The Raleigh-Durham Airport Authority cannot violate the First Amendment rights of newspaper publishers and readers simply because they pose "the slightest administrative inconvenience" to airport administrators, a federal appellate judge said this week. [Update 7/16/10: RDU concedes defeat, but N&O publisher doesn't like surrender terms. "We want to be right next to the Redbox."]
"It must be remembered that a newsrack ban like the one in place primarily restricts political speech and that political speech, of course, is at the core of what the First Amendment is designed to protect," Wilkinson wrote. "An informed citizenry is at the heart of this democracy, and narrowing the arteries of information in the manner sought by the Authority will only serve to impair our country's coronary health."
By a 7-4 vote, the court refused Tuesday to consider RDU's appeal of an earlier ruling. It was RDU's fifth straight loss against The News & Observer and three other newspaper publishers that sued the airport, which is owned by local governments in Wake and Durham counties, in 2004.
Usually it takes just one paragraph for an appellate court to announce that it will not hear an appeal from the losing party in an earlier ruling. But Wilkinson, whose career includes three years in newspapers (as editorial page editor for The Virginian-Pilot in Norfolk), took six pages to defend the constitutional rights of newspapers to distribute what they print, and to blast RDU for its policies.
This case involves the total absence of any newspaper dispensers at a public facility of a sort where such newsracks often are present, the unwillingness of the Authority even to consider the expressive interests at stake, and the further unwillingness of the Authority to explore alternatives that would be entirely compatible with the facility’s customary operations. The upshot of all this is to subordinate the clear First Amendment interest in the dissemination of ideas to the slightest administrative inconvenience, an odd and diminished place indeed for our foremost enumerated right. ...
The record presented to us in this case establishes two propositions beyond dispute: that the publishers were denied access to many potential readers and that the Airport Authority provided little more than speculation to justify so sweeping a restriction. ...
The Authority claimed its total newsrack ban was justified by revenue, security, congestion, and aesthetic concerns. But those claims suffered from the fact that the Authority allowed installations dispensing every other item a traveler might conceivably buy. In the secure portion of the Airport, these included prepaid telephone card dispensers, shoe shine stands, ATMs, pay e-mail machines, spa stations, and payphones. The Authority even had plans to add iPod vending machines. Outside the security cordon, the Authority made room for racks with free publications, vending machines offering floral bouquets, soft drinks, snacks, and luggage carts, and even for a display motorcycle. The Authority supplied no reason capable of withstanding even light scrutiny to think that core political speech should be uniquely disfavored relative to the cornucopia of other commercial products and services travelers could obtain outside the retail shops. ...
I have the greatest respect for the Airport Authority’s desire to provide an array of amenities to travelers, but there does come a point when public restriction of political speech should not take a complete backseat to lemonade and motorcycles.
Wilkinson directed one of his barbs directly at John Brantley, the airport director.
The Authority’s Airport Director explained that the decision to reject the publishers’ request was made for a very simple reason: "until we see a good reason to change the practice that we have been following, we’re going to stick with that practice." And apparently, the First Amendment did not qualify as a "good reason."
RDU has defended its refusal to allow news racks, saying that travelers have enough access to newspapers at airport shops. RDU says news racks would pose security risks, impede passenger flow through the terminals, degrade airport aesthetics and reduce airport authority revenue from shops. In a March ruling the court concluded that RDU's argument failed on all these points.
Mindy Hamlin, the RDU spokeswoman, said Tuesday that authority board members will confer with Jim Tatum, the board's attorney, about the cases.
Hamlin said RDU has no further comment today, and reported that the airport's legal bills have reached $503,000.
The Fourth Circuit order, with Wilkinson's opinion and a dissent by Judge Andre M. Davis, is attached here.