Airport fights free speech case

Newspaper box sales at issue

Staff WriterMay 10, 2009 

Money and free speech are at issue, and legal bills are mounting, as the Raleigh-Durham Airport Authority seeks to overturn a federal court ruling that it has violated the First Amendment by refusing to allow newspaper coin vending racks at the airport.

The RDU board has paid its attorneys more than $400,000 in public money to fight a lawsuit filed in 2004 by The News & Observer and three other newspaper companies that want to install news racks. The board also is under court order to pay the newspaper lawyers' fees - nearly $200,000 and rising.

U.S. District Judge Terrence W. Boyle ruled in November that the RDU ban violates the publishers' right, protected by the First Amendment, to distribute the news. Last month, the airport authority filed a 74-page brief asking the Fourth U.S. Circuit Court of Appeals to overturn Boyle's order.

RDU allows newspaper sales only through newsstands and other shops in its passenger terminals, which handled more than 9 million travelers last year. In its appellate brief, the airport says the ban on racks is justified by concerns that they would be "visual clutter," security risks -- hiding places for a terrorist's bomb -- and pedestrian traffic obstacles.

But the airport authority's chief argument centers around money.

Local governments in Wake and Durham counties own the airport, but RDU does not rely on local tax dollars. The airport provides its public transportation service - and pays its legal bills - with the rents and fees it collects from airlines, parking lots, taxis and car rental agencies and other airport tenants. The shops, newsstands and restaurants alone pay RDU about $6 million a year.

The airport authority argues that both RDU and its retailers would lose money if air travelers were given the option of buying newspapers from coin racks.

"The primary impetus of this action is for us to protect our concessionaires who sell the newspaper products, and that's a big revenue source for us," Robb Teer of Durham, the airport authority chairman, said in an interview. "They have to pay rent. And it's been a tough time for them over the past several years, with the slump in the air travel industry."

Newspapers are having tough times, too, said Mark Hinueber, a Nevada lawyer who keeps tabs on the RDU case for the Newspaper Association of America, a trade group.

"In a time when we're fighting for every customer we can get, single-copy customers are really important to newspapers," said Hinueber, general counsel for the Las Vegas Review Journal. "People spending time in an airport like to have something to read. So we have to get customers any way we can find them."

Doing its duty?

The airport authority argues that most travelers who want a newspaper can buy one at the 10 shops that sell papers in the RDU passenger terminals. And it says newspaper purchases help drive sales of snacks and other shop items.

The news rack ban is reasonable in light of RDU's "duty to maximize revenue," the airport authority contends in its appellate brief. "A reasonable restriction may result in a decrease in sales [for the newspaper companies] or an inability to reach every potential customer."

Boyle noted that some evening flights arrive after the newsstands close. Because free-market forces are subdued in the "tightly contained" airport, he wrote, newspapers cannot easily compete with the RDU board's "retail monopoly."

Attorneys watching the case point out that Boyle based his ruling against RDU on a precedent set by the Fourth Circuit court in a 1993 decision. The Greenville-Spartanburg airport in South Carolina lost that case, after citing similar reasons for banning news racks.

"Flat bans on speech are more problematic than limiting how many news racks there are or their exact placement," said David Hudson, a professor of First Amendment law at Vanderbilt University.

But Hudson said the RDU board is raising important issues, too.

"I think this case shows that this isn't a settled [legal] area, and that's why both sides are spending so much money," he said. "There are decent arguments on both sides."

Today at the South Carolina airport, travelers buy papers from news racks and from a gift shop. Greenville-Spartanburg International Airport collects rent on each square foot of floor space taken up by the vending boxes.

"Things seem like they worked out OK," said J. Garrett Jackson, the airport director, who was a defendant in the 1993 case. "The newspapers ended up with plenty of locations. We felt like we were made whole from the rent they pay for the space they occupy."

bruce.siceloff@newsobserver.com or 919-829-4527

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