Ban on gun ad is back in court

Supporters of bus-stop ad cite speech rights

“Guns Save Lives.” Those words, set against the backdrop of a red heart, are the headline of a controversial Phoenix bus-stop advertisement at the center of a three-year legal battle between city officials and civilliberties advocates.

The fight started in 2010 when city officials removed 50 “Guns Save Lives” ads from its bus stops.

Phoenix told the man behind the ad, gun-rights activist Alan Korwin, that its message was political and violated the city’s policy against non-commercial advertising on buses and transit stops.

Opponents of the ad’s removal say the case, which attorneys will argue in the Arizona Court of Appeals starting Tuesday, could have broad

implications for freespeech rights in Arizona and stop the city from arbitrarily censoring public-transit ads.

At issue is how Arizona’s Constitution applies to the regulation of speech on government property.

If the court sides with Korwin and his supporters, it could open the door for others to argue that cities and other entities cannot ban political or public-service messages from governmentowned advertising spaces.

That’s a concern for Phoenix, which says that promoting political speech on the city bus system would inevitably create controversy, potentially incite protests, stir accusations of political favoritism, and affect transit-system revenues.

The Phoenix-based Goldwater Institute, a conservative government-watchdog group, represents Korwin. And the case has fostered an odd-couple alliance between the institute and the American Civil Liberties Union.

Phoenix attorneys have defended their policy by pointing to federalcourt rulings concluding that the government can impose reasonable restrictions on speech that appears in a “non-public forum,” such as proprietary advertising sales.

But the ACLU filed a brief in the case, saying the city’s policy should be struck down because the Arizona Constitution offers greater free-speech protections in certain areas than the U.S. Supreme Court has interpreted under the First Amendment.

James Weinstein, an ACLU advocate and professor at Arizona State University’s Sandra Day O’Connor College of Law, said state constitutional language, which grants every person the right to “freely speak, write, and publish on all subjects,” could allow for a more flexible approach to protection of speech on public property than the more “rigid” test developed by the Supreme Court.

“Not only would this approach provide greater free-speech rights on government-owned property, it could also more generally increase the rights of free expres- sion in Arizona,” Weinstein said, adding that the case could affirm that the state Constitution provides more expansive free-speech protections in other areas than the First Amendment.

The ACLU contends that Arizona courts have never ruled whether content-based restrictions on government advertising space is allowed under the state Constitution or provided a legal test to determine when restrictions can be applied.

Last fall, Maricopa County Superior Court Judge Mark Brain ruled in the city’s favor, stating the city had created reasonable guidelines for what it will and won’t allow on transit billboards. Korwin and Goldwater are challenging the ruling.

Phoenix recently allowed Korwin to post an alternative ad, which reads “Guns Stop Crime” set against the backdrop of a blue heart, on city bus stops.

But Korwin and his attorneys say the city’s decision to allow one progun ad while rejecting a similar ad shows the haphazard nature of its “censoring” process.

Phoenix attorneys said the city is simply enforcing its policy that prohibits non-commercial advertisements, including those that meld a commercial purpose with political and religious statements. Korwin’s ad contained a reference to a website that links firearm owners to gun-safety training classes.

They said the city removed the original progun ads because its smaller print voiced support for the state’s gun laws and didn’t appear to clearly promote a product or service. The city would have allowed Korwin to post an ad with the text “Guns Save Lives” if the ad emphasized the training website, officials said. In court filings, the city calls the ads “political rhetoric in the sheep’s clothing of an ostensible commercial advertisement.”

“The city should not be forced into an all-or-nothing approach — allow no advertising or allow all advertising,” Phoenix attorneys wrote. The policy is intended “to maximize revenue and avoid intricate issues of fair balance and equal time by avoiding the appearance that the city is favoring or disfavoring any particular candidate, politi- cal view, or side in a debate over contentious issues of the day.”

The initial gun ad also included, in large lettering, the words “Arizona Says: Educate Your Kids” and the site “TrainMeAZ .com.”

Korwin said he and other gun-rights supporters created the website to promote safety after the state passed a law expanding concealedcarry rights in 2010.

Attorneys for the Goldwater Institute have also targeted the city’s policy for reviewing busstop ads for being “vague,” suggesting it’s arbitrary and allows for censorship. They pointed to several examples of bus-stop ads the city has permitted, including one that featured the words “Jesus Heals” and bandages in the shape of a cross.

“Throughout this litigation, the city has offered a dizzying array of explanations about what the guidelines allow and don’t allow,” Goldwater argues in court filings. “It is literally impossible for a person of ordinary intelligence to determine with any degree of assurance whether a particular advertisement will be accepted or rejected.”

David Schwartz, an attorney for Phoenix, said the city screens every ad it receives to determine if it complies with the policy.

He said the city allowed the “Jesus Heals” because it included the call letters of a Christian radio station, serving a general commercial purpose.

Plus, Schwartz said the Christian radio ad didn’t include text espousing the virtues of religion.

On the other hand, he said, Korwin’s ad included smaller print emphasizing his political views on gun laws and didn’t use the statement “Guns Save Lives” to just promote his website.

Korwin said he thinks the city singled out his ad for removal because some city officials are apparently liberal-leaning or don’t support gun rights.

He said the headline of the ad was intended to grab attention so it would better market his website.

“The city should not be in the business of deciding what you can say,” Korwin said. “It’s three years now that our free speech has been censored.”