In a case with statewide implications, a lawyer for the City of Phoenix argued to the Court of Appeals Tuesday that governments can decide to allow ads for condoms and contraceptives on bus shelters and benches — but not for candidates or controversial causes.
Assistant City Attorney David Schwartz there is no First Amendment right of those promoting political or even religious causes to make their case on city-owned property. He said the city, as a property owner, is entitled to draw a line which permits only commercial advertising in those spaces.
Attorney Clint Bolick of the Goldwater Institute conceded that, based on U.S. Supreme Court precedent, Schwartz may be correct. That assumes, however, the city's rules are not illegally vague, a point he disputes.
The case could turn on Bolick's contention that the Arizona Constitution provides much broader protections than the First Amendment ban on the government infringing on free speech. Arizona's own governing document says that “every person may freely speak, write and publish on all subjects.”
Bolick said under that standard, there is no basis for Phoenix — or any other state or local government — to unilaterally decide that some types of advertising on government-owned property is unacceptable without some legitimate basis.
Tuesday's legal fight most immediately affects efforts by Alan Korwin, manager of TrainMeAZ LLC, to purchase ads at various city bus shelters.
But a ruling by the court that the Arizona Constitution sharply constrains what messages government can reject would affect virtually every publicly owned forum statewide where advertising is allowed. That includes not just bus benches and the buses themselves, but likely even billboards and electronic signs at publicly owned stadiums where commercial ads already are accepted.
“This is really, really unexplored territory,” Bolick said.
The heart of the ad Phoenix rejected — literally — is an image of a heart with the words “Guns Save Lives” superimposed, a message to “train your kids” and his organization's web site.
But Schwartz said that, in small print around the heart, was what he called a “diatribe” about the Second Amendment, Arizona's own laws on the right to carry a concealed weapon and the “castle doctrine” that allows people to shoot intruders in their own homes. He said that made the essence of the ad non-commercial and therefore forbidden under city regulations.
Schwartz said the city is entitled to draw the distinction because the signs, which are leased out to a private company, are essentially the city's private property. He also told the judges there are legitimate reasons for the rules, ranging from the concern that controversial ads will reduce advertising revenues to the city's fear that the ads could be seen as the city taking a side in a controversial issue or race.
Schwartz said even if the broader free speech protections of the Arizona Constitution apply, that still does not bar the city from imposing rules. He said that is because, in Arizona, cities are “municipal corporations,” which are entitled to some of the same rights as a privately held firm.
Bolick conceded one hurdle Korwin has to overcome is that the U.S. Supreme Court has ruled that these bus shelters are not a “public forum” for debate, even if they are owned by a city and even if they are on public property. He said, though, that's a ruling the nation's high court should reconsider.
“These bus stops are on public streets,” Bolick said.
“If you were to engage in speech anywhere around there, there would hardly be any restrictions at all,” he explained. “It seems to us nonsensical that the city can suppress speech on a public thoroughfare.”
And Bolick said the fact a city is running a private business changes nothing.
“When the government owns a business, it does not create a Constitution-free zone,” he said. “It is still acting as a state and it is still subject to the First Amendment and the Arizona Constitution.”
But Schwartz said governments are allowed to draw lines of what is and is not acceptable as long as they are not arbitrary.
In this case, he said, Phoenix did not reject Korwin's ad because of its content of promoting gun rights. Instead, the ad was rejected because it was, on balance, largely a non-commercial ad and therefore outside of what is permitted. Schwartz said as long as the distinctions are not discriminatory a government is entitled to make them.
He conceded that sometimes it's a closer call.
For example, the city did agree to bus advertising featuring a large cross and the words “Jesus Heals,” but Schwartz said that ad also included the call letters of a local radio station along with the words “Life. Perspective. Answers.”
“You could argue that a cross, by itself, isn't commercial,” Schwartz told the judges.
“But in the overall context of the advertisement it's appropriate because it tells the person who sees this ad that, in fact, if you listen to this radio station you will hear Christian talk, Christian programming,” he continued. “It's a formula to provide information to the receiver of the ad as to what the context is.”
Schwartz said Phoenix has no problem with the message that “guns save lives.”
“It's all of the added language to it,” he said, which makes it into an impermissible noncommercial message.
Schwartz also said it's not like the city's regulations totally throttle Korwin's ability to get out his message. He said Korwin remains free to approach private firms that own their own billboards.