In August, the Third Circuit Court of Appeals affirmed a lower court decision holding that the Philadelphia airport’s advertising policy was unreasonable in light of the purposes of the advertising space, in violation of the First Amendment. The airport had previously enacted a policy that prohibited the display of any noncommercial advertising in city-owned advertising space.

The challenge was brought by the National Association for the Advancement of Colored People (NAACP), which wanted to place an advertisement in the airport that read “Welcome to America, home to 5% of the world’s people and 25% of the world’s prisoners. Let’s build a better America together. NAACP.org/smartandsafe.” The city rejected the advertisement.

The appeals court assumed for purposes of argument that the city’s airport advertising space was a limited public forum, but found that the advertising policy was not reasonable. The city’s purported interests in the prohibition of noncommercial advertising were to raise revenue and to avoid controversy in the airport. The court found that the prohibition on noncommercial advertising did not reasonably advance either goal, because there was no evidence that the restriction on noncommercial advertising would advance the airport’s revenue goals and the airport was otherwise full of televisions and newsstands that already contained noncommercial speech that could be controversial.

The Third Circuit’s analysis is interesting in several respects. The court undertook a long, detailed analysis of the litigation burdens in a limited public forum case. Philadelphia argued that the court should analyze the policy under the rational basis standard of review, where the burden of proof is on the plaintiff to demonstrate that the government’s policy was not rationally related to a legitimate governmental interest. However, the court, relying on several Supreme Court decisions, found that because the case addressed a fundamental right—the freedom of speech—the burden of proving that the policy was reasonable in light of the purposes of the forum was on the city. This approach to burdens in limited public forum cases imposes a higher standard on the government to ensure that a regulation is actually reasonable.

The court also went into a lengthy discussion about how the city could meet its burden in this instance. Again relying on prior Supreme Court precedent, the court found that a government need not back up every conclusion regarding speech in a limited forum with evidence, but some record evidence could be appropriate in helping the city to meet its burden. Noting the holding in United States v. Kokinda, the court indicated that common sense and historical experience can also underlie a government policy restricting certain speech from a limited public forum. With respect to the Philadelphia airport advertising policy, the court found that the city had provided neither record evidence nor any common sense rationale for the noncommercial speech prohibition. In particular, the court focused on the deposition of one of the airport’s managers, who admitted in his deposition that the noncommercial ban did not actually do anything to further the city’s interest in revenue and could not establish how the ban actually helped travelers avoid potentially offensive content.

This decision follows two other recent cases out of Chicago and Fort Wayne that have also held advertising policies in limited public fora to be unreasonable.

N.A.A.C.P. v. City of Philadelphia, 834 F.3d 435 (3d Cir. 2016).