Judge rules dismissal premature in NAACP airport advertising case, allows suit over billboard refusal to proceed

By Jon Campisi | May 22, 2013

The City of Philadelphia has lost its bid to dismiss a federal complaint by the NAACP

alleging that Philadelphia’s policy barring “issue” and “advocacy” advertising on billboards within the city limits constitutes an infringement on citizens’ First and Fourteenth Amendment rights.

The National Association for the Advancement of Colored People and Pennsylvania’s chapter of the American Civil Liberties Union filed a federal civil rights action against the city in the fall of 2011, a case previously reported on by the Pennsylvania Record.

The plaintiffs took issue with the city’s refusal to allow the erection of a billboard near Philadelphia International Airport that was designed to call attention to the large amount of funding the U.S. government spends annually on prisoner incarceration.

The advertising campaign had come on the heels of an April 2011 report released by the NAACP titled “Misplaced Priorities” that focuses attention on the perceived problem.

The NAACP contends that a disproportionate amount of federal dollars are spent on prisons versus education.

In early 2011, the NAACP chose the Philadelphia airport as one of the locations at which to display a billboard advertisement stating, “Welcome to America, home to 5% of the world’s people, & 25% of the world’s prisoners.”

The city initially rejected the advertisement, court records show, but it then reversed course, and briefly allowed the billboard to stand before city officials adopted a written policy the following spring regarding airport advertising that would prohibit such advertising.

The plaintiff alleges that none of the non-commercial advertisements singled out by the city in its then-newly crafted policy would cause harm to the city, the airport or airport travelers.

The NAACP also contended that it was singled out for special treatment, since the city has apparently allowed the display of non-commercial advertisements from the likes of the Red Cross and other nonprofit groups.

In moving to dismiss the case, city lawyers argued that the NAACP’s claim fails because airport advertising policy is a “viewpoint neutral, reasonable regulation of private advertising in a nonpublic forum.”

In response, the NAACP argued that in order for the court to determine whether the city’s policy is unconstitutional, a determination would have to be made as to whether airport advertising space is a private or public forum.

That determination, however, requires a factual record, the NAACP argued in its opposition to the dismissal motion, which is something the court does not have before it at this stage of the litigation.

In her May 20 memorandum and order, U.S. District Judge Cynthia M. Rufe agreed with the plaintiff, writing that given the “lack of a developed factual record, the Court finds that it is premature to classify the forum at this time.”

“In the absence of a forum classification, the Court is unable to determine whether the policy is constitutional,” Rufe wrote. “The City does not argue in the motion that their policy is narrowly-tailed to achieve a compelling government interest as would be necessary to render a policy implemented in a designated public forum constitutional.”

Rufe wrote that to discern intent, courts must look at the purpose for which the defendant, in this case the city, uses the space in question, in addition to a defendant’s policy and past practice in using the space.

Rufe said she had no choice but to allow the litigation to move forward at this stage of the proceedings because Third Circuit Court of Appeals precedence says that a trial court must engage in a “fact-specific” analysis of the forum in question, which in this case is airport advertising space.

At the same time, Rufe did point out that established constitutional law provides that the government can, in certain situations, limit speech that takes place on its own property without running afoul of the First Amendment.

“Where a government forum has not been opened to the type of expression at issue in a given case, government restrictions on speech need only be reasonable and viewpoint neutral, with reasonableness judged by the purpose served by the relevant forum,” Rufe wrote, citing case law. “Where, however, the property in question is either a traditional public forum or a forum designated as public by the government, the government’s ability to limit speech is impinged upon by the First Amendment.”

Rufe’s decision follows oral arguments that took place at the federal courthouse late last month, records show.

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