Dustin Gardiner

The Republic | azcentral.com

The dispute started in 2010%2C when Phoenix officials removed 50 %22Guns Save Lives%22 ads from the city%27s bus stops.

Phoenix argued that the message was political and violated the city%27s policy against non-commercial advertising on buses and transit stops.

The Arizona Court of Appeals struck down the city%27s decision%2C saying its rules allow for ads that blend political and commercial messages.

For nearly four years, Phoenix officials have fought to keep the politically and emotionally charged statement "Guns Save Lives" off city bus shelters.

The city conceded that battle earlier this summer after it lost an appeals court ruling, and advertisements with the controversial statement have popped up at bus stops from downtown to northeast Phoenix.

Aside from stirring conversations about gun rights, the case could have broader implications for how Phoenix regulates the content of ads on the bus and transit system. Civil-liberties advocates say it opens the door for more ads that blend political and commercial messaging.

The dispute started in 2010, when city officials removed from Phoenix bus stops 50 ads with the words "Guns Save Lives" set against the backdrop of a red heart.

Phoenix told the man behind the ad, gun-rights activist and author Alan Korwin, that its message is political and violated the city's policy against non-commercial advertising on buses and transit stops.

Korwin said the ad, which includes the words "Arizona Says: Educate Your Kids" and a mention of TrainMeAZ.com, promotes a website that links gun owners with training classes. He contends liberal-leaning city officials censored the ad because they disagree with its message.

The Phoenix-based Goldwater Institute, a conservative government-watchdog group, defended Korwin, along with the backing of the liberal-leaning American Civil Liberties Union.

They argued that the city's policy banning non-commercial speech is arbitrary and should be struck down because the Arizona Constitution offers greater free-speech protections in certain areas than the U.S. Supreme Court has interpreted under the First Amendment.

But the Arizona Court of Appeals took an unexpected twist on the case in its May ruling.

A three-judge panel rejected Goldwater's free-speech argument because it hadn't raised the argument at trial court. That argument came after a county judge ruled in Phoenix's favor in 2012.

The judge ruled that the city had created reasonable guidelines for what it will and won't allow on transit billboards.

The appeals court also unanimously agreed that city officials had not lawfully applied its own rules for screening ads, creating a loophole that could allow others to post controversial ads.

The judges said Phoenix's claim that its rules ban ads that include speech beyond a commercial message is inconsistent with its written standards, which require only that a "commercial transaction be proposed and must be adequately displayed."

That led the court to rule that the city's standards allow for "blended" ads that propose a commercial transaction and include political or ideological speech. In Korwin's case, he promotes a firearms-training website while extolling the virtues of gun ownership.

Christina Sandefur, an attorney for the Goldwater Institute, said the ruling "definitely opens the door" for more ads that use political messages to help sell a product. She said city officials had enforced the rules in a haphazard fashion, allowing messages that promote environmentalism or religion, but not Korwin's pro-gun posters.

"Although the ruling was narrow, it put the city on notice that it needs to be more thoughtful and consistent about how it enforces their standards," Sandefur said, adding that Phoenix will have to enforce its rules as written.

City officials declined to appeal the ruling to the Arizona Supreme Court, but the city is reviewing its policies in light of the appellate ruling.

It's unclear if the city will attempt to rewrite its policy to exclude non-commercial speech.

Spokesman Matthew Heil said the city won't comment on the ruling until it has completed its review, saying, "It's still a work in progress. We're still working through what those implications would be."

But the city has previously questioned whether Korwin is being upfront about the intent behind his ad.

In court filings, Phoenix calls the pro-gun ads "political rhetoric in the sheep's clothing of an ostensible commercial advertisement."

Attorney David Schwartz argued that the city wants commercial pitches "that do not get into ideological, political debates as part of the proposed ad."

The city had defended its policy banning non-commercial speech by pointing to federal court rulings concluding that the government can impose reasonable restrictions on speech that appears in a "non-public forum," such as proprietary advertising sales.

Phoenix officials worry that promoting political speech on the city bus system will inevitably create controversy, potentially incite protests, stir accusations of political favoritism and affect transit-system revenue.

But Korwin said the case wasn't really about any of those "legal manipulations."

He said that despite winning his case on a "technicality," he's watching to see if the city will try to rework its policies in a way that allows officials to retain broad content-based discretion over the type of ads displayed.

"They didn't want 'Guns Save Lives' in the public eye," Korwin said, adding that at least 500,000 people now see his ads every day. "You can't ban speech based on content, and that's what they want to do."

Korwin said that his posters will remain at city bus stops through November and that he plans to launch a larger advertising campaign with newspaper ads and highway billboards.