The Goldwater Institute filed suit yesterday against the City of Phoenix for censoring and removing billboards that promoted gun safety and training. The lead plaintiff in the case of well-known author and activist Alan Korwin.
Korwin v. Cotton (Bus Shelter Ads case)
On May 11, 2011, the Goldwater Institute filed a lawsuit on behalf of Alan Korwin and TrainMeAz LLC to challenge the decision by Debbie Cotton, director of the Phoenix Public Transit Department, to remove posters at 50 bus shelters advertising the company’s website. Ms. Cotton has claimed the ads didn’t promote a commercial transaction as required by city policy. Ms. Cotton’s explanation ignores the express purpose of TrainMeAz to make a profit while providing resources to people who want training on self-defense and marksmanship. In addition, the city of Phoenix has no written standards to explain to potential advertisers what specific messages and logos are acceptable at city bus shelters. Ms. Cotton and the city of Phoenix have arbitrarily denied Mr. Korwin’s right to free speech.
How are we upholding the Constitution?
The right to free speech is a fundamental freedom protected by the First Amendment of the U.S. Constitution. The U.S. Supreme Court has granted governments leeway in regulating commercial speech and product advertising on public property. But governments must adopt consistent standards that provide potential advertisers fair notice about when their messages might be restricted, and such standards can’t favor some viewpoints over others.
The Arizona Constitution provides an independent right of free speech in Article 2, Section 6: “Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.” This lawsuit upholds the sovereign authority of a state to protect more liberty and further restrict government censorship beyond what is required by the U.S. Constitution.
What happened to bring about this challenge?
In 2010, the Arizona Legislature repealed a requirement to have a state-issued permit before carrying a firearm concealed from public view. Alan Korwin saw a business opportunity to help people who want to safely exercise their right to own and carry weapons. Mr. Korwin worked with training instructors and other organizations to create TrainMeAz.com, a website devoted to providing information about weapons safety training and locations to practice shooting skills. The business raises money by selling sponsorships to other companies for expanded promotion on the website, advertising in printed maps, and other sources of revenue.
TrainMeAz launched an advertising campaign in mid-2010 to attract customers to the website that included roadside billboards [2]. Mr. Korwin also signed a contract with CBS Outdoors, a private vendor hired by the City of Phoenix to manage advertising at city-funded bus shelters. On Oct. 11, 2010, CBS Outdoors placed an advertisement for the website at 50 bus shelters.
On Oct. 20, 2010, CBS Outdoors informed Mr. Korwin that the City of Phoenix objected to the bus shelter posters. In a telephone conference call, city officials told Mr. Korwin the posters didn’t comply with a written requirement [3] that bus shelter advertising only be used for speech that “proposes a commercial transaction.” However, city officials were unable to provide Mr. Korwin with any standards that would explain what kind of messages would meet that requirement.
Meanwhile, CBS Outdoors removed the posters at the city’s direction before the expiration of TrainMeAz’s contract.
What does Goldwater Institute want from this legal challenge?
The Goldwater Institute is asking a judge to strike down the City of Phoenix Transit Advertising Standards under the free speech protections of the Arizona and U.S. constitutions. Phoenix should be required to develop constitutional standards that make clear beforehand what kind of advertising will be approved, so all businesses are treated fairly and none will be subject to potential censorship based on a city official’s subjective views. As an alternative, the TrainMeAz poster should be considered acceptable advertising under the existing standards and allowed to appear on City of Phoenix bus shelters.
Who is the client?
The Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation represents Alan Korwin, a Phoenix resident and manager of TrainMeAz, a limited liability company with a website devoted to providing customers with information about gun safety training and locations for practicing their skills.
What are the key issues?
The TrainMeAz poster clearly complies with the requirements of the city of Phoenix for bus shelter advertising.
The poster promotes a for-profit business website where legitimate commercial activity takes place every day. The poster doesn’t include any information listed as unacceptable in the Phoenix Transit Advertising Standards [3]. The poster deals with an issue, firearms ownership and use, which the city routinely approves for advertising such as upcoming weekend gun shows.
The city of Phoenix’s written standards to explain what types of advertising would be acceptable for city bus shelters are unconstitutionally vague.
The Phoenix Transit Advertising Standards [3] list several specific items that bus shelter ads cannot advocate including false or misleading information, violence, tobacco, alcohol, and obscene language. But the standards provide no explanation about what ads are acceptable except to say they must propose a commercial transaction. This provides little guidance to potential advertisers about what messages will be accepted or rejected by the city. Clear standards are required under the Arizona and U.S. constitutions to prevent arbitrary discrimination by government officials against messages they don’t like.
Whom are we suing?
Debbie Cotton, in her official capacity as director the Phoenix Public Transit Department, enforces the advertising rules at city bus shelters.
The City of Phoenix, as its official actions must comply with the Arizona and U.S. constitutions.
Can we win?
The City of Phoenix must comply with the First and 14th amendments of the U.S. Constitution, which requires the city to provide equal protection of every person’s constitutional rights. Also, the city cannot interfere with those rights without due process of law.
The U.S. Ninth Circuit Court of Appeals has provided Phoenix significant leeway in regulating advertising for city bus shelters under federal law. But the Arizona Supreme Court has repeatedly ruled the Arizona Constitution provides protections for speech that are even broader than the First Amendment.
Case Timeline
May 11, 2011: Complaint filed in Maricopa County Superior Court
The Legal Team
• Clint Bolick is the Goldwater Institute’s litigation director. He has extensive success before trial judges and appellate courts. He has won two cases before the U.S. Supreme Court. He was named as a Lawyer of the Year in 2003 by American Lawyer magazine.
• Christina Kohn worked to advance liberty as a law clerk at the Pacific Legal Foundation in California and a research intern at the Michigan-based Mackinac Center for Public Policy before joining the Goldwater Institute as an attorney in 2010. Christina earned her law degree from Michigan State University College of Law, where she served as notes editor of the law review and president of the campus Federalist Society.
• Carrie Ann Sitren strives to defend property rights, enforce fiscal responsibility, and protect school choice. A graduate of the Wake Forest University School of Law, she also has been a strong advocate for public access to information about government policies before final decisions are reached, using Arizona’s public records law to compel city governments to release key documents that they would prefer to keep hidden.
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