Phoenix unconstitutionally rejected gun training ad for bus shelters

So holds the Arizona Court of Appeals in Korwin v. Cotton (Ariz. Ct. App. May 8, 2014). Phoenix sells advertising on bus shelters, but its policy allows only commercial ads, not political ads — a constitutionally permissible limitation, given the Supreme Court’s decision in Lehman v. City of Shaker Heights (1974). The policy also requires that each ad propose a commercial transaction and that the proposal be “adequately display[ed]” on the ad.

Alan Korwin and TrainMeAZ bought space for ads that contained a good deal of general pro-gun advocacy, and also promoted various commercially available gun training programs. (The clearest commercial component of the ads was, “Use TrainMeAZ.com website to find training opportunities, shooting ranges, and classes for any level of skill — from your first-time shooting experience (a thrill you will always remember, just like the rest of us do), to the kind of tactical training the world’s elite special forces get — an experience few of us get to experience. In Arizona, marksmanship matters. Learn to shoot straight. Teach your children well….” See pp. 3-5 of the opinion for the full text of the ad; the ad also had “TrainMeAZ.com” in large print at the bottom.)

The ads were originally put up, because the city’s advertising vendor put them up without getting the city’s permission. But when the city learned of the ads, it rejected them and ordered them taken down. It defended its removal of the ads on the grounds that the ads weren’t commercial enough.

The Arizona Court of Appeals held that the ads did indeed fit within the city’s policy for what speech it would allow, and the exclusion of the ads therefore violated the First Amendment:

Although Appellant’s advertisement clearly contains a number of noncommercial statements, it comports with the first provision of the 2011 Standards requiring that it propose a commercial transaction. As clarified during oral argument in this Court, however, the City contends that the commercial transaction in Appellant’s advertisement is not “adequately displayed” because the scope of the advertisement is not limited to that commercial transaction. Not only is that application of the 2011 Standards inconsistent with the specific language of the 2011 Standards, it flies in the face of the City’s presumably considered decision to remove the words “limited to” from the 2009 Standards and replace them with the requirement that an advertisement only “adequately display” a proposed commercial transaction. Unlike the more exacting 2009 Standards, which might have disallowed an advertisement whose language did anything beyond propose a commercial transaction, the 2011 Standards permit a “blended” advertisement, permitting an advertisement that, of necessity must include, but is not limited to, a commercial transaction….

Contrary to the City’s contention, the 2011 Standards must be interpreted as allowing content in addition to a proposed commercial transaction, as long as the commercial transaction remains “adequately displayed.” … Because we accept the City’s concession — that it would reject Appellant’s advertisement under the 2011 Standards because the advertisement is not “limited to” a proposed commercial transaction — we deem the 2011 Standards unconstitutional as applied to Appellant’s advertisement. Accordingly, we enjoin the City from rejecting Appellant’s advertisement as applied to Appellant’s advertisement.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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