The Raleigh-Durham Airport Authority is violating the First Amendment with its ban on newspaper coin vending racks at the public airport, a federal appellate court ruled Friday.
By a 2-1 vote, a panel of the U.S. Fourth Circuit Court of Appeals in Richmond affirmed a lower court order in favor of The News & Observer and three other newspaper companies that sued RDU in 2004.
U.S. District Judge Terrence W. Boyle ruled in November 2008 that RDU must allow the newspapers to install news racks at the airport, which is owned by local governments in Durham and Wake counties. The appellate panel also upheld Boyle's order that RDU pay the newspapers' legal expenses.
Orage Quarles III, The N&O's publisher, said he hoped the airport authority would drop its appeals.
"We're pleased that the courts continue to back our position, and we're looking forward to putting our racks out there," Quarles said. "From the beginning, we felt we had First Amendment protections. And the courts have agreed."
RDU's reaction
The RDU board can comply with the ruling issued Friday or ask to have the case heard again by the three-judge panel, by the full 13-member Fourth Circuit court, or by the U.S. Supreme Court.
"We are reviewing the decision with our attorney and advising our board members," RDU spokesman Andrew Sawyer said by e-mail.
RDU officials said last April that they had spent more than $400,000 to fight the newspapers' lawsuit. Sawyer said he could not provide figures for the airport's additional expenses since then.
The N&O was joined in its lawsuit by the companies that publish The Durham Herald-Sun, The New York Times and USA Today. Charles Coble, a Raleigh lawyer representing the newspapers, said their legal bills - to be reimbursed by RDU - have surpassed $300,000.
Free press protections guaranteed by the First Amendment include the right to disseminate the news, the Fourth Circuit ruling said. The judges rejected RDU's argument that airport travelers have enough opportunity to buy newspapers from the airport shops that sell them now.
RDU lawyers said the ban was reasonable because news racks would pose security risks, impede passenger flow through the terminals, degrade airport aesthetics and reduce airport authority revenues from shops. But the Fourth Circuit panel concluded that RDU's arguments failed on all four points.
"The government interests asserted to justify the ban do not counterbalance its significant restriction on protected expression," the panel said in a 35-page opinion. It was written by Judge Allyson Duncan of North Carolina and joined by Judge J. Harvie Wilkinson III of Virginia.
In his dissent, Judge Andre M. Davis of Maryland wrote that Boyle should have held a trial to settle factual issues between RDU and the newspapers, instead of issuing a summary judgment against the airport authority. Davis said most air travelers have ample opportunity to buy newspapers from airport shops.
Boyle and the Fourth Circuit panel based their ruling against RDU on a 1993 Fourth Circuit decision that ended a newspaper rack ban at the Greenville-Spartanburg, S.C., International Airport. The airport now allows news racks and collects rent on them.
