United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 92-3182

___________

Harlan L. Jacobsen, *

Plaintiff - Appellee, *

 v. * District Court for the

City of Rapid City, South Dakota; *

William Bacon, Airport Administrator, *

Defendants - Appellants. *

*

* Appeal from the United States

* District of South Dakota.

*

___________

Submitted: June 12, 1996

 Filed: October 22, 1997 

___________

Before LOKEN, JOHN R. GIBSON, and HANSEN, Circuit Judges.

___________

LOKEN, Circuit Judge.

The City of Rapid City, South Dakota, and Airport Administrator William Bacon

(collectively, “the City”) appeal a district court order permanently enjoining them from

banning Harlan L. Jacobsen’s newspaper vending machines, or newsracks, from the

Rapid City Regional Airport terminal. The City argues that its policy regarding

newsracks is reasonable and therefore does not violate Jacobsen’s First Amendment

rights. Although we find most of the City’s reasons for banning newsracks 
-2-

unpersuasive, we conclude that the record does not support an injunction against the

revenue-raising aspect of its policy. Therefore, we reverse. 

The Airport opened a new terminal in 1988. The upper level has a secure

concourse area for boarding and exiting airplanes, and a preconcourse area that

includes a gift shop, restaurant, lounge, public rest areas, and public telephones. The

lower level contains customer service areas for airlines, limousines, and rental cars, and

the baggage claim area. 

The Airport generates revenues through landing fees, parking lot fees, rental car

company revenues, and rents and charges to other terminal tenants. One who wishes

to use terminal space for commercial activity must be approved by the City’s Regional

Airport Board and enter into a written lease. See S.D. CODIFIED LAWS § 50-7-3.

Jacobsen publishes Solo RFD, a monthly newspaper providing services and

advice to single people. He prefers to distribute Solo RFD through newsracks. There

was a Solo RFD newsrack at the Airport’s prior terminal for two or three years. After

the new terminal opened, Jacobsen placed a newsrack in a public area of the terminal

without seeking the City’s permission. Eight or nine months later, Bacon removed the

newsrack to a nonpublic conference room. When Jacobsen complained, Bacon advised

that it was Airport policy that newspapers be sold through the gift shop because “if

things were to be sold in the airport there would have to be some revenue generated.”

Bacon suggested that if Jacobsen wished to sell his newspapers at the Airport he should

contact the gift shop. Jacobsen instead filed this lawsuit, alleging that the Airport is a

public forum and therefore banning newsracks violates his First Amendment rights. 

At the time of the one-day trial, there were no other commercial newsracks in

the new terminal. The City had denied two other newspapers permission to place

newsracks in the terminal. One, USA Today, then distributed through the gift shop.

The Rapid City Chamber of Commerce had been granted permission to place a
-3-

newsrack in the terminal to distribute free literature. Disagreeing with Jacobsen, the

district court held that the Airport is a nonpublic forum. However, the court concluded

that the City’s ban on commercial newsracks was not a constitutionally reasonable

restriction on speech because the City failed to prove that its asserted interests in

operational efficiency, safety, security, aesthetics, and revenue justified the ban. The

court permanently enjoined the City “from enforcing a total ban of [Jacobsen's]

newsracks from the Rapid City Airport.” The City appeals. We review the

constitutionality of its policy de novo. See Bose Corp. v. Consumers Union, Inc., 466

U.S. 485, 508-09 (1984). 

I. 

 

The First Amendment protects both the publication and distribution of protected

material, even if the method of distribution involves public property. See, e.g., City

of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 430-31 (1993) (invalidating

ban on newsracks on public property). The extent to which government may

constitutionally restrict protected expression on public property depends upon whether

that property is a traditional public forum, a designated public forum, or a nonpublic

forum. As the district court recognized, a public airport terminal is a nonpublic forum

for First Amendment purposes. See International Soc'y for Krishna Consciousness, Inc.

v. Lee, 505 U.S. 672, 680 (1992). Accordingly, the City’s newsrack policy "need only

be reasonable, as long as [it] is not an effort to suppress the speaker's activity due to

disagreement with the speaker's view." Id. at 679. 

"The reasonableness of the Government's restriction of access to a nonpublic

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

circumstances." Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S.

788, 809 (1985). The City contends that its interests in airport maintenance, safety,

security, operational efficiency, aesthetics, and revenue justify its policy regarding

commercial newsracks in the terminal. As the district court noted, these are legitimate
-4-

governmental interests that the City may promote through reasonable means. See Clark

v. Community for Creative Non-Violence, 468 U.S. 288, 297-99 (1984) (maintenance

and public safety); Members of the City Council v. Taxpayers for Vincent, 466 U.S.

789, 805-07 (1984) (aesthetics); Heffron v. International Soc'y for Krishna

Consciousness, Inc., 452 U.S. 640, 650 (1981) (public safety); Jamison v. City of St.

Louis, 828 F.2d 1280, 1285 (8th Cir. 1987) (security and operational efficiency), cert.

denied, 485 U.S. 987 (1988); Gannett Satellite Info. Network, Inc. v. Metropolitan

Transp. Auth., 745 F.2d 767, 775 (2d Cir. 1984) (revenue). However, with the

exception of its revenue rationale, which we will discuss in Part II, we agree with the

district court that the evidence does not substantiate the City’s purported reasons for

banning commercial newsracks in the Airport terminal:

-- The City’s contention that newsracks interfere with Airport maintenance was

supported only by vague hearsay testimony of complaints by Airport cleaning crews.

-- The City’s concern that newsracks are unstable or top heavy was not

supported by evidence of injury from Jacobsen's newsracks. Design safety concerns

should be addressed through "time, place, and manner" restrictions, not a total ban.

-- As to Airport security, the City's witnesses speculated that newsracks could

be used to conceal a bomb. The district court concluded that this rationale was mere

pretext because the terminal has many other places where a bomb could be hidden,

such as waste containers and plant holders, and if anything, the glass door on the front

of a newsrack makes it a less suitable place to hide a bomb. See Multimedia Publ'g Co.

v. Greenville-Spartanburg Airport Dist., 991 F.2d 154, 162 (4th Cir. 1993) (labeling

this security concern about newsracks specious).

 

-- The City claimed that newsracks in the terminal will negatively affect Airport

operations, but the district court found that, even in high-traffic areas, the newsracks

are sufficiently removed from pedestrian traffic to avoid obstructing or impeding
-5-

travelers. See Lee v. International Soc'y for Krishna Consciousness, Inc., 505 U.S.

830, 831 (1992) (severe congestion at New York City airports did not justify a total

ban on leafleting).

-- The City opined that newsracks detract from Airport decor, but the district

court found that the appearance of Jacobsen's newsrack was not incompatible. Airport

decor may be regulated but would rarely if ever justify a total ban on protected First

Amendment activity.

Looking at the issue more broadly, there is simply no evidence that placing

Jacobsen's newsracks in public portions of the terminal will interfere with the Airport's

principal intended use, to facilitate air travel. Moreover, as the City recognized by

leasing terminal space to a gift shop, a restaurant, and a lounge, a certain amount of

commercial retail activity is consistent with the intended uses of an airport terminal, and

making newspapers reasonably available to air travelers is a compatible commercial

activity. See Lee, 505 U.S. at 688-89 (O'Connor, J., concurring); Multimedia

Publishing, 991 F.2d at 163. Newsracks are common in airport terminals, and Jacobsen

has operated a newsrack in both Rapid City terminals without incident. 

II.

During the period in question, the City had granted the gift shop concessionaire

the exclusive right to sell various consumer products in the new terminal, including

“books, magazines, [and] newspapers.” Under the five-year Lease and Concession

Agreement, the concessionaire paid the City a fixed annual base rent of $5.25 per

square foot for leased terminal space, plus the greater of a minimum annual concession

fee or eight percent of the gift shop’s gross revenues, plus the gift shop’s pro rata share

of Airport utility and energy costs. If the City must allow Jacobsen and other vendors

to sell First Amendment protected materials in newsracks outside the gift shop, the

concessionaire will lose revenues, making its exclusive contract less valuable. That in

turn will reduce the City’s leverage in bargaining for terms such as minimum annual
On this issue, Multimedia Publishing is distinguishable because there was no

1

proof of lost revenue. In addition, the court’s assertion that imposing a charge for

newsracks is a “simple” alternative for the airport, 991 F.2d at 161, is overly simplistic.

-6-

concession fees and pro rata utility charges. See Gannett Satellite Info. Network, Inc.

v. Berger, 716 F. Supp. 140, 151-52 (D.N.J. 1989), rev'd in part on other grounds, 894

F.2d 61 (3d Cir. 1990). The City argues that this revenue interest justifies its policy

regarding commercial newsracks in the terminal.

This revenue issue is real and complex. From a proprietary perspective, it is

presumptively reasonable for the manager of a small airport to conclude that granting one

gift shop concessionaire the exclusive right to sell consumer products in the terminal will

both maximize that type of leasing revenues and minimize leasing costs by eliminating

the need to negotiate with many different types of vendors. As any frequent air traveler

knows, large airports typically make a different decision, opting for retailing diversity.

But these are decisions better made by airport managers than federal judges. Thus, there

is a cost, at least in decision-making autonomy, in deciding that the First Amendment

precludes the City from enforcing its exclusive contract with the gift shop by refusing to

allow commercial newsracks in the terminal.1

On the other side of the reasonableness equation, Jacobsen presented no evidence

at trial of the impact that selling Solo RFD in the gift shop would have on its sales and

circulation in the Airport terminal. All we have on this issue is Jacobsen’s unsupported

assertion: “The only thing that we found that works in a consistent basis and is

economically feasible is basic newsrack sales.” And that testimony was directed at Solo

RFD distribution generally. Jacobsen did not claim that he has unsuccessfully tried

distributing at a small airport’s exclusive gift shop -- where one seller serves a

geographically captive market. Nor did he present data comparing Solo RFD sales

through gift shops versus newsracks in locations comparable to the Rapid City Airport
The district court held that the City’s rationale is inconsistent with cases holding 2

“that the government may not profit by imposing a fee on a First Amendment right.”

However, those cases involved fees imposed by the government acting as sovereign.

See Jacobsen v. Harris, 869 F.2d 1172, 1174 (8th Cir. 1989); Jacobsen v. Crivaro, 851

F.2d 1067, 1071 (8th Cir. 1988). When a newspaper leases public property for

commercial use, the First Amendment does not strictly limit the rent government may

charge to its fully allocated costs as landlord. If government is acting in a legitimate

proprietary capacity, the relevant questions are whether a purportedly reasonable rent

is a pretext for discrimination against protected First Amendment activity, and whether

the rent unreasonably precludes such activity in light of the government’s proprietary

interest. See Gannett, 745 F.2d at 774-75.

-7-

terminal. The gift shop concessionaire testified that he was willing to sell Solo RFD

in the gift shop, which is open fifteen of the sixteen hours per day that the Airport is

open to the public. On this record, the district court’s finding that the gift shop is not

a “viable alternative channel[] for the sale of Jacobsen’s newspapers” was speculation,

unsupported by the evidence, and based primarily on the court’s mistaken view that the

City is not entitled to “profit” from newspaper sales. 

2

Jacobsen tried this case on the premise that the Rapid City Airport terminal is

a public forum and he therefore had an absolute First Amendment right to free use of

the terminal for his newsracks. This was a faulty premise. The Airport is a nonpublic

forum, and the City has a legitimate revenue interest in operating the Airport.

Restrictions furthering that interest must be reasonable but need not be the most

reasonable restrictions. See United States v. Kokinda, 497 U.S. 720, 730 (1990). Nor

does the First Amendment grant Jacobsen a right to the most cost-effective means of

expression or distribution. See Gannett, 745 F.2d at 774. We are aware that

newsracks are an effective means of distribution, “especially for low-budget,

controversial” newspapers. City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S.

750, 762 (1988). The City must take that into account in implementing its newsrack

policy. However, the City’s policy thus far “has not been shown to deny access within

the forum.” Heffron, 452 U.S. at 655. Until Jacobsen comes forward with concrete
-8-

evidence that the City’s facially reasonable policy regarding distribution of newspapers

at the Rapid City Airport either is intended to discriminate or unreasonably fails to

provide Solo RFD a viable means of airport distribution, he is not entitled to injunctive

relief interfering with the City’s proprietary revenue interest in operating the Airport

for the benefit of air travelers. 

The judgment of the district court is reversed, and the case is remanded with

directions to dissolve the permanent injunction. 

 

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

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

I dissent from Part II for the reason that it places the burden on Jacobsen with

respect to the City's policy restricting his speech. Perry Ed. Assn. v. Perry Local Ed.

Assn., 460 U.S. 37, 45-46 (1983) places this burden on the City. 

A true copy.

Attest:

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