National Ass'n for the Advancement of Colored People v. City of Philadelphia
2016 U.S. App. LEXIS 15431
3rd Cir.2016Background
- The City of Philadelphia adopted a written Airport advertising policy (2012) banning private advertisements that do not “propose a commercial transaction,” while allowing City-sponsored noncommercial messages. The NAACP’s proposed ad criticizing U.S. incarceration rates was rejected before the written policy existed.
- NAACP sued alleging First Amendment violations; the City agreed to run the NAACP ad for three months and the NAACP amended its complaint to challenge the written ban facially.
- Deposition of the City’s Rule 30(b)(6) witness, Airport deputy director James Tyrrell, revealed no documentary or testimonial support tying the ban to revenue maximization; Tyrrell also disclaimed many typical government justifications (neutrality, avoiding favoritism, captive audience). He suggested only that the City might seek to avoid offending travelers.
- The District Court granted summary judgment to the NAACP, declared the ban unconstitutional, and enjoined enforcement. The City appealed.
- The Third Circuit (Ambro, J.) affirmed, holding the ban unreasonable under forum analysis because the City failed to meet its burden to justify the restriction with record evidence or permissible commonsense inferences.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Airport advertising space is a limited/nonpublic forum and what standard applies | NAACP: Forum analysis required; restriction must be reasonable and viewpoint neutral | City: Forum label immaterial; its justifications need only be rational | Court assumed limited/nonpublic forum; applied reasonableness standard but noted outcome would be same regardless of label |
| Who bears the burden to justify a content-based restriction in a nonpublic/limited forum | NAACP: City must justify the restriction because it limits speech | City: Burden should be like rational-basis (challenger bears burden) | Court: City bears burden to show reasonableness (Playboy rule applies), though burden is lighter than strict scrutiny |
| Whether the City’s justifications (revenue maximization and avoiding controversy) make the ban reasonable | NAACP: No record evidence ties the ban to these goals; Tyrrell’s testimony undermines the justifications | City: Banning noncommercial ads reasonably furthers revenue and reduces offense; commonsense supports this | Held: City failed to show either by record evidence or permissible commonsense inferences; ban is unreasonable and violates the First Amendment |
| Whether allowing City noncommercial speech but banning private noncommercial speech creates viewpoint or government-speech issues | NAACP: Exception suggests viewpoint discrimination; ban targets noncommercial viewpoints | City: Government-speech doctrine permits City to display its own noncommercial messages; restriction remains viewpoint neutral | Court: Did not resolve viewpoint question because unreasonableness alone invalidated the policy; noted viewpoint concern may be closer and the City conceded possible improper motive |
Key Cases Cited
- Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (forum categories and strict scrutiny for traditional/designated forums)
- Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (reasonableness test for limited/nonpublic forums; assess purpose of forum and surrounding circumstances)
- Int’l Soc. for Krishna Consciousness v. Lee, 505 U.S. 672 (O’Connor concurrence: need some explanation in record or commonsense why speech is inconsistent with forum’s use)
- United States v. Kokinda, 497 U.S. 720 (commonsense inferences can support reasonableness in nonpublic forum review)
- Lehman v. City of Shaker Heights, 418 U.S. 298 (plurality upholding ban on political/issue ads on transit as reasonable)
- Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (scrutiny of subjective, controversy-avoidance justifications)
- United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (government bears burden when restricting speech)
- Greer v. Spock, 424 U.S. 828 (government may preserve property for its dedicated use)