Air Line Pilots Association, International and James F. Ritter v. Department of Aviation of the City of Chicago, City of Chicago, Eric Griggs

FLAUM, Circuit Judge,

concurring.

I agree with the majority’s resolution of the state-action problem. The contract between Chicago and TMI gave the City the discretionary authority to refuse advertisers based on the content of their message, and ALPA’s complaint clearly states that that authority was exercised. I also agree that the district court incorrectly determined that the Supreme Court’s holding in Intern. Soc. for Krishna Consciousness, Inc. v. Lee, — U.S. -, 112 S.Ct. 2701, 120 L.Ed.2d 541 (1992), that airport terminals are not public fora mandated the conclusion that advertising spaces set aside in an airport could not be designated public fora. Consequently, as the majority holds, ALPA can succeed on its complaint if it can prove either that the advertising spaces are limited public fora and the “political” content prohibition is not narrowly tailored to serve a compelling state interest or that the City and TMI have engaged in impermissible viewpoint discrimination. I write separately to emphasize that even the potential determinations that the advertising display cases are a nonpublic forum and that there was no viewpoint discrimination would not necessarily resolve the issue in Chicago or TMI’s favor.

Two factors on which the defendants rely bear comment. First, as the defendants note, Chicago has a legitimate and important interest in promoting the economic health and productivity of O’Hare Airport. It is also true that “in cases where the principal function of the property would be disrupted by expressive activity, the Court is particularly reluctant to hold that the government intended to designate a public forum.” Cornelius v. NAACP Legal Defense & Educational Fund, 473 U.S. 788, 804, 105 S.Ct. 3439, 3450, 87 L.Ed.2d 567 (1985). Second, the Supreme Court has indicated “that governmental actions are subject to a lower level of First Amendment scrutiny when ‘the governmental function operating ... [is] not the power to regulate or license as lawmaker, ... but, rather, as proprietor, to manage [its] internal operation[s]....’” United States v. Kokinda, 497 U.S. 720, 725, 110 S.Ct. 3115, 3119, 111 L.Ed.2d 571 (1990) (citations omitted).

Both factors may, as the defendants urge, help push the advertising display cases from the designated public forum category into the nonpublic forum category. That we assign one designation or another to the display cases does not, however, alter their basic nature. When a space is open to advertising, to commercial speech, that fact indicates that the space is not only not disrupted by expressive activity but is conducive to such activity. Furthermore, when the government acts as a proprietor, it does act differently from when it exercises its traditional police powers and does deserve more leeway. But when the government decides who may speak based on substantive criteria, it acts as a censor. The government should not ordinarily take on the role of deciding who may speak on what matters, regardless of what capacity in which it acts.

Even in the nonpublic forum, restrictions on speech are permitted only if “reasonable” and “not an effort to suppress expression merely because public officials oppose the speaker’s view.” Lee, — U.S. -, -, 112 S.Ct. 2711, 2712 (O’Connor, J., concurring) (quoting Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983)); see also Cornelius, 473 U.S. at 806, 105 S.Ct. at 3451 (“Although a speaker may be excluded from a nonpublie forum if he wishes to address a topic not encompassed within the purpose of the forum, ... or if he is not a member of class of speakers for whose especial benefit the forum was created, ... the government violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject.”). The question then arises as to what is “reasonable.”

The defendants make two arguments that they have reasonable grounds on which to forbid the advertisement. First, they assert a right to ban advertisements that would offend or undermine the commercial interests of the businesses that utilize O’Hare. As the majority notes, that argument rapidly devolves into a form of viewpoint-based discrimination. See ante at 1157. Once we determine that there is state action, the state actor may not serve as the handmaiden of private interests and justify a suppression of speech as a necessary appeal to those interests.

Second, the defendants assert that it is reasonable to ban political advertising simply in order to avoid the appearance of favoritism. See Cornelius, 473 U.S. at 809, 105 S.Ct. at 3452; Lehman v. City of Shaker Heights, 418 U.S. 298, 304, 94 S.Ct. 2714, 2717, 41 L.Ed.2d 770 (1974) (plurality). That assertion oversimplifies First Amendment jurisprudence. In Lehman, the only position to command a majority was that the private advertisers who wished to place placards on buses had no right to subject a captive audience to their message. Lehman, at 302-06, 94 S.Ct. at 2717-18 (plurality); id. at 306, 94 S.Ct. at 2719 (Douglas, J., concurring). In Lee, what distinguished an impermissible ban on leafletting at airports from a permissible ban on solicitation of funds at airports was the intrusiveness of the respective activities. See Lee, — U.S. at -, 112 S.Ct. at 2713 (O’Connor, J., concurring); id. at -, 112 S.Ct. at 2721 (Kennedy, J., concurring). A majority of the Lee Court squarely rejected the notion that the difficulties posed by leaf-letting, as opposed to solicitation, constituted even a “reasonable” restriction on speech. See Lee v. Intern. Soc. for Krishna Consciousness, Inc., — U.S. -, -, 112 S.Ct. 2709, 2710, 120 L.Ed.2d 669 (1992) {per curiam) (companion case to Lee); id. (Rehnquist, C.J., dissenting). Similarly, in United States v. Kokinda, 497 U.S. 720, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990), the Court held that it was reasonable to forbid a political advocacy group from soliciting contributions and distributing information on the sidewalk in front of a post office during office hours. Four justices argued that the Postal Service’s feared loss of customers because of the potentially unpleasant and especially intrusive situation created by solicitation made the restriction reasonable, id. at 735-36, 110 S.Ct. at 3124-25 (plurality), while Justice Kennedy concluded that the restriction was an acceptable content-neutral regulation of sidewalk. Id. at 739, 110 S.Ct. at 3126 (Kennedy, J., concurring). Finally, in Cornelius, the Court permitted restrictions on which charities could solicit funds through a campaign directed by the federal government at federal employees. Cornelius, 473 U.S. at 808-09, 105 S.Ct. at 3452-53. The Court did so on the grounds that it was reasonable to conclude, especially given supporting evidence, that including activist and advocacy-oriented charities along with more traditional charities would disrupt the campaign. Id. at 810-11, 105 S.Ct. at 3453-54.

These cases all seem to associate reasonable restrictions with some attempt to limit the intrusiveness of the speech, and I find it difficult to see, at the current stage of the proceedings, what intrusiveness permits banning the display of ALPA’s advertisement. There is no suggestion that passengers will be slowed by such a display or that those who do not wish to look at the advertisements cannot avoid them by briefly averting their eyes as they walk past them. To the extent that TMI and Chicago rely solely on the politieal/nonpolitical distinction, it seems unlikely that a commercial advertisement for Penthouse Magazine would disrupt travel less than a political announcement exhorting people to “Get Out and Vote.” Additionally, as the majority notes, distinctions between commercial speech and political speech are “far too tenuous” to do the work the defendants would have them do. Ante at 1159. Indeed, if fear of disruption through political speech alone were sufficient grounds to restrict speech, it would almost follow that Chicago would have the right to ban all political speech at O’Hare. The facts of the instant case, as presented to date, exhibit none of the captive-audience or solicitation problems that typically justify subject-matter-based restrictions; their language should not be extended to apply here.¹

Finally, independent of any forum analysis, we should be most cautious wherever a state actor undertakes to restrict political speech. As Judge Reynolds remarked in a slightly different context:

It has often been stated that the essence of the First Amendment is the protection of political speech. If that be so, it is a strange policy indeed which exalts nonpartisan speech over political speech. Arguably, such an inversion of values ill serves the public upon whom falls the serious and challenging business of self-government. Moreover, the very terms “political” or “nonpartisan” are themselves insusceptible of principled application. Far too frequently the mantle of nonpartisanship is thrown over the shoulders of those who have been successful in obtaining political and economic power in our society, while the pejorative of “political” is reserved for those who have been less successful in those same endeavors. More obliquely (although no less perniciously), the appellation of nonpartisan is often affixed to ideas and values whose very emptiness of political content may itself be considered an expression of political position. What is “political” and what is “nonpartisan” must of necessity — as must beauty — he in the eyes of the beholder. For that very reason, the Constitution will not allow such determinations to be made by government officials.

Lawrence University Bicentennial Commission v. City of Appleton, Wisconsin, 409 F.Supp. 1319, 1325 (E.D.Wis.1976). Political speech lies at the soul of the First Amendment, and we should be suspicious of any policy or practice directly aimed at limiting such expression.

Without question, it is useful to have categories of speech and government property. However, categorization also drives us to resolve issues without reflecting on why we reach certain results; the First Amendment is about more than taxonomy. In the present case, I doubt that the name assigned to the display eases matters very much. I believe that the restrictions on political advertising should be viewed with the utmost constitutional scrutiny.

The Court decides today that the district court too swiftly labeled the display cases a nonpublic forum and too readily decided that defendants had not engaged in viewpoint discrimination. I agree with both propositions.

1 . The defendants also rely on Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976), in which the Court upheld a policy banning partisan political speeches and demonstrations on a military base. The special concerns of the military make this case unique and its holding of limited applicability in other First Amendment contexts.