News & Observer Publishing Co. v. Raleigh-Durham Airport Authority

570 that establishment, exception. plain On these facts it is Doebley Michael nearby

a Stearn) (with lacking not “so in indicia the warrant was left 5019 Homestead Homestead, then to 5038 cause as to render official be- probable went to 5022 (Id.) Afterward, entirely he entered in unreasonable.” lief its existence Homestead. Zimmerman, 436-437; and returned to 5022 277 at see 5034 Homestead Homestead, Leon, then both he and Stearn at 104 3405. We 468 U.S. S.Ct. after Homestead Street departed good from this search under the uphold will vehicles. respective into their loading bags exclusionary rule. exception faith to the (Id.) even the Dis- Although grudgingly, magistrate that a

trict conceded Court Conclusion by suspects might “flight have inferred Because the searches of 5019 Home- Steam, Homestead Street.” 548 from Homestead, Homestead, stead, 5022 at 191. that inference F.Supp.2d With Higbee Homestead and 4049 did not mind, Doebley’s pre- we believe Michael Amendment, Fourth evidence violate the Homestead, together flight stop searches shall not be seized from those fruits of the other incriminating with the any suppressed Except as to defendant. searches, support Homestead Street Homestead, from evi- for 5020 which no Homestead would also inference seized, will dence was we reverse the Dis- drugs paraphernalia. contain suppression trict Court’s order its en- plausible more That inference is even tirety, foregoing. all in accordance with the suggestion the affidavit’s later given Doebley possessory Michael had a interest affi- According

in 5034 Homestead. to the

davit, preparing as officers were to secure pending application

5034 Homestead

warrant, Sophia one Beltz identified her- property. (App.

self as the owner of the

96.) keys, asked for she said that When keys,

she wouldn’t know who had and that property only person who is is Doebley.24 Because the affidavit

Michael Doebley

earlier indicated that Michael was departing detained after Homestead THE AND NEWS OBSERVER PUB Street, may reasonably magistrate COMPANY; have LISHING Durham Mi- suggest Company; construed Beltz’s statement to Herald The New York Doebley possessor Company; Company, chael was the Times Gannett Incorporated, Plaintiffs-Appellees, Homestead. This course would strengthen the inference he stored v. Burton, drugs there. See 288 F.3d at 104. this nexus is AIRPORT deciding

Without whether RALEIGH-DURHAM cause, AUTHORITY, easily Defendant- probable up- sufficient for we Appellant. good hold this search under the Leon faith keys [sic] 24. The affidavit recites: "5034 Homestead asked for ands stated she wouldn't keys only person be Nicoletti know who had but the who was about to secured P/O Sophia property Doebley.” (App. # as is Michael 4620 when who ID herself W/F 96.) she Beltz was Beltz said owner. Publishing The News and Observer

Company; The Durham Herald Com

pany; Company; The New York Times Company, Incorporated,

Gannett

Plaintiffs-Appellees,

v. Authority,

Raleigh-Durham Airport

Defendant-Appellant. 09-1010,

Nos. 09-1231. Appeals,

United States Court of

Fourth Circuit.

Argued: Oct.

Decided: March Jr., McLoughlin,

ARGUED: James P. Charlotte, Allen, Moore & Van North Car- Bussian, light most favorable to the olina, appellant. Adam Appellant. for John Firm, PLLC, Peters, III, Ra- The Bussian Law v. See Pueschel Carolina, Cir.2009). Appellees. (4th for ON leigh, North Appellant Raleigh-Dur- Fox, Zaloom, A. David E. (the BRIEF: John Airport Authority “Authority”) ham Carolina, Park, North Triangle Research was chartered the North Carolina Gen- Prak, E. Appellant. Mark J. Charles Assembly operate Raleigh-Dur- eral David, Brooks, Pierce, Coble, Eric M. (the “Airport”). ham International Leonard, LLP, McLendon, & Humphrey Pub.L. ch. Appellees See 1939 N.C. Carolina, Appellees. Raleigh, North Publishing The News and Observer Com- Durham pany; Company; Herald WILKINSON, DUNCAN, and Before Company; New York Times and Gannett DAVIS, Judges. Circuit (the “Publishers”) Company, Incorporated daily publish newspa- and distribute four by published opinion. Judge Affirmed Observer, pers: The in News & The Herald- majority opinion, wrote the DUNCAN Sun, Times, Judge concurred. The New York and which WILKINSON USA TO- dissenting opinion. wrote a Judge DAVIS DAY. OPINION A.

DUNCAN, Judge: Circuit Arport The facilitates air travel for the appeal This arises from the district area,” region “Triangle known as the summary judgment of to grant court’s Durham, encompasses Raleigh, which and newspaper publishers bringing a First Hill, Chapel Every year North Carolina. challenge public airport’s Amendment to a pass through millions travelers the Ar- newspaper racks total ban on inside port. During period, the relevant time terminals. We found a similar ban uncon- terminals, Arport consisted of two labeled Publishing stitutional in Multimedia Co. C, A and that shared one parking attached Carolina, Inc. v. South Greenville- District, parking deck and eleven outer lots reacha- Spartanburg Airport (4th Cir.1993), by guides which our deci- ble shuttle bus. Each terminal had a today. government Because the in- ticketing sion non-secure area for and baggage justify terests asserted to the ban do not a pickup, and secure area or “concourse” significant counterbalance its restriction on loading and unloading passengers protected expression, we affirm.1 planes. anyone Whereas could access the areas, only

non-secure ticketed travelers I. personnel and authorized could enter the a Entering secure areas. secure area re- grant As this is an from a appeal quired passing through security a check- summary judgment, present we the facts affecting analysis point operated by Transportation our First Amendment Se- appeal challenge attorney's any a fees ... without 1. This also involves mechanism for awarding attorney's evaluating prospec- district order fees the reasonableness of the court’s fees,” Appellant's Nothing § under 42 tive Br. at 62. and costs U.S.C. 1988 and 28 order, however, appellant suggests § U.S.C. contends that the court’s that the expenses attorney’s by awarding publishers would ever be "those fees entitled proving publishers their incur from December 2008 fees costs without reason- case,” Therefore, through we find no the conclusion of this ableness. error " granted affirm. the court 'blanket' award of (“TSA”).2 intended to curity other features serve travelers Administration or boost revenue. only Airport was intended generate early the Publishers contacted facilitate air travel but also making placing coin-operated about requires revenue. Federal law terminals, self-sustaining pos- as newsracks inside the where facility financially as 47107(a)(13) (condi- placed § newsracks had never been before. See 49 U.S.C. sible. time, money upon “the air- At that could be tioning grant federal maintaining] shops. ... from Terminal port operator purchased owner or various selling charges shops schedule of for use of facilities and A’s secure area had four airport newspapers. shops ... that will make Three “RDU-Press” services 14/16, by self-sustaining possible”). as were located Gates as Authority generated shop revenue for the an “RDU-Press Plus” was located (1) including ways, various leas- Gate Terminal A’s non-secure area (2) “JQ ing space advertising, charging baggage wall had a Snacks” kiosk near the in- shops Today. fixed rent to and restaurants claim area offered USA Ter- (3) terminal, charging side each addi- minal secure area had C’s two sell- percent ing newspapers. tional rent calculated as ten These were the “Hudson gross profits. shop News” and the “Hudson News and shop security Book” located near the TSA were Inside each terminal numerous checkpoint. Finally, Terminal C’s non-se- restaurants, shops mostly and located shop selling newspapers cure area had one within the secure area where travelers baggage located between the claim and departing. waited before These conces- ticketing shops areas. All these could of- sions, eating included various estab- which chose, any newspaper they fer selection stores, lishments and retail were selected Authority generally but the expected them arranged plan under “a master for the carry to The News & Observer and The retail and space” food service concession Herald-Sun. designed to “maximize customer service ... Authority.”3 Although Airport revenue to the J.A. open was to the 265. The vending public twenty-four every terminals also contained hours day, the machines, brochures, displaying in- shops normally opened a.m. between 5:30 kiosks, monitors, a.m., formation television ATM and 6:30 and closed between 8:00 machines, stations, p.m. email shoe-shine sta- p.m. They “required and 9:00 were tions, bins, bathrooms, plants, open flights trash before the first ... each [left] substantially plan The renovated af- for the retail and food service concession litigation began. ter this Terminal C was space within the terminals.” J.A. 265. demolished, a brand new terminal was con- Authority implemented plan The that in 2000 structed, Airport's and the terminals are now by reorganizing space concession inside each Authority sup- labeled 1 and 2. The moved to entering terminal and new concession con- plement appeal the record on to reflect this single comprises tracts. No document renovation, but we denied its motion. See plan,” Authority entire "master but the stated Educ., Kirkpatrick County v. Lenoir Bd. during argument Ingrid oral that Hairston’s (4th Cir.2000) ("From proce- 10, 2000, July provides memorandum dated standpoint, hearing dural courts a case on summary. Nothing sug- reliable in the record appeal reviewing are limited to the record gests anyone developing that involved in below.”). developed that has been plan placing master ever considered news- racks inside the terminals. 1998, Authority consultant Ann hired Ferraguto plan implement a "to master unlikely until that its ban on newsracks would morning open after the and remain scrutiny, each Amendment re- flights departed] evening.” last survive First flights hundred or Among permission place the five so “a questing stock departed from the Air- that at or arrived limited number of newsracks locations however, day, thirty-sev- about port every on the ... terminal and concourses to arrive after en were scheduled charge,” promising without that Passengers aboard shops had closed. ‘security friendly’ news-racks be “as would flights delayed any beyond these flights technology currently as allows.” J.A. 167. the normal hours were therefore unable to request. this Authority refused On purchase newspaper. 31, 2004, March faxed Observer anoth- place asserting right er letter “the [Ob- other also reflects issues re- record server] newsracks on the concourses” and circu- garding adequacy Authority but threatening litigation, example, lation. re- For again refused. J.A. 168. newspapers ceived were complaints during early unavailable sometimes September On the Publishers Furthermore, Dur- morning hours. sued the in the Eastern District Company complaints ham received Herald complaint of North Their al- Carolina. shops sold out The Herald- leged refusal to allow Notwithstanding, Authority de- Sun. newsracks inside the terminals violated the many regulate clined how First Amendment and North Carolina stocked, that the reasoning were had requested Constitution. The Publishers meet a financial incentive to demand. injunctive attorneys’ both relief and fees § costs 42 1988 and under U.S.C. and 28 B. § Specifically, U.S.C. Publish- 2002, News January The and Observ- sought injunction permanent letting ers a (the “Observer”) Company Publishing er place them in 26 208 newsracks locations possibility inquired placing about throughout Airport terminals.4 In re- newsracks inside terminals. Authority asserted sponse, the “an infor- Authority The and Publishers filed policy newspapers mal be dis- would judgment summary un- cross-motions newsstands/gift shops tributed via the der Federal Rule of Civil Procedure 56. terminals,” explained and that “there motions, initially denying After both from complaints had been no customers district court amended its decision and with respect being to available granted Publishers’ motion for sum- shops.” those J.A. 230-31. The mary regarding their First judgment Authority secu- also raised concerns about Amendment claim. See The News & Ob- losing rity, space, floor and from revenue Raleighr-Durham server Co. v. Air- Publ’g shop sales. Auth, 653, port F.Supp.2d 659 588 (E.D.N.C.2008). Authority court and not dis- reasoned Observer did years banning until installation of again cuss newsracks about two “the news ‘substantially February within the burdens later. On the Observer terminals companies’ expressive con- asserting faxed letter to the terminals, context, any not Although provides factual this newsracks inside it be request First whether newsracks should mandated. does not affect our Amendment 208 analysis. today only That and remedial issues remain for We decide whether the other by banning day. another violated the Constitution ” public place,’ duct within that id. at ic facts showing genuine issue for trial.” 56(e). 159), Fed.R.Civ.P. (quoting 991 F.2d at aesthetics, security, that concerns about complaint alleged Publishers’ revenue, preserving preventing con- total ban on newsracks in- gestion “sufficiently powerful were not in- side the terminals violated the First justify protected terests to the burden on Amendment. Multimedia addressed a expression,” id. This appeal followed. challenge similar appeal from a final

judgment after a bench trial. The district court there II. found that the Greenville- (the Spartanburg Airport Commission’s appeal, On Authority challenges “Commission”) ban on newsracks inside grant summary judg district court’s the Greenville-Spartanburg International ment. “review[ ] We district court’s de (“GSP”) violated the First Amend- grant summary cision to judgment de ment. novo, applying legal the same standards as terminals, GSP had two labeled A and Pueschel, the district court.” B, that were connected both a direct Summary judgment grant should be walkway ticketing and a area with walk- “if pleadings, ed discovery ways leading to each terminal. Newspa- file, disclosure materials on any affida pers purchased could be either from a vits show that genuine there is no issue as newsrack parking located deck or any material fact and that the movant is from a shop souvenir located between ter- entitled to judgment as a matter of law.” minal A and the ticketing area. The shop 56(c)(2). Fed.R.Civ.P. Facts are “material” open from 6:30 am. to p.m. 9:00 they might when affect the outcome of the sign had a advertising the newsrack out- case, a “genuine issue” exists when the side, but using travelers terminal B were evidence would allow a jury reasonable unlikely pass Likewise, the shop. trav- return a verdict for nonmoving party. elers using the parking deck were Inc., See Anderson v. Liberty Lobby, unlikely pass the newsrack. U.S. 106 S.Ct. 91 L.Ed.2d We held that “the First Amendment (1986). The moving party is “entitled protects distribution publication” as well as judgment aas matter of law” when the of and that of “modes distribu- nonmoving party fails to make an adequate involving permanent tion or semi-perma- showing on an essential element for which nent occupation publicly-owned of property it has the burden of proof at trial. See don’t lose First protection Amendment be- Policy Cleveland v. Mgmt. Sys. Corp., 526 Multimedia, cause of that fact.” 795, 804, 1597, U.S. 119 S.Ct. 143 L.Ed.2d at 158. After noting that the Commission (1999). 966 ruling on a “[I]n motion for only allowed limited means newspaper of summary judgment, nonmoving party’s distribution, upheld we the district court’s believed, evidence is to be justifi- and all aesthetics, decision that concerns about able inferences are to be drawn in that revenue, preserving preventing congestion, party’s Cromartie, favor.” Hunt v. 526 security justify failed to heavy 541, 552, 1545, U.S. 119 S.Ct. 143 L.Ed.2d protected restriction on expression. See (1999) (internal omitted). 731 quotations at id. 160-63. To overcome a summary motion for judg- ment, however, nonmoving party “may Although procedural posture rely not merely allegations on differs, or denials here provides Multimedia the sub its own pleading” but specif- must “set out legal stantive framework analysis. for our

577 473 U.S. 105 S.Ct. government property- whether deciding (1985)). for protected Although available L.Ed.2d made the ban should be dis- activity such as expressive “need not be the most reasonable or the tribution, pro- apply different levels we protected reasonable limitation” on types government for different tection expression, enough simply “it isn’t to es- 162; Perry see also property. See id. regulation rationally that the tablish re- Perry Local Educators’ Educ. Ass’n v. governmental objec- lated to a legitimate Ass’n, 37, 44-46, 948, 74 103 S.Ct. 460 U.S. tive, as the case for a might typical be (1983). Stringent protection L.Ed.2d 794 police government’s pow- exercise forums,” i.e., “places applies “public for Instead, requires er.” Id. Multimedia by government or by long which tradition following analysis: assembly fiat devoted to have been degree and character of the impair- debate,” for protection applies but less involved, expression ment of protected i.e., forums,” “nonpublic “[p]ublie property any mitigating by discounted alterna- designation which is not tradition aggrieved tives remain to the party, Perry, forum communication.” public for validity must be considered.... The 45-46, 103 S.Ct. 948. The 460 U.S. at any justification for impair- asserted airports Supreme Court has declared that and, ment assessed must then be if Soc’y See Int’l nonpublic are forums. valid, weighed found then the balance Consciousness, Lee, Inc. v. Krishna against impairment.... Because 679-80, U.S. S.Ct. time, regulations other than mere place, (1992). Accordingly, the fol L.Ed.2d 541 must manner restrictions be de- in this “In lowing applies case: protection signed to forum for reserve the its in- time, place, regula addition to manner tended purposes, the overall assessment tions, may reserve forum the State eye must be an undertaken with to the purposes, its communicative or intended particular purposes intended of this air- otherwise, long regulation as the as port ways terminal and of which speech an effort to is reasonable regulated might actually conduct ... merely suppress expression public because carrying interfere out of with those speaker’s ew oppose officials vi purposes. Perry, 159 (quoting 91 F.2d at .19 948). (internal 46, 103 quotations Id. and citations omit- 460 U.S. at S.Ct. ted). Consistent with but 12,3] argues no one that the Because summary judgment, through the lens of we inside Authority’s total ban newsracks now consider whether the total discriminated based on view- terminals ban on inside the newsracks terminals only consider reason- point, we need reasonable.5 ... “[R]easonableness ableness. See id. light pur- must ‘in the be assessed of A. surrounding of and all the pose the forum ” the Authority’s First we measure (quoting v. circumstances.’ Id. Cornelius Fund, Inc., protected Educ. restriction on the ex- Legal NAACP & Publishers’ Def. Appellant's disagree. We Authority ap- we See Br. at 28-32. 5. The contends that should assessing ply analysis, a different reasonable- Because the ban considered in Multimedia weighing justifications ness asserted without judgment, a also resulted from business this against protected expres- on the restriction distinguished case cannot be from Multimedia sion, because its ban on newsracks inside on that basis. judgment. a arose from business terminals (“If namely, paper See id. activity, newspaper govern- dis- distribution. a pressive not analysis hinges upon This a entity tribution. mental a on imposed similar ban newspaper sales projected difference city on placement newsrack streets and upon rather Publishers’ access to but sidewalks, desiring might paper those Airport speech purposes. users See for private nearby private find vendors Lee, 684, 112 (up- at S.Ct. 2701 505 U.S. property advantage of a cre- taking newly holding regulation “limiting solicitation market; Airport’s ated but the ban offers areas outside ... ... to the side-walk patrons no similar for opportunity or ven- that, [airport] reasoning terminals” dors.”). reasons, For these we conclude frequented area is sidewalk “[t]his because Authority’s that total ban on news- an of by overwhelming percentage significantly inside the terminals re- users, resulting ... access of those protected stricted the Publishers’ expres- general public who would solicit the sion. Among things, other we quite complete”). people which consider extent to visit-

ing have B. could received the message by buying Publishers’ their news- Next we determine whether Multimedia, papers. See 991 F.2d at 160 Authority legitimate asserted interests (reasoning that “the Commission’s news- that counterbalance restriction on pro newspapers rack ban makes hard to come expression. tected Given that the Authori by many patrons of the Greenville- ty may “reserve the forum for its intended Spartanburg Airport impossible purposes,” analysis our here keep must others, thereby placing heavy burden on mind the Airport’s purposes intended protected companies’ distri- activity”). facilitating raising air travel and bution revenue. Perry, 460 at U.S. S.Ct. 948. We drawing Even all reasonable inferences also note that “need favor, we are con- have specific adduced factual evidence that total strained find that its ban on news- interests advanced were the ban Airport’s signifi- racks inside the terminals that expressive activity did cantly banned ability restricted the Publishers’ interfere newspapers. distribute with the forum’s intended use.” record re- flects travelers had buying Instead, trouble newspapers shops. from the There were Authority generally “was ad entitled to unavailability during instances the early by arguments vance its interests based morning, and the would sell out shops appeals logic.” to common sense and Id. Furthermore, The Herald-Sun. the Au- asserts four interests thority concedes that un- were justify totally banning newsracks inside available once day closed each aesthetics, preserving terminals: reve- around 9:00 p.m. passen- This means that nue, congestion, security. preventing gers thirty-seven flights aboard the sched- recognize legitimacy We these inter- uled to arrive after that time or aboard ests. (noting govern- See id. at 161 flights delayed past point could never ment in preserving interests aesthetics and purchase upon a newspaper landing. The Lee, revenue are legitimate); 505 U.S. ability Publishers’ to reach these people 683-85, 112 2701 (deeming legitimate S.Ct. inside the thus terminals was nonexistent. Finally, in tightly government preventing interest Airport’s contained con- gestion); character enhanced this burden on v. City Rapid City, news- Jacobsen (deem- (8th Cir.1997) 660, 662-63 128 F.3d in interest government legitimate ing Second, the Authori we consider we consider security). Below in revenue. The ty’s preserving interest signifi- they counterbalance

whether adopt argues that we should Authority expression. protected on cant restriction under the “concession judgment business newsracks which excludes plan,”

master revenue. to maximize purports but expert Authority proffered also 265. The Authority’s First, we consider people buy newspa testimony letting that Airport’s aesth preserving interest shops’ affect newsracks would pers from solely based Although arguments etics. newspapers but also of sales not normally are sense logic or common that customers and other items snacks allowed, asserting that stated Multimedia im might purchase on seeking newspapers ..., without “interest aesthetics an would mean less reve pulse. Fewer sales permit ... more, isn’t sufficient which received ten Authority, for the nue Mul protected expression.” restriction percent shops’ gross profits. timedia, that at 161. We added 991 F.2d least, arguments fail very these At found sub concerns have been aesthetic restriction on significant to address the justify restricting pro enough to stantial identified, namely, expression we protected only where “the aesthet expression tected cannot distribute news- that the Publishers substantial and harm has been both ic passengers papers inside the terminals and noted “that widely recognized,” closed, shops are arriving when the been of low has often speech restricted are otherwise that at times (citations value.” Id. First Amendment see, We cannot and indeed unavailable. omitted). or offered no evidence has for, allowing how explanation rational offered no evidence has in such circumstances could de- newsracks Air- inside the that news-racks placing sales or affect revenue. tract from cause substantial port’s terminals would Furthermore, persuaded are not harm. we widely recognizable aesthetic plan the master Authority’s reliance on logic support or common sense Nor does Nothing the record for concessions. an cannot see how that conclusion. We that, plan when the master suggests briefs carefully placed number of appropriate con- being developed, its creators even complement each fashioned to newsracks Accordingly, that the newsracks. sidered design would have terminal’s interior no basis provides newsracks plan excludes Airport’s substantially undermined the placing some number concluding Moreover, Authority has aesthetics. would be inconsistent inside the terminals justification distinguish no proffered maximizing revenue. with machines, vending from the newsracks brochures, ma- ATM displaying and re- considered Finally, Multimedia chines, visual obtrusions and other about lost reve- jected argument a similar these the terminals. For existed inside ground the Commission nue on reasons, conclude that the pa- we have exacted a concession “could equal cannot counterbalance to that aesthetic interest sold from news-racks pers shop.” protected against assessed significant restriction foreclose that at 161. We do not expression. 580 reasons,

possibility here.6 For these we carefully placed “limited number” of news- Authority’s conclude that interest requested racks—the amount by the Ob- preserving cannot revenue counterbalance server’s February letter. significant on protected restriction ex- 167. pression. Having properly question, framed the ultimately we are by bound Multimedia. There, we stated “common sense” al- Third, we consider the lays congestion fears of around newsracks. preventing congestion. interest Multimedia, 991 F.2d at 162. We rea- support draws from the follow that, soned Supreme because the Court ing description of newsracks: congestion found the at an created A projects twenty standard newsrack by “a large peaceful number of leafletters passenger inches into a movement corri- seeking passersby out attempting object dor. An of this size reduces the engage dialogue” them in insufficient to pedestrian traffic capacity flow of the justify banning that expressive activity, id. people corridor 42 per minute. A Lee, at 162 (citing 690, 505 U.S. at type newsrack, USA TODAY being used (O’Connor, J., S.Ct. 2701 concurring)), “the by a standing customer with the cabinet obviously trivial congestion-related difficul- extended, fully door pedestrian reduces posed by carefully ties placed inanimate traffic capacity by flow 110 people per justify news-racks cannot the Commis- minute, allowing any without bag- either,” sion’s ban Accordingly, id. we gage placed on the floor while the device find here that a limited number of careful- is in use. ly placed newsracks only would create triv- Network, Gannett Satellite Inc. v. Info. ial congestion.7 Ayres City v. Chica- Cf. Berger, F.Supp. (D.N.J.1989), (7th go, Cir.1997) 125 F.3d (3d grounds, rev’d on other 894 F.2d 61 (“The incremental contribution to conges- Cir.1990). Authority might posit well tion that peddlers five can make in a sea of government against interest spreading a hundreds of festival-goers thousands of large number of newsracks indiscriminate- small.”). very ly throughout terminals, but that is not Furthermore, presented. scenario the record reflects the has simply prohibited large presence number numerous free-standing ob- being jects newsracks from randomly spread inside the terminals. The Authority terminals; around the it has proffers banned them no basis on which distinguish all. Accordingly, we only need consider newsracks from plants, vending ma- how much congestion chines, would result from a displaying brochures, ATM again, 6. Once we stress the limited nature of ic or common nonmoving sense to favor the inquiry. our We consider whether ban- Amusements, party. See Nat’l Inc. v. Town of ning all newsracks inside the terminals violat- Dedham, (1st Cir.1995) ed the First Amendment. Such issues as (“While summary judgment mantra re- number, placement, beyond and cost are quires every us to draw reasonable inference scope analysis. of our inferences, nonmoving party, in favor of the qualify, rationally must flow from the un- 7. That applied Multimedia legal a different facts; is, derlying suggested inference standard makes no holding difference. Its must ascend what common sense and hu- congestion about was based on common experience man acceptable indicates is an evidence, sense rather than factual and sum- probability.”). level of mary judgment require ignoring log- does not

581 bins, entirely de minimis.” Mul- newsracks is stations, machines, trash email (internal timedia, at 162 citation these 991 F.2d already For objects present. similar omitted). Authority’s reasons, that the we conclude cannot congestion preventing in

interest overbroad, being facially In addition to restriction significant counterbalance Authority’s “fail[ed] evidence has expression. protected on security of news- impact distinguish frpm in the places that of other racks weapon or bomb can be terminal where Finally, we consider as, restrooms, cans, var- such trash placed, maintaining security within interest for placed in the terminal plants ious Authority contends Airport. and within newsstands purposes, aesthetic hiding places become could newsracks Observer, News & and kiosks.” stocking them weapons, and or bombs Jacobsen, 659; also F.Supp.2d at see delivery persons letting require would (dismissing at 663 similar concern In security checkpoints. through TSA many has other “because the terminal Airport Director Deputy support, hidden, a bomb could be such places where McElvaney an provided Operations Mike holders, plant containers and as waste placing newsracks stating affidavit glass door on the front of a anything, if create secu would throughout place makes it a less suitable newsrack security personnel, and burden rity risks bomb.”). therefore conclude hide a We delivery persons to screen who would need Authority’s security interest can- that the newsracks for con repeatedly check significant restric- not counterbalance Notably, McElvaney confined traband. expression. protected tion on provided analysis to “the information his identifying action by the Plaintiffs this sum, insufficient the record contains they place want to where 26 locations jury from which a reasonable evidence Airport.” at the news racks Authority’s assert- conclude that the could diminishing the im- any way Without total on news- justify interests ban ed concerns, again security we portance Nor does the inside the terminals. Airport’s to which the evi- note the extent conclusion that careful- support record McElvaney prem- the mark. dence misses appropriate an number of news- ly placing analysis the existence of 208 ised his in- the terminals would be racks inside Airport. throughout newsracks Airport’s intended compatible with the however, banned all news- Authority, has air travel and rais- facilitating purposes McElvaney’s terminals. racks inside the ing revenue. Cf. security indicates little about analysis evidentiary record of (“Nothing carefully cali- by allowing created risk case, argu- inor the Commission’s this risk presence. Such brated newsrack ments, reasonably suggests that a con- be more than de minimis. We could not a limited number of placement trolled particularly instructive find Multimedia signifi- would in this terminal newsracks Aviation Admin- point: this “The Federal all, either the cantly, if at interfere with safety security regula- or has no istration secondary purposes intended primary newsracks, proper tions addressed to stated For the reasons operation.”). of its highly unsuita- render them design would above, we incre- placement.... for bomb ble security AFFIRM. posed danger mental DAVIS, Judge, dissenting: Circuit stage at this of the proceedings. Nor itwas allowed to draw reasonable infer- in The issue this case is whether the ences from the facts before it as if it properly granted court below summary Indeed, were a factfinder. given the the judgment newspaper publishers case, posture of the the court was re- when it Raleigh-Durham held the Air- quired to resolve all in inferences favor port Authority’s ban on newsracks violated of the non-moving party. publishers’ the First rights Amendment (Motz, J., Id. at 394 dissenting). Accord- Greenville-Spartan- under Multimedia v. ingly, the (4th facts this case Dist, 154, and the infer- burg Airport 991 F.2d Cir.1993). fairly ences to be drawn from them must My colleagues find that “the light be viewed the most favorable to government interests asserted to justify non-moving here, party, the Authority. signifi- ban do not counterbalance its Pueschel, 577 F.3d at 563. Even though protected cant restriction on expression!]]” this case will be tried jury without a be- Maj. Op. at 573. But that conclusion an- cause parties one, did not request wrong inquiry. swers Because this is there must nevertheless be a an trial. appeal grant from a of summary judg- ment, question simply whether the II. evidentiary record reflects the existence of Appellant Raleigh-Durham Airport Au- genuine disputes of material fact. I con- (the thority “Authority”) operates the Ra- does, therefore, clude that it I would (the leigh-Durham Airport “Airport”), a vacate the district granting court’s order facility that terminals, has two passenger summary judgment and remand this case each with its own departure and arrival for trial. Accordingly, I respectfully dis- concourse, claim, baggage ticketing sent. 2007,

area. As of approximately ten mil- lion passengers passed through the Air- I. port 2004, annually, and in Circuit, In the Fifth district courts have operating budget approximately been significant afforded authority to find million dollars. facts even they when are considering mo majority The vast Airport’s pas- summary tions for judgment if pro sengers ample have newspapers. access to ceeding nonjury is a case. In re Placid Cf. multiple There are vendors in Co., (5th airport, Cir.1991). 394, Oil many of which sell newspapers and maga- But while our court grudgingly has em zines, along with non-newspaper other braced context, that notion in a narrow see items, such as food. As majority opin- Bancorp, Int’l v. LLC Societe des Bains de indicates, ion these “required were Mer et du Estrangers Cercle des a Mona to open before the flight first ... co, (4th [left] Cir.2003), 329 F.3d 359 cert. de each morning and open remain until nied, 540 U.S. 124 S.Ct. flight departed] last each evening.” J.A. (2004), L.Ed.2d 891 this is not one of those They normally opened between 4:30 instances. No party here consented to a.m. and 6:30 a.m. and closed between 8:00 have the district court convert the sum p.m. p.m., and 9:00 although the shops mary judgment record, record into a trial often closed later flights when were de- permitting the district court to engage in layed. Rather, fact-finding. case, in this

the district court was not entitled to find majority indicates, As the in January facts and conflicting resolve inferences The News and Publishing Observer Observer”) (“the contradictions, specific factual en- inquired highly about Company hanced volume of motions inside placing newsracks possibility reply, cacophony tentatively argu- raises terminals. The in a ments cannot be settled mere installation newsracks to allow agreed hearing. summary judgment areas. The Observ- Airport’s parking Authority’s offer, likely declined the er J.A. pay it want to rent did not because court a bench trial for The scheduled The Publishers then filed concession fees. 13, trial, the November 2007. On eve of suit, Authority permit the demanding that requested Plaintiffs’ counsel a continuance throughout them to install 208 newsracks problem a in to address serious medical his Airport. the family, granted and the court the continu- party anything ance. Neither filed with III. 13, 2007, the court between November history of this surprising procedural The 24, November 29, September On case merits attention. year one after the Over court denied the 2007, mo- the district court denied cross summary motions judgment, cross for judgment. court summary tions for The November the district court is- Mul- required by it was explained order, granting an sued amended sum- an intensive fact- timedia undertake mary judgment to the Plaintiffs. The it inquiry, and that could not resolve based explanation court offered no the it as matter of this case law because change, apparent, and none is the since disputed material and multiple contained any filings court did receive or addi- facts. briefing its tional between first and second court five such facts. The identified rulings. (1) severity were of the burden They order, its amended district court buy- in by Airport faced customers at analysis applied same reasonableness (2) validity of the ing newspapers; from Multimedia that it in its first used justification by the Au- aesthetic offered only that— opinion. difference was to allow in the thority refusing receiving any new factual evidence without (3) terminals; Authority’s potential hearing legal any arguments new of racks —it loss of revenue from the allowance methodically prior each of its reversed resulting in the terminals and the decline conclusions, converting genuine and mate- in sales the authorized conces- legal disputes rial factual into conclusions result; (4) safety would as a sions see by them J.A. simply declaring as such. having in issues involved in news-racks 1140-42. (5) terminals; security crowded having involved in newsracks

issues IV. 1123- areas of the terminals. secure Clearly, legal framework set forth The district court concluded: Multimedia controls of this outcome Mul- answered, question presented parties have in various case. under Both with timedia whether forms, is the ban reasonable opponents arguments their light purpose[s] of the the forum straight contradictions —contra- “in the factual surrounding all the circumstances.” require weighing of dictions that evidence, must es- arguments on the F.2d 159. The not mere ends fit its disputed multitude of and tablish reasonable between law. Such a dia, only shop, State GSP means. Bd. Trustees contained one and it Fox, “a gate was substantial distance from the University N.Y. v. 492 U.S. Multimedia, 991 at 159. areas.” 106 L.Ed.2d 388 109 S.Ct. Moreover, shop the sole was accessible (1989). perfect, only- The fit not be need one of the GSP’s two terminals. At evalu- reasonable. Multimedia test however, Airport, may customers severity by burden imposed ates the of the multiple gift choose between both ban, weighs then burden terminals, of its both inside and outside government’s against interests and passenger the secure area.1 Maj. if the ban is asks reasonable. See Op. at 578-79.11 CCnA. The shops open at the are also GSP, single At longer. shop open I majority, As start quantify did Multimedia, p.m. from 6:30 a.m. to 9:00 by potential ing the burden suffered news Here, 991 F.2d at newspaper 160. the Multimedia, paper customers. the are open flight vendors before the first analysis court’s burden focused on whether the each Airport morning they leaves potential newspaper distributors news open flight remain until after the last de- buyers paper had to via newspapers access parts typically each evening, early from as gift shops alternative channels as such a.m. as to as late as 9:00 J.A. p.m. 4:30 296. retail at stores. F.2d Further, shops many remain open after analysis hinges pro 159. This not upon last flight depart the is scheduled if to jected in newspaper difference sales but events, weather, extraordinary such as bad upon rather the Publishers’ Air access to flight delays. cause J.A. 352. Lee, port speech purposes. users See 684, 112 at U.S. S.Ct. 2701. newspapers The at Airport the are also prominently displayed more they than help identify To overall the burden suf- shops at GSP. were The draw attention to by the at fered the it Airport, customers is newspapers their with displays visible useful contrast the situation at the Air- shops. from outside the J.A. 326-27. port the at Greenville-Spar- with situation GSP, At the only shop that newspa- sold (“GSP”), Airport tanburg at pers did not them display visibly, and in- issue in comparison Multimedia. This stead, newspapers put were makes it clear that a factfinder could rea- of the shop back on flat shelf. Multime- sonably Airport’s find that the customers dia, at 160. suffer a minimal burden. The Air- reasons, all For of these it is clear that port significantly boasts more newspaper passengers Airport the burden on at the vendors, open longer vendors are considerably less pre- onerous than the hours, and the newspapers by sold these imposed pas- Multimedia burden GSP are prominently vendors more displayed. But sengers. analysis does end Airport enjoy Customers substan- simple with a comparison, a re- because tially newspa- broader and easier access to view the absolute imposed burden pers than those at Airport’s GSP. Prior to passengers by Multime- time the shops selling At the district court sum- denied 15. Terminal C had three news- mary judgment, shops A Terminal had five papers, pas- one located out-side the secure selling newspapers, kiosks two with one senger area and two the secure J.A. area. shops of those of those one kiosks located 289-290. passenger outside the secure area. 413- J.A. day’s For all of these newspaper. next the weakness also demonstrates rack ban reasons, very people practically few are of the burden. affected this ban.2 is weak because overall burden through majority passengers flow vast Although majority to draw purports selling shops Airport when in favor of the all reasonable inferences undisputed that these and it is open, are non-movant, Authority as burden to newspapers. access passengers have suggests majority analysis othexrwise. pas- approximately specifically, More heavy suffer a bur- passengers finds that depart from senger flights arrive attempt purchase news- they when den daily. Of these 500 (1) had “trouble papers because travelers 90% departing passengers and all flights, (2) shops[,]” from buying newspapers have access to arriving passengers full “[tjhere unavailability were instances percentage of shops. Id. The small open (3) morning,” “the during early access to the passengers who lack shops would out of Herald-Sun.” sell evening, who arrive late are those Maj. Op. at These assertions are Authority demon- p.m. As the after 9:00 from factual and fail removed their context strates, extremely these late arrivals are favor- proper accord the they are unlikely buy anything because which it is under able inferences to entitled pas- passengers, deplaning deplaning precedents. our airport 10% all account for of sengers issue, overwhelming As to the first the enplaning purchases. (explaining Id. that is that travelers did not have evidence of (i.e., make 90% departing) passengers buying newspapers shops.3 trouble at the Further, as a mat- airport purchases). all multi- patronize any Travelers could one of Mul- logic, common sense and see ter of convenience, open their all of 160, ple stores timedia, passengers who them newspapers displayed which sold are evening an in the late airport arrive at the district prominently. At time the buy By p.m., 9:00 unlikely newspapers. to (before it summary judgment denied over; that was court day newspaper is the the summary judgment the same granted contains published morning earlier that news, record), evidentiary Terminal A had five replaced by to outdated soon be "tight- airport expressed any ac- majority Airport's concern about The notes that 417; ly enhanced” the burden newspapers. contained character to J.A. see also J.A. cess imposed by newspaper (statistics 2003); But the rack. April from of J.A. 313 1068 Authority permit to offered to the Observer complaints (airport has less than 5 received newspaper garages. in its J.A. install complaint news-papers moving since about If the had installed news- Observer such online); (airport system one J.A. received racks, passengers ar- paper deplaning who keep open request in later 2007 to newsstands they evening assuming in the that rived late — airport). side of The non-secure newspapers have had access wanted —would complaints concedes that it received some purchase to them. 11, 2001, directly September after but that complaints probably from the those resulted majority may referring the occa- 3. The be to pas- that forbid then-new rules non-ticketed Authority. complaint received sional sengers to the terminals. J.A. 295. access evidence re- The shows minor, complaints espe- The sum these is very newspapers, complaints few ceived about cially considering was under- complaints re- and that most J.A. changes regard- going and rule construction newspapers early in the ferred to lack of throughout part ing airport security of this morning. J.A. 313. Between November gave temporary period, two August issues rise than less 0.7% (or problems quickly complaints) that were resolved. the total feedback 9 of empty newspaper rack, face shops selling newspapers, two kiosks would with an case, of those those in shops with one one of either the Publishers would be passen- kiosks located outside the secure free decide whether deliver additional ger reasons, area. Terminal C had three papers, or not. For all of these it selling newspapers, one located outside the that a reasonably is clear factfinder could and two in se- passenger secure area newspaper imposes that the rack find ban Further, newspaper purchas- cure area. if only a modest burden. line, want in they

ers did not to wait could B. posted use the “honor boxes” in some stores. J.A. majority, does I As turn next to majority also claims that facts determine whether the asserted newspapers demonstrate that are some- that, legitimate interests when considered times in the but it morning, unavailable together, present genuine of ma- dispute mentioning newspa- omits the reason that terial fact as to is whether the ban reason- pers morning. are unavailable in the light it imposes. able the burden that newspapers reason that are sometimes not Maj. Op. See at 577-78. As a threshold morning available not because matter, I noted that the facts of this case Instead, rack ban. it is from differ those of Multimedia one newspa- because the deliver the Publishers Multimedia, very way.5 critical pers Airport’s late. 352-53. govern- district court concluded that open flight departs, stores before first justification mental interests asserted as shops’ employees pick and the attempt to hoc, for the ban were post pretextual cre- up they open before Multimedia, ations. at 162. We immediately upon opening.4 J.A. 352- Thus, affirmed. the court 53, But, papers 430-31. the are often deliv- the “government found interest” side of ered the Airport by late to the Publishers. balancing to entirely the test lack credibili- shops papers cannot sell the until the ty. Manifestly, Id. the is same not true Publishers deliver them. fact, Airport’s justifica- here. the four majority’s assertion, create genuine last that on tions issues of historical as occasions, rare as shops some sold out The well ultimate fact the regarding of reason- Sun, Herald also ignores light overlooks or ableness of “in of the ban the the key some in evidence the record. The of purpose the forum and all the surround- that shops rarely record shows the run out ing circumstances.” papers, do, Thus, of and that they shop when the at 159. case this should be resolved employees simply the ask Publishers to at trial and not decided as a matter of law. presents deliver more. J.A. 330. This justifications the The four offers they Publishers with the same choice that on newspaper its ban racks: revenue and New, Press, (CNBC 4. The Paradies stores and New York Durham Times and Herald Sun of- locations), attempt two Plus J.A. Press do not ten arrive until 6:00 a.m. or later. Id. a.m., pick up newspapers later no than 5:20 Thus, own, due to of no fault their the stores often, papers but the are not until available open newspapers. sometimes without 327-28, 6:00 a.m. J.A. 430-31. three open Hudson stores between 4:30 and a.m. important procedural 5. are There also differ- a.m., loading 5:00 and check the dock for ences here as the Multimedia decision fol- newspapers every fifteen minutes. J.A. 352- trial, grant summary judg- lowed report Today 53. These stores that the USA ment. and typically The News & Observer are deliv- a.m., ered around 5:30 or 6:00 and that the New flow, economics, explained security, passenger Airport Today Times York and USA are in in turn. both I review each aesthetics.6 stores, top 20 items sold in his Today that USA among is its highest Experts gross profit items. J.A. 267. es- law, Authority must Under federal in timated that the loss of reve- financially self-sustaining and the be $25,200. alone total sales would J.A. 273. be generated Airport at the should nues stream, capital operating pro- The second revenue expended income (b)(1). 47107(a)(13) § impulse buys of newspaper costs. 49 U.S.C. & duced Thus, strongest justification for is even more substantial.7 purchasers, Newspaper spark it sale of ban of newsracks increases sales items Selling newspapers chewing gum, Authority’s revenue. like bottled water ways: in purchases generate in increases revenue three these small not-so- stores rents, Airport retails profits. it store it increases small One retail executive increases sales, newspapers reve- advertising explained help profits and it increases his up store nues. Increased sales drive because rent pay

rents because stores additional water) (like bottled are sales, generally 10% based on their retails my equivalent view the of bread and gross receipts. J.A. 1027-28. grocery milk at ... stores we have ob- people served the come into our in fa- all inferences Drawing reasonable buy newspapers, they but are once Authority, selling newspapers vor of the there, buy other If they newspa- items. dramatically increases retail sales stores per put airport, racks were inside it therefore, Authority income. J.A. would sales. impact 283-88, 266-68, see J.A. (explaining 271-2 approach” shopping managers to retail sales at the the “node J.A. Other Thus, agree. clustered tak- where retail food stores are value, suggestion at encourage impulse buying). ing majority’s face together of rev- if could Store-selling generates charge two streams even First, generate signifi- premium Publishers a to allow installation enue. stores newsracks, selling physical cant income from “a reduction total revenue Airport An still the sales newspaper. would exist because of lost goods stores related and services avail- Retail Executive with several on also Store racks, it, Here, newspaper against Authority presented the substantial but decided arguments ultimately plan newspa- were on a a economic that based selected that sold plan created master concession in collabora- to pers through retail in order maxim- paid plan tion neutral consultants. This with plan ize its revenues. J.A. 285. And the thoughtful, comprehensive and it was worked—it boosted retail sales and in- 68% Authority's the revenue. also increased creased revenue from those rental sales J.A. 298. 17%. majority argues Authority’s the that probative evi- plan is not master concession majority suggests 7. The that the could explicitly dence it not consider because did re-coup by ''exact[ing] revenue the lost con- newspaper racks. But this assertion seems papers equal cession for sold from newsracks illogical obviously are at least two there — against shop.” Maj. Op. the to assessed ways newspapers, via sell via stores and 161). (citing at 579 at Authority When newsracks. created argument applies lost consulting But this revenue plan, it hired two outside master newspapers, not surveys. It from the of the actual performed customer sales firms and using impulse possibility buying. surely aware of lost sales from of Gannett, keeping able at the newsstands.” 716 substantial interest in this money, See Jacobsen, 152; at F.Supp. at 128 F.3d an perhaps might interest make (noting installing would newsracks reasonable modest inconvenience that revenues, cause concessionaires to “lose on a imposes ban few late- valuable, making its exclusive contract less night passengers. Again, issue here is City’s ... turn will reduce the [which] merely whether a factfinder could find that leverage bargaining such for terms as is considering this ban reasonable after pro minimum annual concession fees severity ban, of imposed by the burden utility charges.”). rata Each these in- of here, burden, very in light modest of all come increases that ac- streams the funds interests, Authority’s of the including but Authority. crue to the Authority’s not limited to the interest generating revenue. Installing newspaper also would likely at advertising decrease revenue Tellingly, majority finds that Airport. Authority advertising sells “Authority’s preserving interest in revenue space Airport’s on in floor walls and significant cannot counterbalance the re- cases; display of majority vast such protected expression.” Maj. striction 95%, space, comprise displays. about wall Op. court, at 580. But an appellate as we produce J.A. 272. ads average These an are of a position factfinder. $1,750,000 in annually, sales which trans- Moreover, all of the interests $875,000 lates approximately into in annual jointly, must be considered not individual- Authority. revenue to the J.A. 292. Since ly. finally, And striking this statement is all newspaper placed racks must be on the because issue is not whether the Au- floor,8 installing newspaper racks would thority should merely win at trial —it is space eliminate floor available advertis- Authority successfully whether the demon- ing displays and cover some wall ads. J.A. a genuine strated issue material fact Thus, newspaper racks will and therefore an opportunity deserves likely Authority’s ability decrease the go to trial. generate revenue, advertising and de- If, crease it substantially.9 example, It worth noting is that economics and twenty-five percent space wall was dis- arguments revenue can be sufficiently racks, placed by newspaper strong their own to make the newspa- $182,000 $214,000 would lose between per Gannett, rack ban See reasonable. in annual revenues. J.A. 274. (“When government rents, The Authority’s agency engaged losses from retail in a commercial enter- sales, advertising hun- prise, raising revenue sum to a significant revenue is interest.”). dreds of thousands of It has a dollars. But provided 8. Adding The record clear newspaper is that racks 9. newsracks also not would increase cannot be installed walls. The the Publishers’ sales. Evidence from other provided ample evidence it airports to show that has Carolina North shows that when air- stores, space little or no ports interstitial wall could have that newsracks and retail support majority buyers recessed newsracks. J.A. vast of to the flock stores. Any existing space already example, 1017-18. occu- Today is For sales of USA from news- machines, Charlotte, Greensboro, pied telephones, with ATM or fire at Wilming- racks and Thus, 3.49%, extinguishers. .91%, only way airports J.A. ton total 3.14% incorporate to to airports very the boxes would be install at total sales these small num- — best, adjoining adjacent them on the either floor bers indeed. J.A. 379. At news-racks to the walls. J.A. 1018. a few sales. re-direct support e.g., security, pas- sengers badged personnel justifications, additional aesthetics, flow, background I will undergone security which who have senger turn. permitted pass now are into the se- checks terminals areas of now. passenger

cure 911-912, Similarly, J.A. 971-72. TSA now Authority asserts reduction The that requires newspapers go through all interest.10 security government risks aas contrast, security checkpoints. Mul- logic, matter of common sense and aAs significantly timedia decided security paramount importance is security these were changes before First and posN9/ll in our world. airports necessary. deemed foremost, worry that the news- officials majority improperly The also discounts de- explosive could be used to hide racks testimony Deputy Airport of the Di- weapons. 244-45. vices or J.A. Operations Mike McElvaney. rector poten- check security would need to these McElvaney provided stating an affidavit day. hiding places several times each tial placing throughout that news-racks TSA not have Although the does J.A. 317. security terminal would create risks and newsracks, a TSA any regulation that bans security personnel, burden who would + my “based opined Director delivery persons need to screen and re- I physical security experience, years of check racks for peatedly contraband. strongest pos- this in the discourage would majority completely trou- 316. The terms. is an invitation for J.A. under- sible This advice, light testimony simply J.A. 247-48. In of this cuts his on the ble.” basis 9/11, all has removed responded since he to the Publishers’ demand except machines vending machines ATM majority racks. install from the secure side of terminal. not cite any actually does evidence that 232, 291.11 McElvaney, majori- nor discredits does the ty any indicate reason to that in- believe majority, considering the instead of fewer stalling than 208 newsracks would record, relies on a citation Multime- from completely potential security eliminate is posed the risk newsracks dia Instead, any support without problems. minimis.” F.2d at “de record, evidentiary majority from the persuasiveness But this it quote loses carefully that “a calibrated news- assumes placed proper it in its it once context: not than presence” rack would create more September impera- 2001. The predates Maj. minimis” I Op. a “de risk. at 581. airport security changed has dra- tive of testimony, McElvaney’s would not discount matically, governmental efforts would certainly permit have more instead factfinder regards grown these it example, pas- apply government’s For ticketed to the case for es- vigorous. majority be- There is no that the mere- 10. dismisses these concerns evidence Publishers ly put newspaper want to the unse- racks on distinguish impact it does cause terminals, cure side of the so the court must machines, plants, vending newsracks from security consider concerns for the secure brochures, machines, displaying ATM side of the terminal. stations, bins, objects email trash similar already present. Maj. Op. at the 580-81. As of the has a 11. non-secure side terminal clear, however, factual record makes after the vending luggage such as cart few machines a 9/11, following security the machine, increased public telephones, a phone card dis- machine, (except all ma- removed such items ATM penser, flight insur- flower and a chines) part from the secure of the terminal. ance kiosk. J.A. 590 sum, Second,

tablishing regardless reasonableness. securi- of the number newsracks, ty majority be con- the should legitimate ignore risks are factor to not very real analysis. in the reasonableness the hindrance these racks sidered impose passenger flow. If each news- impedes pedestrian rack traffic by flow minute, per people impedes 208 newsracks arguments passenger for flow and 200,000 minute, people per a quarter secondary Authority’s aesthetics are the of that al- impedes number of newsracks arguments, majority gives but the short 6,000 people per most minute. This slow- I disagree shrift even to those. particular- trouble, could particularly down cause real ly majority’s disregard with the the during peak during holiday hours or the Authority’s passenger argument.12 flow least, very season. At the it is a valid majority acknowledges Authority’s government objective deserving of consid- argument pe- that each newsrack “reduces at trial. eration capacity by people traffic destrian flow minute, per any bag- allowing without Lastly, majority again forgets placed floor gage on the while the device is all Authority’s consider of the interests Maj. in use.” atOp. (citing Gannett holistically, tandem and instead determin- Network, Berger, Inc. v. Satellite ing Authority’s that “the pre- Info. interest F.Supp. (D.N.J.1989), rev’d on venting congestion cannot counterbalance (3d Cir.1990)). grounds, other 894 F.2d 61 significant on protected restriction ex- crediting But instead of this demonstrated pression.” Maj. Op. at 580-81. The ma- hindrance, pedestrian majority, with- jority should balance all of govern- justification, wholly out discounts it. proposed ment’s against interests ban, imposed by weigh burden not specifically, opinion More the majority argument individually each and atomisti- up a sets straw-man when it considers Thus, eally. whether not passen- “how much congestion would result from a ger argument flow dispositive is as carefully ‘limited placed number’ news- argument is entirely stand-alone inconse- racks,” Maj. Op. leaps and then quential. It is one simply evidentiary peg congestion the conclusion that the caused giving rise argument, to a discrete which by these newsracks would be “trivial” and be weighed is to with against others justify “cannot ban.” Commission’s imposed by burden the ban to determine Id. But this conclusion misses the mark for if ban is reasonable. First, three reasons. the majority should assumption not work from the of a “limited C. number” of newsracks. all fa- Granting Authority, vorable inferences to the it is The ultimate issue before the trial court clear the Publishers want Authority’s 208 news- is whether the ban is found throughout Airport, distributed reasonable when the interests not a weighed limited number. This is against court asked are the burden imposed order, summary to review a judgment ban. 991 F.2d at 159. give Here, instructions on an air- how to run govern- evidence shows that the port. significant ment has generat- interests in A understandably might be factfinder less valid to the extent that increased clutter trans- revenues, id., concerned about advertising aesthetics. The into lates decreased principally relies pure argument concerns visual about aesthetics does little Although clutter. help Authority's J.A. 250. this concern cause. security, along revenue ing COMPANY, LLC; GREGORY NICKEY ensuring smooth interest a modest

with Incorporated, Poppell’s Produce Further, the evi- movement. passenger Plaintiffs-Appellees, that the finding supports amply dence and on Publishers on the imposed burden v. is, newspaper racks by this ban readers LLC, AgriCap AGRICAP, a/k/a minimis, It affects a negligible. if not de Corporation, Financial airport passengers, number of very small Defendant-Appellant. statistically unlikely to are whom all of fac- Despite these newspaper. purchase LLC; Nickey Gregory Company, Authority’s ban tors, majority finds the Incorporated, Poppell’s Produce as a racks unreasonable Plaintiffs-Appellants, law. matter of v. majority de- although the respect, With LLC, AgriCap Financial AgriCap, a/k/a conclu- legal as a this conclusion scribes Defendant-Appellee. Corporation, summary judg- sion, the evidence 09-1130, Nos. 09-1162. exposes it as record ment factual simply truly There that it is. conclusion Appeals, United States Court might minds that reasonable is no doubt Fourth Circuit. how best disagree over reasonably Dec. Argued Accord- in this case. the balance strike the district court’s I conclude that ingly, Decided March and that this court finished work is not that work for not do

cannot and should therefore va- I would district court. district court the order of the

cate a trial on the merits this case for

remand and the Plaintiffs’ claims

affirmative defenses.

V. reasons, respect- I the above

For all of

fully dissent.

Case Details

Case Name: News & Observer Publishing Co. v. Raleigh-Durham Airport Authority

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Mar 12, 2010

Citation: 597 F.3d 570

Docket Number: 091010

Court Abbreviation: 4th Cir.