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L. Neil Smith's
Number 695, November 4, 2012

"The coming week may well change the course of
history, for better or worse. In my lifetime,
it has always been worse. 2012 my prove to be
America's last good year, the beginning of a
slide into a new Dark Age."

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Court Decides Against Free Speech
by Alan Korwin

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Special to L. Neil Smith's The Libertarian Enterprise

The lamestream media told you:


The Uninvited Ombudsman notes however that:

"Guns Save Lives" Bus-Stop Ads To Remain Censored
TrainMeAZ campaign will appeal
Goldwater Institute attorneys "disappointed" but "confident"

The lowest court to hear the free-speech case against Phoenix, for censoring the "Guns Save Lives" Educate-Your-Kids firearm-safety campaign, has decided against the plaintiff in the case, Alan Korwin and TrainMeAZ, LLC. The TrainMeAZ campaign will proceed with an appeal and Phase II, and is promising news on that soon. You can sign up for bulletins here.

Click the image for full details.
This is the advertising poster the city of Phoenix tore down in the middle of the night.
It was posted under an $11,000 contract at 50 public bus stops in high-traffic locations.
The campaign was financed by civic-minded sponsors in the firearms community,
listed here, take a look.

The court decision was not a total surprise, though the decision itself was something of a stunner. Clint Bolick, the director of The Goldwater Institute's Scharf-Norton Center for Constitutional Litigation is the lead attorney representing TrainMeAZ on the case. Korwin discussed this with him and attorney Christina Sandefur, who has been on the case since it began.

"As expected, the judge ruled against us," Korwin said. "What is shocking is the utterly superficial nature of the ruling—one of the worst any of us have ever seen, especially with the volume of evidence and complexity of the case. We've been at this now for two years—hearings, filings, sworn depositions, responses, evidence gathered and submitted. Although we're displeased, our interest is not diminished."

Clint commented, "Given the importance of the legal issues and the extensive evidence showing that the City's advertising policy is applied in a highly subjective manner, we were disappointed by the cursory decision issued by the trial court.  We're confident that the Court of Appeals will give this case the attention it deserves, and that in the end the plaintiffs' fundamental First Amendment rights will prevail."


So here I was all set to bite into the meat of the decision, win or lose, and the decision is so short (five paragraphs) and so devoid of substance that there isn't much to say. Judge Brain concluded that, "... if one where (sic) to carry plaintiffs' arguments to its logical conclusion, Phoenix could only adopt one of two policies: (a) anyone can advertise anything; or (b) no one can advertise anything." It almost sounds like Brain was late for a dinner and didn't bother to read the arguments or the mountain of evidence the case generated.

The Goldwater Institute will be filing an appeal. It is typical in cases like this, where the bureaucrats in power run rampant over fundamental rights, that lower courts align themselves with the bureaucracies and allow the travesties to exist, which is why such cases must be filed.

The advertisements remained standing for about nine days, illuminated at night.

The Institute for Justice, a friend of freedom and pro-bono law firm which showed interest in our free-speech predicament early on, recently commented on the difficulty of these types of cases, in a recent report to its membership. They said it better than I can:

"...court losses, especially at the initial stages, are inescapable for cutting-edge constitutional lawyers. Indeed, we tend to view an initial loss in a case as a good warm-up to an ultimate victory... (such) cases are always uphill battles because we are trying to change the law. In fact, if they weren't such challenging cases, there would be no reason for IJ to litigate them in the first place. Easy cases can be litigated by anyone. Instead, we take cases as part of a long-term strategy to improve constitutional protection for individual freedom, particularly in areas of the law where that freedom has been degraded by courts and legislatures over time...

"But we do not win all of these cases at the trial court or even necessarily at the mid-level appellate courts. Instead, because our cases raise such difficult and important legal issues, we often must go to the appellate or supreme courts to secure a victory that then protects everyone's rights.

"...In fact, losing some of our cases tells us that we are litigating the right issues. Losses tell us that rights are in jeopardy and are in need of protection. A series of recent lower court losses in the area of free speech for businesses is serving just this purpose—it is telling us we are on the right track in choosing our cases. The standard rule is that free speech rights get very strong protection, while government-imposed limits on economic rights get substantial deference from the courts through the 'rational basis test.'

"What happens, however, when businesses want to speak? IJ has brought a series of such cases in recent years. Despite the supposed high levels of protection for free speech in this nation, our cases have not fared well in the courts. The judiciary's reflexive deference to the other branches of government whenever a law has anything to do with business has outweighed even the strong protections of the First Amendment.

"Our three losses in these business speech cases have all been in the 4th U.S. Circuit Court of Appeals... The 4th Circuit losses tell us that the law is in even worse shape than we thought and therefore that IJ's work is desperately needed. We must redouble our commitment to protecting the right to earn a living through speaking and the right of everyone to speak freely, including people who own small businesses.

"Through resilience and persistence, we will secure protection not only for free speech but economic liberty, property rights and school choice, as well." That commentary was penned by Dana Berliner, IJ's litigation director, and echoes Goldwater's sentiments to a tee. It's a small world—Dana succeeded Clint as IJ litigation director after Clint moved to the Goldwater Institute.

In oral argument at court, the attorney for Phoenix said, "We shouldn't have to be tarnished," with messages like TrainMeAZ's, and that political "diatribes" cannot be allowed. "It's the political ideology that we do not want," the city of Phoenix said. Those are quotes from the city's oral argument in court. They didn't fight with our headlines so much as the text we provided for people standing waiting at the public bus shelters.

Bolick and Sandefur preparing for oral argument.

Our text for bus riders is designed to draw them in and convince them training is valuable and something they should get: "In Arizona, marksmanship matters. 'The Train-Me State' knows that a nation, trained to arms, is an American linchpin of freedom, and is respected in Arizona like nowhere else. The Arizona legislature has enacted vibrant protection of the Second Amendment right to keep and bear arms. We in Arizona seem destined to set models for the nation—in this case, a shining example of gun rights for all free peoples of the Earth."

That's the tarnish the city of Phoenix doesn't want people to see. Read the rest here. We can't tell from their policy (which they changed after our lawsuit was filed by the way) which words are OK and which are not. No one can. In sworn depositions, even their experts couldn't tell what was allowed and what wasn't. Yet the "standards" are supposed to be clear to an average person of ordinary intelligence.

In other words, they decide what to allow in secret back rooms when no one is looking and you're not supposed to complain. That's their idea of free speech. You should have seen them squirm and evade and avoid when they were under oath. It was mind boggling. I had to keep my mouth shut and just watch. Now THAT was hard.

Everything in our ad is aimed at motivating and persuading the viewer to go to the website and hire trainers, go to classes and get educated about gun safety and marksmanship. (Arizona firearm trainers reading this should go to and sign up, it's free.)

We even go after a person's stomach: "This is why the TrainMeAZ campaign exists. Acting as one, the state rises up to encourage and enable gun-safety training, fun shoots, special training days at the range, a coordinating point for the state's thousand-plus certified trainers—with web-interactive and printed maps for the people. Soak up family days where the shooting sports are honored and enjoyed, with that freedom smell of gunpowder and a good hot dog."

I've never been a plaintiff in a lawsuit before but this sure feels right. I'm lucky to have the Goldwater Institute on my side—there would be no way to do this without them. They deserve your support—financial, moral, or just follow their exploits by getting their email alerts.

The core of the lawsuit from my non-lawyer perspective

Phoenix claims that because a public-transit bus stop is a non-public venue (you read that right), they can limit speech on ads there to only those that "propose a commercial transaction" (with small exceptions for porn, fraud and similar). I know, I know, claiming a public bus stop is not a public venue is nuts, but it's a fine point of law and we're not even arguing that, go read the "Children of the Rosary" case at the beloved Ninth Circuit Court if you're really interested. Goldwater has all the papers posted here.

The real issue is that our ad does indeed propose a commercial transaction—paid training: Educate Your Children, which promotes paid training and range time and classes at (go look) but the city falsely claims it doesn't. And the city has allowed all sorts of totally non-commercial ads, including public-service ads, which are supposed to be specifically banned. But they like those, so they let them run.

They have allowed ads for free pregnancy tests (where's the commercial transaction in that?) and free veterans counseling (another clear public-service ad, and a good thing, but not allowed under their "standards"). They even have an ad that says "Jesus Heals" with a cross made of band-aids and a radio station named. This is a commercial transaction?  Don't let Jesus know. Judge Brain mentioned none of this, and a ton of other clear examples that Goldwater attorneys and staff spent enormous time and effort researching and presenting, that Brain ignored, in what passes for his ruling.

In other words, the city's decisions about what you're allowed to say are arbitrary, capricious and decided at the whim of bureaucrats. The judge's ruling basically ignores the facts and evidence in the case and simply finds for the city on a whim. No reasonable person can apply their "standards" in a meaningful way and come out with consistent results. This denies a person's right to free speech, equal treatment under the law and due process, the grounds for our First and Fourteenth Amendment challenges under state and federal constitutional protections. We shall proceed.

This has been hard on me personally, and has been a major setback to our small business startup, the firearms-safety referral business for the state, for more than two years now. In a time of economic difficulty, the government has put the brakes on a golden business opportunity and a safety opportunity for the public.

The goal was to expand the market for gun-oriented training, now that Constitutional Carry is in place in Arizona. The market potential has exploded—from the 2% of people willing to bow and scrape before the government for a permission slip to discreetly bear arms, to the 50% of the public who keep arms. Government takes a small step out of our way and it's a potential economic stimulus package all by itself.

Instead of catering to the government-enforcement model, where classes and course content are dictated by government, it makes sense for everyone to get firearms training. Instead of a government-induced training cartel, with "official" trainers sanctioned by unelected bureaucrats, NRA-certified and other free-market forces can fill the void and promote firearms safety as a legitimate and wholesome pursuit.

Two years later, government is still in the way. The ambitious dream of marketing firearms safety and marksmanship to the general public, the way drug makers sell cures for all that ails you, remains a lofty goal. But it remains.

Alan Korwin runs Bloomfield Press "We publish the gun laws." Call, write, fax or click for our f r e e full-color catalog
Reprinted from "Page Nine No. 116" Page Nine is a Blog—Automatic RSS feeds Get Page Nine through Twitter—Twitter

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