PHOENIX — 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, while denying access to 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 that 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, that city’s rules are not illegally vague, a point he disputes.
But Bolick contends 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 some types of advertising on government-owned property are unacceptable without some legitimate basis.
Tuesday’s legal fight most immediately affects efforts by Alan Korwin, manager of TrainMeAZ LLC, to buy ads at various city bus shelters.
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 buses, but likely billboards and electronic signs at publicly owned stadiums .
The heart of the ad Phoenix rejected is an image of a heart with the words “Guns Save Lives” superimposed, a message saying “train your kids” and the organization’s website.
But Schwartz said small print around the heart contained 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 noncommercial and therefore forbidden under city regulations.
Schwartz said the city is entitled to draw the distinction because the signs, which are leased 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.
And Schwartz said that 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” that 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 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. It seems to us nonsensical that the city can suppress speech on a public thoroughfare.”
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 noncommercial ad .
And Schwartz said as long as the distinctions are not discriminatory, a government is entitled to make them. Schwartz said Phoenix has no problem with the message that “guns save lives.”
It was the “added language,” that makes it into an impermissible noncommercial message, he said.
Schwartz also pointed out that Korwin remains free to approach private firms that own their own billboards to place his ad.