Petition for Writ of Certiorari — Board of Airport Commissioners v. Jews for Jesus, Inc.

Supreme Court brief1986

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Text

Kal L 21 1986

JP

4 | YOSEPH F. SPANIOL, 2

dt CLERK

No.

In the Supreme Court

OF THE

United States

OcrToBER TERM, 1985

THe Boarp oF ArrporT COMMISSIONERS

OF THE City oF Los ANGELES, et al.,

Petitioners,

vs.

Jews For Jesus, INc., AND ALAN Howarp SNYDER,

a.k.a. Avi SNYDER,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

James K. Haun, City Attorney

James H. Pearson, Senior

Assistant City Attorney

James R. Kapet,°

Assistant City Attorney

#1 World Way

Los Angeles, CA 90009

(213) 646-3260

Attorneys for Petitioners

*Counsel of Record

Bowne of Los Angeles, Inc., Law Printers (213) 742-6600

a 0 -) t—————~

QUESTIONS PRESENTED FOR REVIEW

1. May an airport operator constitutionally limit the

uses of the interiors of its terminal facilities to their

dedicated and intended airport-related purposes or are

those facilities public forums that require the airport

operator to permit their use for non-airport related

activities?

2. If the interiors of the terminal facilities at Los

Angeles International Airport are not public forums, is

the Board of Airport Commissioners’ policy that limits

the uses of those facilities to airport-related purposes a

reasonable exercise of its right to reserve the uses of the

terminal facilities to their dedicated and intended air-

port-related purposes?

il

LIST OF ALL PARTIES

Petitioner Board of Airport Commissioners of the City

of Los Angeles (“Board”) is charged by the Los Angeles

City Charter with the management and control of the Los

Angeles Department of Airports and the Los Angeles

International Airport; Petitioner Johnnie L. Cochran, Jr.

was the President of the Board and presently is a member

of the Board; Petitioners Robert A. Chick, Maria D.

Hummer and Samuel Greenberg were and presently are

members of the Board; D.A. “Curt” Curtiss was a mem-

ber of the Board at the time the initial action was brought

but has since resigned the position and was replaced by

Petitioner Jerry B. Epstein. Petitioner City of Los Ange-

les is a municipal corporation and the owner of the real

property and facilities that comprise Los Angeles Inter-

national Airport.

Respondent Jews for Jesus, Inc., is a California non-

profit religious corporation; Respondent Alan Howard

Snyder, a.k.a. Avi Snyder, is a member and minister of

the Jews for Jesus organization.

ili

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ..... i

EE ii

SE os ccc ccccccccsccccceces l

EEE 2

CONSTITUTIONAL, STATUTORY, ETC., PROVI-

ID occ cccccccscsccececees 2

STATEMENT OF THE CASE.................. 3

REASONS FOR GRANTING THE WRIT....... 5

THE INTERIORS OF AIRPORT TERMINAL

FACILITIES ARE NOT TRADITIONAL PUB-

LIC FORUMS AND THE FACILITIES AT AIR-

PORTS HAVE NOT BEEN OPENED AS

EEE 7

PETITIONERS HAVE NOT OPENED THEIR

FACILITIES AT AIRPORT AS PUBLIC

FORUMS BUT RATHER HAVE LIMITED

THOSE FACILITIES TO THEIR INTENDED

ES 11

EES 16

Index to Appendices

Appendix A. Opinion of the United States Court of

Appeals for the Ninth Cireuit ................. A-l

Appendix B. Memorandum Decision and Judgment

of the United States District Court ............ B-1

Appendix 1. Stipulation of Facts .............. l

Appendix 2. Resolution No. 13787 ............. (1)

Appendix C. Los Angeles Board of Airport Commis-

sioners Resolution No. 13787 ................. C-1

iv

TABLE OF AUTHORITIES

Cases

Page

City Council v. Taxpayers for Vincent, 466 U.S. 789,

80 L.Ed.2d 772, 104 S.Ct. 2118 (1984) ...... 8, 13, 15

Cornelius v. N.A.A.C.P., 53 U.S.L.W. 5116, 473 U.S.

___., 87 L.Ed.2d 567, 105 S.Ct. 3439 (1985) ....

ote C6O SKE SONNR CONSENTS hOROEEESRHEENCUSECR; 14, 15

Greer v. Spock, 424 U.S. 828, 47 L.Ed.2d 505, 96

BiCb. TBR CIGTE) occ sccccccccccccccccscccces 9

Hague v. C.1.0., 307 U.S. 496, 83 L.Ed. 1423, 59 S.Ct.

et. BPPPPVTTVeTITeTiTerice Tre 8

Heffron v. International Society for Krishna Con-

sciousness, 454 U.S. 640, 69 L.Ed.2d 289, 101 S.Ct.

Se CED 0 66s ccnbekene dennde bbbedree seen: 6

ISKCON v. Barber, 650 F.2d 430 (2d Cir. 1981)... 14

ISKCON v. Eaves, 601 F.2d 809 (5th Cir. 1979) ... 14

ISKCON v. Engelhardt, 425 F.Supp. 176 (D.C. Wis.

OED. ccccddcacenendcusenwabanesecsssaensaes 14, 15

ISKCON v. Rockford, 585 F.2d 263 (7th Cir. 1978) 14

ISKCON v. Wolke, 453 F.Supp. 869 (D.C. Wis. 1978) 14

Kuszynski v. Oakland, 479 F.2d 1130 (1973) ..... 14, 15

Minnesota Bd. for Community Colleges v. Knight, 465

U.S. 271, 79 L.Ed.2d 299, 104 S.Ct. 1058 (1984) 11

Perry Ed. Assn. v. Perry Local Ed. Assn., 460 U.S. 37,

74 L.Ed.2d 794, 103 S.Ct. 948 (1983) ....... 7,12, 15

Rosen v. Port of Portland, 641 F.2d 1243 (1981)... 14

U.S. v. Albertini, 53 U.S.L.W. 4844, 472 U.S. ——, 86

L.Ed.2d 536, 105 S.Ct. 2897 (1985) ........ 222+ 9,15

v

TABLE OF AUTHORITIES

CASES

Page

U.S. v. Grace, 461 U.S. 171, 75 L.Ed.2a 736, 103 S.Ct.

ee IE eh ee eB s

U.S. Postal Service v. Greenburgh Civic Assn., 453

U.S. 114, 69 L.Ed.2d 517, 101 S.Ct. 2676 (1981)

(800 p UN eel hea Rha D EGRESS Oho ocks cue 8, 12, 14

U.S.S.W. Africa/Namibia Trade and Cultural Council

v. US., 708 F.2d 760 (D.C. Cir. 1983) ......... 15

Constitution

United States Constitution, First Amendment

(ta aheecd ue cewlkeewn wae seak teas 2, 6, 12, 14, 15

Statutes

United States Code, Title 28, See. 1254(1) ....... 2

United States Code, Title 28, See. 13831 .......... 2

United States Code, Title 28, See. re 2

United States Code, Title 42, See. 1983 .......... 2,3

No.

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1985

THE BOARD OF AIRPORT COMMISSIONERS OF

THE CiTy oF LOS ANGELES, et al.,

Petitioners,

Vs.

JEWS FOR JESUS, INC.,

and ALAN HOWARD SNYDER,

a.k.a. Avi Snyder,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The Board of Airport Commissioners of the City of Los

Angeles, et al., petition for Writ of Certiorari to review

the judgment of the United States Court of Appeals for

the Ninth Cireuit, in this case.

OPINIONS BELOW

The Opinion of the Court of Appeals (App. A) is

reported in 785 F.2d 791 (9th Cir. 1986).

The Memorandum Dee*ion and Judgment of the Dis-

trict Court (App. B) was not reported.

2

JURISDICTION

The Judgment of the Court of Appeals was entered on

March 25, 1986. An extension of time within which to file

a Petition for Writ of Certiorari to and including July 23,

1986, was granted by the Honorable William H. Rehn-

quist. The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

The jurisdiction of this case in the District Court was

based upon 28 U.S.C. $§ 1331, 1343(3).

CONSTITUTIONAL, STATUTORY, ETC.,

PROVISIONS INVOLVED

(1) The First Amendment to the United States Consti-

tution provides:

“Congress shall make no law respecting an estab-

lishment of religion or prohibiting the free exercise

thereof; or abridging the freedom of speech, or of the

press; or the right of the people peaceably to assem-

ble, and to petition the Government for a redress of

grievances.”

(2) Title 42 U.S.C. § 1983 provides:

“Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or immu-

nities secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress. For

the purposes of this section, any Act of Congress

applicable exclusively to the District of Columbia

shall be considered to be a statute of the District of

3

Columbia. R.S. § 1979; Pub.L. 96-170, § 1, Dee. 29,

1979, 83 Stat. 1284.”

(3) The Los Angeles Board of Airport Commissioners

Resolution No. 13787 that is the subject matter of this

litigation is set forth in Appendix C.

STATEMENT OF THE CASE

This case involves the constitutionality of Petitioner's

Board of Airport Commissioners’ Resolution that ean be

summarized as follows:

“The Los Angeles International Airport shall be

limited to airport-related uses only except that the

sidewalk areas immediately outside of the terminal

facilities may be used for activities protected by the

First Amendment.”

The Petitioners consistently have limited the uses of

the interiors of the terminal facilities at Los Angeles

International Airport (“Airport”) to their intended air-

port-related purposes and consistently have discouraged

and prohibited any uses other than those intended to aid

the traveling public.

The facts in this case are not in dispute. Airport is

owned by the City of Los Angeles and operated by the

Department of Airports (“Department”), which is under

the management and control of the Petitioner Board of

Airport Commissioners. The duties and obligations of the

Petitioners are set forth in the Los Angeles City Charter,

which requires the Petitioners to operate all of their

airport properties for the promotion and accommodation

of air commerce and air navigation or uses incidental

thereto. Accordingly, unless the Petitioners make a deter-

mination that a portion of Airport is not required for

airport purposes, the Petitioners are required by tiveir

4

Charter to devote airport property exclusively to those

activities that aid the traveling public.

Respondent Jews for Jesus is a non-profit religious

organization and Respondent Alan Snyder is a minister

for that organization. Respondents wished to advance

their religious cause by distributing religious pamphlets

in the interiors of the terminal facilities at Airport.

Respondents were informed of the Petitioners’ policy

restricting the uses of interiors of the terminal facilities

to airport-related purposes only and were told to stop

conducting their religious activities within the terminals.

After Respondents were prevented from pamphleteering

within the terminal facilities (but not on the sidewalks

outside), they filed the present action to enjoin enforce-

ment of Petitioners’ Policy.

Respondents claimed that:

(1) The interiors of the terminal facilities at Air:

port were public forums (either traditional public

forums or opened as forums) and, thus, their non-

airport related activities could not be excluded from

the interiors of the terminal facilities at Airport;

(2) Their activities were not incompatible with the

operations of Airport and, therefore, must be permit-

ted; and

(3) Petitioners’ policy was vague and overbroad.

Respondents were not and have not been prevented

from using the interiors of the airport terminal facilities

at Airport for their own travel-related purposes. Rather,

Respondents were deterred from using those facilities for

their non-airport related, religiously related purposes.

Likewise, Respondents were not prevented from using the

sidewalk areas outside the terminal facilities at Airport

for their religious distribution efforts. Further, there is

absolutely no indication or allegation that Respondents

"~ « =”

5

were singled out because of their particular message.

Rather, Respondents are just one of the many charitable

groups, religious organizations and commercial enter-

prises that have been denied use of the interiors of the

airport terminal facilities at Airport because those activi-

ties would neither advance air navigation nor directly aid

the traveling public.

The District Court for the Central District of Califor-

nia, on stipulated facts (a copy of which is attached to its

Opinion in App. B.), treated the parties’ trial briefs as

cross motions for summary judgment and in an unpub-

lished memorandum decision (App. B) declared the Peti-

tioners’ policy unconstitutional and enjoined its

enforcement. In so deciding, the District Court deter-

mined that the interiors of the airport terminal facilities

at Airport were public forums (probably traditional pub-

lic forums).

The Ninth Circuit, in its Opinion (App. A), affirmed

the judgment of the District Court and held that the

terminal facilities at Airport were traditional publie fo-

rums and, accordingly, could not be limited to their

intended and dedicated airport-related purposes even

though such a limitation is an entirely reasonable way to

operate a government-owned facility dedicated solely to

airport-related purposes.

REASONS FOR GRANTING THE WRIT

This Writ should be granted because this case involves

important constitutional issues that continue to be

clouded and ignored by lower courts regardless of a

series of current decisions from this Court regarding the

use of publicly-owned facilities. These issues involve the

uses of a government facility as a public forum when, in

fact, the facility is intended, dedicated, and used for

entirely different, but essential, functions. These issues

6

involve the right of the government to construct and

operate a facility dedicated to and intended for specific

uses and to reasonably disallow all other unrelated uses

including those protected by the First Amendment. The

Ninth Cireuit’s Opinion concluded that the interiors of all

airport terminal facilities are identical to the streets and

parks that have been held in trust for assembly and

debate. If the Ninth Circuit’s decision is permitted to

stand, its reasoning could be applied not only to all

airport facilities but to a host of other government build-

ings that are designed and dedicated for purposes that

are not related to or intended for First Amendment

activities. The important constitutional questions recog-

nized by this Court in Heffron v. International Society for

Krishna Consciousness, 454 U.S. 640, 646, 69 L.Ed.2d 289,

101 S. Ct. 2559 (1981) and a series of other decisions of

this Court regarding the use of publie property for pur-

poses for which they were not intended are present in this

ease.

Furthermore, it is submitted that these constitutional

issues are of paramount importance and need to be

authoritatively decided by this Court to clarify a confused

area of the law that has developed over the years. Lower

court opinions often rely on “earlier” Courts of Appeal

decisions that neither are accurate statements of the law

nor valid precedent on the public forum issues.

The decisions of the District and Cireuit Courts regard-

ing the uses of public buildings for uses other than their

intended and dedicated uses are a confus.d hodge-podge

of conflicting legal theories hopelessly at variance with

the principles of decisions of this Court. These lower

court decisions frequently rely on out-dated and often-

times incorrect lines of case authority to reach conclu-

sions that clearly conflict with current Supreme Court

decisions. Furthermore, these lower court opinions re-

ee ee) we eal. Gel obten cna eOrt crete Genk meet Elin os OD

——— a ee

7

garding the uses of publicly owned facilities often rely on

each other compounding the initial errors and creating an

apparently impressive line of authority that, when ex-

amined closely, falls like a house of cards. This problem

runs throughout the lower court decisions regarding the

uses of a variety of government facilities but is most

apparent in the decisions dealing with the lawful uses of

airport terminal facilities.

The present case is a dramatic example of a court’s

disregard of the essential holdings of this Court and,

instead, a reliance on inappropriate, discredited, or inap-

plicable lower court case law to find that all airport

terminal facilities, regardless of their intended and dedi-

cated purposes and their past uses, are essentially parks

devoted to assembly and debate. Such a conclusion can

only be the result of a total disregard of the holdings of

relevant decisions by this Court regarding the right of a

government to limit the uses of its facilities to their

dedicated and intended purposes and to disallow any

other uses of those facilities whether those unrelated uses

are protected or not. The fact that a Circuit Court could

reach such a conclusion is a prime example of the need for

an authoritative decision by this Court with regard to the

public forum doctrine as it applies to the interiors of

government facilities.

THE INTERIORS OF AIRPORT TERMINAL FACILI-

TIES ARE NOT TRADITIONAL PUBLIC FORUMS

AND THE FACILITIES AT AIRPORTS HAVE NOT

BEEN OPENED AS PUBLIC FORUMS

Traditional public forums are those places that by long

tradition or by government fiat have been devoted to

assembly and debate. Perry Ed. Assn. v. Perry Local Ed.

Assn., 460 U.S. 37, 45, 74 L.Ed.2d 794, 103 S.Ct. 948

(1983). Traditional public forums “have immemorially

been held in trust for use by the publie and ... have been

8

used for purposes of assembly, communicating thoughts

between citizens, and discussing public questions.” Hague

v. C.1.0., 307 U.S. 496, 515, 83 L.Ed. 1423, 59 S.Ct. 954

(1939). Streets, parks and sidewalks are prime examples

of traditional public forums. U.S. v. Grace, 461 U.S. 171,

179, 75 L.Ed.2d 736, 743, 103 S.Ct. 1702 (1983). A

principle purpose of a traditional public forum is the free

exchange of ideas. Cornelius v. N.A.A.C.P., 53 U.S.L.W.

5116, 5119, 473 U.S. ' , 87 L.Ed.2d 567, 580, 105

S.Ct. 3439 (1985).

The Ninth Cireuit erroneously concluded that the inter-

iors of the terminal facilities at Airport are traditional

public forums. This decision was based on a superficial

analysis of current case law and reliance on inappropri-

ate, inapplicable or out-dated lower court case law. Both

Respondents and the Ninth Cireuit failed “to demon-

strate the existence of a traditional right of access re-

specting... [interiors of airport terminal facilities] for

purposes of their communication comparable to that rec-

ognized for streets and parks...” City Council v. Taxpay-

ers for Vincent, 466 U.S. 789, 814, 80 L.Ed.2d 772, 104

S.Ct. 2118 (1984). Without such a demonstration of a

traditional right of access for communicative purposes, it is

clearly improper to conclude that the terminal facilities at

Airport are so comparable to streets, parks and sidewalks

that they are traditional publie forums.

There is no question that publicly owned property does

not become a public forum simply because it is owned or

controlled by the government. U.S. Postal Service v. Green-

burgh Civic Assn., 453 U.S. 114, 129, 69 L.Ed.2d 517, 101

S.Ct. 2676 (1981). Furthermore, the fact “that govern-

ment property can be used as a vehicle for communication

does not mean that the Constitution requires such uses to

be permitted.” City Council v. Taxpayers for Vincent,

supra, at 814. Likewise, the fact that the public is freely

9

admitted to the property does not make a facility a public

forum. Greer v. Spock, 424 U.S. 828, 830, 838, and n. 10,

47 L.Ed.2d 505, 96 S.Ct. 1211 (1976). U.S. v. Albertini, 53

U.S.L.W. 4844, 4847, 472 U.S. : , 86 L.Ed.2d 536,

546, 105 S.Ct. 2897 (1985).

Regardless of these clear principles, the Ninth Circuit

chose to ignore them and to rely on older cases that

considered public ownership, public admission, and the

fact that the terminal facilities at Airport could be used

for communicative purposes as determinative factors in

deciding whether a public forum at Airport existed. There

can be no doubt that a number of “airport cases” have

concluded that certain protected activities could not be

restricted by the particular “time, place and manner”

restriction adopted by a particular airport authority. It is

submitted, however, that these “airport cases” neither

support the Ninth Cireuit’s decision nor, because of their

particular facts, lend any support to the erroneous con-

elusion that the terminal facilities at Airport are tradi-

tional publie forums or any type of publie forum.

The interiors of airport terminal facilities are not held

in trust to be used by the public for assembly and debate.

Rather, they are intended, designed and dedicated to

their airport-related purposes. The mere fact that some

airport operators have opened their facilities to non-

airport related activities does not mean, as the Ninth

Circuit would have us believe, that all airport terminal

facilities, regardless of their intended, dedicated and

actual uses and regardless of their operator's intent, are

either traditional public forums or any other kind of

publie forum.

Airport terminal facilities do not have as their principle

purpose the free exchange of ideas. Airport terminal

facilities have as their principle purpose the promotion of

air transportation and aid to the traveling public. For the

10

Airport involved in this litigation, its exclusive purpose is

the promotion of air navigation and aid to the traveling

public. The Charter mandates that the Airport’s facilities

be used only for its intended and dedicated airport-

related purposes and the Petitioners have followed this

Charter obligation.

The Ninth Cireuit’s opinion in this case has created a

new category of traditional public forum called “airport

terminal buildings”. According to the Ninth Cireuit Court

of Appeals, traditional public forums are no longer just

those streets, parks and sidewalks held in trust for the

publie’s use for assembly and debate. The Ninth Cireuit

Court of Appeals must have concluded that airport termi-

nal facilities have a long tradition of access for communi-

eative purposes that has been present for “time out of

mind” in the streets and parks. The Ninth Cireuit Court

of Appeals’ conclusion is ludicrous and flies in the face of

the conclusions reached by this Court about the lawful

uses of government-owned facilities.

Airports generally by their very nature are dedicated

and intended to be used for airport-related purposes.

Certainly an airport operator or any governmental entity

operating a non-traditional forum facility may “open” its

facility and use it, in part, as a public forum. Without

such an intentional opening, however, a public facility

dedicated to a non-communicative purpose and used only

for that purpose is not a public forum, let alone a

traditional public forum.

This Court has repeatedly stated that:

“It is a fundamental principle of First Amendment

doctrine, articulated most recently in Perry Educa-

tion, Assn. v. Perry Local Educators’ Assn. 460 U.S.

: __ ___, 74 L.Ed. 2d 974, 103 S. Ct. 948

(1983), that for government property to be a public

11

forum, it must by long tradition or by government

designation be open to the public at large for assem-

bly and speech.” Minnesota Bd. for Community Col-

leges v. Knight, 465 U.S. 271, 280, 79 L.Ed.2a 299,

309, 104 S. Ct. 1058 (1984).

It necessarily follows, that without that long tradition of

use for communicative purposes, a government-owned

facility cannot instantly become a traditional publie

forum.

It is submitted that the intended airport-related uses

the interiors of the airport terminal facilities at A mpor

are not comparable in any way to the intended com:

cative purposes of streets and parks so as to make ©)

interiors of the terminal facilities at Airport traditiona!

publie forums.

PETITIONERS HAVE NOT OPENED THEIR FACILI.

TIES AT AIRPORT AS PUBLIC FORUMS BUT

RATHER HAVE LIMITED THOSE FACILITIES TO

THEIR INTENDED PURPOSES

This Conrt has explained that: “[t]he government does

not create a public forum by inaction or by permitting

limited discourse but only by intentionally opening a non-

traditional public forum for public discourse.” Cornelius

v. N.A.A.C.P., supra, at p. 5120, L.Ed.2d at p. 580. (Em-

phasis added.) Furthermore, this Court in Cornelius

stated that “[w]e will not find a public forum has been

created in the face of clear evidence of a contrary intent

..++ Cornelius v. N.A.A.C.P., supra, at p. 5120, L.Ed.2d

at p. 580.

Petitioners in this case neither intentionally nor unin-

tentionally opened the interiors of its terminal facilities

at Airport for publie discourse. Petitioners’ intent is clear

from its long-standing policy reaffirmed by its Resolution

13787. Petitioners’ intent is also clear from the actual

12

uses of its terminal facilities at Airport. Petitioners are

required to limit and have limited the uses of the terminal

facilities at Airport to their dedicated and intended air-

port-related purposes. If a proposed use does not directly

aid the traveling public, it has been disailowed.

There can be no doubt that “...where government

property is not dedicated to open communication the

government may — without further justification — re-

strict use to those who participate in the forum’s official

business.” Perry Ed. Assn. v. Perry Local Ed. Assn., supra,

at p. 53 (fn. omitted). Petitioners have consistently oper-

ated within this court’s guidelines. Regardless of this

clear right, the Ninth Cireuit has disregarded the govern-

ment’s right to use its property for its intended and

dedicated purposes and has declared that all airports, no

matter how they have been dedicated or used, are publie

forums. No longer can any airport operator reserve its

terminal facilities to their intended and dedicated pur-

poses. Rather, the Ninth Cireuit now compels every air-

port operator to open its facilities as public forums

restricted only by time, place and manner regulations

narrowly drawn and justified only by a showing of a

compelling governmental interest. This ruling that air-

port terminal facilities must be made available for First

Amendment activities, regardless of the legal mandates

of the airport operator, is clearly contrary to this Court's

conclusion that:

“In addition to time, place and manner regulations,

the state may reserve the forum for its intended

purposes, communicative or otherwise, as long as the

regulation on speech is reasonable and not merely an

effort to suppress expression merely because public

officials oppose the speaker’s view.” United States

Postal Service v. Greenburgh, supra, at p. 131; Perry

Ed. Assn. v. Perry Local Ed. Assn., supra, at p. 46.

13

See also City Council v. Taxpayers for Vincent, supra,

at p. 814 and fn 31.

The Ninth Cireuii’s Opinion and the District Court’s

Opinion are both erroneous and superficial applications of

the substantive law relating to the public forum, non-

forum analysis. The opinions are replete with misstate-

ments of the current law and reliance on inapplicable or

inappropriate case law. If these decisions are permitted to

remain uncorrected, they will breath new life into miscon-

ceptions that this Court has attempted to rectify by the

series of its recent decisions dealing with the uses to

which publie facilities may be put.

The Ninth Circuit stated in this ease that:

“Since Rosen and Kuszynski, the law of this circuit

has been that an airport complex is a traditional

publie forum. Every circuit which has confronted the

issue has reached the same conclusion.”

An examination of the “airport cases” establishes

clearly that his conclusion is incorrect. The fact that the

Ninth Cireuit was able to reach such a conclusion from

those cases is a prime example of the compelling need for

an authoritative decision by this Court with regard to how

the public forum analysis applies to the interiors of

government-owned airport terminals as well as other

government-operated facilities. Even if the Ninth Cireuit

were correct in concluding that the various circuit courts

have determined that the interiors of airport terminal

facilities are, without more, public forums, then such

decisions are in direct conflict with the fundamental

principles explained by this Court.

In reaching the above conclusion, the Ninth Circuit

relied on cireuit court cases that did not examine the

issue of whether a government facility was, by that fact

alone, a public forum but, rather, examined “time, place

14

and manner” restrictions for airports that had opened

their facilities to expressive activities. The present case

does not involve the review of such a restriction but,

rather, involves the obvious right of an airport operator to

limit its facilities to their intended and dedicated pur-

poses. A time, place, and manner restriction of permissi-

ble expressive activities is governed by a different

standard than that used to govern a reservation of gov-

ernment facilities for their intended purposes. U.S. Postal

Service v. Greenburgh Civic Assns. 453 U.S. 114, 132, 69

L.Ed.2d 517, 101 S. Ct. 2676 (1981). The Ninth Cireuit

obviously failed to recognize this important difference

and chose to rely on its own earlier opinion in Kuszynski

v. Oakland, 479 F.2d 1130 (1973).

Both the District Court and the Circuit Court seem to

conclude that the two-page Kuszynski opinion requires a

finding that the interiors of all airport terminals are

publie forums. Such a conclusion is clearly improper

because Kuszynski involved the review of a time, place

and manner restriction that, of course, is governed by a

very different standard than is a decision to limit the uses

of a government facility to its intended purposes. Regard-

less of this, however, the Ninth Cireuit has concluded

erroneously that these cases, and others involving an

intentional opening of an airport facility or a review of a

time, place and manner restriction,’ require a finding that

all airports are public forums.

14 summary examination of other airport cases dealing with First

Amendment issues reveals that they are of little or no precedential

value in deciding whether Airport is a public forum. Rosen v. Port of

Portland, 641 F.2d 1243 (1981); Fernandez v. Limmer, 663 F.2d 619

(5th Cir. 1981); ISKCON v. Eaves, 601 F.2d 809 (5th Cir. 1979);

ISKCON v. Rochford, 585 F.2d 263 (7th Cir. 1978), and ISKCON v.

Barber, 650 F.2d 430 (2d Cir. 1981) involve the review of time, place

and manner restrictions. ISKCON v. Wolke, 453 F. Supp. 869, 874

(D.C. Wis. 1978); ISKCON v. Engelhardt, 425 F. Supp. 176, 180

15

More importantly, both the District Court and the

Ninth Cireuit (as well as other courts deciding airport

cases) cite Kuszynski, supra, at p. 113, for the proposition

that: “[s]inee the airport is public property ... free

speech may be abridged only by regulations narrowly

drawn to serve legitimate of the general publie who use

the airport” (App. A, p. A-9, App. B, p. B-5). Kuszynski

has been repeatedly cited by various courts for that

incorrect proposition. See, e.g., Fernandez v. Inmmer, 663

F.2d 619, 626-627 (5th Cir., 1981). Such a conclusion is

clearly incorrect. City Council v. Taxpayers for Vincent,

supra, at p. 814 and fn. 31. Cornelius v. N.A.A.C.P., supra,

at p. 5120, L.Ed.2d at p. 579-580.

The Ninth Circuit has now compounded its earlier

mistake and has concluded essentially that, regardless of

this Court’s clearly stated First Amendment principles to

the contrary, public ownership in and of itself creates a

public forum. If this decision is permitted to stand, it will

confuse and contradict the very clear positions taken by

this Court in its recent decisions in Cornelius v.

N.A.A.C.P., U.S. v. Albertini, and Perry Ed. Assn. v. Perry

Local Ed. Assn., among others, regarding the lawful uses

of public facilities.

Petitioners in this case have exhibited a sensitivity to

the First Amendment. They did not ban ali First Amend-

ment activities from the sidewalk areas of the Airport. In

fact, Petitioners have specifically allowed First Amend-

ment activities to be conducted on the sidewalk areas.

Petitioners have also exhibited a concern that the facili-

ties they control be used for their intended purposes and

their intended purposes only. Such a determination is

entirely reasonable and a proper exercise of their ability

(D.C. Wis. 1977); and U.S.8.W. Africa/Namibia Trade and Cultural

Council v. U.S., 708 F.2d 760 (D.C. Cir. 1983), dealt with places that

were “opened” for expressive purposes.

16

to decide whether Airport property should be used for

airport-related purposes or should be Hyde Parks dedi-

eated to communicative purposes. If the courts are able to

take away the ability of a government to limit its facilities

to their intended purposes, all government-operated facil-

ities, regardless of their intended purposes or dedication,

may become mini-parks dedicated to the widest range of

activities imaginable.

Because of the confusion in the lower courts regarding

the propriety of the reservation of a government facility

for its intended and dedicated purposes, Petitioners re-

quest that this Court resolve the significant and critical

issues presented herein.

CONCLUSION

For the reasons set forth above, Petitioners respect-

fully request that this Writ of Certiorari be granted by

this Court.

Respectfully submitted,

JAMES K. HAHN, City Attorney

JAMES H. PEARSON, Senior Assistant

City Attorney

JAMES R. KAPEL, Assistant City

Attorney

#1 World Way

Los Angeles, CA 90009

(213) 646-3260

By JAMES R. KAPEL

Attorneys for Petitioners

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEWS FOR JESUS, a California non-profit

religious corporation and ALAN HOWARD SNYDER

a.k.a. AVI SNYDER, an individual,

Plaintiffs / Counter-defendants/Appellees,

vs.

THE BOARD OF AIRPORT COMMISSIONERS

OF THE CITY OF LOS ANGELES; et al.,

Defendants /Counter-claimants/Appellants.

Appeal from the United States District Court

for the Central District of California

Edward Rafeedie, District Judge, Presiding.

Argued and submitted January 17, 1986

San Francisco, California

No. 85-5808

D.C. No. CV 84-5268-ER

OPINION

Before: SNEED, ANDERSON, and ALARCON, Cir-

cuit Judges.

ALARCON, Circuit Judge.

Filed: March 25, 1986

Cathy A. Catterson, Clerk

U.S. Court of Appeals

Appellants Board of Airport Commissioners and City

of Los Angeles appeal the district court’s summary judg-

A-2

ment in favor of appellees Jews for Jesus, Inc. and Alan

Snyder. The district court found that: (1) the Central

Terminal Area at Los Angeles International Airport (the

interiors of the eight passenger terminals) is a traditional

public forum; and (2) Resolution 13787 which prohibits

all First Amendment activities within the Central Termi-

nal Area is unconstitutional on its face. The Board ap-

peals primarily because it disagrees with the district

court’s finding that the Central Terminal Area is a public

forum. We affirm.

I.

BACKGROUND

Plaintiffs and appellees (hereinafter Jews for Jesus)

are Jews for Jesus, Inc., a non-profit religious corpora-

tion, and Alan Howard Snyder, a minister of the Gospel

for Jews for Jesus. The defendants and appellants (here-

inafter the Board) are the City of Los Angeles and the

Board of Airport Commissioners of the City of Los

Angeles, as individuals and as operator of Los Angeles

International Airport (hereinafter LAX). The Board,

pursuant to City of Los Angeles Charter § 238.4, manages

and controls all airports owned by the City of Los Ange-

les including LAX.

On July 13, 1983, the Board adopted Resolution No.

13787 (hereinafter the Resolution) which states in part:

NOW, THEREFORE BE IT RESOLVED by the

Board of Airport Commissioners that the Central

Terminal Area at Los Angeles International Airport

is not open for First Amendment activities by any

individual and/or entity;

. _—

"ex oo

A-3

BE IT FURTHER RESOLD that if any individ-

ual or entity engages in First Amendment activities

within the Central Terminal Area at Los Angeles

International Airport, the City Attorney of the City

of Los Angeles is directed to institute appropriate

litigation against such individual and/or entity to

ensure compliance with this Policy statement of the

Board of Airport Commissioners... .

On July 6, 1984, Snyder was distributing free religious

literature on a pedestrian walkway in the Central Termi-

nal Area (hereinafter CTA) at LAX when he was ap-

proached by a uniformed Department of Airports peace

officer. The officer showed Snyder a copy of the Resolu-

tion, explained that Snyder was violating the Resolution,

and asked Snyder to leave. The officer warned Snyder

that if he refused to leave the City would take legal action

against him. Snyder stopped distributing the leaflets and

immediately left the airport terminal.

On July 17, 1984, Jews for Jesus filed suit in district

court seeking a declaration of their rights to distribute

religious literature in public areas in the CTA. Jews for

Jesus challenged the constitutionality of the Resolution

under both the Federal and California Constitutions on

three grounds: (1) that it is unconstitutional on its face

because it totally bans First Amendment ‘activities in a

publie forum; (2) that the Resolution is unconstitutional

as applied to plaintiffs because it has only been used to

ban certain kinds of communicative conduct such as

leafletting by Jews for Jesus; and (3) that it is uneonsti-

tutionally vague and overbroad because the term “First

Amendment activities” does not give guidance to officials

or the public as to what activity is prohibited.

The matter came before the district court for trial on

January 6, 1985. Counsel for all parties orally stipulated

to the facts and the district court treated the trial briefs

A-4

as cross-motions for summary judgment without objection

from the parties. The district court ruled that the CTA is

a traditional public forum, declared the total ban on First

Amendment activities unconstitutional on its face, and

declined to reach the other issues raised by Jews for

Jesus.

II.

STANDARD OF REVIEW

Because the parties stipulated to the facts below, there

are no factual issues on appeal. This court reviews de novo

the district court’s application of the law to the facts on

free speech questions. Carreras v. City of Anaheim, 768

F.2d 1039, 1042 n.2 (9th Cir. 1985).

Ill.

DISCUSSION

The United States Supreme Court recently enunciated

the proper analysis for a First Amendment issue. First,

the court must decide whether the challenged activity or

speech is protected by the First Amendment, for, if it is

not, the court need go no further. Cornelius v. NAACP

Legal Defense & Educational Fund, Inc., 105 S. Ct. 3439,

3446 (1985). If the speech is protected, the court must

identify the nature of the forum, because the extent to

which the government may limit access depends on

whether the forum is public or nonpublic. Cornelius, 105

S. Ct. at 3446-47. Finally, the court must assess whether

the justifications for exclusion from the relevant forum

satisfy the requisite standard. Cornelius, 105 S. Ct. at

3447.

The Board does not dispute that distribution of litera-

ture is a form of communication protected by the First

— eee Eerie

A-5

Amendment. United States v. Grace, 461 U.S. 171, 176

(1983); Lovell v. Griffin, 303 U.S. 444 (1938); Rosen v.

Port of Portland, 641 F.2d 1243, 1245 (9th Cir. 1981).

Both parties agree that the determinative legal issue in

this case is whether the CTA is a public forum. That

determination will provide the standard we must apply

when reviewing the constitutionality of the Resolution.

Jews for Jesus argue that the central terminal areas in

airports are traditional public forums open to free expres-

sion. The Board asserts that a traditional publie forum

analysis is inapplicable because the CTA at LAX is a

nonpublic area which has not been opened to First.

Amendment expression by the Board. The Board con-

tends that it has operated the terminal facilities solely for

airport-related purposes and has neither created a forum

for expressive purposes nor opened the area for the

debate of issues of public interest unrelated to the air-

port’s intended uses. The Board’s reliance on recent

Supreme Court decisions in Perry Education Association

v. Perry Local Educators’ Association, 460 U.S. 37 (1983),

and Cornelius, 105 S. Ct. 3439 is misplaced. These cases

do not concern the determination of traditional public

forums. They address the separate and distinct issue

whether governmental facilities that are not traditional

public forums have been opened for First Amendment

activities. See Perry Education Association, 460 U.S. at 46

(interschool mai! system is not a traditional publie fo-

rum); Cornelius, 105 S. Ct. at 3450 (the Combined Fed-

eral Public Campaign literature is not a traditional public

forum).

The Supreme Court recently described traditional pub-

lie forums as “those places which ‘by long tradition or by

government fiat have been devoted to assembly and de-

bate.’ Cornelius, 105 S. Ct. at 3449, quoting Perry Edu-

cation Association, 460 U.S. at 45. “Public streets and

A-6

parks fall into this eategory.” Cornelius, 105 S. Ct. at

3449. A principal purpose of traditional public forums is

the free exchange of ideas. Cornelius, 105 S. Ct. at 3448.

“In such places, the government’s ability to permissibly

restrict expressive conduct is very limited: the govern-

ment may enforce reasonable time, place, and manner

regulations as long as the restrictions ‘are content-neu-

tral, are narrowly tailored to serve a significant govern-

ment interest, and leave open ample alternative channels

of communication.’ ” Grace, 461 U.S. at 177, quoting Perry

Education Association, 460 U.S. at 45. “Additional restric-

tions such as an absolute prohibition on a particular type

of expression will be upheld only if narrowly drawn to

accomplish a compelling governmental interest.” Grace,

461 U.S. at 177.

This court, like a number of other circuits, has ad-

dressed the First Amendment forum issue in the context

of airport terminals and concluded that airport terminal

buildings are public forums open to First Amendment

activity. In Rosen v. Port of Portland, 641 F.2d 1243 (9th

Cir. 1981), the chairman of Jews for Jesus challenged an

ordinance and implementing regulations enacted by the

Port of Portland that required those persons seeking to

“oxereise ... the fundamental constitutional right of free

expression” at the Portland International Airport termi-

nal to register in advance and identify their sponsor. Jd.

at 1245 & n.2. The district court upheld the ordinance and

we reversed. We observed in Rosen that “(t]he first

amendment is to be given full effect in the public areas of

airport terminal buildings,” id. at 1245, and held both the

advance notice and the identification provisions of the

ordinance unconstitutional. Jd. at 1252.

In Rosen we relied on our earlier ruling in Kuszynski v.

City of Oakland, 479 F.2d 1130 (9th Cir. 1973), and cited

with approval a Seventh Cireuit decision, Chicago Area

A-7

Military Project v. City of Chicago, 508 F.2d 921 (7th

Cir.), cert. denied, 421 U.S. 992 (1975) (hereinafter

CAMP). The ordinanee challenged in Kuszynski provided

that “[t)he use of the [Oakland] Airport for the purpose

of exercising the right of free expression and communica-

tion... shall net <¢ allowed to impair or interfere with

the transportativ. function of the airport. The exercise of

such rights shall be in accordance with {certain rules end

regulations].” Kuszynski, 479 F.2d at 1130-31. Among

other things, the regulations required the approval of the

Oakland Airport manager before an exercise of Firs é

Amendment rights and limited leafletting to a period of

four hours. In a brief opinion, we concluded: “Since the

airport is public property . . . free speech may be abridged

only by regulations narrowly drawn to serve legitimate

interests of the general public who use the airport.”

Kuszynski, 479 F.2d at 1131. We found the ordinance

invalid and ordered the district court to “enjoin the

enforcement of those portions of the ordinance not found

to be reasonably necessary for the management of the

airport.” Jd.

The Seventh Cireuit’s decision in CAMP, 508 F.2d 921,

contains an extensive analysis of the forum issue which

we find persuasive. The court in CAMP rejected many of

the same arguments now before this court and held that

the publicly owned and operated O’Hare Airport could

not flatly bar the distribution of leaflets in publie areas

inside the terminal buildings.

The City of Chicago in CAMP argued that it had not

opened O’Hare to free speech activities. The City claimed

“that the public receives a limited invitation to use

O’Hare Airport for travel purposes only.” CAMP, 508

F.2d at 925. The Seventh Circuit found that these conten-

tions were neither “supported by the evidence” nor “real-

istic.” Id. The court analogized the airport terminal to

A-8

traditional public forums and concluded the terminal was

a public forum where First Amendment activity could not

be totaily banned.

[T]he plaintiffs do not here claim any right to dis-

tribute leaflets on airplanes or in other privately

owned or leased places but only in the spacious, city-

owned common areas which resemble those public

thoroughfares which have been long recognized to be

particularly appropriate places for the exercise of

constitutionally protected rights to communicate

ideas and information.

Id., citing Hague v. CIO, 307 U.S. 496, 515-16 (1939).

More recent appellate decisions are in accord with the

holdings in Rosen, Kuszynski, and CAMP. In United States

Southwest Africa/Nambia Trade & Cultural Council v.

United States, 708 F.2d 760 (D.C. Cir. 1983), the District

of Columbia Cireuit categorized the public areas of Wash-

ington National Airport (National) and Dulles Interna-

tional Airport (Dulles) as “public forums” for First

Amendment purposes. Jd. at 764. The District of Colum-

bia Cireuit quoted with approval the Seventh Circuit’s

analogy in CAMP of airport terminals to publie thorough-

fares. Id. The court also observed that “[w]hatever com-

monsense differences may exist in the forms of free

speech allowable in airports, as opposed to parks and

streets, an unusual consensus of judicial, legislative, and

administrative opinion would classify the public areas of

National and Dulles squarely within the public forum

family.” United States Southwest Africa, 708 F.2d at 766.

The Fifth Cireuit similarly found the Dallas-Fort

Worth Airport complex to be a public forum in Fernandes

v. Limmer, 663 F.2d 619 (5th Cir. 1981). In response to

Dallas-Fort Worth’s claim that “the airport ought not be

regarded as a public forum,” the Fifth Cireuit stated: “It

A-9

is now generally well established that airport terminals

owned and administered by governmental entities are

publie forums in which efforts to regulate speech or

religious activity must comport with First Amendment

guarantees.” Jd. at 626. The Fernandes court concluded

that “in view of the lack of restrictions on entry by the

general public, and the commercial, street-like character

of the terminal concourses... the {Dallas-Fort Worth]

terminal buildings must be treated as public forums.” Jd.

at 627. See also Wolin v. Port of New York Authority, 392

F.2d 83, 89 (2d Cir.) (the interior of the Bus Terminal

operated by the New York Port Authority is traditionally

a place for exercise of First Amendment rights), cert.

denied, 393 U.S. 940 (1968).

Since Rosen and Kuszynski, the law of this cireuit has

been that an airport complex is a traditional publie forum.

Every cireuit which has confronted the issue has reached

the same conclusion. We hold that the Central Terminal

Area at LAX is a traditional publie forum.

Because the CTA is a traditional public forum, the

Board’s resolution banning al! First Amendment activity

can be upheld only if it was narrowly drawn to accomplish

a compelling governmental interest. Grace, 461 U.S. at

177; Cornelius, 105 S. Ct. at 3448. The Board sets forth

only one governmental interest to justify the total exelu-

sion of First Amendment activity in the CTA: “The Los

Angeles City Charter requires the Board to operate all of

its properties for promotion and accommodation of air

navigation and air commerce and uses _ incidental

thereto.” The Board has not shown that its desire to limit

the uses of the terminal facilities to airport-related pur-

poses is sufficiently compelling to justify the uniform and

absolute prohibition on all First Amendment activity in

the CTA. In fact, the parties stipulated that “ [i]n distrib-

uting the religious literature [in the CTA], Snyder was

A-10

not blocking any entrance, exit, stairway, escalator, eleva-

tor, door, or otherwise inhibiting the free flow of pedes-

trian traffic [in the CTA]” and that “Snyder was not

touching, annoying, blocking, obstructing, or otherwise

harassing any other person present in the immediate

vicinity of his location on the pedestrian walkway [in the

CTA].” See Fernandes, 663 F.2d at 626 (that the passage-

ways of the Dallas-Fort Worth Airport are crowded and

narrow does not justify prohibiting Krishna followers

from distributing literature and soliciting funds); Wolin,

392 F.2d at 91 (absolute prohibition of leafletting at the

New York Port Authority’s Bus Terminal cannot be de-

fended on the ground that it would obstruct traffic).

The fact that the CTA is a traditional public forum does

not preclude the Board from imposing restrictions on the

distribution of leaflets. The Board is free to promulgate

reasonable time, place, and manner restrictions on the

distribution of literature in the CTA. See Heffron v.

International Society for Krishna Consciousness, Inc., 452

U.S. 640 (1981); CAMP, 508 F.2d at 926 (airport authori-

ties may prohibit leafletting at check-in counters, arrival

and departure gates, or any other areas where it is shown

to substantially interfere with rapid and efficient airport

operations). Because the 1983 resolution proscribes all

First Amendment activity rather than setting forth rea-

sonable time, place, and manner restrictions on such

activity, it is unconstitutional on its face.

IV.

CONCLUSION

We hold that the distribution of literature by Jews for

Jesus is protected speech and that the Central Terminal

Area of the Los Angeles International Airport is a public

forum. The governmental interests advanced by the

Board are not sufficiently compelling to justify the total

A-11

exclusion of those persons wishing to exercise free speech

within the CTA.

The Board has conceded that, in the event Jews for

Jesus prevail in this litigation, they are entitled to recover

their attorneys’ fees pursuant to 42 U.S.C. § 1988. Since

we have concluded that the Board’s resolution is uncon-

stitutional, Jews for Jesus are the prevailing parties and

shall recover reasonable attorneys’ fees as part of their

costs. See Hensley v. Eckerhart, 461 U.S. 424 (1983);

Douglas v. City of Jeannette, 319 U.S. 157, 162 (1943).

APPENDIX B

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

JEWS FOR JEsus, INC., a California non-profit

religious corporation and ALAN Howarp SNYDER,

a.k.a. AVI SNYDER,

Plaintiffs,

V.

THE BOARD OF AIRPORT COMMISSIONERS

OF THE CITy OF Los ANGELES;

JOHNNIE L. COCHRAN, JR., President

of the Los Angeles Board of Airport Commissioners;

ROBERT A. CHICK, Vice-President of the

Los Angeles Board of Airport Commissioners; and

D. A. “Curt” Curtiss, MARIA D. HUMMER, AND

SAMUEL GREENBERG, Members of the Los Angeles

Board of Airport Commissioners, the last five in their

official and individual capacities;

City OF Los ANGELES, a municipal corporation,

Defendants.

No. CV 84-5268-ER

MEMORANDUM DECISION AND JUDGMENT

Filed: March 26, 1985 Clerk, U.S. District Court

Central District of California

Entered: March 29, 1985 Clerk U.S. District Court

Central District of California

The above captioned matter came before this Court for

trial without a jury on January 8, 1985. Prior to trial the

Court indicated to counsel its desire to treat the trial

B-2

briefs as cross motions for summary judgment. None of

the parties planned to call witnesses at trial and counsel

for all defendants orally stipulated to the facts stated in

plaintiffs’ Exhibit #1 (“Stipulated Facts for Trial”). As

there were no genuine issues of material fact to be

decided at trial and without objection from the parties,

the oral argument was held as argument on cross motions

for summary judgment on the constitutionality of Board

of Airport Commissioners of the City of Los Angeles

Resolution No. 13787.*

FACTS

Defendant Board of Airport Commissioners of the City

of Los Angeles (“Board of Airport Commissioners’),

pursuant to City of Los Angeles Charter § 238.4, manages

and controls all airports owned by the City of Los Ange-

les including Los Angeles International Airport

(“LAX”’’).

On July 13, 1983 at a special meeting the Board of

Airport Commissioners adopted Resolution No. 13787

(“the Resolution”) which states in part:

NOW, THEREFORE BE IT RESOLVED by the

Board of Airport Commissioners that the Central

Terminal Area at Los Angeles International Airport

is not open for First Amendment activities by any

individual and/or entity;

BE IT FURTHER RESOLVED that if any individ-

ual or entity engages in First Amendment activities

within the Central Terminal Area at Los Angeles

*The stipulated Facts for Trial and the text of Resolution No.

13787 are attached hereto as Appendix 1 and Appendix 2,

respectively.

B-3

International Airport, the City Attorney of the City

of Los Angeles is directed to institute appropriate

litigation against such individual and/or entity to

ensure compliance with this Policy statement of the

Board of Airport Commissioners;

Plaintiffs challenge the constitutionality of the Resolu-

tion on three grounds: (1) that it is unconstitutional on

its face because it totally bans First Amendment activity

in a public forum; (2) that the Resolution is unconstitu-

tional as applied to plaintiffs because it only has been

used to ban certain kinds of communicative conduct such

as leafletting by plaintiffs; and (3) that it is uneonstitu-

tionally vague and overbroad because the term “First

Amendment activities” does not give guidance to officials

or the public as to what activity is prohibited. Finding the

Resolution unconstitutional on its face, this Court does

not reach the second and third challenges to the

Resolution.

Plaintiffs are Jews for Jesus, a non-profit religious

corporation, and Alan Howard Snyder, a minister of the

Gospel for Jews for Jesus. On Friday, July 6, 1984

Snyder was distributing free religious literature at LAX

when he was approached by a uniformed Department of

Airports peace officer who showed Snyder a copy of the

Resolution, explained that Snyder was in violation

thereof, and asked Snyder to leave. The officer warned

Snyder that if he refused to leave the City would take

legal action against him. Snyder stopped distributing the

leaflets and immediately left the airport terminal.

CONSTITUTIONALITY OF THE RESOLUTION

The First Amendment stops government from passing

laws abridging the freedom of speech and the right of the

people peaceably to assemble. U.S. Const. Amend. I. At

least since 1939 it has been clear the government cannot

B-4

ban First Amendment activity totally in traditionaily

publie places. First Amendment activities in such places

are, however, subject to valid time, place and manner

restrictions. See e.g. Heffron v. International Society for

Krishna Consciousness, 452 U.S. 640, 101 S.Ct. 2559, 69

L.Ed.2d 298 (1981). As the Supreme Court wrote in

Hague v. Committee for Industrial Organization, 307 U.S.

496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939):

Wherever the title of streets and parks may rest, they

have immemorially been held in trust for the use of

the public and, time out of mind, have been used for

purposes of assembly, communicating thoughts be-

tween citizens, and discussing public questions. Such

use of the streets and public places has, from ancient

times, been a part of the privileges, immunities,

rights, and liberties of citizens. The privilege of a

citizen of the United States to use the streets and parks

for communication of views on national questions may

be regulated in the interest of all; it is not absolute, but

relative and must be exercised in subordination to

the general comfort and convenience, and in conso-

nance with peace and good order; but it must not, in

the guise of regulation, be abridged or denied.

301 U.S. at 964, 59 S.Ct. at 515-16 (emphasis added).

The resolution being challenged by plaintiffs here com-

pletely bans First Amendment activity in the Central

Terminal of LAX and therefore must be struck down if

the Central Terminal is a public forum like the streets

and parks discussed in Hague. The question then facing

the Court is whether a municipally owned and operated

airport terminal is a public forum. The question is easily

answered. Numerous appellate opinions have held that

airport terminals ar? public forums. Kuszynski v. City of

Oakland, 479 F.2d 1131 (9th Cir. 1973) is the seminal

ease on the subject. The ordinance challenged and struck

B-5

down in Kuszynski provided that “The use of the Airport

for the purpose of exercising free expression and commu-

nication... shall not be allowed to impair or interfere

with the transportation function of the airport. The exer-

cise of such rights shall be in accordance with [certain

rules and regulations].” Among other things, the regula-

tions required approval of the airport manager before an

exercise of First Amendment rights and limited leafleting

to four hours. In a brief opinion the court concluded,

“Since the airport is publie property . .. free speech may

be abridged only by regulations narrowly drawn to serve

legitimate interests of the general public who use the

airport.” Id. at 1131. The court found the ordinance

invalid because there was no showing that the restrictions

were reasonable. The court ordered the district court to

“enjoin the enforcement of those portions of the ordi-

nance not found to be reasonably necessary to airport

management.” Jd.

This Court need go no further in analyzing the Board

of Airport Commissioner’s case. It is obvious from the one

page opinion of the Ninth Cirenit in Kuszynski that

airports are public forums. While it belabors the obvious

to address the question further, the Court will briefly

discuss other precedents supportive of plaintiffs’

argument.

In Rosen v. Port of Portland, 641 F.2d 1243 (9th Cir.

1981) the Ninth Cireuit wrote: “The first amendment is to

be given full effect in public areas of airport terminal

buildings .... However, the regulation of activity that

interferes with the normal use of an airport facility is a

proper governmental function.” Id. at 1245-46. In Rosen

the appellate court reversed a district court and found the

restrictions imposed by the Port of Portland were uncon-

stitutional. “Both the advance notice and the identifica-

tion provisions of the challenged ordinance violate the

B-6

United States Constitution .... persons desiring to exer-

cise their free speech rights may not be required to give

advance notice and to identify themselves and their spon-

sors to Port authorities.” Jd. at 1252. It is obvious that if

Portland cannot require advance notice by and identifica-

tion of leafleters, Los Angeles cannot ban them all to-

gether. LAX is a public forum and the challenged

Resolution is unconstitutional. Accord S8.W. Af-

rica/Namibia Trade & Cult. Coun. v. U.S., 708 F.2d 760

(D.C. Cir. 1983) (National and Dulles airports public

forums); Fernandes v. Limmer, 663 F.2d 619 (5th Cir.

1981) (Dallas-Fort Worth Airport a public forum). In

Chicago Area Military Project v. City of Chicago, 508 F.2d

921 (7th Cir. 1975) the City of Chicago claimed “that the

publie receives a limited invitation to use O’Hare Airport

for travel purposes only” but the 7th Circuit found that

argument was neither supported by the evidence nor...

realistic’ and held that O’Hare Airport is a public forum.

508 F.2d at 925. The City of Los Angeles makes the same

claim as the City of Chicago did. It is no more persuasive

in 1985 than it was in 1975.

When asked what makes LAX, the third busiest airport

in the world, different from National, Dulles, Dallas-Fort

Worth and O’Hare airports, defendants’ counsel stated

that those airports chose to be publie forums by enacting

time, place, and manner restrictions and LAX did not.

This argument, while creative, is supported neither by

fact nor law.

As a factual matter, the City has stipulated that “a

variety of religious and/or political groups have utilized

the interior area of terminals at LAX, including the

pedestrian walkways located therein, to distribute litera-

ture, solicit funds, and communicate ideas.” The City

further stipulated that “the interior of terminal areas at

LAX, including the pedestrian walkways located therein,

B-7

have been utilized on a number of occasions by print,

television and radio media for the purpose of filming,

photographing and/or interviewing public figures.”” The

City also stipulated to other uses of LAX for non-travel

related matters. See Appendix 1.

More importantly, the contention that an airport is not

a public forum unless the City consents to it being such is

without legal support. A similar argument was rejected by

the Second Circuit when it faced the question “May the

Port of New York Authority bar the use of its terminal to

all exercises of First Amendment rights?” Wolin v. Port of

New York Authority, 392 F.2d 83 (2nd Cir. 1968). The

answer was no for the Port Authority and it is no for the

Board of Airport Commissioners. Streets, parks and air-

ports do not become public forums because government

consents to their use as such. They are public forums, as

the Supreme Conrt explained in Hague, because they are

traditional gathering places for the citizenry. They are

held in trust by government for public use.

In recent years the Supreme Court has grappled with

difficult questions of what constitutes a public forum.

E.g., Members of City Council v. Taxpayers for Vincent,

U.S. 104 S.Ct. 2118 (1984) (lamposts); U.S.

Postal Service v. Council of Greenburgh, 453 U.S. 114, 101

S.Ct. 2676 (1981) (mailboxes). Despite the difficulty in

applying public forum analysis to all government prop-

erty “generally an analysis of whether property is a publie

forum provides a workable analytical tool.” Members of

City Council v. Taxpayers for Vincent, 104 S.Ct. at 2134 n.

32. Publie forum analysis is a workable tool here. This is

not a difficult case. An airport used by an estimated 60

million people a year is a publie forum. First amendment

activity cannot be banned at LAX. Resolution No. 13787

B-8

is unconstitutional. Defendants are enjoined from enfore-

ing it.

Judgment is entered for plaintiffs.

DATED: March 25, 1985.

EDWARD RAFEEDIE

United States District Judge

APPENDIX |

i.

STIPULATION OF FACTS

1. The City of Los Angeles (“City”) is a municipal

corporation and is the owner of the real property and

facilities commonly known as Los Angeles International

Airport (hereinafter “LAX’’).

2. The Board of Airport Commissioners of the City of

Los Angeles (hereinafter “Board” is charged by the Los

Angeles City Charter with the management and control of

the Los Angeles Department of Airports (hereinafter

“Department”’).

3. The Department is a department of the City and

operates LAX under the direction and control of the

Board.

4. The LAX complex encompasses approximately 3500

acres consisting of three general areas: (A) the restricted

or “field side” area containing runways, taxiways, airline

maintenance and cargo facilities, aircraft loading ramps,

and various aircraft service facilities; (B) Airport-owned

property surrounding the restricted area; and (C) the

Central Terminal Area (hereinafter “CTA’’) which con-

tains the terminal facilities (ticketing counter, baggage

claim, waiting and loading gates), parking structures,

and a series of private streets and roadways which pro-

vide vehicular access to the CTA. There are presently

eight (8) terminal buildings open to the public for Air-

port use at LAX. Each of these eight (8) terminal

facilities contain large areas open to the public, including

the pedestrian walkways, ticketing and baggage claim

areas, baggage lockers, check-in gates, loading gates,

cocktail lounges, waiting areas, aircraft loading gates,

restaurants, newsstands, gift shops, barber shops, art

displays (see paragraph 28), information displays, flight

insurance counters, rent-a-car counters, hotel, motel, res-

taurant and ground transportation advertising displays,

-3-

rest areas, including chairs and benches, restrooms, auto-

matic travellers check and banking machines and general

waiting areas. Most of these terminal facilities have of-

fices for Airport tenants which are generally not open to

the public.

5. The public is permitted unrestricted access to the

portions of the airport terminal interiors identified in

Paragraph 4(C), above.

6. As a part of the expansion program at LAX, a

second level roadway system has been constructed which

essentially duplicated the existing roadway system by

creating an upper level, or second level, roadway system

above the surface roads. This second level roadway sys-

tem was designed to alleviate, at least in part, the vehicu-

lar and pedestrian congestion at LAX.

7. As a part of the expansion program, each of the

terminal facilities was expanded (or is presently being

expanded) to provide access to those facilities from the

upper level roadway. Thus, a passenger departing from

LAX generally arrives on the upper level roadway, enters

the terminal facility and proceeds after any necessary

ticketing and baggage check-in to the waiting areas and

terminal gates. A passenger arriving at LAX by air

disembarks from the aircraft and proceeds, at least in

most terminals, on a lower level tunnel to the baggage

claim area and then out of the terminal on to the sidewalk

and to any required ground transportation.

8. The planned expansion and construction project at

LAX has recently been substantially completed. This

expansion of existing terminals and construction of new

terminals at LAX has had the effect of reducing the levels

of pedestrian and vehicular congestion both inside and

outside of the terminal complexes to levels below those

-4-

which existed prior to the commencement of the expan-

sion and construction project.

9. In front of the terminal facilities on both levels of

the roadway are sidewalks which extend approximately

twelve (12) to sixteen (16) feet from the terminal

entrance.

10. LAX is the third busiest airport in the world. LAX

handled more than 32 million passengers in 1982, more

than 33 million passengers in 1983, and it is anticipated

will handle more than 34 million passengers in 1984. It is

estimated that at least an equal number of “meeters and

greeters” enter the CTA to pick up or drop off airline

passengers.

11. LAX is the largest destinational airport in the

world with the largest number of enplaning and de-

planing passengers.

12. Approximately 75 percent of the passengers who

use LAX commence or terminate their flight travel at

LAX.

13. Approximately 25 percent of the passengers who

use LAX do not commence or terminate their flight travel

at LAX.

14. Because approximately 75 percent of the passen-

gers either commence or terminate their flight travel at

LAX, at least 75 percent of the passengers must use the

sidewalk area in front of the terminal facilities.

15. Because approximately 25 percent of the passen-

gers do not either commence or terminate their flight

travel at LAX, at least 25 percent of the passengers do

not use the sidewalk area in front of the terminal

facilities.

16. Article XXIV, section 238.8 of the Los Angeles

City Charter provides as follows:

= %

The Board shall have power to grant franchises,

permits and licenses to, and to enter into leases with,

any person, firm or corporation, or agency of the

government for the use of any municipally owned or

controlled airport or any part of facility thereof, for

the promotion and accommodation of air commerce

and air navigation, or use incidental thereto, together

with the right to use said airport in common with

others as necessary to the right granted. (Amended,

1951.)

The Board shall likewise have power to enter into

leases with any person, firm or corporation for pur-

poses other than for the promotion and accommoda-

tion of air commerce and air navigation covering any

portion of the airport property whenever the Board

shall determine that the use of such portion of the

Airport property is not necessary for the promotion

and accommodation of air commerce and air naviga-

tion or use incidental thereto.

17. Article XXIV, section 239.5 of the Los Angeles

Charter provides as follows:

Whenever it shall be determined by the Board by

order that certain parts of any airport owned, oper-

ated or controlled by the city may not be required at

such time for use in connection with, or for the

promotion and accommodation of air commerce and

air navigation, the general manager shall have power

to issue revocable permits to use limited portions of

such space for any and all purposes which shall not

interfere with air commerce or air navigation and not

inconsistent with any trust upon which such land

may be held by the City of Los Angeles. Every such

permit shall first be approved by the Board and shall

prescribe that it shall be revocable, without compen-

sation to the lessee or permittee, upon due notice to

aie

be stated therein, such notice in no case to exceed

one year.

18. For the use of the terminal facilities, the Depart-

ment has entered into permits, license agreements, leases,

and concession agreements to provide food and beverage

service, news and gift facilities, flight insurance, money

exchange facilities, ground transportation, waiting areas,

ticket counters, lockers, and baggage facilities.

19. The Defendants believe that the services and facil-

ities that the Department has permitted within the termi-

nal facilities at LAX are designed to aid the traveling

public and to promote and accommodate air commerce

and navigation.

20. The Department has attempted to limit the use of

the terminal facilities to those uses which it believes

directly aid the traveling public and thereby promote and

accommodate air commerce and air navigation.

21. In the Department’s opinion, it has never given a

license permit or lease which allows any non-airport

related commercial use of the terminal facilities.

22. During at least the past ten (10) years, a variety

of religious and/or political groups have utilized the

interior area of terminals at LAX, including the pedes-

trian walkways located therein, to distribute literature,

solicit funds, and communicate ideas.

23. Defendants are or have been aware that a variety

of religious and/or political groups have conducted distri-

bution, solictation, or communication activities at LAX

without the express or implied permission of the Board or

D.O.A.

24. As to the activities described in Paragraphs 22

and 23, above, defendants often became aware of many of

the groups engaging in those activities only after the

3

group had conducted its activity and had left the terminal

facilities.

25. The interior of terminal areas at LAX, including

the pedestrian walkways located therein, have been uti-

lized on a number of occasions by print, television and

radio media for the purpose of filming, photographing

and/or interviewing public figures, such as political ean-

didates, the Mayor of Los Angeles, and the chairman of

the Los Angeles Olympic Organizing Committee. On sev-

eral occasions, numerous individuals and news media

personuel have gathered inside the terminal facilities at

LAX to greet some of the sports teams that were re-

turning from road games.

26. Defendants have obtained knowledge of some of

the activities described in Paragraph 25 above, but often

that knowledge was obtained after the event occurred.

27. A picture of the Mayor of the City of Los Angeles

is displayed in each of the terminals at LAX on a sign

that states “Mayor Tom Bradley Salutes the New

LAX — Gateway to the Olympics.”

28. Artwork created by children that depicts airport

scenes has been displayed in the terminal facilities with

the express knowledge and permission of the defendants.

29. A display entitied “Think Before You Buy”, con-

taining specimens, pictures, and information pertaining

to protected species, has been constructed and main-

tained inside terminal 2 at LAX with the express knowl-

edge and permission of defendants. The text of this

display reads as foilows:

This exhibit was designed and installed by the Natu-

ral History Museum of Los Angeles County in coop-

eration with the Los Angeles City Attorney’s Office,

U.S. Fish and Wildlife Service, National Marine

Fisheries Service and the Los Angeles Department

ai

of Airports. Major assistance and funding was pro-

vided by TRAFFIC (U.S.A.) — Trade Records Anal-

ysis of Flora and Fauna in Commerce — a scientific,

fact-finding program of World Wildlife Fund —

U.S. monitoring the international trade in wild ani-

mals and plants.

30. A photographie display depicting photographs of

various athletes was constructed and maintained inside

terminal 7 at LAX for approximately two (2) to three (3)

weeks in 1984 without the express knowledge and permis-

sion of defendants. The text of this display reads as

follows:

Photographs of America’s Olympic Hopefuls. Spon-

sored by the Shooting for the Gold Foundation with

a grant from Fuji Photo Film U.S.A. Ine.

31. The defendants have not restricted access by mem-

bers of the general public to the interior of terminal areas

at LAX to only those persons who are engaged in the use

of the LAX facilities for interstate travel or for purposes

of meeting or greeting airline passengers. The defendants

do not attempt to restrict members of the general public

from walking through the unrestricted interior of termi-

nal areas at LAX. Defendants do not attempt to restrict

members of the general public who have no purpose or

desire to utilize the transportation-related facilities

within the terminal areas at LAX from walking, reading,

shopping, eating, drinking, and conversing with other

members of the general public in the interior of terminal

areas at LAX.

39 The defendants have not in the past, and do not in

the present, prohibit persons wearing T-shirts or other

articles of clothing imprinted with slogans, statements, or

other forms of religious or political communication from

walking in the interior terminal areas of LAX.

i.

33. The defendants have expressly allowed the exer-

cise of commercial speech in the interior of terminal areas

of LAX, ineluding areas directly attached to or in the

vicinity of the pedestrian walkways located therein, in the

form of advertising displays in connection with hotel,

motel, restaurant, ground transportation and other ser-

vices offered by commercial vendors which the defendants

believe are of interest to the traveling public.

34. The expansion of LAX has been advertised on

buses owned and/or operated by the Southern California

Rapid Transit District and on buses owned or operated

by the D.O.A. The defendants were aware of this advertis-

ing but did not exercise their right to prohibit it.

35. The defendants have promoted the new facilities at

LAX through press releases to print, television and radio

media and through the purchase of radio advertising.

36. Immediately prior to, and during the 1984 summer

Olympie Games in Los Angeles, free standing “Olympie

Family” booths were set up by the LAOOC with the

express consent of the defendants within the terminal

areas at LAX. The purpose of the booths was to provide

information to athletes and/or other Olympic officials

who were members of the “Olympie Family.” Upon re-

quest, personne! working in said booths provided general

information to members of the general public.

37. On approximately July 25, 1984, television crews

filmed a demonstration of the operation of a Mobile

Emergency Rescue Vehicle (MERV) inside a terminal at

LAX for subsequent broadeast to the public on commer-

cial television networks. MERV is part of the medical

response program provided by defendants at LAX.

38. Defendants have known that various people and

groups have wished to conduct and, in some instances,

-10-

have conducted speech-related activities within the termi-

nal areas at LAX.

39. The activities described in Paragraph 38, above,

were conducted against the wishes and policies of defend-

ants and without the express permission of defendants.

40. The Department has never given the Plaintiffs, or

any of them, explicit permission to distribute free relig-

ious literature within the terminal facilities at LAX.

41. The Plaintiffs, and each of them, have distributed

free religious literature within the terminal facilities at

LAX during the past ten years.

42. In the past, the Department has received a variety

of requests from people in numerous organizations who

wish to conduct activities which defendants believed were

non-airport related, including First Amendment activi-

ties, within the terminal facilities at LAX. Examples of

organizations which have requested, but have been de-

nied, permission to vu + he terminal facilities are: The

Red Cross, S*lvation Army, Girl Seouts, Boy Scouts,

Ford Motor Company, Iran Relief Fund, Hunger Cam-

paign, KCET, Women’s Sports Foundation, and Verdi

Restorante.

43. The Department has denied the requests referred

to in paragraph 42 to conduct First Amendment activities

within the terminal facilities and has thus precluded

those activities from taking place within the terminal

areas of LAX.

44. The Department is a department of the City and is

financially self-sufficient and does not rely on or use ‘tax

revenues to finance its operations.

45. The monies necessary to pay for the operation and

the development of LAX are collected from ai! persons

. 3

using or occupying LAX on a consistent and regular

basis.

46. Individual members of the traveling public and

other members of the general public who enter and/or

utilize the interior terminal areas at LAX are not charged

any fee by the Department for their use of the terminal

facilities.

47. Most persons occupying space on an extended

basis within the terminal facilities pay either a rental

based on the square feet occupied or a percentage of gross

revenues derived from the use of that space or both. For

example, the concession agreements and leases with the

rent-a-car companies require that those companies pay a

rent for the space occupied inside their terminal facilities

and also a percentage of gross receipts in order to

conduct their business at LAX. The news and gift stands

and the food and beverage stands within the terminal

facilities pay both rent and a percentage of gross receipts

on a similar basis. Air carriers a)so pay a square-footage

rental based on the area they occupy within the terminal

facilities for ticket counters, baggage claim areas, waiting

areas, and loading gates. In addition, air carriers pay a

landing fe= based on the weight of the aircraft which land

at LAX.

48. The only exceptions to the policy set forth in

paragraph 47 above are: (a) the various federal inspection

services such as customs and immigration; (b) th® Trav-

elers Aid Society which provides information services to

the traveling public; and (c) the USO which provides

assistance to military travelers.

49. The monies collected from rents, concession fees,

permit charges and landing fees described in paragraph

47 above pay for the Department’s bonded indebtedness

and the expenses necessary to operate LAX.

-12-

50. The Board has attempted to limit use of the termi-

nal facilities at LAX to those activities which it believes

directly aid the traveling public.

51. The Board has not expressly permitted any com-

mercial or First Amendment activities within the CTA.

which defendant believes are unrelated to LAX and the

services it provides.

52. On July 13, 1983, the Board passed Resolution No.

13787. .

53. The only exception to the rules set forth in Resolu-

tion No. 13787 provides that anyone wishing to exercise

his First Amendment rights within the CTA must do so

on the sidewalks outside of and in front cf the terminal

buildings.

54. Resolution No. 13787 does not prohibit, and the

defendants have never prohibited, anyone from entering

the terminal facilities at LAX.

55. Jews for Jesus, Inc. (“Jews for Jesus”) is a non-

profit religious corporation duly organized and operating

pursuant to, the iaws of the state of California.

56. Jews for Jesus is an expression of the Christian

faith which, as one of its principle purposes, preaches the

Gospel of Jesus Christ, and promotes religious ideals

consistent with the Old Testament and the New

Testament. .

57. Avi Snyder (“Snyder”) is an individual member

and minister of Jews for Jesus and is the Los Angeles

director of Jews for Jesus.

58. The acts and practices of all of the named defend-

ants and their agents, as described herein, were per-

formed under color of state iaw and were actions of the

state within the meaning of 42 U.S.C. § 1983 and Four-

teenth Amendment to the United States Constitution.

-13-

59. Snyder, and other members of the plaintiff Jews

for Jesus, have on several occasions distributed literature

inside the terminal facilities at LAX.

60. Distribution of religious literature and leaflets,

free of charge by members of Jews for Jesus, including

Snyder, provides information to the general public about

the religious teachings of Christianity and is a method by

which plaintiffs evangelize.

61. It is the express policy of Jews for Jesus that its

members, including Snyder, must neither solicit nor ac-

cept, any money whatsoever, while distributing free relig-

ious literature in the terminal buildings of LAX.

62. Jews for Jesus has a general policy which forbids

its members, including Snyder, while engaged in the free

distribution of religious literature at any location, inelud-

ing the interior terminal walkways of LAX, from harass-

ing, interfering with, blocking, obstructing, physically

touching or otherwise intentionally annoying any other

person.

63. The parties are not aware of any occasion on which

a meinber of Jews for Jesus, including Snyder, while

engaged in the free distribution of religious literature in

the interior terminal walkways of LAX, has intentionally

uarassed, interfered with, blocked, obstructed, physically

touched in an offensive manner or otherwise intentionally

annoyed any other person.

64. Only July 13, 1983, the Board, acting pursuant to

authority vested in it by City, enacted Resolution No.

13787. This resolution, on its face, bans, among other

things, all “First Amendment activities” from the interior

of terminal areas at LAX otherwise open to the public

without restriction, including the pedestrian walkways

located within said terminals.

-14-

65. Resolution No. 13787 purports to ban all airport

activities which defendants believe to be non-airport

related.

66. Resolution No. 13787 allows the conduct of First

Amendment activities on the sidewalks immediately

outside of the terminals located at LAX.

67. Only July 6, 1984, at approximately 10:00 a.m. in

LAX Terminal 4, Snyder was engaged in the distribution

of Jews for Jesus religious literature on a pedestrian

walkway. In distributing the religious literature, Snyder

was not blocking any entrance, exit, stairway, escalator,

elevator, door, or otherwise inhibiting the free flow of

pedestrian traffic on the pedestrian walkway located in-

side Terminal 4 at LAX.

68. During the distribution of free religious literature

as described in Paragraph 67, Snyder was not touching,

annoying blocking, obstructing, or otherwise harassing

any other person present in the immediate vicinity of his

location on the pedestrian walkway located in the interior

of Terminal 4 at LAX.

69. At or about the time that Snyder was engaged in

the activities described in Paragraph 67 and 68, above, a

uniformed peace officer, acting pursuant to Resolution

13787, approached Snyder and handed him a copy of

Resolution 13787. Pursuant to the policy of the defend-

ants as reflected in the Resolution, the peace officer

ordered Snyder to cease distribution of any literature

within the terminal areas at LAX, including the pedes-

trian walkways where the activities had, up to that point,

been conducted. The peace officer further advised Snyder

that any failure to comply with his order would subject

Snyder to legal action by the City Attorney pursuant to

the express terms of Resolution No. 13787. Snyder ceased

-

the distribution of literature and left the interior terminal

in compliance with the order of the peace officer.

70. The acts of the peace officer as described in Par-

graph 69, above, were performed under color of state law

pursuant to the express policy of the Board as set forth in

Resolution No. 13787 had the purpose and effect of

preventing Snyder from engaging in the distribution of

free religious literature anywhere inside the LAX termi-

nal buildings, including the pedestrian walkway where he

had been engaged in the distribution of free religious

literature.

71. Defendants have prevented and/or chilled, (and

will continue to prevent and/or chill) plaintiffs’ distribu-

tion of free religious literature inside the terminal areas

at LAX pursuant to upon Resolution No. 13787.

72. If, as the plaintiffs contend, Resolution No. 13787

is unconstitutional on its face or as applied to plaintiffs’

activities inside of the terminal areas at LAX, then

plaintiffs have suffered, are suffering, and will continue to

suffer irreparable harm.

73. If, as the plantiffs contend, Resolution No. 13787

is unconstitutional on its face or is applied to plaintiffs’

activities, plaintiffs have no plain, speedy, speedy or

adequate remedy at law to addresss said constitutional

violations and any of the remedies to which plaintiff could

be relegated would be attended by such uncertainties and

delays that they would cause further irreparable dam-

ages, injury and i iconvenience to plaintiffs. Damages are

not adequate to protect plaintiffs from the continuing

injury which would arise from said constitutional

violations.

74. Defendants permit the operation of a Christian

Science Reading Room inside terminal 7. This Reading

Room is open to the public. The Reading Room displays

~16-

religious literature pertaining to the Christian Science

faith. The Reading room has been in operation in the

same location inside of the terminal building since 1966.

The Reading Room has occupied and now occupies leased

space for which it pays a monthly rental of $510.00.

APPENDIX 2

(2)

RESOLUTION NO. 13787

WHEREAS, pursuant to City of Los Angeles Charter

Section 238.4, the Board of Airport Commissioners shall

have possession, management, charge, superintendence

and control of all airports, airport sites, and all equip-

ment, accommodations and facilities for aerial navigation,

flight, instruction and commerce belonging to or pertain-

ing to this city; and

WHEREAS, pursuant to Charter Section 238.5, the

Board shall fix, regulate and collect rates or charges for

the use of all buildings, grounds, facilities, utilities and

structures which are owned, controlled or operated by the

city in connection with or for the promotion or accommo-

dation of air commerce and air navigation, and for ser-

vices in connection therewith; and

WHEREAS, pursuant to Charter Section 238.8, the

Board shall have the power to grant franchises, permits

and licenses to and to enter into leases with any person,

firm or corporation, or agency of the government for the

use of any municipally owned or controlled airport or any

part of facility thereof, for the promotion and accommo-

dation of air commerce and air navigation or use inciden-

tal thereto; and

WHEREAS, also pursuant to Section 238.8 of the City

Charter, the Board shall have the power to enter into

leases for purposes other than for the promotion and

accommodation of air commerce and air navigation cover-

ing any portion of the airport property whenever the

Board shall determine that the use of such portion of the

airport property is not necessary for the promotion and

accommodation of air commerce and air navigation or

uses incidental thereto; and

WHEREAS, the Board considers the Central Terminal

Area, which for purposes of this Resolution consists of

-

(3)

the ticketing and satellite facilities and the parking strue-

tures and areas and streets, roadways and bridges adja-

cent thereto at Los Angeles International Airport to be

vital facilities for the promotion and accommodation of

air commerce and air navigation and uses incidental

thereto; and

WHEREAS, the existing Central Terminal Area at Los

Angeles International Airport currently accommodates

and processes approximately 34 million annual passen-

gers and an equal number of meeters and greeters; and

WHEREAS, the Board of Airport Commissioners is cur-

rently engaged in an expansion program of Central Ter-

minal Area at Los Angeles International Airport due to

the extreme congestion in the Central Terminal Area; and

WHEREAS, the projected growth of air passenger traffic

at Los Angeles International Airport is anticipated to

reach a level of 40 million annual passengers by the year

1986; and

WHEREAS, the primary purpose of expanding the Cen-

tral Terminal Area at Los Angeles International Airport

is to accommodate more efficiently the traveling public at

Los Angeles International Airport and to enhance the

promotion and accommodation of air commerce and air

navigation or uses incidental thereto; and

WHEREAS, even with the expanded Central Terminal

Area at Los Angeles International Airport said facilities

will continue to experience high periods of passenger

traffic and congestion; and

WHEREAS, it is the objective of the Board of Airport

Commissioners to keep the Central Terminal Area as free

as possible from congestion and obstructions as an aid to

the traveling public and in the promotion of air commerce

and air navigation and uses incidental thereto: and

(4)

WHEREAS, in recognition of its Charter duty to accom-

modate and promote air commerce and air navigation and

uses incidental thereto, the Board of Airport Commission-

ers determines that due to the vital nature of the Central

Terminal Area, no portion thereof should be utilized for a

purpose not connected with the promotion and accommo-

dation of air commerce and air navigation and uses

incidental thereto; and

WHEREAS, over the past several years, various individu-

als and/or entities have attempted to engage in First

Amendment activities within the Central Terminal Area;

and

WHEREAS, said individuals and/or entities engaging in

such First Amendment activities have significantly inter-

fered with the free flow of passenger traffic in the Central

Terminal Area at Los Angeles International Airport and

substantially contributed to the congestion in said Cen-

tral Terminal Area; and

WHEREAS, such interference with passenger traffic and

congestion caused by First Amendment activities in the

Central Terminal Area are, counterproductive to the

objectives of the Board in accommodating air commerce

and air navigation or uses incidental thereto; and

WHEREAS, engaging in First Amendment activities in

the Central Terminal Area at Los Angeles International

Airport is incompatible with the character and function of

said Central Terminal Area; and

WHEREAS, the Board of Airport Commissioners does

not issue permits at Los Angeles International Airport to

individuals and/or entities to engage in First Amend-

ment activities within the Central Terminal Area at Los

Angeles International Airport; and

WHEREAS, over the years, the various individuals

and/or entities which have engaged in First Amendment

(9)

activities within the Central Terminal Area at Los Ange-

ies International Airport have done so without the con-

sent or approval of the Board of Airport Commissioners;

and

WHEREAS, extensive litigation involving various city

ordinances and state statutes has not resolved the issue

of whether the Central Terminal Area at Los Angeles

International Airport constitutes an area which is open

for the conduct of First Amendment activities; and

WHEREAS, the Board of Airport Commissioners, irre-

spective of the extensive litigation involving First Amend-

ment activities at Los Angeles International Airport, has

never opened the Central Terminal Area at Los Angeles

International Airport to First Amendment activities; and

WHEREAS, in the prudent management of Los Angeles

International Airport and in order to avoid congestion

and interference with the promotion and accommodation

of air commerce and air navigation and uses incidental

thereto and in order to protect passengers in the Central

Terminal Area from unwanted or disruptive intrusions,

the Board of Airport Commissioners herein determines

that the Central Terminal Area of Los Angeles Interna-

tional Airport is not open to individuals or entities engag-

ing in First Amendment activities; and

WHEREAS, if any entity and/or individual seeks to

engage in First Amendment activities in the vicinity of

the Central Terminal Area, those activities must be con-

ducted only on the sidewalks in front of the ticketing

buildings and in such a manner so as not to interfere with

other persons; and

NOW, THEREFORE, BE IT RESOLVED by the Board

of Airport Commissioners that the Central Terminal Area

at Los Angeles International Airport is not open for First

Amendment activities by any individual and/or entity;

(6)

BE IT FURTHER RESOLVED that the Central Termi-

nal Area at Los Angeles International Airport is only to

be used for the promotion and accommodation of air

ecommerce and air navigation or uses incidental thereto

unless the Board of Airport Commissioners makes the

appropriate findings pursuant to Charter Section 238.8

that a portion of said area is not currently required for

the promotion or accommodation of air navigation or uses

incidental thereto; and

BE IT FURTHER RESOLVED that after the effective

date of this Resolution, if any individual and/or entity

seeks to engage in First Amendment activities within the

Central Terminal Area at Los Angeles International Air-

port, said individual and/or entity shall be deemed to be

acting in contravention of the stated policy of the Board

of Airport Commissioners in reference to the uses permit-

ted within the Central Terminal Area at Los Angeles

International Airport; and

BE IT FURTHER RESOLVED that if any individual or

entity engages in First Amendment activities within the

Central Terminal at Los Angeles International Airport,

the City Attorney of the City of Los Angeles is directed to

institute appropriate litigation against such individual

and/or entity to ensure compliance with this Policy state-

ment of the Board of Airport Commissioners; and

BE IT FURTHER RESOLVED if any entity or individ-

ual seeks to engage in First Amendment activities in the

vicinity of the Central Terminal Area, those activities

must be conducted only on the sidewalks in front of the

ticketing buildings and in such manner so as to not

interfere with other persons; and

BE IT FURTHER RESOLVED that Department man-

agement is directed to monitor the conduct of any First

Amendment activities on the sidewalks in front of the

(7)

ticketing buildings and report periodically to the Board

regarding such activities in order for the Board to ascer-

tain whether any restrictions should be implemented

concerning said activities; and

BE IT FURTHER RESOLVED that this action, a gen-

eral policy procedure, is exempt from the requirements of

the California Environmental Quality Act as provided by

Article III, Section 2.n. of the Los Angeles City CEQA

Guidelines.

I hereby certify that the foregoing is a

true and correct copy of Resolution No.

13787 adopted by the Board of Airport

Commissioners at a special meeting

held Wednesday, July 13, 1983.

ELAINE E. STaniEc — Secretary

Board of Airport Commissioners

APPENDIX C

RESOLUTION NO. 13787

WHEREAS, pursuant to City of Los Angeles Charter

Section 238.4, the Board of Airport Commissioners shall

have possession, management, charge, superintendence

and control of ail airports, airport sites, and all equip-

ment, accommodations and facilities for aerial navigation,

flight, instruction and commerce belonging to or pertain-

ing to this city; and

WHEREAS, pursuant to Charter Section 238.5, the

Board shall fix, regulate and collect rates or charges for

the use of all buildings, grounds, facilities, utilities and

structures which are owned, controlled or operated by the

city in connection with or for the promotion or accommo-

dation of air commerce and air navigation; and for ser-

vices in connection therewith; and

WHEREAS, pursuant to Charter Section 238.8, the

Board shall have the power to grant franchises, permits

and licenses to and to enter into leases with any person,

firm or corporation, or agency of the government for the

use of any municipally owned or controlled airport or any

part of facility thereof, for the promotion and accommo-

dation of air commerce and air navigation or use inciden-

tal thereto; and

WHEREAS, also pursuant to Section 238.8 of the City

Charter, the Board shall have the power to enter into

leases for purposes other than for the promotion and

accommodation of air commerce and air navigation cover-

ing any portion of the airport property whenever the

Board shall determine that the use of such portion of the

airport property is not necessary for the promotion and

accommodation of air commerce and air navigation or

uses incidental thereto; and

WHEREAS, the Board considers the Central Terminal

Area, which for purposes of this Resolution consists o.

C-2

the ticketing and satellite facilities and the parking struc-

tures and areas and streets, roadways and bridges adja-

cent thereto at Los Angeles International Airport to be

vital facilities for the promotion and accommodation of

air commerce and air navigation and uses incidental

thereto; and

WHEREAS, the existing Central Terminal Area at Los

Angeles International Airport currently accommodates

and processes approximately 34 million annual passen-

gers and an equal number of meeters and greeters; and

WHEREAS, the Board of Airport Commissioners is cur-

rently engaged in an expansion program of Central Ter-

minal Area at Los Angeles International Airport due to

the extreme congestion in the Central Terminal Area; and

WHEREAS, the projected growth of air passenger traffic

at Los Angeles International Airport is anticipated to

reach a level of 40 million annual passengers by the year

1986; and

WHEREAS, the primary purpose of expanding the Cen-

tral Terminal Area at Los Angeies International Airport

is to accommodate more efficiently the traveling public at

Los Angeles International Airport and to enhance the

promotion and accommodation of air commerce and air

navigation or uses incidental thereto; and

WHEREAS, even with the expanded Central Terminal

Area at Los Angeles International Airport said facilities

will continue to experience high periods of passenger

traffic and congestion; and

WHEREAS, it is the objective of the Board of Airport

Commissioners to keep the Central Terminal Area as free

as possible from congestion and obstructions as an aid to

the traveling public and in the promotion of air commerce

and air navigation and uses incidental thereto; and

C-3

WHEREAS, in recognition of its Charter duty to aeccom-

modate and promote air commerce and air navigation and

uses incidental thereto, the Board of Airport Commission-

ers determines that due to the vital nature of the Central

Terminal Area, no portion thereof should be utilized for a

purpose not connected with the promotion and accommo-

dation of air commerce and air navigation and uses

incidental thereto; and

WHEREAS, over the past several years, various individu-

als and/or entities have attempted to engage in First

Amendment activities within the Central Terminal Area;

and

WHEREAS, said individuals and/or entities engaging in

such First Amendment activities have significantly inter-

fered with the free flow of passenger traffic in the Central

Terminal Area at Los Angeles International Airport and

substantially contributed to the congestion in said Cen-

tral Terminal Area; and

WHEREAS, such interference with passenger traffic and

congestion caused by First Amendment activities in the

Central Terminal Area are counterproductive to the

objectives of the Board in accommodating air commerce

and air navigation or uses incidental thereto; and

WHEREAS, engaging in First Amendment activities in

the Central Terminal Area at Los Angeles International

Airport is incor-vatible with the character and function of

said Central Terminal Area; and

WHEREAS, the Board of Airport Commissioners does

not issue permits at Los Angeles International Airport to

individuals and/or entities to engage in First Amend-

ment activities within the Central Terminal Area at Los

Angeles International Airport; and

WHEREAS, over the years, the various individuals

and/or entities which have engaged in First Amendment

C-4

activities within the Central Terminal! Area at Ios Ange-

les International Airport have done so without the con-

sent or approval of the Board of Airport Commissioners;

and

WHEREAS, extensive litigation involving various city

ordinances and state statutes has not resolved the issue

of whether the Central Terminal Area at Los Angeles

International Airport constitutes an area which is open

for the conduct of First Amendment activities; and

WHEREAS, the Board of Airport Commissioners, irre-

spective of the extensive litigation involving First Amend-

ment activities at Los Angeles International Airport, has

never opened the Central Terminal Area at Los Angeles

International Airport to First Amendment activities; and

WHEREAS, in the prudent management of Los Angeles

International Airport and in order to avoid congestion

and interference with the promotion and accommodation

of air commerce and air navigation and uses incidental

thereto and in order to protect passengers in the Central

Terminal Area from unwanted or disruptive intrusions,

the Board of Airport Commissioners herein determines

that the Central Terminal Area at Los Angeles Interna-

tional Airport is not open to individuals or entities engag-

ing in First Amendment activities; and

WHEREAS, if any entity and/or individual seeks to

engage in First Amendment activities in the vicinity of

the Central Terminal Area, those activities must be con-

dueted only on the sidewalks in front of the ticketing

buildings and in such a manner so as not to interfere with

other persons; and

NOW, THEREFORE, BE IT RESOLVED by the Board

of Airport Coiumissioners that the Central Terminal Area

at Los Angeles International Airport is not open for First

Amendment activities by any individual and/or entity;

C-5

BE IT FURTHER RESOLVED that the Central Termi-

nal Area at Los Angeles International Airport is only to

be used for the promotion and accommodation of air

commerce and air navigation or uses incidental thereto

unless the Board of Airport Commissioners makes the

appropriate findings pursuant to Charter Section 238.8

that a portion of said area is not currently required for

the promotion or accommodation of air navigation or uses

incidental thereto; and

BE IT FURTHER RESOLVED that after the effective

date of this Resolution, if any individual and/or entity

seeks to engage in First Amendment activities within the

Central Terminal Area at Los Angeles International Air-

port, said individual and/or entity shall be deemed to be

acting in contravention of the stated policy of the Board

of Airport Commissioners in reference to the uses permit-

ted within the Central Terminal Area at Los Angeles

International Airport; and

BE IT FURTHER RESOLVED that if any individual or

entity engages in First Amendment activities within the

Central Terminal Area at Los Angeles International Air-

port, the City Attorney of the City of Los Angeles is

directed to institute appropriate litigation against such

individual and/or entity to ensure compliance with this

Policy statement of the Board of Airport Commissioners;

and

BE IT FURTHER RESOLVED if any entity or individ-

ual seeks to engage in First Amendment activities in the

vicinity of the Central Terminal Area, those activities

must be conducted only on the sidewalks in front of the

ticketing buildings and in such a manner so as to not

interfere with other persons; and

BE IT FURTHER RESOLVED that Department man-

agement is directed to monitor the conduct of any First

C-6

Amendment activities on the sidewalks in front of the

ticketing buildings and report periodically to the Baord

regarding such activities in order for the Board to ascer-

tain whether any restrictions should be implemented

concerning said activities; and

BE IT FURTHER RESOLVED that this action, a gen-

eral policy procedure, is exempt from the requirements of

the California Environmental Quality Act as provided by

Article III, Section 2.n. of the Los Angeles City CEQA

Guidelines.

I hereby certify that the foregoing is a

true and correct copy of Resolution No.

13787 adopted by the Board of Airport

Commissioners at a special meeting

held Wednesday, July 13, 1983.

ELAINE E. STANIEC — Secretary

BOARD OF AIRPORT

COMMISSIONERS

PROOF OF SERVICE BY MAIL

I am a citizen of the United States and a resident of the

City and County of Los Angeles; I am over the age of

eighteen years and not a party to the within action; my

business address is: 1706 Maple Avenue, Los Angeles,

California.

On July 21, 1986 I served the within Petition for Writ of

Certiorari in re: “The Board of Airport Commissioners of

The City of Los Angeles v. Jews for Jesus” in the United

_ States Supreme Court, October Term 1985, No. 85-5808;

on the Parties in said action, by placing 3 copies thereof

enclosed in a sealed envelope with postage fully prepaid,

in the United States post office mail box at Los Angeles,

California, addressed as follows:

Meserve, Mumpher & Hughes

Bruce A. Gothelf

Joel D. Covelman

333 South Hope Street

35th Floor

Los Angeles, CA 90071

Attorneys for Respondents

All parties required to be served have been served.

I certify (or declare), under penalty of perjury, that the

foregoing is true and correct.

Executed on July 21, 1986, at Los Angeles, California

fh fen

it tag ee i" Se

CE CE MEDINA

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