Mountain States Tel. & Tel. Co. v. Ariz. Corp. Comm'n

In Mountain States Tel. & Tel. Co. v. Ariz. Corp. Comm'n, 160 Ariz. 350, 358, 773 P.2d 455, 463 (1989), the court applied the First Amendment time, place and manner analysis, and also held that the same analysis exists "under the more stringent protections of the Arizona Constitution." Mountain States, 160 Ariz. at 358, 773 P.2d at 463. The court went on to state that restrictions that affect speech "must regulate with narrow specificity so as to affect as little as possible the ability of the sender and receiver to communicate." Id. Applying this standard, the court found that the presubscription requirement at issue there "erected a direct barrier to communication and therefore offends art. 2, 6 of the Arizona Constitution." Id. The Arizona Supreme Court vacated a corporation commission order requiring the telephone company to block access to its ScoopLines unless the customer pre-subscribed, on the ground that the commission "did not choose its regulation with narrow specificity." 160 Ariz. at 358, 773 P.2d at 463. The court recognized that under both the First Amendment and the Arizona Constitution time, place, and manner restrictions could be imposed, but required that such regulations be content-neutral, serve a significant governmental interest, and leave open ample alternative channels of information. Id. at 357-58, 773 P.2d at 462-63. Mountain States noted, however, that the governing federal law was unclear at that time whether a regulation must be the "least restrictive alternative" to achieving the government interest. Id. at 358, 773 P.2d at 463. It noted that it had previously held that such restrictions "must be drawn with narrow specificity" under the First Amendment. Id. The court then reasoned that the telephone company, a public utility, was not exempt from such regulation simply because it was in the communications business. Id. In that context, the court noted that the commission could impose reasonable time, place, and manner regulations, but "with narrow specificity so as to affect as little as possible the ability of the sender and receiver to communicate." Id. The supreme court then vacated the commission order requiring pre-subscription to all ScoopLines, reasoning that the telephone company's proposals for regulations illustrated other "plausible means" of addressing the ScoopLine problems, thereby demonstrating "that the Commission did not choose its regulation with narrow specificity." Id. The Arizona Supreme Court stated that the government may impose reasonable restrictions that incidentally burden speech if they: (1) are content neutral; (2) serve a significant governmental interest; (3) leave open ample alternative channels for communication of the information; (4) are drawn "with narrow specificity so as to affect as little as possible the ability of the sender and receiver to communicate." Mountain States, 160 Ariz. at 357-58, 773 P.2d 462-63.