Children of the Rosary v. City of Phoenix

Opinion by Justice WHITE; Dissent by Judge NOONAN.

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 *975 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 “supporting] or opposing] 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:

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…

dissenting.

That commercial speech can be distinguished from non-commercial speech, that the government as proprietor can limit a non-public forum to commercial speech so that the government makes money, and that the sides of buses in Phoenix are meant to be such a forum, are propositions I accept. They do not remedy discriminatory application of the ordinance by the City of Phoenix.

The ordinance restricts advertising to “speech which proposes a commercial transaction.” At first blush, it looks as though the standard must be good because it incorporates a hint from a dictum of the Supreme Court: “[tjhere are eommonsense differences between speech that does ‘no more than propose a commercial transaction,’ ... and other varieties.” Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., *984 425 U.S. 748 , 771 n. 24, 96 S.Ct. 1817 , 48 L.Ed.2d 346 (1976) (citation omitted). Advertisements for employment that do not express an opinion on social policy are “classic examples of commercial speech.” Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376, 385 , 93 S.Ct. 2553 , 37 L.Ed.2d 669 (1973). An advertisement that expresses opinion and…