Phoenix officials and one of our favorite local curmudgeons, gun-law expert Alan Korwin, are scheduled for a courtroom showdown next month over banned firearms-training ads.
The case was launched following the city's move to censor 50 bus-shelter ads that Korwin had purchased in October 2010 for his firearms-training website, trainmeaz.com.
"Guns Save Lives," the ad stated in large type. "Arizona says: Educate Your Kids."
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The bus-shelter ads, part of a larger ad campaign Korwin was doing at the time for his company, also contained a large amount of small print about gun rights and Arizona's concealed-carry law. That makes sense knowing Korwin -- he always has a lot to say about firearms and related rights. His books include the hilariously titled, "After You Shoot: Your Gun's Hot, The Perp's Not, What Next?" His TrainMe website hosts advertising for affiliated gun stores and training centers.
Korwin agreed to pay $11,000 to CBS Outdoors, which manages the bus-shelter ads for Phoenix. The ads went up on October 12.
One week later, city of Phoenix officials decided they didn't meet a city requirement that such ads provide "adequate notice" of a commercial transaction. Overnight, the ads disappeared.
Korwin sued in Maricopa County Superior Court, represented by Clint Bolick and the Goldwater Institute. They lost, and the case has been wending its way through the Arizona Court of Appeals since late last year. The two sides will square off in court at 9:30 a.m. on December 3, court records show, with 20 minutes each of oral arguments.
The American Civil Liberties Union of Arizona filed an amicus curiae brief in the case on behalf of Korwin, noting that the Arizona Constitution provides an even greater free-speech protection than the First Amendment.
On its face, the city standard requiring notice of a commercial transaction for bus-shelter ads sounds clear enough. Courts in other states have held that cities can make such restrictions.
The problem is that the requirement is used not to provide a standard, but as a tool that allows the city to reject any ad, for any reason it wants. The city must merely claim the ad doesn't meet the standard -- it's not required to prove it doesn't meet it.
Korwin's 2010 ad suggests at least the potential for one or more commercial transactions, clearly. It encouraged people to get firearms training -- not a horrible idea considering the popularity of guns in Arizona -- and visit the for-profit website, which gives links to companies selling training services or various products.
City officials claimed the ad sounded more like a public announcement. Even if you give credence to that claim, though, the next problem in the city's argument comes up: The city has approved many different ads in the past that seem less commercial in nature.
Korwin took several snapshots of various bus-shelter ads that were included in the case exhibits published by the Goldwater Institute.
Some samples:
"Jesus Heals. AM 1360. Life. Perspectives. Answers."
"Only in Downtown Phoenix...Only on downtownphoenix.com."
"Love is sensual. Happy Valentine's Day. Fascinations."
Korwin found bus-shelter ads for free pregnancy tests, free adoption services and the Carpenters Union.
In a deposition, Marie Camacho Chapple, a Phoenix worker who's since retired, was asked what makes the Jesus Heals ad -- half of which featured a crucifix -- a commercial transaction. She replied that if the readers of the ad listened to the radio station, they might hear ads and would be counted as listeners so the station could sell more ads.
What she didn't say, but we will, is that websites with ads work just like that, too.
Debbie Cotton, now the interim manager of the Phoenix Convention Center, supposedly gave up the reason for the city's decision during a 2010 phone call with Korwin. Cotton told him controversial ads receive extra scrutiny, and his ad was controversial, according to an affidavit by Korwin. In a deposition, Cotton said she didn't recall saying those words.
"The reality is there is no standard," says Dan Pochoda, a lawyer with Arizona's ACLU.
Unfortunately, Pochoda says, laws regarding a city's proprietary interest in managing things like ads on city property are "crummy." Sure, let the city make some restrictions, he says. But standards should be standards -- not totally arbitrary decisions made at a whim by bureaucrats.
The ACLU's brief notes the differences between the First Amendment and Arizona's free-speech right embodied in the state constitution:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
The Arizona Constitution proclaims: "Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right."
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The more permissive state right "supports applying a more stringent test in this case," the brief says.
The appeals court should either disallow "content-based restrictions entirely, or at the very least, (adopt) a more stringent test for when they are allowed."
We'll let you know how it goes.
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