Atlanta Journal & Constitution v. City of Atlanta Department of Aviation

Gilley, Siegert v. 111 New York Times Company, The d.b.a. 1794, (1991) 114 L.Ed.2d 277 Times, S.Ct. New York Intervenor- added). words, In other Plaintiff, Appellee, (emphasis directly deleterious effects flow v. reputation, such a sullied as the adverse impact job prospects, normally are in- The CITY ATLANTA DEPART- OF Bane, sufficient. Valmonte v. 18 F.3d AVIATION, Benjamin MENT OF R. (2d Cir.1994). Plaintiff must show DeCosta, capacity in his official as “deprived the defendants’s conduct Manager, City Aviation General At- of a previously recognized property of [him] lanta, Diaz, Mario in his official ca- liberty interest addition damaging pacity Deputy as Aviation General plaintiffs reputation.” Cypress Ins. Manager, City Atlanta, Shirley Co., 144 F.3d at 1436-37. Smith here has Franklin, capacity in her official failed to do so. Since Smith has failed to Mayor, City Atlanta, Defendants- allege the violation of a constitutional Appellants. Gallman, Shadwrick, right, defendants qualified

Mintz are entitled to immunity on Constitution, Atlanta Journal USA process due Smith’s claim.16 Today, Plaintiffs-Appellees, IV. Company, New York Times d.b.a. The Times, New York Intervenor- reasons, For the foregoing the decision Plaintiff, Appellee, denying district court the defen- dants qualified immunity is reversed.

REVERSED. of Atlanta of Avia

tion, Benjamin DeCosta, R. in his offi capacity cial as Aviation General Manager, City Atlanta, Diaz, Mario capacity in his official as Aviation Deputy Manager, City General of At lanta, Shirley Franklin, in her official capacity Mayor, City Atlanta, ATLANTA AND JOURNAL Defendants-Appellants. CONSTITU

TION, Today, USA a division of Gan

nett Satellite Today, Information Network USA a division of Gannett Sat (“GANSAT”), Inc., Plaintiffs-Appel (“GAN ellite Information Network lees, SAT”), Inc., Plaintiff-Appellee, Narcotics, Federal Bureau plaintiff 16. Because the has failed to suffi- (1971), S.Ct. 29 L.Ed.2d 619 the Su- violation, ciently allege a constitutional there preme upheld Court a cause of action for proceed is no step need to to the next damages against federal officers based on vio- determining right if a constitutional was provisions. lations of constitutional A Bivens clearly established. analogous § action against 1983 suits stale and local officers. Company, d.b.a. Times New York Times, Intervenor-

New York

Plaintiff, Appellee, Aviation, of Atlanta DeCosta,

Benjamin official R. his Manag-

capacity as Aviation General Atlanta, Diaz,

er, City his Mario Deputy capacity Aviation

official Atlanta, Manager, City of

General Franklin,

Shirley in her ca- official Atlanta, Mayor, City

pacity De-

fendants-Appellants. 00-14413, and 00-15185.

Nos. 00-15181 Appeals,

United States Court

Eleventh Circuit.

Feb.

GA, Lucan, DC, Washington, Alice Neff Appellees. EDMONDSON, Judge, Before Chief TJOFLAT, ANDERSON, BIRCH, BLACK, CARNES, DUBINA, BARKETT, MARCUS, WILSON and *, Judges.** HILL Circuit BIRCH, Judge: Circuit appeal, gov- In we decide this whether agency, statutorily charged ernment to be acting proprie- and self-sufficient such tary capacity, permitted profit- to assess expressive fees on activities for conscious non-public of facilities in a use distribution forum. district court found that the The of fee in excess of adminis- assessment contrary trative was to the First costs Amendment of the Constitu- United States precedent tion and circuit under Company v. Sentinel Communications (11th Cir.1991). Watts, The 936 F.2d 1189 injunc- permanent court granted district City Depart- of Atlanta against tion alia, inter Aviation, prohibiting, ment of charging newspa- Atlanta from City of per publishers any fee for the use of Boice, R. Tyler, H. Michael W. William Airport’s Atlanta International Hartsfield LLP, Tewes, Stockton, Kilpatrick & Scott the administrative newsracks in excess of Atlanta, GA, Defendants-Appellants. appeal, costs associated with use.1 On Canfield, permanent court’s Richard we affirmed the district Peter Crane Sean Albertson, we vacated our Smith, Dow, injunction.2 Subsequently, Lohnes & James en banc.3 Schroeder, Powell, rehearing Rawls, granted decision and Eric P. Gold- C. LLP, Atlanta, part of our stein, rehearing, After we overrule Murphy, Frazer & * City Judge & Constitution v. Circuit James C. 2. Atlanta Journal Senior United States of Aviation, (11th participate pur- Dep't elected to in this matter 277 F.3d 1322 Hill Atlanta 46(c). II”). § Cir.2002) ("AJC suant to 28 U.S.C. ** Judge M. Hull is States Circuit Frank United recused. Constitution v. 3. Atlanta Journal & Aviation, (11th F.3d 1251 Dep’t Atlanta & Constitution v. 1.Atlanta-Journal Cir.2002). Aviation, F.Supp.2d Dep't Atlanta I”). (N.D.Ga.2000) ("AJC airport, prescribes provi- that a

prior decision and hold costs and statutorily mandated to be self- agency, accountability enforcement of sions and pursuant acting 47107(b)(1) (l). sufficient and §§ same. See and permitted to assess a reasonable charge, is Congress statutory intent of is clear. The newspaper publish- profit-conscious fee to statement, 47101, pro- §in policy found airport’s ers for the use of distribution rates, fees, “airport vides that and Accordingly, the district court’s facilities. charges must be reasonable” and grant summary judgment regard airports be as self-sustaining should provision to the 1996 Plan4 fees and conse- possible under circumstances ex- injunction quent is VACATED and the particular airport at each isting REMANDED. case is fees, rates, establishing new charges, generating revenues from I. BACKGROUND sources, airport opera- all owners and A. Atlanta International Air- Hartsfield tors should not seek to create revenue port surpluses that exceed the amounts to be Hartsfield Atlanta International airport system purposes used for and for (the Atlanta, “Airport”), located Geor- purposes other for which reve- (the gia, City is owned the of Atlanta spent nues be under section “City”). statutory authority, Pursuant to 47107(b)(1) title, including reason- City Department the of Atlanta of Aviation able reserves and other funds to facili- (the “Department”) operates Airport. the tate financing contingencies. and cover 6-3-1, 6-3-20; § City O.C.G.A. of Atlanta 47101(a)(12) (13). Thus, § and on both l-102(c)(9). § Department Charter The is levels, Airport federal and state the is required operate airport pro- to in a the responsibility operate with the to prietary manner and is vested with author- its facility focused on its “bottom line.” ity charge airport to fees for the use of Airport uniquely prof- is situated to space by any “revenue-producing activity.” it from patronage the of the travelers fre- §§ Atlanta City Code 22-62 & 22-82. The quenting yearly its concourses. ba- On City Code also restricts the use of these sis, sixty-three people pass over million constructing, fees to the “cost of paying through Airport. Although the located in maintaining debt service on and operating Airport the City, the is an island of com- airport, together the with the incidental Thus, mercial facilities, activity. given captive the navigation maintaining and the travelers, airport in a market reasonably safe of the harried the Air- condition.” § Id. 22-81. The fees cannot port be used and virtually monop- its vendors have City the general revenues. supply olistic access to items of conve- nience, entertainment, refreshment and Moreover, Airport the receives federal at prices stretching often the ca- outside funding and required, therefore is to the pacity of an otherwise inelastic demand reasonable, extent operate airport curve. Approximately one-half of the Air- self-sufficient manner. 49 U.S.C. 47107(a)(13). law, port’s § revenue generated by concessions The federal with few exceptions, parking. and monopoly position mandates that revenues This also exclusively capital used for or operating extends to vendor or advertiser desir- (hereinafter "Plan”) is, 4. newspapers through The 1996 Plan tion of newsracks alia, City Department inter of Atlanta newspaper publishers. parts The different proposed policy regarding Aviation's the se- the Plan are described detail infra. lection, placement and fees for the distribu- less Airport received Airport facility parison, in the space ing to lease authori- has sole revenue from other gross than 20% of the because to whomever premises ty to lease vending machines. The master conces- Air- example, in 1996 the For chooses. expired September agreement sion between agency, charged an port, through per foot month per square and $62 $111 Airport In and the were advertising space. undertaking physical operational and re- the 1996 structuring preparation for Distribution Netvspaper B. Pre-Plan Airport Olympic Games. The Summer Methods ren- opportunity took this management 1995, the years prior to In the fifteen appear- Airport revamp and ovate conces- party to a master Airport was public available to the ance and services ex- delegated the agreement, which sions A through Airport. coming to and responsibility to market right clusive provide main focus of their efforts was Dobbs, Pascal, Midfield concessions customer-friendly concession selec- a more News, news- Corporation. place” a sense of to the “giv[e] tion and to concessionaire, sub-contracted stand Dep. at 40:4-11. When Airport. Baker newspapers in to sell right the exclusive ex- agreement the master concessions Initially, only newsstands Airport. control over pired, resumed sole con- As of its newspapers.5 sold renovation During newsracks. tract, newsstands were re- Airport News The Atlanta Journal were carry period, most newsracks quired construction Constitution, Today, and The New USA removed, stopped newspapers The Atlanta Jour- Times. In York re- monthly assessment on the paying (“AJC”) attempted to nal-Constitution Airport sought The maining newsracks. Airport, in the place its own newsracks policy and a uniform newsrack to establish publisher, sued Airport and News AJC’s plan appropriating stan- developed the unauthorized Enterprises, over Cox leasing and them to newsracks dard Airport. in the placement of newsracks “Plan”). (the The publishers newspaper agreement with Pursuant to a settlement culmi- years litigation, of spawned Plan six AJC, news- permitted News Airport nating appeal. in this newspapers distribute paper publisher to newsracks, locat- stand-alone eighteen Plan The C. by Airport News so as approved ed as the efforts part through Airport, The reve- from the newsstand not to detract Baker, Manager Deputy General of Steve of paid Airport News a fee nues. AJC “Design developed a Department, newspa- gross revenue 30% plan involving, and concessions Criteria” through newsracks at the Air- pers sold alia, newspapers. inter the distribution of (approximately port, portion theme, explained to underlying The 11%) City by remitted to was “control the publishers, was to newspaper Today USA paid a 20% concessionaire. conces- service appearance of customer gross newsrack sales fee derived R3^47, visual clutter.” In eom- and reduce arrangement. sions under a similar contrast, is a stand- a "newsrack” opinion, etc. In purposes we consider 5. For of this stores, open vending permits the unas- machine that to be attended alone "newsstands” n business hours, pre-determined newspa- during single purchase customer sisted items, newspapers, addition to sell various per any time. sundries, drinks, snacks, magazines, such as ¶5, Underlying inventory these of their Baker Aff. newsracks. Either the general understand- goals stated was Department newspaper or the could termi- statutorily man- ing Airport that the was permit thirty days’ nate the notice. operate in a self-sufficient man- dated to “Requests subject for locations [were] ner, generation profits and therefore availability at request the time of the and Plan. integral was to the Department the desire of the of Aviation present a diversity publications in a components Four of the Plan Rl-1, E, coherent manner.” Ex. News were at issue before the district court. Box Term Sheet. While one of the Plan will command attention, main a general focus of our Fourth and finally, primary issue First, point helpful.6 of each overview per before us is the month rental fee $20 Airport pro determined that it would newspapers to the for the use of City-owned placed uniform newsracks vide each newsrack. The Department submit- strategically throughout partially ted evidence to demonstrate how newspapers. leased to the various Individ figure origi- was determined. The $20 longer permitted ualized racks were no $500; nal newsrack cost half of that Second, Airport. per joint venture by amount was financed Coca-Cola. The (“Coca- Company with The Coca-Cola assigned newsracks were a useful life of 5 Cola”®), these newsracks were outfitted years, Department over which the sought Coca-Cola, advertising. Coca-Cola recoup balance. The useful life $250 in exchange, capi financed one-half of the was determined “to tal outlay for the newsracks. The AJC maintain appearance the level of at the approached had Depart also been airport.” Dep. Baker at 222:14-15. There ment proposition designing with the no empirical was evidence introduced to newsracks, supplying yet it uniform chose reflect the useful life of a newsrack. The not to participate. Ultimately, Coca-Cola fee included an “airport-re- additional newsracks, designed procured fi quired” 7% return on its investment nancing one-half agreed. the cost as compensate R3-47, capital. cost newspapers were informed other Aff., Baker Ex. 7. advertising displays on the newsracks newspaper permit were not D. The Permanent Injunction ted, other single content-identifying than a strip, subject Department approval.7 1996, July On 9 complaint AJC filed a in court, the district claiming that the Plan

Third, the newspapers required were was unconstitutional requesting and in- apply Department permit to the for a junctive place temporary relief and a restraining their in newspapers City-owned (“TRO”). 1996, order newspapers July newsracks. The would remain On 10 the dis- responsible daily for the maintenance and trict court a hearing grant- conducted Indeed, overview, 6. the facts of this case are set forth general in Other than this we are judicial varied preced- detail in the decisions rehearing discussing and will not be ing opinion. this the limited Given issue be- constitutionality advertising of the Coca-Cola us, fore complete we will not embark on a decision, prior panel on the newsracks. Our Instead, exposition history of the of this case. Atlanta Journal and Constitution incorporate we by reference the facts set Aviation, Department Atlanta 277 F.3d 1322 opinions. supra forth in these See notes 1-2. (11th Cir.2002), correctly reviewed the dis- addition, In this case contains contentious grant trict summary judgment court's procedural history, recognize which we but issue, adopt analysis and we its herein. will not address. Today Department’s USA administering filed a similar costs its ed the TRO. 1996, USA and, on 18 November plan; action newsrack Today case was consolidated. On Janu (3)the Department adopt must not Times filed a 1997, The New York ary plan newsrack which vests unbridled court to intervene and the district motion person persons in the or discretion re- May 1997.8 that motion on 29 granted sponsible for 2000, grant- court July the district On (A) selecting publications which and en- summary judgment ed place airport, newsracks at the any joined Department enforcing (B) determining publications whether plan. The district court denied newsrack place which are allowed to newsracks at on the issue as to summary judgment airport may continue to maintain permitted was Department whether the airport. newsracks at the placement of the restrict the number I, AJC F.Supp.2d at 1384. newsracks, it not rule as a finding could of the matter of law on the reasonableness 22 August Department On summary judg- The court granted Plan. appeal. opinion, filed an We our issued First, other three bases. ment on the However, affirming the court. district we advertising found that the court Coca-Cola expressed reservation as to it whether portion plan of the was unconstitutional appropriate Department, would an unreasonable dis- because contained proprietary capacity, in a acting to assess upon speaker identity. tinction based Sec- profit-generating fee excess of admin- ond, provision fees was the court found the II, istrative costs. AJC 277 F.3d at 1329. impermissible Department because the 24 July panel’s On we vacated the costs, of administrative excess opinion and ordered this to be re- case Senti- decision in contrary conduct to our en banc. heard Watts, Company v. nel Communications (11th Cir.1991). Third, also 936 F.2d 1189 II. DISCUSSION Sentinel, relying on the district court ruled Scrutiny A. First Amendment Department’s that the unrestrained discre- deciding publications tion in which were newspapers, no distribution permits for was un- given the newsracks publication newspapers less than the of the bases, Upon constitutional. these the dis- themselves, activity protected by is an permanent injunction trict granted court Lovell v. First Amendment. of Grif prohibiting Ga., fin, at Harts- enacting any plan newsrack (1938). Accordingly, a 82 L.Ed. 949 field Atlanta International (here, City) subject following character- features type on the and content certain limitations istics: may place on this of the restrictions (1) adopt a Department must not activity. plan publishers newsrack which forces City pre Generally speaking, the bearing to use newsracks advertise- making content-based restric cluded from products; ments for other expression protected by the First tions on (2) adopt a must not compel it advances a Amendment unless plan requires newsrack which employs ling interest and the least restric- pay a fee which is not tied to Constitution, No. opinion to the The Atlanta Journal and 8. All record citations in this are (WBH). original 1:96-CV 1738 district court's file for the case filed 1306 public designated that interest. which is not a forum or to advance Sable

tive means Cal., FCC, modified, forum, Inc. v. 492 the standard is public Communications of 2829, 2836, 115, 126, 109 S.Ct. 106 U.S. regulation. more deferential becoming (1989). However, City L.Ed.2d 93 forum, nonpublic then property If the is a expression on non-content may regulate City obligation ‘no constitutional “ha[s] time, place, through “reasonable grounds per any organization let use the se to restrictions,” see, e.g., and manner Clark 48, Id. at 103 S.Ct. at 957 [forum].’” Nonr-Violence, Community Creative Fed’n Teach (quoting Connecticut State 288, 298-99, 3065, 468 104 S.Ct. 3071- U.S. Members, Educ. F.2d ers v. Board 538 (1984), 221 82 L.Ed.2d consistent (2nd Cir.1976)). State, 481 “The no liberties, guaran “[c]ivil the notion private property, less than owner of has Constitution, imply teed the exis preserve power property under its organized society maintaining tence of an lawfully control for the use to which it is liberty which public order without itself dedicated.” United States Postal Serv. v. in would be lost the excesses of unre Ass’ns, Greenburgh Council 453 U.S. Hampshire, strained abuses.” Cox v. New 114, 129-130, 2676, 2685, 101 69 S.Ct. 569, 574, 762, 765, 312 U.S. 61 S.Ct. 85 (1981) (quotation 517 marks and L.Ed.2d (1941). L.Ed. 1049 omitted). prop “[0]n citation This statement law controls erty public that has not made a fo been City speech regulate when the seeks to rum, situated, speech all is equally public pub within a a designated forum or may the state distinctions which re draw forum, places lic as those have come to be special purpose late to the for which the in jurisprud understood First Amendment property Perry, is used.” U.S. Int’l ence.9 See Soc. Krishna Con at 960. S.Ct. sciousness, (“ISKCON"), Inc. v. Lee Therefore, forum, nonpublic 672, 678, 2701, 2705, 112 S.Ct. may properly restrict exercise of (1992). property L.Ed.2d 541 If the is a expression that is inconsistent with the forum, public public designated forum or a use property then content-based restrictions on intended or function of that speech reasonable, highly within that forum are through viewpoint-neutral reg scruti narrowly nized: the restrictions must be ISKCON, ulations. See 505 U.S. at drawn to a compelling serve state interest. is, 112 S.Ct. at 2705. That even content- forum, definition, public Id. “In a all restrictions, based other venues parties right have a constitutional of access subject scrutiny, would be to strict are compelling and the state must demonstrate long they constitutional so are a reason restricting single reasons for access to a able, viewpoint-neutral attempt to ensure speakers, single viewpoint, class of or a facility pur serves its intended single subject.” Perry Educ. Ass’n v. Per pose. “Implicit concept in the the non Ass’n, 37, 55, ry Local Educators’ public right forum is the to make distinc (1983). 74 L.Ed.2d 794 subject tions access on the basis of speaker identity. matter and

When These dis regulate seeks to speech government-owned property impermissible public tinctions 678, forum, ISKCON, public specifi- 9. property Based on 505 U.S. at 112 naled which is cognizable types cally designated by S.Ct. at expressive there are three the State for (1) forum, (3) forum, government property: public activity; nonpublic of the a which is property type "traditionally government-owned property which a .. . all not tradition- (2) public expression”; desig- ally explicitly designated public available for a or as a forum. inescapable question neutral. We find no but are inherent and forum neutral, and, nonpublic regulations viewpoint forum are process limiting therefore, compatible with the intended we focus on their reasonable- activities property.” Perry, 460 U.S. purpose of ness below. 49, 103 at 957. This deferential

at S.Ct. B. Reasonableness a “much more limited review” standard is applicable public desig than that in a newspapers To sell from newsracks at ISKCON, at public nated forum. 505 U.S. Airport, fee, pay vendor must set 679, 112 at 2705. S.Ct. entirely in the Airport discretion of the authorities, for one desig- or more of the case, in question In this the forum placed approved nated newsracks in an Airport, City-owned. is the which is Gov private area of the main terminal. No airports, ernment-owned commercial such installed, may any newsracks be nor Hartsfield, at public are not fora. Id. newsracks be available modified or 680-82, 112 There is no S.Ct. 2706-08. terminals. moved to other areas of the parties from the that the argument by The fee required for use of designated public is a forum under the profit compo- these terminals includes a case, and, according circumstances of this nent; beyond the fee is above ly, employ we will the more deferential recoup amount needed to administrative appropriate regulation standard for of non surrounding costs the installation and public expressive activity. forum maintenance of the newsracks the Air- Plan is restricted Our examination terms, port. In simplest Department, major to two bases that led the district in a indistinguishable private manner panel court and our to declare the scheme business, charges publishers sector first, profit-conscious unconstitutional: pa- rent for privilege selling their newsracks, and, fee for rental of the sec- pers Airport’s through the newsracks. ond, the unrestrained discretion vested City’s We examine the restrictions responsible official for set- given surrounding for reasonableness publica- ting choosing that fee and only circumstances. Restrictions must Though tions could use the newsracks. reasonable; “[they] need be the most Department proffered has numerous only limita reasonable or the reasonable support regulation, reasons to its newsrack ISKCON, one, only tion[s].” we need its interest as a discuss proprietor, (quoting at 2708 United States v. to resolve the first issue before S.Ct. Kokinda, regulations constitutionally us.10 The are (1990) they viewpoint (plurality

valid if are 111 L.Ed.2d 571 reasonable newspapers Depart- purely [profit].” 10. contend that motivated a desire to AJC I, support proffered F.Supp.2d at ment has no evidence to its regulating Air- reasons newsracks at the during Given the issues on which we focus port, banc, and that the offered a rehearing has this en we do not need to variety shifting reasons for that decision myriad examine of alternate rationales Plan, throughout litigation. ultimately The district court because we find that the grant summary judgment Airport's proprietor, declined to interest as a which no held, pretextually justifies on the reasonableness of the De- one claims is its fee, partment's imposition profit-conscious area and we initial decision to restrict the distribution, proffered by and facilities for newsrack find- also find that no interest ing Airport justifies grant Depart- that "the reasons offered its of boundless discre- administering quite susceptible being ment are to attack as tion to the official post-hoc, pretextual justifications for actions the newsrack Plan. 1308 control the line of cases does not the allowed This The contours

opinion)). a Airport operated as instant case. The is pub- by the are not dictated distribution City, as by the self-sufficient business First Amendment preferences; lishers’ by fed required mandated statute expensive the least guarantee does not at here and the Plan issue regulation, eral distribution, free and the is method of its role as a business outgrowth is an that re- scheme an alternative approve to ordinary role as proprietor rather than its publishers, higher in costs sults government regulator. a “Where the scheme is reasonable that such assuming inter proprietor, managing a its acting as 77, Cooper, 336 U.S. Kovacs overall. as a operations, acting nal rather than 448, 454, 88-89, 93 L.Ed. 513 69 S.Ct. or power regulate with the lawmaker Thus, (1949) apply we opinion). (plurality license, subjected to action will not be its to the two standard this reasonableness review to which its actions heightened us, profit-conscious fee issues before subject.” a lawmaker ISK responsi- granted to and the discretion CON, 678, 112 at 2705.11 at S.Ct. ble official. 725, Kokinda, 110 497 U.S. at See also Rest. (citing at 3119 & S.Ct. Cafeteria Fee 1. ProfiWConscious 886, McElroy, 367 Union v. Workers publishers’ of the ar- The central thrust 896, 1743, 1749, L.Ed.2d 1230 S.Ct. ability of the De- concerns gument (1961) what (finding that consideration of profit-conscious fee charge a partment in that case process required due was Airport’s newsracks. A for use of in part turned on whether justified by cannot be profit-conscious fee power propri or a regulator exercised any Airport’s stated reference to etor) and Lehman v. Shaker aesthetics, security, or or concerns about 2714, Heights, 418 U.S. 94 S.Ct. Rather, support profit- traffic flow. (1974) 2717, (plurality opin 41 L.Ed.2d 770 fee, point must conscious ion) that, way “in much (stating the same maintaining to its interest newspaper periodical,” city [as] as a business. ex could enact reasonable restrictions on publishers, fee According to the pression “engaged when in commerce” and activity protected by the charged on an speech when was “a the restriction limited to the First Anendment must be venture”)). However, the commercial recoupment administrative costs associ- Government, acting even when its “[t]he activity; ated with that the fee cannot be enjoy proprietary capacity, does not abso enhancing general government method of lute freedom from First Amendment con advancing argument, business, revenue. In straints, private as does a but its publishers point Supreme line of circumstances un action is valid these very point. unreasonable, or, cases that makes this Court it is as was said less Lehman, Pennsylvania, 319 U.S. See Murdock v. [418 U.S. S.Ct. ” 870, 875-76, 105, 113-14, 2717,] capricious, 87 L.Ed. ‘arbitrary, 63 S.Ct. or invidious.’ Cox, Kokinda, (1943); 312 U.S. at 497 U.S. at 110 S.Ct. at at 766. out, cases, O’Connor, sepa- point apparent through though concurring as is other

11. Justice proprietor rately, agrees join government's as a four Justices who status lawmaker/pro- plurality opinion that this no means allows unfettered restriction of ISKCON, expression. prietor Amendment See 505 U.S. at distinction exists in First However, J., (O'Connor, concurring). jurisprudence. quick she is 112 S.Ct. at 2712

1309 a. Reasonableness of fee do not seem dramatically out of proportion imposed to the flat fee the Plan. proprietor capacity The distinction reasonableness, suggests purposes for The availability of alternative distribu analysis, of forum includes commercial tion methods for the newspapers at the component. proprietary capacity, In a the Airport also weighs favor of finding the has substantial interest in the “bot Plan Perry, constitutional. See at U.S. 460 line,” and, tom when the acts as 53, 103 S.Ct. at 959. The three appellee proprietor, regulations .may reasonable in newspapers all find themselves with guar profit-conscious clude fees for access for channels, anteed distribution because the conduct, expressive in a manner similar to newsstand required vendors are carry fees that would if the forum was papers those in their stores a compo (i.e., private party owned a fee for a nent of their lease with Airport. recital, auditorium for a dance or a fee for guaranteed Newsstands are a substitute displaying newspaper). advertisements market, and, given the landscape of distri Here, reasonable; facially the fee is it bution in the Airport, the complaining appear does not is newspapers in this case in a preferred are applying monopolistic pub- muscle to the sum, position. In “we think it would be lishers. It would if be different the De- odd to conclude that the [Department’s] partment prohibitively high set a fee for regulation terminal despite unreasonable However, use of the newsracks. [Department] having otherwise as charges imposed do not strike us as out- sured access to an area universally trav side the reasonable bounds for this alter- ISKCON, 685, 112 eled.” 505 U.S. at S.Ct. native distribution channel granted to the at 2709. addition, publishers. history In reg- Airport ulation at the availability and the Special b. fee of alternative distribution methods publishers contend that publishers bolsters the Plan’s reasonable- imposition of this rent for the news- ness. special racks creates a imposed fee on the History regulation can guarantor be a press in violation of Minneapolis &Star that current regulations are constitutional- Company Tribune v. Minnesota Commis Kokinda, ly reasonable. See at Revenue, sioner 731, S.Ct. at 3122. The (1983). 1365, 75 L.Ed.2d 295 The First newspapers at the Airport subject were provides press protec Amendment no profit-conscious fees for use of newsracks tion government’s generally applica imposition even before the of the current regulation, prevent ble economic but does Plan, when right newspa- the exclusive treating press in a per distribution in the granted was 581-85, 103 special manner. Id. S.Ct. News, Airport independent an conces- 1369-72. publishers, pursuant sionaire. The to ne- Star, Minneapolis In the State of contracts, gotiated paid 30% of them reve- Minnesota enacted a use tax the mate- nues to the concessionaire in exchange for necessary rials newspaper publication, right place newsracks including paper and ink. Id. at and distribute their A portion wares. comparison S.Ct. at 1368. In gener- that fee was Department. remitted to the state, There al taxation scheme partic- is no indication that these historical to, possessed fees were in way by, tied or limited ular use tax unique qual- several first, administrative costs. These historical fees complement ities: did not the sales unduly tax” is formalistic. do, ap- “special fee a but rather taxes tax, use most Depart- True, by in- the products bought the contracts made those plied even second, tax; and, a differ- subject publishers to sales involve and ment with the state imposed goods on only use tax it was the fee due than computing method of ent made into retail eventually be that would Airport vendors. the contracts with other is, tax on “an only use products, that Moreover, of the fee is not the amount 581-82, Id. at transaction.” intermediate to the mathematical scale linked some at 1370. 103 S.Ct. Air- in the imposed on other vendors fees fee, characteristics, However, like that this is not a port. unique of these Because Star, tax was the use that has no Minneapolis found Court involved tax in the State’s parallel “without general regula- in the scheme of analogue scheme,” press “single[s] out and Airport a tion. All vendors remit to 582, 103 S.Ct. at Id. at special treatment.” portion of space they lease or a fee for the tax that unique targeted, It was this 1370. sell, they or a com- profits goods from the the constitu- particularized presented and of these fees bination of the two. None at Id. at 103 S.Ct. problem. tional limited to imposed on other vendors is treatment, unless “Differential 1371-72.12 recovery Airport’s of the administrative characteristic of special justified some not an The newsrack Plan is aber- costs. of the suggests goal press, regula- scheme of vendor ration within this suppression not unrelated to regulation is tion. goal presump- a expression, and such 585, 103 tively unconstitutional.” Id. at 2. Unrestrained Discretion pass the tax to In order for S.Ct. 1372. A discre grant of unrestrained government scrutiny, constitutional responsible for monitor tion to an official “compelling an interest of proffer must Amendment activ ing regulating First an interest that cannot importance,” and facially unconstitutional. See ities is suspicious way, to in a less be satisfied Co., Publ’g Plain Dealer Lakewood v. dangers these of differen- counterbalance 750, 755-56, 108 S.Ct. Id. tial treatment. (1988) that the (stating 100 L.Ed.2d 771 Department imposed by The fees Supreme long held that when “ha[s] Court a tax on the publishers special are not licensing allegedly a statute vests unbri line of press, Minneapolis and the Star discretion in a official dled Instead, application cases has no here. permit deny expressive whether to over general scheme these fees are activity, subject one who is to the law “tax” those vendors who necessity challenge facially without the Every granted space facility. are in the denied, for, being applying of first sold, vendor, type goods no matter the omitted)). (footnote license” and citations Airport compensation must remit to the Here, we believe that the district court to the Air- granted right of access panel correctly the newsrack our identified bound- port’s Calling customers. weakened, and the threat of burdensome Minneapolis 12. As the Star Court stated: oper- acute. threat can taxes becomes That differentially, opposed power A tax effectively ate as as a censor to check criti- govern- power generally, gives a to tax undercutting press, cal comment powerful weapon against the tax- ment a system assumption political basic of our singles payer State selected.... When the impor- press that the will often serve as an press political constraints out the ... government. passing crip- tant restraint on prevent legislature pling general applicability are 460 U.S. at taxes of

13H granted less discretion to the constrained some form in her exercise of responsible for administering official discretion. Plan exceeding newsrack the bounds of Therefore, though we find that the De- constitutionality. Depart- None of the partment could impose profit-conscious proffered regulation, ment’s reasons for fee on who wished to distribute including proprietor, its interest as can newspapers newsracks, through we also

justify grant of discretion. find that the manner which Depart- ment is able to exercise prerogative forces, paribus, ceteris market While runs afoul of the Constitution’s concern might charged pub- constrain the fees over unbridled official discretion in the levels, to City, lishers reasonable even Thus, First Amendment arena. we rein- proprietor, a acting power retains its state re-adopt the following portion of power by censor. Such must be cabined panel opinion: some standard of First Amendment rea- department’s plan [T]he sonableness over above the invisible contains no ex- plicit limits airport personnel’s on marketplace. power hand of the Structural and to cancel news rack procedural safeguards can licenses. On its pos- reduce the face, plan permits sibility that an power official will use her publisher’s cancel a corrupt license for protections of the First whatsoever, reason including unconstitu- charged Amendment. The official ad- tional viewpoint reasons such as ministering the Plan should discrim- have clear ination. Such unbridled discretion accept reject standards which to vests or a broad power government censorial publisher’s request to use the newsracks at first-come, per- this the Constitution Airport. Perhaps does not first- mit. system, lottery system, served sys- or a in which publisher

tem each is limited to a AJC II, 277 F.3d at 1329. percentage of available newsracks would Profile-Making Fees on First Amend- C. appropriate be limiting for vehicles ment Expression official’s.discretion. . We leave the intrica- Watts, cies of the safeguards In Sentinel Communications v. Department, to the (11th knowledge practicalities, Cir.1990), whose of the in- 936 F.2d 1189 we held that demand, cluding ap- can prohibited consumer be Florida was charging pub- plied.13 The charge official in per paper must be lishers five cents sold at news- Therefore, may 13. The espouse unpopular viewpoints. official be with consider- forces, demand, ing market such as consumer making the effect of decisions based on con- decisions, making keeping his with the may deny unpopular sumer demand be to all coexisting generating interest of the viewpoints Airport's from the newsracks. Es- profit. These decisions as business are pecially given that the newsrack fees in this permissible; regulations exist to constrain is, publishers pay case are a flat fee —that temptation discriminating among publi- newsrack, per a set fee month for rental of the viewpoint grounds, tempta- cations on not the percentage gross receipts rather than a discriminating against publications tion of papers through from sale of their the news- they likely grant based on whether are permit racks —the denial of a for business- greater Airport. return on investment to the greater related reasons harbors a risk that censorship decision is but a mask for of un- permit The line between denial of a reasons, popular viewpoints in contravention of the business-related such as consumer demand, reasons, may First Amendment. This risk ad- and for be unconstitutional viewpoint, admittedly regulations concerning such as blurry. is Con- dressed future may papers sumer demand Airport. low for at the newsracks possibility viewpoint nate the discrim- placed highway at state-run rest racks court, Therefore, ination. we VACATE stops. According to the Sentinel injunction with this fee arose from its entered the district court problem injunction pro- revenue-raising character: to the extent that such imposition profit-con- of a hibited the licensing well established that a [I]t of newsracks at scious fee use permissible, but a state or munici- fee is portion Airport, and we retain than the pality may charge no more injunction prohibited the ad- amount needed to cover administrative any plan ministration of that did not profit costs. The explicitly constrain official discretion. permit by imposing licensing fees rights, We REMAND this case to district the exercise of first amendment prohibited raising revenue with instructions to afford the De- and is court an formulate guise defraying partment opportunity in the its administra- non-diseriminatory tive costs. ascertainable stan- dards for the exercise of discretion (citations omitted). Id. at 1205 Department appropriate official. government acting a facial While remand, Upon the district court should ly impliedly capacity regulator or in its precluded considering not be from profit from or licensor cannot the exercise claim, City’s any, if revenues for lost rights, of Amendment it is not the First enjoined fees that we have deter- universally, pro is government, law that constitutionally permissible, mined were imposing profit-making hibited from or and, upon approval Airport’s of the new revenue-raising fees on First Amendment Plan, newsrack this case should be fi- expression. govern We hold that when a nally resolved. proprietary capacity, ment in a acts is, in functionally indistinguishable a role TJOFLAT, Judge, concurring: Circuit business, private commercially from a then fully Judge opinion I concur in Birch’s reasonable, profit-conscious contracts for the I also concur in Judge court. space in a negotiated for distribution that, remand, in Carnes’s view on accor- non-public forum for First Amendment ac Supreme dance with long standing Court tivities, subject protections to structural precedent, should be made whole possibility that reduce or eliminate the of enjoined for the fees it was from collecting. viewpoint discrimination.14 ANDERSON, Judge, Circuit III. CONCLUSION concurring: discussion, the foregoing Based on we I Believing opinion as do that the impose find that can respect profit-conscious court to unbridled discretion fee on the use of news- applies only not Airport, accepting rejecting racks in the but or the dis- potential publisher’s request cretion to rent a surrounding such fee must be thereof, through procedures restrained or in- news rack and the cancellation but designed structions to reduce or elimi- also the determination of the amount of Phoenix, (9th (hold- Cir.1998) 14. We note that at least two other circuits are 154 F.3d 972 of City Rapid City, in accord. See Jacobsen v. ing city properly could exclude anti-abor- S.D., 660, (8th Cir.1997); 128 F.3d 664 n. 2 group advertising municipal tion bus- Network, Gannett Satellite Inc. v. Metro es, advertising purpose Info. was sold for the Auth., 767, (2d politan Transp. 745 F.2d revenue). raising municipal Cir.1984); Rosary City Children cf. rent I charged, join concur (1943), 87 L.Ed. 1292 upon relied opinion. distinction as to particular “whether a ac- tivity religious is purely commercial” id.

I also note that in determining the rent, course, 63 S.Ct. at 874. amount Of a rental charge based Murdock line of applied on the same cases is the formula to the rental source of the space purposes concept for other that a state may impose would a generally applicable constitute charge for the enjoyment of a right grant- rent, foreclose a virtually First ed the federal constitution where the challenge upon Amendment based fee is not calculated to defray expense amount of the rent. Minneapolis See Star of administering the regulatory scheme. & Tribune v.Co. Minnesota Commission- Because Murdock itself suggests that the Revenue, er 460 might rule be otherwise in the context of (1983). 75 L.Ed.2d My under- licensing a commercial activity, I believe standing of the challenged charge rental in that the distinction is appropriate here. this case is that it is substantially similar Moreover, common suggests sense that the as that charged space amount for rental Department should be to charge able purposes. for other Although the opinion reasonable rent for the exclusive use of for the court notes that the instant rent is space limited airport, a rent sub- not calculated on the basis the same stantially similar to that charged for the formula, mathematical it nevertheless is rental of space. other Finally, possi- similar, substantially “not an aber- bility suppression or censorship which ration within this regula- scheme of vendor the in concerned Court signifi- Murdock is Opinion tion.” of the court at 1310. cantly diluted here because the instant Moreover, opinion the for the court exam- charge rental considerably is more indirect extensively ines the reasonableness of the with respect impact upon to its speech, as amount of the instant rent and concludes compared to the fees in Murdock reasonable, that it inis fact and does for the privilege of canvassing. appear to be “applying monopolistic mus- publishers.” cle to the Opinion at 1309.

I CARNES, acknowledge Judge, some reluctance Circuit concurring, with re in spect placing upon DUBINA, undue reliance the which Judge, joins: Circuit distinction between proprietorship capac a I concur in all that the in Court has said ity a governmental and function. In dif case, this including the understatement contexts, ferent Supreme Court has the last opinion sentence of its that on rejected the proprietary govern versus remand “the district court should not be mental function distinction. See Garcia precluded from considering City’s San Metropolitan Antonio Transit Au claim, if any, for lost revenues from en- thority, 528, 1005, 469 U.S. 105 S.Ct. joined fees that we have determined were (1985) (in L.Ed.2d 1016 the context of the constitutionally permissible.” That an is immunity aof from regula state federal City understatement because the lost sub- pursuant tion to the Interstate Commerce stantial during Clause); years revenue six it was New York States, v. United prevented 572, wrongfully (1946) collecting from con- 66 S.Ct. 90 L.Ed. 326 (in stitutionally permissible the context of fees from state these immunity from taxation). However, publisher federal plaintiffs, Supreme legally and it has a and Court itself equitably Murdock v. compelling for recovery Commonwealth claim Pennsylvania, 63 S.Ct. those plaintiffs. fees from the 976 F.2d Agric., Dep’t and on v. United States plaintiffs of these urging theAt Cir.1992) (4th (recognizing enjoined the 1482-83 court behalf, the district their of the airport newsrack rule on behalf adopting an applying from City pay a fee required plan that government). administering City’s cost of exceeding the to be party ought principle that The judges on this of eleven plan. Eleven that which to another pay back required this case have participated Court who failed to wrongly obtained wrongly it injunction part of now determined of an erroneous through the device pay As entered. have been never should a radical notion. is not judgment court injunction, for result of that Instead, has ob Supreme Court permitted not been City has years the appli served, case for the typical is a “[i]t has unani- this Court collect fee Ar of restitution.” principle cation of the and con- is reasonable mously determined kadelphia, 249 U.S. have con- We stitutionally permissible. prin not, application Typical or never have City should cluded that Judge case is one with ciple collecting that fee prevented been position is mistak disagrees. Her Barkett plaintiffs. these parts of it separate conflates en because will be what on remand question the different disregards injunction should have revenue do about the judgment our them. effects of plain- from these permitted to collect been Bark- opinion, Judge concurring In her litigation, of this years over the tiffs no entitle- “the can have says that ett but erroneous

would have collected during might it have ment to collected fees plaintiffs pro- injunction part of litigation because of this pendency The Su- answer is clear. cured. The scheme licensing recognized and made a has never formulated has preme Court principle, long “the offi- suitably law constrain part of federal that would application, that general and of premise established An essential cials’ discretion.” judg- an whom erroneous party against demonstrably wrong. syllogism into effect or has been carried ment decree licensing premise is without reversal, entitled, of to the event is discretion, constrains official scheme which adversary that which by his to he restored charge any fee for use City not the could Milling thereby.” Arkadelphia has lost it airport. at the Of course property of its Co., Ry. 249 S.W. Co. v. St. Louis commercial fee is for could. The (1919); 237, 242, 63 L.Ed. 39 S.Ct. air- space at the property use —valuable Brock, Fuel Co. accord N.W. on offi- port suitable constraints for —not 523, 525, L.Ed. 151 cial discretion. (1891) (“The same is sustained in doctrine nothing is way. at There Look it country, all state courts of the the several City from prevent the Constitution court, of a power whose recognizing airport for the use of throwing open its motion or set aside its own judgment is put wish to newsracks any publishers who tribunal, appellate of an reversed order fee them a reasonable charging there and restitution, practicable, so to direct far they property as airport much of the for as have been rights property of all Likewise, once the district choose use. judgment.”); Texaco lost the erroneous effect, open City, enjoined court P.R., Affairs, 60 Dep’t Inc. v. Consumer publishers, nothing property to these its (1st Cir.1995) (referring F.3d City from prevented the the Constitution Arkadelphia from as a quoted the rule is that we determined charging a fee have Human Res. “hoary Dep’t Md. adage”); and constitutionally permissi- reasonable right tional to publish does not include a Indeed, that ble. is the bottom line of our privilege occupy property of another decision.1 at no cost. That is publishers what these have been doing getting something for — part We have left intact the of the in- nothing. They have had their hand in the junction preventing City from exercis- City’s pocket years, for six and now they ing unbridled discretion in deciding which owe restitution. space can lease for newsracks airport, but we remand, have vacated that On the district court has no part injunction prohibiting City choice aspect about this of the case. It collecting the reasonable fee for use cannot reinstate part injunction space, of that which would have been we vacated. It prevent cannot the City collecting along all had plaintiffs from collecting the fees that we have de- convinced the district court erroneously to termined are reasonable and constitution- exempt them from it. decision is that ally permissible. Our It pretend cannot excluding publishers from the commercial was not entitled to collect those of airport space use upon based the exer- fees from plaintiffs during the entire cise of unbridled permit- is not discretion period this case has in litigation. been It ted; collecting a reasonable fee from who- fail cannot to recognize the City’s right to airport ever uses property, regardless of restitution from the plaintiffs for the loss whether there is a place valid scheme in caused part injunction that is limiting the use property, of that now vacated. permitted. This is complicated not a matter. For plaintiff publishers

These have years years publisher plaintiffs six these and the space airport used at the for commercial corporate multi-billion dollar conglomer- purposes without paying the constitutional- ates which they are a have been ly permissible fee that City attempted getting public’s free ride on the back. It to collect from Everyone them. else who is time for pay up. them to They owe the space used has at the commercially City an amount equal to the total of all the paid has for it. So they, should the Court fees would have collected has concluded today, because the constitu- years over but for the wrongful part of argument Judge 1. The nothing Barkett makes in the to do with the collection of non- opinion footnote of her is war with the en discriminatory fees restitution for joined. banc Court’s decision which she has damages wrongful suffered injunction. polite theory Her cannot survive the rude fact expressed Judge The view opin- in Barkett's we agreed that all have the district court ion is that businesses which money by make have injunction pre- should never entered the selling newspapers are entitled to better treat- venting City the collecting the fee. That ment than those that sell food and drink. In why we have is vacated that of the in- some perhaps, contexts and circumstances junction. Any aspects plan other of the that but not paying when it to comes for lease are unconstitutional have could been and still space. The First Amendment does not entitle may enjoined, be but the fee collection cannot publishers to a price discount on the of lease and never should enjoined. been have space for anymore their Court, newsracks than it holding is That the of the en banc and entitles them to a price discount on brings it this case on remand within the con- electricity trolling presses. used authority to their Arkadelphia run When and related publishers go opinion. marketplace cited into decisions in this It is notewor- com- thy only enterprises seeking that mercial Judge profit, decision to make a Barkett’s cites, opinion they pay ordinary Lakewood must v. Plain Dealer Pub- and usual costs of Co., lishing 755-56, business, doing 486 U.S. just any 108 S.Ct. other businesses 2138, 2142-43, (1988), 100 771 L.Ed.2d has must. regulating in fees profit-conscious lect the district they persuaded injunction nonpublic in activities First Amendment Balti- See Plus interest. to court enter. forums, International that Hartsfield States, and v.Co. United more & O.R. nonetheless scheme regulatory Airport’s L.Ed. 954 vesting Amendment the First violated (1929); Arkadelphia, licensing officials. in discretion unbridled Arkadelp- days 242. In the S.Ct. any is However, believe there I do not expect to decision, it was too much hia com- majority’s gratuitous for the basis the barons of circumstances in similar not, should district court ment would the railroads who ran big business consid- remand, precluded “be upon a court order. without they what owed pay claim, rev- any, if for lost City’s ering particular hope that these would One have enjoined fees that we pa- enues from whose powerful plaintiffs, constitutionally permissi- were determined duty and principles public pers preach majority’s Notwithstanding le- ble.” virtue, their own recognize might civic entitle- City can have no equivocation, in- duty in this and civic gal, equitable, dur- collected might to fees it have ment USA If not—and statements stance. litigation because pendency of this ing the argument oral indicate attorney at Today’s licensing them it has formulated court force to never must not—the district air- suitably constrain the robber would forced scheme that just as courts pay up, airport they owed. discretion. If pay port what officials’ of old to barons for the profit-conscious fees to collect BARKETT, specially Judge, Circuit to newsracks, first return it must lease of concurring: li- a new and board devise drawing vest unre- censing plan that does majority’s conclusions in the I concur Only any official.1 discretion col- strained may sometimes regulate Judge of unbridled discretion existence expressed the view I believe simply applica- special activity, its expressive and not to take into account Carnes fails many against particular speaker, any our Constitution solicitude which tion to ex- shown for jurisprudence protects. have decades of Since the First Amendment wrong to state that pression. seems to me City proposed It to collect plan under which the officials, officials Hartsfield International discretion fees vested unbridled from whomever a reasonable fee "collect!] authority always been without has regardless of whether airport property, uses any part it. enforce limiting place is a scheme there valid hypothetical regulation envisioned majority property,” the use of that concurrence, whereby the Judge Carnes in his certainly officials grant does not this case might open its "throw[] might rule well permission. While this such put news- any publishers who wish use of respect airport’s authority state the charg[e] a reasonable them racks there drinks, bars soft vendors of ice cream they airport property as fee for as much with the First Amendment’s does not accord use,” away simply the ba- choose to assumes expressive ac- regulation of on the limitations today’s rests. Were decision sis on which Supreme has held that tivity. The Court any publisher who licenses available allegedly licensing vests un- statute "when Hartsfield, we place a newsrack wished to in a official bridled discretion plan ground uncon- no to find the would have deny expressive permit or over whether a result of unbridled stitutional as officials' may subject to the law activity, who is one long we of the circum- So treat discretion. necessity facially challenge without the it us, however, we actually before stances denied, for, being li- applying first consisting plan of two not consider Dealer Pub- v. Plain cense.” Lakewood vesting components, unbridled 750, 755-56, separate one Co., lishing (unconstitutional) and (1988). officials discretion in Facial chal- L.Ed.2d 771 allowing of rea- very the other collection permitted it is the lenges are because plan if improperly such thereafter en-

joined might city establish an entitle-

ment to recover lost revenues. Because majority opinion does not reach conclusion,

contrary I concur.

Stephen RICHEY, W. Plaintiff-

Appellee, STATES,

UNITED Defendant-

Appellant.

No. 02-5058.

United Appeals, States Court of

Federal Circuit.

DECIDED: March (constitutional). Accordingly, sonable fees regulation simultaneously provided has no recoup imposition entitlement fees it suitably reasonable fees and chosen, might have collected had instead of constrained officials' discretion. court, fighting newspapers in the district by Judge line of cases cited Carnes regarding Court, panel litigant’s before and then right before made whole after a banc, this Court en wrongful to devise a scheme of injunction wholly inapposite.

Case Details

Case Name: Atlanta Journal & Constitution v. City of Atlanta Department of Aviation

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Feb 28, 2003

Citation: 322 F.3d 1298

Docket Number: 00-14413, 00-15181 and 00-15185

Court Abbreviation: 11th Cir.