Harlan Jacobsen v. City of Rapid City

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 92-3182
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Harlan L. Jacobsen, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
City of Rapid City, South Dakota; *
William Bacon, Airport Administrator, *
*
Defendants - Appellants. *

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Submitted: June 12, 1996
Filed: October 22, 1997
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Before LOKEN, JOHN R. GIBSON, and HANSEN, Circuit Judges.
___________

LOKEN, Circuit Judge.

The City of Rapid City, South Dakota, and Airport Administrator William Bacon
(collectively, “the City”) appeal a district court order permanently enjoining them from
banning Harlan L. Jacobsen’s newspaper vending machines, or newsracks, from the
Rapid City Regional Airport terminal. The City argues that its policy regarding
newsracks is reasonable and therefore does not violate Jacobsen’s First Amendment
rights. Although we find most of the City’s reasons for banning newsracks
unpersuasive, we conclude that the record does not support an injunction against the
revenue-raising aspect of its policy. Therefore, we reverse.
The Airport opened a new terminal in 1988. The upper level has a secure
concourse area for boarding and exiting airplanes, and a preconcourse area that
includes a gift shop, restaurant, lounge, public rest areas, and public telephones. The
lower level contains customer service areas for airlines, limousines, and rental cars, and
the baggage claim area.

The Airport generates revenues through landing fees, parking lot fees, rental car
company revenues, and rents and charges to other terminal tenants. One who wishes
to use terminal space for commercial activity must be approved by the City’s Regional
Airport Board and enter into a written lease. See S.D. CODIFIED LAWS § 50-7-3.

Jacobsen publishes Solo RFD, a monthly newspaper providing services and
advice to single people. He prefers to distribute Solo RFD through newsracks. There
was a Solo RFD newsrack at the Airport’s prior terminal for two or three years. After
the new terminal opened, Jacobsen placed a newsrack in a public area of the terminal
without seeking the City’s permission. Eight or nine months later, Bacon removed the
newsrack to a nonpublic conference room. When Jacobsen complained, Bacon advised
that it was Airport policy that newspapers be sold through the gift shop because “if
things were to be sold in the airport there would have to be some revenue generated.”
Bacon suggested that if Jacobsen wished to sell his newspapers at the Airport he should
contact the gift shop. Jacobsen instead filed this lawsuit, alleging that the Airport is a
public forum and therefore banning newsracks violates his First Amendment rights.

At the time of the one-day trial, there were no other commercial newsracks in
the new terminal. The City had denied two other newspapers permission to place
newsracks in the terminal. One, USA Today, then distributed through the gift shop.
The Rapid City Chamber of Commerce had been granted permission to place a

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newsrack in the terminal to distribute free literature. Disagreeing with Jacobsen, the
district court held that the Airport is a nonpublic forum. However, the court concluded
that the City’s ban on commercial newsracks was not a constitutionally reasonable
restriction on speech because the City failed to prove that its asserted interests in
operational efficiency, safety, security, aesthetics, and revenue justified the ban. The
court permanently enjoined the City “from enforcing a total ban of [Jacobsen's]
newsracks from the Rapid City Airport.” The City appeals. We review the
constitutionality of its policy de novo. See Bose Corp. v. Consumers Union, Inc., 466
U.S. 485, 508-09 (1984).

I.

The First Amendment protects both the publication and distribution of protected
material, even if the method of distribution involves public property. See, e.g., City
of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 430-31 (1993) (invalidating
ban on newsracks on public property). The extent to which government may
constitutionally restrict protected expression on public property depends upon whether
that property is a traditional public forum, a designated public forum, or a nonpublic
forum. As the district court recognized, a public airport terminal is a nonpublic forum
for First Amendment purposes. See International Soc'y for Krishna Consciousness, Inc.
v. Lee, 505 U.S. 672, 680 (1992). Accordingly, the City’s newsrack policy "need only
be reasonable, as long as [it] is not an effort to suppress the speaker's activity due to
disagreement with the speaker's view." Id. at 679.

"The reasonableness of the Government's restriction of access to a nonpublic
forum must be assessed in the light of the purpose of the forum and all the surrounding
circumstances." Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S.
788, 809 (1985). The City contends that its interests in airport maintenance, safety,
security, operational efficiency, aesthetics, and revenue justify its policy regarding
commercial newsracks in the terminal. As the district court noted, these are legitimate

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governmental interests that the City may promote through reasonable means. See Clark
v. Community for Creative Non-Violence, 468 U.S. 288, 297-99 (1984) (maintenance
and public safety); Members of the City Council v. Taxpayers for Vincent, 466 U.S.
789, 805-07 (1984) (aesthetics); Heffron v. International Soc'y for Krishna
Consciousness, Inc., 452 U.S. 640, 650 (1981) (public safety); Jamison v. City of St.
Louis, 828 F.2d 1280, 1285 (8th Cir. 1987) (security and operational efficiency), cert.
denied, 485 U.S. 987 (1988); Gannett Satellite Info. Network, Inc. v. Metropolitan
Transp. Auth., 745 F.2d 767, 775 (2d Cir. 1984) (revenue). However, with the
exception of its revenue rationale, which we will discuss in Part II, we agree with the
district court that the evidence does not substantiate the City’s purported reasons for
banning commercial newsracks in the Airport terminal:

-- The City’s contention that newsracks interfere with Airport maintenance was
supported only by vague hearsay testimony of complaints by Airport cleaning crews.

-- The City’s concern that newsracks are unstable or top heavy was not
supported by evidence of injury from Jacobsen's newsracks. Design safety concerns
should be addressed through "time, place, and manner" restrictions, not a total ban.

-- As to Airport security, the City's witnesses speculated that newsracks could
be used to conceal a bomb. The district court concluded that this rationale was mere
pretext because the terminal has many other places where a bomb could be hidden,
such as waste containers and plant holders, and if anything, the glass door on the front
of a newsrack makes it a less suitable place to hide a bomb. See Multimedia Publ'g Co.
v. Greenville-Spartanburg Airport Dist., 991 F.2d 154, 162 (4th Cir. 1993) (labeling
this security concern about newsracks specious).

-- The City claimed that newsracks in the terminal will negatively affect Airport
operations, but the district court found that, even in high-traffic areas, the newsracks
are sufficiently removed from pedestrian traffic to avoid obstructing or impeding

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travelers. See Lee v. International Soc'y for Krishna Consciousness, Inc., 505 U.S.
830, 831 (1992) (severe congestion at New York City airports did not justify a total
ban on leafleting).

-- The City opined that newsracks detract from Airport decor, but the district
court found that the appearance of Jacobsen's newsrack was not incompatible. Airport
decor may be regulated but would rarely if ever justify a total ban on protected First
Amendment activity.

Looking at the issue more broadly, there is simply no evidence that placing
Jacobsen's newsracks in public portions of the terminal will interfere with the Airport's
principal intended use, to facilitate air travel. Moreover, as the City recognized by
leasing terminal space to a gift shop, a restaurant, and a lounge, a certain amount of
commercial retail activity is consistent with the intended uses of an airport terminal, and
making newspapers reasonably available to air travelers is a compatible commercial
activity. See Lee, 505 U.S. at 688-89 (O'Connor, J., concurring); Multimedia
Publishing, 991 F.2d at 163. Newsracks are common in airport terminals, and Jacobsen
has operated a newsrack in both Rapid City terminals without incident.
II.
During the period in question, the City had granted the gift shop concessionaire
the exclusive right to sell various consumer products in the new terminal, including
“books, magazines, [and] newspapers.” Under the five-year Lease and Concession
Agreement, the concessionaire paid the City a fixed annual base rent of $5.25 per
square foot for leased terminal space, plus the greater of a minimum annual concession
fee or eight percent of the gift shop’s gross revenues, plus the gift shop’s pro rata share
of Airport utility and energy costs. If the City must allow Jacobsen and other vendors
to sell First Amendment protected materials in newsracks outside the gift shop, the
concessionaire will lose revenues, making its exclusive contract less valuable. That in
turn will reduce the City’s leverage in bargaining for terms such as minimum annual

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concession fees and pro rata utility charges. See Gannett Satellite Info. Network, Inc.
v. Berger, 716 F. Supp. 140, 151-52 (D.N.J. 1989), rev'd in part on other grounds, 894
F.2d 61 (3d Cir. 1990). The City argues that this revenue interest justifies its policy
regarding commercial newsracks in the terminal.

This revenue issue is real and complex. From a proprietary perspective, it is
presumptively reasonable for the manager of a small airport to conclude that granting one
gift shop concessionaire the exclusive right to sell consumer products in the terminal will
both maximize that type of leasing revenues and minimize leasing costs by eliminating
the need to negotiate with many different types of vendors. As any frequent air traveler
knows, large airports typically make a different decision, opting for retailing diversity.
But these are decisions better made by airport managers than federal judges. Thus, there
is a cost, at least in decision-making autonomy, in deciding that the First Amendment
precludes the City from enforcing its exclusive contract with the gift shop by refusing to
allow commercial newsracks in the terminal.1

On the other side of the reasonableness equation, Jacobsen presented no evidence
at trial of the impact that selling Solo RFD in the gift shop would have on its sales and
circulation in the Airport terminal. All we have on this issue is Jacobsen’s unsupported
assertion: “The only thing that we found that works in a consistent basis and is
economically feasible is basic newsrack sales.” And that testimony was directed at Solo
RFD distribution generally. Jacobsen did not claim that he has unsuccessfully tried
distributing at a small airport’s exclusive gift shop -- where one seller serves a
geographically captive market. Nor did he present data comparing Solo RFD sales
through gift shops versus newsracks in locations comparable to the Rapid City Airport

1
On this issue, Multimedia Publishing is distinguishable because there was no
proof of lost revenue. In addition, the court’s assertion that imposing a charge for
newsracks is a “simple” alternative for the airport, 991 F.2d at 161, is overly simplistic.

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terminal. The gift shop concessionaire testified that he was willing to sell Solo RFD
in the gift shop, which is open fifteen of the sixteen hours per day that the Airport is
open to the public. On this record, the district court’s finding that the gift shop is not
a “viable alternative channel[] for the sale of Jacobsen’s newspapers” was speculation,
unsupported by the evidence, and based primarily on the court’s mistaken view that the
City is not entitled to “profit” from newspaper sales.2

Jacobsen tried this case on the premise that the Rapid City Airport terminal is
a public forum and he therefore had an absolute First Amendment right to free use of
the terminal for his newsracks. This was a faulty premise. The Airport is a nonpublic
forum, and the City has a legitimate revenue interest in operating the Airport.
Restrictions furthering that interest must be reasonable but need not be the most
reasonable restrictions. See United States v. Kokinda, 497 U.S. 720, 730 (1990). Nor
does the First Amendment grant Jacobsen a right to the most cost-effective means of
expression or distribution. See Gannett, 745 F.2d at 774. We are aware that
newsracks are an effective means of distribution, “especially for low-budget,
controversial” newspapers. City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S.
750, 762 (1988). The City must take that into account in implementing its newsrack
policy. However, the City’s policy thus far “has not been shown to deny access within
the forum.” Heffron, 452 U.S. at 655. Until Jacobsen comes forward with concrete

2
The district court held that the City’s rationale is inconsistent with cases holding
“that the government may not profit by imposing a fee on a First Amendment right.”
However, those cases involved fees imposed by the government acting as sovereign.
See Jacobsen v. Harris, 869 F.2d 1172, 1174 (8th Cir. 1989); Jacobsen v. Crivaro, 851
F.2d 1067, 1071 (8th Cir. 1988). When a newspaper leases public property for
commercial use, the First Amendment does not strictly limit the rent government may
charge to its fully allocated costs as landlord. If government is acting in a legitimate
proprietary capacity, the relevant questions are whether a purportedly reasonable rent
is a pretext for discrimination against protected First Amendment activity, and whether
the rent unreasonably precludes such activity in light of the government’s proprietary
interest. See Gannett, 745 F.2d at 774-75.

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evidence that the City’s facially reasonable policy regarding distribution of newspapers
at the Rapid City Airport either is intended to discriminate or unreasonably fails to
provide Solo RFD a viable means of airport distribution, he is not entitled to injunctive
relief interfering with the City’s proprietary revenue interest in operating the Airport
for the benefit of air travelers.

The judgment of the district court is reversed, and the case is remanded with
directions to dissolve the permanent injunction.

JOHN R. GIBSON, Circuit Judge, concurring in part and dissenting in part.

I concur in Part I of the court's opinion.

I dissent from Part II for the reason that it places the burden on Jacobsen with
respect to the City's policy restricting his speech. Perry Ed. Assn. v. Perry Local Ed.
Assn., 460 U.S. 37, 45-46 (1983) places this burden on the City.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

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