3rd Circ. Strikes Philly Airport Billboard Rules

(CN) — A divided Third Circuit ruled Tuesday that the Philadelphia airport's ban on noncommercial advertisements treads on free-speech rights because it serves no reasonable purpose.

In 2011, Philadelphia ran the NAACP's ad on an airport billboard that said, "Welcome to America, home to 5 percent of the world's people & 25 percent of the world's prisoners. Let's build a better America together. NAACP.org/smartandsafe."

At the time, the city-run Philadelphia International Airport had an informal practice of only accepting ads related to a commercial transaction.

Following a First Amendment lawsuit, the city agreed to display the NAACP's ad for three months and pay the organization $8,800 in attorney's fees.

But the city adopted formal guidelines to limit such ads in the future. The new rules ban noncommercial content.

The NAACP, the nation's oldest civil rights organization, sued to be allowed to run the same advertisement again.

A federal judge ruled the guidelines unconstitutional, and the Third Circuit affirmed Tuesday in a 2-1 decision.

The 27-page opinion acknowledges a contradiction that attorney Fred Magaziner, representing the NAACP, argued was inherent in the city's defense of its policy.

"The city can't say the avoidance of controversy is appropriate in this context, in an airport where there are 126 televisions," Magaziner said at oral arguments last October. "If you were in the airport last week, Your Honor, you would have seen TV broadcasts on 126 TVs of gunmen going on a rampage in Oregon, of people being beheaded in Syria, of refugees drowning in the Mediterranean. They have not created a Disneyland situation there where they say, 'Oh, any controversy is upsetting.'"

The majority of the panel found Magaziner's argument convincing.

"If the city seeks to justify its regulation of the advertising space by reference to its goals for the entire airport, then we should consider whether the atmosphere in the rest of the airport supports such an inference," Judge Thomas Ambro said, writing for the majority. "Elsewhere in the airport, travelers have frequent exposure to televisions broadcasting shows and commercials containing a wide variety of noncommercial content."

Furthermore, James Tyrrell, the airport's deputy director of aviation and property management, testified that the ban on noncommercial content is unrelated to revenue, and arguably costs the city money.

"The city says we can ignore this and pretend Tyrrell's deposition never occurred. This Alice-in-Wonderland argument misses the mark. The ability to use common sense is not a license to close our eyes and suspend disbelief," Ambro said.

Therefore, the city failed to present any reasonable argument in support of the intrusion on the NAACP's First Amendment rights, the majority of the Third Circuit panel concluded.

Ambro was joined in the majority by Chief Judge Theodore McKee.

Judge Thomas Hardiman dissented, saying he found the city's rules barring certain ads a reasonable attempt to avoid controversy at the airport.

"While other forums scattered throughout the airport might display controversial noncommercial messages, it still seems reasonable to think that disallowing controversial advertisements on the airport's more than 100 monitors will have a positive impact on travelers' experiences by removing some stress or controversy from their journeys," Hardiman wrote.

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