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Philadelphia Sued Over Rejection of Ad Criticizing U.S. Incarceration Policies

Philadelphia Sued Over Rejection of Ad Criticizing U.S. Incarceration Policies


by Michael Brodheim


On May 20, 2013, a federal district court in Pennsylvania denied the City of Philadelphia’s motion to dismiss in a case brought by the National Association for the Advancement of Colored People (NAACP) and ACLU, challenging the city’s policy related to advertising at the Philadelphia International Airport.

In April 2011, the NAACP had released a report titled “Misplaced Priorities,” which espoused the view that the United States overspends on incarceration at the expense of education and proposed specific reforms to reverse that trend. Seeking to increase public awareness, the NAACP prepared ads to display at airports around the country. The ad that the organization proposed to post at the Philadelphia International Airport read, in relevant part, “Welcome to America, home to 5% of the world’s people & 25% of the world’s prisoners. Let’s build a better America together.”

City officials rejected the ad, claiming that they did not accept “issue” or “advocacy” advertisements, which prompted the NAACP and ACLU of Pennsylvania to file suit on First Amendment and state constitutional grounds. [See: PLN, April 2012, p.50].

The NAACP noted that “other issue-oriented, educational, and advocacy advertisements” had been displayed at Philadelphia’s airport, including ads related to wildlife preservation, global warming, racial equality and supporting U.S. military troops.

“The government cannot pick and choose which speech it deems acceptable and which it does not,” stated Chris Hansen, senior staff attorney for the ACLU’s Speech, Privacy and Technology Project. “The fact that the airport accepted some political issue ads but not the NAACP’s shows the arbitrary nature of the city’s unwritten and undefined policy. It is a clear violation of the First Amendment’s prohibition against the government favoring some speakers over others.”

The city subsequently agreed to post the NAACP’s ad at the airport, but only for three months. In March 2012, Philadelphia officials adopted a written policy prohibiting political and noncommercial advertising at the airport. In response the NAACP filed an amended complaint challenging the new policy. The city then filed a motion to dismiss, arguing that its airport ad policy was viewpoint-neutral and a reasonable regulation, and thus not unconstitutional.

The district court rejected the city’s argument as premature. In order to determine whether the city’s restriction on speech in airport advertisements is constitutional, the court stated it must first determine whether the airport is a private forum or designated public forum, as different standards of judicial scrutiny apply. The city argued for the former classification while the NAACP argued for the latter.

“The walls of Philadelphia International Airport are public space, and the city officials do not have the right to suppress any group’s viewpoint based on their own beliefs or political considerations,” said NAACP general counsel Kim Keenan.

In the absence of a developed factual record from which it could determine the appropriate forum classification, the district court denied the city’s motion to dismiss.

This case remains pending, with the parties filing cross-motions for summary judgment in early November 2013. See: NAACP v. City of Philadelphia, U.S.D.C. (E.D. Penn.), Case No. 2:11-cv-06533-CMR; 2013 U.S. Dist. LEXIS 71332.

Additional sources: Courthouse News Service,


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Related legal case

NAACP v. City of Philadelphia