Tuesday, May 21, 2013

free speech - Phila. Airport - NAACP advt. - city MTD denied - premature

NAACP v. Philadelphia – ED Pa. – May 20, 2013

Plaintiff, the National Association for the Advancement of Colored People (“NAACP”), brings this action against Defendant the City of Philadelphia, alleging that the City’s policy regarding advertising at the Philadelphia International Airport is an unconstitutional infringement on freedom of speech under the First and Fourteenth Amendments to the United States Constitution and Article I, Section 7 of the Pennsylvania Constitution. The City has moved to dismiss the Amended Complaint. Following the April 26, 2013 oral argument on the Motion, the matter is now ripe for disposition.


The facts alleged in the Amended Complaint (Doc. No. 34) are accepted as true, and all reasonable inferences are drawn in favor of Plaintiff.   On April 7, 2011, the NAACP released a report, titled “Misplaced Priorities,” which takes the position that the United States overspends on incarceration at the expense of education. The report outlines specific reforms that, if implemented, could reverse this trend. The NAACP planned a public awareness campaign to accompany the release of this report and as part of that campaign, prepared a series of advertisements to display at airports across the country. The NAACP selected Philadelphia International Airport as an airport where it sought to display one of these advertisements. In January 2011, the NAACP submitted the following advertisement to Defendant, the City of Philadelphia’s Division of Aviation for approval for placement at the Airport:

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

The City rejected the advertisement. The NAACP alleges that the City rejected the advertisement because of its content or viewpoint in violation of the First and Fourteenth Amendments to the United States Constitution and Section 7, Article 1 of the Pennsylvania Constitution. After the initial complaint was filed in this matter, the City, pursuant to the parties’ stipulation, agreed to post the advertisement at the Airport for a limited time.

Despite the City’s agreement to allow the advertisement to be posted for a limited time, in March 2012, the City adopted a written policy regarding advertising at the Airport, under which the NAACP’s advertisement would not be allowed. The Policy provides in relevant part:


1. No person shall post, distribute, or display any Advertisement at the Airport without the express written consent of the CEO and in such manner as may be prescribed by the CEO.

2. The CEO will not accept or approve any of the following Advertisements:

a) Advertisements that do not propose a commercial transaction…….


It is well established that, as a general rule, the government may “limit speech that takes place on its own property without running afoul of the First Amendment.” Where a government forum has not been opened to the type of expression at issue in a given case, government restrictions on speech need only be reasonable and viewpoint neutral, with reasonableness judged by the purpose served by the relevant forum. “Where, however, the property in question is either a traditional public forum or a forum designated as public by the government, the government’s ability to limit speech is impinged upon by the First Amendment.” Where the government-owned property is a “public” forum, strict scrutiny applies and speech restrictions are constitutional only if they are narrowly tailored to achieve a compelling government interest. Thus, whether a government’s limitation on speech is constitutional depends on the proper classification of the forum at issue.

To determine the proper classification of the forum at issue, the Court must first define the forum itself. A forum is defined “in terms of the access sought by the plaintiff.” Here, it is undisputed that the forum at issue is Airport advertising space.1

 While the parties agree on the definition of the forum at issue, they disagree about the proper classification of that forum. There are three classifications of fora.18 The first, “traditional public fora,” are areas which “‘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.’”19 “[A]rchetypal examples [of these fora] include streets and parks.”20 Here it is clear, and the parties do not argue otherwise, that Airport advertising space is not a traditional public forum.

On the other end of the spectrum from traditional public fora are nonpublic fora. “[P]ublic property that ‘is not by tradition or designation a forum for public communication’ constitutes a nonpublic forum. Access to [such a] forum can be restricted so long as the restrictions are reasonable and viewpoint neutral.” The City asserts that Airport Advertising space should be classified as a nonpublic forum.

Given the nature of this inquiry and the lack of a developed factual record, the Court finds that it is premature to classify the forum at this time. In the absence of a forum classification, the Court is unable to determine whether the policy is constitutional. The City does not argue in the motion that their policy is narrowly-tailored to achieve a compelling government interest as would be necessary to render a policy implemented in a designated public forum constitutional. Therefore, the Motion to Dismiss will be denied with respect to the NAACP’s claim that Section 2 of the Airport advertising policy is unconstitutional.