Can VDOT charge businesses a fee to distribute travel guides at Virginia highway rest areas, or does the First Amendment block it?

Plain-English summary

Until 2011, businesses could leave brochures and travel guides at Virginia's interstate rest areas for free. That year VDOT launched the Sponsorship, Advertising, and Vending Enhancement ("SAVE") program, hired a contractor, and started charging marketing firms for distribution space. A constituent of Delegate Barry Knight, VistaGraphics, Inc., distributed the Virginia Hospitality and Travel Guide and questioned whether the First Amendment let the Commonwealth charge a fee for what it had previously allowed for free at state-owned rest areas. Delegate Knight asked the AG.

The AG concluded that yes, VDOT could charge. The decisive doctrinal moves were (1) classifying interstate safety rest areas as non-public forums, and (2) recognizing that government, when acting in a proprietary capacity (functionally as a landlord), may negotiate commercially reasonable, profit-conscious contracts for the use of its property even when First Amendment activity is involved. As long as restrictions are reasonable in light of the forum's purpose and are not viewpoint-discriminatory, courts will uphold them.

The opinion leaned on an Eleventh Circuit decision holding that a city, acting in a proprietary capacity, could charge newspaper distributors for newsrack space at an airport. It also relied on the conclusion of a federal court that an interstate safety rest area is a non-public forum.

The opinion limits itself to the constitutional analysis. It does not address whether the fee in any particular contract was reasonable, whether there were content-based decisions hiding inside the contracting process, or whether the federal Highway Beautification Act and related regulations imposed independent limits on rest-area commerce.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is a "non-public forum"?
A non-public forum is government property that has not, by tradition or designation, been opened up for general public expression. Streets and parks are traditional public forums; sidewalks too. Airport terminals, transit platforms, and interstate rest areas are typically non-public forums. The First Amendment still applies, but the government has wider latitude to set rules.

What does "acting in a proprietary capacity" mean here?
It means the government is running its property the way a private owner would. When a city leases newsrack space at the airport, or a transit authority charges for advertising on subway platforms, the relevant analogy is to a landlord, not to a sovereign regulator. Courts allow government landlords to negotiate fees for access just as private landlords could.

Does this give VDOT unlimited power to set fees?
No. The opinion limits its conclusion to "commercially reasonable, profit-conscious" fees charged when VDOT acts "reasonably and in a proprietary capacity." The governing standard the opinion quotes is that a restriction in a non-public forum must be "reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view." A fee that targeted particular viewpoints would fall outside what the opinion approved.

Did the opinion address whether VDOT could regulate the content of the ads?
No. The opinion answers only the forum and fee question. It does not address content-based decisions inside the SAVE contracting process.

Background and statutory framework

Virginia's rest areas are part of the federal interstate highway system and serve more than 30 million people a year. The system that hosts them is heavily regulated. Federal statutes and regulations limit access, use, and commercial activity in interstate rights-of-way; vending is permitted in compliance with the Randolph-Sheppard Act; and state highway departments manage interstate rights-of-way in accordance with Federal Highway Administration guidelines. Virginia launched the Sponsorship, Advertising, and Vending Enhancement (SAVE) program in 2011 to offset the cost of operating rest areas.

VDOT's own regulations governing the use of highway rights-of-way acknowledge that vendors of written materials are protected by the First Amendment. The AG's task was to determine whether that constitutional protection extended to free use of state property, or whether the state could charge a commercially reasonable fee for it.

Forum doctrine separates property into categories. A public forum is property such as a street or park that has by long tradition or designation "been devoted to assembly and debate." A non-public forum is public property "not by tradition or designation a forum for public communication," and it is governed by different First Amendment standards. A restriction in a non-public forum is permissible if it is "reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view," and it need not be "the most reasonable" approach, just a reasonable one.

The pivot the AG made, drawing on the airport-newsrack decision, was that within a non-public forum, when the government acts in a proprietary capacity, it can charge fees that mirror what a private property owner would charge. That moves rest-area commerce out of the zone of regulating speech and into the ordinary zone of leasing space.

Citations

• Va. Code § 2.2-505 (Attorney General advisory opinions)
• U.S. Const. amend. I (freedom of speech)
• Randolph-Sheppard Act (vending at federal interstate rest areas; named in the opinion, section number not printed)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2013/12-086_Knight.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General

Kenneth T. Cuccinelli, II
Attorney General

March 1, 2013

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

The Honorable Barry D. Knight
Member, House of Delegates
1852 Mill Landing Road
Virginia Beach, Virginia 23457

Dear Delegate Knight:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether the First Amendment of the United States Constitution prohibits the Virginia Department of Transportation ("VDOT") from charging a fee to a business wishing to distribute travel guide directories at Virginia highway Safety Rest Areas and Welcome Centers (collectively, "Rest Areas").

Response

It is my opinion that the First Amendment protection of free speech does not prohibit VDOT, when it is acting in a proprietary capacity, from negotiating commercially reasonable, profit-conscious contracts for advertising and distributing written materials at its Rest Areas.

Background

Virginia's Rest Areas are part of the federal interstate highway system and serve more than 30 million people annually. In an effort to offset the expense of maintaining and operating Rest Areas and thereby improve their long term financial sustainability, Virginia instituted the state Sponsorship, Advertising, and Vending Enhancement ("SAVE") program in 2011. The SAVE program implements three state revenue generating initiatives at Rest Areas: sponsorships that are acknowledged by roadway signs, the sale of advertising space, and enhanced vending machine sales. A private contractor manages the various marketing components of the SAVE program for VDOT. Federal laws regulate signs, use of space and vending at Rest Areas. Access, use, and commercial activity are limited by federal statute and federal regulation. Vending is permitted at federal interstate highway system rest areas in compliance with the Randolph-Sheppard Act. State highway departments are responsible for managing interstate rights-of-way in accordance with Federal Highway Administration ("FHWA") guidelines. VDOT has kept the FHWA informed on Virginia's SAVE program to ensure compliance with federal regulatory requirements.

You relate that one of your constituents operates a business, VistaGraphics, Inc., that publishes and distributes the Virginia Hospitality and Travel Guide in coordination with the Virginia Hospitality and Travel Association ("VHTA"). The guide is a directory containing information of interest to travelers, including advertisements of attractions, lodging and dining in Virginia. Prior to the implementation of the SAVE program, VistaGraphics distributed its guides at the Rest Areas without charge. After implementation of the SAVE program, VDOT, through a contractor, made available advertising and distribution space at Rest Areas to marketing firms, all of which were charged a fee for the advertising space. At that time, VistaGraphics and other marketing firms entered into contracts to distribute travel guides and other travel-related advertising at Rest Areas in exchange for a fee. You relate that VistaGraphics now questions whether the First Amendment permits the Commonwealth to charge a fee for the use of state property as a distribution point for advertisements such as the Virginia Hospitality and Travel Guide.

Applicable Law and Discussion

Freedom of speech is protected by the Virginia Constitution and the United States Constitution. VDOT regulations governing the use of highway rights-of-way acknowledge that vendors of written materials are protected by the First Amendment. The issue raised here is whether those First Amendment constitutional protections necessarily prohibit VDOT from assessing a commercially reasonable fee for the use of its Rest Area facilities as a distribution point for travel guides.

Although the use of Rest Areas for advertising is a relatively recent practice, other government venues, such as airports, university stadiums, and bus stations have a long history of generating revenue from advertising space. In a similar case, reviewing the regulation of newspaper distribution in an airport, the Federal Court of Appeals for the Eleventh Circuit summarized the law applicable to this practice by stating: "We hold that when a government acts in a proprietary capacity, that is, in a role functionally indistinguishable from a private business, then commercially reasonable, profit-conscious contracts may be negotiated for distribution space in a non-public forum for First Amendment activities."

Following the constitutional analysis employed in this and other similar First Amendment cases, the threshold question is whether an interstate rest area is a non-public forum. A public forum is public property, such as a public street or park, which has by long tradition or designation "been devoted to assembly and debate." A non-public forum is "[p]ublic property which is not by tradition or designation a forum for public communication [and] is governed by different [First Amendment] standards." Numerous courts have determined that transportation facilities and their advertising spaces are non-public forums. One federal court has opined that an interstate rest area, specifically, is a non-public forum.

I concur with this determination. Interstate highways are limited access road systems that are designed to connect "principal metropolitan areas, cities, and industrial centers . . . to serve the national defense; and . . . to connect . . . routes of continental importance." A safety rest area is a component of the interstate system, defined as a "roadside facility safely removed from the traveled way with parking and such facilities for the motorist deemed necessary for his rest, relaxation, comfort and information needs." As limited access facilities on interstate highways designed to provide toilets, food, drink, picnic areas and other restorative opportunities for motorists, safety rest areas "have never existed independently of the Interstate System" and "are hardly the kind of public property that has by 'long tradition or by government fiat . . . been devoted to assembly and debate.'"

The United States Supreme Court has held that the state has "no constitutional obligation per se to let any organization use [a non-public forum]." "[T]he First Amendment does not guarantee access to property simply because it is owned or controlled by the government." Governmental imposition upon expressive activity in a non-public forum is permissible if it is "reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view." Courts will examine the imposition "for reasonableness given the surrounding circumstances. Restrictions must only be reasonable; [they] need not be the most reasonable or the only reasonable" method of governing the expressive activity. Courts have applied the "reasonableness" standard of review in a variety of circumstances involving such issues as: the imposition of fees, the sufficiency of written procedural safeguards, and the nexus between the regulation and the purpose of the non-public forum. As to the permissibility of profit-conscious fees, courts have ruled that when a governmental entity acts reasonably and in a proprietary capacity in a non-public forum, it is constitutionally permissible to charge "profit-conscious fees for access for expressive conduct, in a manner similar to fees that would be charged if the forum was owned by a private party."

Conclusion

Accordingly, it is my opinion that the First Amendment protection of free speech does not prohibit VDOT, when it is acting reasonably and in a proprietary capacity, from negotiating commercially reasonable, profit-conscious contracts for advertising and distributing written materials at its Rest Areas.

With kindest regards, I am

Kenneth T. Cuccinelli, II
Attorney General