City authority to regulate non-commercial bus ads upheld

NINTH CIRCUIT–A Phoenix regulation restricting non-commercial speech on the outside of buses does not violate the First Amendment, a 2-1 panel of the Court of Appeals in San Francisco (9th Cir.) ruled in late August.

The court found that the city could constitutionally regulate what subject matter could be placed on bus placards as long as the city did not discriminate based on the viewpoint being presented. A city regulation limited the subject matter of bus advertisements to “speech which proposes a commercial transaction.”

Retired Supreme Court Justice Byron White, writing for the appeals court, held that the city could regulate speech on bus placards because it had not designated the space as a public forum. Regulations of nonpublic fora have to be reasonable, but “need not be the most reasonable or the only reasonable limitation,” White noted.

The City of Phoenix’s original advertising standards prohibited advertising “supporting or opposing a candidate, issue or cause, or which advocates or opposes a religion, … or belief.” In September 1995, Children of the Rosary wanted to place signs on buses depicting a fetus, surrounded by a rosary, with a Bible scripture and the words “Choose Life,” but their request was denied. The group sued the city in federal District Court in Phoenix, and the court enjoined the city from enforcing the rule.

In November 1996, the city changed the advertising standards to limit the subject matter of municipal bus advertisements to “speech which proposes a commercial transaction.” The Children of the Rosary submitted a revised bus placard which included an offer to purchase a bumper sticker. The city rejected the ad, saying the primary purpose of the ad was to promote a noncommercial message, rather than a commercial transaction. The group sued the city again, but the district court denied the appellants’ application for a preliminary injunction.

In dissent, Circuit Judge John Noonan wrote that the court, by offering more protection in this case for commercial speech than noncommercial speech, presented an “anomaly in First Amendment jurisprudence” and inverted the normal rule on protection of speech. (Children of the Rosary v. City of Phoenix; Organization’s Counsel: Jay Alan Sekulow, Washington, D.C.)