Nat'l Ass'n for the Advancement of Colored People v. City of Phila.
| Decision Date | 23 August 2016 |
| Docket Number | No. 15–1002,15–1002 |
| Citation | 834 F.3d 435 |
| Parties | National Association for the Advancement of Colored People v. City of Philadelphia, Appellant |
| Court | U.S. Court of Appeals — Third Circuit |
Shelley R. Smith, City of Philadelphia Solicitor, Elise M. Bruhl, Craig R. Gottlieb, Esquire (Argued), City of Philadelphia, Law Department, 1515 Arch Street, One Parkway, Philadelphia, PA 19102, Counsel for Appellant
Laura Kessler, Fred T. Magaziner (Argued), Catherine V. Wigglesworth, Esquire, Dechert, 2929 Arch Street, 18th Floor, Cira Centre, Philadelphia, PA 19104, Mary Catherine Roper, American Civil Liberties Foundation of Pennsylvania, P.O. Box 40008, Philadelphia, PA 19106, Seth F. Kreimer, 3400 Chestnut Street, Philadelphia, PA 19104, Counsel for Appellee
Before: McKEE, Chief Judge, AMBRO, and HARDIMAN, Circuit Judges
AMBRO
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.
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: 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. “[C]ommercial 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 relat[ing] 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 non-commercial 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.
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 the City adopted the ban on non-commercial content. Indeed, asked whether he had “an understanding” of the reason for distinguishing between commercial and non-commercial 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 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:
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 non-commercial 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, Tyrrell said that he did not have any reason to think so. He gave the same answer when asked whether the ban related to a desire not to impose on captive audiences (i.e. , people who are in the Airport by necessity and cannot avoid the messages merely by going somewhere else).
The only possibility not eliminated was that noncommercial ads might be more likely than commercial ones to offend travelers. This is the theory the City advances on appeal. Tyrrell testified that this “may” have something to do with the adoption of the ban. However, he said that he did not recall if this idea had “ever been discussed in any meeting or conversation” that he had. And he admitted it was something he just thought of as he sat for his deposition.
Finally, Tyrrell, on a general level, described the Airport as a “very stressful” place in light of the commotion and anxiety that frequently accompany travel. As a result, management makes “a very concentrated and huge effort to keep everything positive, everything non-controversial, and just create an environment that is soothing and pleasing.”
The City initially argued (at least in its briefing) that its subjective intentions in adopting the ban were to maximize revenue and avoid controversy. See Appellant's Br. at 17–18. By the time of oral argument, however, it relied almost exclusively on the contention that its “actual thoughts and thinking” on the subject “don't matter.” Oral Arg. Tr. at 7. The City also maintained that Tyrrell's testimony about the ban was irrelevant. Id. at 18 (). Moreover, it agreed that the reasons it was offering—revenue maximization and controversy avoidance—might be after-the-fact justifications that are “strictly in the realm of lawyer argumentation.” Id. at 55; see also id. at 16–17 (). The City further conceded the possibility that its actual intent might have been to suppress viewpoints that cast Philadelphia or the region in a negative light. Id. at 16 (...
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