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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1999
- **Citation:** 526 U.S. 1131

## 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

NW

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?

th

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)

il
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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1186 42 USL. 2198S occ Peek oar LEE ae ie eas 4
UNS SG SEU BR AOU ob 6c eee sd ha bed eee ns 1]
Ue CRI RE I i as Eee ie eae ese ea eae es 1

(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.

4
Pe

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.).

4

> 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

WN

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.”

6

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

10
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)

12
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.

12
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.

9
(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

J

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

ry

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

| . ‘ } . —. | rn " .
Union that prompted the exclusion of the proposed messages

16

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

18

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)

19

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

20

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).

21

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,

a

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

‘
23

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

24
[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
4

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

)-
La

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.

I

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).

+

Ja

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

4a

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.

I]

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."

~

Ja
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.

A

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

0a
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

7a
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.”

a%

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.

9a

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.

—"
se

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.

B

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.

D

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.

IV

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,

V.

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).

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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

X

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;

—
Nm

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:

om
oe
~

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 co

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1389%3A1. Public record. Not legal advice.