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Tombstone marshal sued in 1st Amendment duel

Az town’s entertainers say marshal became outlaw, arresting Wild West actors to chill free speech

In the Wild West town of Tombstone, Arizona, the marshal is facing down a fight against one of the most powerful forces in the land: the First Amendment.

In a Cochise County Superior Court suit filed Monday, the marshal’s huckleberry, the Tombstone Historama Corporation, is suing the city of Tombstone to restore the practice of “walkdowns” — Wild West-style dramatic performances.

For 15 years, the walkdowns were done before a theatrical gunfight to build suspense in front of tourists. According to the suit, they’re an homage to Hollywood westerns.

“The lineup is meant to reenact the historical walkdown of the Earp brothers and Doc Holliday, who made their way to the O.K. Corral prior to the Oct. 26, 1881, gunfight depicted in the 1993 film Tombstone,” Tombstone Historama wrote in its lawsuit.

The practice was put to an end Nov. 13, 2021, after the city and the marshal’s office declared the activity akin to solicitation via an ordinance.

The Tombstone Historama Corporation argues its clients have obeyed the law since the 2021 stoppage. However, it maintains that even before walkdowns were paused, the communication between the actors and visitors was legal.

“The walkdowns do not involve speaking with visitors until approached, and when approached, actors simply answer whatever questions the visitors ask, regardless of whether it relates to a gun show or Tombstone in general,” the company wrote. “They are often asked general questions about Tombstone such as where a specific business is located, even other gun shows.”

According to the suit, this activity should be protected because the solicitation implicitly requires the actors to ask for money.

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Historically, visitors occasionally volunteered donations to the much-obliged actors.

Tombstone Historama Corporation further contends that walkdowns are being allowed at some establishments, but not its.

“Plaintiffs are selectively enforcing the solicitation ordinance against O.K. Corral,” the firm wrote in its complaint. “The solicitation ordinance is also overly broad and vague, failing to provide O.K. Corral with adequate notice of the prohibited conduct. This failure leaves O.K. Corral without a guide on how to act, and is further supported by the selective enforcement.”

The organization also believes the threat of criminal citation violates, among others, the constitutional right to free speech.

“Defendants’ threat to cite O.K. Corral for solicitation, if the walkdowns are resumed, restricts O.K. Corral’s right to free speech, expression, association, assembly and movement, and exercise of those rights, in violation of the United States and Arizona Constitutions’ free speech, due process and equal protection clauses,” they wrote in the complaint.

According to the suit, the city also arrested two actors in a politically motivated attempt to chill their free speech.

“This threat is further amplified as a restriction of speech demonstrated by the recent arrests of two O.K. Corral actor employees by Defendants,” the company argued. “Although the two employees were arrested for non-solicitation violations, upon information and belief, the arrests were made one day before the Notice of Claim’s expiration period and were designed to and have the effect of restricting speech.”

In Arizona law, it is required to file a notice of claim before proceeding with a suit.

Gregg Leslie, the executive director of the First Amendment Clinic at Arizona State University, says it’s not too uncommon to see conflicts with municipalities in the realm of the First Amendment.

“The average any-person with political power doesn’t always think in terms of what somebody else’s right to expression entails,” Leslie said. “They just think, ‘I want to control something.’ So, [they’re] going to say, ‘Stop doing it.’ … You see it all the time. They’re [sometimes] not aware that when they exercise government power, they have to be conscious of whether they’re making a decision based on the content of somebody’s speech or regulation. And if they are — whether they’re very making a very narrow time, place and manner, restriction — that’s valid for other reasons.”

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The Tombstone Historama Corporation is represented by Richard M. Rollman and Kevin J. Kristick of Bossé Rollman PC.

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According to the suit, the city also arrested two actors in a politically motivated attempt to chill their free speech.