In a recent case involving the State of Virginia’s authority to regulate the placement of informational brochures in its welcome centers and rest areas, an advertiser brought suit. The advertiser, which had been placing its brochures in state-run welcome centers and rest areas for eight years, alleged that the state’s editorial policies were unconstitutionally overbroad, vague and content-based restrictions on speech, and that the fees charged for placement of the brochures were unconstitutionally excessive.
With respect to the first allegation, the District Court for the Eastern District of Virginia found that the advertiser lacked standing to challenge the regulations. In order to establish standing, plaintiffs must “allege with sufficient facts that their speech rights were chilled and that this chilling or self censorship was both perceptible and objectively reasonable.” In the instant case, the advertiser failed to allege that it had ever been denied an application, sought guidance regarding interpretation of the regulations, or even changed the types of applications it submitted for approval. Instead, the advertiser continued to submit material it suspected may violate the regulations—but still never had a publication rejected. According to the court, the chilling effect and self censorship alleged by the advertiser was unreasonable given the actual circumstances.
In the excessive fee allegation, the advertiser asked the court to declare that the state must allow it to display the brochures for free or at cost. Since the advertiser had actually paid the fees, it did have standing to challenge them. Nonetheless, the court rejected the advertiser’s argument, considering the same factors set forth in Pleasant Grove City v. Summum to deem the welcome center kiosks government speech not subject to First Amendment analysis. The court found all three factors—whether the government had historically used the means of expression to convey government messages, whether the public associated the means of expression with the government, and whether the government exercised editorial control over the message conveyed—present with respect to informational kiosks located in state-run welcome centers and rest areas. In elaborating on the third prong, the court noted that finding otherwise would effectively force the state “to display advertisements that suggested that Maryland and North Carolina were more worthy travel destinations,” and that allowing such material would undermine the entire purpose of the welcome center displays.