all concession sales. Pursuant to the lease agreements, then, the concessionaires' rental payments are approximately $.16 per enplaned passenger.
In recent years, other metropolitan airports have installed newsracks as an additional means of newspaper distribution. Evidence submitted at trial indicates that newsstand sales of plaintiff's newspaper at these airports has not kept pace with the increase in passenger enplanements. This situation is contrary to economic expectations. Any increase in passenger volume should result in a concomitant increase in newsstand sales. During this period, newsracks were installed at each airport. Newspaper sales by newsracks at these airports have been substantial. A logical conclusion, therefore, is that the installation of newsracks is a factor causing less than expected increases in newsstand sales.
A reduction in newsstand sales per enplaned passenger reduces the total revenue generated by a concessionaire. This, in turn, reduces the revenue available for airport operations.
Any reduction in expected revenues impinges on the defendants' ability to continue to service the primary purpose of the facility and the corresponding needs of the air-travelling public effectively and efficiently. If, as plaintiff suggests, concessionaires were to operate newsracks, a reduction in total revenue would still exist because of the lost sales on related goods and services also available at the newsstands. The prohibition on newsracks imposed by the defendants, therefore, maintains the revenue base upon which the defendants rely to finance operations.
Defendants also assert an interest in maintaining the appearance of the airport terminals.
In this area, the question for the Court is whether the defendant's interest in aesthetics is "only a public rationalization of an impermissible purpose." Metromedia, 453 U.S. at 510; see Gannett Satellite Information Network, Inc. v. Township of Pennsauken, 709 F. Supp. 530, 538 (D.N.J. 1989). In considering this interest, this Court notes that aesthetic concerns are more a function of context than a matter of absolute standards. See Providence Journal, 665 F. Supp. at 114. The impact of particular additions to a local environment will vary depending upon the type of additions proposed and the number of encroachments already in place. See id.
In Southern New Jersey Newspapers, 542 F. Supp. 173, this Court rejected the government's aesthetic rationale for a newsrack ban on populated city streets. See id. at 186. In reaching its conclusion, the court noted that many of the newsracks were to be located in "populated commercial areas where the boxes may even seem at home and not where the boxes might truly look out of place." Id. at 186-187.
In the instant case, the placement of newsracks is prohibited at an airport terminal, dramatically different from the cluttered city streets described in Southern New Jersey Newspapers. See id. at 186. It is hard to imagine that placement of plaintiff's newsracks throughout the airport, as well as those of numerous competitive newspapers, will not contribute to the "visual clutter" of the airport and detract from the overall physical appearance which airport personnel seek to maintain through maintenance and careful allocation of scarce space. The ban on newsracks in the airport, while not completely eliminating all visual clutter, acts as an appropriate means of maintaining the airport's physical appearance.
There is nothing wrong with trying to make the airport aesthetically pleasing. All too many times beauty is sacrificed for utility. Moreover, in this case, there is no suggestion and the record is devoid of any proof that aesthetic concerns are pretextual and designed to hide a motive to suppress First Amendment rights.
Defendants also claim that the placement of newsracks will obstruct pedestrian traffic and may increase the risk of injury to pedestrians. Plaintiff concedes that these safety concerns are legitimate government interests, but maintains that the ban on newsracks is grossly under inclusive because it does not also exclude other obstructions located in public areas throughout the terminal. As previously noted, however, many of these additional objects are necessary for airport operations or provide additional services previously unavailable at the airport. Moreover, many of these objects are located in remote or uncrowded areas of the terminal. Newsracks do not fall into that category. Newsracks are not necessary to airport operations; the machines merely duplicate existing services of concessionaires. In addition, to insure the economic viability of plaintiff's newsracks and those of plaintiff's competitors, the newsracks would be placed in public areas with a high concentration of pedestrian traffic. Such an addition to areas with high pedestrian traffic obviously would increase safety hazards.
In these areas, a newsrack would obstruct the normal and efficient flow of traffic. A standard newsrack projects twenty inches into a passenger movement corridor. An object of this size reduces the pedestrian traffic flow capacity of the corridor by 42 people per minute.
A USA TODAY type news rack, being used by a standing customer with the cabinet door fully extended, reduces pedestrian traffic flow capacity by 110 people per minute, without allowing for any baggage placed on the floor while the device is in use. This obstruction is multiplied many times over considering the additional newsracks that presumably would be placed in the same area by plaintiff's competitors.
The interruption in pedestrian traffic caused by the news racks themselves and the continued use by the general public in high traffic areas results in a substantial decrease in corridor capacity and a concomitant decrease in passenger convenience. The defendants have a legitimate concern for managing the flow of traffic throughout the facility. See Heffron, 452 U.S. at 650-52. During peak travel periods or in emergency situations, maximum flow of pedestrian traffic is essential. A prohibition on newsracks in the airport terminals eliminates additional problems in managing the flow of pedestrian traffic and adequately serves the defendants' interest in safety.
Defendants also argue that news racks pose a security risk because the machines provide an additional place to conceal explosives. This complicates detection and removal procedures in the event of a bomb threat at the airport. Plaintiff states that any increased security risk is de minimus because no explosive devices have ever been placed in newsracks at any airport. This Court notes that airports are public areas with heightened security concerns; the problems of terrorist activities at airports, such as Newark, are well documented.
The defendants need not wait until the first explosive device is placed in a newsrack at the airport to take preventive measures.
Prohibiting the placement of newsracks in the terminals will not eliminate all security risks. This Court recognizes that many objects are already in place in the airport which present the same or similar security problems. However, these objects are necessary for the day-to-day operations of the airport. In this case, the Court is reluctant to condone thirty-four additions to the list of security concerns by authorizing placement of newsracks in the public areas of the buildings. By removing newsracks from the list of potential targets of terrorist activity, overall security at the airport is improved: the number of locations for concealing explosive devices is reduced and detection procedures in the event of a bomb threat
are simplified. This Court concludes that the defendants' efforts to maintain security is enhanced by prohibiting the placement of newsracks in the airport.
* * * *
An airport is a unique public forum attracting large numbers of people for the purpose of safe and efficient air travel. The defendants' interests in safety, security, revenue raising, and efficient operations are particularly pressing in the context of an airport. The Court should not fragmentally evaluate each of the defendants' articulated interests alone. The interlocking nature of these factors necessarily causes a decision on one factor to have ramifications on the others. Simply stated, the whole is greater than the sum of its parts.
The Supreme Court has stated that the judiciary is not assigned the authority to replace the manager of a public forum, or endowed with the competence to decide how to best serve legitimate interests in ongoing operations. See Clark, 468 U.S. at 299. The judiciary should not replace the state in determining the best way to regulate the use of its property; courts should determine only whether a regulation permissibly advances the state's articulated interest. See Regan v. Time, 468 U.S. 641, 657, 82 L. Ed. 2d 487, 104 S. Ct. 3262 (1984). In this case, the defendants' legitimate interests, in the aggregate, are served by the prohibition on the placement of newsracks in the public areas of the airport.
Recognizing that the ban on newsracks adequately serves the defendants' articulated interests, this Court must consider whether the regulation is narrowly tailored to serve the interests it was designed to further. The Supreme Court has stated that a regulation "is narrowly tailored if it targets and eliminates no more than the exact source of the 'evil' it seeks to remedy." Frisby v. Schultz, 487 U.S. 474, 108 S. Ct. 2495, 2502, 101 L. Ed. 2d 420 (1988). In conducting this inquiry, this Court is not bound to look for some imaginable alternative that might be less burdensome on speech.
So long as the means chosen are not substantially broader than necessary to achieve the government's interest, . . . the regulation will not be invalid simply because a court concludes that the government's interest could be adequately served by some less-speech-restrictive alternative. "The validity of [time, place, or manner] regulations does not turn on a judge's agreement with the responsible decisionmaker concerning the most appropriate method for promoting significant government interests" or the degree to which those interests should be promoted.
Ward v. Rock Against Racism, 491 U.S. 781, 57 U.S.L.W. 4879, 4884, 105 L. Ed. 2d 661 109 S. Ct. 2746 (1989) (citations omitted).
In the instant case, the problems associated with the placement of newsracks in the airport terminals are clear. Introduction of newsracks throughout the airport will occupy scarce terminal space without adding to services available to the public, will increase congestion, reduce safety and traffic control, impair revenue raising, create additional security risks, and inhibit efficient operations and maintenance. Because defendants' newsrack ban targets and eliminates the exact source of the problems noted above, this Court concludes that the prohibition of newsracks in the airport terminals is narrowly tailored.
Finally, this Court must consider whether the time, place and manner regulation imposed by the state leaves open adequate alternative channels of communication. "A restriction on expressive activity may be invalid if the remaining modes of communication are inadequate." Tax Payers for Vincent, 466 U.S. at 812. The inquiry is not merely whether alternatives exist, but also whether those alternatives constitute an adequate opportunity to conduct expressive activity. See New Jersey Citizen Action, 797 F.2d at 1261. This test looks only to the alternatives available within the public forum and is not concerned with those available channels of communication which exist outside the forum. See Providence Journal, 665 F. Supp. at 108.
It is clear that newsstands are a time tested means of newspaper distribution. Plaintiff, however, states that the location and hours of operation of newsstands restrict free access to newspapers. Evidence at trial demonstrates that newsstands are located in the central concourses of Terminal A and B as well as in each satellite area where the flight gates operate. When entering or exiting these areas, airline passengers in Terminals A and B must pass within forty feet of a newsstand. In Terminal C, there is one newsstand in the main terminal; three in Concourse 1; two in Concourse 2; and, one in the International area of the main building. Numerous signs throughout all three terminal buildings direct the public to newsstand locations.
Newsstand hours of operation cover nearly all scheduled flights at the airport. In Terminal A, the newsstand in the main building is open before every scheduled departure in the morning and after every scheduled arrival at night. The satellite newsstands operate from 6:30 A.M. to 11:00 P.M., the peak times for air travel. In Terminal B, the newsstand in the main building operates from 6:00 A.M. to 10:00 P.M.; in satellite B1, the hours are 6:30 A.M. to 11:00 P.M.; and, in satellite B3, the hours are 5:30 A.M. to 12:30 A.M. This schedule of hours covers all scheduled arriving and departing flights except for two arrivals scheduled after 12:30 A.M. This shortfall, if it be a shortfall, in the hours of operation of the newsstands at Terminal B is de minimis and cannot rise to the level of a cognizable violation of the First Amendment. Finally, in Terminal C, the newsstand in the main building is open twenty four hours; the newsstands on Concourse 1 and 2 are open from 6:00 A.M. to 10:00 P.M.; and, in the International area of the main terminal, the newsstand is open from 10:00 A.M. to 11:00 P.M.
The hours of operation at each terminal insure reasonable and adequate access to newspapers for the overwhelming majority of airport patrons at almost any hour.
Given the availability of several newsstands located throughout each terminal building and the hours of operation of these newsstands, this Court concludes that airport patrons have more than reasonable access to newspapers through existing channels.
Plaintiff makes much of the fact that defendant's leasing provisions grant concessionaires exclusive or semi-exclusive licenses to distribute newspapers at the airport. In plaintiff's view, this scheme grants private individuals the authority to regulate newspaper distribution based on the individual's uncontrollable discretion.
Plaintiff misconceives the relationship and the strict controls imposed by the Port Authority.
Private concessionaires are permitted to establish operations in the airport under special lease agreements. While granting individuals the right to use terminal space, use of that space is subject to the ultimate control and regulation of the Port Authority. Concessionaires at the airport are not like private stores located along a public street; they operate their businesses as part of the public forum. Any attempt by the defendants or private concessionaires to prohibit the distribution of newspapers is subject to attack under the First Amendment. That is not this case. Newspapers are distributed throughout the public forum by concessionaires operating under the control of the Port Authority. This channel adequately serves the needs of the travelling public. At this juncture, there is no need to introduce an additional manner of distribution which impairs the defendants' legitimate interests in safe and efficient operations. Therefore, the defendants' ban on newsracks is a constitutional time, place and manner regulation on the distribution of newspapers in a public forum.
IV. EQUAL PROTECTION
Plaintiff alleges that defendants' actions and regulations violate its rights to equal protection under the Fourteenth Amendment of the United States Constitution in two respects:
(a) the Port Authority regulations permit concessionaires to distribute newspapers, but deny that right to all other persons; and