Commercial Advertising at Airports. September 7, 2014

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1 Commercial Advertising at Airports September 7,

2 Commercial Airports= Nonpublic Foras May limit speech based upon its subject matter Proprietor of the airport may develop and make reasonable choices concerning the types of advertising it chooses to display Steps taken by proprietor to avoid controversy or the perception of favoritism Forum Analysis Cases: Int l Soc. For Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992); Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788 (1985); Perry Educ. Ass n v. Perry Local Educators Ass n, 406 U.S. 37 (1983); Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) 4

3 Abandonment of Nonpublic Forum If you fail to follow advertising standards, then you could abandon the nonpublic forum If you fail to consistently apply the advertising standards, then you could abandon the nonpublic forum 5

4 Phoenix s Public Transit Advertising Standards Upheld advertising on outside of bus to commercial advertising & found nonpublic forum Children of the Rosary v. City of Phx., 154 F.3d 972, 978 (9 th Cir. 1998) : City permitted only commercial advertising on buses, bus shelters and benches The subject matter of transit bus, shelter and bench advertising shall be limited to speech which proposes a commercial transaction 6

5 Change to Phoenix s Transit Advertising Standards In 2011, Public Transit updated its advertising standards to refer to state statutes to define terms used and revised its advertising standards A commercial transaction must be proposed and must be adequately displayed on the transit advertising panel Rejected gun training ad that also included personal opinions about gun rights 7

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7 Lawsuit Filed Superior Court found in favor of Phoenix The Court of Appeals found that because the City of Phoenix unconstitutionally applied its Transit Advertising Standards to Korwin s advertisement, the Superior Court s decision was reversed in favor of Korwin. Korwin v. Cotton et al, 323 P.3d 1200, May 8,

8 Court Findings The Court of Appeals upheld the 2011 City Transit Advertising Standards as valid under the First Amendment as reasonable restrictions in the nonpublic forum The City may enforce the 2011 standards to allow commercial advertisements including when the ad contains significant additional non-commercial elements as long as the proposed commercial transaction is adequately displayed With the deletion of limited to language from the 2009 standards, blending a commercial proposal and political non-commercial language satisfied the 2011 standards that a commercial transaction be proposed and adequately displayed 10

9 Learned Lessons Be careful when you draft advertising standards to be clear as to what you intend Consistently follow those standards Protect the nonpublic forum status Consider clearly setting out in your codes, regulations or policy that the airport is a nonpublic forum Educate your Directors and staff as to the standards and the implications if not followed Develop a committee/work group to review questions or rejected ads 11

10 Airport Advertising Standards Have advertising standards in place Consider limiting advertising to a commercial transaction Advertising standards make even clearer: The subject matter of and the speech in the advertisement must be limited to a proposed commercial transaction

11 Sample Advertising Prohibitions The advertising may not: Be false, misleading, or deceptive Relate to an illegal activity Contain non-commercial speech Advertise or depict tobacco or smoking products including in a non-smoking form Advertise or depict spirituous liquor Advertise or depict violence or anti-social behavior Advertise or depict obscene, pornographic, vulgar, profane, or scatological language or graphics Advertise or depict sexual conduct or material harmful to minors Depict a nude or seminude person Depict, relate to, or reference a website or other medium that relates to specified sexual activities or specified anatomical areas *When appropriate the prohibitions refer to state statute definitions

12 Oregon s Case (State Constitution Challenge) PDX adopted and articulated clear standards distinguishing expressive speech venue and advertising standards Consistently adhered to standards PDX non-public forum status was affirmed under Jews for Jesus v. Port of Portland, 172 Fed Appx 760 (9 th Cir. 2006) & the Port has not opened the advertising panels for public discourse 14

13 ACLU/ Oregon Wild v. Port of Portland Oregon Constitution, Article I, Section 8. Freedom of speech and press. No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right. (1852) Karuk Tribe of California v. Tri-County Metropolitan District of Oregon, 241 OrApp 537, 251 P3rd 772 (2011) (To the extent Tri-Met classified speech on basis of content it violated Art I, Section 8 of the Or Constitution) 15

14 PDX Rules - Balancing Speech and Transportation Purpose Portland International Airport Rules, Chapter 8, The use of the Airport for engaging in free speech activities,... shall not impair or interfere with the rights of other persons or the transportation function of the Airport. *** The Rules are intended to balance an individual s free speech rights with the preservation of the Airport s transportation primary purpose... 16

15 PDX Rules for Advertising CHAPTER 13 ADVERTISING, PROMOTION AND SIGNAGE 1. Exclusive Contract For Advertising Services The Port maintains a separate advertising contract for placement of advertising and promotional displays throughout the Airport. If an individual Tenant is interested in advertising in the public areas of the Terminal or on the concourses, the Port's advertising Concessionaire should be contacted directly regarding available spaces. Contact information for the Port's advertising Concessionaire can be obtained by calling the Senior Concessions Operations Manager. All other Tenant advertising and promotion requests shall be made in writing to the Port's Aviation Business and Properties Department ("Aviation Business and Properties Department"). Advertising materials cannot be placed in the Parking Garages or in the rental cars lobby.

16 PDX Rules for Advertising CHAPTER 13 ADVERTISING, PROMOTION AND SIGNAGE 2. Restrictions On Advertising At The Airport The Port does not permit the placement of advertising materials at the Airport that contain: (a) religious or political messages; (b) content that violates the intellectual property rights of another; (c) messages or images that are deceptive or misleading; (d) messages or images that depict physical violence against a person or an animal; (e) content prohibited by law or a court order; or (f) aromatic or scented displays. These restrictions are intended to: (i) maintain neutrality on religious and political issues; (ii) avoid creating discomfort for the travelling public potentially generated by controversial topics; (iii) avoid the potential for violating the Establishment Clause of the U.S. Constitution which prohibits a public entity from advancing religion; and (iv) prevent a potential reduction in income earned from selling advertising space, because commercial advertisers would be dissuaded from using the same forum commonly used by those wishing to communicate controversial, political or religious messages.

17 Alliance Airport Advertising Contract 6.3 Prohibited Advertising Concessionaire may not display advertising under this Lease that: (a) contains profanity or obscenity; (b) includes nude images of a person; (c) violates intellectual property rights of another; (d) is deceptive or misleading; (e) depicts explicit sexual acts; (f) depicts or promotes tobacco products; (g) depicts physical violence against a person or animal; (h) is prohibited by law or court order; (i) includes aromatic or scented displays; or (j) is disapproved by the Port. * * * 19

18 Port s Position 1. PDX Rule restricting placement of viewpoint neutral advertisement is not a law therefore Oregon Constitutional provision does not apply 2. Port s regulation of use of facilities are reasonable time, place, and manner regulations of speech 3. Even if court considers advertising policy to be a content-based regulation of speech, it falls within a historical exception that existed at the time of the enactment of the constitution, that a municipal corporation could act in proprietary capacity to manage its commercial interests unburdened by requirement of content neutrality 20

19 Status of Case Multnomah Co. County Court found that Port policy does not violate U.S. Constitution but does violate Oregon Constitution; ordered Port to run Oregon Wild ad Supreme Court affirmed Karuk Tribe case in 3-3 split decision; Judge Brewer had been on Court of Appeals when Karuk decided recused on Supreme Court bench Port appealed and requested certification to Supreme Court; Oregon Wild moved to dismiss on ground of mootness since ad had run (Oregon does not recognize capable of repetition doctrine ) Motion to Dismiss denied this week; briefing continues 21

20

21 Contacts: Wendy Hain Assistant General Counsel Port of Portland Jo Ellen McBride Assistant Chief Counsel City of Phoenix 23

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