City-Owned Airport Can’t Reject Ads Just Because They Aren’t Selling A Product

Image courtesy of Evan Jackson

If a city-owned facility is going to sell advertising space to bring in revenue, to what extent can the city restrict the content of those ads before crossing the line into government-ordered censorship? This week, a federal appeals court confirmed that when a city enacts a wholesale ban on certain types of ads, it’s gone too far.

The Third Circuit Court of Appeals has chimed in on a long-running legal dispute between the city of Philadelphia and the NAACP over a ban on non-commercial advertising at Philadelphia International Airport.

The case actually predates that official ban, going back to 2011 when the NAACP submitted an ad for display at the airport. At the time, the city had no policy in place specifically limiting the types of ads it would accept but nonetheless rejected the ad, claiming an informal policy of only accepting advertising for commercial goods, products, and services.

The NAACP filed a suit over this rejection, while the city formalized this policy in 2012, declaring that ads that do not “propose a commercial transaction” would not be approved, nor would advertising for alcohol or tobacco, sexually oriented businesses, or political campaigns.

The reasoning behind the restrictions on issues-based ads was that, even if the advertiser paid the full rate for their ad, it could ultimately hurt the airport’s ad revenues if other advertisers don’t want their brands posted near these ads.

Even though the city eventually made an exception that allowed the NAACP ads to run, the 2011 lawsuit was amended to challenge the legality of the city’s ban on non-commercial advertising.

In depositions for the case, an airport executive in charge of business development admitted that refusing non-commercial ads could actually hurt the business by having to turn away paying advertisers. He could not come up with any concrete reasons for why the airport should reject these ads outright other than attempt by management to “keep everything positive, everything non-controversial, and just create an environment that is soothing and pleasing.”

The appeals court notes that while the Philly airport is a publicly owned and operated space, it’s not the traditional “public forum” where free speech is afforded the highest level of protection. Rather, the airport is a “limited” public forum, giving the city more control over the types of expression.

However, the appeals court concluded that that because the “ban on non-commercial content is unreasonable… it is unconstitutional no matter what we label the forum.”

Between the testimony of the airport exec — who was trying to defend the policy — and the fact that the city could not demonstrate that the ban helped the airport maximize revenue or avoid controversy, the appeals court questioned the city’s “Alice-in-Wonderland argument” that would have the judges ignore what’s on the record in favor of a baseless “common sense” claim.

“The ability to use common sense is not a license to close our eyes and suspend disbelief,” reads the ruling [PDF]. “In other words, we cannot conclude that the ban serves a purpose that the City’s own representative has already disclaimed.”

The NAACP had questioned the city’s controversy-avoidance argument, pointing out that while the airport might not have ads that deal with controversial issues, the building is full of TV screens showing live cable news feeds dealing with incredibly controversial issues, and showing ads related to some of those same topics.

The Third Circuit agreed, calling the city’s objective “nebulous and not susceptible to objective verification.”

“Although we have no reason to doubt that the City does try to maintain a ‘soothing and pleasing’ environment in the Airport, that broader effort apparently does not involve shielding travelers from non-commercial content on the ground that it might offend them,” concluded the court. “Instead, the Airport exposes them to an onslaught of non-commercial content outside of its advertising space without any suggestion that doing so is inconsistent with the environment it seeks to foster.”

The appeals court ruling upholds the lower court’s injunction preventing the city from enforcing the advertising rule as written.

[via WSJ Law Blog]