Not THAT kind of Brotherly Love

The NAACP and the ACLU filed suit against the City of Philadelphia over a refusal to accept an advertisement for placement at Philly International Airport. (source)

The billboard reads: "Welcome to America, home to 5% of the world's people & 25% of the world's prisoners." (A larger image of the billboard is available at the NAACP's website.)

The City claims it rejected the ad because of a policy against "issue" and "advocacy" billboards. However, the suit alleges that the City has allowed such ads in the past.

"There is no legitimate justification for the defendants' refusal to accept this advertisement. The City now claims that it forbids 'issue' and 'advocacy' advertising at the airport, but there were numerous examples of such advertising in place before and after the NAACP ad was refused. In fact, the City does not appear to have any written policies, procedures, or standards regarding advertising at PHL, making the City's approval system ad hoc and unconstitutional. And, to the extent that the City has clear standards regarding advertising at PHL, it has allowed Clear Channel to ignore those standards, resulting, again, in an ad hoc and standardless administration of such policies." (source)
The ACLU criticized the City in a published statement:
“The government cannot pick and choose which speech it deems acceptable and which it does not,” said 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 NAACP has a point or two. There is something utterly perverse about how many of our citizens live in prisons. Instead of exercising population control, as we should be, we let any old idiot reproduce – figuring that we need a supply of prisoners so that prison stocks can stay high. Or maybe it is actually a form of quiet genocide. When you stack it up against the fact that the TSA is oozing from our airports to our streets, and our press freedom ranking is noticeably below that of Estonia and Lithuania, and in the same neighborhood as Namibia, Hungary, and Mali, perhaps it is a vital sign reading that we shouldn't ignore.

Of course, the suit itself (if the allegations are proven true) has a point as well. When the government gets into the business of approving or denying expression, it must do so in a content neutral manner. If the city disallows "issue" or "advocacy" ads, but allows ads that sell soap, it is wading into rough First Amendment waters. If, as the NAACP claims, there is no actual policy, but rather this is an ad hoc decision, the city's case gets even tougher.

Marc Randazza is a Massachusetts, California, Arizona, and Florida attorney and 'First Amendment bad ass.' He also writes for his own law blog, The Legal Satyricon.

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