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As millions poured into Atlanta for the 1996 Olympics, and the Atlanta Journal-Constitution geared up for a war with USA Today, the City of Atlanta started one of its own. The city — seeking to market every available public property for advertising revenue — banned media-owned newsracks at Hartsfield International Airport, according to a suit in U.S. District Court in Atlanta. In their place, the city intended to rent to media outlets newsracks purchased by the Coca-Cola Co., which would feature Coke ads prominently on every coin-operated box. Now, a federal judge has declared the city aviation department’s 1996 newsrack plan unconstitutional, saying the city cannot make money at the expense of the First Amendment. U.S. District Judge Richard W. Story’s order permanently bars the city from forcing newspaper publishers to use city newsracks bearing advertisements for other products; prevents the city from requiring publishers to pay any fee that exceeds the city’s administrative costs; and denies city officials “the unbridled discretion” to select which publications may either locate or maintain newsracks at the airport. Atlanta Journal-Constitution v. City of Atlanta Department of Aviation, Nos. 196-cv-1738, 1:96-cv-1847 (N.D. Ga. July 24, 2000). “The City of Atlanta and major newspaper publishers have spent over four years in this Court exploring their fundamental differences of opinion over to what extent each may control newsracks at Hartsfield Atlanta International Airport,” Story wrote. “Vast amounts of time, energy, and money have been poured into this dispute, which, at times, has appeared to be on the verge of resolution, and at others, promises to extend ad infinitum.” During that four-year fight, the city has confiscated Atlanta Journal-Constitution newsracks, stripped the newspaper’s delivery personnel of security clearance, and barred them from delivering papers on the airport premises, according to court documents. It has allocated $150,000 to combat the newspapers in court and augmented that with several supplemental appropriations, acknowledges City Attorney Susan Pease Langford. Langford says she did not know the total amount allocated to pay for the city’s legal defense or how much the city has spent in legal fees. “It is plain, despite this court’s clear instructions, that the airport’s true motive is to harness the sale of newspapers from newsracks to raise revenue,” USA Today argued in a brief attached to a motion for summary judgment. “The city has told the court time and again that they don’t want to be told by newspapers how to run an airport. They don’t want to sacrifice their autonomy, their rights to control where things can be, what things can be there,” says James C. Rawls, an attorney with Atlanta-based Powell, Goldstein, Frazer & Murphy, who represents USA Today. “They’ve told the court they feel they have the right to make money on every inch of space out there.” But in court filings, attorneys for The Atlanta Journal-Constitution suggest the city also has attempted to restrict newspaper sales at the airport because city officials dislike their publisher and the newspaper’s editorial content, according to court records. City lawyers have labeled this argument “a fallacy.” Langford says the city is considering whether to appeal Story’s ruling. But she declines to say why city officials were unable to reach a settlement with the newspapers’ attorneys. “It’s not something we think is appropriate to discuss at this time,” she says. But, she promises, “The city will have a [newsrack] plan that is appropriate in our judgment and consistent with what the court ultimately requires.” John C. Mellott, the AJC‘s general manager, says he is “very pleased” with Story’s ruling. “We will continue to work with the city to insure that all passengers at Hartsfield continue to have adequate and convenient access to newspapers,” he says. Attorney Peter C. Canfield of Dow, Lohnes & Albertson, who represented the AJC and The New York Times, was on vacation and could not be reached for comment. Rawls says he already has asked that the city reimburse him for more than $50,000 in legal fees and intends to petition the court for more. He says he suspects AJC lawyers will do the same. At stake is the distribution of at least $16 million in annual airport sales of newspapers, periodicals and sundries, according to court records as well as the use of high-dollar, airport commercial space to generate city revenues. Until 1996, according to court records, newspapers were allowed to place racks in the airport terminal for free. Under that arrangement, the AJC subcontracted with an airport concessionaire to service the AJC‘s newsracks. But in 1996, as newspapers such as the AJC sought to increase the number of newsracks at the airport to boost their Olympic readership, the city aviation department decided it, not the newspapers, would own and control airport newsracks, which it would lease for $20 per box a month. COCA-COLA DEAL As part of that plan, the city agreed to lease prime airport retail space to Coca-Cola and allow the company to place display ads on the newsracks, according to court records. In return, Coke agreed to pay for half the cost of 64 newsracks featuring Coke advertisements, according to Story’s order. As part of the deal, Coke built several airport kiosks promoting the city and contributed to the cost of expanding the airport’s Martin Luther King Jr. reading room, according to court records. Under the city’s new contract, Coke, not the newspapers, determined the number of airport newsracks and their locations. In addition to leasing newsracks that had been free, the city informed the newspapers that newsrack permits would be based on a desire to reflect a diversity of viewpoints in the airport and that the city could cancel a permit with only 30 days notice, Story’s order stated. UNCONSTITUTIONAL BARRIERS Newspaper lawyers protested, saying the city’s plan unfairly restricted a newsrack’s location and the publishers’ ability to advertise, attached new fees designed to make the city a profit, and forced associations with a city-chosen advertiser — all unconstitutional barriers to freedom of the press. “Limiting the number of newsracks to the number of ads desired by Coca-Cola is a sign of unbridled discretion,” lawyers for USA Today wrote in one memorandum. So, too, were a requirement limiting newsracks to locations “where airplane passengers are least likely to pause to make reading decisions” and city officials’ intention to protect airport newsstand concessionaires from possible newsrack competition, lawyers contended. “Of course, this behavior betrays an anti-publisher animus as well,” the memorandum stated. Two weeks before the Olympics opened, the city began confiscating AJC airport newsracks, even though airport officials had told the newspaper they would allow some of the AJC‘s newsracks to remain, court records state. When the newspaper secured a temporary restraining order and replaced the racks, the city confiscated them again. After the newspaper secured permission from Delta Airlines to place newsracks on Delta’s concourse, airport officials — despite the temporary restraining order — seized the racks a third time on the day the Olympics opened, court records say. Six days later, city officials canceled security clearance of AJC personnel, refused to allow them to deliver the papers, and informed them that the AJC would have to be delivered by a distributor chosen by the city in an action that U.S. District Judge Ernest Tidwell called “perilously close to contempt.” “During this entire period of retaliatory activity, the City Attorney informed the Journal-Constitution that Mayor Campbell was personally involved and would continue to remain personally involved in the issues before the Court,” AJC lawyers wrote in one response. Eventually, the newspaper deposed the mayor, over the objections of city lawyers. “It would appear that his deposition has been requested for purposes of harassment,” wrote R. Scott Tewes, an attorney with Kilpatrick Stockton who was defending the city. In his order, Story didn’t address the allegations of personal animus on city officials’ part against the newspapers, particularly the AJC. But he did discount in blunt language the city’s reasons for barring media-owned newsracks in favor of their own. City attorneys argued that safety concerns that the newsracks might be used to house a terrorist’s bomb, aesthetics, passenger convenience, and an interest in making money led the city to take control of the airport newsracks. JUDGE CHALLENGES REASONS Story noted that “The reasons offered by the [Aviation] Department are quite susceptible to attack as being post-hoc, pretextual justifications for actions purely motivated by a desire to benefit from a business relationship with Coca-Cola. . . . The Department may not do what it pleases to restrict protected expression and then simply articulate legitimate reasons which did not receive consideration in the decisionmaking process.” Citing “grave doubts as to whether the city’s asserted reasons had any basis in fact,” Story called the city’s restrictions on the displays of newspaper logos on newsracks that featured large Coke advertisements unconstitutional. “The entire reason for allowing Coca-Cola to use the city-owned newsracks was to foster the city’s relationship with the company which was underwriting city-sponsored cultural programs,” the judge’s order stated. “This reason cannot support the government’s action in compelling publishers wishing to sell papers through newsracks to associate their publications with Coca-Cola products.” Story also questioned the “unbridled discretion” of airport personnel to choose which publications were allowed to lease the city newsracks. “The only guidance offered to the official administering this plan is the elusive ‘desire of the Department of Aviation to present a diversity of publications in a coherent manner,’” Story wrote. “This is no guidance at all, and is terribly susceptible to abuse by an official harboring a desire to oppress certain views.”

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