[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ELEVENTH CIRCUIT ________________________ JANUARY 04, 2002 THOMAS K. KAHN No. 00-14413 CLERK ________________________
D.C. Docket No. 96-01738-CV-RWS-1
ATLANTA JOURNAL AND CONSTITUTION, USA TODAY, a division of Gannett Satellite Information Network (“GANSAT”), Inc.,
Plaintiffs-Appellees,
NEW YORK TIMES COMPANY, d.b.a. The New York Times,
Intervenor-Plaintiff, Appellee,
versus
THE CITY OF ATLANTA DEPARTMENT OF AVIATION, ANGELA GITTENS, in her official capacity as Aviation General Manager, City of Atlanta, STEVE BAKER, in his official capacity as Aviation Deputy General Manager, City of Atlanta, SHIRLEY FRANKLIN, in her official capacity as Mayor, City of Atlanta,
Defendants-Appellants. ________________________
No. 00-15181 ________________________
ATLANTA JOURNAL AND CONSTITUTION, USA TODAY,
Plaintiffs-Appellees, NEW YORK TIMES COMPANY, d.b.a. The New York Times,
Intervenor-Plaintiff, Appellee, versus
THE CITY OF ATLANTA DEPARTMENT OF AVIATION, ANGELA GITTENS, in her official capacity as Aviation General Manager, City of Atlanta, STEVE BAKER, in his official capacity as Aviation Deputy General Manager, City of Atlanta, SHIRLEY FRANKLIN, in her official capacity as Mayor, City of Atlanta,
Defendants-Appellants.
________________________
No. 00-15185 ________________________
D.C. Docket No. 96-01847-CV-RWS-1
2 USA TODAY, a division of Gannett Satellite Information Network (“GANSAT”), Inc.,
Plaintiff-Appellee,
THE CITY OF ATLANTA DEPARTMENT OF AVIATION, ANGELA GITTENS, in her official capacity as Aviation General Manager, City of Atlanta, STEVE BAKER, in his official capacity as Aviation Deputy General Manager, City of Atlanta, SHIRLEY FRANKLIN, in her official capacity as Mayor, City of Atlanta,
Appeals from the United States District Court for the Northern District of Georgia _________________________
(January 4, 2002)
Before BLACK, HILL and STAPLETON*, Circuit Judges.
______________________ *Honorable Walter K. Stapleton, U.S. Circuit Judge for the Third Circuit, sitting by designation. HILL, Circuit Judge:
3 In 1996, the City of Atlanta, through its Department of Aviation,
implemented a new plan regulating news racks at Hartsfield Atlanta International
Airport. The Atlanta Journal and Constitution, later joined by the New York
Times and USA Today, brought this action seeking a declaration that the plan
unconstitutionally deprived it of its rights under the First Amendment and an
injunction against enforcement of the plan. In July of 2000, upon consideration of
cross-motions for summary judgment, the district court declared the plan
unconstitutional and issued a permanent injunction barring the City of Atlanta and
the Department of Aviation from enforcing it. This appeal followed.
I.
Hartsfield Atlanta International Airport is one of the nation’s busiest
airports. Nearly 64 million passengers travel through the City of Atlanta’s (the
“City”) airport each year. An additional 15 million people visit the airport
annually when accompanying departing passengers or greeting those who arrive.
Some 35,000 to 45,000 people work at the airport. The airport consists of a main
passenger terminal and six concourses, along which a variety of vendors offer their
goods and services. News racks, owned by the Atlanta Journal and Constitution
(the “AJC”) as well as other newspapers, were operated by them as concessions.
4 In 1995 and 1996, the airport underwent a major renovation. Along with the
renovation, the airport intensified its efforts to operate as more of a business entity.
The City delegated to the Department of Aviation (the “Department”) authority
over the news racks.
As the 1996 Olympics approached, city officials developed a partnership
with the Coca-Cola Company (“Coca-Cola”) whereby the city would receive a
subsidy for its arts programs in exchange for allowing Coca-Cola to maintain a
commercial display area in the airport’s atrium and to occupy prime retail space in
that area without going though the usual bidding process. In looking for more
ways to promote Coca-Cola and its downtown “Olympic City” commercial
attraction, the City and Coca-Cola agreed that news racks in the airport would bear
Coca-Cola advertising. Representatives of Coca-Cola selected twelve locations for
the sixty-four news racks.
In April of 1996, the Department announced it was formulating a plan to
replace privately-owned racks in the terminal with city-owned news racks and that
this new plan would go into effect on July 1, 1996. The City’s 1996 plan had four
essential parts. First, the City would own the new racks. Second, the news racks
were part of an airport promotion in conjunction with the 1996 Olympic Games
and Coca-Cola was to play a major role in the Olympic promotion. Accordingly,
5 the new racks were to display advertisements for Coca-Cola. The plan prohibited
the publishers of newspapers to display their own logos or advertisements on the
news racks. Third, publishers selected to use the city-owned news racks were
required to pay a $20 per month charge. Finally, the Department’s decision to
grant a permit for a publisher to use a news rack would be based on its “desire” to
have a diversity of viewpoints in the airport; the Department could cancel a permit
on thirty days notice without cause.
It is undisputed that the City conducted no study of news rack sales nor any
issue relating to safety, security, aesthetics, passenger flow or any other
justification for the plan. It is also undisputed that the selection of the news racks
and their locations and numbers was delegated to Coca-Cola.
On July 5, 1996, the AJC installed its own news racks in the atrium and
vestibule areas of the newly-renovated airport terminal. The Department
confiscated the racks, citing the AJC’s failure to secure a permit and claiming the
positioning of the racks might constitute a fire code violation.
On July 9, 1996, AJC filed this action and moved for a temporary restraining
order and a preliminary injunction. Following a hearing the next day, the district
court entered a preliminary injunction prohibiting the City from enforcing its news
rack leasing program.
6 On July 11, 1996, AJC again placed news racks at the airport. Department
officials, however, again removed the racks, after the AJC refused to sign a permit.
AJC returned to the district court, which amended its previous order by enjoining
the Department from removing the news racks. The court also ordered that the
method of news rack distribution in place prior to the City’s enactment of the new
distribution plan was to remain in effect for the duration of the preliminary
injunction.
The Department then took the position that placement of news racks on
airline concourses depended on securing permission from the relevant airline.
After AJC secured permission from Delta Airlines to place its racks on their
concourses, the Department revoked AJC’s security clearance and required that it
have a security escort to deliver papers to its news racks on the Delta concourses.
In an emergency hearing, the district court ordered the Department to permit AJC
to deliver its papers. After the Department continued to require the publishers to
be escorted, the district court, in yet another emergency hearing, told the
Department that it was coming “perilously close to criminal contempt.” After
some final skirmishing, the Department ceased its efforts to prevent AJC from
distributing its papers on its own racks and, since that time, AJC has continued to
sell their papers through their own news racks. The other two plaintiffs, USA
7 Today and The New York Times Company (all three, collectively, the
“publishers”), subsequently joined this lawsuit.
In its order of July 2000, the district court granted summary judgment to the
publishers, holding that the plan was constitutionally defective in at least three
respects, and permanently enjoining its enforcement.
We review the district court’s grant of summary judgment and application of
the law de novo. Fernandez v. Bankers Nat’l Life Ins. Co., 906 F.2d 559, 564 (11th
Cir. 1990). We review the grant of a permanent injunction for an abuse of
discretion. Wesch v. Folsom, 6 F.3d 1465, 1469 (11th Cir. 1993).
II.
“It is well settled that the right to distribute newspapers through news racks
is protected under the First Amendment.” Gold Coast Publications, Inc. v.
Corrigan, 42 F.3d 1336, 1343 (11th Cir. 1994). The government may, however,
limit that right in a non-public forum, such as an airport. International Soc. for
Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 679 (1992); ISKCON Miami,
Inc. v. Metropolitan Dade County, 147 F.3d 1282, 1286 (11th Cir. 1998).
In a non-public forum, restrictions on speech are permissible so long as they
are viewpoint-neutral and reasonable. Perry Educ. Ass’n v. Perry Local
Educators’ Ass’n, 460 U.S. 37 (1983). “The reasonableness of the Government’s
8 restriction of access to a non-public forum must be assessed in the light of the
purpose of the forum and all the surrounding circumstances.” Cornelius v. NAACP
Legal Defense and Educational Fund, Inc., 473 U.S. 788, 809 (1985). When the
government chooses to restrict speech, its actions cannot be “arbitrary, capricious
or invidious,” United States v. Kokinda, 497 U.S. 720, 725-26 (1990), and it bears
the burden of proving that they are not. United States v. Playboy Entertainment
Group, Inc., 529 U.S. 803, 120 S. Ct. 1878, 1881 (2000).
The district court held that the Department’s plan violates the First
Amendment because it impermissibly (1) discriminates between speech based
upon viewpoint and content; (2) imposes a fee unrelated to administrative costs on
a protected expressive activity – the sale of news papers through news racks; and
(3) vests unbridled discretion, and therefore broad censorial power, in the
administrators of the plan. We agree.
1. Use of News racks Bearing Coca-Cola Advertisements1
1 We agree with the publishers that this issue is not mooted because the Olympics are over. The City has never officially withdrawn any aspect of the 1996 plan, never represented that it has abandoned this aspect of the plan, nor conceded that it unconstitutionally compelled speech. The City may not “moot” an issue by making promises in legal briefs that it has ceased the activity in question, particularly when it continues to maintain the restriction is constitutional. See Jager v. Douglas County Sch. Dist., 862 F.2d 824, 833-34 (11th Cir. 1989) (voluntary cessation of conduct does not “moot” issue of constitutionality of that conduct).
9 The Department’s plan limits the kind of speech it will tolerate on airport
news racks. Under the plan, a publisher wishing to sell newspapers on news racks
in the airport is required to lease government-owned news racks, all of which carry
advertisements for Coca-Cola . No other logo or advertising is permitted. The
district court held that this requirement impermissibly burdens a protected
expressive activity – selling newspapers. First, it compels some speech – the
publishers must sell their papers on racks which endorse Coca-Cola. Second, the
requirement discriminates among the viewpoints of potential speakers, by
permitting some and prohibiting others.
Even if it is constitutional for government to ban advertisements on its news
racks completely, once it permits some commercial speech to be exhibited there, its
prohibition of all other commercial speech “raises the danger of content and
viewpoint censorship.” City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750,
751 (1988). Even in a non-public forum, viewpoint discrimination is
impermissible, Lee, 505 U.S. at 679, and, although “government may draw
distinctions based upon content in order to preserve government property for its
intended uses,” ISKCON Miami, Inc., 147 F.3d at 1288 n.5, the district court held
that there was no principled reason based upon the purpose of the airport to justify
distinguishing between commercial speakers on the City’s news racks. The City’s
10 desire to foster its relationship with Coca-Cola was insufficiently compelling to
permit it to require the publishers to associate their publications with Coca-Cola
products and to prohibit them from displaying their own logos or advertisements.
We find no error in this conclusion.
2. The Licensing Fee
The Department’s 1996 plan imposes a $20 per month fee for the use of each
news rack. The publishers contend that the fee is illegal since it has long been
established that government may not profit by imposing licensing or permit fees on
the exercise of First Amendment rights. See Murdoch v. Pennsylvania, 319 U.S.
105 (1943); Cox v. New Hampshire, 312 U.S. 569, 577 (1941). While a fee to
defray the administrative costs of a licensing scheme is permissible, government is
prohibited from using such a fee to raise revenue under the guise of defraying
administrative costs. Id.
The Department contends, however, that it should be allowed to charge a
revenue-raising licensing fee, even on a protected activity, if it is acting in a
“proprietary,” as opposed to a “governmental,” capacity. The Department relies
upon Gannett Satellite Information Network, Inc. v. Metropolitan Transp.
Authority, 745 F.2d 767 (2d Cir. 1984). In that case, the Second Circuit approved
11 a revenue-generating fee on news racks in the Metropolitan Transport Authority’s
(the “MTA”) subway stations in New York, holding that:
Ordinarily, a government cannot profit by imposing licensing or permit fees on the exercise of a Fist Amendment right. Only fees that cover the administrative costs of the permit or license are permissible. In those cases in which licensing fees were prohibited, however, the government was acting in a governmental capacity and was raising general revenue under the guise of defraying its administrative costs.
Id. at 774 (citation omitted). Distinguishing “governmental” from “proprietary”
capacity, the Second Circuit held that as the operator of a commuter rail business,
the MTA was entitled to impose a revenue-raising licensing fee on concessionaires,
even those engaging in a protected expressive activity – the selling of newspapers.
According to the court, when government acts in this proprietary capacity, its
licensing fees are “permissible manner restrictions which serve the significant
governmental interest of raising revenue for the self-sufficient, efficient operation
of commuter lines.” Id. at 775; see also Jacobson v. City of Rapid City, S. D., 128
F.3d 660 (8th Cir. 1997) (city acted in proprietary capacity, thus was justified in
banning private news racks from airport based on its legitimate interest in
generating revenue). The City urged the district court to adopt this distinction and
permit it, as proprietor of the airport, to charge a revenue-raising fee for the use of
its news racks.
12 The district court, however, rejected this distinction because it appears to be
foreclosed by the law of this circuit. In Sentinel Communications Co. v. Watts, 936
F.2d 1189 (11th Cir. 1991), we were called upon to decide, upon very similar facts,
whether a revenue-generating licensing fee on protected expressive activity was
constitutional. The case involved a challenge to a Florida scheme to regulate news
racks in its highway rest areas. As a condition on placing news racks in the rest
areas, publishers were required to agree to pay a five cent “administrative” fee for
each paper sold. The district court had held that the fee was a “valid and
reasonable contractual condition[ ] on Sentinel’s placement of its news racks at the
rest area.” Id. at 1205.
We disagreed, holding:
First, it is well established that a licensing fee is permissible, but a state or municipality may charge no more than the amount needed to cover administrative costs. The government may not profit by imposing licensing or permit fees on the exercise of first amendment rights, and is prohibited from raising revenue under the guise of defraying its administrative costs.
Id.
In Sentinel, the state of Florida undertook to build state-run gift shops in its
rest areas. While the facilitation of highway travel is the primary purpose of these
rest areas, Florida clearly had an interest in generating revenue from sales at these
13 gift shops. Commercial activity benefitting the state became a secondary intended
purpose of the rest areas, and Florida made an effort to maximize its revenues by
charging publishers for the privilege of selling their newspapers in the gift shops.
Even though these fees were imposed at a non-public forum with a significant
commercial purpose, at which the government – as proprietor of the rest area and
gift shops – clearly sought to raise money to offset the cost of running the facility,
we held that they were unconstitutional if they were unrelated to the costs of
administering the licensing scheme. Id.
We find the facts of this case indistinguishable from those in Sentinel. Like
the state of Florida, the Department operates a non-public forum – the airport –
which is designed to facilitate travel. A clear secondary purpose of the airport,
however, is commercial activity, much of which is designed to benefit the City and
the Department by offsetting the costs of running the airport. The district court
found, and we agree, that the news rack fees, as in Florida, were imposed without
regard to administrative cost,2 and were for the purpose of raising revenue. The
facts being indistinguishable, the rule of Sentinel appears to preclude the City from
2 The Department argues that it did introduce such evidence when it put in evidence of the prices the papers pay to have their products in shops and the rates it charges for retail space. The district court held this was evidence of the costs of doing business, not the costs of administering a licensing scheme. We find no error in this conclusion.
14 charging the publishers a revenue-raising fee for engaging in the expressive
activity of selling newspapers.
The City seeks to distinguish Sentinel, contending that it does not apply.
The City argues that Sentinel does not foreclose a “proprietary” capacity defense
for the news rack fee since this distinction was not specifically addressed and
rejected there. While we agree that Sentinel does not address the “proprietary”
capacity defense for such fees, the Department’s argument that it does not
foreclose that defense here runs afoul of our decision in Smith v. GTE Corp., 236
F.3d 1292 (11th Cir. 2001).
In Smith, we held that “the mere act of proffering additional reasons not
expressly considered previously . . . will not open the door to consideration of the
question by a second panel.” Id. at 1302-03 (quoting United States v. Bascaro, 742
F.2d 1335, 1343 (11th Cir. 1984)). This is exactly what the City seeks to do here.
It advances an additional reason – not considered by us in Sentinel – in support of
its position that a revenue-raising licensing fee on protected expressive activity can
be constitutional. The City proffers the additional reason that a revenue-rasing
licensing scheme does not offend the Constitution if it is imposed by government
acting in a proprietary, as opposed to governmental, capacity.
15 Were we writing on a clean slate we might well be persuaded of the merits
of the governmental versus proprietary distinction advanced by the Department and
adopted in at least two other circuits. Under Smith, however, we are foreclosed
from reconsidering the holding of Sentinel for this new reason. Even though we
did not expressly reject a “proprietary” capacity distinction in Sentinel, we held
there that government may not raise revenue through a licensing fee on protected
expressive activity. 936 F.2d at 1205. Only this court sitting en banc, can
reconsider this holding.3 Perhaps this will occur. For now, however, the fee
imposed by the Department’s 1996 plan is unconstitutional and may not be
enforced.
3) Unbridled Discretion
Finally, the Department’s plan also grants unbridled discretion to airport
personnel to choose which publications are granted access to the city-owned news
racks, and to cancel a publisher’s news rack license at will. The only guidance
offered to the officials administering the plan is the “desire of the Department of
Aviation to present a diversity of publications in a coherent manner.” It is clear
that this “desire” not only permits, but in fact compels, the official to discriminate
3 Sentinel, read with Smith, produces a situation where our court’s first consideration of an issue might well be by the court sitting en banc; although not argued by the parties nor, therefore, reached by the court, the governmental versus proprietary distinction was subsumed by the holding of Sentinel, and cannot, under Smith, be “resurrected” by our panel.
16 among viewpoints based specifically upon the viewpoint itself. The district court
held that this kind of discretion is facially unconstitutional and we agree.
Once again, Sentinel controls. There we explained that:
A court may invalidate an excessively broad grant of discretion on its face, without regard to the particular facts of the plaintiff’s case, because the very existence of the discretion lodged in the public official is constitutionally unacceptable. By facially invalidating broad grants of discretion, the Supreme Court has revealed that the problem [with such discretion] is not potential abuses, but the very existence of broad censorial power.
936 F.2d at 1197.
The Supreme Court has invalidated similar city ordinances which vested
broad discretion in its personnel to control expressive activity. Lakewood, 486
U.S. at 769. In Lakewood, the Court invalidated an ordinance which gave the
mayor the authority to deny applications for permits to place news racks on public
property. In striking down the ordinance, the Court noted that “the face of the
ordinance itself contains no explicit limits on the mayor’s discretion.” Id.
Similarly, the Department’s plan contains no explicit limits on airport
personnel’s power to cancel news rack licenses. On its face, the plan permits the
Department to cancel a publisher’s license for any reason whatsoever, including
unconstitutional reasons such as viewpoint discrimination. Such unbridled
discretion vests broad censorial power in government and this the Constitution
17 does not permit. Id.; Sentinel, 296 F.2d at 1197. We find no error in the district
court’s conclusion that this aspect of the City’s 1996 plan is unconstitutional and
may not be enforced.
III.
The Department’s plan impermissibly compels some speech, prohibits other
speech based upon its viewpoint, imposes a revenue-raising fee on protected
speech, and vests in government an unfettered discretion to discriminate among
speech based upon viewpoint and content. The district court correctly held that
this plan violates the Constitution. The grant of a permanent injunction
prohibiting the City and the Department from enforcing this unconstitutional plan,
therefore, was not an abuse of discretion. Accordingly, the judgment of the district
court is
AFFIRMED.