National Ass'n for the Advancement of Colored People v. City of Philadelphia

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 15-1002
_____________
NATIONAL ASSOCIATION FOR THE ADVANCEMENT
OF COLORED PEOPLE
v.
CITY OF PHILADELPHIA,
Appellant
________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-11-cv-06533)
District Judge: Honorable Cynthia M. Rufe
________________
Argued October 8, 2015
Before: McKEE, Chief Judge, AMBRO,
and HARDIMAN, Circuit Judges
(Opinion filed: August 23, 2016)
Shelley R. Smith
City of Philadelphia Solicitor
Elise M. Bruhl
Craig R. Gottlieb, Esquire (Argued)
City of Philadelphia
Law Department
1515 Arch Street
One Parkway
Philadelphia, PA 19102
Counsel for Appellant
Laura Kessler
Fred T. Magaziner (Argued)
Catherine V. Wigglesworth, Esquire
Dechert
2929 Arch Street
18th Floor, Cira Centre
Philadelphia, PA 19104
Mary Catherine Roper
American Civil Liberties Foundation of Pennsylvania
P.O. Box 40008
Philadelphia, PA 19106
Seth F. Kreimer
3400 Chestnut Street
Philadelphia, PA 19104
Counsel for Appellee
2
________________
OPINION OF THE COURT
________________
AMBRO, Circuit Judge
The City of Philadelphia has a written policy
preventing private advertisers from displaying non-
commercial content at the Philadelphia International Airport.
The City, which owns the Airport, says the policy helps it
further its goals of maximizing revenue and avoiding
controversy. The record, however, reveals substantial flaws in
those justifications. The City acknowledges the flaws but
nonetheless maintains that the ban on non-commercial ads is
a reasonable use of governmental power. It is not. Because
the ban is unreasonable, it violates the First Amendment and
cannot be enforced as written. The District Court reached the
same conclusion, and we therefore affirm.
I. Background
A. The City’s policy
The City has long accepted paid advertisements that
are posted in display cases and on screens throughout the
Airport. In January 2011, the National Association for the
Advancement of Colored People submitted an ad for display
at the Airport. It offered to pay the prevailing market rate for
the ad, 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. NAACP.org/smartandsafe.” At the
time the City did not have a written policy governing the
types of ads it would display at the Airport. It nonetheless
rejected the submission based on an informal practice of only
accepting ads that proposed a commercial transaction.
3
The NAACP filed a lawsuit in October 2011 claiming
that the City’s rejection of its ad violated the First
Amendment and seeking declaratory and injunctive relief. In
March 2012, while the lawsuit was pending, the City adopted
the written policy now before us. It states that ads that do not
“propose a commercial transaction” cannot be approved.
“[C]ommercial transaction” is not defined. Other categories
of ads that cannot be displayed are those: 1) “relating to the
sale or use of alcohol or tobacco products”; 2) containing
“sexually explicit representations and/or relat[ing] to sexually
oriented businesses or products”; and 3) “relating to political
campaigns.” There is an exception that allows the City to post
non-commercial ads promoting subjects that include
Philadelphia tourism, City initiatives, air service, and use of
the Airport. The policy only covers the Airport’s advertising
space. In other areas of the Airport, travelers see a wide range
of non-commercial content. For instance, there are televisions
and newsstands throughout, often in close proximity to ads
governed by the policy.
The City argues that the ban on non-commercial
content1 maximizes revenue and avoids controversy.
Specifically, it maintains that displaying non-commercial ads,
which might relate to religious or social issues, could
jeopardize revenue from companies that do not want their
content posted near potentially divisive messages. Similarly,
the City contends that accepting non-commercial ads might
expose travelers to content they find offensive.
1
Because the exception allowing City-sponsored non-
commercial content does not bear on our analysis, we
hereafter describe the policy as imposing a ban without
reference to the exception.
4
In connection with the adoption of the written policy,
the City agreed to display the NAACP’s ad for three months
and to pay the organization $8,800 in attorney’s fees. The
parties also agreed that the NAACP would file an amended
complaint to challenge the newly adopted policy. It did so in
August 2012. The amended complaint presents a facial
challenge to the ban on non-commercial content. There is no
challenge to any other portion of the policy.
B. Deposition testimony
As part of discovery in the lawsuit, the NAACP
deposed James Tyrrell, the Airport’s Deputy Director of
Aviation and Property Management/Business Development.
The City designated Tyrrell, pursuant to Federal Rule of Civil
Procedure 30(b)(6), to testify on its behalf on numerous
topics, including the “reason or purpose and the factors
considered by the City for its decision to adopt, create, enact
or promulgate the [written policy], and any communications
concerning that decision.” Despite this designation, Tyrrell
could not offer any conclusive explanation for why the City
adopted the ban on non-commercial content. Indeed, asked
whether he had “an understanding” of the reason for
distinguishing between commercial and non-commercial ads,
he responded that he did not.
Because the City defends the ban on the grounds of
revenue maximization and controversy avoidance, Tyrrell’s
testimony on these points merits a detailed discussion. With
respect to revenue, he said that the purpose of allowing
advertising in the Airport is to make money. He had two
opportunities during his deposition to discuss any connection
that might exist between the ban and this goal. First, when
asked specifically about the NAACP’s ad, Tyrrell testified
that it was not “consistent with the message that the [A]irport
wants to deliver in terms of promoting tourism, promoting the
5
region and making it a very hospitable place. Advertisers look
at that as well.” However, asked whether he had any reason
“beyond the realm of conjecture and speculation” to think that
displaying the ad might cost the Airport revenue, Tyrrell
conceded that he did not.
On the second occasion, Tyrrell disowned the notion
that the policy was motivated by revenue concerns. The
following exchange is particularly instructive:
Q [by Fred Magaziner, attorney for NAACP]:
In determining that it was prudent and the time
had come to adopt [the written] policy, was one
of your purposes to prevent loss of revenue
from commercial advertisers?
[Objection]
A [by Tyrrell]: No.
...
Q: And that distinction that the policy draws
between [commercial and non-commercial ads],
that has nothing to do with revenue; correct?
A: I do not believe so, no.
Q: You do not believe it has anything to do with
revenue?
A: No.
As part of that same exchange, he also suggested that the
policy might even cost the City money because it forces the
Airport to turn away willing advertisers. Asked whether he
6
would be “happy” from a business perspective selling non-
commercial ads, he said that he would be.
Meanwhile, Tyrrell also offered testimony relevant to
the theme of avoiding controversy. Though that term can
mean many things, his testimony sharply limited the
possibilities. For instance, one possible meaning might be that
the City is concerned about the risk of attribution if it
permitted non-commercial ads to be displayed. In particular,
it might be worried that passersby would assume that the
City, which owns the advertising space, endorses the views of
non-commercial advertisers. But Tyrrell testified that he had
no reason to believe that the ban had anything to do with
maintaining a neutral position for the City on issues of non-
commercial speech. Another possibility might be that the ban,
under which all non-commercial ads are rejected, prevents the
City from playing favorites by accepting messages it likes
while turning away ones it does not. Yet, asked if avoiding
the appearance of favoritism or minimizing the chances for
abuse motivated the ban, Tyrrell said that he did not have any
reason to think so. He gave the same answer when asked
whether the ban related to a desire not to impose on captive
audiences (i.e., people who are in the Airport by necessity and
cannot avoid the messages merely by going somewhere else).
The only possibility not eliminated was that non-
commercial ads might be more likely than commercial ones
to offend travelers. This is the theory the City advances on
appeal. Tyrrell testified that this “may” have something to do
with the adoption of the ban. However, he said that he did not
recall if this idea had “ever been discussed in any meeting or
conversation” that he had. And he admitted it was something
he just thought of as he sat for his deposition.
Finally, Tyrrell, on a general level, described the
Airport as a “very stressful” place in light of the commotion
7
and anxiety that frequently accompany travel. As a result,
management makes “a very concentrated and huge effort to
keep everything positive, everything non-controversial, and
just create an environment that is soothing and pleasing.”
C. The City’s position
The City initially argued (at least in its briefing) that
its subjective intentions in adopting the ban were to maximize
revenue and avoid controversy. See Appellant’s Br. at 17–18.
By the time of oral argument, however, it relied almost
exclusively on the contention that its “actual thoughts and
thinking” on the subject “don’t matter.” Oral Arg. Tr. at 7.
The City also maintained that Tyrrell’s testimony about the
ban was irrelevant. Id. at 18 (“I don’t think it matters what the
witness says.”). Moreover, it agreed that the reasons it was
offering—revenue maximization and controversy
avoidance—might be after-the-fact justifications that are
“strictly in the realm of lawyer argumentation.” Id. at 55; see
also id. at 16–17 (asked if the City can invent justifications
when writing its appellate briefs, counsel for the City
answered yes). The City further conceded the possibility that
its actual intent might have been to suppress viewpoints that
cast Philadelphia or the region in a negative light. Id. at 16
(noting that its intent “might have been viewpoint
discriminatory”).
II. Jurisdiction and Standard of Review
The District Court had jurisdiction over the NAACP’s
First Amendment claims under 28 U.S.C. §§ 1331 and 1343.
It issued two opinions. In the first it granted summary
judgment to the NAACP. NAACP v. City of Philadelphia, 39
F. Supp. 3d 611, 635 (E.D. Pa. 2014). And in the second it
granted the NAACP declaratory relief and an injunction
preventing the City from enforcing the ban as written.
8
NAACP v. City of Philadelphia, Civ. No. 11-6533, 2014 WL
7272410, at *3 (E.D. Pa. Dec. 19, 2014). Per 28 U.S.C.
§ 1291, we have jurisdiction over the timely appeal of the
latter ruling.
Our review is plenary. See Aleynikov v. Goldman
Sachs Group, Inc., 765 F.3d 350, 357 n.2 (3d Cir. 2014)
(“Ordinarily we review a district court’s grant of an
injunction for abuse of discretion. But where . . . the
injunction results [from] a summary judgment motion, our
review is plenary.”) (internal citation omitted); Borden v. Sch.
Dist. of Twp. of E. Brunswick, 523 F.3d 153, 174 n.17 (3d
Cir. 2008) (plenary review over questions of law in
connection with declaratory judgment actions).
Granting summary judgment “is appropriate if . . .
there is no genuine issue as to any material fact and . . . the
movant is entitled to judgment as a matter of law.” State Auto
Prop. & Cas. Ins. Co. v. Pro Design, P.C., 566 F.3d 86, 89
(3d Cir. 2009) (internal quotation marks omitted).
Additionally,
[a]lthough the non-moving party receives the
benefit of all factual inferences in the court’s
consideration of a motion for summary
judgment, the non[-]moving party must point to
some evidence in the record that creates a
genuine issue of material fact. In this respect,
summary judgment is essentially ‘put up or shut
up’ time for the non-moving party: [it] must
rebut the motion with facts in the record and
cannot rest solely on assertions made in the
pleadings, legal memoranda, or oral argument.
Berckeley Inv. Group, Ltd. v. Colkitt, 455 F.3d 195, 201 (3d
Cir. 2006) (internal citation omitted).
9
III. Discussion
Our analysis proceeds in five parts. We begin with a
discussion of the nature of the public property at issue. After
laying that groundwork, we analyze who must bear the
burden of proof. We then address the standards for meeting
that burden. Next we apply the framework to our facts.
Finally, we consider and reject a counterargument to our
holding.
A. Forum analysis
Because this case involves a restriction on the types of
speech allowed on public property, we begin with forum
analysis. Though often complicated in practice, this analysis
stems from a simple premise—not every public property is
the same, and different types of property will require different
treatment. As a result, the Supreme Court has grouped public
properties along a spectrum.
On one end of the spectrum, we have traditional public
forums. These properties, which include public streets and
parks, “have immemorially been held in trust for the use of
the public, and, time out of mind, have been used for
purposes of assembly, communicating thoughts between
citizens, and discussing public questions.” Perry Educ. Ass’n
v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983)
(internal quotation marks omitted). Content-based speech
restrictions in traditional public forums get strict scrutiny,
which means that the government must show a compelling
state interest and narrow tailoring of measures to achieve that
interest (including the absence of less restrictive alternatives).
Id.In the middle, we have designated public forums.
These are properties that have “not traditionally been
10
regarded as a public forum [but are] intentionally opened up
for that purpose.” Pleasant Grove City v. Summum, 555 U.S.
460, 469 (2009). As with traditional public forums, content-
based restrictions get strict scrutiny. Id. at 469–70.
The final category is sometimes called a limited public
forum and other times labeled a nonpublic forum. It is
reserved for government properties that have not, as a matter
of tradition or designation, been used for purposes of
assembly and communication. These enjoy the least
protection under the First Amendment. Content-based
restrictions are valid as long as they are reasonable and
viewpoint neutral. See id. at 470; Cornelius v. NAACP Legal
Def. & Educ. Fund, Inc., 473 U.S. 788, 800 (1985).2 Unlike
with strict scrutiny, this review does not require narrow
tailoring or the absence of less restrictive alternatives. Indeed,
the “Government’s decision to restrict access . . . need only
be reasonable; it need not be the most reasonable or the only
reasonable limitation.” Cornelius, 473 U.S. at 808 (emphasis
in original). Moreover, the government’s asserted interest in
drawing content-based distinctions must be valid, but it does
not have to be compelling. K.A. ex rel. Ayers v. Pocono
Mountain Sch. Dist., 710 F.3d 99, 106 (3d Cir. 2013).
Here the relevant forum is the Airport’s advertising
space (rather than the Airport in its entirety) because that is
the specific public property that the NAACP seeks to access.
See Cornelius, 473 U.S. at 801 (noting that in “defining the
2
There has been some confusion about whether there are any
practical differences between nonpublic and limited public
forums. However, the Supreme Court recently “has used the
term[s] . . . interchangeably . . .[,] thus suggesting that these
categories of forums are the same.” Galena v. Leone, 638
F.3d 186, 197 n.8 (3d Cir. 2011).
11
forum we have focused on the access sought by the speaker”);
see also Christ’s Bride Ministries, Inc. v. Se. Pennsylvania
Transp. Auth., 148 F.3d 242, 248 (3d Cir. 1998) (in case
involving challenge to rejection of advertisements, defining
forum as public transit system’s advertising space rather than
entirety of transit system). The District Court concluded that
the advertising space is a limited public/nonpublic forum.
NAACP, 39 F. Supp. 3d at 627.
We assume, without deciding, that the Court was
correct.3 That is because our conclusion that the ban on non-
commercial content is unreasonable means that it is
unconstitutional no matter what we label the forum. In other
words, reasonableness is a bare minimum in forum cases.
Some types of forums require more than reasonableness, but
none allow less. Cf. Pittsburgh League of Young Voters Educ.
Fund v. Port Auth. of Allegheny County, 653 F.3d 290, 296
3
The Airport more broadly (as distinct from the advertising
space) is also likely a limited public/nonpublic forum.
Although airports are places where the public assembles, they
are not traditional public forums. See Int’l Soc. for Krishna
Consciousness, Inc. v. Lee, 505 U.S. 672, 680 (1992)
(“ISKCON”) (“[G]iven the lateness with which the modern
air terminal has made its appearance, it hardly qualifies for
the description of having immemorially [and] time out of
mind been held in the public trust and used for purposes of
expressive activity.”) (internal quotation marks omitted). And
although it is conceivable that an airport could, under the
right circumstances, become a designated public forum, the
Supreme Court has said that this is unlikely. See id. at 682–83
(concluding that the John F. Kennedy, La Guardia, and
Newark airports in New York and New Jersey, which are “far
from atypical,” are not designated public forums).
12
(3d Cir. 2011) (“Pittsburgh”) (noting that we “need not tackle
the forum-selection question” when a law or regulation would
be invalid in any type of forum).
B. Allocating the burden
The core question for us is whether the City’s ban on
non-commercial content is reasonable. At the heart of this is
the tension between its justifications on the one hand and the
record that we have before us on the other. Typically, when
the government exercises its police powers, the scrutiny we
apply is rational-basis review. Under this standard, a
“legislative choice is not subject to courtroom fact-finding
and may be based on rational speculation unsupported by
evidence or empirical data.” FCC v. Beach Commc’ns, Inc.,
508 U.S. 307, 315 (1993). One of the hallmarks of rational-
basis review is that the challenger, not the government, bears
the burden of establishing the unconstitutionality of a law or
regulation. See id. at 314–15 (“On rational-basis review, [a
statute] comes to us bearing a strong presumption of validity,
and those attacking the rationality of [a] legislative
classification have the burden to negat[e] every conceivable
basis which might support it.”) (internal citation and
quotation marks omitted).
Though the City does not invoke rational-basis review
by name, these are the standards it uses to support its
reasonableness arguments. This no doubt has some surface
appeal, as “reasonable” and “rational” are frequently used as
synonyms. But rational-basis review is not just the sum total
of the various dictionary definitions of the word “rational.”
Rather, it is a legal test that over time has developed certain
characteristics—for instance, an allocation of the burden to
the challenger and a strong presumption of validity. These
requirements were developed to serve the circumstances in
which courts apply rational-basis review—run-of-the-mill
13
exercises of police powers. See Romer v. Evans, 517 U.S.
620, 631 (1996) (“[I]f a law neither burdens a fundamental
right nor targets a suspect class, we will uphold [a] legislative
classification so long as it bears a rational relation to some
legitimate end.”).
By contrast, when a law or regulation burdens a
fundamental right such as the First Amendment, rational basis
yields to more exacting review. Indeed, it has been the
Supreme Court’s “consistent position that democracy stands
on a stronger footing when courts protect First Amendment
interests against legislative intrusion, rather than deferring to
merely rational legislative judgments in this area.”
Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 519
(1981) (plurality opinion). Thus, unlike with rational-basis
review, when “the Government restricts speech, [it] bears the
burden of proving the constitutionality of its actions.” United
States v. Playboy Entertainment Group, Inc., 529 U.S. 803,
816 (2000). This is so because the “presumption of validity
that traditionally attends [the exercise of police powers]
carries little, if any, weight where the . . . regulation trenches
on rights of expression protected under the First
Amendment.” Schad v. Borough of Mount Ephraim, 452 U.S.
61, 77 (1981) (Blackmun, J., concurring).
Neither the Supreme Court nor our Court has expressly
decided the allocation of the burden to establish
reasonableness in a limited public or nonpublic forum.4 This
4
We note that dicta from our Court goes in both directions.
Compare United States v. Marcavage, 609 F.3d 264, 275 (3d
Cir. 2010) (suggesting that the government bears the burden),
with Gregoire v. Centennial Sch. Dist., 907 F.2d 1366, 1371
(3d Cir. 1990) (likening the review to a rational-basis test).
Both statements were dicta because we ultimately determined
14
is not surprising. Reasonableness is a relatively low bar, and
in most instances the technical question of who bears the
burden will not be consequential because the law or
regulation would survive either way. But this is not a normal
case, as the record here is strangely void of support for the
City’s ban.
With the question now before us for the first time, we
see no reason why the Playboy Entertainment Group rule
would not apply. Even in limited public and nonpublic
forums, First Amendment protections still exist. See, e.g.,
U.S. Postal Serv. v. Council of Greenburgh Civic Ass’ns, 453
U.S. 114, 131 n.7 (1981) (“The First Amendment[’s] . . .
ramifications are not confined to the public forum . . . .”)
(internal quotation marks omitted); Pittsburgh, 653 F.3d at
299 (assuming that the forum was nonpublic and striking
down on First Amendment grounds the rejection of an
advertisement). This is sufficient to shift the burden from the
challenger to the City. It is true that the burden the City
shoulders is “much more limited” than, for instance, strict (or
even intermediate) scrutiny. ISKCON, 505 U.S. at 679. But
the burden, however limited, is still the City’s to meet.
This jibes with how some of our sister courts have
defined reasonableness. See, e.g., Sammartano v. First
Judicial Dist. Court, 303 F.3d 959, 966–67 (9th Cir. 2002)
(“The ‘reasonableness’ requirement for restrictions on speech
in a nonpublic forum requires more of a showing than does
the traditional rational basis test; i.e., it is not the same as
establish[ing] that the regulation is rationally related to a
legitimate governmental objective, as might be the case for
the typical exercise of the government’s police power.”)
(internal quotation marks omitted) (alternation in original),
that neither case involved a limited public or nonpublic
forum.
15
abrogated on other grounds by Winter v. Natural Res. Def.
Council, Inc., 555 U.S. 7 (2008); Multimedia Pub. Co. of S.C.
v. Greenville-Spartanburg Airport Dist., 991 F.2d 154, 159
(4th Cir. 1993) (“[I]t isn’t enough simply to establish that the
regulation is rationally related to a legitimate governmental
objective, as might be the case for a typical exercise of the
government’s police power, for this regulation affects
protected First Amendment activity that is entitled to special
solicitude even in this nonpublic forum.”) (internal citation
omitted).
C. How to meet the burden
The next logical question is how the City can satisfy
its burden to show that the ban on non-commercial content is
reasonable. Our review of a trio of Supreme Court opinions,
all written by Justice O’Connor, demonstrates that there are
two ways it can do so: record evidence or commonsense
inferences.
In the first case, Cornelius, which involved restrictions
on participation in a charitable campaign in the federal
workplace, the Court framed the reasonableness test for
limited public and nonpublic forums as follows: “The
reasonableness of the Government’s restriction of access . . .
must be assessed in the light of the purpose of the forum and
all the surrounding circumstances.” 473 U.S. at 809. In
applying this framework, the Court focused on the record
evidence before it. See, e.g., id. at 808 (“Based on the present
record, we disagree and conclude that respondents may be
excluded from the [forum].”) (emphasis added); id. at 811(“On this record, the Government’s posited justifications for
denying respondents access to the [forum] appear to be
reasonable in light of the purpose of the [forum].”) (emphasis
added).
16
The next case, United States v. Kokinda, 497 U.S. 720(1990), showed that not every conclusion needs to be backed
up by evidence. Justice O’Connor, writing for a plurality,
clarified that courts can use “common-sense” to “uphold a
regulation under reasonableness review.” Id. at 734–35
(plurality opinion) (internal quotation marks omitted).
Kokinda came about because the Postal Service, after years of
trying to allow some types of solicitation of money on its
property while precluding others, found that this approach
was unworkable and that the better course was to prohibit all
solicitation. The resulting regulation was supported by a
thorough record, but for one point—the notion that
solicitation is more disruptive than handing out literature—
the plurality said that judges need look no further than logic
and experience. Id.The final piece of the puzzle is Justice O’Connor’s
concurring opinion in ISKCON. There was a majority opinion
written in that case by Chief Justice Rehnquist upholding a
solicitation ban at three airports run by the Port Authority of
New York and New Jersey. Meanwhile, a majority of the
Court agreed that restrictions on distributing leaflets at those
same airports were invalid, but the justices could not agree on
a rationale. In these situations, “the holding of the Court may
be viewed as that position taken by those Members who
concurred in the judgment on the narrowest grounds.” City of
Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 764 n.9
(1988) (internal quotation marks and alternation omitted).
Justice O’Connor’s views on leafleting were the narrowest
and therefore speak for the Court. See, e.g., New England
Reg’l Council of Carpenters v. Kinton, 284 F.3d 9, 20 n.5 (1st
Cir. 2002) (“Because Justice O’Connor’s ISKCON
concurrence constitutes the narrowest ground for the decision,
it is the most authoritative pronouncement on the standards
applicable to [leafleting] in a non-public forum.”); Hawkins v.
17
City & County of Denver, 170 F.3d 1281, 1289 (10th Cir.
1999) (same).
The portion of her opinion dealing with leafleting
makes clear that, whether the support comes from record
evidence or common sense, courts must have some way of
evaluating restrictions. The opinion contrasted the facts of
that case, where there was no “record evidence to support [the
leafleting] ban,” with those of Cornelius, where “the record
amply support[ed]” the restriction on speech, and those of
Kokinda, where the solicitation ban was based on “the Postal
Service’s 30-year history of regulation.” ISKCON, 505 U.S.
at 691–92 (O’Connor, J., concurring and concurring in
judgment) (internal quotation marks omitted) (second
alternation in original).
As Justice O’Connor explained, although the
government does not need to prove that a particular use will
actually disrupt the “intended function” of its property, id. at
691 (quoting Perry, 460 U.S. at 52 n.12) (internal quotation
marks omitted), “we have required some explanation as to
why certain speech is inconsistent with the intended use of
the forum,” id. at 691–92. The opinion goes on to hold that
the leafleting ban was unreasonable because “the Port
Authority has provided no . . . reason for prohibiting
leafleting, and the record contains no information from which
we can draw an inference that would support its ban.” Id. at
692.
To synthesize, then, the City has a two-step burden
that it can satisfy using record evidence or commonsense
inferences. First, given that reasonableness “must be assessed
in the light of the purpose of the forum and all the
surrounding circumstances,” Cornelius, 473 U.S. at 809, the
evidence or commonsense inferences must allow us to grasp
the purpose to which the City has devoted the forum. See also
18
Greer v. Spock, 424 U.S. 828, 836 (1976) (“The State, no less
than a private owner of property, has power to preserve the
property under its control for the use to which it is lawfully
dedicated.”) (internal quotation marks omitted). And second,
the evidence or commonsense inferences also must provide a
way of tying the limitation on speech to the forum’s purpose.
The City need not prove that the banned speech would cause
harm if permitted, but per ISKCON it must provide a
legitimate explanation for the restriction. In this context, we
proceed to analyze the City’s ban on non-commercial content.
D. Applying the standards
The City has argued that its objectives for the
advertising space are revenue maximization and controversy
avoidance and that the ban furthers them. Both justifications
suffer from a lack of record evidence. And even with the
benefit of commonsense inferences, neither passes muster.
As for revenue, Tyrrell testified that the City allows
advertising in order to make money, and there is nothing to
suggest otherwise. As such, the City has met the first part of
its burden, which is to establish that revenue maximization is
a purpose of the forum. But where things start to break down
for the City is that there is no record evidence showing that
the ban is reasonably connected to this goal. Although Tyrrell
testified that advertisers “look at” the types of ads posted in
the Airport to determine whether they would want to
advertise in proximity to those messages, he made clear that
the ban was not intended to promote revenue and that in
practice it arguably costs the City money.
Whereas the revenue justification runs into trouble at
step two (showing a connection between the restriction and
the purpose), the controversy avoidance rationale hits a snag
even earlier in the analysis. In light of Tyrrell’s testimony, the
19
only controversy the City could be trying to avoid is
travelers’ exposure to non-commercial content they might
find offensive. But no record evidence shows this is a purpose
to which the City has devoted the Airport’s advertising space.
The City had ample opportunities in Tyrrell’s deposition, as
well as that of Mark Gale, the Airport’s CEO, to provide
support for this purported purpose. And even after the
depositions, the City could have come forward with
affidavits. But the record we have lacks any evidence that
directly supports its argument on appeal. This harms the
City’s position because, although reasonableness review gives
it the discretion to preserve a forum “for the use to which it is
lawfully dedicated,” Greer, 424 U.S. at 836 (internal
quotation marks omitted), this presupposes that it actually has
dedicated the property to that particular use, and we have no
evidence that this occurred here.
The City’s failure to produce record evidence to clear
step two on revenue maximization and step one on
controversy avoidance could be excused if commonsense
inferences supported its theory of the case. But they do not. In
light of the testimony and the surrounding circumstances, an
appeal to common sense cannot salvage the ban.
Given Tyrrell’s testimony that the ban is unrelated to
revenue and arguably costs the City money, logic does not
allow an inference that it is reasonably connected to revenue
maximization. Indeed, what makes this case so unusual is that
the record belies the inference the City wants us to draw. 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. In other words, we
cannot conclude that the ban serves a purpose that the City’s
own representative has already disclaimed.
20
As for avoidance of controversy, inferences cannot
help the City get past the first step of the inquiry—
demonstrating that it has dedicated the advertising space to
keeping travelers from seeing potentially offensive non-
commercial content. We note at the outset that, although the
City is permitted under the right circumstances to dedicate a
limited public or nonpublic forum to controversy avoidance,
this objective is nebulous and not susceptible to objective
verification. As a result, Supreme Court guidance cautions
against readily drawing inferences, in the absence of
evidence, that controversy avoidance renders the ban
constitutional. See, e.g., Cornelius, 473 U.S. at 812 (“[T]he
purported concern to avoid controversy excited by particular
groups may conceal a bias against the viewpoint advanced by
the excluded speakers.”); Metromedia, 453 U.S. at 510(plurality opinion) (noting that judgments that are
“necessarily subjective, defying objective evaluation . . . must
be carefully scrutinized to determine if they are only a public
rationalization of an impermissible purpose”). This is
particularly apt here because the City has conceded that its
justifications might be after-the-fact rationalizations. See Oral
Arg. Tr. at 16–17.5 Against this backdrop, the inference that
the City wants us to draw is without support.
5
Q: But you’re telling us right now—the reasons for the
written policies were enhanced revenue and avoid[ance] [of]
controversy. And those are good reasons, but you’ve got to
supplement them by something, some support in the record.
A: No, you don’t, actually. That’s—that’s—
Q: You don’t?
A: You don’t. That is the key. The [C]ity is—
Q: You can make it up now?
A: Well, I—perhaps in the trial—
...
21
The only possible basis for an inference would be
general testimony about the Airport. For instance, the City
highlights Tyrrell’s testimony that the Airport is a “very
stressful” place, and hence there must be “a very concentrated
and huge effort to keep everything positive, everything non-
controversial, and just create an environment that is soothing
and pleasing.” This testimony does not relate specifically to
the Airport’s advertising space, but rather speaks to that
facility more broadly, of which the advertising space is but a
small part. From this the City asks us to draw an inference
that its asserted justification—preventing exposure to
potentially offensive messages—is consistent with a purpose
of the advertising space.
But 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. See, e.g.,
Cornelius, 473 U.S. at 801–02 (looking to the “the special
nature and function” of the broader property in which the
forum is located). Elsewhere in the Airport, travelers have
frequent exposure to televisions broadcasting shows and
commercials containing a wide variety of non-commercial
content. For instance, the NAACP submitted pictures of the
Airport’s televisions that show content related to a
gubernatorial election in Virginia, the war on drugs, the
Confederate flag, and a piece of anti-discrimination
legislation. And as they pass by newsstands, travelers can see
magazines and newspapers displaying the very types of non-
Q: Or when you write your brief.
A: Correct.
Q: Because no matter what you write you can make it up . . . .
A: Well, I mean, this is not an unusual phenomenon. . . .
22
commercial information that the City seeks to exclude from
its advertising space.
All of this indicates that there is little logic to the
inference the City asks us to draw. 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.
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 City’s argument is essentially that common sense
supports the inference that it would devote its advertising
space to a purpose to which the rest of the Airport does not
subscribe. Given that the advertising space is physically part
of the Airport, this argument fails. As the D.C. Circuit has
noted in a similar context:
Although we readily acknowledge the fact that
the airports’ advertising facilities are physically
distinct parts of the terminals . . .[,] we note that
these facilities are for the most part physically
‘separated’ from the terminals only by glass
panels or translucent plexiglass whose sole
purpose is to frame or project messages of
outside organizations to the terminals’ . . .
users. . . . Given this context, the display
advertising areas at [the airports] cannot be
wholly divorced—by structure, function, or
fiat—from the nature of the [locations] in which
they [exist].
23
U.S. Sw. Africa/Namibia Trade & Cultural Council v. United
States, 708 F.2d 760, 764–66 (D.C. Cir. 1983), abrogated on
other grounds by ISKCON.
In sum, the City has not presented record evidence
sufficient to demonstrate that its ban is reasonable. Nor does
the record permit us to draw that inference using common
sense. As a result, the ban violates the First Amendment.
E. The City’s counterargument
The City relies heavily on previous cases in which
courts have examined commercial/non-commercial
distinctions. This reliance is misplaced. Reasonableness is a
case-specific inquiry, meaning that previous examples are of
limited usefulness. And, under our facts, the City’s ban is
unreasonable.
In distinguishing between commercial and non-
commercial content, the City was by no means writing on a
blank slate. In Lehman v. City of Shaker Heights, the Supreme
Court upheld as reasonable such a distinction for
advertisements on a city’s bus system. 418 U.S. 298, 304
(1974) (plurality opinion) (“The city consciously has limited
access to its transit system advertising space in order to
minimize chances of abuse, the appearance of favoritism, and
the risk of imposing upon a captive audience. These are
reasonable legislative objectives advanced by the city in a
proprietary capacity.”); id. (“Revenue earned from long-term
commercial advertising could be [jeopardized] by a
requirement that short-term candidacy or issue-oriented
advertisements be displayed on car cards.”). However,
Lehman does not help the City. As discussed, the NAACP
asked Tyrrell about each of the factors from that case—
minimizing abuse, avoiding favoritism, not imposing on a
24
captive audience, and maximizing revenue—and he
disclaimed all of them.6
The City also cites decisions of our sister courts
labeling as reasonable distinctions on transit systems between
commercial and non-commercial advertisements. See, e.g.,
Children of the Rosary v. City of Phoenix, 154 F.3d 972, 979
(9th Cir. 1998); Lebron v. Nat’l R.R. Passenger Corp.
(Amtrak), 69 F.3d 650, 653 (2d Cir.), opinion amended on
denial of reh’g, 89 F.3d 39 (2d Cir. 1995). Additionally, in
Pittsburgh we struck down a commercial/non-commercial
distinction as viewpoint discriminatory but noted that under
the right circumstances such a provision might be
constitutional. 653 F.3d at 299. However, none of this
relieves us of our obligation to determine reasonableness on a
case-by-case basis in light of the facts and circumstances of
each particular forum. Cf. Air Line Pilots Ass’n, Int’l v. Dep’t
of Aviation of City of Chicago, 45 F.3d 1144, 1159 (7th Cir.
1995) (“This [reasonableness] inquiry requires an
examination of both the governmental interest and the
particular forum’s nature and function. The fact that Lehman
6
Lehman was a plurality opinion. Justice Douglas provided
the fifth vote for the outcome in a concurring opinion that
focused heavily on the issue of captive audiences. See id. at
308 (Douglas, J., concurring in judgment) (“Since I do not
believe that petitioner has any constitutional right to spread
his message before this captive audience, I concur in the
Court’s judgment.”). The parties dispute the extent to which
Lehman, in light of Justice Douglas’s opinion, should be
limited to situations that present a captive audience. However,
given that none of the interests served by the ban in Lehman
are implicated in this case, we do not weigh in on this.
25
upheld a policy of excluding political advertisements in
public buses hardly determines the reasonableness of such a
restriction for all time. Instead, the reasonableness of [a
restriction] must be judged in light of the nature and purpose
of the [forum].”) (internal citations omitted). For the reasons
previously discussed, the City’s ban fails this test.
* * * * *
No matter the type of forum, restrictions on speech on
government property must be reasonable. The City’s ban on
non-commercial ads at the Airport is unreasonable because it
is not supported by the record or by commonsense inferences.
The burden to establish reasonableness is a light one, but the
City has failed to meet it here.7 We need not determine
7
Apart from reasonableness, a second requirement that exists
no matter how we label the forum is viewpoint neutrality.
Cornelius, 473 U.S. at 800. Because unreasonableness is
sufficient by itself to render the policy unconstitutional, we
do not reach the viewpoint question. We note nonetheless that
the issue may be a closer call than our dissenting colleague
suggests. As discussed, the City has conceded that the policy
might have been motivated by an animosity toward certain
viewpoints. The dissent, relying on the “familiar principle of
constitutional law that [we] will not strike down an otherwise
constitutional statute on the basis of an alleged illicit
legislative motive,” United States v. O’Brien, 391 U.S. 367,
383 (1968), says that this does not matter. But in Cornelius
the Court suggested that a restriction will be unconstitutional
if it was “impermissibly motivated by a desire to suppress a
particular point of view.” 473 U.S. at 812–13. Indeed, Justice
Stevens’s dissent clarified that “[e]veryone on the Court
agrees that [a restriction] is prohibited by the First
26
whether the ban could survive on a different record; contrary
to our dissenting colleague’s suggestion, see Dissent at 6 n.3,
we take no position on this question. Our inquiry is limited to
what is before us, and on that record the ban does not survive.
As a result, we affirm the District Court’s grant of declaratory
and injunctive relief.8
Amendment if it is motivated by a bias against the views of
the excluded groups.” Id. at 833 (Stevens, J., dissenting).
Though some courts appear to say that motive is not enough
and that there must be evidence that the restriction is being
implemented in a discriminatory way, see Dissent at 15, we
have never so held. As such, we note that this remains an
open question in our Court.
8
The District Court’s grant of relief also covered an
unwritten policy under which the City rejected advertisements
that did not “support the mission” of the Airport. NAACP,
2014 WL 7272410, at *3. In the District Court, the City
denied that the unwritten policy existed. However, it has said
on appeal that it does not seek reversal of the Court’s ruling
on the unwritten policy if we affirm with respect to the
written policy. See Appellant’s Br. at 24. Because the City
has waived any challenge to the unwritten policy as distinct
from the written one, we affirm the Court’s entry of judgment
in its entirety without separately considering the unwritten
policy.
27
National Association for the Advancement of Colored People
v. City of Philadelphia, No. 15-1002
HARDIMAN, Circuit Judge, dissenting.
“[T]he government, ‘no less than a private owner of
property, has power to preserve the property under its control
for the use to which it is lawfully dedicated.’” Cornelius v.
NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 800
(1985) (quoting Greer v. Spock, 424 U.S. 828, 836 (1976)). In
this appeal, the Court deprives the City of Philadelphia of this
power by finding its ban on noncommercial advertising in
parts of its airport facially invalid because the prohibition
lacks record and common sense support. Because I view the
City’s restriction a reasonable attempt to avoid controversy at
the airport, I respectfully dissent.1
I
A
In 2011, the NAACP released a report entitled
Misplaced Priorities which described the disparity between
government spending on prisons and education in cities such
as Philadelphia, New York, and Los Angeles.2 In anticipation
1
While the City has proffered two rationales for
upholding its ban—avoiding controversy and maximizing
revenue—only one such justification is required to find it
constitutional. Because I accept the controversy avoidance
rationale, I address it alone and do not analyze the City’s
revenue maximization arguments.
2
NAACP, Misplaced Priorities (May 2011), available
at http://www.naacp.org/pages/misplaced-priorities.
of the report’s release, the NAACP planned a broad
advertising campaign, which included a series of
advertisements at the Philadelphia International Airport (the
Airport).
The Airport is 3,254,354 square feet and includes
seven terminals and 126 boarding gates. Like all large
airports, it contains numerous retail businesses and various
kiosks filled with advertisements targeting travelers. The City
of Philadelphia, which owns and operates the Airport,
maintains over 100 wall-mounted flat screen monitors to
display advertisements.
The NAACP sought permission to run an
advertisement for Misplaced Priorities on two of the
Airport’s monitors. The advertisement featured a silhouette of
the Statue of Liberty next to a block of text that read:
“Welcome to America, home to 5% of the world’s people &
25% of the world’s prisoners.” NAACP Br. 10. Beneath this
text, the advertisement contained an additional sentence
reading: “Let’s build a better America together.
NAACP.org/smartandsafe.” Id. The City refused to display
the NAACP’s advertisement. And it did so even though the
City had no written policy governing the rejection of
advertisements and despite the fact that it had previously
accepted issue-oriented advertisements.
In October 2011, the NAACP filed suit in the United
States District Court for the Eastern District of Pennsylvania
alleging that the City’s rejection of its advertisement violated
the First Amendment. Almost six months later, the City
issued a written policy (the Policy) regulating advertising at
the Airport. Most relevant here, the Policy prohibited private
parties from displaying advertisements “that do not propose a
2
commercial transaction,” but permitted the City to post
messages promoting “the greater Philadelphia area” as well as
“[o]ther City initiatives or purposes.” NAACP v. City of
Philadelphia, 39 F. Supp. 3d 611, 623 (E.D. Pa. 2014)
(alteration in original). Since the Policy’s enactment, no
private noncommercial advertisements have been displayed.
Noncommercial messages created by the City have been
posted, however.
Three months later, the City and the NAACP entered
into an agreement permitting the Misplaced Priorities
advertisement to run in the Airport. The parties also agreed
that the NAACP would file an amended complaint to
challenge the Policy. The NAACP’s amended complaint
alleged that the Policy was facially unconstitutional.
B
In the course of discovery in the District Court, the
City’s principal witness was James Tyrrell, the Airport’s
Deputy Director of Aviation, Property Management, and
Business Development. As the City’s Rule 30(b)(6) designee,
Tyrrell testified on a number of topics, including “[t]he
reason or purpose and the factors considered by the City for
its decision to adopt, create, enact or promulgate the Airport
Advertising Policy, and any communications concerning that
decision.” App. 775.
When asked why the NAACP’s advertisement was
rejected, Tyrrell responded that it did not comport with the
Airport’s mission “to create an attractive environment
to . . . promote tourism. It’s to create a family oriented
environment. It is to promote the region, to attract customers
to the region.” App. 784; see NAACP, 39 F. Supp. 3d at 622–
3
23. He went on to say, when questioned whether the
NAACP’s advertisement was offensive, that the Airport
“make[s] a very concentrated and huge effort to keep
everything positive, everything non-controversial, and just
create an environment that is soothing and pleasing.” NAACP,
39 F. Supp. 3d at 623–24; App. 802. And when asked how a
ban on noncommercial advertisements could promote this
mission, Tyrrell responded,
If you talk about a commercial ad where
someone is selling a product or a service, that is
pretty broadly known, accepted, generally not
going to be offensive. If you’re talking about a
non-commercial ad that is maybe supporting a
position of one group or another, that could tend
to offend someone who is not in agreement with
that position.
App. 808. Tyrrell admitted that he “could not recall” if he had
ever discussed this justification in any meeting and that it was
“just something he was thinking of” during his deposition. Id.
After discovery was completed, the City and NAACP
filed cross-motions for summary judgment. To adjudicate the
motions, the District Court determined that the relevant forum
was the City-owned advertising space, not the Airport writ
large or the many commercial business that lease space in the
Airport. And it concluded that the advertising space was
either a limited public forum or a nonpublic forum, but that it
need not decide which because both types of forums operate
under the same level of judicial scrutiny, i.e., speech
restrictions must be reasonable in light of the purposes of the
forum and viewpoint neutral.
4
Starting with viewpoint neutrality, the Court held that
neither party was entitled to summary judgment because
material facts relative to the City’s motive in enacting the
Policy were disputed. It nevertheless concluded that the
NAACP was entitled to summary judgment because the
Policy was unreasonable.
The District Court’s analysis began by identifying the
purposes of the forum, one of which was “maintaining the
Airport as a family friendly environment that casts a positive
light on [Philadelphia] and the region.” NAACP, 39 F. Supp.
3d at 628. In light of this purpose, the Court found the
Policy’s exclusion of noncommercial advertisements
unreasonable because there was nothing to suggest that
noncommercial advertisements are any more (or less)
controversial than commercial advertisements. Id. at 629–30.
The Court also determined that noncommercial
advertisements were in no way incompatible with the Airport
as a whole—given that the Airport “contain[ed] many adult-
oriented potentially controversial media” in other spaces,
restricting noncommercial advertisements in the advertising
space would have no effect on the Airport’s functioning. Id.
Accordingly, the Court held the Policy unconstitutional on its
face and entered summary judgment in favor of the NAACP.
II
The crux of the City’s appeal is that the Policy is
reasonable because it helps to create a comfortable
environment at the Airport by avoiding controversy without
discriminating against any viewpoint.
5
A
It is important to note at the outset that the NAACP
has brought a facial challenge to the City’s policy. “A facial
attack tests a law’s constitutionality based on its text alone
and does not consider the facts or circumstances of a
particular case.” United States v. Marcavage, 609 F.3d 264,
273 (3d Cir. 2010) (citing City of Lakewood v. Plain Dealer
Publ’g Co., 486 U.S. 750, 770 n.11 (1988)). “This is the most
difficult challenge to mount successfully,” and it “affects the
burden on [the plaintiff].” United States v. Mitchell, 652 F.3d
387, 405 (3d Cir. 2011) (en banc) (internal quotation marks
omitted) (citation omitted). “A plaintiff can only succeed in a
facial challenge by ‘establish[ing] that no set of
circumstances exists under which the Act would be
valid,’ i.e., that the law is unconstitutional in all of its
applications.” Wash. State Grange v. Wash. State Republican
Party, 552 U.S. 442, 449 (2008) (alteration in original)
(quoting United States v. Salerno, 481 U.S. 739, 745 (1987)).3
3
The Majority neglects to mention the heavy burden
facing those who bring a facial challenge, even in the First
Amendment context. See Wash. State Grange, 552 U.S. at449–51. Consequently, much of the reasoning it uses to find
the Policy facially unconstitutional relies on the absence of
record evidence and permissible inferences establishing the
purpose of the forum and the connection between the Policy
and that purpose. Majority Op. 19–24. The Majority’s holding
implies that even if Airport executives tomorrow wrote an
identical policy and explained that the purpose of the
advertising space is to promote a comfortable and
noncontroversial atmosphere and that a ban on
noncommercial advertisements would further this goal, the
6
B
The Constitution does not require the “Government
freely to grant access to all who wish to exercise their right to
free speech on every type of Government property without
regard to the nature of the property or to the disruption that
might be caused by the speaker’s activities.” Cornelius, 473
U.S. at 799–800. “[N]o less than a private owner of property,
[the government] has power to preserve the property under its
control for the use to which it is lawfully dedicated.” Id. at
800 (quoting Greer, 424 U.S. at 836). To balance “the
Government’s interest in limiting the use of its property to its
intended purpose” and “the interest of those wishing to use
the property for other purposes,” courts engage in forum
analysis. Id.Here, neither party challenges the District Court’s
determinations that: (1) forum analysis applies; (2) the
relevant forum is the Airport’s monitors; and (3) the forum is
either a limited public forum or a nonpublic forum, both of
which implicate the same level of scrutiny.4 Accordingly, the
City may restrict the content of speech so long as the
restriction is “reasonable in light of the purpose served by the
forum” and viewpoint neutral. Rosenberger v. Rector &
new policy could not be constitutional. While such a result is
required by the Majority’s facial invalidation of the Policy, it
would not be supported by its reasoning which dictates that
outcome.
4
Without resolving the matter, I will refer to the forum
here as a nonpublic forum.
7
Visitors of Univ. of Va., 515 U.S. 819, 829 (1995) (quoting
Cornelius, 473 U.S. at 804–06).5
1
To determine whether the Policy is “reasonable in light
of the purpose served by the forum,” we look to the “purpose
of the forum and all the surrounding circumstances.”
Cornelius, 473 U.S. at 806, 809. In evaluating the Policy’s
reasonableness, “we do not ‘require that . . . proof be present
to justify the denial of access to a nonpublic forum on
grounds that the proposed use may disrupt the property’s
intended function,’ [but] we have required some explanation
as to why certain speech is inconsistent with the intended use
of the forum.” Int’l Soc. for Krishna Consciousness v. Lee
(ISKCON), 505 U.S. 672, 691–92 (1992) (O’Connor, J.,
concurring) (alteration in original) (quoting Perry Educ.
Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 52 n.12
(1983)). In fact, “common-sense . . . is sufficient . . . to
uphold a regulation.” United States v. Kokinda, 497 U.S. 720,
734–35 (1990) (plurality opinion). And the restriction “need
only be reasonable; it need not be the most reasonable or the
only reasonable limitation.” Cornelius, 473 U.S. at 808.
Stated differently, a regulation of a nonpublic forum “is
valid . . . unless it is unreasonable, or, as was said in Lehman,
‘arbitrary, capricious, or invidious.’” Kokinda, 497 U.S. at
5
The Supreme Court recently noted that there are four
types of forums: (1) traditional public forums; (2) designated
public forums; (3) limited public forums; and (4) nonpublic
forums. Walker v. Texas Div., Sons of Confederate Veterans,
Inc., 135 S. Ct. 2239, 2250–51 (2015). I disagree with the
Majority’s opinion to the extent it suggests otherwise. See
Majority Op. 11 & n.2.
8
725–26 (quoting Lehman v. City of Shaker Heights, 418 US.
298, 303 (1974)).
Here, as the District Court found, one of the purposes
of the advertising space is to “maintain[] the Airport as a
family-friendly” or comfortable environment. See NAACP, 39
F. Supp. 3d at 628; see also App. 802 (Tyrrell stating that the
Airport “make[s] a very concentrated and huge effort to keep
everything positive, everything non-controversial, and just
create an environment that is soothing and pleasing” when
asked about the rejection of advertisements).6
6
The Majority’s rationale for declining to infer that
one purpose of the forum was to create a congenial
environment is in error. According to the Majority, there is
“no reason to doubt the City does try to maintain a ‘soothing
and pleasing’ environment.” Majority Op. 23. Instead of
stopping here and determining whether this fact supports an
inference that the advertising space shares this purpose, the
Majority goes on to add to this purpose a desire to ban
noncommercial advertising to avoid controversy. And from
this, the Majority concludes that since there is no ban on
noncommercial advertising throughout the Airport, no
inference can be made that the advertising space would have
such a purpose. Id. at 22–23. In doing so, the Majority
confuses the purpose of the forum—to create a soothing or
congenial atmosphere—with the means of achieving that
goal—banning noncommercial advertising. Because the latter
does not illuminate the purpose of the forum, it should not be
considered while attempting to discern as much. And while it
is true that the parts of the Airport leased to others are not
encumbered by the Policy’s prohibition of noncommercial
advertising, this concern is properly analyzed when
9
Our initial task then, is to determine whether the
Policy’s ban on noncommercial advertisements is a
reasonable or commonsense way to promote a congenial
atmosphere through the use of the City’s more than 100
Airport monitors. I believe it is.
As Tyrrell explained, noncommercial advertisements
are more likely to be controversial or offensive than
commercial offers. See App. 808. Noncommercial messages
often seek to convey an opinion or advocate a position—goals
motived by a desire to confront people on issues about which
they disagree, sometimes very emotionally. Commercial
advertisements on the other hand, seek only to sell a product
and are less likely to advocate a position. Although it is
undoubtedly true that some commercial advertisements may
be more controversial or offensive than some noncommercial
content, common sense suggests that advocative messages are
more likely to create rancor and interfere with the City’s
desire to promote a congenial atmosphere at the Airport.7
To use a simple example, imagine that the monitors
are rented by an organization seeking to abolish the death
penalty. To advance its cause, the organization depicts videos
or photos of executions. If those advertisements were
considering whether the Policy is reasonable in light of all the
surrounding circumstances, not in determining the purpose of
the forum.
7
To the extent the District Court and the NAACP
claim that the City must show that noncommercial
advertisements would disrupt the Airport’s functioning, I
disagree. Because the forum at issue here is the monitors, the
City must show only that noncommercial messages interfere
with the goal of promoting a comfortable environment.
10
effective, perhaps death penalty advocates or victims’ rights
groups would buy space showing similarly gruesome footage
of the victims of those who were executed. It would seem
obvious that these images would be controversial and
inappropriate for travelers heading to their gates. While these
examples were (before today) hypothetical, this may no
longer be the case. And many courts that have considered
similar dilemmas have found prohibitions on public transit
like the one here reasonable attempts to keep the peace. See,
e.g., Lehman, 418 U.S. at 304 (plurality opinion) (upholding a
ban on noncommercial speech, in part, to avoid subjecting
bus passengers and others to controversial messages);8 Am.
Freedom Def. Initiative v. Suburban Mobility Auth. for Reg’l
Transp. (SMART), 698 F.3d 885, 892–94 (6th Cir. 2012)
(upholding a ban on political advertisements on buses that
“might alienate riders”); Children of the Rosary v. City of
Phoenix, 154 F.3d 972, 975, 979 (9th Cir. 1998) (finding it
constitutional to limit exterior advertising on buses to “speech
which proposes a commercial transaction” and holding that
the city’s interests in “maintaining neutrality on political and
religious issues” is “especially strong”).
But this does not end our inquiry. For a regulation to
pass constitutional muster, it must also be reasonable in light
of all the circumstances surrounding the forum. Here, those
include the many other media and advertisements that fill the
Airport, ranging from television screens tuned to news
broadcasts to advertisements within retail outlets. Does the
existence of media unconstrained by the Policy render it
8
I disagree with the NAACP’s characterization of
Lehman’s “captive audience” analysis. See Children of the
Rosary, 154 F.3d at 977 (rejecting a similar argument).
11
unreasonable in its regulation of the advertising space? I think
not.
By banning noncommercial advertisements on the
monitors there will be less controversy in the Airport than
there would be if the Policy were never enacted. 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. Because the
Policy reasonably achieves the goal of promoting a congenial
environment in light of the surrounding circumstances, I
would find it facially reasonable.
The NAACP counters that the Policy is unreasonable
because it simultaneously forbids the noncommercial speech
of private parties and permits noncommercial speech by the
City. This argument could carry the day but for the
government speech doctrine. Although the First Amendment
prevents the City from circumscribing private speech
however it wishes, those restrictions do not apply when the
City itself speaks and the City may control the content it
wishes to display on its monitors. Cf. Walker v. Texas Div.,
Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2245
(2015) (“[W]hen [the] government speaks, it is not barred by
the Free Speech Clause from determining the content of what
it says.”). Because the City has the latitude to control its own
speech, it is reasonable for the City not to subject itself to the
same constraints to which it must subject private speakers.
In all, the Policy need not be the most reasonable or
the only reasonable way to achieve the goals the City wishes
12
to pursue on its monitors. The Policy need only be
reasonable—that is, it must not be arbitrary, capricious, or
invidious. For the reasons stated, I would hold that the Policy
satisfies what the Majority rightly acknowledged is a “light”
burden, Majority Op. 26.
2
Apart from being reasonable, a speech restriction in a
nonpublic forum must also be viewpoint neutral. Pittsburgh
League of Young Voters Educ. Fund v. Port Auth., 653 F.3d
290, 296 (3d Cir. 2011) (citing Rosenberger, 515 U.S. at
829). This means that if the government permits speech
regarding a particular subject on government property, it must
allow for the expression of all viewpoints on that subject.
Cornelius, 473 U.S. at 806. To do otherwise and deny access
to a forum solely to suppress a point of view is “anathema to
free expression and impermissible in both public and
nonpublic fora.” Pittsburgh League, 653 F.3d at 296 (citing
R.A.V. v. City of St. Paul, 505 U.S 377, 382 (1992)).
Here, the NAACP claims the Policy is not viewpoint
neutral for two reasons: (1) the City distinguished between
commercial and noncommercial advertisements for
discriminatory reasons; and (2) it allows the City to post
noncommercial advertisements while prohibiting private
groups from doing so. For reasons I shall explain, I disagree.
i
According to the NAACP, the City intended to
discriminate against views that run contrary to the City’s
viewpoint when it enacted the Policy and this illicit motive
requires the Policy’s invalidation. This argument is foreclosed
13
by the NAACP’s facial challenge. Since the Policy excludes
private speakers who agree with the City as well as those who
disagree, it is facially neutral and our inquiry in that regard is
complete. See Bailey v. Callaghan, 715 F.3d 956, 959–60
(6th Cir. 2013) (declining to look beyond the text of a
facially-neutral statute to examine claims of improper
legislative motive because “the law forecloses this kind of
adventure”); Wisc. Educ. Ass’n Council v. Walker, 705 F.3d
640, 648–53 (7th Cir. 2013) (same). And even assuming,
arguendo, that the City had such a motive and that an inquiry
into the City’s motivations is permissible in the context of
this facial challenge, the NAACP’s argument still fails.
To the NAACP, motive is relevant because “the line
between viewpoints and subjects is such an elusive one” and
“classifying a particular viewpoint as a subject rather than as
a viewpoint on a subject” can be a tactic to impermissibly
exclude unwanted viewpoints from a particular forum. See
NAACP Br. 44 (quoting Grossbaum v. Indianapolis-Marion
Cty. Bldg. Auth., 100 F.3d 1287, 1298 (7th Cir. 1996)). While
this reasoning could support an argument that
“noncommercial speech” is actually a viewpoint rather than a
subject matter which may be banned, the NAACP neither
makes this argument nor would it be supported by caselaw.
See, e.g., Lehman, 418 U.S. at 303–04 (upholding a
regulation that banned political and issue-based advertising);
Pittsburgh League, 653 F.3d at 297 (noting that rejecting
advertisements because of their noncommercial character is
viewpoint neutral); Children of the Rosary, 154 F.3d at 975,
980–81 (finding a regulation permitting only commercial
advertising on buses viewpoint neutral); Lebron v. Nat’l R.R.
Passenger Corp. (Amtrak), 69 F.3d 650, 653, 656–59 (2d Cir.
1995) (finding a regulation permitting only commercial
14
advertising on a large billboard viewpoint neutral). And to the
extent the NAACP argues that an illicit motive alone is
sufficient to invalidate a policy, I cannot agree because the
Supreme Court has stated otherwise. See United States v.
O’Brien, 391 U.S. 367, 383 (1968) (“It is a familiar principle
of constitutional law that this Court will not strike down an
otherwise constitutional statute on the basis of an alleged
illicit legislative motive.”); see also Children of the Rosary,
154 F.3d at 980 (stating that motive alone “is not dispositive
when there is no indication that the city is implementing the
standard in a viewpoint discriminatory manner that reflects an
intent to use the policy to exclude disfavored perspectives on
the issues”); cf. Cornelius, 473 U.S. at 811–13 (questioning
the viewpoint neutrality of a regulation in light of allegations
of both improper motive and viewpoint discriminatory
application). “A façade for viewpoint discrimination, in short,
requires discrimination behind the façade.” Grossbaum, 100
F.3d at 1292–94, 1296–98.
ii
The NAACP also argues that the Policy discriminates
on the basis of viewpoint because it allows the City to post
noncommercial advertisements despite forbidding private
advertisers from doing the same. According to the NAACP,
the Policy is a façade for viewpoint discrimination because
the City may speak on issues such as the value of beer
brewing, but the Policy would prohibit a temperance
organization from posting a countervailing advertisement. In
response, the City seeks refuge in the government speech
doctrine. On this close question, I believe the City has the
better argument.
15
According to the government speech doctrine, “when
[the] government speaks, it is not barred by the Free Speech
Clause from determining the content of what it says.” Walker,
135 S. Ct. at 2245. Rather, “[t]he Free Speech Clause restricts
government regulation of private speech.” Pleasant Grove
City v. Summum, 555 U.S. 460, 467 (2009). And when the
government speaks, “the First Amendment strictures that
attend the various types of government-established forums do
not apply.” Walker, 135 S. Ct. at 2250. Instead, “the
democratic electoral process . . . provides a check on
government speech.” Id. at 2245.
Based on these statements, our inquiry into the
viewpoint neutrality of the Policy is straightforward. Limiting
the field of the City’s speech in this area would appear to be
foreclosed by Summum and Walker, both of which make clear
that the strictures of the Free Speech Clause do not apply to
government speech. Walker, 135 S. Ct. at 2245–46, 2250;
Summum, 555 U.S. at 467–69. For this reason, I would find
the Policy’s exception for government noncommercial speech
permissible. I say this with some hesitation, however, because
both Summum and Walker focused on whether all the speech
in a given venue constituted private speech or government
speech. Unlike those cases, here the City’s speech occurs in a
venue shared by the government and private speakers alike.
This difference raises a number of unique concerns not
directly at issue in Summum and Walker.
For instance, with the government and private parties
sharing the same venue, passersby may have difficulty
identifying who is responsible for displaying any particular
message. At this point, the check provided by the democratic
process largely disappears, as the ability to discern the City’s
speech is impaired.
16
In addition, with the power to express noncommercial
positions and exclude those to the contrary, the City could
create an environment in which passersby are led to believe
that the City’s positions are uncontested. It may appear that
the opportunity to contest the government’s message exists by
posting an opposing advertisement on the wall monitors, but
that no one has done so. This illusion of consensus, which
uniquely threatens the marketplace of ideas, is similar to the
concern Justice Alito warned of in his dissent in Walker. See
135 S. Ct. at 2255–56 (arguing that the Court’s understanding
of the government speech doctrine may permit the
government to erect electronic billboards, post its own
messages on them, simultaneously display only those private
advertisements it approves of, and avoid the First Amendment
by asserting all of the speech emanates from the government).
In response to that concern, the Court has instructed that
when the government speaks, “it is not barred by the Free
Speech Clause from determining the content of what it says”
and “the First Amendment strictures that attend the various
types of government-established forums do not apply.”
Walker, 135 S. Ct. at 2245, 2250. Based on that directive, I
must conclude that the Policy does not implicate viewpoint
discrimination concerns that would plainly exist if private
speech were at issue.
* * *
For the reasons stated, I would reverse the District
Court’s order and enter summary judgment for the City of
Philadelphia.
17