By Joy P. Waltemath, J.D.
The Southwest Airlines Pilots’ Association convinced a federal district court in Illinois that the First Amendment barred the Chicago Department of Aviation from preventing the airport display of an ad depicting a disgruntled Southwest Airlines pilot holding a sign that says “shareholder returns $3.1 billion/pilot raises $0.” The pilots’ union wanted the ad displayed immediately, in anticipation of the May 18, 2016, meeting of Southwest shareholder meeting, and the court granted the temporary restraining order against the CDA’s refusal to allow it (Southwest Airlines Pilots’ Association v. City of Chicago,
May 14, 2016, Kendall, V.).
After the CDA rejected SWAPA’s proposed ad for the Midway terminal, which said “The pilots of SWAPA welcome you to Chicago” but also showed a pilot holding a sign that read “shareholder returns $3.1 billion/pilot raises $0,” the union’s president complained to the city of Chicago that the restriction on posting the ad violated the First Amendment. The CDA posited three reasons under its guidelines for rejecting the ad: (1) it expressed the opinions of a trade union and is political in nature; (2) it addressed a public issue (the opinions, positions, or viewpoint of SWAPA about economic and social issues, namely shareholder returns and pilot raises); and (3) it was intended to be, or reasonably could be interpreted as being, disparaging to a business (Southwest Airlines), as well as persons (Southwest shareholders).
Likelihood of success on the merits.
Addressing SWAPA’s motion for a temporary restraining order under the First Amendment, the court considered only the nature of the forum and whether the free speech restriction comported with the standard applicable to that forum, since the parties agreed that the proposed ad was protected speech.
What kind of forum?
The court defined the relevant forum as the advertising space; specifically the display dioramas for the ads, which did not qualify as a traditional public forum, but the union contended that the government had dedicated the advertising space for expressive uses as a designated public forum. In the past, the CDA had allowed advertisements on a wide range of issues, both commercial and non-commercial, including on topics that were clearly “public issues,” “political,” or “disparaging of businesses.” But after the CDA was confronted with an advertisement submitted by the People for the Ethical Treatment of Animals that it found objectionable but had to allow, the CDA evaluated other court-approved policies and developed new advertising guidelines that restricted the content of advertisements, including the following relevant categories (among others): political; religious; public issue; false or misleading information; and disparagement. This, the court said, changed the basic nature of the forum.
But even though the CDA attempted to create a nonpublic forum and limit speech according to that new policy, the court questioned the consistency of the policy’s application. Specifically, it prohibited the pilot ad, but it allowed ads from non-profits that fit within the permissible category of public service announcements. However, it did not further determine whether those nonprofit ads addressed a public issue, namely the opinions, positions, or viewpoint of the non-profit about economic and social issues, which were also prohibited categories. For example, an approved “public service” World Wildlife ad regarding the preservation of Africa’s wildlife featured an elephant with large tusks and stated, “I am not a trinket.” Yet it took a public position that one should not purchase ivory; thus, said the court, it addressed “a public viewpoint on social or economic positions,” yet did not receive the same scrutiny that the SWAPA ad received.
The problem was that the court found four ads—three that had been permitted, and the SWAPA ad—that displayed public messages on social and economic issues. This guideline the court found too vague and to have been applied arbitrarily. The policy’s definition of “public issue” included “economic, political, religious, or social issues.” While “political,” “economic,” and “religious” issues might not be vague, the court questioned whether “social issues” and “economic” issues are so easily understood or differentiated. It found that here, the CDA had interpreted those terms differently depending on the message in the ad. By not consistently applying its guidelines, the CDA’s efforts under the new policy fell short of what was necessary to create a nonpublic-forum status, so the court had to apply strict scrutiny.
Reasonableness and viewpoint discrimination.
Even if the CDA had maintained its non-public forum and the court applied a lower level of scrutiny, the CDA’s power to reserve a forum for certain groups or to discuss certain topics would not have been unlimited. The standard requires that the restriction must not discriminate on the basis of viewpoint and must be reasonable in light of the purpose served by the restriction. Although the CDA claimed that no other viewpoint against the disgruntled pilot ad had been displayed, making it impossible to argue that the CDA was suppressing the pilot’s viewpoint, the court pointed to a “happy Southwest Airline ad promoting the city and the airline” that CDA had approved. To the court, the suppression of the second ad suppressed the viewpoint of the unhappy airline employee yet previously allowed the ad that depicted a satisfied employee. This inconsistent application of the guidelines and suppression of an ad based on a viewpoint compelled the court to find that SWAPA had demonstrated a likelihood of success on the merits.
From that point it was easy for the court to find the rest of the elements of a temporary restraining order satisfied. The loss of First Amendment freedoms “unquestionably constitutes irreparable injury” and SWAPA would suffer immediate, irreparable harm without entry of a TRO because they wanted the ad on display for the May 18, 2016, Southwest Airlines shareholder meeting, where “crucial decisions regarding the pilot’s compensation are made.” There was no adequate remedy at law, and the CDA’s only interest appeared to be discouraging the promotion of SWAPA’s position on a public issue, so the court concluded the balance of equities favored issuing the TRO.