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

834 F.3d 435, 2016 U.S. App. LEXIS 15431, 2016 WL 4435626
CourtCourt of Appeals for the Third Circuit
DecidedAugust 23, 2016
Docket15-1002
StatusPublished
Cited by29 cases

This text of 834 F.3d 435 (National Ass'n for the Advancement of Colored People v. City of Philadelphia) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Ass'n for the Advancement of Colored People v. City of Philadelphia, 834 F.3d 435, 2016 U.S. App. LEXIS 15431, 2016 WL 4435626 (3d Cir. 2016).

Opinions

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.

[438]*438I. 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.

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. “[Commercial 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 relating] 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 noncommercial 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.

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 [439]*439the City adopted the ban on non-commercial content. Indeed, asked whether he had “an understanding” of the reason for distinguishing between commercial and noncommercial 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 [AJirport wants to deliver in terms of promoting tourism, promoting the 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 noncommercial 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 would be “happy” from a business perspective selling noncommercial 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 noncommercial speech. Another possibility might be that the ban, under which all noncommercial 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, Tyr-rell said that he did not have any reason to think so.

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Bluebook (online)
834 F.3d 435, 2016 U.S. App. LEXIS 15431, 2016 WL 4435626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-assn-for-the-advancement-of-colored-people-v-city-of-ca3-2016.