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Philadelphia's ban on noncommercial advertising in its airport violates the First Amendment and is an unreasonable use of government power, the Third Circuit ruled recently. That ban came after the NAACP paid, in 2011, to display a noncommercial advertisement proclaiming "Welcome to America, home to 5 percent of the world's people and 25 percent of the world's prisoners."
The city then banned all noncommercial advertisements in the Philadelphia International Airport, ostensibly to maximize revenue and avoid controversy. But, the Third Circuit found, there is little evidence that the ban accomplishes either of these goals, making it an unreasonable restriction on First Amendment rights to free speech.
When Philadelphia moved to ban noncommercial advertising at the airport, it justified the restriction on two grounds. First, ads that could relate to religious or social issues could jeopardize revenue from other advertisers who did not want their content posted near such messages. Second, such ads could "expose travelers to content they find offensive."
But, as the Third Circuit noted, the airports deputy director of property management and business development, James Tyrrell, could not explain the reason behind the commercial-noncommercial split. In a deposition with the NAACP, Tyrell said that he did not have "an understanding" of the reason for distinguishing between advertising.
Tyrell stated, repeatedly, that the purpose behind the rule was not to prevent loss of revenue. Indeed, he even suggested that the policy could cost the city revenue.
When it came to preventing controversy, Tyrell similarly struggled to justify the policy, saying that it "may" have something to do with not wanting to offend travelers.
In analyzing the ban, the "core question" is whether it is reasonable, the Third Circuit wrote. "At the heart of this is the tension between its justifications on the one hand and the record that we have before us on the other."
In examining the airport restrictions, the Third ruled for the first time that, in limited public and nonpublic forums, when the government restricts a fundamental right, the government bears the burden of demonstrating that such restrictions are constitutional.
To do so, Philadelphia could depend on record evidence or "commonsense inferences." Neither worked in Philadelphia's favor. The record, including Tyrell's testimony, undercuts the city's justifications for the restrictions. And commonsense does not support the restriction either. As the court noted, "elsewhere in the airport, travelers have frequent exposure to televisions broadcasting shows and commercials containing a wide variety of noncommercial content," none of which the city restricts to prevent controversy.
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