PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

THE NEWS AND OBSERVER 

PUBLISHING COMPANY; THE DURHAM

HERALD COMPANY; THE NEW YORK

TIMES COMPANY; GANNETT

COMPANY, INCORPORATED,

Plaintiffs-Appellees,  No. 09-1010

v.

RALEIGH-DURHAM AIRPORT

AUTHORITY,

Defendant-Appellant. 

THE NEWS AND OBSERVER 

PUBLISHING COMPANY; THE DURHAM

HERALD COMPANY; THE NEW YORK

TIMES COMPANY; GANNETT

COMPANY, INCORPORATED,

Plaintiffs-Appellees,  No. 09-1231

v.

RALEIGH-DURHAM AIRPORT

AUTHORITY,

Defendant-Appellant. 

Appeals from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

Terrence W. Boyle, District Judge.

(5:04-cv-00639-BO)
Argued: October 27, 2009

Decided: March 12, 2010

Before WILKINSON, DUNCAN, and DAVIS,

Circuit Judges.

Affirmed by published opinion. Judge Duncan wrote the

majority opinion, in which Judge Wilkinson concurred. Judge

Davis wrote a dissenting opinion.

COUNSEL

ARGUED: James P. McLoughlin, Jr., MOORE & VAN

ALLEN, Charlotte, North Carolina, for Appellant. John Adam

Bussian, III, THE BUSSIAN LAW FIRM, PLLC, Raleigh,

North Carolina, for Appellees. ON BRIEF: John A. Zaloom,

David E. Fox, Research Triangle Park, North Carolina, for

Appellant. Mark J. Prak, Charles E. Coble, Eric M. David,

BROOKS, PIERCE, MCLENDON, HUMPHREY & LEONARD, LLP, Raleigh, North Carolina, for Appellees.

OPINION

DUNCAN, Circuit Judge:

This appeal arises from the district court’s grant of summary judgment to newspaper publishers bringing a First

Amendment challenge to a public airport’s total ban on newspaper racks inside its terminals. We found a similar ban

unconstitutional in Multimedia Publishing Co. of South Carolina, Inc. v. Greenville-Spartanburg Airport District, 991 F.2d

154 (4th Cir. 1993), which guides our decision today. Because

2 NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH.
the government interests asserted to justify the ban do not

counterbalance its significant restriction on protected expression, we affirm.1

I.

As this is an appeal from a grant of summary judgment, we

present the facts affecting our First Amendment analysis in

the light most favorable to the appellant. See Pueschel v.

Peters, 577 F.3d 558, 563 (4th Cir. 2009). Appellant RaleighDurham Airport Authority (the "Authority") was chartered by

the North Carolina General Assembly to operate the RaleighDurham International Airport (the "Airport"). See 1939 N.C.

Pub. L. ch. 168. Appellees The News and Observer Publishing Company; The Durham Herald Company; The New York

Times Company; and Gannett Company, Incorporated (the

"Publishers") publish and distribute four daily newspapers:

The News & Observer, The Herald-Sun, The New York Times,

and USA TODAY.

A.

The Airport facilitates air travel for the region known as the

"Triangle area," which encompasses Raleigh, Durham, and

Chapel Hill, North Carolina. Every year millions of travelers

pass through the Airport. During the relevant time period, the

Airport consisted of two terminals, labeled A and C, that

shared one attached parking deck and eleven outer parking

1This appeal also involves a challenge to the district court’s order

awarding attorney’s fees and costs under 42 U.S.C. § 1988 and 28 U.S.C.

§ 1920. The appellant contends that by awarding "those fees and expenses

the publishers incur from December 2008 through the conclusion of this

case," J.A. 1171, the court granted a "‘blanket’ award of attorney’s fees

. . . without any mechanism for evaluating the reasonableness of the prospective fees," Appellant’s Br. at 62. Nothing in the court’s order, however, suggests that the publishers would ever be entitled to attorney’s fees

and costs without proving their reasonableness. Therefore, we find no

error and affirm. 

NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. 3
lots reachable by shuttle bus. Each terminal had a non-secure

area for ticketing and baggage pickup, and a secure area or

"concourse" for loading and unloading passengers on planes.

Whereas anyone could access the non-secure areas, only ticketed travelers and authorized personnel could enter the secure

areas. Entering a secure area required passing through a security checkpoint operated by the Transportation Security

Administration ("TSA").2

The Airport was intended not only to facilitate air travel but

also to generate revenue. Federal law requires making the

facility as financially self-sustaining as possible. See 49

U.S.C. § 47107(a)(13) (conditioning federal grant money

upon "the airport owner or operator . . . maintain[ing] a schedule of charges for use of facilities and services at the airport

. . . that will make the airport as self-sustaining as possible").

The Authority generated revenue for the Airport in various

ways, including (1) leasing wall space for advertising, (2)

charging a fixed rent to shops and restaurants inside each terminal, and (3) charging additional rent calculated as ten percent of gross profits.

Inside each terminal were numerous shops and restaurants,

located mostly within the secure area where travelers waited

before departing. These concessions, which included various

eating establishments and retail stores, were selected and

arranged under "a master plan for the retail and food service

concession space" designed to "maximize customer service

and . . . revenue to the Authority."3 J.A. 265. The terminals

2The Airport was substantially renovated after this litigation began. Terminal C was demolished, a brand new terminal was constructed, and the

Airport’s terminals are now labeled 1 and 2. The Authority moved to supplement the record on appeal to reflect this renovation, but we denied its

motion. See Kirkpatrick v. Lenoir County Bd. of Educ., 216 F.3d 380, 384

(4th Cir. 2000) ("From a procedural standpoint, courts hearing a case on

appeal are limited to reviewing the record that has been developed

below."). 

3

In 1998, the Authority hired consultant Ann Ferraguto "to plan and

implement a master plan for the retail and food service concession space

4 NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH.
also contained vending machines, racks displaying brochures,

information kiosks, television monitors, ATM machines,

email stations, shoe-shine stations, trash bins, bathrooms,

plants, and other features intended to serve travelers or boost

revenue.

In early 2002, the Publishers contacted the Authority about

placing coin-operated newsracks inside the terminals, where

newsracks had never been placed before. At that time, newspapers could only be purchased from various shops. Terminal

A’s secure area had four shops selling newspapers. Three

"RDU-Press" shops were located by Gates 5, 8, and 14/16,

and an "RDU-Press Plus" shop was located by Gate 19. Terminal A’s non-secure area had a "JQ Snacks" kiosk near the

baggage claim area that offered USA Today. Terminal C’s

secure area had two shops selling newspapers. These were the

"Hudson News" shop and the "Hudson News and Book" shop

located near the TSA security checkpoint. Finally, Terminal

C’s non-secure area had one shop selling newspapers located

between the baggage claim and ticketing areas. All these

shops could offer any newspaper selection they chose, but the

Authority generally expected them to carry The News &

Observer and The Herald-Sun.

Although the Airport was open to the public twenty-four

hours every day, the shops normally opened between 5:30

a.m. and 6:30 a.m., and closed between 8:00 p.m. and 9:00

p.m. They were "required to open before the first flights [left]

. . . each morning and remain open until after the last flights

within the airport terminals." J.A. 265. The Authority implemented that

plan in 2000 by reorganizing concession space inside each terminal and

entering new concession contracts. No single document comprises the

entire "master plan," but the Authority stated during oral argument that

Ingrid Hairston’s memorandum dated July 10, 2000, provides a reliable

summary. Nothing in the record suggests that anyone involved in developing the master plan ever considered placing newsracks inside the terminals. 

NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. 5
depart[ed] each evening." J.A. 296. Among the five hundred

or so flights that arrived at or departed from the Airport every

day, however, about thirty-seven were scheduled to arrive

after the shops had closed. Passengers aboard these flights or

any flights delayed beyond the normal hours were therefore

unable to purchase a newspaper.

The record also reflects other issues regarding the adequacy

of newspaper circulation. For example, the Authority received

complaints that newspapers were sometimes unavailable during the early morning hours. Furthermore, The Durham Herald Company received complaints that the shops sold out of

The Herald-Sun. Notwithstanding, the Authority declined to

regulate how many newspapers were stocked, reasoning that

the shops had a financial incentive to meet demand.

B.

In January 2002, The News and Observer Publishing Company (the "Observer") inquired about the possibility of placing newsracks inside the terminals. In response, the Authority

asserted "an informal policy that newspapers would be distributed via the newsstands/gift shops in the terminals," and

explained that "there had been no complaints from customers

with respect to newspapers being available only in those

shops." J.A. 230-31. The Authority also raised concerns about

security, floor space, and losing revenue from shop sales.

The Observer and Authority did not discuss newsracks

again until about two years later. On February 17, 2004, the

Observer faxed a letter to the Authority asserting that its ban

on newsracks would unlikely survive First Amendment scrutiny, requesting permission to place and stock "a limited number of newsracks at locations in the terminal and on the

concourses . . . without charge," and promising that the newsracks would be "as ‘security friendly’ as technology currently

allows." J.A. 167. The Authority refused this request. On

March 31, 2004, the Observer faxed another letter asserting

6 NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH.
"the right to place [Observer] newsracks on the concourses"

and threatening litigation, but the Authority again refused.

J.A. 168.

On September 2, 2004, the Publishers sued the Authority in

the Eastern District of North Carolina. Their complaint

alleged that the Authority’s refusal to allow newsracks inside

the terminals violated the First Amendment and North Carolina Constitution. The Publishers requested both injunctive

relief and attorneys’ fees and costs under 42 U.S.C. § 1988

and 28 U.S.C. § 1920. Specifically, the Publishers sought a

permanent injunction letting them place 208 newsracks in 26

locations throughout the Airport terminals.4

The Authority and Publishers filed cross-motions for summary judgment under Federal Rule of Civil Procedure 56.

After initially denying both motions, the district court

amended its decision and granted the Publishers’ motion for

summary judgment regarding their First Amendment claim.

See The News & Observer Publ’g Co. v. Raleigh-Durham

Airport Auth., 588 F. Supp. 2d 653, 659 (E.D.N.C. 2008). The

court reasoned that banning "the installation of news racks

within the terminals ‘substantially burdens the newspaper

companies’ expressive conduct within that public place,’" id.

at 658 (quoting Multimedia, 991 F.2d at 159), and that concerns about security, aesthetics, preserving revenue, and preventing congestion were not "sufficiently powerful interests to

justify the burden on protected expression," id. This appeal

followed.

4Although it provides factual context, this request does not affect our

First Amendment analysis. We decide today only whether the Authority

violated the Constitution by banning any newsracks inside the terminals,

not whether 208 newsracks should be mandated. That and other remedial

issues remain for another day. 

NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. 7
II.

On appeal, the Authority challenges the district court’s

grant of summary judgment. We "review[] a district court’s

decision to grant summary judgment de novo, applying the

same legal standards as the district court." Pueschel, 577 F.3d

at 563. Summary judgment should be granted "if the pleadings, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). Facts are "material"

when they might affect the outcome of the case, and a "genuine issue" exists when the evidence would allow a reasonable

jury to return a verdict for the nonmoving party. See Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving

party is "entitled to judgment as a matter of law" when the

nonmoving party fails to make an adequate showing on an

essential element for which it has the burden of proof at trial.

See Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 804

(1999). "[I]n ruling on a motion for summary judgment, the

nonmoving party’s evidence is to be believed, and all justifiable inferences are to be drawn in that party’s favor." Hunt v.

Cromartie, 526 U.S. 541, 552 (1999) (internal quotations

omitted). To overcome a motion for summary judgment, however, the nonmoving party "may not rely merely on allegations or denials in its own pleading" but must "set out specific

facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e).

The Publishers’ complaint alleged that the Authority’s total

ban on newsracks inside the terminals violated the First

Amendment. Multimedia addressed a similar challenge on

appeal from a final judgment after a bench trial. The district

court there found that the Greenville-Spartanburg Airport

Commission’s (the "Commission") ban on newsracks inside

the Greenville-Spartanburg International Airport ("GSP") violated the First Amendment.

GSP had two terminals, labeled A and B, that were connected by both a direct walkway and a ticketing area with

8 NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH.
walkways leading to each terminal. Newspapers could be purchased either from a newsrack located in the parking deck or

from a souvenir shop located between terminal A and the ticketing area. The shop was open from 6:30 a.m. to 9:00 p.m.

and had a sign advertising the newsrack outside, but travelers

using terminal B were unlikely to pass the shop. Likewise,

travelers not using the parking deck were unlikely to pass the

newsrack.

We held that "the First Amendment protects distribution as

well as publication" of newspapers and that "modes of distribution involving permanent or semi-permanent occupation of

publicly-owned property don’t lose First Amendment protection because of that fact." Multimedia, 991 F.2d at 158. After

noting that the Commission allowed only limited means of

newspaper distribution, we upheld the district court’s decision

that concerns about aesthetics, preserving revenue, preventing

congestion, and security failed to justify the heavy restriction

on protected expression. See id. at 160-63.

Although the procedural posture here differs, Multimedia

provides the substantive legal framework for our analysis. In

deciding whether government property should be made available for protected expressive activity such as newspaper distribution, we apply different levels of protection for different

types of government property. See id. at 162; see also Perry

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

44-46 (1983). Stringent protection applies for "public

forums," i.e., "places which by long tradition or by government fiat have been devoted to assembly and debate," but less

protection applies for "nonpublic forums," i.e., "[p]ublic property which is not by tradition or designation a forum for public communication." Perry, 460 U.S. at 45-46. The Supreme

Court has declared that airports are nonpublic forums. See

Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S.

672, 679-80 (1992). Accordingly, the following protection

applies in this case: "In addition to time, place, and manner

regulations, the State may reserve the forum for its intended

NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. 9
purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress

expression merely because public officials oppose the speaker’s view." Multimedia, 991 F.2d at 159 (quoting Perry, 460

U.S. at 46).

Because no one argues that the Authority’s total ban on

newsracks inside the terminals discriminated based on viewpoint, we need only consider its reasonableness. See id.

"[R]easonableness . . . must be assessed ‘in the light of the

purpose of the forum and all the surrounding circumstances.’"

Id. (quoting Cornelius v. NAACP Legal Def. & Educ. Fund,

Inc., 473 U.S. 788, 809 (1985)). Although the ban "need not

be the most reasonable or the only reasonable limitation" on

protected expression, "it 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." Id. Instead, Multimedia requires

the following analysis:

The degree and character of the impairment of protected expression involved, discounted by any mitigating alternatives that remain to the aggrieved

party, must be considered. . . . The validity of any

asserted justification for the impairment must then

be assessed and, if found valid, then weighed in the

balance against the impairment. . . . Because regulations other than mere time, place, and manner

restrictions must be designed to reserve the forum

for its intended purposes, the overall assessment

must be undertaken with an eye to the intended purposes of this particular airport terminal and of the

ways in which the regulated conduct . . . might actually interfere with the carrying out of those purposes.

Id. (internal quotations and citations omitted). Consistent with

Multimedia, but through the lens of summary judgment, we

10 NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH.
now consider whether the Authority’s total ban on newsracks

inside the terminals was reasonable.5

A.

First we measure the Authority’s restriction on the Publishers’ protected expressive activity, namely, newspaper distribution. This analysis hinges not upon a projected difference

in newspaper sales but rather upon the Publishers’ access to

Airport users for speech purposes. See Lee, 505 U.S. at 684

(upholding a regulation "limiting solicitation . . . to the sidewalk areas outside . . . [airport] terminals" and reasoning that,

because "[t]his sidewalk area is frequented by an overwhelming percentage of airport users, . . . the resulting access of

those who would solicit the general public is quite complete"). Among other things, we consider the extent to which

people visiting the Airport could have received the Publishers’ message by buying their newspapers. See Multimedia,

991 F.2d at 160 (reasoning that "the Commission’s newsrack

ban makes newspapers hard to come by for many patrons of

the Greenville-Spartanburg Airport and impossible for others,

thereby placing a heavy burden on the newspaper companies’

protected distribution activity").

Even drawing all reasonable inferences in the Authority’s

favor, we are constrained to find that its total ban on newsracks inside the Airport’s terminals significantly restricted the

Publishers’ ability to distribute newspapers. The record

reflects that travelers had trouble buying newspapers from the

shops. There were instances of unavailability during the early

morning, and the shops would sell out of The Herald-Sun.

5The Authority contends that we should apply a different analysis,

assessing reasonableness without weighing asserted justifications against

the restriction on protected expression, because its ban on newsracks

inside the terminals arose from a business judgment. See Appellant’s Br.

at 28-32. We disagree. Because the ban considered in Multimedia also

resulted from a business judgment, this case cannot be distinguished from

Multimedia on that basis. 

NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. 11
Furthermore, the Authority concedes that newspapers were

unavailable once the shops closed each day around 9:00 p.m.

This means that passengers aboard the thirty-seven flights

scheduled to arrive after that time or aboard flights delayed

past that point could never purchase a newspaper upon landing. The Publishers’ ability to reach these people inside the

terminals was thus nonexistent. Finally, the Airport’s tightly

contained character enhanced this burden on newspaper distribution. See id. ("If a governmental entity imposed a similar

ban on newsrack placement on city streets and sidewalks,

those desiring a paper might find private vendors on nearby

private property taking advantage of a newly created market;

but the Airport’s ban offers no similar opportunity for patrons

or vendors."). For these reasons, we conclude that the Authority’s total ban on newsracks inside the terminals significantly

restricted the Publishers’ protected expression.

B.

Next we determine whether the Authority asserted legitimate interests that counterbalance the restriction on protected

expression. Given that the Authority may "reserve the forum

for its intended purposes," our analysis here must keep in

mind the Airport’s intended purposes of facilitating air travel

and raising revenue. Perry, 460 U.S. at 46. We also note that

the Authority "need not have adduced specific factual evidence that its interests were advanced by the ban or that the

expressive activity banned did interfere with the forum’s

intended use." Multimedia, 991 F.2d at 160. Instead, the

Authority generally "was entitled to advance its interests by

arguments based on appeals to common sense and logic." Id.

The Authority asserts four interests to justify totally banning newsracks inside the terminals: aesthetics, preserving

revenue, preventing congestion, and security. We recognize

the legitimacy of these interests. See id. at 161 (noting that

government interests in aesthetics and preserving revenue are

legitimate); Lee, 505 U.S. at 683-85 (deeming legitimate the

12 NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH.
government interest in preventing congestion); Jacobsen v.

City of Rapid City, 128 F.3d 660, 662-63 (8th Cir. 1997)

(deeming legitimate the government interest in airport security). Below we consider whether they counterbalance the significant restriction on protected expression.

1.

First, we consider the Authority’s interest in preserving the

Airport’s aesthetics. Although arguments based solely on

logic or common sense normally are allowed, Multimedia

stated that asserting an "interest in aesthetics . . ., without

more, isn’t sufficient to . . . permit the restriction of protected

expression." Multimedia, 991 F.2d at 161. We added that aesthetic concerns have been found substantial enough to justify

restricting protected expression only where "the aesthetic

harm has been both substantial and widely recognized," and

noted "that the speech restricted has often been of low First

Amendment value." Id. (citations omitted).

The Authority has offered no evidence that placing newsracks inside the Airport’s terminals would cause substantial

and widely recognizable aesthetic harm. Nor does common

sense or logic support that conclusion. We cannot see how an

appropriate number of carefully placed newsracks fashioned

to complement each terminal’s interior design would have

substantially undermined the Airport’s aesthetics. Moreover,

the Authority has proffered no justification to distinguish

newsracks from the vending machines, racks displaying brochures, ATM machines, and other visual obtrusions that

existed inside the terminals. For these reasons, we conclude

that the Authority’s aesthetic interest cannot counterbalance

the significant restriction on protected expression.

2.

Second, we consider the Authority’s interest in preserving

revenue. The Authority argues that we should adopt its busiNEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. 13
ness judgment under the "concession master plan," which

excludes newsracks but purports to maximize revenue. J.A.

265. The Authority also proffered expert testimony that letting people buy newspapers from newsracks would affect

shops’ sales not only of newspapers but also of snacks and

other items that customers seeking newspapers might purchase on impulse. Fewer sales would mean less revenue for

the Authority, which received ten percent of shops’ gross

profits.

At the very least, these arguments fail to address the significant restriction on protected expression we identified,

namely, that the Publishers cannot distribute newspapers

inside the terminals to passengers arriving when the shops are

closed, and that at times newspapers are otherwise unavailable. We cannot see, and indeed the Authority has offered no

evidence or rational explanation for, how allowing newsracks

in such circumstances could detract from sales or affect revenue.

Furthermore, we are not persuaded by the Authority’s reliance on the master plan for concessions. Nothing in the record

or briefs suggests that, when the master plan was being developed, its creators even considered newsracks. Accordingly,

that the plan excludes newsracks provides no basis for concluding that placing some number inside the terminals would

be inconsistent with maximizing revenue.

Finally, Multimedia considered and rejected a similar argument about lost revenue on the ground that the Commission

"could have exacted a concession for papers sold from newsracks equal to that assessed against the shop." Multimedia,

991 F.2d at 161. We do not foreclose that possibility here.6

6Once again, we stress the limited nature of our inquiry. We consider

only whether banning all newsracks inside the terminals violated the First

Amendment. Such issues as number, placement, and cost are beyond the

scope of our analysis. 

14 NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH.
For these reasons, we conclude that the Authority’s interest in

preserving revenue cannot counterbalance the significant

restriction on protected expression.

3.

Third, we consider the Authority’s interest in preventing

congestion. The Authority draws support from the following

description of newsracks:

A standard newsrack projects twenty inches into a

passenger movement corridor. An object of this size

reduces the pedestrian traffic flow capacity of the

corridor by 42 people per minute. A USA TODAY

type newsrack, being used by a standing customer

with the cabinet door fully extended, reduces pedestrian traffic flow capacity by 110 people per minute,

without allowing for any baggage placed on the floor

while the device is in use.

Gannett Satellite Info. Network, Inc. v. Berger, 716 F.Supp.

140, 153 (D.N.J. 1989), rev’d on other grounds, 894 F.2d 61

(3d Cir. 1990). The Authority might well posit a government

interest against spreading a large number of newsracks indiscriminately throughout the terminals, but that is not the scenario presented. The Authority has not simply prohibited a

large number of newsracks from being randomly spread

around the terminals; it has banned them all. Accordingly, we

need only consider how much congestion would result from

a "limited number" of carefully placed newsracks—the

amount requested by the Observer’s February 17, 2004, letter.

J.A. 167.

Having properly framed the question, we are ultimately

bound by Multimedia. There, we stated that "common sense"

allays fears of congestion around newsracks. Multimedia, 991

F.2d at 162. We reasoned that, because the Supreme Court

found the congestion at an airport created by "a large number

NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. 15
of peaceful leafletters seeking out passersby and attempting to

engage them in dialogue" insufficient to justify banning that

expressive activity, id. at 162 (citing Lee, 505 U.S. at 690

(O’Connor, J., concurring)), "the obviously trivial congestionrelated difficulties posed by carefully placed inanimate newsracks cannot justify the Commission’s ban either," id.

Accordingly, we find here that a limited number of carefully

placed newsracks would create only trivial congestion.7 Cf.

Ayres v. City of Chicago, 125 F.3d 1010, 1013 (7th Cir. 1997)

("The incremental contribution to congestion that five peddlers can make in a sea of hundreds of thousands of festivalgoers is very small.").

Furthermore, the record reflects the presence of numerous

free-standing objects inside the terminals. The Authority proffers no basis on which to distinguish newsracks from the

plants, vending machines, racks displaying brochures, ATM

machines, email stations, trash bins, and similar objects

already present. For these reasons, we conclude that the

Authority’s interest in preventing congestion cannot counterbalance the significant restriction on protected expression.

4.

Finally, we consider the Authority’s interest in maintaining

security within the Airport. The Authority contends that

newsracks could become hiding places for bombs or weapons,

and that stocking them would require letting delivery persons

7That Multimedia applied a different legal standard makes no difference. Its holding about congestion was based on common sense rather than

factual evidence, and summary judgment does not require ignoring logic

or common sense to favor the nonmoving party. See Nat’l Amusements,

Inc. v. Town of Dedham, 43 F.3d 731, 743 (1st Cir. 1995) ("While the

summary judgment mantra requires us to draw every reasonable inference

in favor of the nonmoving party, inferences, to qualify, must flow rationally from the underlying facts; that is, a suggested inference must ascend

to what common sense and human experience indicates is an acceptable

level of probability."). 

16 NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH.
through TSA security checkpoints. In support, the Deputy

Airport Director for Operations Mike McElvaney provided an

affidavit stating that placing newsracks throughout the Airport

would create security risks and burden security personnel,

who would need to screen delivery persons and repeatedly

check newsracks for contraband. Notably, McElvaney confined his analysis to "the information provided by the Plaintiffs in this action identifying 26 locations where they want to

place 208 news racks at the Airport." J.A. 316.

Without in any way diminishing the importance of security

concerns, we again note the extent to which the Airport’s evidence misses the mark. McElvaney premised his analysis on

the existence of 208 newsracks throughout the Airport. The

Authority, however, has banned all newsracks inside the terminals. McElvaney’s analysis indicates little about the security risk created by allowing a carefully calibrated newsrack

presence. Such risk could not be more than de minimis. We

find Multimedia particularly instructive on this point: "The

Federal Aviation Administration has no safety or security regulations addressed to newsracks, and proper design would

render them highly unsuitable for bomb placement. . . . The

incremental danger to airport security posed by newsracks is

entirely de minimis." Multimedia, 991 F.2d at 162 (internal

citation omitted).

In addition to being facially overbroad, the Authority’s evidence has "fail[ed] to distinguish the security impact of newsracks from that of other places in the terminal where a

weapon or bomb can be placed, such as, restrooms, trash cans,

various plants placed in the terminal for aesthetic purposes,

and within newsstands and kiosks." News & Observer, 588 F.

Supp. 2d at 659; see also Jacobsen, 128 F.3d at 663 (dismissing a similar concern "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."). We therefore conclude that the Authority’s security

NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. 17
interest cannot counterbalance the significant restriction on

protected expression.

In sum, the record contains insufficient evidence from

which a reasonable jury could conclude that the Authority’s

asserted interests justify the total ban on newsracks inside the

terminals. Nor does the record support the conclusion that

carefully placing an appropriate number of newsracks inside

the terminals would be incompatible with the Airport’s

intended purposes of facilitating air travel and raising revenue. Cf. Multimedia, 991 F.2d at 163 ("Nothing in the evidentiary record of this case, or in the Commission’s arguments,

suggests that a reasonably controlled placement of a limited

number of newsracks in this terminal would significantly, if

at all, interfere with either the primary or secondary intended

purposes of its operation."). For the reasons stated above, we

AFFIRM.

DAVIS, Circuit Judge, dissenting: 

The issue in this case is whether the court below properly

granted summary judgment to the newspaper publishers when

it held that the Raleigh-Durham Airport Authority’s ban on

newsracks violated the publishers’ First Amendment rights

under Multimedia v. Greenville-Spartanburg Airport Dist.,

991 F.2d 154, 156 (4th Cir. 1993). My colleagues find that

"the government interests asserted to justify the ban do not

counterbalance its significant restriction on protected expression[.]" Maj. Op. at 3. But that conclusion answers the wrong

inquiry. Because this is an appeal from a grant of summary

judgment, the question is simply whether the evidentiary

record reflects the existence of genuine disputes of material

fact. I conclude that it does, and therefore, I would vacate the

district court’s order granting summary judgment and remand

this case for trial. Accordingly, I respectfully dissent.

18 NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH.
I.

In the Fifth Circuit, district courts have been afforded significant authority to find facts even when they are considering

motions for summary judgment if the proceeding is a nonjury

case. Cf. In re Placid Oil Co., 932 F.2d 394, 398 (5th Cir.

1991). But while our court has grudgingly embraced that

notion in a narrow context, see Int’l Bancorp, LLC v. Societe

des Bains de Mer et du Cercle des Estrangers a Monaco, 329

F.3d 359 (4th Cir. 2003), cert. denied, 540 U.S. 1106 (2004),

this is not one of those instances. No party here consented to

have the district court convert the summary judgment record

into a trial record, permitting the district court to engage in

fact-finding. Rather, in this case, 

the district court was not entitled to find facts and

resolve conflicting inferences at this stage of the proceedings. Nor was it allowed to draw reasonable

inferences from the facts before it as if it were a factfinder. Indeed, given the posture of the case, the

court was required to resolve all inferences in favor

of the non-moving party.

Id. at 394 (Motz, J., dissenting). Accordingly, the facts in this

case and the inferences fairly to be drawn from them must be

viewed in the light most favorable to the non-moving party,

here, the Authority. Pueschel, 577 F.3d at 563. Even though

this case will be tried without a jury because the parties did

not request one, there must nevertheless be a trial.

II.

Appellant Raleigh-Durham Airport Authority (the "Authority") operates the Raleigh-Durham Airport (the "Airport"), a

facility that has two passenger terminals, each with its own

departure and arrival concourse, baggage claim, and ticketing

area. As of 2007, approximately ten million passengers passed

NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. 19
through the Airport annually, and in 2004, the Authority’s

operating budget was approximately 65 million dollars. 

The vast majority of the Airport’s passengers have ample

access to newspapers. There are multiple vendors in the airport, many of which sell newspapers and magazines, along

with other non-newspaper items, such as food. As the majority opinion indicates, these shops were "required to open

before the first flight [left] . . . each morning and remain open

until the last flight depart[ed] each evening." J.A. 296. They

normally opened between 4:30 a.m. and 6:30 a.m. and closed

between 8:00 p.m. and 9:00 p.m., although the shops often

closed later when flights were delayed. 

As the majority indicates, in January 2002, The News and

Observer Publishing Company ("the Observer") inquired

about the possibility of placing newsracks inside the terminals. The Authority tentatively agreed to allow installation of

newsracks in the Airport’s parking areas. The Observer

declined the Authority’s offer, likely because it did not want

to pay rent and concession fees. The Publishers then filed suit,

demanding that the Authority permit them to install 208

newsracks throughout the Airport.

III.

The surprising procedural history of this case merits attention. On September 29, 2007, the district court denied cross

motions for summary judgment. The court explained that it

was required by Multimedia to undertake an intensive factbased inquiry, and that it could not resolve this case as a matter of law because it contained multiple material and disputed

facts. 

The court identified five such facts. They were (1) the

severity of the burden faced by customers at the Airport in

buying newspapers; (2) the validity of the aesthetic justification offered by the Authority for refusing to allow racks in the

20 NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH.
terminals; (3) the Authority’s potential loss of revenue from

the allowance of racks in the terminals and the resulting

decline in sales the Authority’s authorized concessions would

see as a result; (4) the safety issues involved in having newsracks in crowded terminals; and (5) the security issues

involved in having newsracks in the secure areas of the terminals. J.A. 1123-27. 

The district court concluded: 

Both parties have answered, in various forms, their

opponents arguments with straight factual contradictions—contradictions that require a weighing of the

evidence, not mere arguments on the law. Such a

multitude of disputed and highly specific factual

contradictions, enhanced by the volume of the

motions and reply, raises a cacophony of arguments

that cannot be settled in a mere summary judgment

hearing. 

J.A. 1127.

The court scheduled a bench trial for November 13, 2007.

On the eve of trial, Plaintiffs’ counsel requested a continuance

to address a serious medical problem in his family, and the

court granted the continuance. Neither party filed anything

with the court between November 13, 2007, and November

24, 2008. 

Over one year after the court denied the cross motions for

summary judgment, on November 24, 2008, the district court

issued an amended order, granting summary judgment to the

Plaintiffs. The court offered no explanation for the change,

and none is apparent, since the court did not receive any filings or additional briefing between its first and second rulings.

In its amended order, the district court applied the same

reasonableness analysis from Multimedia that it used in its

NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. 21
first opinion. The only difference was that — without receiving any new factual evidence or hearing any new legal arguments — it methodically reversed each of its prior

conclusions, converting genuine and material factual disputes

into legal conclusions simply by declaring them as such. J.A.

1140-42.

IV.

Clearly, the legal framework set forth in Multimedia controls the outcome of this case. The question presented under

Multimedia is whether the ban is reasonable "in the light of

the purpose[s] of the forum and all the surrounding circumstances." 991 F.2d at 159. The Authority must establish a reasonable fit between its ends and its means. Bd. of Trustees of

State University of N.Y. v. Fox, 492 U.S. 469, 480 (1989). The

fit need not be perfect, only reasonable. The Multimedia test

evaluates the severity of the burden imposed by the ban, and

then weighs that burden against the government’s interests

and asks if the ban is reasonable. See Maj. Op. at 12-13.

A.

As did the majority, I start by quantifying the burden suffered by potential newspaper customers. In Multimedia, the

court’s burden analysis focused on whether newspaper distributors and potential newspaper buyers had access to newspapers via alternative channels such as gift shops or retail

stores. Multimedia, 991 F.2d at 159. This analysis hinges not

upon a projected difference in newspaper sales but rather

upon the Publishers’ access to Airport users for speech purposes. See Lee, 505 U.S. at 684. 

To help identify the overall burden suffered by the customers at the Airport, it is useful to contrast the situation at the

Airport with the situation at Greenville-Spartanburg Airport

("GSP"), the airport at issue in Multimedia. This comparison

makes it clear that a factfinder could reasonably find that the

22 NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH.
Airport’s customers suffer only a minimal burden. The Airport boasts significantly more newspaper vendors, the vendors

are open longer hours, and the newspapers sold by these vendors are more prominently displayed. 

Customers at the Airport enjoy substantially broader and

easier access to newspapers than those at GSP. Prior to Multimedia, GSP contained only one shop, and it was "a substantial

distance from the gate areas." Multimedia, 991 F.2d at 159.

Moreover, the sole shop was accessible only in one of the

GSP’s two terminals. At the Airport, however, customers may

choose between multiple gift shops in both of its terminals,

both inside and outside the secure passenger area.1

The shops at the Airport are also open longer. At GSP, the

single shop was open from 6:30 a.m. to 9:00 p.m. Multimedia,

991 F.2d at 160. Here, the newspaper vendors are open before

the first flight leaves the Airport each morning and they

remain open until after the last flight departs each evening,

typically from as early as 4:30 a.m. to as late as 9:00 p.m. J.A.

296. Further, many shops remain open after the last flight is

scheduled to depart if extraordinary events, such as bad

weather, cause flight delays. J.A. 296, 327, 352. 

The newspapers at the Airport are also more prominently

displayed than they were at GSP. The shops draw attention to

their newspapers with displays visible from outside the shops.

J.A. 327, 326-27. At GSP, the only shop that sold newspapers

did not display them visibly, and instead, the newspapers

were put in the back of the shop on a flat shelf. Multimedia,

991 F.2d at 160. 

1At the time the district court denied summary judgment, Terminal A

had five shops and two kiosks selling newspapers, with one of those shops

and one of those kiosks located outside the secure passenger area. J.A.

413-15. Terminal C had three shops selling newspapers, one located outside the secure passenger area and two in the secure area. J.A. 289-290.

NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. 23
For all of these reasons, it is clear that the burden on passengers at the Airport is considerably less onerous than the

pre-Multimedia burden imposed on GSP passengers. But the

analysis does not end with a simple comparison, because a

review of the absolute burden imposed on the Airport’s passengers by the newspaper rack ban also demonstrates the

weakness of the burden. 

The overall burden is weak because the vast majority of

passengers flow through the Airport when shops selling newspapers are open, and it is undisputed that these passengers

have access to newspapers. More specifically, approximately

500 passenger flights arrive and depart from the Airport daily.

J.A. 418. Of these 500 flights, all departing passengers and

90% of arriving passengers have full access to open shops. Id.

The small percentage of passengers who lack access to the

shops are those who arrive in the late evening, after 9:00 p.m.

As the Authority demonstrates, these late arrivals are

extremely unlikely to buy anything because they are deplaning passengers, and deplaning passengers account for only

10% of all airport purchases. Id. (explaining that enplaning

(i.e., departing) passengers make 90% of all airport purchases). Further, as a matter of common sense and logic, see

Multimedia, 991 F.2d at 160, passengers who arrive at an airport in the late evening are unlikely to buy newspapers. By

9:00 p.m., the day is over; the newspaper that was published

earlier that morning contains outdated news, soon to be

replaced by the next day’s newspaper. For all of these reasons, very few people are practically affected by this ban.2

Although the majority purports to draw all reasonable infer2The majority notes that the Airport’s "tightly contained character

enhanced" the burden imposed by the newspaper rack. But the Authority

offered to permit the Observer to install newspaper racks in its garages.

J.A. 230. If the Observer had installed such newspaper racks, deplaning

passengers who arrived late in the evening — assuming that they wanted

newspapers — would have had access to purchase them. 

24 NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH.
ences in favor of the Authority as the non-movant, its burden

analysis suggests otherwise. The majority finds that passengers suffer a heavy burden when they attempt to purchase

newspapers because (1) travelers had "trouble buying newspapers from the shops[,]" (2) "[t]here were instances of

unavailability during the early morning," and (3) "the shops

would sell out of The Herald-Sun." Maj. Op. at 11. These

assertions are removed from their factual context and fail to

accord the Authority the proper favorable inferences to which

it is entitled under our precedents. 

As to the first issue, the overwhelming evidence is that

travelers did not have trouble buying newspapers at the shops.3

Travelers could patronize any one of multiple stores open for

their convenience, all of which sold newspapers and displayed

them prominently. At the time the district court denied summary judgment (before it granted summary judgment on the

same evidentiary record), Terminal A had five shops and two

kiosks selling newspapers, with one of those shops and one of

those kiosks located outside the secure passenger area. Terminal C had three shops selling newspapers, one located outside

the secure passenger area and two in the secure area. Further,

3The majority may be referring to the occasional complaint received by

the Authority. The evidence shows that the Authority received very few

complaints about newspapers, J.A. 296, 424, and that most complaints

referred to the lack of newspapers early in the morning. J.A. 313. Between

November 2004 and August 17, 2007, less than 0.7% of the total feedback

(or 9 of 1283 complaints) to the airport expressed any concern about

access to newspapers. J.A. 417; see also J.A. 1068 (statistics from April

of 2003); J.A. 313 (airport has received less than 5 complaints about newspapers since moving its complaint system online); J.A. 424 (airport

received one request in 2007 to keep newsstands open later on non-secure

side of airport). The Airport concedes that it received some complaints

directly after September 11, 2001, but that those complaints probably

resulted from the then-new rules that forbid non-ticketed passengers

access to the terminals. J.A. 295. The sum of these complaints is minor,

especially considering that the airport was undergoing construction and

rule changes regarding airport security throughout part of this period, two

issues that gave rise to temporary problems that were quickly resolved. 

NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. 25
if newspaper purchasers did not want to wait in line, they

could use the "honor boxes" posted in some stores. J.A. 327.

The majority also claims that the facts demonstrate that

newspapers are sometimes unavailable in the morning, but it

omits mentioning the reason that newspapers are unavailable

in the morning. The reason that newspapers are sometimes not

available in the morning is not because of the newspaper rack

ban. Instead, it is because the Publishers deliver the newspapers late. J.A. 352-53. The Airport’s stores open before the

first flight departs, and the shops’ employees attempt to pick

up the newspapers before they open or immediately upon opening.4

 J.A. 328, 352-53, 430-31. But, the papers are often delivered late to the Airport by the Publishers. The shops cannot

sell the papers until the Publishers deliver them. 

The majority’s last assertion, that on rare occasions, some

shops sold out of The Herald Sun, also overlooks or ignores

some key evidence in the record. The record shows that the

shops rarely run out of papers, and that when they do, the

shop employees simply ask the Publishers to deliver more.

J.A. 330. This presents the Publishers with the same choice

that they would face with an empty newspaper rack, and in

either case, the Publishers would be free to decide whether to

deliver additional papers, or not. For all of these reasons, it is

clear that a factfinder could reasonably find that the newspaper rack ban imposes only a modest burden.

4The Paradies stores (CNBC New, Press, and two Press Plus locations),

J.A. 326, attempt to pick up newspapers no later than 5:20 a.m., but often,

the papers are not available until 6:00 a.m. J.A. 327-28, 430-31. The three

Hudson stores open between 4:30 a.m. and 5:00 a.m., and check the loading dock for newspapers every fifteen minutes. J.A. 352-53. These stores

report that the USA Today and The News & Observer are typically delivered around 5:30 or 6:00 a.m., and that the New York Times and Durham

Herald Sun often do not arrive until 6:00 a.m. or later. Id. Thus, due to no

fault of their own, the stores sometimes open without newspapers. 

26 NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH.
B.

As does the majority, I turn next to determine whether the

Authority asserted legitimate interests that, when considered

together, present a genuine dispute of material fact as to

whether the ban is reasonable in light of the burden that it

imposes. See Maj. Op. at 11. As a threshold matter, I noted

that the facts of this case differ from those of Multimedia in

one very critical way.5 In Multimedia, the district court concluded that the governmental interests asserted as justification

for the ban were post hoc, pretextual creations. Multimedia,

991 F.2d at 162. We affirmed. Thus, in Multimedia, the court

found the "government interest" side of the balancing test to

entirely lack credibility. Id. Manifestly, the same is not true

here. In fact, the Airport’s four justifications create genuine

issues of historical as well as ultimate fact regarding the reasonableness of the ban "in the light of the purpose of the

forum and all the surrounding circumstances." Multimedia,

991 F.2d at 159. Thus, this case should be resolved at trial and

not decided as a matter of law. The Authority offers four justifications for its ban on newspaper racks: revenue and economics, security, passenger flow, and aesthetics.6

 I review

each in turn.

5There are also important procedural differences here as the Multimedia

decision followed a trial, not a grant of summary judgment. 

6Here, the Authority presented substantial economic arguments that

were based on a master concession plan created in collaboration with neutral paid consultants. This plan was comprehensive and thoughtful, and it

also increased the Authority’s revenue. 

The majority argues that the Authority’s master concession plan is not

probative evidence because it did not explicitly consider newspaper racks.

But this assertion seems illogical — obviously there are at least two ways

to sell newspapers, via stores and via newsracks. When the Authority created its master plan, it hired two outside consulting firms and performed

customer surveys. It was surely aware of the possibility of using newspaper racks, but decided against it, and ultimately selected a plan that sold

newspapers through retail shops in order to maximize its revenues. J.A.

285. And the plan worked — it boosted retail sales 68% and increased

rental revenue from those sales by 17%. J.A. 298. 

NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. 27
1.

Under federal law, the Authority must be financially selfsustaining and the revenues generated at the Airport should be

expended only for its capital and operating costs. 49 U.S.C.

§ 47107(a)(13) & (b)(1). Thus, the strongest justification for

the ban of newsracks is that it increases the Authority’s revenue. Selling newspapers in stores increases revenue in three

ways: it increases store rents, it increases retails sales, and it

increases advertising revenues. Increased sales drive up the

store rents because stores pay additional rent based on their

retails sales, generally 10% of gross receipts. J.A. 1027-28. 

Drawing all reasonable inferences in favor of the Authority,

selling newspapers in stores dramatically increases retail sales

and therefore, Authority income. J.A. 283-88, see J.A. 266-

68, 271-2 (explaining the "node approach" to retail shopping

where retail and food stores are clustered together to encourage impulse buying). Store-selling generates two streams of

revenue. First, the stores generate significant income from

selling the physical newspaper. J.A. 266, 285. An Airport

Retail Store Executive with several stores at the Airport

explained that the New York Times and USA Today are both

in the top 20 of items sold in his stores, and that USA Today

is among its highest gross profit items. J.A. 267. Experts estimated that in 2004, the loss of newspaper sales alone would

total $25,200. J.A. 273. 

The second revenue stream, income produced by the

impulse buys of newspaper purchasers, is even more substantial.7

 Newspaper sales spark the sale of items like bottled

water or chewing gum, and these small purchases generate

7The majority suggests that the Airport could re-coup the lost revenue

by "exact[ing] a concession for papers sold from newsracks equal to that

assessed against the shop." Maj. Op. at 14 (citing Multimedia, 991 F.2d

at 161). But this argument only applies to lost revenue from the sales of

the actual newspapers, not lost sales from impulse buying. 

28 NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH.
not-so-small profits. One Airport retail executive explained

that newspapers help his profits because 

newspapers (like bottled water) are in my view the

equivalent of bread and milk at grocery stores. . . we

have observed the people come into our shops to buy

newspapers, but once they are there, they buy other

items. If newspaper racks were put inside the airport,

it would impact sales.

J.A. 226. Other sales managers at the Airport agree. J.A. 327,

352. Thus, taking the majority’s suggestion at face value,

even if the Authority could charge the Publishers a premium

to allow installation of newsracks, "a reduction in total revenue would still exist because of the lost sales on related goods

and services also available at the newsstands." See Gannett,

716 F. Supp. at 152; Jacobsen, 128 F.3d at 664 (noting that

installing newsracks would cause concessionaires to "lose

revenues, making its exclusive contract less valuable, . . .

[which] in turn will reduce the City’s leverage in bargaining

for terms such as minimum annual concession fees and pro

rata utility charges."). Each of these income streams increases

the funds that accrue to the Authority. 

Installing newspaper racks would also likely decrease

advertising revenue at the Airport. The Authority sells advertising space on the Airport’s walls and in floor display cases;

the vast majority of such space, about 95%, comprise wall

displays. J.A. 272. These ads produce an average of

$1,750,000 in sales annually, which translates into approximately $875,000 in annual revenue to the Authority. J.A. 292.

Since all newspaper racks must be placed on the floor,8

8The record is clear that newspaper racks cannot be installed in walls.

The Authority provided ample evidence to show that it has little or no

interstitial wall space that could support recessed newsracks. J.A. 320,

324, 1017-18. Any existing space is already occupied with ATM

machines, telephones, or fire extinguishers. J.A. 320. Thus, the only way

to incorporate the boxes would be to install them on the floor either

adjoining or adjacent to the walls. J.A. 1018. 

NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. 29
installing newspaper racks would eliminate floor space available for advertising displays and cover some wall ads. J.A.

250, 272, 292. Thus, newspaper racks will likely decrease the

Authority’s ability to generate advertising revenue, and

decrease it substantially.9 If, for example, twenty-five percent

of wall space was displaced by newspaper racks, the Authority would lose between $182,000 and $214,000 in annual revenues. J.A. 274. 

The Authority’s losses from rents, retail sales, and advertising revenue sum to hundreds of thousands of dollars. It has a

substantial interest in keeping this money, and perhaps an

interest that might make reasonable the modest inconvenience

that the newspaper ban imposes on a few late-night passengers. Again, the issue here is merely whether a factfinder

could find that this ban is reasonable after considering the

severity of the burden imposed by the ban, here, a very modest burden, in light of all of the Authority’s interests, including but not limited to the Authority’s interest in generating

revenue. 

Tellingly, the majority finds that the "Authority’s interest

in preserving revenue cannot counterbalance the significant

restriction on protected expression." Maj. Op. at 15. But as an

appellate court, we are not in the position of a factfinder.

Moreover, all of the Authority’s interests must be considered

jointly, not individually. And finally, this statement is striking

because the issue is not whether the Authority should win at

trial — it is merely whether the Authority successfully demonstrated a genuine issue of material fact and therefore

deserves an opportunity to go to trial. 

9Adding newsracks would also not increase the Publishers’ sales. Evidence from other North Carolina airports shows that when airports have

newsracks and retail stores, the vast majority of buyers flock to the stores.

For example, sales of USA Today from newsracks at Charlotte, Greensboro, and Wilmington airports total .91%, 3.49%, and 3.14% of total sales

at these airports—very small numbers indeed. J.A. 379. At best, newsracks re-direct a few sales. 

30 NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH.
It is worth noting that economics and revenue arguments

can be sufficiently strong on their own to make the newspaper

rack ban reasonable. See Gannett, 745 F.2d at 775 ("When a

government agency is engaged in a commercial enterprise, the

raising of revenue is a significant interest."). But the Authority provided additional justifications, e.g., security, passenger

flow, and aesthetics, to which I will now turn.

2.

The Authority asserts the reduction of security risks as a

government interest.10 As a matter of common sense and

logic, security is of paramount importance at airports in our

post-9/11 world. First and foremost, officials worry that the

newsracks could be used to hide explosive devices or weapons. J.A. 244-45. Airport security would need to check these

potential hiding places several times each day. J.A. 317.

Although the TSA does not have any regulation that bans

newsracks, a TSA Director opined that "based on my 20+

years of physical security experience, I would discourage this

in the strongest possible terms. This is an invitation for trouble." J.A. 247-48. In light of this advice, since 9/11, the

Authority has removed all vending machines except ATM

machines from the secure side of the terminal. J.A. 232, 291.11

The majority, instead of considering the record, relies on a

10The majority dismisses these concerns because it does not distinguish

the impact of newsracks from plants, vending machines, racks displaying

brochures, ATM machines, email stations, trash bins, and similar objects

already present. Maj. Op. at 16. As the factual record makes clear, however, after the increased security following 9/11, the Airport removed all

such items (except ATM machines) from the secure part of the terminal.

There is no evidence that the Publishers merely want to put newspaper

racks on the unsecure side of the terminals, so the court must consider the

security concerns for the secure side of the terminal. 

11The non-secure side of the terminal has a few vending machines such

as a luggage cart machine, public telephones, a phone card dispenser, a

flower machine, and a flight insurance kiosk. J.A. 232, 291. 

NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. 31
citation from Multimedia that the risk posed by newsracks is

"de minimis." Multimedia, 991 F.2d at 162. But this quote

loses it persuasiveness once it is placed in its proper context:

it predates September 11, 2001. The imperative of airport

security has changed dramatically, and governmental efforts

in these regards certainly have grown more vigorous. For

example, only ticketed passengers and badged support personnel who have undergone background security checks are permitted to pass into the secure areas of passenger terminals

now. J.A. 911-912, 971-72. Similarly, TSA now requires that

all newspapers go through security checkpoints. In contrast,

Multimedia was decided in 1993, significantly before these

security changes were deemed necessary.

The majority also improperly discounts the testimony of the

Deputy Airport Director for Operations Mike McElvaney.

McElvaney provided an affidavit stating that placing newsracks throughout the terminal would create security risks and

burden security personnel, who would need to screen delivery

persons and repeatedly check the racks for contraband. J.A.

316. The majority completely undercuts his testimony simply

on the basis that he responded to the Publishers’ demand to

install 208 newspaper racks. The majority does not cite any

evidence that actually discredits McElvaney, nor does the

majority indicate any reason to believe that installing fewer

than 208 newsracks would completely eliminate potential

security problems. Instead, without any support from the evidentiary record, the majority assumes that "a carefully calibrated newsrack presence" would not create more than a "de

minimis" risk. Maj. Op. at 17. I would not discount McElvaney’s testimony, and would instead permit a factfinder to

apply it to the government’s case for establishing reasonableness. In sum, security risks are a legitimate factor to be considered in the reasonableness analysis.

32 NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH.
3.

The arguments for passenger flow and aesthetics are the

Authority’s secondary arguments, but the majority gives short

shrift even to those. I disagree particularly with the majority’s

disregard for the Authority’s passenger flow argument.12 The

majority acknowledges the Authority’s argument that each

newsrack "reduces pedestrian traffic flow capacity by 110

people per minute, without allowing for any baggage placed

on the floor while the device is in use." Maj. Op. at 15 (citing

Gannett Satellite Info. Network, Inc. v. Berger, 716 F. Supp.

140, 153 (D.N.J. 1989), rev’d on other grounds, 894 F.2d 61

(3d Cir. 1990)). But instead of crediting this demonstrated

pedestrian hindrance, the majority, without justification,

wholly discounts it. 

More specifically, the majority opinion sets up a straw-man

when it considers only "how much congestion would result

from a ‘limited number’ of carefully placed newsracks," Maj.

Op. at 15, and then leaps to the conclusion that the congestion

caused by these newsracks would be "trivial" and "cannot justify the Commission’s ban." Id. But this conclusion misses the

mark for three reasons. First, the majority should not work

from the assumption of a "limited number" of newsracks.

Granting all favorable inferences to the Authority, it is clear

that the Publishers want 208 newsracks distributed throughout

the Airport, not a limited number. This court is asked to

review a summary judgment order, not to give instructions on

how to run an airport. 

Second, regardless of the number of newsracks, the majority should not ignore the very real hindrance that these racks

12A factfinder understandably might be less concerned about aesthetics.

The Authority relies principally on concerns about visual clutter. J.A. 250.

Although this concern is valid to the extent that increased clutter translates

into decreased advertising revenues, id., the pure aesthetics argument does

little to help the Authority’s cause. 

NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. 33
impose on passenger flow. If each newsrack impedes pedestrian traffic flow by 110 people per minute, 208 newsracks

impedes 200,000 people per minute, and a quarter of that

number of newsracks impedes almost 6,000 people per minute. This slow-down could cause real trouble, particularly during peak hours or during the holiday season. At the very least,

it is a valid government objective deserving of consideration

at trial. 

Lastly, the majority again forgets to consider all of the

Authority’s interests in tandem and holistically, instead determining that "the Authority’s interest in preventing congestion

cannot counterbalance the significant restriction on protected

expression." Maj. Op. at 16. The majority should balance all

of the government’s proposed interests against the burden

imposed by the ban, not weigh each argument individually

and atomistically. Thus, whether or not the passenger flow

argument is dispositive as a stand-alone argument is entirely

inconsequential. It is simply one evidentiary peg giving rise

to a discrete argument, which is to be weighed with others

against the burden imposed by the ban to determine if the ban

is reasonable.

C.

The ultimate issue before the trial court is whether the

Authority’s ban is found reasonable when the Authority’s

interests are weighed against the burden imposed by the ban.

Multimedia, 991 F.2d at 159. Here, the evidence shows that

the government has significant interests in generating revenue

and in airport security, along with a modest interest in ensuring smooth passenger movement. Further, the evidence amply

supports a finding that the burden imposed on the Publishers

and on readers by this ban on newspaper racks is, if not de

minimis, negligible. It affects a very small number of airport

passengers, all of whom are statistically unlikely to purchase

newspaper. Despite these factors, the majority finds the

34 NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH.
Authority’s ban on newspaper racks unreasonable as a matter

of law. 

With respect, although the majority describes this conclusion as a legal conclusion, the evidence in the summary judgment record exposes it as the factual conclusion that it truly

is. There simply is no doubt that reasonable minds might reasonably disagree over how best to strike the balance in this

case. Accordingly, I conclude that the district court’s work is

not finished and that this court cannot and should not do that

work for the district court. I would therefore vacate the order

of the district court and remand this case for a trial on the

merits of Plaintiffs’ claims and the Authority’s affirmative

defenses.

V.

For all of the above reasons, I respectfully dissent.

NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. 35