Is advertising a form of speech protected by the First Amendment? Can government agencies reject advertising in facilities they control just because they don't like its content? Those questions arise in Flagstaff, Arizona, where city officials are trying to block a gun range owner from promoting his business at the local airport.
Once Acceptable, Now Banned
"Flagstaff recently banned Navy veteran Rob Wilson from advertising for his indoor gun range at the local airport—an illegal violation of the freedom of speech," notes Arizona's Goldwater Institute, which is representing Wilson. "Rob's silent, 10-second spot promoting Timberline Firearms & Training has appeared thousands of times on a loop—with no complaints—since he started running it alongside other local businesses' ads over the Flagstaff Pulliam Airport baggage carousel in 2019."
This year, Wilson reached out to Pulliam as he has in the past to run his ad during the busy summer season when tourists fly into the mountain town to enjoy its views and access to outdoor recreation. For the first time, though, 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.
The advertising policy is so new that it's not official—it was first proposed and discussed by the city council in September, several months after Wilson applied to advertise for the summer, and won't be voted upon until later this month. At the September 12 council meeting, city staff proposed a ban on advertising "firearms and ammunition" to replace verbiage regarding "anything representing violence" because of concerns that it's "harder for someone to truly decipher, and then it becomes a judgment call."
"The City's Facility Advertising Policy remains in draft form after the Council's discussion during the Sept. 12 Council meeting," Flagstaff Public Affairs Director Sarah Langley told me by email. "At the Nov. 14 Council Meeting, staff will bring back an updated version of the policy that includes the Council's requested edits for their consideration."
A Policy With a Specific Target?
It's hard to escape the implication that a ban on advertising firearms and ammunition might be aimed at a gun range owner who has advertised at the airport in the past and loudly objected when he was abruptly turned away at the beginning of another tourist season based on the claim that recreation is "violence."
"Based on information provided by the third-party vendor that managed advertising at the Airport at that time, it appears Mr. Wilson ran an advertisement at the Airport from Aug. 26, 2019 to Sept. 22, 2019," Langley added. "Mr. Wilson then chose not to renew that advertisement. Since the City assumed management of advertising at the Airport, Mr. Wilson did not request to advertise at the Airport until his most recent request in May of 2023."
So, the old private advertising contractor saw no problems with advertisements for a gun range, but the city officials who took over the job do. Now they appear to be scrambling to justify their position.
Wilson "indicated he was not willing to make revisions" to his advertisement, Langley says. But she didn't answer my question about what prompted city officials' objections or the nature of the requested revisions. Langley also claimed that the old ad consisted of rotating still images while the new one is a video, but it's difficult to believe that would make much of a difference to the nature of the ad or the legal protection it enjoys.
Advertisements Are Protected by the First Amendment
Commercial speech "does not receive as much free speech protection as forms of noncommercial speech, such as political speech," comments David Schultz of Middle Tennessee State University's Free Speech Center. But starting in the 1970s, "the Supreme Court gradually recognized this type of speech as deserving some First Amendment protection."
Specifically, the Court developed the Central Hudson test for determining when governments could regulate commercial speech: 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.
The First Amendment is especially implicated when the government owns the venue in which the advertisement is to appear—like public buses, for instance. That came up a decade ago when the American Freedom Defense Initiative, a private group, wanted to purchase space for "Faces of Global Terrorism" advertisements based on earlier U.S. State Department ads that had already run on buses in King County, Washington. The ads were rejected as potentially "demeaning or disparaging" and "disruptive" to the system. Litigation ensued.
Ultimately, in 2018, the 9th Circuit Court of Appeals ruled that revised versions of the ads (with factual inaccuracies removed) could not be rejected because that involves viewpoint discrimination. The county was also barred from claiming the ads would be disruptive since it had already run similar State Department ads without incident.
The Supreme Court never reviewed that ruling, but Arizona is in the 9th Circuit and subject to its decisions. And government-run airports would seem very similar to public buses in terms of advertising venues and the speech protections that would apply.
Bound for Court
That's not a guaranteed win for Rob Wilson, of course. The courts may decide that ads for recreational shooting represent disruptive "violence or anti-social behavior" even though they ran without a problem in the past. Or judges may determine that a new ban on advertising firearms and ammunition is viewpoint neutral, although that's a tough sell over an issue that's subject to constant public debate, especially when the restriction is arguably aimed right at Wilson's gun-oriented business.
"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)."
Unless Flagstaff officials reverse course when they formally consider the city's proposed advertising policy this month, their new-found aversion to firearms will be tested in court.
The post This City Wants To Ban Gun Ads at the Airport appeared first on Reason.com.
