Foto USA, Inc. v. Board of Regents

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 96-3483

D. C. Docket No. 95-40491-RH

FOTO USA, INC., d.b.a Images of America,

Plaintiff-Appellant,

versus

BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF
FLORIDA, JOHN C. MOYLE, personally and in his
official capacity as a member of the Board of
Regents of the University System of Florida,
et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Florida

(May 20, 1998)

Before BLACK, Circuit Judge, and HILL and HENDERSON, Senior Circuit
Judges.

HILL, Senior Circuit Judge:

Foto USA, Inc. seeks to take photographs at the graduation ceremonies of three
state universities in order to solicit sales of the photographs to the graduates. Foto

USA, Inc. brought this action for injunctive and declaratory relief seeking an order

declaring that it has both a First and Fourteenth Amendment right to take these photos,

and enjoining the universities from prohibiting it from doing so. The district court

granted summary judgment to the universities and Foto USA, Inc. appeals.

The University of Florida, the University of South Florida and Florida State

University conduct ceremonies several times each year to commemorate their

students’ graduation. These ceremonies are by invitation only, and are generally

attended by the families and friends of the graduates. The occasion is celebratory but

dignified.

In order to make professional quality photographs available to their graduates,

each of these universities has solicited bids from commercial photographers, including

Foto, USA, Inc. (Foto), for a contract to take pictures of the universities’ respective

graduates as they walk across the stage to receive their diplomas. The successful

bidders received exclusive contracts obligating them to photograph the graduates as

they receive their diplomas and granting them the benefit of soliciting the sale of these

photographs to the graduates.

Foto chose not to bid on these contracts although it is in the business of taking

2
the same type of graduation photographs and soliciting their sale to the graduates.

Foto obtains invitations to graduation ceremonies and, once there, takes its

photographs in any way it can. Foto wishes to take such photographs at the

graduation ceremonies of these universities. It has presented itself and its equipment

at the ceremonies of these schools and attempted to photograph the graduates in order

to solicit sales of the photographs.1

The universities concede that Foto may attend and take a limited number of

photographs from the designated seating area just as parents are permitted to do. At

some points in its brief, Foto makes the specious argument that this is all it wishes to

do, i.e., “what every other ticket holder can do: take pictures.” If this were so, we

would dismiss this case for lack of a case or controversy. Foto’s real claim, however,

is that it has the same right as the successful commercial photographer bidder to attend

the graduation ceremonies and take pictures for a commercial purpose.2 The parties

agree that the universities prohibit Foto from taking a photograph of each graduate in

1
Foto sought to photograph each graduating student at the ceremonies, not
merely to photograph any student to or for whom it had made an advance sale.
2
If Foto were correct that it shares the successful bidder’s right to take pictures
for a commercial purpose, the universities would be required to stage their ceremonies
before all commercial photographers who wish to feast upon this picture-selling
opportunity, and the exclusive contract granted the successful bidder would be a
nullity.
3
order to solicit the sale of that photograph to the graduate.

II.

Foto claims that it has a right under the First Amendment to commercial access

to the graduation ceremonies. Foto asserts that the commercial act of soliciting the

sale of photographs it intends to create there is the expressive activity which is

protected by the First Amendment. It locates authority for this position in our holding

in Speer v. Miller, 15 F.3d 1007 (11th Cir. 1994).

In Speer, a lawyer sued the State of Georgia, seeking injunctive relief against

the enforcement of its statute which expressly permitted the public to inspect and copy

the records of law enforcement agencies, but made it unlawful to inspect or copy the

records “for any commercial solicitation.”3 Speer v. Miller, Civil Action No. 92-1094,

slip op. p. 8 (N.D. Ga. September 25, 1992). On appeal, we held that a First

Amendment challenge is appropriate where a state grants access to its public records,

3
The Georgia statute provides:

(a) It shall be unlawful for any person to inspect or copy
any records of a law enforcement agency to which the
public has a right of access under [the statute] for the
purpose of obtaining the names and addresses of the
victims of crimes or persons charged with crimes or
persons involved in motor vehicle accidents or other
information contained in such records for any commercial
solicitation of such individuals or relatives of such
individuals.
4
but prohibits the use of public records by one who wishes to engage in non-misleading

truthful commercial speech. 15 F.3d at 1010. On remand, the district court held the

statute unconstitutional under a strict scrutiny analysis. 864 F. Supp. 1294, 1302

(N.D. Ga. 1994).

Foto maintains that Speer recognized a broad First Amendment right of

commercial access to public information. Although Foto concedes that this case

differs from Speer in that it will have to create the photographs which are the object

of its commercial solicitation, it argues, nonetheless, that any difference between

seeking “access to the photographic image of graduates rather than access to

documents or other records” is “immaterial.” Foto claims that, under Speer, it may

not be prohibited from taking the picture of every graduating senior at the state

university graduation ceremonies because “Foto intends to solicit graduates to sell its

photographs, and it is this solicitation that is the critical and protected activity.”

III.

There is no First Amendment right of access to public information. See

Houchins v. KQED, Inc., 438 U.S. 1 (1978) (“There is no discernible basis for a

constitutional duty to disclose, or for standards governing disclosure of or access to

information.”); Calder v. I.R.S., 890 F.2d 781, 783-84 (5th Cir. 1989) (holding that a

statute restricting access to IRS information does not violate the First Amendment and

5
commenting: “Quite simply, the right to speak and publish does not carry with it an

unrestricted license to gather information.”); Capital Cities Media, Inc. v. Chester,

797 F.2d 1164 (3d Cir. 1986) (holding that a government agency could deny a

newspaper access to government records despite the apparent effect the denial might

have on the newspaper’s exercise of its First Amendment rights). In Speer, the district

court itself noted on remand, “The Constitution itself is neither a Freedom of

Information Act nor an Official Secrets Act.” 864 F. Supp. at 1297.

Commercial photographers are no exception to this general rule. D’Amario v.

Providence Civic Center Authority, 639 F. Supp. 1538 (D.R.I. 1986), aff’d, 815 F.2d

692 (1st Cir. 1987). A commercial photographer has no right of special access, nor

any constitutional right to memorialize a public event by photographic means. Id.

(denying photographer right to enter public civic center and take pictures of musicians

despite “no camera” rule because “any right of access which he might have is, at best,

a right to attend, listen, and report, as opposed to a right to film or record events”).

Nor does Foto claim a First Amendment right of access to information. Foto’s

claim is that, where access is permitted, Speer prohibits the state from restricting the

commercial use of that information. The general public (parents and anyone else with

an invitation), the official photographers, and Foto are all permitted access to

university graduation ceremonies. All are permitted to take photographs of the

6
graduates. Foto contends that, under Speer, the universities may not prohibit its

commercial use of these photos.4

Even if Speer were analogous to this case,5 it would not control the result. In

Speer, the Georgia statute granted public access to, but punished all commercial use

of its traffic records. The universities in this case have not prohibited commercial

access to their graduating ceremonies. In fact, they have encouraged commercial

access by contracting with official photographers, after open bidding, to attend and

take pictures of their graduates. The First Amendment is not implicated by this

practice.

They do seek, however, to limit commercial access to just one photographer.

To this end they granted exclusive rights to photograph the graduation ceremonies for

4
Foto agrees that the state may restrict even First Amendment protected
commercial solicitation if it can show that the restriction directly advances a
substantial government interest under the test enunciated in Central Hudson Gas &
Elec. Corp. v. Public Service Comm’n, 447 U.S. 557 (1980). Its position is that the
universities’ claim that they prohibit Foto from its photography in order to avoid
disruption of the ceremonies is both untrue and too trivial to satisfy Central Hudson’s
requirement that any regulation be in furtherance of a substantial governmental
interest. We do not consider the reasonableness of any restrictions the universities
may place on Foto’s photography because we hold that no First Amendment right is
implicated in this case.
5
Whether the creation of a photograph is similar to copying public records is not
readily apparent.
7
commercial purposes to official photographers.6 Although Foto asserts that it has

“withdrawn all of its challenges to the ‘exclusive contracts’ between the University

System and its ‘official photographers,’” Foto still insists that the State may not

prohibit Foto from commercial access to its graduation ceremonies if it grants that

same right to an official photographer.7

The real issue in this case, therefore, is whether the Fourteenth Amendment’s

guarantee of equal protection of the law requires the universities to permit every

commercial photographer who wishes to take photographs of the graduates for a

6
If the contracts were not exclusive and any photographer could take pictures
and then solicit the graduates to buy them, the incentive for the official photographer
to attend and take pictures would be diminished by the amount of business he loses
to the “outlaw” photographers. If the official photographer cannot make a profit, he
will not bid again and the university will be left to rely on the whim of the “unofficial”
photographers to attend and take pictures.
7
Foto’s equal protection argument on appeal is that “[t]he court below
erroneously determined that allowing one professional photographer access to
graduation ceremonies and denying it to a professional photographer does not violate
equal protection.” In its motion for summary judgment to the district court, Foto
argued: “Plaintiff is not claiming that his equal protection rights are being violated vis-
à-vis the official photographers by being denied access to the stage or orchestra pit
area, but vis- à-vis the other members of the audience, by being denied the ability to
sit down and shoot pictures without being harassed. . . .” The universities argue that
Foto has waived any claim of discrimination against it in favor of the official
photographers, by failing to raise it in the district court. We note only that Foto has
waived on appeal any argument that the universities’ treatment of parents has denied
Foto equal protection of the law.
8
commercial purpose to do so.8 Foto claims that it does.

Foto relies on Florida State University Chapter, Local 1880 v. Florida Bd. of

Regents, 355 F. Supp. 594 (N.D. Fla. 1973) for its argument that the State has

discriminated against it by disallowing it commercial access to graduation. This

reliance is misplaced. That case involved whether the Board of Regents could deny

permission to the faculty union of Florida State University to use university facilities

which the American Association of University Professors (AAUP) had been allowed

to use. Neither the faculty union nor the AAUP, however, sought access to university

facilities for a commercial purpose. Neither had any commercial contract with Florida

State University. The issue was one of mere access to university facilities.

In this case, however, Foto does not seek mere access. It seeks commercial

access.9 The universities seek to deny Foto commercial access to its graduation

8
In an early demand letter to the universities, Foto itself recognized that “a
horde of professional [photographers][ sic] descending on your ceremony, crowding
out the parents” would be possible under its position. Nevertheless, Foto assured the
universities that “[s]uch over-coverage would result in profit for no one.” and “[i]f a
crowd of photographers turns up, then you could devise specific rules to deal with
everyone’s needs.”
9
We would deny any equal protection claim regarding the universities’
treatment of the parents even if were not waived. Foto is not similarly situated to the
parents who wish merely to memorialize their children’s graduation from college.
Foto’s commercial purpose for taking pictures of all the graduates distinguishes it
from the parents. Since they are not similarly situated, the universities do not
discriminate against Foto by treating it differently from the parents.
9
ceremonies because they each have an exclusive contract with an official

photographer.10 If it is within the universities’ power to enter such contracts, then

Foto is not denied equal protection of the law merely because it chose not to bid on

the contracts, and so does not reap the benefit of that bargain.

It is axiomatic that a state may enter into contracts with parties for the purchase

of services. In fact, the state, as a purchaser of services, enjoys a broad freedom to

deal with whom it chooses on such terms as it chooses. Coyne-Delany Co. v. Capital

Dev. Bd., 616 F.2d 341, 342 (7th Cir. 1980). At least in the absence of an invidious

and discriminatory design to favor one individual over another, a state agency’s

purchasing decision is not subject to review in federal court. Id. Foto chose not to bid

on these contracts. It cannot be heard now to claim that it was discriminated against

in their award. Id.

Furthermore, a state may enter into an exclusive licensing contract with a party

without offending federal or state antitrust laws. Murdock v. City of Jacksonville, 361

F. Supp. 1083, 1088-89 (M.D. Fla. 1973) (city may enter into exclusive lease of its

10
If the contracts were not exclusive and any photographer could take pictures
and then solicit the graduates to buy them, the incentive for the official photographer
to attend and take pictures would be diminished by the amount of business he loses
to the “outlaw” photographers. If the official photographer cannot make a profit, he
will not bid again and the university will be left to rely on the whim of the “unofficial”
photographers to attend and take pictures.
10
coliseum with one wrestling promoter despite unsuccessful bidder’s claim that

exclusivity violated First Amendment right to engage in his profession). As the

district court noted in that case, an exclusive contract after an open bidding process

indicates that one competitor succeeded and necessarily the other failed. Id. at 1088.

This does not mean, however, that the result is unconstitutional or even unfair. Id.

Although Foto has apparently dropped its antitrust claims,11 this analysis applies

to its equal protection argument as well. An exclusive contract between a state and

a private contractor does not, without more, violate the unsuccessful bidder’s right to

equal protection of the law. Hubbard Broadcasting, Inc. v. Metropolitan Sports

Facilities Com’n, 797 F.2d 552 (8th Cir. 1986). In Hubbard, a municipal sports

complex awarded exclusive advertising rights on its scoreboard to companies on a

first-come, first-served basis. An advertiser who was denied advertising space on the

scoreboard sued claiming denial of equal protection because the scoreboard was a

public forum. Id. at 554. Although the exclusive contract denied the advertiser space

on the municipal scoreboard, the Eighth Circuit found no constitutional violation,

because the scoreboard was not a public forum. Id. To hold otherwise, the court

11
Foto states that it sought to dismiss these claims as well as the photographer
defendants, but that the district court ruled on the cross-motions for summary
judgment before entering the dismissal. Additionally, Foto’s motion for summary
judgment conceded it was “not attacking the validity of these contracts nor the ability
of the university to have an official graduation photographer.”
11
noted, would mean that anyone who desired to advertise his product on the scoreboard

would have a First Amendment right to do so. “No doubt the principal function of the

Metrodome would be disrupted by the volume of the expressive activity alone.” 797

F.2d at 555.12

Foto concedes that the graduation ceremonies at issue in this case are not

public fora. Since they are not, the state in its proprietary capacity may contract to

allow exclusive commercial access to one graduation photographer without offending

the equal protection clause. Id.

Every contract is a burden on commercial speech in the sense that Foto argues

– that the non-contracting party is excluded from the commercial benefit of the

contract. This, in and of itself, however, creates no equal protection problem because

there is no constitutional provision which requires that non-contracting parties enjoy

the benefits of others’ bargains.

The constitution requires only that the state not discriminate on the basis of

some suspect class in the award of its contracts, Smith Setzer & Sons, Inc. v. South

Carolina Procurement Review Panel, 20 F.3d 1311, 1320 (4th Cir. 1994), or

discriminate in applying an otherwise neutral process. See Cook v. City of Price, 566

12
Similarly, the principal function of the graduation ceremonies would be
disrupted by the activities of any number of commercial photographers if there were
not a single official photographer.
12
F.2d 699 (10th Cir. 1977) (selective enforcement of zoning ordinance); Burt v. New

York, 156 F.2d 791 (2d Cir. 1946) (discriminatory denial of building permits).

Where state economic activity is challenged, the general rule is that it is presumed

valid and is sustained if it is rationally related to a legitimate state interest. City of

Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985). If there is no claim

of discrimination on the basis of some suspect class, the state need show only a

rational relationship between a legitimate state interest and the economic activity. Id.

In the local economic sphere, it is only invidious discrimination, the wholly arbitrary

act, that cannot stand consistently with the Fourteenth Amendment. New Orleans v.

Dukes, 427 U.S. 297, 303-04 (1976).

In this case, the universities want to provide a dignified graduation ceremony

at which professional photographs will be taken for later sale to the graduates. They

have determined that this is best accomplished by awarding an exclusive contract to

a professional photographer. They initiated open bidding processes and solicited bids,

including one from Foto.

Foto does not even an allege that the award of these contracts was unfair or

that it was discriminated against on the basis of some suspect class. Foto complains

only that, having chosen not to bid, it does not now have equal access to the subject

of the contract. This is sour grapes, not a constitutional claim.

13
All contracts are by their nature exclusionary. Foto’s complaint that the official

photographers have exclusive access to the graduation ceremonies does not transform

the universities’ performance under their contracts with the official photographers into

a conspiracy to deny Foto equal protection of the law. See Stephen Jay Photography,

Ltd. v. Olan Mills, Inc., 903 F.2d 988, 995 (4th Cir. 1990) (exclusion of other

photographers by school officials who entered exclusive contracts with official

yearbook photographers are readily explainable as legitimate acts consistent with their

contractual responsibilities) (citing Ryko Mfg. v. Eden Services., 823 F.2d 1215,

1227–29 (8th Cir. 1987) (distributor’s contractual duties to solicit and accept purchase

orders do not transform customer agreements into conspiracies to fix prices)).

The only way Foto’s complaint could state an equal protection violation is if all

exclusive contracts between state agencies and private contractors are per se

discriminatory. This position “flies in the face of commercial reality: school districts,

and businesses generally, typically enter into exclusive contracts for the provision of

all kinds of services, including legal, accounting, security, plumbing, and maintenance

services.” See Burns v. Cover Studios, Inc., 818 F. Supp. 888,892 (W.D. Pa. 1993).

IV.

There is no First Amendment issue in this case because commercial access to

the graduation ceremonies has not been denied. The state universities awarded

14
exclusive photography contracts after an open bidding process about which Foto does

not complain. Under these circumstances, there is no colorable equal protection claim

raised in this case. Accordingly, the judgment of the district court is AFFIRMED.