Appellate Court Grounds Airlines' First Amendment Challenge to DOT Rule

(Photo credit: Wikipedia)In its 21-page opinion in Spirit Airlines, Inc. et al. v. U.S. Dept. of Transportation (No. 11-1219), the United States Court of Appeals for the District of Columbia decided 2-1 to uphold the constitutional validity of a DOT rule that restricts how airlines can display a break down of how much of a passenger's airfare goes toward taxes and fees.

Judge David S. Tatel and Judge Karen LeCraft sided with the DOT in the opinion written by Tatel and Judge A. Raymond Randolph wrote a spirited dissent. The DOT contended its rule requiring airlines prominently to display in advertised fare prices the full-cost of the ticket, including government taxes, was designed to eliminate confusion by informing consumers about their actual flying cost. 

Plaintiffs, led by Spirit Airlines, Allegiant Air and Southwest Airlines, alleged the DOT rule violated their First Amendment rights of political speech by impeding their ability to discuss the onus of airline taxation. Judge Tatel, however, wasn't buying the First Amendment argument, saying the speech at issue was not political speech, which invites strict scrutiny by the court, but rather, less-protected commercial speech, which warrants only intermediate scrutiny.

The DOT rule, Judge Tatel wrote, "does not prohibit airlines from saying anything; it just requires them to disclose the total, final price and to make it the most prominent figure in their advertisements."

(Tip of the hat to the Wall St. Journal Law Blog for initially landing this case.)