Multimedia Pub. Co. of South Carolina, Inc. v. Greenville-Spartanburg Airport Dist.

• Decision Date: 22 April 1993
• Docket Number: No. 91-1575,GREENVILLE-SPARTANBURG,91-1575
• Citation: 991 F.2d 154
• Parties: 21 Media L. Rep. 1369 MULTIMEDIA PUBLISHING COMPANY OF SOUTH CAROLINA, INCORPORATED; New York Times Company, Plaintiffs-Appellees, v.AIRPORT DISTRICT; Gary Jackson, in his official capacity as Executive Director of the Greenville-Spartanburg Airport Commission, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 154

991 F.2d 154

21 Media L. Rep. 1369

MULTIMEDIA PUBLISHING COMPANY OF SOUTH CAROLINA INCORPORATED; New York Times Company, Plaintiffs-Appellees, v. GREENVILLE-SPARTANBURG AIRPORT DISTRICT; Gary Jackson, in his official capacity as Executive Director of the Greenville-Spartanburg Airport Commission, Defendants-Appellants.

No. 91-1575.

United States Court of Appeals Fourth Circuit.

Argued Dec. 2, 1992.

Decided April 22, 1993.

Stanley Turner Case, Butler, Means, Evins & Browne, Spartanburg, SC, argued (Edward G. Smith, on brief), for defendants-appellants.

Wallace K. Lightsey, Wyche, Burgess, Freeman & Parham, P.A., Greenville, SC, argued (Carl F. Muller, on brief), for plaintiffs-appellees.

Before PHILLIPS and WILKINS, Circuit Judges, and SPROUSE, Senior Circuit Judge.

OPINION

PHILLIPS, Circuit Judge:

The issue is whether a total ban imposed by the Greenville-Spartanburg Airport Commission (the Commission) on the placement of newspaper vending machines (newsracks) inside its airline terminal violated the First Amendment rights of two newspaper companies who challenged the ban in this action. The district court, holding that the terminal was a public forum and applying the First Amendment principles then relevant to that forum classification, declared the total ban unconstitutional and entered a remedial decree compelling the Commission to permit placement of newsracks in certain designated areas of the terminal. Though during pendency of this appeal it was established in International Soc'y for Krishna Consciousness, Inc. v. Lee, --- U.S. ----, 112 S.Ct. 2701, 120 L.Ed.2d 541 (1992), that airline terminals of the sort here in issue are not public forums, we conclude that the total ban here challenged is nevertheless unconstitutional and we therefore affirm the district court's decision to that effect. Because we further conclude, however, that the Commission should have an opportunity to be heard on the issue of an appropriate remedial decree under the principles announced in Lee, we vacate the remedial portion of the decree and remand the case for reconsideration of that issue.

I

Multimedia Publishing Company of South Carolina publishes the Greenville News and the Greenville Piedmont, both daily newspapers in South Carolina. The New York Times Company publishes the Spartanburg Herald-Journal, also a South Carolina daily.

The Commission oversees operation of the Greenville-Spartanburg Airport, located ten miles north of Greenville, South Carolina and fifteen miles south of Spartanburg, South Carolina. Approximately one million passengers pass through the Airport each year, and a recent renovation designed to better accommodate those passengers expanded the Airport to twice its former size. In the new facility a spacious lower lobby contains ticketing and baggage claim areas, along with a bank, a travel agency office, rental car bureaus, a large fountain, and seating areas interspersed with planters and trash containers. Escalators ascend from the lower lobby to a middle level containing a gift shop, a bar, a restaurant, public telephone booths, vending machines, and an outdoor terrace for watching planes take off and land. Two large concourses extend in opposite directions from the middle-level lobby, each containing four gates, seating areas surrounded by planters and trash containers, public restrooms, and desks with individual telephones and work areas for departing and arriving passengers. The public generally has free access to the central terminal, and all persons wishing to enter the Airport's gate area may do so if they are willing to pass through the metal detectors separating it from the central terminal.

During the fall of 1988, before renovation of the Airport began, Multimedia contacted Dick Graham, then Executive Director of the Commission, requesting permission to place newsracks in the passenger terminal building. Newspapers were then available only in the gift shop, and Multimedia had received complaints from business people in Greenville who weren't able to purchase them when arriving or departing outside the shop's hours of operation. Graham told Multimedia he didn't want to increase congestion in the small existing terminal by placing newsracks inside, but he promised to consult the renovation architects about providing newsrack space in the renovated facility and led the companies to believe they could expect to place newsracks inside it.

Although Graham did ask the architect to consider newsrack placement, neither he nor his successor, Gary Jackson, pursued the matter further. When the architect contacted Jackson after renovation was under way, Jackson told him not to worry about newsracks because they wouldn't be permitted inside the new terminal.

In November of 1989, when renovation was nearly complete, Multimedia asked Jackson when newsracks could be placed inside the new terminal. Citing aesthetic concerns, he flatly refused to permit newsracks in the Airport, although he later allowed the newspaper companies to place them in one of the Airport's several parking areas.

In pressing for permission to place newsracks inside the Airport, Multimedia had offered to customize them under the direction of the architect to avoid detracting from the new terminal's aesthetics. Specifically, Multimedia had offered to paint them special colors or place them inside wooden cabinets. Jackson never presented these offers to the Commission, and, indeed, consulted no one regarding the feasibility of customizing the newsracks to complement the Airport's decor.

Ultimately, the New York Times Company joined Multimedia's efforts, and the newspaper companies brought this action. Jackson, acting alone, then prepared a list of justifications for banning newsracks. He claimed that they would mar the aesthetics of the terminal, cause gift-shop revenues to decrease, pose a pedestrian safety hazard, and constitute a security risk because they might hold bombs. He also said newsracks were unnecessary because adequate alternative means of distributing newspapers existed. ¹

In a non-jury trial the district court found that the First Amendment protects distribution of newspapers through newsracks. Multimedia Publishing Co. v. Greenville-Spartanburg Airport Dist., 774 F.Supp. 977, 983-84 (D.S.C.1991). It also determined that, for purposes of disseminating news, the Greenville-Spartanburg Airport is a public forum. Id. at 984. Finally, because the Commission's ban couldn't withstand the strict scrutiny applied to such regulations in a public forum, the district court concluded that it violated the newspaper companies' First Amendment rights. Id. at 984-86. Accordingly, it enjoined the Commission to permit the newspaper companies to place newsracks in eight locations inside the terminal building. Id. at 986. The Commission appealed.

We first heard oral argument in this appeal on October 29, 1991, but placed the case in abeyance pending the Supreme Court's decision in Lee. Following the entry of that decision which held, among other things, that public airports aren't public forums, see --- U.S. at ----, 112 S.Ct. at 2706; --- U.S. at ----, 112 S.Ct. at 2711, (O'Connor, J., concurring), ² we ordered supplemental briefs, and later oral argument, with respect to Lee's impact on this case.

II

To determine the constitutionality of the Commission's newsrack ban involving restrictions on the use of public property, we first have to decide whether the distribution of newspapers through newsracks located on that property is entitled to First Amendment scrutiny at all. Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 797, 105 S.Ct. 3439, 3446, 87 L.Ed.2d 567 (1985). If not, the ban would have to be sustained, and our inquiry would be over. If, however, such distribution is under First Amendment protection, two further questions are raised: (1) What type of forum for First Amendment purposes is this public property? and (2) Can the challenged ban survive the constitutional scrutiny appropriate to the regulation of expression in that type of forum? Id.

A

The Commission argues that its regulation of newsrack distribution in the Airport doesn't implicate First Amendment protections in the first place. All this ban concerns, says the Commission, is state regulation of a particular mode of commercial distribution involving physical invasion of public property.

Things aren't so simple. It's long been settled that the First Amendment protects distribution as well as publication of protected material. Lovell v. City of Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949 (1938) (distribution as well as publication of literature subject to First Amendment protection); Ex parte Jackson, 96 U.S. 727, 733, 24 L.Ed. 877 (1878) ("Liberty of circulating is as essential to [freedom of expression] as liberty of publishing; indeed, without the circulation, the publication would be of little value."). Moreover, it's clear that modes of distribution involving permanent or semi-permanent occupation of publicly-owned property don't lose First Amendment protection because of that fact, City of Cincinnati v. Discovery Network, Inc., --- U.S. ----, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993) (invalidating city's ban on newsracks for commercial speech); City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 769, 108 S.Ct. 2138, 2150, 100 L.Ed.2d 771 (1988) (licensing of newsrack placement on public streets subject to First Amendment challenge); see also Plain Dealer Publishing Co. v. City of Lakewood, 794 F.2d 1139, 1143 (6th Cir.1986), aff'd in part and remanded, 486 U.S. 750, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988); Gannett Satellite Info. Network, Inc. v. Metropolitan Transp. Auth., 745 F.2d 767, 772 (2d Cir.1984); Miami Herald Publishing Co. v. City of Hallandale, 734 F.2d 666, 673 (11th Cir.1984), though the character of the distributive technique may bear on the degree of protection accorded...