Children of the Rosary v. City of Phoenix

• Decision Date: 28 August 1998
• Docket Number: No. 97-16821,97-16821
• Citation: 154 F.3d 972
• Parties: 26 Media L. Rep. 2228, 98 Cal. Daily Op. Serv. 6719, 98 Cal. Daily Op. Serv. 9301 CHILDREN OF THE ROSARY; Katherine A. Sabelko; Arizona Civil Liberties Union, Plaintiffs-Appellants, v. CITY OF PHOENIX; 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, City of Phoenix; Transportation Displays, Inc. Defendants-Appellees, and ATC/Vancom Management Services, Inc., Defendant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 972

154 F.3d 972

26 Media L. Rep. 2228, 98 Cal. Daily Op. Serv. 6719,

98 Cal. Daily Op. Serv. 9301

CHILDREN OF THE ROSARY; Katherine A. Sabelko; Arizona Civil Liberties Union, Plaintiffs-Appellants, v. CITY OF PHOENIX; 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, City of Phoenix; Transportation Displays, Inc. Defendants-Appellees and ATC/Vancom Management Services, Inc., Defendant.

No. 97-16821.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 12, 1998.

Decided Aug. 28, 1998.

Jay Alan Sekulow, The American Center for Law and Justice, Washington, DC; Benjamin W. Bull, The American Center for Law and Justice, Scottsdale, Arizona; James Weinstein, College of Law, Arizona State University, Tempe, Arizona; Nicholas S. Hentoff, Hentoff Law Offices, Phoenix, Arizona, for the plaintiffs-appellants.

Donald O. Loeb, Campana, Vieh, Shore, Owens & Loeb, P.C., Scottsdale, Arizona, for the defendants-appellees.

Appeal from the United States District Court for the District of Arizona; Stephen M. McNamee, District Judge, Presiding. D.C. No. CV-97-0138-SMM.

Before: WHITE, ^* Associate Justice, (Ret.), NOONAN and 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 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.

On January 23, 1997, appellants filed suit against the city under 42 U.S.C. § 1983 in the United States District Court for the District of Arizona alleging that the city's advertising standards violated the First Amendment. ¹ On August 1, 1997, the district court denied appellants' application for a preliminary injunction. This appeal followed.

II

We have jurisdiction under 28 U.S.C. § 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, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990)); see MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 516 (9th Cir.1993).

To prove a violation of 42 U.S.C. § 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).

III

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, 112 S.Ct. 2701, 120 L.Ed.2d 541 (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 & Educ. Fund, Inc., 473 U.S. 788, 800, 105 S.Ct. 3439, 87 L.Ed.2d 567 (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, 112 S.Ct. 2701. Neither party argues that a bus advertising panel is a traditional public forum. Instead, the parties debate whether the bus panel is a designated public forum or a nonpublic forum.

A designated public forum is a nontraditional forum that the government has opened for expressive activity by part or all of the public. See Perry Educ. Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 46 & n. 7, 103 S.Ct. 948, 74 L.Ed.2d 794 (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, 105 S.Ct. 3439; see Arkansas Educational Television Comm'n v. Forbes, --- U.S. ----, ----, 118 S.Ct. 1633, 1641, 140 L.Ed.2d 875 (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, 105 S.Ct. 3439; AETC, --- U.S. at ----, 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, 105 S.Ct. 3439. 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 prior policy the city did accept some noncommercial advertising, such as public service announcements, only one percent of the advertisements displayed on the exterior of buses were noncommercial. See Excerpts of Record at 22 (affidavit of Public Transit Director). The city submits that its current ban on noncommercial advertising supports a finding that the advertising panels are nonpublic fora.

The Supreme Court's decision in Lehman v. Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (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 301-02, 94 S.Ct. 2714. 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, 94 S.Ct. 2714. 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, 103 S.Ct. 948 (noting that United States Postal Service v. Council of Greenburgh Civic Assns., 453 U.S. 114, 101 S.Ct. 2676, 69 L.Ed.2d 517 (1981), reaffirmed Lehman's rationale for rejecting the argument that because an instrumentality is...