597 F.3d 570 (4th Cir. 2010), 09-1010, The News and Observer Publishing Co. v. Raleigh-Durham Airport Authority

Docket Nº:09-1010, 09-1231.
Citation:597 F.3d 570
Opinion Judge:DUNCAN, Circuit Judge:
Party Name:THE NEWS AND OBSERVER PUBLISHING COMPANY; The Durham Herald Company; The New York Times Company; Gannett Company, Incorporated, Plaintiffs-Appellees, v. RALEIGH-DURHAM AIRPORT AUTHORITY, Defendant-Appellant. The News and Observer Publishing Company; The Durham Herald Company; The New York Times Company; Gannett Company, Incorporated, Plaintiffs-App
Attorney:James P. McLoughlin, Jr., Moore & Van Allen, Charlotte, North Carolina, for Appellant. John Adam Bussian, III, The Bussian Law Firm, PLLC, Raleigh, North Carolina, for Appellees. John A. Zaloom, David E. Fox, Research Triangle Park, North Carolina, for Appellant. Mark J. Prak, Charles E. Coble, E...
Judge Panel:Before WILKINSON, DUNCAN, and DAVIS, Circuit Judges. Affirmed by published opinion. Judge DUNCAN wrote the majority opinion, in which Judge WILKINSON concurred. Judge DAVIS wrote a dissenting opinion. DAVIS, Circuit Judge, dissenting:
Case Date:March 12, 2010
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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597 F.3d 570 (4th Cir. 2010)

THE NEWS AND OBSERVER PUBLISHING COMPANY; The Durham Herald Company; The New York Times Company; Gannett Company, Incorporated, Plaintiffs-Appellees,

v.

RALEIGH-DURHAM AIRPORT AUTHORITY, Defendant-Appellant.

The News and Observer Publishing Company; The Durham Herald Company; The New York Times Company; Gannett Company, Incorporated, Plaintiffs-Appellees,

v.

Raleigh-Durham Airport Authority, Defendant-Appellant.

Nos. 09-1010, 09-1231.

United States Court of Appeals, Fourth Circuit.

March 12, 2010

Argued: Oct. 27, 2009.

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[Copyrighted Material Omitted]

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ARGUED:

James P. McLoughlin, Jr., Moore & Van Allen, Charlotte, North Carolina,

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for Appellant.

John Adam Bussian, III, The Bussian Law Firm, PLLC, Raleigh, North Carolina, for Appellees.

ON BRIEF:

John A. Zaloom, David E. Fox, Research Triangle Park, North Carolina, for Appellant.

Mark J. Prak, Charles E. Coble, Eric M. David, Brooks, Pierce, McLendon, Humphrey & Leonard, LLP, Raleigh, North Carolina, for Appellees.

Before WILKINSON, DUNCAN, and DAVIS, Circuit Judges.

Affirmed by published opinion. Judge DUNCAN wrote the majority opinion, in which Judge WILKINSON concurred. Judge DAVIS wrote a dissenting opinion.

OPINION

DUNCAN, Circuit Judge:

This appeal arises from the district court's grant of summary judgment to newspaper publishers bringing a First Amendment challenge to a public airport's total ban on newspaper racks inside its terminals. We found a similar ban unconstitutional in Multimedia Publishing Co. of South Carolina, Inc. v. Greenville-Spartanburg Airport District, 991 F.2d 154 (4th Cir.1993), which guides our decision today. Because the government interests asserted to justify the ban do not counterbalance its significant restriction on protected expression, we affirm.1

I.

As this is an appeal from a grant of summary judgment, we present the facts affecting our First Amendment analysis in the light most favorable to the appellant. See Pueschel v. Peters, 577 F.3d 558, 563 (4th Cir.2009). Appellant Raleigh-Durham Airport Authority (the " Authority" ) was chartered by the North Carolina General Assembly to operate the Raleigh-Durham International Airport (the " Airport" ). See 1939 N.C. Pub.L. ch. 168. Appellees The News and Observer Publishing Company; The Durham Herald Company; The New York Times Company; and Gannett Company, Incorporated (the " Publishers" ) publish and distribute four daily newspapers: The News & Observer, The Herald-Sun, The New York Times, and USA TODAY.

A.

The Airport facilitates air travel for the region known as the " Triangle area," which encompasses Raleigh, Durham, and Chapel Hill, North Carolina. Every year millions of travelers pass through the Airport. During the relevant time period, the Airport consisted of two terminals, labeled A and C, that shared one attached parking deck and eleven outer parking lots reachable by shuttle bus. Each terminal had a non-secure area for ticketing and baggage pickup, and a secure area or " concourse" for loading and unloading passengers on planes. Whereas anyone could access the non-secure areas, only ticketed travelers and authorized personnel could enter the secure areas. Entering a secure area required passing through a security checkpoint operated by the Transportation Security

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Administration (" TSA" ).2

The Airport was intended not only to facilitate air travel but also to generate revenue. Federal law requires making the facility as financially self-sustaining as possible. See 49 U.S.C. § 47107(a)(13) (conditioning federal grant money upon " the airport owner or operator ... maintain[ing] a schedule of charges for use of facilities and services at the airport ... that will make the airport as self-sustaining as possible" ). The Authority generated revenue for the Airport in various ways, including (1) leasing wall space for advertising, (2) charging a fixed rent to shops and restaurants inside each terminal, and (3) charging additional rent calculated as ten percent of gross profits.

Inside each terminal were numerous shops and restaurants, located mostly within the secure area where travelers waited before departing. These concessions, which included various eating establishments and retail stores, were selected and arranged under " a master plan for the retail and food service concession space" designed to " maximize customer service and ... revenue to the Authority." 3 J.A. 265. The terminals also contained vending machines, racks displaying brochures, information kiosks, television monitors, ATM machines, email stations, shoe-shine stations, trash bins, bathrooms, plants, and other features intended to serve travelers or boost revenue.

In early 2002, the Publishers contacted the Authority about placing coin-operated newsracks inside the terminals, where newsracks had never been placed before. At that time, newspapers could only be purchased from various shops. Terminal A's secure area had four shops selling newspapers. Three " RDU-Press" shops were located by Gates 5, 8, and 14/16, and an " RDU-Press Plus" shop was located by Gate 19. Terminal A's non-secure area had a " JQ Snacks" kiosk near the baggage claim area that offered USA Today. Terminal C's secure area had two shops selling newspapers. These were the " Hudson News" shop and the " Hudson News and Book" shop located near the TSA security checkpoint. Finally, Terminal C's non-secure area had one shop selling newspapers located between the baggage claim and ticketing areas. All these shops could offer any newspaper selection they chose, but the Authority generally expected them to carry The News & Observer and The Herald-Sun.

Although the Airport was open to the public twenty-four hours every day, the shops normally opened between 5:30 a.m. and 6:30 a.m., and closed between 8:00 p.m. and 9:00 p.m. They were " required to open before the first flights [left] ... each

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morning and remain open until after the last flights depart[ed] each evening." J.A. 296. Among the five hundred or so flights that arrived at or departed from the Airport every day, however, about thirty-seven were scheduled to arrive after the shops had closed. Passengers aboard these flights or any flights delayed beyond the normal hours were therefore unable to purchase a newspaper.

The record also reflects other issues regarding the adequacy of newspaper circulation. For example, the Authority received complaints that newspapers were sometimes unavailable during the early morning hours. Furthermore, The Durham Herald Company received complaints that the shops sold out of The Herald-Sun. Notwithstanding, the Authority declined to regulate how many newspapers were stocked, reasoning that the shops had a financial incentive to meet demand.

B.

In January 2002, The News and Observer Publishing Company (the " Observer" ) inquired about the possibility of placing newsracks inside the terminals. In response, the Authority asserted " an informal policy that newspapers would be distributed via the newsstands/gift shops in the terminals," and explained that " there had been no complaints from customers with respect to newspapers being available only in those shops." J.A. 230-31. The Authority also raised concerns about security, floor space, and losing revenue from shop sales.

The Observer and Authority did not discuss newsracks again until about two years later. On February 17, 2004, the Observer faxed a letter to the Authority asserting that its ban on newsracks would unlikely survive First Amendment scrutiny, requesting permission to place and stock " a limited number of newsracks at locations in the terminal and on the concourses ... without charge," and promising that the news-racks would be " as ‘ security friendly’ as technology currently allows." J.A. 167. The Authority refused this request. On March 31, 2004, the Observer faxed another letter asserting " the right to place [Observer] newsracks on the concourses" and threatening litigation, but the Authority again refused. J.A. 168.

On September 2, 2004, the Publishers sued the Authority in the Eastern District of North Carolina. Their complaint alleged that the Authority's refusal to allow newsracks inside the terminals violated the First Amendment and North Carolina Constitution. The Publishers requested both injunctive relief and attorneys' fees and costs under 42 U.S.C. § 1988 and 28 U.S.C. § 1920. Specifically, the Publishers sought a permanent injunction letting them place 208 newsracks in 26 locations throughout the Airport terminals. 4

The Authority and Publishers filed cross-motions for summary judgment under Federal Rule of Civil Procedure 56. After initially denying both motions, the district court amended its decision and granted the Publishers' motion for summary judgment regarding their First Amendment claim. See The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 588 F.Supp.2d 653, 659 (E.D.N.C.2008). The court reasoned that banning " the installation of news racks within the terminals ‘ substantially burdens the newspaper companies' expressive conduct

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within that public place,’ " id. at 658 (quoting Multimedia, 991 F.2d at 159), and that concerns about security, aesthetics, preserving revenue, and preventing congestion were not " sufficiently powerful interests to justify the burden on protected expression," id. This appeal followed.

II.

On appeal, the Authority challenges the district court's grant of summary judgment. We " review[ ] a district court's decision to grant summary judgment de novo, applying the same legal standards as the district court." Puesc...

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