and that Congress' explicit approval of the construction of the bridge thereby violated the Port Preference Clause. The Supreme Court found that the construction of the bridge did not violate the Port Preference Clause. The Supreme Court interpreted the clause narrowly, finding that it did not prohibit regulation that had disparate effects on various ports, but only those acts which directly discriminated against states:
Indeed, the clause, in terms, seems to import a prohibition against some positive legislation by Congress to this effect, and not against any incidental advantages that might possibly result from the legislation of Congress upon other subjects connected with commerce, and confessedly within its powers. . . . The truth seems to be, that what is forbidden is, not discrimination between individual ports within the same or different states, but discrimination between states; and if so, in order to bring this case within the prohibition, it is necessary to show, not merely discrimination between Pittsburgh and Wheeling, but discrimination between the ports of Virginia and those of Pennsylvania.
59 U.S. at 433-35. Later cases have supported this approach. As it has been interpreted, the Port Preference Clause does not bar statutes regulating commerce that incidentally operate to the prejudice of the ports in a neighboring state, but it forbids discrimination between states. See, e.g., Louisiana Public Service Commission v. Texas & New Orleans R.R., 284 U.S. 125, 131, 76 L. Ed. 201, 52 S. Ct. 74 (1931); Armour Packing Co. v. United States, 209 U.S. 56, 80, 52 L. Ed. 681, 28 S. Ct. 428 (1908); South Carolina v. Georgia, 93 U.S. 4, 13, 23 L. Ed. 782 (1876). Similarly, facially neutral statutes that disparately affect states do not violate the clause. See Alabama Great Southern R.R. v. United States, 340 U.S. 216, 229, 95 L. Ed. 225, 71 S. Ct. 264 (1951).
This is not the first time that the Port Preference Clause has been used in an attempt to challenge airport perimeter rules. In City of Houston v. Federal Aviation Administration, 679 F.2d 1184 (5th Cir. 1982), the Fifth Circuit upheld a F.A.A. regulation that prohibited the use of National Airport for non-stop flights to cities that were more than 1,000 miles from Washington, D.C. After reviewing the Port Preference Clause jurisprudence, the Fifth Circuit distilled the parameters of the Port Preference Clause as it has been interpreted by the Supreme Court:
Government actions do not violate the Clause even if they result in some detriment to the port of a state, where they occur (i) as an incident to some otherwise legitimate government act regulating commerce or (ii) more as a result of the accident of geography than from an intentional government preference.
679 F.2d at 1197. The Fifth circuit upheld the 1,000 mile perimeter rule for Washington National Airport, noting that the rule was facially neutral, and that it did not discriminate against any particular state. Id. at 1198.
In Cramer v. Skinner, 931 F.2d 1020 (5th Cir.), cert. denied, 116 L. Ed. 2d 242, 112 S. Ct. 298 (1991), the Fifth circuit relied on the prior City of Houston and found that the Wright Amendment satisfied both prongs of the test. The Circuit held that the Wright Amendment was enacted incident to Congress' regulation of interstate airline service and "pursuant to its rational decision to maintain the agreement between Dallas and Fort Worth," 931 F.2d at 1032, and that the four states preferred by the Amendment were preferred as an accident of geography rather than as the result of an intentional government preference. Id.
Cramer has not demonstrated that Congress deliberately discriminated against the 45 states not bordering on Texas by reguiring travelers from such states to use DFW if they wish to travel to Dallas-Fort Worth on a nonstop or "through" ticket.
931 F.2d at 1032 n. 14.
The Wright Amendment was enacted pursuant to the government's power to regulate air transportation and to resolve a long-standing dispute that had impeded the development of the region's air resources. It does not require that all flights from Kansas to Texas first stop in one of the four contiguous states; it only conditions those heading to or leaving from Love Field. Nothing is stopping flights from Kansas from flying directly to DFW, only a few miles from Love Field.
Finally, while the choice of the surrounding states as the Love Field Service Area rather than a straight distance perimeter rule may be a less desirable alternative, it is not unconstitutional. As other courts have noted, any perimeter rule is by its nature somewhat arbitrary.
There is no evidence that Congress chose these four states with any evil motive, or for any reason other than they were the closest ones. The use of political boundaries in lieu of geographical ones does not, without more, turn an otherwise permissible "accident of geography" into an impermissible use of state power. This would be elevating form over substance.
As an initial proposition, plaintiffs make a compelling argument that the Port Preference Clause, as it was enacted, was designed to prevent this type of legislation. However, it has not so been interpreted by the courts of this land. In the end, we are forced to agree with Justice Holmes who said: "Upon this point a page of history is worth a volume of logic." New York Trust Co. v. Eisner, 256 U.S. 345, 349, 65 L. Ed. 963, 41 S. Ct. 506, 3 A.F.T.R. (P-H) 3110 (1921). We hold that the Wright Amendment does not violate the Port Preference Clause of the Constitution.
B. Right to Travel Interstate
Plaintiffs also argue that the Wright Amendment violates the right to travel interstate by creating an impermissible classification based upon the exercise of a fundamental right. See Plaintiffs' Mem. at 29-30. We do not accept this contention. Instead, we hold that the Wright Amendment is not an unconstitutional violation of the right to interstate travel because it is a minor restriction, and furthers legitimate governmental goals.
""Freedom to travel throughout the United States has long been recognized as a basic right under the Constitution.""
Although the textual support for this right has been located in various provisions of the Constitution,
"whatever its origin, the right to migrate is firmly established and has been repeatedly recognized. . . " . Attorney General of New York v. Soto-Lopes, 476 U.S. 898, 903, 90 L. Ed. 2d 899, 106 S. Ct. 2317 (1986) (plurality opinion).
Where the fundamental right to travel is implicated, a statute can be upheld only if it is supported by a showing of compelling interest on the part of the government. See 476 U.S. at 904. However, not every restriction on travel operates to implicate the fundamental right. See id. at 903 (state law implicates the right to travel when it actually deters such travel, when impeding travel is its primary objective, or when it uses any classification which serves to penalize the exercise of that right); Jones v. Helms, 452 U.S. 412, 423, 69 L. Ed. 2d 118, 101 S. Ct. 2434 (1981).
The relevant question is not only the extent of the governmental restriction involved, but also the necessity for the restriction. See Zemel v. Rusk, 381 U.S. 1, 14, 14 L. Ed. 2d 179, 85 S. Ct. 1271 (1965).
The Wright Amendment operates only as an inconsequential impediment to the right to travel and does not implicate the fundamental right. The Wright Amendment does not prohibit interstate travel, it merely makes it slightly more of a hindrance for those travelers who insist on using Love Field. As the Fifth Circuit noted in Cramer, "The Love Field Amendment does not bar travelers from distant cities from using Love Field. Rather, just as the perimeter rule at issue in City of Houston, it makes travel less convenient for such passengers. Love Field remains attractive for many long-distance travelers, . . . despite the statutory restrictions" 931 F.2d at 1030. There is no constitutional right to the most convenient form of transportation.
No one is prevented from travelling to any state in the Union by the Wright Amendment; they are merely restricted from Using one airport to do so.
Nor is anybody completely prevented from using Love Field to travel beyond the Love Field Service Area: the Wright Amendment merely delays their departure for a short period. "Not all waiting periods are impermissible."
If anyone wants to fly into Texas they can do so; if they insist on flying into Love Field, they can also do so, but with some restrictions. The Wright Amendment merely makes some travel less convenient for some residents, but it does not prevent them from exercising their right to travel interstate.
Further, Congress imposed the Wright Amendment for rational reasons: to legislatively support a dispute resolution reached by the two cities. The perimeter rule reinforced the development of DFW into the leading airport in the area, and indeed one could argue (as defendants do) that the Wright Amendment was designed to facilitate interstate travel.
Consequently, we find that the Wright Amendment does not impermissibly infringe on the right to interstate travel.
C. First Amendment
Plaintiffs' final claim is that the Wright Amendment impermissibly abridges the First Amendment by limiting protected commercial speech. This claim was also asserted to support plaintiffs' assertion of their standing to sue. Commercial speech is that speech which proposes a commercial transaction. See Board of Trustees v. Fox, 492 U.S. 469, 473-74, 106 L. Ed. 2d 388, 109 S. Ct. 3028 (1989); Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328, 340, 92 L. Ed. 2d 266, 106 S. Ct. 2968 (1986). There is no doubt that the speech at issue here, the advertising of flights available from Love Field, proposes a commercial transaction and is commercial speech.
To analyze the lawfulness of restrictions on commercial speech, the Supreme Court has indicated that the proper approach is first to
'determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.'
Board of Trustees, 492 U.S. at 475 (quoting Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 566, 65 L. Ed. 2d 341, 100 S. Ct. 2343 (1980)). As no party has alleged that the speech at issue here does not concern lawful activity or is misleading, we will assume that the speech at issue is protected by the First Amendment.
We next turn to whether the asserted governmental interest is substantial and whether the regulation is broader than is necessary to serve that interest. The defendants assert that the government's interest was to resolve the differences between Dallas and Fort Worth in developing a regional airport. See also H.R. Conf. Rep. No. 716, 96th Cong., 1st Sess. 24-26 (1979) ("Perhaps the most important point about section 29 is that it provides a fair and equitable settlement for a dispute that has raged in the Dallas/Fort Worth area for many years"). This is a substantial governmental interest. It is beyond question that Congress has the power to regulate air transportation in this country, and the development of airports falls squarely within that ambit. The Wright Amendment serves to finally resolve a dispute that had prevented the region from developing its resources.
The Wright Amendment directly advances the interest asserted by reducing demand for air travel from Love Field. Lack of advertising will lead to a lack of consumer awareness, and while it is not a particularly attractive government goal to keep consumers in the dark, a ban on advertising available services will further the interest in promoting DFW to the exclusion of Love Field. See Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328, 342, 92 L. Ed. 2d 266, 106 S. Ct. 2968 (1986) (prohibiting casino advertising would further government's interest in reducing demand); Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 569, 65 L. Ed. 2d 341, 100 S. Ct. 2343 (1980) ("There is an immediate connection between advertising and demand for electricity.") Nor is the statute more extensive than necessary to serve the interest. It does not prohibit the knowledgeable consumer from receiving the information she seeks upon request.
The restriction on speech does not have to be the least restrictive available. Instead, there must be a "'fit' between the legislature's ends and the means chosen to accomplish those ends. Board of Trustees, 492 U.S. at 480 (quoting Posadas, 478 U.S. at 341). There is clearly such a fit here as the advertising restrictions will lead more people to fly through DFW than would be the case if they knew service was available through Love Field.
Accordingly, we find that the Wright Amendment's restrictions on commercial speech do not impermissibly abridge the First Amendment.
In conclusion, we join the Fifth Circuit to find that the Wright Amendment does not violate the Constitution. We therefore grant defendants' and intervenors' motions for summary judgment and deny plaintiffs' motion. An Order consistent with the foregoing is filed this day.
JOHN H. PRATT
United States District Judge
Date: 30 June 1992
ORDER - June 30, 1992, Filed
In accordance with tile Memorandum Opinion filed this day, it is, by the Court, this 30th day of June, 1992, hereby
ORDERED that Plaintiffs' Motion for Summary Judgment, or in the alternative, for Partial Summary Adjudication, is denied; and it is
ORDERED that Defendants' and Intervenors' Motions for Summary Judgment are granted; and it is
FURTHER ORDERED that this case is dismissed with prejudice.
JOHN H. PRATT
United States District Judge