A Tale of Two Airports

by Kirsten E. Small

Over a strong dissent by Judge Davis, the Fourth Circuit recently ruled that a total ban on newspaper racks by the Raleigh-Durham International Airport violates the First Amendment. News & Observer Publishing Co. v. Raleigh Durham Airport Authority, No. 09-1010 (Mar. 12, 2010).

The Publisher has its newspapers for sale in airport shops, which are required to be open before the first flight leaves in the morning and until after the last flight arrives. Nevertheless, some 30-odd flights arrive each evening after the shops have closed, depriving arriving passengers of the ability to purchase that day's paper. The majority also noted that papers were sometimes unavailable when the shops opened, or sold out before the end of the day.

The Airport does not allow any newspaper racks in the terminals, citing four concerns: aesthetics; preserving revenue for airport shops (particularly, revenue from incidental purchases made by those buying papers); preventing congestion (studies show that a newrack in a corridor reduces traffic flow by 42 people per minute when closed, and by 110 people per minute when open); and security (including the need to screen delivery persons and the possibility that a newsrack could be used as a hiding place for an explosive). Relying on Multimedia Publishing Co. v. Greenville-Spartanburg Airport, 991 F.2d 154 (4th Cir. 1993), the majority affirmed the district court's grant of summary judgment to the newspaper, concluding that the Airport's interests did not outweigh the "significant" restriction on the Publisher's protected expression.

Judge Davis' dissent challenged the majority's conclusion that there was no issue of fact for the jury to resolve, chastising the majority for "answer[ing] the wrong inquiry"--i.e., whether the Airport's interests outweighed the Publisher's rights, rather than whethere there was a material question of fact for trial. Judge Davis noted the strange procedural posture of the case: The district court first denied summary judgment, then sua sponte reversed itself a year later, without any intervening briefing by the parties.

Judge Davis then identified numerous facts tending to contradict the majority's conclusions regarding the significance of the restriction on the Publisher's rights; the similarity of this case to the prior litigation involving the Greenville-Spartanburg Airport; and the strength of the Aiport's interests in restricting newspaper sales to shops.

As is often the case with dissenting opinions, the pictures painted by the majority and the dissent are in sharp contrast. More than pointing out factual differences, however, Judge Davis challenges the majority's juridical approach to review of summary judgment, asserting that the majority decided the case on the merits rather than simply determining whether there was a genuine issue of material fact.