Antitrust Law Daily Wrap Up, ADVERTISING—E.D. Pa.: Philly airport’s advertising policy violated First Amendment, (Aug 4, 2014)

By Jody Coultas, J.D.

The National Association for the Advancement of Colored People (NAACP) was granted summary judgment on its First Amendment claims filed against the City of Philadelphia for rejecting an advertisement submitted by the NAACP for display in the Philadelphia International Airport (National Assn. for the Advancement of Colored People v. City of Philadelphia, August 1, 2014, Rufe, C.).

The NAACP submitted an advertisement titled “Misplaced Priorities” to be displayed in the Airport, portraying the Statue of Liberty silhouetted against a sunset to the right of a block of text that read, “Welcome to America, home to 5% of the world’s people & 25% of the world’s prisoners.” Below that sentence, in smaller type was the text: “Let’s build a better America together. NAACP.org/smartandsafe.”

After the City rejected the advertisements, the NAACP argued that the City had a written and an unwritten policy, and challenged both on First Amendment grounds. At the time of the rejection, the City had no written policy regarding what advertisements could be run in the Airport. While the complaint was pending, the Airport comprehensively revised its Rules and Regulations to specify what ads may or may not run in the Airport. Advertisements that do not propose a commercial transaction may be rejected. The NAACP alleged that under the unwritten policy the Airport would reject any advertisement that Airport executives deem “inappropriate.”

The written policy. To state a First Amendment claim, the court was required to adjudicate the case under “forum analysis,” whereby the court identifies the forum the speaker seeks to access and categorizes the forum. Governments may restrict access to certain kinds of fora only if the restriction is narrowly tailored to a compelling government purpose; they may restrict access to other kinds of fora if the restriction is viewpoint-neutral and “reasonable in light of the purpose served by the forum.

First, the court noted that it would review the forum as currently structured despite having a less restrictive advertising policy prior to the NAACP filing suit. Also, the court found that the purposes of the City’s advertising policies were to raise revenue for the airport, create a positive, family-friendly atmosphere for travelers, and cast a positive light on the region that the Airport serves in order to convince travelers to return.

Because the advertising space in the Airport was a limited public forum, the City must prove that the restrictions on speech were reasonable in light of the purposes of the forum, according to the court. The City’s process of obtaining permission to access the advertising space portrayed the City’s intent to control access to the forum carefully. Although the court could not resolve whether the restrictions were viewpoint-neutral, it did find that the restrictions on non-commercial advertising were unreasonable in light of the purposes of the forum. Advertisements like the one proposed by the NAACP were compatible with a multipurpose terminal containing many adult-oriented, potentially controversial media. The City could not show how allowing non-commercial advertisements would diminish advertising revenue, diminish the Airport’s efficacy, or make the Airport a meaningfully less positive, family oriented place. Therefore, the NAACP was entitled to summary judgment on its First Amendment claim with respect to the written policy’s restriction on non-commercial advertisements.

The unwritten policy. The NCAAP sufficiently alleged that the City had an unwritten policy of rejecting ads that do not support the Airport’s “mission,” and that it was unconstitutional, according to the court. The City testified that ads were reviewed to determine whether they were consistent with the Airport’s mission, a process that was not outlined in the City’s written policies. Also, the City confirmed that commercial advertisements that could be viewed as “offensive” received extra scrutiny before they were approved. The City failed to present evidence tending to negate the existence of an unwritten policy. The City and Airport cannot create a forum for private speech and exclude speakers they do not agree with, according to the court.

The case is No. 11-6533.

Attorneys: Alexander Bilus (Dechert LLP), and Fred T. Magaziner (Dechert, Price & Rhoads) for Nat’l Association for the Advancement of Colored People. Amanda C. Shoffel, City of Philadelphia Law Dept., for City of Philadelphia.

Companies: Nat’l Assn. for the Advancement of Colored People

Cases: Advertising PennsylvaniaNews