PHOENIX-- "Weapons Save Lives.".
Those words, set against the background of a red heart, are the headline of a controversial bus-stop ad at the center of a three-year legal struggle between city officials and civil-liberties proponents.
The fight started in 2010 when city officials eliminated 50 "Weapons Save Lives" advertisements from its bus stops.
Phoenix informed the man behind the advertisement, gun-rights activist Alan Korwin, that its message was political and breached the city's policy against non-commercial advertising on buses and transit stops.
Challengers of the advertisement's removal state the case, which lawyers will say in the Arizona Court of Appeals starting Tuesday, might have broad effects for free-speech rights in Arizona and stop the city from arbitrarily censoring public-transit ads.


At issue is exactly how Arizona's Constitution applies to the policy of speech on government home.
If the court sides with Korwin and his advocates, it might open the door for others to argue that cities and other entities can not ban political or public-service messages from government-owned advertising spaces.
That's a concern for Phoenix, which says that promoting political speech on the city bus system would inevitably produce controversy, potentially incite protests, stir accusations of political favoritism, and affect transit-system profits.
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 indicating federal-court rulings concluding that the government can enforce sensible 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 ought to 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 strategy to security of speech on public property than the more "rigid" test established by the Supreme Court.
"Not only would this technique offer greater free-speech rights on government-owned property, it could also more usually increase the rights of free expression 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 ever ruled whether content-based constraints on government advertising space is allowed under the state Constitution or supplied a legal test to determine when constraints can be applied.
Last fall, Maricopa County Superior Court Judge Mark Brain ruled in the city's favor, specifying the city had actually developed reasonable standards for what it will and won't allow on transit billboards. Korwin and Goldwater are challenging the ruling.
Phoenix recently permitted Korwin to post an alternative ad, which reads "Guns Stop Crime" set against the background of a blue heart, on city bus stops.
Korwin and his lawyers say the city's choice to enable one pro-gun advertisement while declining a comparable advertisement reveals the haphazard nature of its "censoring" procedure.
Phoenix lawyers said the city is simply imposing its policy that prohibits non-commercial ads, including those that meld a commercial function with political and religious statements. Korwin's advertisement contained a reference to a website that links firearm owners to gun-safety training courses.
They said the city removed the original pro-gun 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 strategy-- allow no marketing or allow all advertising," Phoenix lawyers wrote. The policy is meant "to maximize profits and avoid complex concerns of reasonable balance and equal time by avoiding the appearance that the city is favoring or disfavoring any particular candidate, political 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 concealed-carry rights in 2010.
Attorneys for the Goldwater Institute have also targeted the city's policy for reviewing bus-stop ads for being "vague," suggesting it's arbitrary and permits censorship. They pointed to several examples of bus-stop ads the city has permitted, including one that showcased 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 guarantee 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 function.
Plus, Schwartz said the Christian radio advertisement 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 utilize 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 stated 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 choosing what you can say," Korwin said. "It's three years now that our free speech has been censored.".
 


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