in Rosenberger and Widmar held, inter alia, that it does

not violate the Establishment Clause if the government grants

equal access to a governmental forum if such access is done on

a religion-neutral basis. The Plaintiffs argue that Rosenberger

Again, as with overbreadth, the Court also notes that

other courts that have upheld restrictions on speech in the

nonpublic forum based on a commercial versus noncommercial

distinction did not hold that such a distinction was

unconstitutionally underinclusive. See, e.g., Lebron v. National

R.R. Passenger Corp., 69 F.3d 650 (2d Cir.), aff'd on reh'g, 74

F.3d 371 (2d Cir. 1995), cert. denied, 116 S. Ct. 1675 (1996);

Gannett Satellite Information Network, Inc. v. Metropolitan

Transit Auth., 745 F.2d 767.(2d Cir. 1984); Christ's Bride

Ministries, Inc. v. Southeastern Penn. Trans. Auth., 937 F.

Supp. 425 (E.D. Pa. 1996).

58a

and Widmar also teach that governmental "exclu[sion of]

religious expression impermissibly entangles the government

with religion.” Plaint ffs' Memorandum in Application for

Preliminary Injunction at 44. The Court disagrees.

It was not the exclusion of religion as a topic that was

found to be constitutionally impermissible in Rosenberger or

Widmar. As discussed above, Rosenberger found the

University of Virginia's decision not to fund the plaintiffs’

magazine to be unconstitutional because

the University's regulation required public officials to

scan and interpret student publications to discern their

underlying philosophic assumptions respecting

religious theory and belief. That course of action was

a denial of the nght of free speech and would risk

fostering a pervasive bias or hostility to religion, which

could undermine the very neutrality the Establishment

Clause requires.

Rosenberger, 115 S.Ct. at 2525

In Widmar, the Supreme Court held that a university which

had created a wide-open and independent forum for registered

student groups could not exclude those groups who sought to

use the facilities for religious worship or discussion. The

evidence indicated that but for the university's erroneous belief

that allowing religious groups to use the facilities violated the

Establishment Clause, the university possessed the clear intent

to open its facilities to all student groups. Thus, it was not

remaining neutral on religion as a topic, but rather the

university had acted to suppress the expression of religious

viewpoints in a forum it had otherwise intentionally created for

student discourse.

59a

The Policy challenged in the present lawsuit is quite

different from Rosenberger and Widmar. Importantly, the

Policy does not seek to suppress the expression of religious

viewpoints; it bans non-commercial speech. While it is

conceded the purpose of this ban is to prevent the City from

being involved in the display of religious and political

messages, the Policy accomplishes this end via a content-based,

viewpoint-neutral policy. Perhaps more importantly, however,

Rosenberger and Widmar addressed free speech concerns

within the public forum/limited public forum framework.

Equally important to this Court is the fact that the

governmental actions in Rosenberger and Widmar were

regulatory, not proprietary. Because the City of Phoenix is

acting as proprietor, not regulator, in a nonpublic forum in the

present case, Rosenberger and Widmar, although highly

instructive, are not directly on-point.

The City argues it has a legitimate if not compelling

governmental interest in avoiding the appearance of having

endorsed the political and religious nature of the advertisement

proposed by Plaintiffs Children of the Rosary and Katherine

Sabelko.®° The Court agrees. The core of the Establishment

Clause is "the prohibition against governmental endorsement

of religion preclud[ing] government from conveying or

attempting to convey a message that religion or a particular

religious belief is favored or preferred." County of Allegheny

v. A.C.L.U., 492 U.S. 573, 597 (1989) (holding a créche

° The Plaintiffs' Establishment Clause challenge is

presumably limited to the advertisement proposed by Plaintiffs

Children of the Rosary and Sabelko because the advertisement

proposed by the Anzona Civil Liberties United does not

contain any religious message, only a political one.

60a

displayed in a government building did have the effect of

conveying a message of state-endorsed religion and therefore

violated the Establishment Clause).

"[Gjovernment inculcation of religious beliefs has the

impermissible effect of advancing religion." Agostini v.

Felton, 1997 WL 338583, *13. (U.S. June 23 1997). The City

argues that allowing non-commercial speech (i.e., ideological

communications) on City buses might give the appearance of

government endorsement of the political and/or religious nature

of the communication at issue in a non-commercial

advertisement. The government has a legitimate interest, if not

a compelling one, in seeking to avoid the appearance of

governmental endorsement of religious messages. Allegheny,

109 S.Ct. 3100-05. The Court finds the case of Tucker v. State

of California Dept. of Educ. to be instructive in determining

whether the City's Policy offends the Establishment Clause.

Tucker, 97 F.3d 1204 (9th Cir. 1996).

In Tucker, the Ninth Circuit struck down a California

Department of Education policy banning the storage or display

of any religious artifacts, tracks, information, and materials as

violative of the First Amendment. Central to the court's

reasoning was the fact that "reasonable persons are not likely

to consider all of the information posted on bulletin boards or

walls in government buildings to be government-sponsored or

endorsed." Id. at 1215. Accordingly, a total ban on the posting

of religious information of any kind in a nonpublic forum was

held to be unreasonable. Id.

Unlike in Tucker, there is a very real concern in the present

case that members of the public might find political or religious

messages displayed on the side of City of Phoenix buses to be

endorsed by the City. This case is therefore more analogous to

6la

Monterey County Democratic Central Comm. v. U.S. Postal

Serv., 812 F.2d 1194 (9th Cir. 1987) where the court upheld a

ban on partisan political activity on the walkway area around

a post office after determining the area at issue was a nonpublic

forum. In distinguishing Tucker from Monterey, the Tucker

court said of the Monterey case, "[t]here, we had reason to be

concerned that the public might believe that the government

endorsed the particular activity sought to be carried on. Here

(in Tucker], that is simply not the case." Tucker, 97 F.3d at

1215.

The Court also finds the case of American Jewish Congress

v. City of Beverly Hills, 65 F.3d 1539 (9th Cir. 1995), to be

instructive. In that case, the Ninth Circuit directly addressed

the issue of state endorsement of a religious message proposed

for display on governmental property by a private group. The

court summarized the facts as follows:

Since 1986, Beverly Hills has allowed Chabad to erect

a menorah in Beverly Gardens Park for approximately

two weeks each year during the Chanukah season. The

menorah is 27 feet tall and 24 feet wide, and weights

5,500 pounds. It is bolted to a permanent, concrete

foundation that the City allowed Chabad to install in

the park. Chabad covers the foundation with sod

during the rest of the year. . . . The City does not fund

the menorah or Chabad.

Id. at 1541. The American Jewish Congress filed a lawsuit

arguing the display violated the Establishment Clause. There

argument was, in part, based on the close proximity of Beverly

Gardens Park to Beverly Hills City Hall. The Ninth Circuit

reversed the entry of summary judgment on behalf of Beverly

Hills finding that a genuine issue of material fact existed as to

whether a reasonable observer confronted with the Chabad

display might identify the City as the menorah's sponsor.

The Court has already stated that it finds there is a genuine

concern that allowing ideological communication of a political

and/or religious nature on the side of City buses might be

interpreted as endorsement by the City of Phoenix. At

minimum, the Court concludes the decision in American

Jewish Congress suggests that the resolution of that issue

precludes the entry of summary judgement since a triable issue

as to such endorsement exists. Accordingly, Plaintiffs have not

met their burden showing a "likelihood of success on the

merits” that would warrant the entry ofa preliminary injunction

on their Establishment Clause claim. Their Application for a

Preliminary Injunction on that basis is denied accordingly.

3. Likelihood of Success on the Merits for Plaintiffs’

As Applied Challenge

In addition to challenging the use phrase "speech that

proposes a commercial transaction" as being generally vague,

Plaintiffs also challenge the Policy as vague because, in some

instances, it would be virtually impossible for a city

administrator to make an intelligent decision regarding whether

a particular proposed advertisement is or is not a permitted

commercial advertisement. As an example, Plaintiffs point to

one of the advertisements that Plaintiff Sabelko has attempted

to submit, but the City has refused to accept.

Plaintiffs Children of the Rosary and Katherine Sabelko

seek to place the following advertisement on Phoenix City

buses:

63a

Before I formed you in the womb, I knew you." - God

Jeremiah 1:5

Purchase this message as a bumbersticker

for your vehicle!

Contact 602-848-8031

LOGO Children of the Rosary CHOOSE LIFE!

The logo of the Children of the Rosary shows a fetus

surrounded by a rosary that includes a cross.

Plaintiffs Arizona Civil Liberties Union seek to place the

following advertising on Phoenix city buses:

The ACLU Supports Free Speech for Everyone

To purchase this bumper sticker please call 602-650-1967

Both of the above-reproduced advertisements were rejected

by the City of Phoenix. Plaintiffs argue they both meet the

facial requirements of the City’s Bus Advertising Policy

because they both propose a commercial transaction. The

Court disagrees as both advertisements blend commercial and

non-commercial speech.

The proposed advertisement submitted by Plaintiffs

Children of the Rosary and Katherine Sabelko blends both a

religious and political message with an invitation to purchase

a bumper sticker of that same religious and political message;

the one submitted by the Arizona Civil Liberties Union blends

a political message with an invitation to purchase a bumper

sticker of that same political message. In so combining the

alleged commercial transaction (i.e., the purchase of the

bumper sticker) with the religious and/or political messages,

the Plaintiffs have purposefully attempted to blur the

. -

64a

distinction between commercial and non-commercial speech.

Their attempt to so do, however, is unavailing.

In 1976, Justice Stewart referred to commercial speech as

“commercial price and product advertising . . . confined to the

promotion of specific goods and services” and non-commercial

speech as “ideological communication.” Virginia Pharmacy

Bd. v. Virginia Citizens Consumer Council, 425 U.S. 750, 779-

80 (1976). Four years later, the Court reaffirmed this definition

when it said commercial speech was “expression related solely

to the economic interests of the speaker and its audience.”

Central Hudson Gas & Elec. v. Public Servs. Comm’n, 447

U.S. 557, 561 (1980).

There can be no doubt that the message in the above-

reproduced advertisements are “ideological communication [s]”

in their mos: basic sense. Virginia Pharmacy Bd., 425 U.S. at

779-80. The proposed advertisements do not promote pricing

or product advertising of “specific goods and services.” Id. Nor

are the proposed advertisements an “expression related solely

to the economic interests” of the Plaintiffs and their intended

audience. Central Hudson Gas, 447 U.S. at 561.

As far back as 1942, the Supreme Court rejected the

intentional blurring of the lines between commercial and non-

commercial speech within the context of a vagueness challenge

in Valentine v. Chrestensen, 316 U.S. 52 (1942).’ The plaintiff

7 The Court is mindful of the fact that Valentine was

decided in a time when commercial speech was not given the

constitutional protection it enjoys today. However, the

rationale of the Court’s opinion regarding attempts to transmute

essentially one form of speech into another appears to be both

sound and valid law.

65a

in Valentine brought a former U.S. Naval submarine to a state

pier in New York City to exhibit it for profit. He had printed

a handbill advertising the submarine and soliciting visitors for

a stated admission fee. When he attempted to distribute the

handbill, he was advised by police that doing so on city streets

violated a city ordinance prohibiting the distribution of

handbills containing commercial and business advertising

matter on city streets. He then prepared a double-faced

handbill reproducing his advertisement on one side without

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