Court: Philadelphia Can't Ban Advocacy Ads at the Airport

by | August 24, 2016 AT 12:20 PM

By Julia Terruso

Philadelphia's ban on non-commercial advertisements at the city's airport, sparked by a rejected billboard calling for prison reform, is unconstitutional, a federal appeals court ruled in a decision published Tuesday.

The National Association for the Advancement of Colored People (NAACP), in conjunction with the American Civil Liberties Union of Pennsylvania, filed a lawsuit in 2011, claiming the city's rejection of an NAACP billboard violated the group's First Amendment rights.

The ad, to be placed in the international arrivals section of the airport, read, "Welcome to America, home to 5% of the world's people & 25% of the world's prisoners. Let's build a better America together."

At the time the city refused to sell the ad space, it had no written policy on airport advertisements. After the NAACP sued, the city briefly allowed the ad to go up and then in 2012, wrote a policy banning non-commercial advertisements.

The NAACP then amended its lawsuit to challenge the city's policy in court.

On Tuesday, a three-panel judge on the U.S. District Court of Appeals ruled 2-1, in a split decision, to uphold the U.S. District court's finding that the ban violates the First Amendment.

The Kenney administration did not immediately return requests for comment. When the case was argued in October, Michael A. Nutter was mayor.

"The Law Department is still reviewing the over 40-page ruling, so they don't have a comment at this time," city spokeswoman Lauren Hitt said."

The city had argued the inclusion of social commentary or advocacy postings could dissuade advertisers and cost the city money. Religious or controversial ads could also expose travelers to content they find offensive, the city said in arguments .

In the decision for the majority, Third Circuit Judge Thomas L. Ambro wrote that the city's rationale "suffer from a lack of record evidence. And even with the benefit of commonsense inferences, neither passes muster."

Ambro wrote that the city failed to provide proof that non-commercial ads would hinder the airport financially. The NAACP would have paid standard rate for the ad. In testimony, an airport official said the policy had nothing to do with revenue but rather maintaining a pleasant airport atmosphere, according to the decision.

To that point, Fred Magaziner, who argued the case for the NAACP, noted that televisions and newsstands are in close proximity to ads and travelers throughout the airport.

Mary Catherine Roper, deputy legal director of the ACLU of Pennsylvania, said the decision emphasizes the high legal bar for government restrictions on free speech.

"It's important that our public spaces be available for discussion of important issues," she said. "But it's very important that the court focused on the evidence. When the government limits speech it really has to prove what its talking about...'Because I said so,' is not enough."

Roper said the decision is unlikely to blanket the airport with messages from advocacy groups.

"You're not going to see a bazillion save our planet, or donate to fight cancer ads," she said. "Advertising at the airport is tremendously expensive."

The ruling could open the door to controversial messaging, though.

In March 2015, a federal court ruled SEPTA's ban on anti-Muslim advertising on its busses violated free speech protections because the agency had allowed other non-commercial speech.

The agency has since published new advertising standards to prohibit all political, public-issue, and noncommercial ads.

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