323 P.3d 1200
Ariz. Ct. App.2014Background
- The City of Phoenix operates a proprietary bus system and sells ad space on buses, benches, and shelters, restricting ads to those that propose a commercial transaction under its Transit Advertising Standards.
- Appellant (Alan Korwin/TrainMeAZ), a for-profit firearms training group, contracted to place shelter ads that mixed political/advocacy text about gun rights with references to TrainMeAZ and sponsor organizations and a website.
- The City removed the ads after concluding they contained noncommercial elements and did not "propose a commercial transaction;" Appellant sued claiming First Amendment and state constitutional violations, plus due process and equal protection.
- The trial court granted summary judgment for the City; Appellant appealed, challenging the 2011 Standards (which require a commercial transaction to be "adequately displayed") as facially vague and unconstitutional as applied.
- The appellate court treated transit advertising space as a nonpublic forum and rejected Appellant's facial vagueness challenge to the 2011 Standards, but held the City applied the 2011 Standards unconstitutionally to Appellant's ad because the City effectively required the ad be "limited to" a commercial transaction despite the 2011 language allowing blended content.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the City's transit ad space is a nonpublic forum | Korwin: forum status preserved but standard unlawfully applied | City: ad space is a nonpublic forum, regulable for reasonableness and viewpoint-neutrality | Court: ad space is a nonpublic forum (consistent with precedent) |
| Whether Appellant waived reliance on Arizona Constitution protections | Korwin: state constitutional analysis appropriate | City: argument was not raised below, thus waived | Court: Appellant waived Arizona-constitutional claim; appellate court declines to address it |
| Whether the 2011 Standard ("commercial transaction must be proposed and adequately displayed") is facially vague | Korwin: "adequately displayed" is vague and allows arbitrary enforcement | City: standard is clear; aligns with commercial-speech definitions | Court: facial challenge rejected — standard valid in the vast majority of applications |
| Whether the City applied the 2011 Standards unconstitutionally to Appellant's ad (as-applied challenge) | Korwin: ad proposed a commercial transaction and the 2011 Standards permit blended ads; City wrongly rejected it | City: ad was not "adequately displayed" or was not "limited to" the commercial transaction; thus rejectable | Court: held City applied the standard inconsistently with its text (City treated it as "limited to"); enjoined City from rejecting Appellant's ad under the 2011 Standards |
Key Cases Cited
- Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788 (establishes forum-analysis framework and distinction among forum types)
- Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (public/designated/nonpublic forum distinctions and restrictions)
- Lehman v. City of Shaker Heights, 418 U.S. 298 (city transit advertising is not a public forum; proprietor may limit ads)
- Children of the Rosary v. City of Phoenix, 154 F.3d 972 (9th Cir.) (Phoenix transit exterior panels are a nonpublic forum; commercial-only policy upheld)
- Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469 (commercial-speech definition: "propose a commercial transaction")
- Int'l Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (restrictions in nonpublic forums must be reasonable and viewpoint neutral)
- New York v. Ferber, 458 U.S. 747 (standards for facial vagueness challenges implicating First Amendment)
- Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320 (remedy principle: enjoin unconstitutional applications while leaving valid portions intact)