Firearms activist Alan Korwin has won his appeal against the city of Phoenix's ban on his pro-gun ads at bus shelters.
The Arizona Court of Appeals ruled today that a lower court, which previously had sided with the city, must reverse course and stop the city from rejecting Korwin's ad.
But it's a win based on a technicality of sorts, and stops well short of forcing the city to accept every ad submitted by the public.
The ad (as you can see above) features the text "Guns Save Lives" within a large, red heart and hundreds of words in small print about Arizona gun laws, and promotes Korwin's for-profit website, trainmeaz.com.
Korwin had purchased the bus-shelter space for his ad back in 2010, but the city took them down after a complaint. Although the city claimed the ad violated its policy that demanded ads provide "adequate notice" of a commercial transaction, Korwin claimed that a city official had told him that his ad was controversial and therefore received extra scrutiny. The official later claimed she couldn't recall saying that to Korwin.
The Arizona Civil Liberties Union of Arizona filed a brief supporting Korwin in the case, noting that the Arizona Constitution has an arguably more-liberal interpretation of free speech than the First Amendment: "Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right."
Yet the unanimous decision by Judge Kenton Jones, Acting Presiding Judge Patricia Norris and Chief Judge Diane Johnsen makes it clear the city has the power to place some restrictions on free speech that occurs on government property, providing its rules are applied consistently. In fact, most of today's ruling disagrees with Korwin's arguments.
The city can deem certain properties, like bus shelters or the ad-panels on the sides of buses as "non-public" forums with restrictions on free speech, the judges ruled. And even though the city's rules must be applied consistently, the city doesn't need to "exercise absolute and inerrant consistency" in its review of the many ads it receives, they wrote.
What it came down was the fact that the city's argument was based on language from its 2009 ad standards, not its 2011 revision of those standards. "The City's contention that Appellant's advertisement fails the 2011 Standards because it is not 'limited to' a commercial transaction is nowhere supported by the language of the 2011 Standards," the judge wrote.
The order sends the case back to trial court, with the caveat that the city is not allowed to reject Korwin's ad based on the 2011 standards. That apparently means Korwin's ads are free to go up at bus shelters, if he still wants them to.
Korwin did not immediately respond to a request for comment.
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