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The First Amendment prohibits enforcement of a plan to regulate the sale of newspapers at Hartsfield Atlanta International Airport, the 11th U.S. Circuit Court of Appeals ruled Jan. 4. Atlanta Journal and Constitution v. City of Atlanta Dep’t of Aviation, No. 00-14413. Affirming a lower court grant of a permanent injunction to the Atlanta daily and two other news publishers, the circuit court capped a controversy that began in 1996, when the city agreed to promote an Olympics sponsor, the Coca-Cola Co., at the newly renovated airport. As part of the promotion, the city announced it would prohibit news publishers from using their own racks at the airport. Instead, only selected publishers would be allowed to lease city-owned racks displaying Coca-Cola advertising, for $20 per month. The city would grant the permits based on its desire for diversity of viewpoints and could cancel a permit on 30 days’ notice without cause. Although the plan went into effect July 1, 1996, The Atlanta Journal and Constitution installed its own racks at the airport July 5. The city Department of Aviation confiscated them, prompting the paper to file for a declaratory judgment that the plan was unconstitutional. It was joined by USA Today and the New York Times Co. In July 2000, a federal district court granted the injunction, barring the city from enforcing the plan. Affirming, the 11th Circuit held that the city’s desire to foster its relationship with an Olympic sponsor was insufficiently compelling to require the publishers to associate their papers with Coca-Cola products. Following previous circuit precedent, the panel said the $20 charge was also illegal because it was a revenue-generating fee on protected expressive activity. Such fees could only be charged to cover administrative costs. The plan also impermissibly granted airport personnel discretion to choose among viewpoints in the licensing process. Peter Canfield of Atlanta-based Dow, Lohnes & Albertson, lead counsel for The Journal and The Times, said things will not change drastically because “the district court told us in 1996 to go back to the way things were, before the plan, so publishers have been using their own racks for almost six years now.” USA Today, which has not installed any racks since the plan was enacted, will probably set up new racks to take advantage of the higher volume of travelers now passing through the airport, said James Rawls of Atlanta’s Powell, Goldstein, Frazer & Murphy, lead counsel for the publisher. In the absence of a new plan, he interpreted the court’s ruling to mean that each publisher “is now completely free to put racks wherever it wishes.” Asked about ways to implement a constitutionally permissible licensing plan, Atlanta-based William Boice of Kilpatrick Stockton, counsel for the city, said it would be easiest to use a lottery or a first-come, first-served method of allocating racks. But Rawls said it would be difficult to give fair notice to every interested publisher, and such a plan would ignore the market demand for each paper. Boice said the city has not decided if it will seek an en banc rehearing.

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