PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 15-1002

_____________

NATIONAL ASSOCIATION FOR THE ADVANCEMENT 

OF COLORED PEOPLE

v.

CITY OF PHILADELPHIA,

 Appellant

________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 2-11-cv-06533)

District Judge: Honorable Cynthia M. Rufe

________________

Argued October 8, 2015

Before: McKEE, Chief Judge, AMBRO, 

and HARDIMAN, Circuit Judges

(Opinion filed: August 23, 2016)
2

Shelley R. Smith

 City of Philadelphia Solicitor

Elise M. Bruhl

Craig R. Gottlieb, Esquire (Argued)

City of Philadelphia 

Law Department

1515 Arch Street

One Parkway

Philadelphia, PA 19102

Counsel for Appellant

Laura Kessler

Fred T. Magaziner (Argued)

Catherine V. Wigglesworth, Esquire

Dechert

2929 Arch Street

18th Floor, Cira Centre

Philadelphia, PA 19104

Mary Catherine Roper

American Civil Liberties Foundation of Pennsylvania

P.O. Box 40008

Philadelphia, PA 19106

Seth F. Kreimer

3400 Chestnut Street

Philadelphia, PA 19104

Counsel for Appellee
3

________________

OPINION OF THE COURT

________________

AMBRO, Circuit Judge

The City of Philadelphia has a written policy 

preventing private advertisers from displaying noncommercial content at the Philadelphia International Airport. 

The City, which owns the Airport, says the policy helps it 

further its goals of maximizing revenue and avoiding 

controversy. The record, however, reveals substantial flaws in 

those justifications. The City acknowledges the flaws but 

nonetheless maintains that the ban on non-commercial ads is 

a reasonable use of governmental power. It is not. Because 

the ban is unreasonable, it violates the First Amendment and 

cannot be enforced as written. The District Court reached the 

same conclusion, and we therefore affirm. 

I. Background

A. The City’s policy 

The City has long accepted paid advertisements that 

are posted in display cases and on screens throughout the 

Airport. In January 2011, the National Association for the 

Advancement of Colored People submitted an ad for display 

at the Airport. It offered to pay the prevailing market rate for 

the ad, which read: “Welcome to America, home to 5% of the 

world’s people & 25% of the world’s prisoners. Let’s build a 

better America together. NAACP.org/smartandsafe.” At the 

time the City did not have a written policy governing the 

types of ads it would display at the Airport. It nonetheless 

rejected the submission based on an informal practice of only 

accepting ads that proposed a commercial transaction. 
4

The NAACP filed a lawsuit in October 2011 claiming 

that the City’s rejection of its ad violated the First 

Amendment and seeking declaratory and injunctive relief. In 

March 2012, while the lawsuit was pending, the City adopted 

the written policy now before us. It states that ads that do not

“propose a commercial transaction” cannot be approved. 

“[C]ommercial transaction” is not defined. Other categories 

of ads that cannot be displayed are those: 1) “relating to the 

sale or use of alcohol or tobacco products”; 2) containing 

“sexually explicit representations and/or relat[ing] to sexually 

oriented businesses or products”; and 3) “relating to political 

campaigns.” There is an exception that allows the City to post 

non-commercial ads promoting subjects that include

Philadelphia tourism, City initiatives, air service, and use of 

the Airport. The policy only covers the Airport’s advertising 

space. In other areas of the Airport, travelers see a wide range 

of non-commercial content. For instance, there are televisions 

and newsstands throughout, often in close proximity to ads 

governed by the policy. 

The City argues that the ban on non-commercial 

content1 maximizes revenue and avoids controversy. 

Specifically, it maintains that displaying non-commercial ads, 

which might relate to religious or social issues, could 

jeopardize revenue from companies that do not want their 

content posted near potentially divisive messages. Similarly, 

the City contends that accepting non-commercial ads might 

expose travelers to content they find offensive.

 

1 Because the exception allowing City-sponsored noncommercial content does not bear on our analysis, we 

hereafter describe the policy as imposing a ban without 

reference to the exception. 
5

In connection with the adoption of the written policy, 

the City agreed to display the NAACP’s ad for three months 

and to pay the organization $8,800 in attorney’s fees. The 

parties also agreed that the NAACP would file an amended 

complaint to challenge the newly adopted policy. It did so in 

August 2012. The amended complaint presents a facial 

challenge to the ban on non-commercial content. There is no 

challenge to any other portion of the policy.

B. Deposition testimony

As part of discovery in the lawsuit, the NAACP 

deposed James Tyrrell, the Airport’s Deputy Director of 

Aviation and Property Management/Business Development. 

The City designated Tyrrell, pursuant to Federal Rule of Civil 

Procedure 30(b)(6), to testify on its behalf on numerous 

topics, including the “reason or purpose and the factors 

considered by the City for its decision to adopt, create, enact 

or promulgate the [written policy], and any communications 

concerning that decision.” Despite this designation, Tyrrell

could not offer any conclusive explanation for why the City 

adopted the ban on non-commercial content. Indeed, asked 

whether he had “an understanding” of the reason for 

distinguishing between commercial and non-commercial ads, 

he responded that he did not.

Because the City defends the ban on the grounds of 

revenue maximization and controversy avoidance, Tyrrell’s 

testimony on these points merits a detailed discussion. With 

respect to revenue, he said that the purpose of allowing 

advertising in the Airport is to make money. He had two 

opportunities during his deposition to discuss any connection 

that might exist between the ban and this goal. First, when 

asked specifically about the NAACP’s ad, Tyrrell testified 

that it was not “consistent with the message that the [A]irport 

wants to deliver in terms of promoting tourism, promoting the 
6

region and making it a very hospitable place. Advertisers look 

at that as well.” However, asked whether he had any reason 

“beyond the realm of conjecture and speculation” to think that 

displaying the ad might cost the Airport revenue, Tyrrell

conceded that he did not. 

On the second occasion, Tyrrell disowned the notion 

that the policy was motivated by revenue concerns. The 

following exchange is particularly instructive: 

Q [by Fred Magaziner, attorney for NAACP]: 

In determining that it was prudent and the time 

had come to adopt [the written] policy, was one 

of your purposes to prevent loss of revenue 

from commercial advertisers?

[Objection]

A [by Tyrrell]: No.

. . . 

Q: And that distinction that the policy draws 

between [commercial and non-commercial ads], 

that has nothing to do with revenue; correct?

A: I do not believe so, no.

Q: You do not believe it has anything to do with 

revenue?

A: No.

As part of that same exchange, he also suggested that the 

policy might even cost the City money because it forces the 

Airport to turn away willing advertisers. Asked whether he 
7

would be “happy” from a business perspective selling noncommercial ads, he said that he would be. 

Meanwhile, Tyrrell also offered testimony relevant to 

the theme of avoiding controversy. Though that term can 

mean many things, his testimony sharply limited the 

possibilities. For instance, one possible meaning might be that 

the City is concerned about the risk of attribution if it 

permitted non-commercial ads to be displayed. In particular, 

it might be worried that passersby would assume that the 

City, which owns the advertising space, endorses the views of 

non-commercial advertisers. But Tyrrell testified that he had 

no reason to believe that the ban had anything to do with 

maintaining a neutral position for the City on issues of noncommercial speech. Another possibility might be that the ban, 

under which all non-commercial ads are rejected, prevents the 

City from playing favorites by accepting messages it likes

while turning away ones it does not. Yet, asked if avoiding 

the appearance of favoritism or minimizing the chances for 

abuse motivated the ban, Tyrrell said that he did not have any 

reason to think so. He gave the same answer when asked 

whether the ban related to a desire not to impose on captive 

audiences (i.e., people who are in the Airport by necessity and 

cannot avoid the messages merely by going somewhere else). 

The only possibility not eliminated was that noncommercial ads might be more likely than commercial ones

to offend travelers. This is the theory the City advances on 

appeal. Tyrrell testified that this “may” have something to do 

with the adoption of the ban. However, he said that he did not 

recall if this idea had “ever been discussed in any meeting or 

conversation” that he had. And he admitted it was something 

he just thought of as he sat for his deposition. 

Finally, Tyrrell, on a general level, described the 

Airport as a “very stressful” place in light of the commotion 
8

and anxiety that frequently accompany travel. As a result, 

management makes “a very concentrated and huge effort to 

keep everything positive, everything non-controversial, and 

just create an environment that is soothing and pleasing.” 

C. The City’s position 

The City initially argued (at least in its briefing) that 

its subjective intentions in adopting the ban were to maximize 

revenue and avoid controversy. See Appellant’s Br. at 17–18. 

By the time of oral argument, however, it relied almost 

exclusively on the contention that its “actual thoughts and 

thinking” on the subject “don’t matter.” Oral Arg. Tr. at 7. 

The City also maintained that Tyrrell’s testimony about the 

ban was irrelevant. Id. at 18 (“I don’t think it matters what the 

witness says.”). Moreover, it agreed that the reasons it was 

offering—revenue maximization and controversy 

avoidance—might be after-the-fact justifications that are 

“strictly in the realm of lawyer argumentation.” Id. at 55; see 

also id. at 16–17 (asked if the City can invent justifications 

when writing its appellate briefs, counsel for the City 

answered yes). The City further conceded the possibility that 

its actual intent might have been to suppress viewpoints that 

cast Philadelphia or the region in a negative light. Id. at 16 

(noting that its intent “might have been viewpoint 

discriminatory”). 

II. Jurisdiction and Standard of Review

The District Court had jurisdiction over the NAACP’s 

First Amendment claims under 28 U.S.C. §§ 1331 and 1343. 

It issued two opinions. In the first it granted summary 

judgment to the NAACP. NAACP v. City of Philadelphia, 39 

F. Supp. 3d 611, 635 (E.D. Pa. 2014). And in the second it 

granted the NAACP declaratory relief and an injunction 

preventing the City from enforcing the ban as written. 
9

NAACP v. City of Philadelphia, Civ. No. 11-6533, 2014 WL 

7272410, at *3 (E.D. Pa. Dec. 19, 2014). Per 28 U.S.C. 

§ 1291, we have jurisdiction over the timely appeal of the 

latter ruling. 

Our review is plenary. See Aleynikov v. Goldman 

Sachs Group, Inc., 765 F.3d 350, 357 n.2 (3d Cir. 2014)

(“Ordinarily we review a district court’s grant of an 

injunction for abuse of discretion. But where . . . the 

injunction results [from] a summary judgment motion, our 

review is plenary.”) (internal citation omitted); Borden v. Sch. 

Dist. of Twp. of E. Brunswick, 523 F.3d 153, 174 n.17 (3d 

Cir. 2008) (plenary review over questions of law in 

connection with declaratory judgment actions). 

Granting summary judgment “is appropriate if . . .

there is no genuine issue as to any material fact and . . . the 

movant is entitled to judgment as a matter of law.” State Auto 

Prop. & Cas. Ins. Co. v. Pro Design, P.C., 566 F.3d 86, 89 

(3d Cir. 2009) (internal quotation marks omitted). 

Additionally,

[a]lthough the non-moving party receives the 

benefit of all factual inferences in the court’s 

consideration of a motion for summary 

judgment, the non[-]moving party must point to 

some evidence in the record that creates a 

genuine issue of material fact. In this respect, 

summary judgment is essentially ‘put up or shut 

up’ time for the non-moving party: [it] must 

rebut the motion with facts in the record and 

cannot rest solely on assertions made in the 

pleadings, legal memoranda, or oral argument. 

Berckeley Inv. Group, Ltd. v. Colkitt, 455 F.3d 195, 201 (3d 

Cir. 2006) (internal citation omitted).
10

III. Discussion

Our analysis proceeds in five parts. We begin with a 

discussion of the nature of the public property at issue. After 

laying that groundwork, we analyze who must bear the 

burden of proof. We then address the standards for meeting 

that burden. Next we apply the framework to our facts. 

Finally, we consider and reject a counterargument to our 

holding. 

A. Forum analysis

Because this case involves a restriction on the types of 

speech allowed on public property, we begin with forum 

analysis. Though often complicated in practice, this analysis 

stems from a simple premise—not every public property is 

the same, and different types of property will require different 

treatment. As a result, the Supreme Court has grouped public 

properties along a spectrum. 

On one end of the spectrum, we have traditional public 

forums. These properties, which include public streets and 

parks, “have immemorially been held in trust for the use of 

the public, and, time out of mind, have been used for 

purposes of assembly, communicating thoughts between 

citizens, and discussing public questions.” Perry Educ. Ass’n 

v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983) 

(internal quotation marks omitted). Content-based speech 

restrictions in traditional public forums get strict scrutiny, 

which means that the government must show a compelling 

state interest and narrow tailoring of measures to achieve that 

interest (including the absence of less restrictive alternatives). 

Id.

In the middle, we have designated public forums. 

These are properties that have “not traditionally been 
11

regarded as a public forum [but are] intentionally opened up 

for that purpose.” Pleasant Grove City v. Summum, 555 U.S. 

460, 469 (2009). As with traditional public forums, contentbased restrictions get strict scrutiny. Id. at 469–70. 

The final category is sometimes called a limited public 

forum and other times labeled a nonpublic forum. It is 

reserved for government properties that have not, as a matter 

of tradition or designation, been used for purposes of 

assembly and communication. These enjoy the least 

protection under the First Amendment. Content-based 

restrictions are valid as long as they are reasonable and 

viewpoint neutral. See id. at 470; Cornelius v. NAACP Legal 

Def. & Educ. Fund, Inc., 473 U.S. 788, 800 (1985).2 Unlike 

with strict scrutiny, this review does not require narrow 

tailoring or the absence of less restrictive alternatives. Indeed, 

the “Government’s decision to restrict access . . . need only 

be reasonable; it need not be the most reasonable or the only 

reasonable limitation.” Cornelius, 473 U.S. at 808 (emphasis 

in original). Moreover, the government’s asserted interest in 

drawing content-based distinctions must be valid, but it does 

not have to be compelling. K.A. ex rel. Ayers v. Pocono 

Mountain Sch. Dist., 710 F.3d 99, 106 (3d Cir. 2013).

Here the relevant forum is the Airport’s advertising 

space (rather than the Airport in its entirety) because that is 

the specific public property that the NAACP seeks to access. 

See Cornelius, 473 U.S. at 801 (noting that in “defining the 

 

2 There has been some confusion about whether there are any

practical differences between nonpublic and limited public 

forums. However, the Supreme Court recently “has used the 

term[s] . . . interchangeably . . .[,] thus suggesting that these 

categories of forums are the same.” Galena v. Leone, 638 

F.3d 186, 197 n.8 (3d Cir. 2011).
12

forum we have focused on the access sought by the speaker”); 

see also Christ’s Bride Ministries, Inc. v. Se. Pennsylvania 

Transp. Auth., 148 F.3d 242, 248 (3d Cir. 1998) (in case 

involving challenge to rejection of advertisements, defining 

forum as public transit system’s advertising space rather than 

entirety of transit system). The District Court concluded that 

the advertising space is a limited public/nonpublic forum. 

NAACP, 39 F. Supp. 3d at 627. 

We assume, without deciding, that the Court was 

correct.3 That is because our conclusion that the ban on noncommercial content is unreasonable means that it is 

unconstitutional no matter what we label the forum. In other 

words, reasonableness is a bare minimum in forum cases.

Some types of forums require more than reasonableness, but 

none allow less. Cf. Pittsburgh League of Young Voters Educ. 

Fund v. Port Auth. of Allegheny County, 653 F.3d 290, 296 

 

3 The Airport more broadly (as distinct from the advertising 

space) is also likely a limited public/nonpublic forum. 

Although airports are places where the public assembles, they 

are not traditional public forums. See Int’l Soc. for Krishna 

Consciousness, Inc. v. Lee, 505 U.S. 672, 680 (1992) 

(“ISKCON”) (“[G]iven the lateness with which the modern 

air terminal has made its appearance, it hardly qualifies for 

the description of having immemorially [and] time out of 

mind been held in the public trust and used for purposes of 

expressive activity.”) (internal quotation marks omitted). And 

although it is conceivable that an airport could, under the 

right circumstances, become a designated public forum, the 

Supreme Court has said that this is unlikely. See id. at 682–83 

(concluding that the John F. Kennedy, La Guardia, and 

Newark airports in New York and New Jersey, which are “far 

from atypical,” are not designated public forums).
13

(3d Cir. 2011) (“Pittsburgh”) (noting that we “need not tackle 

the forum-selection question” when a law or regulation would 

be invalid in any type of forum).

B. Allocating the burden

The core question for us is whether the City’s ban on 

non-commercial content is reasonable. At the heart of this is 

the tension between its justifications on the one hand and the 

record that we have before us on the other. Typically, when 

the government exercises its police powers, the scrutiny we 

apply is rational-basis review. Under this standard, a 

“legislative choice is not subject to courtroom fact-finding 

and may be based on rational speculation unsupported by 

evidence or empirical data.” FCC v. Beach Commc’ns, Inc., 

508 U.S. 307, 315 (1993). One of the hallmarks of rationalbasis review is that the challenger, not the government, bears 

the burden of establishing the unconstitutionality of a law or 

regulation. See id. at 314–15 (“On rational-basis review, [a 

statute] comes to us bearing a strong presumption of validity, 

and those attacking the rationality of [a] legislative 

classification have the burden to negat[e] every conceivable 

basis which might support it.”) (internal citation and 

quotation marks omitted). 

Though the City does not invoke rational-basis review 

by name, these are the standards it uses to support its 

reasonableness arguments. This no doubt has some surface 

appeal, as “reasonable” and “rational” are frequently used as 

synonyms. But rational-basis review is not just the sum total 

of the various dictionary definitions of the word “rational.” 

Rather, it is a legal test that over time has developed certain 

characteristics—for instance, an allocation of the burden to 

the challenger and a strong presumption of validity. These 

requirements were developed to serve the circumstances in 

which courts apply rational-basis review—run-of-the-mill 
14

exercises of police powers. See Romer v. Evans, 517 U.S. 

620, 631 (1996) (“[I]f a law neither burdens a fundamental 

right nor targets a suspect class, we will uphold [a] legislative 

classification so long as it bears a rational relation to some 

legitimate end.”).

By contrast, when a law or regulation burdens a 

fundamental right such as the First Amendment, rational basis 

yields to more exacting review. Indeed, it has been the 

Supreme Court’s “consistent position that democracy stands 

on a stronger footing when courts protect First Amendment 

interests against legislative intrusion, rather than deferring to 

merely rational legislative judgments in this area.” 

Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 519 

(1981) (plurality opinion). Thus, unlike with rational-basis 

review, when “the Government restricts speech, [it] bears the 

burden of proving the constitutionality of its actions.” United 

States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 

816 (2000). This is so because the “presumption of validity 

that traditionally attends [the exercise of police powers] 

carries little, if any, weight where the . . . regulation trenches 

on rights of expression protected under the First 

Amendment.” Schad v. Borough of Mount Ephraim, 452 U.S. 

61, 77 (1981) (Blackmun, J., concurring). 

Neither the Supreme Court nor our Court has expressly 

decided the allocation of the burden to establish 

reasonableness in a limited public or nonpublic forum.4 This 

 

4 We note that dicta from our Court goes in both directions. 

Compare United States v. Marcavage, 609 F.3d 264, 275 (3d 

Cir. 2010) (suggesting that the government bears the burden), 

with Gregoire v. Centennial Sch. Dist., 907 F.2d 1366, 1371 

(3d Cir. 1990) (likening the review to a rational-basis test). 

Both statements were dicta because we ultimately determined 
15

is not surprising. Reasonableness is a relatively low bar, and 

in most instances the technical question of who bears the 

burden will not be consequential because the law or 

regulation would survive either way. But this is not a normal 

case, as the record here is strangely void of support for the 

City’s ban. 

With the question now before us for the first time, we 

see no reason why the Playboy Entertainment Group rule 

would not apply. Even in limited public and nonpublic 

forums, First Amendment protections still exist. See, e.g., 

U.S. Postal Serv. v. Council of Greenburgh Civic Ass’ns, 453 

U.S. 114, 131 n.7 (1981) (“The First Amendment[’s] . . . 

ramifications are not confined to the public forum . . . .”) 

(internal quotation marks omitted); Pittsburgh, 653 F.3d at 

299 (assuming that the forum was nonpublic and striking 

down on First Amendment grounds the rejection of an

advertisement). This is sufficient to shift the burden from the 

challenger to the City. It is true that the burden the City 

shoulders is “much more limited” than, for instance, strict (or 

even intermediate) scrutiny. ISKCON, 505 U.S. at 679. But 

the burden, however limited, is still the City’s to meet.

This jibes with how some of our sister courts have 

defined reasonableness. See, e.g., Sammartano v. First 

Judicial Dist. Court, 303 F.3d 959, 966–67 (9th Cir. 2002) 

(“The ‘reasonableness’ requirement for restrictions on speech 

in a nonpublic forum requires more of a showing than does 

the traditional rational basis test; i.e., it is not the same as 

establish[ing] that the regulation is rationally related to a 

legitimate governmental objective, as might be the case for 

the typical exercise of the government’s police power.”) 

(internal quotation marks omitted) (alternation in original), 

 

that neither case involved a limited public or nonpublic 

forum. 
16

abrogated on other grounds by Winter v. Natural Res. Def. 

Council, Inc., 555 U.S. 7 (2008); Multimedia Pub. Co. of S.C. 

v. Greenville-Spartanburg Airport Dist., 991 F.2d 154, 159 

(4th Cir. 1993) (“[I]t isn’t enough simply to establish that the 

regulation is rationally related to a legitimate governmental 

objective, as might be the case for a typical exercise of the 

government’s police power, for this regulation affects 

protected First Amendment activity that is entitled to special 

solicitude even in this nonpublic forum.”) (internal citation 

omitted).

C. How to meet the burden

The next logical question is how the City can satisfy 

its burden to show that the ban on non-commercial content is 

reasonable. Our review of a trio of Supreme Court opinions, 

all written by Justice O’Connor, demonstrates that there are 

two ways it can do so: record evidence or commonsense 

inferences. 

 In the first case, Cornelius, which involved restrictions 

on participation in a charitable campaign in the federal 

workplace, the Court framed the reasonableness test for 

limited public and nonpublic forums as follows: “The 

reasonableness of the Government’s restriction of access . . . 

must be assessed in the light of the purpose of the forum and 

all the surrounding circumstances.” 473 U.S. at 809. In 

applying this framework, the Court focused on the record 

evidence before it. See, e.g., id. at 808 (“Based on the present 

record, we disagree and conclude that respondents may be 

excluded from the [forum].”) (emphasis added); id. at 811 

(“On this record, the Government’s posited justifications for 

denying respondents access to the [forum] appear to be 

reasonable in light of the purpose of the [forum].”) (emphasis 

added).
17

The next case, United States v. Kokinda, 497 U.S. 720 

(1990), showed that not every conclusion needs to be backed 

up by evidence. Justice O’Connor, writing for a plurality, 

clarified that courts can use “common-sense” to “uphold a 

regulation under reasonableness review.” Id. at 734–35 

(plurality opinion) (internal quotation marks omitted). 

Kokinda came about because the Postal Service, after years of 

trying to allow some types of solicitation of money on its 

property while precluding others, found that this approach 

was unworkable and that the better course was to prohibit all 

solicitation. The resulting regulation was supported by a 

thorough record, but for one point—the notion that 

solicitation is more disruptive than handing out literature—

the plurality said that judges need look no further than logic 

and experience. Id. 

The final piece of the puzzle is Justice O’Connor’s 

concurring opinion in ISKCON. There was a majority opinion 

written in that case by Chief Justice Rehnquist upholding a 

solicitation ban at three airports run by the Port Authority of 

New York and New Jersey. Meanwhile, a majority of the 

Court agreed that restrictions on distributing leaflets at those 

same airports were invalid, but the justices could not agree on 

a rationale. In these situations, “the holding of the Court may 

be viewed as that position taken by those Members who 

concurred in the judgment on the narrowest grounds.” City of 

Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 764 n.9

(1988) (internal quotation marks and alternation omitted).

Justice O’Connor’s views on leafleting were the narrowest 

and therefore speak for the Court. See, e.g., New England 

Reg’l Council of Carpenters v. Kinton, 284 F.3d 9, 20 n.5 (1st 

Cir. 2002) (“Because Justice O’Connor’s ISKCON

concurrence constitutes the narrowest ground for the decision, 

it is the most authoritative pronouncement on the standards 

applicable to [leafleting] in a non-public forum.”); Hawkins v. 
18

City & County of Denver, 170 F.3d 1281, 1289 (10th Cir. 

1999) (same).

The portion of her opinion dealing with leafleting

makes clear that, whether the support comes from record 

evidence or common sense, courts must have some way of 

evaluating restrictions. The opinion contrasted the facts of 

that case, where there was no “record evidence to support [the

leafleting] ban,” with those of Cornelius, where “the record 

amply support[ed]” the restriction on speech, and those of 

Kokinda, where the solicitation ban was based on “the Postal 

Service’s 30-year history of regulation.” ISKCON, 505 U.S. 

at 691–92 (O’Connor, J., concurring and concurring in 

judgment) (internal quotation marks omitted) (second 

alternation in original). 

As Justice O’Connor explained, although the 

government does not need to prove that a particular use will 

actually disrupt the “intended function” of its property, id. at 

691 (quoting Perry, 460 U.S. at 52 n.12) (internal quotation 

marks omitted), “we have required some explanation as to 

why certain speech is inconsistent with the intended use of 

the forum,” id. at 691–92. The opinion goes on to hold that

the leafleting ban was unreasonable because “the Port 

Authority has provided no . . . reason for prohibiting 

leafleting, and the record contains no information from which 

we can draw an inference that would support its ban.” Id. at 

692. 

To synthesize, then, the City has a two-step burden 

that it can satisfy using record evidence or commonsense 

inferences. First, given that reasonableness “must be assessed 

in the light of the purpose of the forum and all the 

surrounding circumstances,” Cornelius, 473 U.S. at 809, the 

evidence or commonsense inferences must allow us to grasp 

the purpose to which the City has devoted the forum. See also
19

Greer v. Spock, 424 U.S. 828, 836 (1976) (“The State, no less 

than a private owner of property, has power to preserve the 

property under its control for the use to which it is lawfully 

dedicated.”) (internal quotation marks omitted). And second, 

the evidence or commonsense inferences also must provide a 

way of tying the limitation on speech to the forum’s purpose. 

The City need not prove that the banned speech would cause 

harm if permitted, but per ISKCON it must provide a 

legitimate explanation for the restriction. In this context, we 

proceed to analyze the City’s ban on non-commercial content. 

D. Applying the standards

The City has argued that its objectives for the 

advertising space are revenue maximization and controversy 

avoidance and that the ban furthers them. Both justifications 

suffer from a lack of record evidence. And even with the 

benefit of commonsense inferences, neither passes muster. 

As for revenue, Tyrrell testified that the City allows 

advertising in order to make money, and there is nothing to 

suggest otherwise. As such, the City has met the first part of 

its burden, which is to establish that revenue maximization is 

a purpose of the forum. But where things start to break down 

for the City is that there is no record evidence showing that 

the ban is reasonably connected to this goal. Although Tyrrell

testified that advertisers “look at” the types of ads posted in 

the Airport to determine whether they would want to 

advertise in proximity to those messages, he made clear that 

the ban was not intended to promote revenue and that in 

practice it arguably costs the City money.

Whereas the revenue justification runs into trouble at 

step two (showing a connection between the restriction and 

the purpose), the controversy avoidance rationale hits a snag 

even earlier in the analysis. In light of Tyrrell’s testimony, the 
20

only controversy the City could be trying to avoid is 

travelers’ exposure to non-commercial content they might 

find offensive. But no record evidence shows this is a purpose 

to which the City has devoted the Airport’s advertising space. 

The City had ample opportunities in Tyrrell’s deposition, as 

well as that of Mark Gale, the Airport’s CEO, to provide 

support for this purported purpose. And even after the 

depositions, the City could have come forward with 

affidavits. But the record we have lacks any evidence that 

directly supports its argument on appeal. This harms the 

City’s position because, although reasonableness review gives 

it the discretion to preserve a forum “for the use to which it is 

lawfully dedicated,” Greer, 424 U.S. at 836 (internal 

quotation marks omitted), this presupposes that it actually has 

dedicated the property to that particular use, and we have no 

evidence that this occurred here. 

The City’s failure to produce record evidence to clear 

step two on revenue maximization and step one on

controversy avoidance could be excused if commonsense 

inferences supported its theory of the case. But they do not. In 

light of the testimony and the surrounding circumstances, an 

appeal to common sense cannot salvage the ban. 

Given Tyrrell’s testimony that the ban is unrelated to 

revenue and arguably costs the City money, logic does not 

allow an inference that it is reasonably connected to revenue 

maximization. Indeed, what makes this case so unusual is that 

the record belies the inference the City wants us to draw. The 

City says we can ignore this and pretend Tyrrell’s deposition 

never occurred. This Alice-in-Wonderland argument misses 

the mark. The ability to use common sense is not a license to 

close our eyes and suspend disbelief. In other words, we 

cannot conclude that the ban serves a purpose that the City’s 

own representative has already disclaimed. 
21

As for avoidance of controversy, inferences cannot 

help the City get past the first step of the inquiry—

demonstrating that it has dedicated the advertising space to 

keeping travelers from seeing potentially offensive noncommercial content. We note at the outset that, although the 

City is permitted under the right circumstances to dedicate a 

limited public or nonpublic forum to controversy avoidance, 

this objective is nebulous and not susceptible to objective 

verification. As a result, Supreme Court guidance cautions 

against readily drawing inferences, in the absence of 

evidence, that controversy avoidance renders the ban 

constitutional. See, e.g., Cornelius, 473 U.S. at 812 (“[T]he 

purported concern to avoid controversy excited by particular 

groups may conceal a bias against the viewpoint advanced by 

the excluded speakers.”); Metromedia, 453 U.S. at 510 

(plurality opinion) (noting that judgments that are 

“necessarily subjective, defying objective evaluation . . . must 

be carefully scrutinized to determine if they are only a public 

rationalization of an impermissible purpose”). This is 

particularly apt here because the City has conceded that its 

justifications might be after-the-fact rationalizations. See Oral 

Arg. Tr. at 16–17.5 Against this backdrop, the inference that 

the City wants us to draw is without support. 

 

5 Q: But you’re telling us right now—the reasons for the 

written policies were enhanced revenue and avoid[ance] [of] 

controversy. And those are good reasons, but you’ve got to 

supplement them by something, some support in the record.

A: No, you don’t, actually. That’s—that’s—

Q: You don’t?

A: You don’t. That is the key. The [C]ity is—

Q: You can make it up now?

A: Well, I—perhaps in the trial— 

. . . 
22

The only possible basis for an inference would be 

general testimony about the Airport. For instance, the City 

highlights Tyrrell’s testimony that the Airport is a “very 

stressful” place, and hence there must be “a very concentrated 

and huge effort to keep everything positive, everything noncontroversial, and just create an environment that is soothing 

and pleasing.” This testimony does not relate specifically to 

the Airport’s advertising space, but rather speaks to that 

facility more broadly, of which the advertising space is but a 

small part. From this the City asks us to draw an inference 

that its asserted justification—preventing exposure to 

potentially offensive messages—is consistent with a purpose 

of the advertising space. 

But if the City seeks to justify its regulation of the 

advertising space by reference to its goals for the entire 

Airport, then we should consider whether the atmosphere in 

the rest of the Airport supports such an inference. See, e.g., 

Cornelius, 473 U.S. at 801–02 (looking to the “the special 

nature and function” of the broader property in which the 

forum is located). Elsewhere in the Airport, travelers have 

frequent exposure to televisions broadcasting shows and 

commercials containing a wide variety of non-commercial 

content. For instance, the NAACP submitted pictures of the 

Airport’s televisions that show content related to a

gubernatorial election in Virginia, the war on drugs, the 

Confederate flag, and a piece of anti-discrimination 

legislation. And as they pass by newsstands, travelers can see 

magazines and newspapers displaying the very types of non-

 

Q: Or when you write your brief.

A: Correct.

Q: Because no matter what you write you can make it up . . . .

A: Well, I mean, this is not an unusual phenomenon. . . .
23

commercial information that the City seeks to exclude from 

its advertising space. 

All of this indicates that there is little logic to the 

inference the City asks us to draw. Although we have no 

reason to doubt that the City does try to maintain a “soothing 

and pleasing” environment in the Airport, that broader effort 

apparently does not involve shielding travelers from noncommercial content on the ground that it might offend them. 

Instead, the Airport exposes them to an onslaught of noncommercial content outside of its advertising space without 

any suggestion that doing so is inconsistent with the 

environment it seeks to foster.

The City’s argument is essentially that common sense 

supports the inference that it would devote its advertising 

space to a purpose to which the rest of the Airport does not 

subscribe. Given that the advertising space is physically part 

of the Airport, this argument fails. As the D.C. Circuit has 

noted in a similar context: 

Although we readily acknowledge the fact that 

the airports’ advertising facilities are physically 

distinct parts of the terminals . . .[,] we note that 

these facilities are for the most part physically 

‘separated’ from the terminals only by glass 

panels or translucent plexiglass whose sole 

purpose is to frame or project messages of 

outside organizations to the terminals’ . . . 

users. . . . Given this context, the display 

advertising areas at [the airports] cannot be 

wholly divorced—by structure, function, or 

fiat—from the nature of the [locations] in which 

they [exist].
24

U.S. Sw. Africa/Namibia Trade & Cultural Council v. United 

States, 708 F.2d 760, 764–66 (D.C. Cir. 1983), abrogated on 

other grounds by ISKCON.

In sum, 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. As a result, the ban violates the First Amendment. 

E. The City’s counterargument

The City relies heavily on previous cases in which

courts have examined commercial/non-commercial 

distinctions. This reliance is misplaced. Reasonableness is a 

case-specific inquiry, meaning that previous examples are of 

limited usefulness. And, under our facts, the City’s ban is 

unreasonable. 

In distinguishing between commercial and noncommercial content, the City was by no means writing on a 

blank slate. In Lehman v. City of Shaker Heights, the Supreme 

Court upheld as reasonable such a distinction for 

advertisements on a city’s bus system. 418 U.S. 298, 304 

(1974) (plurality opinion) (“The city consciously has limited 

access to its transit system advertising space in order to 

minimize chances of abuse, the appearance of favoritism, and 

the risk of imposing upon a captive audience. These are 

reasonable legislative objectives advanced by the city in a 

proprietary capacity.”); id. (“Revenue earned from long-term 

commercial advertising could be [jeopardized] by a 

requirement that short-term candidacy or issue-oriented 

advertisements be displayed on car cards.”). However, 

Lehman does not help the City. As discussed, the NAACP 

asked Tyrrell about each of the factors from that case—

minimizing abuse, avoiding favoritism, not imposing on a 
25

captive audience, and maximizing revenue—and he 

disclaimed all of them.6

The City also cites decisions of our sister courts 

labeling as reasonable distinctions on transit systems between 

commercial and non-commercial advertisements. See, e.g., 

Children of the Rosary v. City of Phoenix, 154 F.3d 972, 979 

(9th Cir. 1998); Lebron v. Nat’l R.R. Passenger Corp. 

(Amtrak), 69 F.3d 650, 653 (2d Cir.), opinion amended on 

denial of reh’g, 89 F.3d 39 (2d Cir. 1995). Additionally, in 

Pittsburgh we struck down a commercial/non-commercial 

distinction as viewpoint discriminatory but noted that under 

the right circumstances such a provision might be 

constitutional. 653 F.3d at 299. However, none of this 

relieves us of our obligation to determine reasonableness on a 

case-by-case basis in light of the facts and circumstances of 

each particular forum. Cf. Air Line Pilots Ass’n, Int’l v. Dep’t 

of Aviation of City of Chicago, 45 F.3d 1144, 1159 (7th Cir. 

1995) (“This [reasonableness] inquiry requires an 

examination of both the governmental interest and the 

particular forum’s nature and function. The fact that Lehman 

 

6 Lehman was a plurality opinion. Justice Douglas provided 

the fifth vote for the outcome in a concurring opinion that 

focused heavily on the issue of captive audiences. See id. at 

308 (Douglas, J., concurring in judgment) (“Since I do not 

believe that petitioner has any constitutional right to spread 

his message before this captive audience, I concur in the 

Court’s judgment.”). The parties dispute the extent to which 

Lehman, in light of Justice Douglas’s opinion, should be 

limited to situations that present a captive audience. However, 

given that none of the interests served by the ban in Lehman 

are implicated in this case, we do not weigh in on this. 
26

upheld a policy of excluding political advertisements in 

public buses hardly determines the reasonableness of such a 

restriction for all time. Instead, the reasonableness of [a 

restriction] must be judged in light of the nature and purpose

of the [forum].”) (internal citations omitted). For the reasons 

previously discussed, the City’s ban fails this test. 

* * * * *

No matter the type of forum, restrictions on speech on 

government property must be reasonable. The City’s ban on 

non-commercial ads at the Airport is unreasonable because it 

is not supported by the record or by commonsense inferences. 

The burden to establish reasonableness is a light one, but the 

City has failed to meet it here.7 We need not determine 

 

7 Apart from reasonableness, a second requirement that exists 

no matter how we label the forum is viewpoint neutrality. 

Cornelius, 473 U.S. at 800. Because unreasonableness is 

sufficient by itself to render the policy unconstitutional, we 

do not reach the viewpoint question. We note nonetheless that 

the issue may be a closer call than our dissenting colleague

suggests. As discussed, the City has conceded that the policy 

might have been motivated by an animosity toward certain 

viewpoints. The dissent, relying on the “familiar principle of 

constitutional law that [we] will not strike down an otherwise 

constitutional statute on the basis of an alleged illicit 

legislative motive,” United States v. O’Brien, 391 U.S. 367, 

383 (1968), says that this does not matter. But in Cornelius

the Court suggested that a restriction will be unconstitutional 

if it was “impermissibly motivated by a desire to suppress a 

particular point of view.” 473 U.S. at 812–13. Indeed, Justice 

Stevens’s dissent clarified that “[e]veryone on the Court 

agrees that [a restriction] is prohibited by the First 
27

whether the ban could survive on a different record; contrary 

to our dissenting colleague’s suggestion, see Dissent at 6 n.3, 

we take no position on this question. Our inquiry is limited to 

what is before us, and on that record the ban does not survive. 

As a result, we affirm the District Court’s grant of declaratory 

and injunctive relief.8

 

Amendment if it is motivated by a bias against the views of 

the excluded groups.” Id. at 833 (Stevens, J., dissenting). 

Though some courts appear to say that motive is not enough 

and that there must be evidence that the restriction is being 

implemented in a discriminatory way, see Dissent at 15, we 

have never so held. As such, we note that this remains an 

open question in our Court. 

8 The District Court’s grant of relief also covered an 

unwritten policy under which the City rejected advertisements 

that did not “support the mission” of the Airport. NAACP, 

2014 WL 7272410, at *3. In the District Court, the City 

denied that the unwritten policy existed. However, it has said

on appeal that it does not seek reversal of the Court’s ruling 

on the unwritten policy if we affirm with respect to the 

written policy. See Appellant’s Br. at 24. Because the City 

has waived any challenge to the unwritten policy as distinct 

from the written one, we affirm the Court’s entry of judgment 

in its entirety without separately considering the unwritten 

policy. 
National Association for the Advancement of Colored People 

v. City of Philadelphia, No. 15-1002

HARDIMAN, Circuit Judge, dissenting.

“[T]he government, ‘no less than a private owner of 

property, has power to preserve the property under its control 

for the use to which it is lawfully dedicated.’” Cornelius v. 

NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 800 

(1985) (quoting Greer v. Spock, 424 U.S. 828, 836 (1976)). In 

this appeal, the Court deprives the City of Philadelphia of this 

power by finding its ban on noncommercial advertising in 

parts of its airport facially invalid because the prohibition 

lacks record and common sense support. Because I view the

City’s restriction a reasonable attempt to avoid controversy at 

the airport, I respectfully dissent.1

I

A

In 2011, the NAACP released a report entitled 

Misplaced Priorities which described the disparity between 

government spending on prisons and education in cities such 

as Philadelphia, New York, and Los Angeles.2In anticipation 

 

1 While the City has proffered two rationales for 

upholding its ban—avoiding controversy and maximizing 

revenue—only one such justification is required to find it

constitutional. Because I accept the controversy avoidance 

rationale, I address it alone and do not analyze the City’s 

revenue maximization arguments. 

2 NAACP, Misplaced Priorities (May 2011), available 

at http://www.naacp.org/pages/misplaced-priorities.
2

of the report’s release, the NAACP planned a broad 

advertising campaign, which included a series of 

advertisements at the Philadelphia International Airport (the 

Airport).

The Airport is 3,254,354 square feet and includes 

seven terminals and 126 boarding gates. Like all large

airports, it contains numerous retail businesses and various 

kiosks filled with advertisements targeting travelers. The City 

of Philadelphia, which owns and operates the Airport, 

maintains over 100 wall-mounted flat screen monitors to

display advertisements.

The NAACP sought permission to run an 

advertisement for Misplaced Priorities on two of the 

Airport’s monitors. The advertisement featured a silhouette of 

the Statue of Liberty next to a block of text that read:

“Welcome to America, home to 5% of the world’s people & 

25% of the world’s prisoners.” NAACP Br. 10. Beneath this 

text, the advertisement contained an additional sentence 

reading: “Let’s build a better America together. 

NAACP.org/smartandsafe.” Id. The City refused to display 

the NAACP’s advertisement. And it did so even though the 

City had no written policy governing the rejection of 

advertisements and despite the fact that it had previously

accepted issue-oriented advertisements.

In October 2011, the NAACP filed suit in the United 

States District Court for the Eastern District of Pennsylvania 

alleging that the City’s rejection of its advertisement violated 

the First Amendment. Almost six months later, the City 

issued a written policy (the Policy) regulating advertising at 

the Airport. Most relevant here, the Policy prohibited private 

parties from displaying advertisements “that do not propose a 
3

commercial transaction,” but permitted the City to post 

messages promoting “the greater Philadelphia area” as well as 

“[o]ther City initiatives or purposes.” NAACP v. City of 

Philadelphia, 39 F. Supp. 3d 611, 623 (E.D. Pa. 2014)

(alteration in original). Since the Policy’s enactment, no 

private noncommercial advertisements have been displayed.

Noncommercial messages created by the City have been 

posted, however.

Three months later, the City and the NAACP entered 

into an agreement permitting the Misplaced Priorities 

advertisement to run in the Airport. The parties also agreed 

that the NAACP would file an amended complaint to 

challenge the Policy. The NAACP’s amended complaint 

alleged that the Policy was facially unconstitutional.

B

In the course of discovery in the District Court, the 

City’s principal witness was James Tyrrell, the Airport’s 

Deputy Director of Aviation, Property Management, and

Business Development. As the City’s Rule 30(b)(6) designee, 

Tyrrell testified on a number of topics, including “[t]he 

reason or purpose and the factors considered by the City for 

its decision to adopt, create, enact or promulgate the Airport 

Advertising Policy, and any communications concerning that 

decision.” App. 775.

When asked why the NAACP’s advertisement was 

rejected, Tyrrell responded that it did not comport with the

Airport’s mission “to create an attractive environment 

to . . . promote tourism. It’s to create a family oriented 

environment. It is to promote the region, to attract customers 

to the region.” App. 784; see NAACP, 39 F. Supp. 3d at 622–
4

23. He went on to say, when questioned whether the 

NAACP’s advertisement was offensive, that the Airport

“make[s] a very concentrated and huge effort to keep 

everything positive, everything non-controversial, and just 

create an environment that is soothing and pleasing.” NAACP, 

39 F. Supp. 3d at 623–24; App. 802. And when asked how a 

ban on noncommercial advertisements could promote this 

mission, Tyrrell responded, 

If you talk about a commercial ad where 

someone is selling a product or a service, that is 

pretty broadly known, accepted, generally not 

going to be offensive. If you’re talking about a 

non-commercial ad that is maybe supporting a 

position of one group or another, that could tend 

to offend someone who is not in agreement with 

that position.

App. 808. Tyrrell admitted that he “could not recall” if he had 

ever discussed this justification in any meeting and that it was 

“just something he was thinking of” during his deposition. Id.

After discovery was completed, the City and NAACP 

filed cross-motions for summary judgment. To adjudicate the 

motions, the District Court determined that the relevant forum 

was the City-owned advertising space, not the Airport writ 

large or the many commercial business that lease space in the 

Airport. And it concluded that the advertising space was 

either a limited public forum or a nonpublic forum, but that it 

need not decide which because both types of forums operate 

under the same level of judicial scrutiny, i.e., speech 

restrictions must be reasonable in light of the purposes of the 

forum and viewpoint neutral.
5

Starting with viewpoint neutrality, the Court held that 

neither party was entitled to summary judgment because 

material facts relative to the City’s motive in enacting the 

Policy were disputed. It nevertheless concluded that the 

NAACP was entitled to summary judgment because the 

Policy was unreasonable.

The District Court’s analysis began by identifying the 

purposes of the forum, one of which was “maintaining the 

Airport as a family friendly environment that casts a positive 

light on [Philadelphia] and the region.” NAACP, 39 F. Supp. 

3d at 628. In light of this purpose, the Court found the 

Policy’s exclusion of noncommercial advertisements 

unreasonable because there was nothing to suggest that 

noncommercial advertisements are any more (or less) 

controversial than commercial advertisements. Id. at 629–30.

The Court also determined that noncommercial 

advertisements were in no way incompatible with the Airport 

as a whole—given that the Airport “contain[ed] many adultoriented potentially controversial media” in other spaces, 

restricting noncommercial advertisements in the advertising 

space would have no effect on the Airport’s functioning. Id.

Accordingly, the Court held the Policy unconstitutional on its 

face and entered summary judgment in favor of the NAACP.

II

The crux of the City’s appeal is that the Policy is 

reasonable because it helps to create a comfortable 

environment at the Airport by avoiding controversy without 

discriminating against any viewpoint.
6

A

It is important to note at the outset that the NAACP 

has brought a facial challenge to the City’s policy. “A facial 

attack tests a law’s constitutionality based on its text alone 

and does not consider the facts or circumstances of a 

particular case.” United States v. Marcavage, 609 F.3d 264, 

273 (3d Cir. 2010) (citing City of Lakewood v. Plain Dealer 

Publ’g Co., 486 U.S. 750, 770 n.11 (1988)). “This is the most 

difficult challenge to mount successfully,” and it “affects the 

burden on [the plaintiff].” United States v. Mitchell, 652 F.3d 

387, 405 (3d Cir. 2011) (en banc) (internal quotation marks 

omitted) (citation omitted). “A plaintiff can only succeed in a 

facial challenge by ‘establish[ing] that no set of 

circumstances exists under which the Act would be 

valid,’ i.e., that the law is unconstitutional in all of its 

applications.” Wash. State Grange v. Wash. State Republican 

Party, 552 U.S. 442, 449 (2008) (alteration in original)

(quoting United States v. Salerno, 481 U.S. 739, 745 (1987)).3

 

3 The Majority neglects to mention the heavy burden 

facing those who bring a facial challenge, even in the First 

Amendment context. See Wash. State Grange, 552 U.S. at 

449–51. Consequently, much of the reasoning it uses to find 

the Policy facially unconstitutional relies on the absence of 

record evidence and permissible inferences establishing the

purpose of the forum and the connection between the Policy 

and that purpose. Majority Op. 19–24. The Majority’s holding

implies that even if Airport executives tomorrow wrote an 

identical policy and explained that the purpose of the 

advertising space is to promote a comfortable and 

noncontroversial atmosphere and that a ban on 

noncommercial advertisements would further this goal, the 
7

B

The Constitution does not require the “Government 

freely to grant access to all who wish to exercise their right to 

free speech on every type of Government property without 

regard to the nature of the property or to the disruption that 

might be caused by the speaker’s activities.” Cornelius, 473 

U.S. at 799–800. “[N]o less than a private owner of property,

[the government] has power to preserve the property under its 

control for the use to which it is lawfully dedicated.” Id. at 

800 (quoting Greer, 424 U.S. at 836). To balance “the 

Government’s interest in limiting the use of its property to its 

intended purpose” and “the interest of those wishing to use 

the property for other purposes,” courts engage in forum 

analysis. Id.

Here, neither party challenges the District Court’s 

determinations that: (1) forum analysis applies; (2) the 

relevant forum is the Airport’s monitors; and (3) the forum is 

either a limited public forum or a nonpublic forum, both of 

which implicate the same level of scrutiny.4 Accordingly, the 

City may restrict the content of speech so long as the 

restriction is “reasonable in light of the purpose served by the 

forum” and viewpoint neutral. Rosenberger v. Rector & 

 

new policy could not be constitutional. While such a result is 

required by the Majority’s facial invalidation of the Policy, it 

would not be supported by its reasoning which dictates that 

outcome.

4 Without resolving the matter, I will refer to the forum 

here as a nonpublic forum.
8

Visitors of Univ. of Va., 515 U.S. 819, 829 (1995) (quoting 

Cornelius, 473 U.S. at 804–06).5

1

To determine whether the Policy is “reasonable in light

of the purpose served by the forum,” we look to the “purpose 

of the forum and all the surrounding circumstances.” 

Cornelius, 473 U.S. at 806, 809. In evaluating the Policy’s 

reasonableness, “we do not ‘require that . . . proof be present 

to justify the denial of access to a nonpublic forum on 

grounds that the proposed use may disrupt the property’s 

intended function,’ [but] we have required some explanation 

as to why certain speech is inconsistent with the intended use 

of the forum.” Int’l Soc. for Krishna Consciousness v. Lee

(ISKCON), 505 U.S. 672, 691–92 (1992) (O’Connor, J., 

concurring) (alteration in original) (quoting Perry Educ. 

Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 52 n.12

(1983)). In fact, “common-sense . . . is sufficient . . . to 

uphold a regulation.” United States v. Kokinda, 497 U.S. 720, 

734–35 (1990) (plurality opinion). And the restriction “need 

only be reasonable; it need not be the most reasonable or the 

only reasonable limitation.” Cornelius, 473 U.S. at 808.

Stated differently, a regulation of a nonpublic forum “is 

valid . . . unless it is unreasonable, or, as was said in Lehman, 

‘arbitrary, capricious, or invidious.’” Kokinda, 497 U.S. at 

 

5 The Supreme Court recently noted that there are four 

types of forums: (1) traditional public forums; (2) designated 

public forums; (3) limited public forums; and (4) nonpublic 

forums. Walker v. Texas Div., Sons of Confederate Veterans, 

Inc., 135 S. Ct. 2239, 2250–51 (2015). I disagree with the 

Majority’s opinion to the extent it suggests otherwise. See 

Majority Op. 11 & n.2.
9

725–26 (quoting Lehman v. City of Shaker Heights, 418 US. 

298, 303 (1974)). 

Here, as the District Court found, one of the purposes 

of the advertising space is to “maintain[] the Airport as a 

family-friendly” or comfortable environment. See NAACP, 39 

F. Supp. 3d at 628; see also App. 802 (Tyrrell stating that the 

Airport “make[s] a very concentrated and huge effort to keep 

everything positive, everything non-controversial, and just 

create an environment that is soothing and pleasing” when 

asked about the rejection of advertisements).

6

 

6 The Majority’s rationale for declining to infer that 

one purpose of the forum was to create a congenial 

environment is in error. According to the Majority, there is 

“no reason to doubt the City does try to maintain a ‘soothing 

and pleasing’ environment.” Majority Op. 23. Instead of 

stopping here and determining whether this fact supports an 

inference that the advertising space shares this purpose, the 

Majority goes on to add to this purpose a desire to ban 

noncommercial advertising to avoid controversy. And from 

this, the Majority concludes that since there is no ban on 

noncommercial advertising throughout the Airport, no 

inference can be made that the advertising space would have 

such a purpose. Id. at 22–23. In doing so, the Majority 

confuses the purpose of the forum—to create a soothing or 

congenial atmosphere—with the means of achieving that 

goal—banning noncommercial advertising. Because the latter 

does not illuminate the purpose of the forum, it should not be 

considered while attempting to discern as much. And while it 

is true that the parts of the Airport leased to others are not 

encumbered by the Policy’s prohibition of noncommercial 

advertising, this concern is properly analyzed when 
10

Our initial task then, is to determine whether the

Policy’s ban on noncommercial advertisements is a 

reasonable or commonsense way to promote a congenial

atmosphere through the use of the City’s more than 100

Airport monitors. I believe it is. 

As Tyrrell explained, noncommercial advertisements

are more likely to be controversial or offensive than 

commercial offers. See App. 808. Noncommercial messages

often seek to convey an opinion or advocate a position—goals 

motived by a desire to confront people on issues about which 

they disagree, sometimes very emotionally. Commercial 

advertisements on the other hand, seek only to sell a product 

and are less likely to advocate a position. Although it is 

undoubtedly true that some commercial advertisements may 

be more controversial or offensive than some noncommercial 

content, common sense suggests that advocative messages are

more likely to create rancor and interfere with the City’s 

desire to promote a congenial atmosphere at the Airport.

7

To use a simple example, imagine that the monitors

are rented by an organization seeking to abolish the death 

penalty. To advance its cause, the organization depicts videos 

or photos of executions. If those advertisements were 

 

considering whether the Policy is reasonable in light of all the 

surrounding circumstances, not in determining the purpose of 

the forum.

7 To the extent the District Court and the NAACP 

claim that the City must show that noncommercial 

advertisements would disrupt the Airport’s functioning, I 

disagree. Because the forum at issue here is the monitors, the 

City must show only that noncommercial messages interfere 

with the goal of promoting a comfortable environment. 
11

effective, perhaps death penalty advocates or victims’ rights 

groups would buy space showing similarly gruesome footage 

of the victims of those who were executed. It would seem 

obvious that these images would be controversial and 

inappropriate for travelers heading to their gates. While these

examples were (before today) hypothetical, this may no 

longer be the case. And many courts that have considered 

similar dilemmas have found prohibitions on public transit

like the one here reasonable attempts to keep the peace. See, 

e.g., Lehman, 418 U.S. at 304 (plurality opinion) (upholding a 

ban on noncommercial speech, in part, to avoid subjecting 

bus passengers and others to controversial messages);8 Am. 

Freedom Def. Initiative v. Suburban Mobility Auth. for Reg’l 

Transp. (SMART), 698 F.3d 885, 892–94 (6th Cir. 2012) 

(upholding a ban on political advertisements on buses that

“might alienate riders”); Children of the Rosary v. City of

Phoenix, 154 F.3d 972, 975, 979 (9th Cir. 1998) (finding it 

constitutional to limit exterior advertising on buses to “speech 

which proposes a commercial transaction” and holding that 

the city’s interests in “maintaining neutrality on political and 

religious issues” is “especially strong”).

But this does not end our inquiry. For a regulation to 

pass constitutional muster, it must also be reasonable in light 

of all the circumstances surrounding the forum. Here, those

include the many other media and advertisements that fill the 

Airport, ranging from television screens tuned to news 

broadcasts to advertisements within retail outlets. Does the 

existence of media unconstrained by the Policy render it

 

8

I disagree with the NAACP’s characterization of

Lehman’s “captive audience” analysis. See Children of the 

Rosary, 154 F.3d at 977 (rejecting a similar argument).
12

unreasonable in its regulation of the advertising space? I think 

not. 

By banning noncommercial advertisements on the

monitors there will be less controversy in the Airport than 

there would be if the Policy were never enacted. While other 

forums scattered throughout the Airport might display 

controversial noncommercial messages, it still seems 

reasonable to think that disallowing controversial 

advertisements on the Airport’s more than 100 monitors will 

have a positive impact on travelers’ experiences by removing 

some stress or controversy from their journeys. Because the

Policy reasonably achieves the goal of promoting a congenial

environment in light of the surrounding circumstances, I 

would find it facially reasonable.

The NAACP counters that the Policy is unreasonable 

because it simultaneously forbids the noncommercial speech

of private parties and permits noncommercial speech by the 

City. This argument could carry the day but for the 

government speech doctrine. Although the First Amendment 

prevents the City from circumscribing private speech 

however it wishes, those restrictions do not apply when the 

City itself speaks and the City may control the content it

wishes to display on its monitors. Cf. Walker v. Texas Div., 

Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2245 

(2015) (“[W]hen [the] government speaks, it is not barred by 

the Free Speech Clause from determining the content of what 

it says.”). Because the City has the latitude to control its own 

speech, it is reasonable for the City not to subject itself to the 

same constraints to which it must subject private speakers.

In all, the Policy need not be the most reasonable or 

the only reasonable way to achieve the goals the City wishes 
13

to pursue on its monitors. The Policy need only be 

reasonable—that is, it must not be arbitrary, capricious, or

invidious. For the reasons stated, I would hold that the Policy

satisfies what the Majority rightly acknowledged is a “light”

burden, Majority Op. 26.

2

Apart from being reasonable, a speech restriction in a 

nonpublic forum must also be viewpoint neutral. Pittsburgh 

League of Young Voters Educ. Fund v. Port Auth., 653 F.3d 

290, 296 (3d Cir. 2011) (citing Rosenberger, 515 U.S. at

829). This means that if the government permits speech 

regarding a particular subject on government property, it must 

allow for the expression of all viewpoints on that subject. 

Cornelius, 473 U.S. at 806. To do otherwise and deny access 

to a forum solely to suppress a point of view is “anathema to 

free expression and impermissible in both public and 

nonpublic fora.” Pittsburgh League, 653 F.3d at 296 (citing 

R.A.V. v. City of St. Paul, 505 U.S 377, 382 (1992)).

Here, the NAACP claims the Policy is not viewpoint 

neutral for two reasons: (1) the City distinguished between 

commercial and noncommercial advertisements for 

discriminatory reasons; and (2) it allows the City to post 

noncommercial advertisements while prohibiting private 

groups from doing so. For reasons I shall explain, I disagree.

i

According to the NAACP, the City intended to 

discriminate against views that run contrary to the City’s

viewpoint when it enacted the Policy and this illicit motive 

requires the Policy’s invalidation. This argument is foreclosed
14

by the NAACP’s facial challenge. Since the Policy excludes 

private speakers who agree with the City as well as those who 

disagree, it is facially neutral and our inquiry in that regard is 

complete. See Bailey v. Callaghan, 715 F.3d 956, 959–60 

(6th Cir. 2013) (declining to look beyond the text of a 

facially-neutral statute to examine claims of improper 

legislative motive because “the law forecloses this kind of 

adventure”); Wisc. Educ. Ass’n Council v. Walker, 705 F.3d 

640, 648–53 (7th Cir. 2013) (same). And even assuming,

arguendo, that the City had such a motive and that an inquiry 

into the City’s motivations is permissible in the context of 

this facial challenge, the NAACP’s argument still fails.

To the NAACP, motive is relevant because “the line 

between viewpoints and subjects is such an elusive one” and 

“classifying a particular viewpoint as a subject rather than as

a viewpoint on a subject” can be a tactic to impermissibly 

exclude unwanted viewpoints from a particular forum. See 

NAACP Br. 44 (quoting Grossbaum v. Indianapolis-Marion 

Cty. Bldg. Auth., 100 F.3d 1287, 1298 (7th Cir. 1996)). While 

this reasoning could support an argument that 

“noncommercial speech” is actually a viewpoint rather than a 

subject matter which may be banned, the NAACP neither 

makes this argument nor would it be supported by caselaw. 

See, e.g., Lehman, 418 U.S. at 303–04 (upholding a 

regulation that banned political and issue-based advertising); 

Pittsburgh League, 653 F.3d at 297 (noting that rejecting 

advertisements because of their noncommercial character is

viewpoint neutral); Children of the Rosary, 154 F.3d at 975, 

980–81 (finding a regulation permitting only commercial 

advertising on buses viewpoint neutral); Lebron v. Nat’l R.R. 

Passenger Corp. (Amtrak), 69 F.3d 650, 653, 656–59 (2d Cir. 

1995) (finding a regulation permitting only commercial 
15

advertising on a large billboard viewpoint neutral). And to the 

extent the NAACP argues that an illicit motive alone is 

sufficient to invalidate a policy, I cannot agree because the 

Supreme Court has stated otherwise. See United States v. 

O’Brien, 391 U.S. 367, 383 (1968) (“It is a familiar principle

of constitutional law that this Court will not strike down an 

otherwise constitutional statute on the basis of an alleged 

illicit legislative motive.”); see also Children of the Rosary, 

154 F.3d at 980 (stating that motive alone “is not dispositive 

when there is no indication that the city is implementing the 

standard in a viewpoint discriminatory manner that reflects an 

intent to use the policy to exclude disfavored perspectives on 

the issues”); cf. Cornelius, 473 U.S. at 811–13 (questioning 

the viewpoint neutrality of a regulation in light of allegations 

of both improper motive and viewpoint discriminatory 

application). “A façade for viewpoint discrimination, in short, 

requires discrimination behind the façade.” Grossbaum, 100 

F.3d at 1292–94, 1296–98.

ii

The NAACP also argues that the Policy discriminates 

on the basis of viewpoint because it allows the City to post 

noncommercial advertisements despite forbidding private 

advertisers from doing the same. According to the NAACP,

the Policy is a façade for viewpoint discrimination because 

the City may speak on issues such as the value of beer 

brewing, but the Policy would prohibit a temperance 

organization from posting a countervailing advertisement. In 

response, the City seeks refuge in the government speech

doctrine. On this close question, I believe the City has the 

better argument.
16

According to the government speech doctrine, “when 

[the] government speaks, it is not barred by the Free Speech 

Clause from determining the content of what it says.” Walker,

135 S. Ct. at 2245. Rather, “[t]he Free Speech Clause restricts 

government regulation of private speech.” Pleasant Grove

City v. Summum, 555 U.S. 460, 467 (2009). And when the 

government speaks, “the First Amendment strictures that 

attend the various types of government-established forums do 

not apply.” Walker, 135 S. Ct. at 2250. Instead, “the 

democratic electoral process . . . provides a check on 

government speech.” Id. at 2245.

Based on these statements, our inquiry into the 

viewpoint neutrality of the Policy is straightforward. Limiting 

the field of the City’s speech in this area would appear to be 

foreclosed by Summum and Walker, both of which make clear 

that the strictures of the Free Speech Clause do not apply to 

government speech. Walker, 135 S. Ct. at 2245–46, 2250;

Summum, 555 U.S. at 467–69. For this reason, I would find 

the Policy’s exception for government noncommercial speech 

permissible. I say this with some hesitation, however, because 

both Summum and Walker focused on whether all the speech 

in a given venue constituted private speech or government 

speech. Unlike those cases, here the City’s speech occurs in a 

venue shared by the government and private speakers alike. 

This difference raises a number of unique concerns not 

directly at issue in Summum and Walker.

For instance, with the government and private parties 

sharing the same venue, passersby may have difficulty 

identifying who is responsible for displaying any particular

message. At this point, the check provided by the democratic

process largely disappears, as the ability to discern the City’s 

speech is impaired. 
17

In addition, with the power to express noncommercial 

positions and exclude those to the contrary, the City could

create an environment in which passersby are led to believe 

that the City’s positions are uncontested. It may appear that 

the opportunity to contest the government’s message exists by 

posting an opposing advertisement on the wall monitors, but 

that no one has done so. This illusion of consensus, which 

uniquely threatens the marketplace of ideas, is similar to the 

concern Justice Alito warned of in his dissent in Walker. See

135 S. Ct. at 2255–56 (arguing that the Court’s understanding 

of the government speech doctrine may permit the 

government to erect electronic billboards, post its own 

messages on them, simultaneously display only those private 

advertisements it approves of, and avoid the First Amendment 

by asserting all of the speech emanates from the government). 

In response to that concern, the Court has instructed that 

when the government speaks, “it is not barred by the Free 

Speech Clause from determining the content of what it says” 

and “the First Amendment strictures that attend the various 

types of government-established forums do not apply.”

Walker, 135 S. Ct. at 2245, 2250. Based on that directive, I 

must conclude that the Policy does not implicate viewpoint 

discrimination concerns that would plainly exist if private 

speech were at issue.

* * *

For the reasons stated, I would reverse the District 

Court’s order and enter summary judgment for the City of 

Philadelphia.