It quickly became clear that Flagstaff’s city government didn’t want [Timberline Firearms & Training’s Rob] 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).”
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.
— J.D. Tuccille in Poised To Lose Battle Over Gun Ads, City Bans All Advertising But Its Own