ATLANTA JOURNAL & CONSTITUTION v. CITY OF ATLANTA DEPARTMENT OF AVIATION

Nos. 00-14413, 00-15181 and 00-15185.

322 F.3d 1298 (2003)

ATLANTA JOURNAL AND CONSTITUTION, USA Today, a division of Gannett Satellite Information Network ("GANSAT"), Inc., Plaintiffs-Appellees, New York Times Company, d.b.a. The New York Times, Intervenor-Plaintiff, Appellee, v. The CITY OF ATLANTA DEPARTMENT OF AVIATION, Benjamin R. DeCosta, in his official capacity as Aviation General Manager, City of Atlanta, Mario Diaz, in his official capacity as Aviation Deputy General Manager, City of Atlanta, Shirley Franklin, in her official capacity as Mayor, City of Atlanta, Defendants-Appellants. Atlanta Journal and Constitution, USA Today, Plaintiffs-Appellees, New York Times Company, d.b.a. The New York Times, Intervenor-Plaintiff, Appellee, v. The City of Atlanta Department of Aviation, Benjamin R. DeCosta, in his official capacity as Aviation General Manager, City of Atlanta, Mario Diaz, in his official capacity as Aviation Deputy General Manager, City of Atlanta, Shirley Franklin, in her official capacity as Mayor, City of Atlanta, Defendants-Appellants. USA Today, a division of Gannett Satellite Information Network ("GANSAT"), Inc., Plaintiff-Appellee, New York Times Company, d.b.a. The New York Times, Intervenor-Plaintiff, Appellee, v. City of Atlanta Department of Aviation, Benjamin R. DeCosta, in his official capacity as Aviation General Manager, City of Atlanta, Mario Diaz, in his official capacity as Aviation Deputy General Manager, City of Atlanta, Shirley Franklin, in her official capacity as Mayor, City of Atlanta, Defendants-Appellants.

United States Court of Appeals, Eleventh Circuit.

February 28, 2003.


Attorney(s) appearing for the Case

William H. Boice, Michael W. Tyler, R. Scott Tewes, Kilpatrick & Stockton, LLP, Atlanta, GA, for Defendants-Appellants.

Peter Crane Canfield, Sean Richard Smith, Dow, Lohnes & Albertson, James C. Rawls, Eric P. Schroeder, Powell, Goldstein, Frazer & Murphy, LLP, Atlanta, GA, Alice Neff Lucan, Washington, DC, for Appellees.

Before EDMONDSON, Chief Judge, and TJOFLAT, ANDERSON, BIRCH, DUBINA, BLACK, CARNES, BARKETT, MARCUS, WILSON and HILL, Circuit Judges.


BIRCH, Circuit Judge:

In this appeal, we decide whether a government agency, statutorily charged to be self-sufficient and acting in such proprietary capacity, is permitted to assess profit-conscious fees on expressive activities for use of distribution facilities in a non-public forum. The district court found that the assessment of any fee in excess of administrative costs was contrary to the First Amendment of the United States Constitution and precedent in this...

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