Is advertising a form of speech protected by the First Amendment? Can government agencies refuse to advertise in facilities they control just because they don’t like the content? These questions arise in Flagstaff, Arizona, where city officials are trying to prevent a shooting range owner from advertising his business at the local airport.
Once acceptable, now prohibited
“Flagstaff recently banned Navy veteran Rob Wilson from advertising his indoor shooting range at the local airport – an illegal violation of free speech,” notes Arizona’s Goldwater Institute, which represents Wilson. “The 10-second silent spot featuring Rob Timberline promoting Firearms & Training has appeared thousands of times in a row – without complaint – since he began running it alongside other local businesses’ ads on the baggage claim at Flagstaff Pulliam Airport in 2019.”
This year, as in the past, Wilson contacted Pulliam to place his ad during the busy summer season, when tourists fly to the mountain town to enjoy the views and access to outdoor recreation. But for the first time officials rejected the adtelling Wilson that his representation of the shooting sports violated the city’s ban on showing “violence or antisocial behavior” and its new advertising policy against depicting guns.
The advertising policy is so new that it is not official: it was the first suggested And discussed by the City Council in September, several months after Wilson signed up to advertise for the summer, and won’t be voted on until later this month. At the Sept. 12 council meeting, city staff suggested a ban on advertising for “firearms and ammunition” to replace verbiage about “anything that represents violence” because of concerns that it will be “harder for someone to really decipher, and then it becomes a judgment call.”
“The City’s advertising policy remains in draft form following Council’s discussion at the September 12 Council meeting,” Flagstaff Public Affairs Director Sarah Langley told me by email. “At the November 14 Council meeting, staff will bring back an updated version of the policy that will include the changes requested by Council for consideration.”
A policy with a specific goal?
It is difficult to avoid the implication that a ban on the advertising of firearms and ammunition could be aimed at a shooting range owner who has advertised at the airport in the past and who vociferously objected to this at the outset of a new tourist season was abruptly dismissed on the basis of claims that recreation is ‘violence’.
“Based on information provided by the third-party vendor managing the airport advertising at the time, it appears that Mr. Wilson placed an advertisement at the airport from August 26, 2019 to September 22, 2019,” Langley added. “Mr. Wilson subsequently chose not to renew that advertisement. Because the City assumed management of the advertisements at the airport, Mr. Wilson did not request to renew at the airport until his most recent request in May 2023 to advertise.”
So the old private advertising contractor didn’t see any problems with advertising for a shooting range, but the city officials who took over the work did. Now they seem to want to justify their position.
Wilson “indicated he was unwilling to make any revisions” to his ad, Langley says. But she did not answer my question about what prompted city officials’ objections or the nature of the revisions requested. Langley also claimed that the old ad consisted of rotating still images, while the new one was a video, but it’s hard to believe that would make much difference to the nature of the ad or the legal protection it enjoys.
Advertising is protected by the First Amendment
Commercial speech “does not receive as much free speech protection as forms of non-commercial speech, such as political speech,” comments David Schultz of the Free Speech Center at Middle Tennessee State University. But beginning in the 1970s, “the Supreme Court gradually recognized that these types of rulings deserved some First Amendment protection.”
Specifically, the Court developed the Central Hudson test to determine when governments can regulate commercial expressions: if the expression concerns legal activities and is not misleading, in order to regulate the expression, the government must have a substantial interest, the regulation must materially further the government’s substantial interest, and regulation must be closely tailored.
The First Amendment especially applies when the government owns the location where the advertisement is to appear, such as public buses. That came to the fore a decade ago when the American Freedom Defense Initiative, a private group, wanted to buy space for “Faces of Global Terrorism” ads, based on previous State Department ads already running on buses in King County, Washington had walked. The ads were rejected as potentially “demeaning or disparaging” and “disruptive” to the system. A lawsuit followed.
Finally, in 2018, the 9th Circuit Court of Appeals ruled that revised versions of the advertisements (with factual inaccuracies removed) cannot be rejected because there is facial discrimination. The province was also not allowed to claim that the ads would be disruptive, because it had already run similar ads from the Ministry of Foreign Affairs without incident.
The Supreme Court has never reviewed that ruling, but Arizona is in the 9th Circuit and subject to its decisions. And government-run airports are very similar to public buses when it comes to advertising locations and the speech protections that would apply.
On the way to court
Of course, that’s not a guaranteed win for Rob Wilson. The court may decide that advertisements for recreational shooting amount to disruptive ‘violence or anti-social behaviour’, even if they have been shown in the past without any problems. Whether judges can determine that a new ban on advertising of firearms and ammunition is position-neutral, although that is a difficult issue subject to ongoing public debate, especially when the restriction arguably directly targets Wilson’s gun activities.
“By denying Mr. Wilson’s request to advertise based on an unreasonable and pretextual application of the advertising policy, the City violated Mr. Wilson’s constitutional rights to freedom of speech and due process,” said John Thorpe, attorney for the Goldwater Institute. Scharf-Norton Center for Constitutional Litigation, informed Flagstaff officials on Oct. 24 letter. “Furthermore, the new policy currently under consideration is unconstitutional, both in its application to Mr. Wilson (as it expressly targets his expression) and on its face (as it prohibits broad, ill-defined categories of speech and discriminates on the basis of content and point of view). ).”
Unless Flagstaff officials change course when they formally consider the city’s proposed advertising policy this month, their newfound aversion to firearms will be tested in court.