by Mark Wilson

The United States Court of Appeals for the Third Circuit held that a lower court's ban of a prison reform ad was unconstitutional. The court upheld a lower court's injunction, enjoining Philadelphia from prohibiting non-commercial speech advertisements at the airport.

In 2011, the National Association for the Advancement of Colored People (NAACP) released a report entitled Misplaced Priorities, discussing the dramatic disparity in government spending for prisons and education in American cities including Philadelphia, New York and Los Angeles. See:NAACP, Misplaced Priorities, (May 2011) (http://www.naacp.org/pages/misplaced-priorities). NAACP intended to widely promote the report's release.

As part of its promotional campaign, NAACP sought permission to run an advertisement for the report on two television monitors at the Philadelphia International Airport. "Welcome to America, home to 5% of the world's people & 25% of the world's prisoners," the ad declared against the backdrop of a silhouette of the Statue of Liberty. "Let's build a better America together."

Citing a supposed informal practice of accepting only ads that propose commercial transactions, Philadelphia officials refused to display the NAACP ad. The City rejected the ad despite having previously accepted issue-oriented advertisements and having no written policy governing the rejection of such ads.

In October 2011, the NAACP brought federal suit, alleging that the City's rejection of its ad violated the First Amendment. While the suit was pending, the City adopted a written policy expressly prohibiting the display of ads, which do not "propose a commercial transaction." Yet, the policy authorized the City to post messages promoting "the greater Philadelphia area" and "other City initiatives or purposes." Since the policy's enactment, no private noncommercial ads have been displayed at the Airport.

Three months after the policy was enacted, the City and NAACP entered into an agreement allowing the Misplaced Priorities ad to be run at the Airport. Pursuant to the agreement, NAACP filed an amended complaint alleging that the new written policy is facially unconstitutional. The district court agreed, granting summary judgment in favor of NAACP.

The Third Circuit affirmed. "The City has not presented record evidence sufficient to demonstrate that its ban is reasonable. Nor does the record permit us to draw that inference using common sense," the Court found. "As a result, the ban violates the First Amendment."

See: NAACP v. City of Philadelphia, No. 15-1002 (3rd Cir. 2016)

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