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Media Alerts - NAACP v. City of Phila - Third Circuit
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September 2, 2016
  NAACP v. City of Phila - Third Circuit
Headline: Third Circuit Holds City of Philadelphia's Policy, Which Blocked NAACP's Non-Commercial Ad at Airport, Is Unreasonable under First Amendment

Area of Law: First Amendment

Issue(s) Presented: Is a city's policy, preventing private advertisers from displaying non-commercial content at an airport owned by the city, a permissible use of governmental power under the First Amendment? 

Brief Summary:
In January 2011, the NAACP submitted an ad for display at city-owned Philadelphia airport that read: "Welcome to America, home to 5% of the world's people & 25% of the world's prisoners." The City, in line with a policy of banning non-commercial ads at the Airport, rejected the submission. The NAACP filed a lawsuit and claimed the policy violated the First Amendment.
Though the City cited revenue maximization and controversy avoidance as purposes behind the ban, the Third Circuit found that neither of these purposes could render the ban on non-commercial speech in a limited public forum constitutionally reasonable. Particularly fatal to the City's case was the deposition testimony of an airport deputy director, who testified that the ban could in fact cause the airport to lose money and that it did not have anything to do with maintaining neutrality. Thus, the Third Circuit found the ban on non-commercial ads at the Airport unreasonable under the First Amendment.

Extended Summary:
In January 2011, the NAACP submitted an ad for display at the Philadelphia International Airport (PHL), which read: "Welcome to America, home to 5% of the world's people & 25% of the world's prisoners. Let's build a better America together." The City of Philadelphia, which owns PHL, rejected the submission based on an informal practice of only accepting ads that promoted commercial transactions. In October 2011, the NAACP filed a lawsuit and claimed the City's rejection of its ad violated the First Amendment. In March 2012, while the lawsuit was pending, the City adopted a written policy, which provides that ads that do not "propose a commercial transaction" cannot be approved.
The City argued that its ban on non-commercial content maximized revenue and avoided controversy. The City cited commercial advertisers not wanting their content next to divisive messages about social issues, and exposing travelers to content they may find offensive, as reasons behind the ban.
Though the City pointed to revenue maximization as one of the reasons behind the written policy, an airport director testified that he believed that the NAACP's ad would not cost PHL revenue and that the written policy had nothing to do with revenue. He even suggested that the policy could cost the city money if it forced PHL to turn away advertisers. As to the City's controversy-avoidance rationale, he testified he had no reason to believe the policy related to maintaining neutral positions for the City on issues of non-commercial speech. He further testified that the policy did not involve the City avoiding picking favorites or imposing on captive audiences. He conceded the policy "may" have something to do with avoiding offending travelers. The director testified that PHL management strives to create in the airport a soothing and pleasing environment for often-stressed travelers.
Because the City's policy affected fundamental First Amendment rights, the Third Circuit shifted the burden of proof onto the City. To satisfy the burden, the City had to show its ban on non-commercial content in the limited public forum of PHL advertising was reasonable either through evidence in the record or by commonsense inferences.
The Third Circuit found the City could not meet its burden. Emphasizing that the record clearly contrasted with inferences the City wished the Court to draw, the Court stated that it could not even make a commonsense inference in favor of the City on revenue maximization. As to controversy avoidance, the Court again found the record lacking in supporting evidence. The Third Circuit further pointed to the Supreme Court's caution against inferring controversy avoidance as a legitimate purpose for restricting First Amendment rights when such a purpose can be used to conceal bias against certain viewpoints. The Court ultimately concluded that the City's ban on non-commercial ads at PHL was unreasonable under the First Amendment.

The full opinion can be found at .

Panel: McKee, Chief Judge, Ambro, and Hardiman, Circuit Judges 

Argument Date: October 8, 2015

Date of Issued Opinion: August 23, 2016

Docket Number: No. 15-1002

Decided: Affirmed

Case Alert Author: Rebecca Daily

Counsel: Shelley R. Smith, Elise M. Bruhl, Craig R. Gottlieb, Counsel for Appellant; Laura Kessler, Fred T. Magaziner, Catherine V. Wigglesworth, Mary Catherine Roper, Seth F. Kreimer, Counsel for Appellee. 

Author of Opinion: Circuit Judge Ambro

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Mary E. Levy

    Posted By: Susan DeJarnatt @ 09/02/2016 12:14 PM     3rd Circuit  

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