By Alan Korwin, GunLaws.com
Oral argument, Tuesday, Dec. 3, 2013, Arizona Court of Appeals, Phoenix.
The city of Phoenix tore this ad down from their bus stops.
Phoenix won’t allow our red “GUNS SAVE LIVES” ad but they recently allowed our blue “GUNS STOP CRIME” ad. Go figure. They should not be in the business of approving words.
Photos and montage by John Rosado of Rosado LegalShield for TrainMeAZ.com
What’s at stake (3 years into the censorship):
1. This notion that a public bus stop is a non-public venue is preposterous. It is absurd on its face to any normal person of average intelligence. When I tell people about this facet of the case they stare in disbelief, jaws agape. I let the silence hang for a while. I have read the briefs and understand the arguments and precedents. No amount of explanation, about the rarified atmosphere of the legal world, helps justify this bizarre excuse America’s fifth largest city puts forward to deny our speech and allow its censorship of our message, at least to average citizens. In my opinion this needs to change.
2. Giving greater protection for commercial speech than political speech defies the underlying principles of free speech as I understand them (and I am not suggesting our ads were one or the other, as this case does). A city should not be an arbiter of such things. The Constitution makes no such distinction in any way, shape or form, as numerous attorneys and experts keep reminding me when this subject comes up. Both forms of speech should receive equal protection.
3. The fact that our message has been censored now going into its fourth year is an outrageous affront. It demolishes any notion people hold of speedy justice. It is a denial of justice, at the hands of the city and the courts the city and the state runs. It is inexcusable, and we now face further delays and unknowns even with this hearing imminent. Some expedient resolution would be fair if the case drags on, but we cannot expect one, which is why we are running new alternate ads, that the city can somehow judge acceptable. The fact that the city accepts the new ad (images below) highlights the inconsistency of their policies.
4. The hubris and malignant attitudes of those in a position of authority, to deign to tell us what we can and cannot say in public (short of fraud or indecency) so offends the sense of freedom in this country it is grounds for punishment against the offenders in my opinion. We realize this will never occur, but the fact they can do this to us with no repercussion or even fear of reprisal only encourages more of the same, and is injustice writ large. Wrongdoing deserves punishment. Just not in this case. Does that seem right to you?
5. The fact that none of the city officials could clearly identify why our ads were not acceptable makes it plain as day their actions are arbitrary and improper. The fact that they posted numerous ads that were clearly outside their published guidelines is glaring evidence that they make decisions in an inconsistent and unequal manner, favoring some ads and disfavoring others. I believe we were singled out because they don’t like our message. They are prohibited from doing so, actions so far from their authorized duties and in such violation of our rights I feel it merits punishment. I fully understand we are not pursuing that, but it leaves me wondering who should, since someone should. Content-based discrimination is a terrible offense. A lack of punishment for official denial of rights encourages further denials. I probably shouldn’t even say that.
6. This concept that the city can write our advertisements for us is so far beyond any delegated authority they do or should have defies imagination. No conceivable form of government in this nation dreams of a system where elected officials or unelected bureaucrats maintain internal ad agencies to concoct what advertisers are allowed to say, or how they should market their wares. Such tyrannical activity must be nipped in the bud, its berries plucked harsh and crude, its roots ripped with forced fingers rude (with thanks to John Milton for a well turned phrase).
7. We have been severely harmed by this censorship, disruption to our business, emotional distress, distraction from our real work, and extensive delays. I believe in my heart the resolution of the case ought to include something to make up for the egregious damage the city has caused us, but I understand it is not part of the case. It is my position that the city be required to post the advertisements again for at least as long as the original contract required. And that would just bring us back to even, where we would be — had they not interfered more than three years ago.
8. If I were in charge (I’m not), to help compensate us for the enormous and unjustifiable delays, which could have put us out of business and caused us such grief, the posting should be at the city’s expense, but I understand that’s not how this system typically works. Considering the city’s outrageous (my opinion) denial of our fundamental rights, interference with our contract and business, excruciating offense and delays, even that would barely be fair, but what do I know. The people I talk to, they think something like that wouldn’t be unreasonable either, but what do they know.
9. I would like to learn who exactly decided to censor our ads, we never did find out.
Now you know how I feel, where I see the touchstones in the case, and what I would like to see as an outcome.
The Goldwater and ACLU attorneys goals, summarized from the filed briefs:
http://goldwaterinstitute.org/article/korwin-v-cotton-bus-shelter-ads-case
1. Establish state constitutions as a focal point in fundamental rights cases; and the Arizona state constitutional provision for free speech as providing greater than the federal protection, and paramount depending on context. Establish strict scrutiny as the only standard for free speech issues.
2. Require the city to implement guidelines that are constitutional, unambiguous, and provide clear guidance for what is and is not allowable. Prevent bureaucrats from acting with unfettered discretion, in an arbitrary and capricious manner, with discriminatory enforcement.
3. Put Korwin’s TrainMeAZ.com signs back up. Even while making other determinations.
4. Eliminate Ninth Circuit and federal forum analysis from control in Arizona and elsewhere.
5. Challenge (overturn) the city’s claim to allowable content-based restrictions on free speech.
Our side had mentioned relief under 42 U.S.C. §1983 in a brief; I would encourage a quick look at 18 U.S.C. §241 and §242, whose context may seem remote (to a legal mind at least, I’m not a lawyer), but whose written text is poignant, explicit and spot on. Google those if you want an eyeful: Denial of civil rights under color of law is a federal felony, with punishment including fines, imprisonment and up to the death penalty.
Alan Korwin wrote his first book, The Arizona Gun Owner’s Guide, in 1989. It is now in its 25th edition with nearly 200,000 copies in print. He went on to write or co-write nine more books on gun laws, including state guides for California, Florida, Texasand Virginia, and the unabridged federal guides Gun Laws of America and Supreme Court Gun Cases. His 11th book, which debuted in 2008, is The Heller Case: Gun Rights Affirmed!, and his 12th, After You Shoot, is about the deadly loophole in self-defense law. He recently completed Your First Gun, for people new to gun ownership, and for gun owners to give to their gunless friends.
Note: You can meet me this weekend at the Crossroads of the West Gun Show, biggest show of the year, absolutely huge, gifts galore, autographs, cool stuff, seminars,
ammo, Arizona State Fairgrounds, 19th Ave. and McDowell, Three Days — Fri, Sat, Sun, details, hours, discount coupons: http://www.crossroadsgunshows.