Harlan L. Jacobsen v. City of Rapid City, South Dakota William Bacon, Airport Administrator
128 F.3d 660
8th Cir.
1997
Check Treatment

*2 LOKEN, GIBSON, Before JOHN R. and HANSEN, Judges. Circuit LOKEN, Judge. Circuit Dakota, City Rapid City, South (collec- Airport Administrator William Bacon tively, City”) appeal “the a district court permanently enjoining order them from ban- ning newspaper Harlan L. Jacobsen’s vend- machines, newsraeks, ing from the City Regional Airport terminal. The argues policy regarding that its newsraeks reasonable and therefore does not violate rights. Al- Jacobsen’s First Amendment though we find most of the reasons for unpersuasive, we con- newsraeks support clude the record does not an injunction against revenue-raising aspect Therefore, policy. of its we reverse. speech because on ally reasonable restriction Airport opened a new prove its asserted con- failed to upper level a- secure has. efficiency, safety, exiting air- se- boarding operational area for interests course aesthetics, justified the that includes preconcourse curity, area planes, and restaurant, enjoined rest lounge, public permanently shop, The court ban. areas, telephones. The lower lev- enforcing [Jacob- a total ban City “from *3 air- City service areas for Air- customer the el contains newsracks from sen’s] cars, limousines, and the lines, and rental review the City appeals. We port.” The policy claim area. novo. See baggage constitutionality of its de Union, Inc., 466 Corp. v. Bose Consumers through revenues Airport generates The 1963-64, 1949, 485, 508-09, 104 80 S.Ct. U.S. fees, fees, com- parking lot rental car landing (1984). revenues, charges to rents and pany who wishes to tenants. One other terminal I. activity for commercial space terminal use City’s Regional protects approved by the must be The First Amendment pro into a written lease. of Airport publication Board and enter and distribution both material, § Laws 50-7-3. if the method of distri See S.D. Codified tected even See, e.g., property. public involves bution RFD, monthly publishes Solo Jacobsen Network, Discovery v. City Cincinnati of to services and advice newspaper providing 1505, Inc., 410, 430-31, 113 507 U.S. S.Ct. prefers He to distribute Solo single people. (1993) 1516-17, (invalidating 123 L.Ed.2d 99 There was a Solo through RFD newsracks. public property). The on newsracks on ban prior at the termi- Airport’s RFD newsrack may government constitu extent to which the new years. or three nal for two .After expression pub on tionally protected restrict placed a newsrack opened, Jacobsen terminal depends upon whether that property lic the terminal without seek- public in a area of forum, a property public a traditional des is Eight or nine City’s permission. ing the forum, nonpublic public or a forum. ignated later, Bacon removed the newsrack months recognized, public the district court As Ja- nonpublic conference room. When to a nonpublic forum for airport that it was complained, Bacon advised cobsen purposes. See Interna First Amendment newspapers Airport policy that be sold Consciousness, Soc’y Inc. Krishna tional for shop things “if were through gift because 680, 2701, Lee, 672, 112 S.Ct. v. 505 U.S. airport have to sold in the there would to be (1992). 2706, Accordingly, 120 L.Ed.2d 541 sug- generated.” Bacon be some only City’s policy “need be newsrack if to sell his gested that Jacobsen wished reasonable, long as is not an effort to [it] Airport at the he should contact newspapers activity to dis suppress speaker’s due shop. instead filed this gift at agreement speaker’s with the view.” Id. lawsuit, alleging Airport is a 679,112 S.Ct. at 2705. vio- forum and therefore newsracks rights, his First Amendment lates reasonableness of the Govern “The trial, nonpublic to a one-day restriction of access of the there were ment’s At the time light in the new forum must be assessed other commercial newsracks no surrounding purpose of the forum and all the City denied two other terminal. The had Legal v. NAACP permission newsracks in circumstances.” Cornelius newspapers place to Fund, Inc., 788, One, Today, & Educ. 473 U.S. then distrib- the terminal. USA Defense 809, 3439, 3452, 567 shop: Rapid City 105 S.Ct. 87 L.Ed.2d through uted (1985). City contends that its interests granted had been Chamber Commerce maintenance, safety, security, oper permission place a newsrack the termi- aesthetics, Disagreeing efficiency, ational and revenue nal free literature. to distribute Jacobsen, justify policy regarding its commercial news- court held that the district As the court racks in the terminal. district nonpublic is a forum. noted, in legitimate governmental on these are concluded that the ban the court City may promote through was not a constitution- terests commercial newsracks Community v. v. Soc’y means. See Clark See Lee International reasonable Krishna for Non-Violence, 288, Consciousness, Inc., U.S. Creative 505 U.S. for 3065, 3070-71, 2709, 2710, (1992) (se- 82 L.Ed.2d S.Ct. L.Ed.2d (1984) (maintenance public safety); congestion vere York airports New Taxpayers Members Council justify did not a total ban on leafleting). Vincent, 789, 805-07, 466 U.S. 104 S.Ct. for — City opined that newsraeks (1984) (aesth 2118, 2128-29, 80 L.Ed.2d decor, detract from but the district etics); Soc’y v. International Heffron appearance court found of Jacob- Consciousness, Inc., Krishna incompatible. sen’s newsraek was not Air 2559, 2565, 69 L.Ed.2d 298 101 S.Ct. port may regulated decor be but would rare (1981) (public safety); Jamison v. St. ly justify if ever protected total ban on (8th Cir.1987) Louis, First activity. Amendment (security operational efficiency), cert. de *4 nied, Looking broadly, at the issue more there is (1988); Satellite Gannett simply placing Info. no evidence that Jacobsen’s Network, Auth., Metropolitan Transp. Inc. v. public portions newsraeks in of the terminal (2d Cir.1984) (revenue). will Airport’s interfere with the principal in- exception with the of its revenue use, tended to facilitate air travel. More- rationale, II, which we will discuss in Part we over, City recognized by as the leasing termi- agree with the district court that the evi space gift shop, restaurant, nal to a and City’s pur dence does not substantiate the lounge, a certain amount of commercial retail ported for reasons commercial news- activity is consistent with the intended uses Airport in racks the terminal: terminal, airport of an making newspa- and — pers reasonably City’s available to air The contention that newsraeks travelers is a Lee, compatible activity. Airport commercial sup- interfere with maintenance was See (O’Con- ported only by hearsay testimony U.S. at vague S.Ct. at 2712-13 nor, J., complaints by Airport cleaning concurring); Publishing, crews. Multimedia F.2d 163. Newsraeks are common in — City’s The concern that are newsraeks terminals, operated and Jacobsen has top heavy supported by unstable or was not in Rapid City both newsraek terminals injury evidence of from Jacobsen’s news- without incident. safety Design racks. concerns should be ad- “time, through place, dressed and manner”

restrictions, not a total ban. II. — Airport security, As to the wit- During period the in the question, speculated nesses that newsraeks could be City gift shop had the concessionaire granted to used conceal bomb. district court right to sell exclusive various consumer pre- concluded that this rationale was mere terminal, products including in the new many text because the terminal has other “books, magazines, newspapers.” Un [and] hidden, places where a bomb could be such five-year der Lease and Concession holders, plant as waste containers if and and paid Agreement, City the concessionaire anything, glass door on the front of a per square a fixed annual base rent of $5.25 place newsraek makes it a less suitable to space, plus great foot for leased terminal Publ’g hide a bomb. See Multimedia Co. v. er of a minimum annual fee or concession Dist., Greenville-Spartanburg Airport 991 eight percent shop’s gross gift reve (4th Cir.1993) (labeling F.2d this nues, plus shop’s gift pro rata share of security specious). concern about newsraeks Airport utility energy If the costs. — in claimed that newsraeks allow Jacobsen other to must vendors negatively protected the terminal will affect sell First Amendment in materials that, operations, shop, gift but the district court found newsraeks outside the the conces areas, revenues, high-traffic making even in the newsraeks are sionaire will lose its exclu sufficiently pedestrian removed from traffic sive contract less valuable. That in turn will obstructing impeding City’s leverage bargaining to avoid travelers. reduce the in for shop geographi one seller serves a concession as minimum annual terms such —where present cally captive market. Nor did he utility charges. pro rata See Gan- fees and Network, through gift comparing Solo RFD sales Berger, Inc. v. data nett Satellite Info. compara (D.N.J.1989), shops in locations rev’d versus newsracks F.Supp. 151-52 (3d Rapid City Airport terminal. The ble to the grounds, 894 F.2d 61 part on other Cir.1990). shop testified that he was gift concessionaire City argues that this revenue gift shop, willing to sell RFD policy regarding com- Solo justifies its interest per open of the sixteen hours which is fifteen in the terminal. mercial newsracks public. day open to the complex. real and This revenue issue is record, finding court’s On this the district pre proprietary perspective, it is From a shop “viable alternative gift is not a manager of a sumptively reasonable for newspa for the sale Jacobsen’s ] channelf airport’to granting one small conclude unsupported by pers” was speculation, right to shop the exclusive concessionaire evidence, court’s primarily based on the terminal will products consumer sell to mistaken view that the is not entitled type leasing revenues both maximize that newspaper “profit” from sales.2 by eliminating the leasing minimize costs types negotiate many different need to tried this case on the any frequent As air traveler of vendors. Rapid City Airport premise that the knows, large airports typically make a differ he therefore had an is a forum and decision, diversity. opting retailing ent right free absolute First Amendment use *5 by air better made But these are decisions the terminal for his newsracks. This was Thus, managers judges. than federal port nonpublie a faulty premise. a is cost, decision-making at in there is a least forum, legitimate a has deciding in that First Amend autonomy, the- operating Airport. in Restric interest enforcing from its precludes ment furthering that interest must be reason tions by gift shop re exclusive contract with the need not be the most reasonable able but fusing to allow commercial newsracks Kokinda, v. restrictions. See United States terminal.1 730, 3115, 3121, 110 111 S.Ct. (1990). the First L.Ed.2d 571 Nor does of the reason On the other side grant right a to the Amendment Jacobsen presented no ev equation,- ableness Jacobsen expression means of or most cost-effective impact selling trial that Solo idence at of the Gannett, 745 F.2d at 774. distribution. See gift shop sales RFD in the would have on its are an effec We are aware that newsracks All circulation in the terminal. distribution, “especially for tive means of unsup we have on this issue is Jacobsen’s newspapers. City low-budget, controversial” ported only thing “The that we assertion: Co., Publ’g v. Plain Dealer Lakewood that works in a consistent basis and is found 750, 762, 2138, 2146, 108 S.Ct. U.S. economically feasible is basic newsrack d (1988). L.Ed.2d 771 must testimony was at sales.” And that directe take implementing in into account its newsrack generally. RFD distribution Solo City’s policy unsuccessfully policy. claim that tried thus far did not he has airport’s deny not shown to access within distributing at a small exclusive “has been (8th Cir.1988). Publishing a 1. On this Multimedia is distin- 851 F.2d When issue. guishable proof because was no of lost newspaper use, public property there leases for commercial addition, revenue. the court's In assertion strictly the First Amendment does not limit “simple” imposing charge a for newsracks is government may charge fully to its allo- the rent airport, for the 991 F.2d at is alternative overly simplistic. acting government cated costs as landlord. If legitimate proprietary capacity, the relevant in questions. purportedly are reasonable whether City's held that the rationale The district court pretext against pro- rent is for discrimination gov- holding is inconsistent with cases “that the activity, tected Amendment and whether the First may profit by imposing a fee on a ernment not unreasonably precludes activity light such in rent However, those, right.” First cases Amendment government's proprietary interest. See by government acting imposed involved fees Gannett, at 774-75. F.2d Harris, sovereign. See Jacobsen Crivaro, (8th Cir.1989); Jacobsen v. 655, 101 at Heffron, 452 U.S. forum.” forward comes 2567. Until Jacobsen S.Ct. facially eoncreteevidence

with policy regarding distribution

reasonable City Airport either

newspapers at the unreasonably to discriminate

is intended means of RFD a viable provide Solo

fails distribution, in- entitled to he is not City’s pro- interfering with the

junctive relief operating in interest

prietary revenue of air travelers.

Airport for benefit court is re- of the district judgment

versed, with di- the case is remanded injunction. permanent

rections to dissolve GIBSON, Judge, Circuit R.

JOHN dissenting part. part

concurring opinion. in Part I of the court’s

I concur reason that from Part II for the

I dissent respect on Jacobsen places

it burden restricting speech. his' City’s policy

to the Assn., Perry Local Ed.

Perry Ed. Assn. v. 948, 954-55, U.S. (1983) on the places this burden

City. *6 America, Appellee, STATES of

UNITED

Mary ROUNSAVALL, Appellant. Ann

No. 97-1247. Appeals, Court of

United States

Eighth Circuit. Sept.

Submitted 22, 1997.

Decided Oct.