New Times, Inc. v. Arizona Bd. of Regents, 11357--PR

• Decision Date: 28 February 1974
• Docket Number: No. 11357--PR,11357--PR
• Parties: NEW TIMES, INC., an Arizona corporation, and Arizona Civil Liberties Union, an Arizona non-profit corporation, Appellants, v. ARIZONA BOARD OF REGENTS, B. J. Varney, and Marvin Johnson, Appellees.
• Court: Arizona Supreme Court

Page 169

519 P.2d 169

110 Ariz. 367

NEW TIMES, INC., an Arizona corporation, and Arizona Civil Liberties Union, an Arizona non-profit corporation, Appellants, v. ARIZONA BOARD OF REGENTS, B. J. Varney, and Marvin Johnson, Appellees.

No. 11357--PR.

Supreme Court of Arizona, In Banc.

Feb. 28, 1974.

S. Leonard Scheff, Tucson, for appellants.

Gary K. Nelson, Atty. Gen., Phoenix, John S. O'Dowd, Asst. Atty. Gen., Tucson, for appellees.

LOCKWOOD, Justice:

This matter arises out of a petition for review of an opinion of the Court of Appeals, New Times v. Ariz. Bd. of Regents, 20 Ariz.App. 422, 513 P.2d 960 (1973), reversing, a judgment against the New Times, Inc., a newspaper publisher.

New Times, Inc. publishes an off-campus newspaper which is distributed free of charge to college students on the campuses of the state universities. The University of Arizona adopted regulations which limit the distribution points of off-campus newspapers to a total of six distribution points on the Tucson campus. In addition a fee of $2.00 per newssstand is charged for each issue. Each newspaper is also required to register with the appropriate campus authorities. The ostensible purpose of the regulations is to limit the amount of litter resulting from the disposal of such newspapers and to cover the additional costs of litter removal involved. Newspapers which are sold from vending machines and the school newspaper, The Wildcat, are exempt from the regulations. The practical result of the regulations was that only the New Times was affected.

The New Times brought a civil action alleging that the regulations were unconstitutional and asked that their enforcement be enjoined and damages awarded. The Superior Court, Cause No. 133589, Robert O. Roylston, J., refused the relief requested and the newspaper appealed. The Court of Appeals held that the regulations restricting the number of distribution points and the clean-up fee constituted an unreasonable infringement of the First Amendment rights of the newspaper. The decision of the trial court was reversed.

In a motion for a rehearing the Board of Regents argued that because the newspaper is a commercial enterprise, it is subject to more restrictions than speech which is noncommercial in nature and therefore the regulations were valid. The motion for a rehearing was denied and the Board of Regents now appeals to this court.

The regulations inquestion are as follows:

'UNIVERSITY OF ARIZONA CAMPUS NEWSPAPER REGULATIONS'

'1. Newspapers, as defined, herein, other than the Arizona Daily Wildcat, may be distributed on the campus or grounds or in the buildings of the University of Arizona only in accordance with these regulations.

'2. The term 'newspaper' when used in these regulations shall include newspapers whether or not published or distributed regularly and whether or not a charge is made therefor.

'3. Any person desiring to distribute a newspaper on the campus or grounds or in buildings of the University only by sale in coin-vending machines may apply to the Director of the Student Union for permission to place vending machines at such appropriate locations as the Director shall designate. The Director shall cause space to be made available at such locations for the vending machines of any newspaper so applying. No newspaper coin-vending machines shall be permitted or placed in any other locations on the campus or grounds or in the buildings of the University.

'4. Any person desiring to distribute a newspaper on the campus or grounds or in buildings of the University by means other than by sale in coin-vending machines may apply to the Director of the Student Union for permission to place racks, stalls, or other containers for distribution at such appropriate locations as the Director shall designate. The Director of the Student Union shall cause space to be made available at not more than six such locations, if, and so long as:

'(a) Each applicant has completed an application form which shall set forth, in addition to such other information as may be required by the Director of the Student Union, the true names and principal addresses of the real publisher or publishers, and the real distributor or distributors of the newspaper; and

'(b) The applicant has provided for the distribution of the newspapers at each such location an appropriate rack, stall, or other container in which the papers can be kept in an orderly manner; and

'(c) The applicant has paid, in advance, the sum of $2.00 for each daily, weekly, monthly, or other publication of the newspaper for each location applied therefor. (For example, a weekly publication distributed at three locations would pay $6.00 per week; a monthly publication distributed at six locations would pay $12.00 per month.)

'5. Any person aggrieved by any act, decision, or order of the Director of the Student Union any within fifteen days from such act, decision, or order, appeal to the Vice President of the University for University Relations, who may affirm that act, decision, or order or modify it as he shall see fit within the limitations imposed by these regulations.'

The validity of the regulations promulgated by the University is assailed by the appellant, New Times, as violating the federal constitution in two particulars. First it is argued that the regulations abridge the freedom of the press in contravention of the First Amendment. Secondly it is argued that the regulations deny them equal protection under the law. For the reasons that follow we hold that the regulations are an unconstitutional infringement of the right to a free press as guaranteed by the first amendment. This being the case it is unnecessary to address ourselves to the second argument of the appellant.

In testing the constitutionality of an ordinance we are bound to follow the following rules: (1) There is a presumption in favor of the constitutionality of a legislative enactment, State v. Krug, 96 Ariz. 225, 393 P.2d 916 (1964); (2) the person assailing the validity of a statute or ordinance has the burden of establishing that it infringes upon a constitutional guarantee or violates a constitutional principle. State v. Krug, supra; (3) the court must be satisfied beyond a reasonable doubt that the statute is unconstitutional, Shaw v. State, 8 Ariz.App. 447, 447 P.2d 262 (1968); (4) every intendment must be indulged in favor of the validity of the statute. Shaw v. State, supra; (5) constitutional provisions shall not be given a construction which will nullify legislation but must be liberally construed. Shaw v. State, supra. In the event that a right guaranteed to the people under the first amendment is abridged by the ordinance then the ordinance can only be upheld by a showing of a compelling state interest. Bates v. City of Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960). In addition neither an 'inherent tendency' nor a 'reasonable tendency' to cause a substantive evil is sufficient to justify a restriction of free expression. Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192 (1941); Times-Mirror v. Sup. Ct. of Cal., 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192 (1941). The foregoing is subject to the further caveat that constitutionally permissible restrictions on First Amendment rights must be drawn with narrow specificity. In re Kay, 1 Cal.3d 930, 83 Cal.Rptr. 686, 464 P.2d 142 (1970).

Any question regarding infringement of First Amendment rights is of the utmost gravity and importance for it goes to the heart of the natural rights of citizens to impart and acquire information which is necessary for the well being of a free society. The predominant purpose of the grant of immunity to the press here invoked was to preserve an untrammeled press as a vital source of public information. The newspapers of this country have shed more light on the affairs of this nation than any other instrumentality. Since an informed public is the most important of all restraints upon misgovernment, the suppression or abridgement of the publicity afforded by a free press cannot be regarded otherwise than with grave concern. The First and Fourteenth Amendments were intended to preclude congress and the States from adopting any form of restraint on printed publications, or their circulation, including those restraints which had theretofore been affected by means of censorship, license, and taxation, and from taking any governmental action which might prevent free and general discussion of public matters as seems essential to prepare the people for an intelligent exercise of their rights as citizens. Grosjean v. American Free Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660 (1936).

It is well established that the freedom of the press extends to circulation and distribution as well as to the publishing of the newspaper itself. Talley v. Cal., 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960); Griswold v. Conn., 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Bantam Books v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963); Tucker v. Texas, 326 U.S. 517, 66 S.Ct. 274, 90 L.Ed. 274 (1946); Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938). However the right to freedom of speech and press does not mean one can talk or distribute where, when and how one chooses. Reasonable time, place, and manner regulations of expressive activity may be necessary to further significant governmental interests and are permitted. Breard v. City of Alexandria, La., 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233 (1951); Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972).

The curcial question in determining whether the regulation of expressive activity is reasonable is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time. Grayned, supra. The exercise of first amendment rights may be regulated where such exercise will unduly interfere with the...