Judge finds constitutional flaws in city plan to regulate newspaper sales at Hartsfield International Airport

From the Fall 2000 issue of The News Media & The Law, page 16.

A federal judge has ruled that a plan imposed by airport officials to limit the number of newsracks at Atlanta’s Hartsfield International Airport is unconstitutional.

U.S. District Court Judge Richard Story ruled the airport’s newsrack plan, which called for publishers to rent city-owned racks, violated the First Amendment because it offended the publishers’ rights to distribute the paper.

The July ruling came in a lawsuit brought four years ago by The Atlanta Journal-Constitution, USA Today and The New York Times. The newspapers successfully blocked the plan, which had gone into effect after renovations to the airport prior to the 1996 Summer Olympics. The airport authority said it sought to limit the number of newsracks for reasons of safety, aesthetics and passenger convenience. The plan called for publishers to rent the metallic, coin-operated boxes for $20 per month from the city. Additionally, the plan gave airport officials the authority to select which publications would be sold and to cancel a newspaper’s newsrack permit.

During the pending lawsuit, the city confiscated Atlanta Journal-Constitution newsracks and stripped the delivery personnel of their security clearance, effectively preventing them from delivering newspapers to the airport. The newspaper had acted, according to the defendants, without obtaining a permit and the arrangement of the newracks violated the city fire code.

The court specifically targeted several flaws in the city’s newsrack plan. First, the court questioned the provision allowing airport personnel to decide which publications could be sold. The plan vaguely stated airport personnel would issue permits based on a “desire of the Department of Aviation to present a diversity of publications in a coherent manner.” The airport administrators could also cancel any permit on 30-days notice. The judge called the provision excessively broad and said it inappropriately granted “unbridled discretion” to airport personnel.

The judge also said the plan was not justified because the city allowed several other vending machines throughout the airport.

“The city’s asserted interest in aesthetics rings hollow in light of the presence of numerous other types of vending machines which are not subject to the same kind of restrictions,” Story wrote. The judge also said the city failed to justify the security concerns of the plan. According to his opinion, the city never consulted the chief security officer when formulating the newsrack plan.

Finally, the judge criticized the $20 per month fee the airport wanted to implement. Citing nine years of precedent that forbids the practice, the court ruled the city may not charge a licensing fee in excess of the amount needed to cover administrative costs nor can the city profit under the guise of defraying its administrative costs. The airport failed to calculate the administrative costs of running the plan when deciding on the $20 per month fee and instead contacted other airports to learn about similar programs, the judge wrote.

Peter Canfield, the attorney representing The Atlanta Journal-Constitution, said his clients believe the newsrack plan was a retaliation attempt by the city government for unfavorable editorials.

“It’s been pretty clear the mayor doesn’t like the editorial positions the paper has taken,” Canfield said.

The court permanently enjoined the city from enacting a plan that forces publishers to use newsracks with advertisements for other products, requires publishers to pay a fee not directly tied to administrative costs and grants unbridled discretion to airport officials in determining which publications can place newsracks at the airport.

The city has appealed the case to the U.S. Court of Appeals in Atlanta (11th Cir.).