Earlier this month, a federal district court granted a temporary restraining order (TRO) in favor of the Southwest Airlines’ Pilots Association (SWAPA), directing the City of Chicago to allow an ad proposed by SWAPA to be displayed in the Chicago Midway Airport.  The ad (see here) depicts a Southwest pilot holding a sign that reads “Shareholder Returns: $3.1 Billion.  Pilot Raises: $0.”  Acknowledging that a TRO is an “extraordinary” remedy, the court nonetheless granted it in light of an upcoming Southwest Airlines shareholders’ meeting where pilot compensation would be discussed.

The case stemmed from the city’s rejection of the ad.  The city based its decision on guidelines adopted in 2015 in response to a People for the Ethical Treatment of Animals ad that the city had found objectionable but nonetheless permitted.  The PETA ad was posted in O’Hare airport and criticized Air France for its cruel treatment of monkeys.  The city allowed the ad, realizing that it lacked any advertising policies or procedures at the time and could not adopt new ones in response to a single ad.  Following the PETA ad posting, however, the City adopted guidelines that, among other things, prohibited ads that were political, related to public issues or disparaging.

Relying on these guidelines, the city rejected SWAPA’s ad based on the fact that the ad fell into the three prohibited categories listed above.  SWAPA filed suit, claiming the rejection violated SWAPA’s First Amendment rights.  SWAPA used as evidence photos of other ads permitted to be displayed within the city’s airports since the enactment of the advertising guidelines.  SWAPA pointed out that those ads arguably fell within the same prohibited categories as the SWAPA ad.  For example, a World Wildlife Fund ad depicting an elephant with large tusks and the statement “I am not your trinket” related to public issues.  In response, the city pointed out that the ads SWAPA submitted also fell within categories expressly permitted by the guidelines.  The elephant ad, the city contended, was a public service announcement of a non-profit organization, a permitted category under the guidelines.

Using these sample ads as examples, the court found that the guidelines were vague, resulting in arbitrary application.  The inconsistency was relevant to the court’s forum analysis.  The court pointed out that forums are, by nature, dynamic.  A public forum, here, the advertising space, can be transformed into a non-public forum by a consistent policy of limiting access to the forum.  Here, however, the city’s guidelines did not result in a consistent policy of limiting advertising access so, according to the court, did not transform the city’s advertising space to a non-public forum as intended.  The city’s actions in a public forum would be subject to strict scrutiny review, a more difficult standard and one the city was unlikely to survive.  According to the court, even if it was determined that the advertising space was a non-public forum, the city’s rejection of the SWAPA ad constituted viewpoint discrimination in violation of the First Amendment.  Given the inconsistent application of the guidelines and the apparent viewpoint discrimination, SWAPA was likely to succeed on the merits of its case, and the court granted the TRO.

Southwest Airlines Pilots’ Ass’n v. City of Chicago, No. 16-CV-05117, 2016 WL 2937468 (N.D. Ill., May 14, 2016).

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Photo of Kimberly A. O'Hagan Kimberly A. O'Hagan

Kimberly O’Hagan concentrates her practice on real estate transactions, including acquisitions, dispositions, leasing, development, financing and management issues.  Kimberly focuses on understanding the business context underlying a particular issue and seeks to provide her clients with practical solutions.