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N.C. Airport Can’t Ban News Racks, Court Says

(CN) - In a victory for publishers, the 4th Circuit ruled that security and aesthetic concerns do not justify a total ban on newspaper racks inside terminals at the Raleigh-Durham Airport.

The News and Observer Publishing Co., The Durham Herald Co., The New York Times Co. and Gannett Co. sued the Raleigh-Durham Airport Authority after it turned down a request to place about 200 newspaper racks selling The News & Observer, The Herald-Sun, The New York Times and USA TODAY throughout the airport's terminals.

The authority cited "concerns about security, floor space, and losing revenue from shop sales," according to the ruling. It also worried that the racks would be used to hide bombs or weapons, that stocking them would require the screening of delivery workers, and that the racks would "undermine" the airport's aesthetics.

The district court sided with the publishers, ruling that the ban "substantially burdens the newspaper companies' expressive conduct within that public place," and that concerns about "security, aesthetics, preserving revenue, and preventing congestion" were not powerful enough to justify the ban.

The Richmond, Va.-based appeals court agreed.

"Even drawing all reasonable inferences in the authority's favor, we are constrained to find that its total ban on news racks inside the airport's terminals significantly restricted the publishers' ability to distribute newspapers," Judge Allyson K. Duncan wrote for the three-judge panel.

Duncan said airport executive Mike McElvaney's claim that the news racks would create security risks and burden security personnel "missed the mark."

"McElvaney premised his analysis on the existence of 208 newsracks throughout the airport," Duncan wrote. "The authority, however, has banned all news racks inside the terminals. McElvaney's analysis indicates little about the security risk created by allowing a carefully calibrated news rack presence. Such risk could not be more than de minimis."

The panel was equally unmoved by the aesthetic, congestion and revenue arguments.

"The authority has offered no evidence that placing news racks inside the airport's terminals would cause substantial and widely recognizable aesthetic harm," Duncan wrote. "Nor does common sense or logic support that conclusion. We cannot see how an appropriate number of carefully placed news racks fashioned to complement each terminal's interior design would have substantially undermined the airport's aesthetics. Moreover, the authority has proffered no justification to distinguish news racks from the vending machines, racks displaying brochures, ATM machines, and other visual obtrusions that existed inside the terminals."

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