Former U.S. Supreme Court Justice Byron White heard arguments about the city's bus advertisement policy on March 12 as part of a three-judge panel of the Ninth U.S. Circuit Court of Appeals. White, who retired from the nation's highest court, appeared as a special member of the panel.
The hearing was the latest bout in an ongoing dispute over ads on the sides of city buses. The Children of the Rosary, a pro-life group, is contesting Phoenix's decision to allow only commercial messages--ads trying to sell a product or a service--on its buses, effectively excluding advertisements from religious and political groups.
The Children of the Rosary first took the city to court in October 1995, after the group tried to purchase ad space to run a message which told people to "Choose LIFE."
The city declined the ad, saying its policies didn't allow any "offensive" or "religious" signs on its buses, court records show.
"I think it's just a very positive, loving message, that we're children of God, and we care," says Kathy Sabelko, the president of the Children of the Rosary. "Apparently the city believes . . . the word God is offensive. There's a lot of things in life somebody might find offensive . . . but I think standing for life is pretty basic."
With the help of the American Center for Law and Justice, the conservative answer to the ACLU, the Children of the Rosary took the issue to court.
The city lost the first case when U.S. District Court Judge Roger Strand ruled that officials had too much leeway picking and choosing which messages might be considered offensive. He ordered the city to run the group's ads.
The city complied, but then changed its policy on November 1, 1996. Instead of prohibiting only religious or political messages, the city's new policy banned all noncommercial ads.
Don Loeb, who is the city's outside counsel on the case, said that the city's new policy is constitutional because it chooses ads based on what they sell, rather than what they say.
"Just like a newspaper, we have a right to decide what ads we're going to publish," Loeb said. "The purpose of a bus system is to carry passengers around the city, not to provide a forum for political messages."
Deputy city attorney Mike House also says that some people might get the idea that the city is endorsing those messages. "Otherwise, why is it on the side of a city bus?" he said.
In 1997, the Children of the Rosary and the ACLJ took the new policy to court, but District Court Judge Stephen McNamee sided with the city. The pro-life group appealed McNamee's decision, which brought the case before White and the Ninth Circuit panel last month.
The Children of the Rosary argue that the policy still discriminates on the basis of religion. Sabelko said that her group will sell bumper stickers with their ads to meet the city's policy.
"I never thought to sell anything on the side of the bus," Sabelko said, "but when they [the city] did this, we thought, that's perfect." Now, Sabelko said, her group will spread its message and make money.
The city's attorneys also contend that messages like the plaintiffs' could lead to violence.
Neal Manske, the city's acting director of public transit, wrote in an affidavit that he was concerned about "violent and hostile public reaction to the unlimited display of controversial political and religious messages."
Sabelko calls the arguments about violence a "red herring." She said city bus drivers have testified there were no problems when the group ran its ads the first time. "This is not an abortion issue. This is a free-speech issue," she said.
Loeb disagrees. "The suggestion that bus passengers could never be victims of political violence is ridiculous. Attacks on abortion clinics and doctors are well-documented. We just didn't want our buses to become a forum for political radicalism which might harm our customers."
A ruling is expected in the next several months. Sabelko said the Children of the Rosary will appeal to the Supreme Court if necessary.
Contact Chris Farnsworth at his online address: [email protected]