(RightWing.org) – City officials in the normally quiet community of Flagstaff, Arizona, recently launched an offensive against advertisements at the local airport containing images “displaying anti-social behavior and violence.” That’s not necessarily a bad idea, considering the nation’s adversarial posture since President Joe Biden assumed office in January 2021.
Officials haven’t approved the ban yet but recently used it to reject an advertisement by a local businessman named Rob Wilson promoting the items and services offered by his company, Timberline Firearms and Training. A staff attorney working for the Goldwater Institute’s Center for Constitutional Litigation sent a letter to city officials schooling them on the First Amendment.
Hellbent on enacting its ban on ads displaying violence, otherwise known to local officials as advertisements for guns, Flagstaff officials resorted to using a nuclear solution to remedy their predicament. Here’s what we know about the situation.
City Bans Advertising Displaying or Promoting Guns
On November 29, media outlets reported that city officials resorted to banning all advertisements at Flagstaff Pulliam Airport as part of a greater effort to enforce their so-called ban on the display of violent images. Never mind that they never passed an ordinance introduced to enforce that flagrant censorship.
In a brazen display, Flagstaff officials included one exemption to its ban — a city-operated agency that promotes local businesses at its discretion. Local government officials cannot regulate who can exercise their free speech rights on public property without cause, hence the need for an extreme measure to block Wilson and others from posting any ads displaying firearms or promoting businesses like Timberline Firearms and Training.
While it’s true that commercial advertisements are easier to regulate/ban than private ads, the fact that the city opted to flagrantly target Wilson’s business indicates the new ban likely won’t be enforceable for long. In light of the Supreme Court’s 1980 ruling in Central Hudson Gas & Elec. v. Public Svc. Comm’n.
The Hudson Test Is Destined to Save the Day
SCOTUS ruled in that case that government entities can regulate commercial speech normally protected by the US Constitution, provided it can cite a substantial public interest in doing so. However, the regulation can’t be broader than necessary to meet the government’s goal.
The nation’s highest court also established the “Hudson Test” to determine whether an ordinance, regulation, or statute could withstand review under the First Amendment. SCOTUS set one central rule for courts to consider: whether the banned speech contains lawful activity and isn’t deceptive.
If the court answers both questions in the affirmative, the entity attempting to ban commercial speech must meet three requirements.
- The governmental entity must have a “substantial interest” in regulating/banning the content.
- The regulation/ban must materially and directly advance that interest.
- Officials must tailor that regulation/ban as narrowly as possible.
It appears that Flagstaff officials can’t meet the opening criteria to support its ban, and it is unlikely they would survive the judicial review of SCOTUS’ accompanying three-prong test.
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