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, Chie f 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 Departmen t
1515 Arch Street

One Pa rkway Philadelphia, PA 19102

Counsel for Appellant

Laura Kessler

Fred T. Ma gaziner (Argued) Catherine V. Wigglesworth, Esquire

Dechert

2929 Arch Street 18th Floor, Cira Centre Philadelphia, PA 19104

Mary Catherine Roper

Amer ican Civil Liberties Foundation of Pennsylvania

P.O. Box 40008 Philadelphia, PA 19106

Seth F. Kreimer

3400 Chestnut Street Philadelphia, PA 19104

Counsel for Appellee3 ________________

OPINION OF THE COURT

________________

AMBRO, Circuit Ju dge

The City of Philadelphia has a written policy preventing private advertisers from displaying non

commercial content at the Philadelphia International Airport. The City , which owns the Airport, says the policy helps it further its goals of maximizing r evenue 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. Beca use 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 th at 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/smartandsaf e.” At the time the City did not have a written policy governing the types of ads it would display at t he Airport. It noneth eless 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
Amend ment and seeking declaratory and injunctive relief. In March 2012, while the lawsuit was pending, the City adopted the written policy now befo re us. It states that ads that do not

“ propose a commercial transaction” cannot be approved. “[C] ommercial transac tion” 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 product s”; 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 in itiatives, air service, and use of the Airpor t. The policy only covers the Airp ort’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

content 1 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 comp anies 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 non

commercial 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
chal lenge 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 Man agement/Business Devel opment. 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
whet her 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 discussio n. 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 b an and this goal. First, when asked specifi cally 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 the6 region and making it a very hospitable pl ace. 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 migh t cost the Airport revenue, Tyrrell
conceded that he did not.

On the second occasion, Ty rrell 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 d etermining that it was prudent and the time had come to adopt [the wr itten] pol icy, 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 dra ws between [commercial and non

- commercial ads], that has nothing to do with revenue; co rrect?

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 advertise rs. Asked whether he7 would be “happy” from a business perspective selling non

commercial 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 te stimony sharply limited the possibilities. For instance, one possible m eaning might be that the City i s concerned about the risk of attribution if it permitted non

- commercial ads to be displayed . In particular,
it might be worried that passersby would assu me 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 a nything to do with maintaining a neutral position for the City on issues of non

c ommercial 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 no t

. Yet , asked if avoiding the appearance of favoritism or minimizing the chances for
abuse mo tivated 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 non

commercial ads might be more likely than commercial ones to offend travelers. This is the theory the City advan ces 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 commotion8 and anxiety that frequently accompany travel. A s a result,
management make s “ a very concentrat ed 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 ad opting the ban were to maximize revenue and avoid controversy. See Appellant’s Br. at 17

– 18. By the ti me of oral argument, however, it relied almost exclusively on the contention that its “a ctual thoughts and thinking” on the subject “don’t matter.” Oral A rg. 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; s ee 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 St andard 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 A leynikov 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 f

or 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 summ ary 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. & C

as. Ins. Co. v. Pro Design, P.C. , 566 F.3d 86, 89 (3d Cir. 2009) (inte rnal 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 th e 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 (3 d Cir. 2006) (internal citation omitted).10 III. Discussion

Our analysis proceeds in five par ts. We begin with a discussion of the nature of the pu blic 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.
Final ly, 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

s tems 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 traditi onal 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 disc ussing 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 g overnment 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 b een11 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, content

based restrictions get strict scrutiny. Id. at 469

– 70.

The final categ ory is sometimes called a limited public
forum and other times labeled a nonpublic forum. It is
reserved for government proper ties 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,

t he “ Government’s decision to restrict access

. . . need only
be reasonable ; it need not be the most reasonable or th e only
reasonable limitation.” Cor nelius , 473 U.S. at 808 (emphas is in original). Moreover, the g overnment’ 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 T he re has been some confusion about whether there are any practical differences between nonp ublic and limited public forums. However, the Supreme Court recently “ has used th e term[s]

. . . interchangeably

. . . [

, ] thus suggesting that these categories of foru ms are the same.” Galena v. Leone , 638 F.3d 186, 197 n.8 (3d Cir. 2011).12 foru m 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 tran sit 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 T hat is because our conclusion that the ban on non

commercial 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 tha n reasonableness, but
none allow less. Cf. Pittsburgh League of Young Voters Educ.

Fun d 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 i mmemorially [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 pu blic 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 regulati on 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 t hat we have before us on the other. Typically, when the g overnment 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 rational

basis review i s that the challenger, not the g overnment, bears the burden of establishing the unconstitutionali ty of a law or regulation. See i d. 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
b asis 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
characteristi cs

— 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

- mill14 exerci ses of police powers

. See Ro mer 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 con trast, when a law o r 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 Amendmen t 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 r ights 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 th at dicta from our Court goes in both directions. Compare United States v. Marcavage , 609 F.3d 264, 275 (3d

C ir. 2010) (suggesting that the g overnment bears the burden),

with Gregoire v. Centennial Sch. Dist. , 907 F.2d 1366, 1371 (3d Cir. 1990) (likening th e review to a rational

- basis test).

Both statements were dicta because we ultimately determined15 is not surprising. Reasonableness is a relatively low bar, and in most instances the technical ques tion 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 firs t 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 r ejection 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’ req uirement 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 Ci ty 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
infer ences.

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,

clarifie d 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 t he Postal Service, after years of trying to allow some types of sol icitation of money on its property while p recluding 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 opinio n 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 majo rity of the Court agreed that restrictions on distributing leaflets at those same airpor ts 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)

. Jus tice O’Connor’s views on leafle ting 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 stand ards applicable to [leaflet ing ] in a non

- public forum.”); Hawkins v.18 City & C ounty of Denver , 170 F.3d 1281, 1289 (10th Cir.
1999 ) ( same).

The portion of h er opinion dealing with leaflet ing 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

leaflet ing ] ban,” with those of Cornelius , wher e “the record amply support[ed]” the restriction on speech, and those of
Kokinda , where the solicitation ban was b ased 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 th e

g overnment 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 certai n 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 n o 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, g iven 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 also19 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 commonse nse 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 t his 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. Bo th justifications
suffer from a lack of record evidence. And e ven 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

sugg est o therwise. As such, the City has met the first part of its burden, which is to establish that revenue maximiza tion 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 justificatio n runs into trouble at step two ( showing a connection between the restriction and the purpose), the controversy avoidance rationale hits a snag

even ea rlier in the analysis. In light of Tyrrell ’s testimony, the20 only controversy the City could be trying to avoid is
travelers ’ expo sure to non

- commercial content they might
find offensive. Bu t 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 forw ard 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

law fully 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 o ccurred here

.
The City’s failure to produce record eviden ce 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 commo n 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 u nusual 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 non

commercial content

. We note at the outset that

, although the
Ci t y is permitted under the right circumstances to dedicate a

l imited 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 controver sy 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 particular ly 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: Bu t 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 mak e it up now? A: Well, I

—

perhaps in the trial

—

. . .22 The only possible basis for a n 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, everythi ng non

controversial, 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

sm all 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 funct ion” 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. A nd as they pass by newsstands, travelers can see magazines an d 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 doub t 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 non

commercial content on the ground that it might offend them. Instead, the Airport exposes them to an onslaught of non

commercial 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 Airp ort, 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 transluc ent 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

— fr om the nature of the [location s ] in which they [exist].24 U.S. Sw. Africa/Namibia Trade & Cultural Council v. United

States , 70 8 F.2d 760, 764

– 66 (D.C. Cir. 1983)

, abrogated on other grounds by ISKCON

.

In sum, the City has not presented record evidence
suff icient 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 prev ious examples are of
limited usefulness . And

, under our facts

, the City’s ban is

unreasonable.

In distin guishing between commercial and non

commercial 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. 29 8, 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 card s.”). 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 a25 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 viewpoin t discriminatory but noted tha t under the right circumstances such a provision might be

co nstitutional. 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 fo rum. 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 Doug las’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

- commerci al 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 requireme nt that exists

no matter how we label the forum is viewpoint neutrality.

Cornelius , 473 U.S. at 800. B ecause unreasonableness is sufficient by itself to render the policy unconstitutional , we do not reach the viewpoint question . W e note nonetheless that

th e issue may b e 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 i n Cornelius the Court suggested that a r estriction w ill 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 prohibi ted by the First27 whether the ban could survi ve 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 Di strict 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 bein g 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 adver tisements 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 withou t separately co nsidering 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 it s 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 dissen t. 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. 2 In anticipation

1 While the City has proffered two rationales for upholding its ban

— avoiding controversy and maximizing

revenue

— only one such justif ication 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 relea se, the NAACP planned a broad advertising campaign, which included a series of

advertisements at the Philadelphia International Airport (the Airport)

.

The Airport is 3,254,3 54 square feet and includes

seven terminal s and 126 boarding gates. Like all large airports, it contains numerous retail businesses and various

kiosks filled with advertisemen ts targeting travelers

. T he City of Philadelphia, which owns and operates the Airport,

maintains over 100 w all

- mounted flat screen monitors to display advertisemen ts

.

T he NAACP sought permission to run an advertisement for Misplaced Priorities on two of the

A irport’s monitors. The advertisement featured a silhouette of the Statue of Liberty ne xt to a block of text that read: “Welcome to America, h ome to 5% of the w orld’s p eople &

25% of the w orld’s p risoners.” NAACP Br. 10. Beneath this text, the advertisement contained an additional sentence reading: “Let’s b uild a b etter America t ogether. NAACP.org/smartandsafe.” Id. The City refused to display

the NAACP’s adverti sement

. And i t 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 Dist rict 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 A irport. Most rel evant here, the P olicy prohibited p rivate parties from displaying a dvertisements “ that do not propose a3 commercial transaction,” but permitt ed the City to post

messages promoting “the greater Philadelphia area” as well as

“ [ o ]ther City initiatives or purpo ses.” NAACP v. City of Philadelphia , 39 F. Supp. 3d 611, 62 3 (E.D. Pa. 2014) (alteration in original) . Since the P olicy’s enactment, no private noncommercial advertisements have been displayed.

Noncommercial messages created by the Cit y have been posted , h owever

.

Three months later, the City and the NAACP entered into an agreement permitting the Misplaced Priorities

advertisement to run in the A irport. T he parties also agreed

that the NAACP would file an amende d complaint to challenge the P olicy. 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 J ames Tyrrell , the A irport’s Deputy Director of Aviation, Property Management , and

Business De velopment . 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 a ny 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 creat e 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 62 2

–4 23 . He went on to say , when questioned whether the

NAACP’s advertisement was offensive, that the A irport “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 62 3

– 24; App. 802. And when asked how a

ban on non commercial adverti sement s 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 th at is maybe supporting a position of one group or another, that could tend

to offend someone who is not i n agreement with that position.

App. 808. Tyrrell admitted that he “could not recall” if he had ever discussed this justification in any meeting and th at it was “just something he was thinking of” during his deposition. Id.

After discovery was completed , the City and NAACP

filed cros s

- motions for summary judgment. To adjudicate the motions, the District Court determined that t he relevant forum

was the C ity

- owned adv ertising 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 b ecause 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

P olicy were disputed

. It nevertheless concluded that the NAACP was entitled to summary judgment because the

P olicy was unreasonable

.

T he 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

P olicy’s exclusion of noncommerc ial 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 determ ined that non commercial

advertisements were i n no way incompatible with the A ir port
as a whole

— given that the A irport “contain[ed] many adult

oriented potentially controversial media” in other spaces, restricting non commercial advertisemen ts in the adverti sing

spa ce would have no effect on the A irport’s functioning. Id. Accordingly, the Court held the P olicy unconstitu tional on its

face and entered summary judg ment in favor of the NAACP.

II

T he crux of the City’s appeal is that the P olicy is

reasonable be cause 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 cha llenge to mount successfully, ” a nd 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 omitte d)

. “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 Republ ican Party , 552 U.S. 442, 449 (2008) (alteration in original) (quoting United States v. Salerno , 481 U.S. 739, 745 (1987)). 3

3 T he Majority neglects to men tion 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

– 2 4

. Th e Majority’s holding implies that even if Ai rport executives tomorrow wrote a n identical poli cy and explained that the purpose of the advertising space is to promote a comfortable and noncontroversial atmosphere and that a ban on

noncommercial advertisements woul d further this goal , the7 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 pow er 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 A irport ’s monitors ; and (3) t he 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

fo rum” and viewpoint neutral. Rosenberger v. Rector &

new policy could not be constitutional. While such a result i s 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 8 04

– 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 P olicy’s reasonableness, “ w e do not ‘require that .

. . proof be present to justify the denial of access to a nonpublic forum on grounds that t he 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 (ISK C ON) , 505 U.S. 6 72 , 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) ). I n fact, “common

- sense

. . . is sufficient

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

734

– 35 (1990) (plurality opinion)

. And t he restriction “need

o nly be reasonable ; it need not be the most reasonable or t he only reasonable limitation

. ” Cornelius , 473 U.S. at 808

. Stated differently, a regulation o f 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 not ed 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. 1 1 & 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

A irport “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 err or

. According to the Majority, there is “no reason to doubt the City does try to maintain a ‘soothing and pleasing’ environment.” Majority Op. 2 3 . Instead of stopping here and determining whether this fact support s an inference that the advertising space shares this purpose, the Majority goe s 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 ill uminate 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 when10 Our initial task then, is t o determine whether the

P olicy ’s ban on noncommercial advertisements is a

reasonab le or common sense way to promote a congenial atmosphere through the use of the City’s more than 100

A irport monitors . I believe it is.

As Tyrrell explained , noncommercial advertisements

are more likely to be controversial or offensive than

commercial off

ers

. See App. 808. Noncommercia l 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 h and, 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 a re more likely to create rancor and interfere with the City’s desire to promote a co ngenial 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. I f 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 noncomm ercial 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 dilem mas 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 t o controversial messages); 8 Am. Freedom Def. Initiative v. Suburban Mobility Auth. for Reg’l Transp. (SMART) , 698 F.3d 88 5 , 89 2

– 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 an d 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 a nd advertisements that fill the

A irport, ranging from television screens tuned to news

broadcasts to adverti sements within retail outlets

. Does the

existence of media unconstr ained by the Policy render it

8 I disagree w ith 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 s pace ? I think

not

.

By banning noncommercial advertisements on the

monitors there will be less controversy in the A irport than

there would be if the P olicy were never enacted

. W hile other

forums scattered throughout the A irport 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 i mpact on travelers’ experiences by removing

some stress or controversy from their journe ys. Because the Policy reasonably achieves the goal of promoting a co ngenial

environment in light of the surrounding circumstances, I

would find it facially reasonable.

T he NAACP co u nte rs that the P olicy is unreasonable because it simultaneously forbids t he noncommercial speech of private parties and permits non commercial speech by the City

. This argument c ould car ry the day but for the government speech doctrine. Although the First Amendment
prevents the C ity from circumscrib ing private sp e ech

however it wishes, th ose restrictions do not apply when the City itself speaks a nd 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 ] governm ent speaks, it is not barred by the Free Speech Clause from determining the content of what it says. ”). B ecause 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 mus t subject private speakers.

In all, the Policy need not be the most reasonable or the only reasonable way to achieve the goals the City wishes13 to pursue on its monitors

. The Policy need only be

reasonable

— that is, it must not be arbitr ary, capricious, or

invidious. F or the re asons stated

, I would hold that the Policy

satisfies what the Majority rightly acknowledged is a “light”

burden , Majority Op. 2 6

.

2

Apart from being reasonable, a speech restriction in a nonpublic forum must also be viewpoint neutra l

. Pittsburgh League of Young Voters Educ. Fund v. Port Auth

. , 653 F.3d 290, 296 (3d Cir. 2011) (citing Rosenberg er , 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, 47 3 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 Le agu e , 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

discriminato ry 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

Accord ing to the NAACP, the City intended to discriminate against views that run contrar y to the City’s viewpoint when it enacted the Policy and this illicit motive requires the P olicy’s invalidation. T his argument is foreclosed14 by the NAACP ’s facial challenge. Since the Policy excludes private speakers who agree with the Ci ty as well as thos e who disagree , it is facially n eutral 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 moti ve because “the law forecloses this kind of adventure”); Wisc. Educ. Ass’n Council v. Walker , 705 F.3d 640, 64 8

– 53 (7th Cir. 2013) (same)

. And even a ssuming

, arguendo , that the City had such a motive and that an inquiry into the City’s motivations is permi ssible 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 a s 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 no r would it be supported by case law. See, e.g.

, Lehman , 418 U.S. at 303

– 04 (upholding a regulat ion that banned political and issue

- based advertising); Pittsburgh League , 653 F.3d at 297 (noting that rejecting

advertisements because of their non commercial character is viewpoint neutral); Children of the Rosary , 154 F.3d at 975,

980

– 81 (finding a regu lation permitting only commercial advertising on buses viewpoint neutral); Lebron v. Nat ’l R.R. Passenger Corp. (Amtrak) , 69 F.3d 650, 653, 65 6

– 59 ( 2d Cir. 1995) (finding a regulation permitting only commercial15 advertising on a large billboard viewpoint ne utral). A nd to the extent the NAACP argue s 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 t here 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 issue s ”) ; cf. Cornelius , 473 U.S. at 81 1

– 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

T he NAACP also argues that the P olicy discriminates on the basis of viewpoint because it allow s the City to post

noncommercial advertisements despite forbidding private advertisers from doing the sa me. According to the NAACP

, the P olicy is a façade for v iewpoint discrimination because the City may s peak on issues such as the value of beer brewing, but the P olicy would prohibit a temperance organization from post ing a countervailing advertisement

. In response, the City seeks refuge in the g overnment s peech

d octrine. On this close question, I believe the City has the better argument.16 According to the g overnment s peech d octrine, “ w hen [ the ] government speaks, it is not barred by the Free Speech Clause from determining the content of what it says. ” Walker

, 13 5 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 o f 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 t he viewpoint neutrality of the P olicy 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 P olicy’s exception for government noncommercial speech permissible. I say this with some hesitation, however, because

b oth Summum and Walker focused on whether a ll the speech

i n 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.

Th is difference raise s a number of unique concerns not directly at issue in S

ummum and Walker

.

For instance, with the government and private parties sharing the same venue , passersby may h ave difficulty identifying who is responsible for displaying any particular

message

. At this po int, 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

tha t the City ’s positions are uncontested. I t may appear that the opportunity to contest the government’s message exists by posting an oppo sing advertisement on the wall monitors , but

th at no one has done so. This illusion of consensus , which uniquely threate ns the marketplace of ideas

, is similar to the

concern Justice Alito warned of in his dissent in Walker

. See

135 S. Ct. at 225 5

– 56 ( arguing that the Court’s understanding

of the g overnment s peech d octrine may permit the
government to erect electronic billb oards , po st 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. a t 2245, 2250. Based on that directive, I

must conclude that the P olicy 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 ord er and enter summary judgment for the City of Philadelphia

.