Philadelphia Still in Hot Water Over Ad Policy

(CN) - Philadelphia may have infringed speech by barring an airport advertisement that highlighted how America holds a quarter of the world's prisoners, a federal judge ruled.

In a 2011 report titled "Misplaced Priorities," the National Association for the Advancement of Colored People (NAACP) found that the United States overspends on incarceration at the expense of education.

The group claimed that specific reforms could reverse this trend and prepared a series of advertisements to display at airports across the country, including Philadelphia International Airport, as part of an accompanying public awareness campaign.

Philadelphia's aviation division nevertheless rejected the NAACP's proposed ad, which read: "Welcome to America, home to 5 percent of the world's people and 25 percent of the world's prisoners. Let's build a better America together. NAACP.org/smartandsafe."

The NAACP sued Philadelphia in October 2011, alleging that the airport ad policy violates the First and 14th Amendments to the U.S. Constitution and Article I, Section 7, of the Pennsylvania Constitution. Although Philadelphia agreed to post the advertisement at the airport for a limited time, the city adopted a March 2012 written policy that refused to post political or noncommercial ads.

The NAACP then amended its federal complaint to challenge the policy as an unconstitutional infringement of speech. Prior to the policy's adoption, the city had allegedly accepted noncommercial, potentially controversial ads, including some for the World Wildlife Federation, the Foundation for a Better Life, the National Parent-Teacher Association, the National Center for Missing & Exploited Children, and the United Service Organization.

U.S. District Judge Cynthia Rufe refused to dismiss the action May 20, tossing aside Philadelphia's claim that airport advertising space should be classified a nonpublic forum.

"The court finds that it is premature to classify the forum at this time," Rufe wrote. "In the absence of a forum classification, the court is unable to determine whether the policy is constitutional. The city does not argue in the motion that their policy is narrowly-tailored to achieve a compelling government interest as would be necessary to render a policy implemented in a designated public forum constitutional. Therefore, the motion to dismiss will be denied with respect to the NAACP's claim that Section 2 of the airport advertising policy is unconstitutional.

"The city also argues that the court should dismiss the NAACP's claim that the policy violates Article I, § 7 of the Pennsylvania Constitution because '[a]ny such claim fails for the same reasons that plaintiff's First Amendment claim fail[s],'" the ruling states. "Because the motion is denied as to the First Amendment claim, it will also be denied as to the Pennsylvania Constitutional claim."

Though the NCAAP had also initially brought claims against Clear Channel Holdings dba Clear Channel Airports, the parties stipulated to its dismissal as a defendant.

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