Ban on advocacy ads at airport ruled unconstitutional

Philadelphia's ban on noncommercial advertisements at the airport - sparked by one it rejected calling for prison reform - is unconstitutional, a federal appeals court ruled in a decision published Tuesday.

The NAACP, in conjunction with the American Civil Liberties Union of Pennsylvania, filed a lawsuit in 2011 claiming the city's rejection of an NAACP ad violated the group's First Amendment rights.

The ad, which was to be placed in the international arrivals section of Philadelphia International Airport, read: "Welcome to America, home to 5% of the world's people & 25% of the world's prisoners. Let's build a better America together."

At the time the city refused to sell the ad space, it had no written policy on airport advertisements. After the NAACP sued, the city briefly allowed the ad to go up, then in 2012 wrote a policy banning noncommercial advertisements. The NAACP then amended its lawsuit to challenge the city's policy.

On Tuesday, a three-judge panel of the U.S. Court of Appeals for the Third Circuit ruled in a split decision to uphold the U.S. District Court finding that the ban violated the First Amendment.

The Kenney administration did not immediately return requests for comment. When the case was argued in October, Michael A. Nutter was mayor.

"The Law Department is still reviewing the over-40-page ruling, so they don't have a comment at this time," city spokeswoman Lauren Hitt said."

The city had argued that social commentary or advocacy postings could dissuade other advertisers and cost the city money. Religious or controversial ads also could expose travelers to content they find offensive, the city said.

In the decision for the majority, Judge Thomas L. Ambro wrote that the city's rationales "suffer from a lack of record evidence. And even with the benefit of commonsense inferences, neither passes muster."

Ambro wrote that the city failed to provide proof that noncommercial ads would hinder the airport financially. The NAACP would have paid standard rate for the ad. In testimony, an airport official said the policy had nothing to do with revenue but rather with maintaining a pleasant airport atmosphere, according to the decision.

To that point, Fred Magaziner, who argued the case for the NAACP, noted that televisions and newsstands are in close proximity to ads and travelers throughout the airport.

Mary Catherine Roper, deputy legal director of the ACLU, said the decision emphasizes the high legal bar for government restrictions on free speech.

"It's important that our public spaces be available for discussion of important issues," she said. "But it's very important that the court focused on the evidence. When the government limits speech, it really has to prove what it's talking about. . . . 'Because I said so' is not enough."

Roper said the decision was unlikely to lead to the airport's being blanketed with messages from advocacy groups.

"You're not going to see a bazillion 'save our planet' or 'donate to fight cancer' ads," she said. "Advertising at the airport is tremendously expensive."

In March 2015, a federal court ruled that SEPTA's ban on anti-Muslim advertising violated free speech protections because the agency had allowed other noncommercial speech.

The agency later published new standards to prohibit all political, public-issue, and noncommercial ads.

jterruso@phillynews.com

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@juliaterruso