The Arizona Court of Appeals ruled May 8 that the city of Phoenix violated a gun-rights activist’s constitutional protections when it removed his bus-stop ads saying “guns save lives.”
The three-judge panel said in its ruling that the city unconstitutionally applied its transit advertising standards when it denied Alan Korwin’s ads for his gun safety training website in 2010.
The court’s opinion overturns a Maricopa County Superior Court ruling siding with Phoenix.
The Goldwater Institute, a conservative government watchdog group in Phoenix that represented Korwin, said it was “gratified” by the ruling. The group had argued that the city’s standards were too vague and could be arbitrarily enforced.
“The rules are enforced in haphazard fashion, so that people cannot know which ads will be allowed or censored,” Goldwater attorney Clint Bolick said in a statement. “The Court ruled unanimously that the City failed to follow its own rules, given that the ads were designed to encourage viewers to visit a commercial website for firearms training.”
A message left with Korwin seeking comment was not immediately returned Thursday.
Phoenix attorneys have defended their policy by pointing to federal court rulings concluding that the government can impose reasonable restrictions on speech that appears in a “non-public forum,” such as advertising sales.
David Schwartz, one of the attorneys representing Phoenix, declined to comment.
A trial judge ruled last year that the city can limit advertising on its property by allowing only commercial advertising and created a reasonable policy for doing so.
The city had argued that Korwin was promoting political speech that would have created controversy, potentially sparked protests, stirred accusations of political favoritism and affected transit revenue.
The appeals court said the city’s standards, revised in 2011, only indicate advertising must “adequately display” a proposed commercial transaction. A “blended” advertisement that includes more than a commercial transaction would be permitted, according to the judges.
The ruling could possibly open the door for others to argue that cities and other entities cannot ban political or public service messages from government-owned advertising spaces.