Foto Usa, Inc., D.b.a Images of America, Plaintiff-appellant, v. Board of Regents of the University System of Florida, Johnc. Moyle, Personally and in His Official Capacity As Amember of the Board of Regents of the University System Offlorida, et al., Defendants-appellees, 141 F.3d 1032 (11th Cir. 1998)

Foto USA, Inc. seeks to take photographs at the graduation ceremonies of three state universities in order to solicit sales of the photographs to the graduates. Foto USA, Inc. brought this action for injunctive and declaratory relief seeking an order declaring that it has both a First and Fourteenth Amendment right to take these photos, and enjoining the universities from prohibiting it from doing so. The district court granted summary judgment to the universities and Foto USA, Inc. appeals.

The University of Florida, the University of South Florida and Florida State University conduct ceremonies several times each year to commemorate their students' graduation. These ceremonies are by invitation only, and are generally attended by the families and friends of the graduates. The occasion is celebratory but dignified.

In order to make professional quality photographs available to their graduates, each of these universities has solicited bids from commercial photographers, including Foto, USA, Inc. (Foto), for a contract to take pictures of the universities' respective graduates as they walk across the stage to receive their diplomas. The successful bidders received exclusive contracts obligating them to photograph the graduates as they receive their diplomas and granting them the benefit of soliciting the sale of these photographs to the graduates.

Foto chose not to bid on these contracts although it is in the business of taking the same type of graduation photographs and soliciting their sale to the graduates. Foto obtains invitations to graduation ceremonies and, once there, takes its photographs in any way it can. Foto wishes to take such photographs at the graduation ceremonies of these universities. It has presented itself and its equipment at the ceremonies of these schools and attempted to photograph the graduates in order to solicit sales of the photographs.¹ 

The universities concede that Foto may attend and take a limited number of photographs from the designated seating area just as parents are permitted to do. At some points in its brief, Foto makes the specious argument that this is all it wishes to do, i.e., "what every other ticket holder can do: take pictures." If this were so, we would dismiss this case for lack of a case or controversy. Foto's real claim, however, is that it has the same right as the successful commercial photographer bidder to attend the graduation ceremonies and take pictures for a commercial purpose.²  The parties agree that the universities prohibit Foto from taking a photograph of each graduate in order to solicit the sale of that photograph to the graduate.

Foto claims that it has a right under the First Amendment to commercial access to the graduation ceremonies. Foto asserts that the commercial act of soliciting the sale of photographs it intends to create there is the expressive activity which is protected by the First Amendment. It locates authority for this position in our holding in Speer v. Miller, 15 F.3d 1007 (11th Cir. 1994).

In Speer, a lawyer sued the State of Georgia, seeking injunctive relief against the enforcement of its statute which expressly permitted the public to inspect and copy the records of law enforcement agencies, but made it unlawful to inspect or copy the records "for any commercial solicitation."³  Speer v. Miller, Civil Action No. 92-1094, slip op. p. 8 (N.D. Ga. September 25, 1992). On appeal, we held that a First Amendment challenge is appropriate where a state grants access to its public records, but prohibits the use of public records by one who wishes to engage in non-misleading truthful commercial speech. 15 F.3d at 1010. On remand, the district court held the statute unconstitutional under a strict scrutiny analysis. 864 F. Supp. 1294, 1302 (N.D. Ga. 1994).

Foto maintains that Speer recognized a broad First Amendment right of commercial access to public information. Although Foto concedes that this case differs from Speer in that it will have to create the photographs which are the object of its commercial solicitation, it argues, nonetheless, that any difference between seeking "access to the photographic image of graduates rather than access to documents or other records" is "immaterial." Foto claims that, under Speer, it may not be prohibited from taking the picture of every graduating senior at the state university graduation ceremonies because "Foto intends to solicit graduates to sell its photographs, and it is this solicitation that is the critical and protected activity."

There is no First Amendment right of access to public information. See Houchins v. KQED, Inc., 438 U.S. 1, 98 S. Ct. 2588, 57 L. Ed. 2d 553 (1978) ("There is no discernible basis for a constitutional duty to disclose, or for standards governing disclosure of or access to information."); Calder v. I.R.S., 890 F.2d 781, 783-84 (5th Cir. 1989) (holding that a statute restricting access to IRS information does not violate the First Amendment and commenting: "Quite simply, the right to speak and publish does not carry with it an unrestricted license to gather information."); Capital Cities Media, Inc. v. Chester, 797 F.2d 1164 (3d Cir. 1986) (holding that a government agency could deny a newspaper access to government records despite the apparent effect the denial might have on the newspaper's exercise of its First Amendment rights). In Speer, the district court itself noted on remand, "The Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act." 864 F. Supp. at 1297.

Commercial photographers are no exception to this general rule. D'Amario v. Providence Civic Center Authority, 639 F. Supp. 1538 (D.R.I. 1986), aff'd, 815 F.2d 692 (1st Cir. 1987). A commercial photographer has no right of special access, nor any constitutional right to memorialize a public event by photographic means. Id. (denying photographer right to enter public civic center and take pictures of musicians despite "no camera" rule because "any right of access which he might have is, at best, a right to attend, listen, and report, as opposed to a right to film or record events").

Nor does Foto claim a First Amendment right of access to information. Foto's claim is that, where access is permitted, Speer prohibits the state from restricting the commercial use of that information. The general public (parents and anyone else with an invitation), the official photographers, and Foto are all permitted access to university graduation ceremonies. All are permitted to take photographs of the graduates. Foto contends that, under Speer, the universities may not prohibit its commercial use of these photos.⁴ 

Even if Speer were analogous to this case,⁵  it would not control the result. In Speer, the Georgia statute granted public access to, but punished all commercial use of its traffic records. The universities in this case have not prohibited commercial access to their graduating ceremonies. In fact, they have encouraged commercial access by contracting with official photographers, after open bidding, to attend and take pictures of their graduates. The First Amendment is not implicated by this practice.

They do seek, however, to limit commercial access to just one photographer. To this end they granted exclusive rights to photograph the graduation ceremonies for commercial purposes to official photographers.⁶  Although Foto asserts that it has "withdrawn all of its challenges to the 'exclusive contracts' between the University System and its 'official photographers,' " Foto still insists that the State may not prohibit Foto from commercial access to its graduation ceremonies if it grants that same right to an official photographer.⁷ 

The real issue in this case, therefore, is whether the Fourteenth Amendment's guarantee of equal protection of the law requires the universities to permit every commercial photographer who wishes to take photographs of the graduates for a commercial purpose to do so.⁸  Foto claims that it does.

Foto relies on Florida State University Chapter, Local 1880 v. Florida Bd. of Regents, 355 F. Supp. 594 (N.D. Fla. 1973) for its argument that the State has discriminated against it by disallowing it commercial access to graduation. This reliance is misplaced. That case involved whether the Board of Regents could deny permission to the faculty union of Florida State University to use university facilities which the American Association of University Professors (AAUP) had been allowed to use. Neither the faculty union nor the AAUP, however, sought access to university facilities for a commercial purpose. Neither had any commercial contract with Florida State University. The issue was one of mere access to university facilities.

In this case, however, Foto does not seek mere access. It seeks commercial access.⁹  The universities seek to deny Foto commercial access to its graduation ceremonies because they each have an exclusive contract with an official photographer.¹⁰  If it is within the universities' power to enter such contracts, then Foto is not denied equal protection of the law merely because it chose not to bid on the contracts, and so does not reap the benefit of that bargain.

It is axiomatic that a state may enter into contracts with parties for the purchase of services. In fact, the state, as a purchaser of services, enjoys a broad freedom to deal with whom it chooses on such terms as it chooses. Coyne-Delany Co. v. Capital Dev. Bd., 616 F.2d 341, 342 (7th Cir. 1980). At least in the absence of an invidious and discriminatory design to favor one individual over another, a state agency's purchasing decision is not subject to review in federal court. Id. Foto chose not to bid on these contracts. It cannot be heard now to claim that it was discriminated against in their award. Id.

Furthermore, a state may enter into an exclusive licensing contract with a party without offending federal or state antitrust laws. Murdock v. City of Jacksonville, 361 F. Supp. 1083, 1088-89 (M.D. Fla .1973) (city may enter into exclusive lease of its coliseum with one wrestling promoter despite unsuccessful bidder's claim that exclusivity violated First Amendment right to engage in his profession). As the district court noted in that case, an exclusive contract after an open bidding process indicates that one competitor succeeded and necessarily the other failed. Id. at 1088. This does not mean, however, that the result is unconstitutional or even unfair. Id.

Although Foto has apparently dropped its antitrust claims,¹¹  this analysis applies to its equal protection argument as well. An exclusive contract between a state and a private contractor does not, without more, violate the unsuccessful bidder's right to equal protection of the law. Hubbard Broadcasting, Inc. v. Metropolitan Sports Facilities Com'n, 797 F.2d 552 (8th Cir. 1986). In Hubbard, a municipal sports complex awarded exclusive advertising rights on its scoreboard to companies on a first-come, first-served basis. An advertiser who was denied advertising space on the scoreboard sued claiming denial of equal protection because the scoreboard was a public forum. Id. at 554. Although the exclusive contract denied the advertiser space on the municipal scoreboard, the Eighth Circuit found no constitutional violation, because the scoreboard was not a public forum. Id. To hold otherwise, the court noted, would mean that anyone who desired to advertise his product on the scoreboard would have a First Amendment right to do so. "No doubt the principal function of the Metrodome would be disrupted by the volume of the expressive activity alone." 797 F.2d at 555.¹² 

Foto concedes that the graduation ceremonies at issue in this case are not public fora. Since they are not, the state in its proprietary capacity may contract to allow exclusive commercial access to one graduation photographer without offending the equal protection clause. Id.

Every contract is a burden on commercial speech in the sense that Foto argues--that the non-contracting party is excluded from the commercial benefit of the contract. This, in and of itself, however, creates no equal protection problem because there is no constitutional provision which requires that non-contracting parties enjoy the benefits of others' bargains.

The constitution requires only that the state not discriminate on the basis of some suspect class in the award of its contracts, Smith Setzer & Sons, Inc. v. South Carolina Procurement Review Panel, 20 F.3d 1311, 1320 (4th Cir. 1994), or discriminate in applying an otherwise neutral process. See Cook v. City of Price, 566 F.2d 699 (10th Cir. 1977) (selective enforcement of zoning ordinance); Burt v. New York, 156 F.2d 791 (2d Cir. 1946) (discriminatory denial of building permits). Where state economic activity is challenged, the general rule is that it is presumed valid and is sustained if it is rationally related to a legitimate state interest. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440, 105 S. Ct. 3249, 3254-55, 87 L. Ed. 2d 313 (1985). If there is no claim of discrimination on the basis of some suspect class, the state need show only a rational relationship between a legitimate state interest and the economic activity. Id. In the local economic sphere, it is only invidious discrimination, the wholly arbitrary act, that cannot stand consistently with the Fourteenth Amendment. New Orleans v. Dukes, 427 U.S. 297, 303-04, 96 S. Ct. 2513, 2516-17, 49 L. Ed. 2d 511 (1976).

In this case, the universities want to provide a dignified graduation ceremony at which professional photographs will be taken for later sale to the graduates. They have determined that this is best accomplished by awarding an exclusive contract to a professional photographer. They initiated open bidding processes and solicited bids, including one from Foto.

Foto does not even an allege that the award of these contracts was unfair or that it was discriminated against on the basis of some suspect class. Foto complains only that, having chosen not to bid, it does not now have equal access to the subject of the contract. This is sour grapes, not a constitutional claim.

All contracts are by their nature exclusionary. Foto's complaint that the official photographers have exclusive access to the graduation ceremonies does not transform the universities' performance under their contracts with the official photographers into a conspiracy to deny Foto equal protection of the law. See Stephen Jay Photography, Ltd. v. Olan Mills, Inc., 903 F.2d 988, 995 (4th Cir. 1990) (exclusion of other photographers by school officials who entered exclusive contracts with official yearbook photographers are readily explainable as legitimate acts consistent with their contractual responsibilities) (citing Ryko Mfg. v. Eden Services., 823 F.2d 1215, 1227-29 (8th Cir. 1987) (distributor's contractual duties to solicit and accept purchase orders do not transform customer agreements into conspiracies to fix prices)).

The only way Foto's complaint could state an equal protection violation is if all exclusive contracts between state agencies and private contractors are per se discriminatory. This position "flies in the face of commercial reality: school districts, and businesses generally, typically enter into exclusive contracts for the provision of all kinds of services, including legal, accounting, security, plumbing, and maintenance services." See Burns v. Cover Studios, Inc., 818 F. Supp. 888, 892 (W.D. Pa. 1993).

There is no First Amendment issue in this case because commercial access to the graduation ceremonies has not been denied. The state universities awarded exclusive photography contracts after an open bidding process about which Foto does not complain. Under these circumstances, there is no colorable equal protection claim raised in this case. Accordingly, the judgment of the district court is AFFIRMED.