Petition for Writ of Certiorari — Board of Airport Commissioners v. Jews for Jesus, Inc.
Supreme Court brief1986
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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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