708 F.2d 760 (D.C. Cir. 1983), 81-2199, United States Southwest Africa/Namibia Trade & Cultural Council v. United States

Docket Nº:81-2199.
Citation:708 F.2d 760
Party Name:U.S. SOUTHWEST AFRICA/NAMIBIA TRADE & CULTURAL COUNCIL, Appellant, v. UNITED STATES of America, et al.
Case Date:May 27, 1983
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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708 F.2d 760 (D.C. Cir. 1983)

U.S. SOUTHWEST AFRICA/NAMIBIA TRADE & CULTURAL COUNCIL, Appellant,

v.

UNITED STATES of America, et al.

No. 81-2199.

United States Court of Appeals, District of Columbia Circuit

May 27, 1983

Argued Sept. 16, 1982.

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Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 80-3182).

Thomas C. Henry, Washington, D.C., for appellant.

R. Craig Lawrence, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Royce C. Lamberth and Patricia J. Kenney, Asst. U.S. Attys., and David L. Bennett, Atty., Federal Aviation Admin., were on the brief for appellees.

Before WRIGHT, WALD and MIKVA, Circuit Judges.

Opinion for the Court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge:

We are called upon to review the refusal by an official of the Federal Aviation Administration (FAA) to approve an advertisement as suitable for public display in the various advertising areas at Washington National Airport (National) and Dulles International Airport (Dulles), the two major airports serving the Washington, D.C. metropolitan area. Despite the fact that advertising space was available, and that the appellant, an organization which proposed the advertisement, was willing to pay the appropriate rental fee and to abide by the FAA's format requirements, the ad was rejected solely because it was political in nature and thus perceived to be inconsistent with the government's interests in maintaining a purely commercial and public service advertising medium. The appellant, claiming a violation of its first amendment rights, unsuccessfully sought declaratory and injunctive relief in district court. The court rejected the appellant's claim because, in its view, the setting of the proposed advertisement constituted a "nonforum" in which three governmental interests arguably justified the FAA's ban on political advertising. We hold that the district court misjudged the first amendment dimensions of the FAA's policy in this case. Accordingly, we reverse and remand for further proceedings.

I. BACKGROUND

National and Dulles are federally owned airports, operated by the FAA. Most of the goods and services available to the public at these airports are provided by commercial concessionaires under contract to the FAA. Between October 1975 and October 1981, Transportation Displays, Inc. (TDI) held the exclusive contract for management of the commercial advertising programs at both airports. The contract required TDI to develop a master advertising plan for each airport, to install such advertising displays as wall units, dioramas, carousel displays, "island showcases," and courtesy phone counters, and to solicit and obtain advertising display business. Before TDI could place any advertisement, however, it had to obtain written approval of the ad's content and format from the FAA's Metropolitan Washington Airports (MWA) office. The FAA-TDI contract established the criteria on which government approval or disapproval was based:

All advertising shall be in good taste, professionally developed, and presented in such a manner as to be inoffensive to the general public and be of such a high caliber as to contribute to the establishment of the Airport's facilities as prestige locations for commercial advertising media.

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FAA-TDI Contract No. DOT-FA-MWAS-5144, reprinted in Affidavit of George N. Terris (Attachment 1), Record Document (RD) 15. Although the contract does not, by its terms, prohibit political advertisements, it consistently has been applied by the MWA to prohibit ads "which would be considered political or issue-oriented in nature, rather than commercial or public service." Affidavit of George N. Terris, RD 15 at 3.

The appellant in this case is the United States Southwest Africa/Namibia Trade and Cultural Council (the Council), a nonprofit corporation organized under the laws of the District of Columbia and a registered foreign agent of the National Assembly and Council of Ministers of the territory of Southwest Africa/Namibia. Although neither the United States nor the world community recognizes the Council's principal as the legitimate governing body of Namibia, see United States-Southwest Africa/Namibia Trade and Cultural Council v. United States Department of State, 90 F.R.D. 695 (D.D.C.1981), aff'd mem., No. 81-2018 (D.C.Cir. May 18, 1982), the FAA does not contest the district court's conclusion that, as a separate corporate entity of the District of Columbia, the Council enjoys standing to assert constitutional rights accruing to it as a legal person. See Memorandum Decision, RD 23 at 1 n. 1.

In September 1980, the Council employed The Agency, a Washington-based advertising firm, to prepare advertising copy for display at National and Dulles. The Agency contacted TDI and, after some preliminary negotiations, submitted an advertisement that was undeniably political. As the Council describes it:

The proposed ad was entitled "SWAPO's RAPE of NAMIBIA" and listed four questions, as follows:

Do you know--

  1. SWAPO (South West Africa People's Organization) is a Soviet-Bloc Terrorist Group?

  2. SWAPO is trying to take over Namibia by violence?

  3. SWAPO is financed by the United Nations.

  4. U.S. taxpayers finance the United Nations.

The ad also contained five sketches, labelled "Namibian Girl," "Namibian game preserve at Etosha," "SWAPO Terrorism," "Military equipment supplied by Soviet-bloc," and "Uranium in Namibia."

Appellant's Brief at 5 n. 4. TDI forwarded the proposed ad to the MWA and, on November 5, 1980, the MWA returned it marked "Not approved--Not considered as material eligible to be displayed within scope of contract." RD 15, p 13. On November 6, in a telephone conference with the Council's attorney, the Chief of the MWA's Financial Management Division expressed his opinion that the advertisement was "controversial" but assured the Council's attorney that the MWA's disapproval of the ad had been based on the ad's political, rather than its controversial, nature. Affidavit of George N. Terris, RD 15 at 5.

The Council initiated this action in federal district court in December 1980, seeking to enjoin the government's prohibition. On cross-motions for summary judgment, the court ruled for the government on the basis of two conclusions. First, the court held that airport display advertising areas do not constitute "public forums." Second, the court held that three governmental interests justified the FAA's ban on political advertisements: (1) it allows the government to maintain a higher level of long-term commercial revenue than could be obtained by opening the displays to less professional short-term political ads; (2) it avoids the appearance of government endorsement of the content of the political ads; and (3) it avoids administrative complexities in allocating a limited number of advertising spaces among political candidates or viewpoints. See Memorandum Decision, RD 23 at 4-9.

On appeal, the Council contends that the district court erred by allowing the FAA to promote its three objectives through unconstitutional means. Specifically, the Council argues that National and Dulles constitute public forums for communication at which

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both first amendment and equal protection principles prohibit discrimination based solely on the subject matter of the Council's proposed advertisement. Such a content-based prohibition is unjustified, the Council adds, because the government can use less restrictive, content-neutral mechanisms to achieve its revenue interests and to ameliorate its other, non-revenue concerns.

II. DISCUSSION

This case requires us to determine whether the federal government, as a property owner, has justified its ban on political advertising at National and Dulles Airports in light of its first amendment obligation, as a government, to "make no law ... abridging the freedom of speech." Preliminarily, we note that the complications inherent in the government's dual role as polity and property owner are compounded in this case by the FAA's use of a prohibition on advertising wholly based on the subject matter of the proposed messages. Subject matter restrictions on speech in public places have been treated by the Supreme Court as a peculiar type of content-based regulation. In places that can be categorized as "public forums" for communication--such as streets, parks, and similar common areas--the Court has generally struck down governmental discrimination among the "proper" subjects for expressive activity, although the Court has stated that such distinctions may be justified if shown to be truly necessary and finely tailored to serve "substantial" or "compelling" state interests. See, e.g., Carey v. Brown, 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980) (striking down distinction between proper subjects of peaceful picketing on city streets); Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) (same); Police Department of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972) (same). In contrast, in places that are more aptly categorized as "nonforums"--such as prisons, military bases, and buses--the Court has sustained the use of subject matter restrictions provided that they are reasonably designed to limit expressive activities to uses compatible with the public facilities' intended purposes and not imposed to suppress expression simply because public officials oppose the speaker's particular point of view. See, e.g., Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977) (upholding prison ban on certain union activities among inmates); Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976) (upholding ban on partisan...

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