Korwin v. Cotton – 5/8/2014

May 16, 2014

Arizona Court of Appeals Division One Holds That Although the Government May Limit Speech in a Nonpublic Forum Through Reasonable and Viewpoint-Neutral Restrictions, It May Not Preclude Speech That Actually Complies with Those Restrictions.

The City of Phoenix sells advertising space on its buses, benches, and shelters, but by regulation only accepts advertisements that propose a commercial transaction.  Alan Korwin and his company, a for-profit corporation that serves as an umbrella organization for the firearms industry in Arizona (the “Company”), sought to advertise its website on the City’s bus shelters.  The Company entered into an agreement with a third party that sold advertising space for the City’s bus shelters, and the advertisements were posted without having been previously submitted to the City for review.  When the City learned of the advertisements, it determined that they did not company with the City’s 2009 (and later 2011) Transit Advertising Standards (“Standards”) because it contained noncommercial elements and failed to propose a commercial transaction.  The City removed the advertisements and the Company sued the city for declaratory and injunctive relief.  The superior court granted the City summary judgment, and the Company timely appealed.  

The Arizona Appeals Court reversed and remanded.  The Court first held that the City’s Standards were not facially invalid under the First Amendment.  The City’s bush shelters were “nonpublic fora”—property owned by and under the control of the government “which is not by tradition or designation a forum for public communication,” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983)—and thus the City could restrict speech so long as the regulations are reasonable and viewpoint neutral.  The Court held that the Standards’ limitation allowing only advertisements that proposed commercial transactions met this standard, and the requirement that a commercial transaction be “adequately displayed” was not unconstitutionally vague the Company failed to show that it was “vague in the vast majority of its applications.”  City of Chi. v. Morales, 527 U.S. 41, 55 (1999).

The Court rejected the Company’s argument that the City failed to preserve the bus shelters’ non-public-forum status by inconsistently applying its Standards, explaining that there was no evidence that the City has allowed any advertisement to be posted without reviewing it pursuant to the Standards or believe it to be inconsistent with the Standards.

The Court, however, ultimately held that the City’s application of the Standards was unconstitutionally applied to the Company because the advertisement adequately displayed a proposed commercial transaction, even though it also contained a number of noncommercial statements. In doing so, the Court rejected the City’s argument that the advertisement could not include noncommercial elements, given that such a restriction did not appear in the 2011 Standards.

Judge Jones authored the opinion; Acting Presiding Judge Norris and Chief Judge Johnsen concurred.

Click here for article from The Washington Post.