Poised To Lose Battle Over Gun Ads, City Bans All Advertising But Its Own
Flagstaff keeps digging a hole over commercial free speech.
Spoiled brats upset at losing a game sometimes take their ball and go home so nobody can play, but can petulant politicians do the same with advertising venues? That's the question as city officials in Flagstaff, Arizona, end advertising at the local airport rather than allow a firearms-related business to advertise its services to tourists. Well, they're discontinuing advertising for everybody except a city agency that promotes select businesses. That's unlikely to resolve the dispute.
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Advertising That Violates a Policy To Be Named Later
Earlier this month I covered the case of Rob Wilson, who wanted to continue advertising his Timberline Firearms & Training to people visiting the high-desert community. "Officials rejected the ad, telling Wilson that its representation of shooting sports violated the city's ban on displaying 'violence or anti-social behavior' and its new advertising policy against depicting guns," I wrote.
That policy hadn't even been approved yet. "The City's Facility Advertising Policy remains in draft form," Flagstaff Public Affairs Director Sarah Langley told me via email. It was scheduled for consideration at the November 14 council meeting. Langley added that part of the city's objection is that Timberline's new advertisement is a video, unlike the rotating still images used in past ads. Arizona's Goldwater Institute, which represents Wilson, denies any such change and shared with me a video identical to the current one and date-stamped August 13, 2019.
Not that still vs. moving images should make a difference.
It quickly became clear that Flagstaff's city government didn't want Wilson's business, or gun-related businesses in general, advertising at its facilities and was scrambling to come up with a justification. But government agencies are limited in their ability to pick who can and can't speak on public property.
"By denying Mr. Wilson's request to advertise based on an unreasonable and pretextual application of the advertising policy, the City has violated Mr. Wilson's constitutional rights to freedom of speech and due process of law," John Thorpe, staff attorney for the Goldwater Institute's Scharf-Norton Center for Constitutional Litigation, informed Flagstaff officials in an October 24 letter. "Moreover, the new policy currently under consideration is unconstitutional, both as applied to Mr. Wilson (as it expressly targets his expression) and on its face (as it bans broad, poorly-defined categories of speech and discriminates based on content and viewpoint)."
Commercial Speech Enjoys First Amendment Protection
Flagstaff was on shaky ground. While commercial speech enjoys somewhat lesser protection than other forms of expression, it is still covered by the First Amendment. Under the Central Hudson test, the U.S. Supreme Court established that if the speech concerns lawful activity and is not misleading, to be allowed to regulate the speech the government must have a substantial interest, the regulation must materially advance the government's substantial interest, and the regulation must be narrowly tailored.
Importantly, as Thorpe pointed out to Flagstaff, Goldwater was involved in a similar case a decade ago when Phoenix refused Alan Korwin permission to advertise his firearms training effort at city bus shelters. An Arizona court ruled in Korwin's favor on First Amendment grounds.
Flagstaff officials apparently agreed they had little hope.
"Advertising at the airport is not something we depend on for our revenue stream, really, and I just get a little concerned about people's interpretation of what may be offensive," commented city council member Lori Matthews during the November 14 meeting after a presentation by a deputy city attorney about what the city might or might not be able to regulate, advertising-wise. "So, I'm kind of swaying to just opt out of any advertising at the airport."
"Litigation on this could be very costly," warned City Manager Greg Clifton, who agreed that advertising should be stopped at the airport as well as at city recreational facilities. "And we'll quickly exceed any benefit that we realize through the revenues that we're talking about."
So, the city council decided that nobody will get to advertise. Well, nobody except for the city's tax-funded Discover Flagstaff promotion program. That may be a problem.
A Solution That Creates More Problems
"We're stewards of the bed, board, and beverage tax," Economic Vitality Director Heidi Hansen reminded the council about Discovery Flagstaff. "It is our job in our advertising to talk about those attractions, hotels, restaurants, and campgrounds that actually pay that 2 percent…. So, I just want to make it clear that if someone were to come to the airport, they might see actual businesses on our advertising."
"That raises the question: if the city is advertising businesses through Discover Flagstaff, does it become a problem that the city does not allow other owners to independently advertise their own businesses?" Adrian Skabelund noted in Arizona Daily Sun coverage.
Well, yes, it does raise a big question. By definition, Discover Flagstaff advertising is government-approved messaging promoting select businesses in the city. Instead of battling Rob Wilson and Timberline Firearms & Training in court, Flagstaff may find itself defending against multiple lawsuits over favoritism shown to businesses given a boost by the program.
"What's essentially happening here is the city is tying itself in knots to suppress viewpoints it doesn't like," Goldwater's Joe Setyon told me by email. "There's a better way: the city should simply allow Rob to run his harmless ad, as he has already done thousands of times, with no complaints."
Flagstaff officials could set aside their pearl-clutching and let all sorts of businesses, organizations, and individuals promote their goods and services to visitors within the broad limits protected under the Constitution. Those visitors could pay attention to the advertisements or ignore them as they please, as Americans do every day all across the country. That would be a healthy step towards promoting both good will and a little more prosperity for the city and its residents.
"I just want to say that if the council gives the direction I think they just gave, that we want to make sure we do that in a way that complies with the law," Deputy City Attorney Kevin Fincel advised Flagstaff city council members after declining to sign off on the new policy. "And so I'll just leave it at that."
It's not at all clear that Flagstaff is complying with the law when it comes to respecting the free speech rights of advertisers at city-owned venues. It's definitely not certain that the city is sparing itself from litigation and resulting costs by barring private parties from advertising at the airport and reserving that privilege to businesses promoted by a city agency.
What is clear is that a government body once again made what should be a relatively simple case more difficult by meddling and restricting. Flagstaff officials tried to take their ball and go home, but free speech rights were never theirs to take away.
