Amicus Curiae Brief — Board of Airport Commissioners v. Jews for Jesus, Inc.

(i) Supreme Court, U.S,

No. 86-104 FILED

; NOV 20 1986

IN THE

Supreme Court of the Wnited States”

Ocroser TERM, 1986

THE BOARD OF AIRPORT COMMISSIONERS OF

THE CITY OF LOS ANGELES, et al.,

Petitioners,

Vv

JEWS FOR JESUS, INC., and ALAN HOWARD

SNYDER, a.k.a. AVI SNYDER,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF AIRPORT OPERATORS

COUNCIL INTERNATIONAL (AOCT) AS

AMICUS CURIAE IN SUPPORT OF

PETITIONERS, THE BOARD OF AIRPORT

COMMISSIONERS OF THE CITY OF

LOS ANGELES, et al.

ARTHUR P. BERG

Attorney for Amicus Curiae

Arrport OPERATORS COUNCIL

INTERNATIONAL (AOCI)

One World Trade Center

Suite 66E

New York, New York 10048

(212) 466-8794

On the Brief:

Arthur P. Berg

Anne M. Tannenbaum

Arnold D. Kolikoff

—<_

Mm 2

TABLE OF CONTENTS

Page

py Pte Pliny 5). Sere ii

INTEREST OF THE AMICUS CURIAE ......... l

STATEMENT OF THE CASE .................. 2

SUMMARY OF ARGUMENT ................-.. 3

EE 5 5.54 4 Kae biaseKbaccevdnduseetnas 4

POINT I —

AIRPORTS ARE NOT TRADITIONAL PUBLIC

FORA BY REASON OF THEIR HISTORY,

PURPOSE AND CHARACTER............... 4

POINT II —

LOS ANGELES INTERNATIONAL AIRPORT'S

CENTRAL TERMINAL AREA IS NOT A

DESIGNATED PUBLIC FORUM BECAUSE IT

HAS NOT BEEN OPENED FOR FIRST

AMENDMENT USE BY THE PUBLIC AT

REE 655 Geb SESA VR EARN SS Sas eee Hare 000% 15

POINTIT -

PROHIBITION OF RESPONDENTS’

DISTRIBUTION OF LEAFLETS AT LOS

ANGELES INTERNATIONAL AIRPORT'S

CENTRAL TERMINAL AREAISA

PERMISSIBLE REGULATION OF FIRST

AMENDMENT ACTIVITY IN A NON-PUBLIC

EE 55. ds 6e nad ee Renn dws Sabha kiube sees < 17

ED ooo sab 0.4.0 0.00 wks e0Na RAGS eal 19

TABLE OF AUTHORITIES

Page

Cases

Adderley v. Florida, 385 U.S. 39 (1966) .......... 6

Chicago Area Military Project v. City of Chicago,

508 F.2d 921 (7th Cir. 1975), cert. denied, 421

ED i Shade cesaveveserebsiene ss 5n.

Consolidated Edison Company of New York, Inc. v.

Public Service Comm'n, 477 U.S. 530 (1980) ........... ll

Cornelius v. NAACP Legal Defense & Educational

Fund, Inc., ___ U.S. ___. , 105 S.Ct. 3439

DCCC Rnebc6eebur 6) x0 06560 e64nN RKO eS 8 passim

Fernandes v. Limmer, 663 F.2d 619 (5th Cir. 1981),

cert. dismissed, 458 U.S. 1124 (1982)........... 5n.

Flower v. United States, 407 U.S. 197 (1972) ...... 10

Greer v. Spock, 424 U.S. 828 (1976).............. 2, 6, 10,

15

Hague v. C.1.0., 307 U.S. 496 (1939) ............ 7,9

International Society for Krishna Consciousness,

Inc. v. Rochford, 585 F.2d 263 (7th Cir. 1978). .. 5n.

International Society for Krishna Consciousness of

Atlanta v. Eaves, 601 F.2d 809 (5th Cir. 1979)... 5n.

Kuszynski v. City of Oakland, 479 F.2d 1130 (9th

ee ee Sette ete eG ibn wakes 5n.

Lehman v. City of Shaker Heights, 418 U.S. 298

i: St el eincus Sachse hs nm anew eens se 11,14

Marsh v. Alabama, 326 U.S. 501 (1946) ..........

Members of the City Council v. Taxpayers for

Vincent, 466 U.S. 789 (1984) .................

Perry Education Ass’n v. Perry Local Educators’

oS eee

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

| RURGAe SCN iR irieey caan

United States v. Albertini, __ U.S. ___ , 105

' < - eneeeeitaers

United States v. Grace, 461 U.S. 171 (1983) .......

United States Postal Service v. Greenburgh Civic

Ass‘ns, 453 U.S. 114 (1981) ...................

U.S. Southwest Africa/Namibia Trade ¢> Cultural

Council v. United States, 708 F.2d 760 (D.C. Cir.

EES 6446 bASKEAA SACD Raw adeabe ok one os

Widmar v. Vincent, 454 U.S. 263 (1981)..........

Statutes:

Airport and Airway Improvement Act of 1982,

§ §507, 511(a)(9), 49 U.S.C. app. §§2207,

SE ainsi dass ne skedebediness

5n.

14

iv

Page

Air Transportation Security Act of 1974, §202, as

amended, 49 U.S.C. §§1356, 1357 (1982 & Supp.

TRG . Fo - vectwcecteduescnseetuscessoees 13

Internal Revenue Code of 1954, §§4261-62,

4271-72, as amended, 26 U.S.C. §§4261-62,

4271-72 (1982 & Supp. ITI. 1985).............. 8

Tax Equity and Fiscal Responsibility Act of 1982,

§281(a), as amended, 2 U.S.C. §§9502(b),

9502(c) (1982 & Supp. IT] 1985) ............... )

Regulations:

14C.F.R., Parts 107,108, 109 (1986)............. 13

14 C.F.R. §§107.23(b)(3), 108.19(a), 109.3(a)(1)

cvs gh setnee ie MeesaKes Aree y KOEN oc ue 13

Other Authorities:

Congress, Office of Technology Assessment, Airport

System Development (1984) .................. 12

Congressional Budget Office, Financing U.S.

Airports in the 1980's (1984) .................. 12

Department of Transportation, National Plan of

Integrated Airport Systems 1984-1993 (1985) .... 8

W. Hart, The Airport Passenger Terminal (1985) .. 12

R. Horonjeff & F.X. McKelvey, Planning & Design

of Airports (3d. ed. 1983) ............---..5- 8

Lemer, Airport Landside Capacity: A Growing ,

Concern, T.R. News, May-June 1986 .......... 12,14

No. 86-104

IN THE

Supreme Court of the United States

Ocroser TERM, 1986

THE BOARD OF AIRPORT COMMISSIONERS OF

THE CITY OF LOS ANGELES, et al.,

Petitioners,

v.

JEWS FOR JESUS, INC., and ALAN HOWARD

SNYDER, a.k.a. AVI SNYDER,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF AIRPORT OPERATORS

COUNCIL INTERNATIONAL(AOCT) AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS, THE

BOARD OF AIRPORT COMMISSIONERS OF

THE CITY OF LOS ANGELES, et al.

INTEREST OF THE AMICUS CURIAE

This brief amicus ct riae is being filed pursuant to United States

Supreme Court Rule 36 on behalf of the members of the Airport

Operators Council International (AOCI). AOCTI is a cooperative,

non-profit association of 228 government bodies that own and

operate over 850 airports throughout the world including virtually

ali major domestic airports. More than 90% of the nation’s

domestic scheduled air passenger and cargo traffic, and virtually

all of the nation’s scheduled international traffic, are enplaned at

AOCI member airports in the United States. AOCI provides its

members with information and assistance through its conferences

and literature, represents the collective interest of its members

before a variety of government and air carrier industry organiza-

tions, and serves as the voice of its members to the media and the

public.

AOC is filing this amicus brief because of its concern that, if af-

firmed, the decision below holding the Central Terminal Area

building of Los Angeles International Airport to be a traditional

public forum would mean that all airports would be required to be

available for solicitation, leafletting and other expressive activity.

This Court held in Cornelius v. NAACP Legal Defense ¢> Educa-

tional Fund, Inc., ___ U.S. ____ , 105 S. Ct. 3439 (1985), Perry

Education Ass'n v. Perry Local Educators’ Ass'n, 460 U.S. 37

(1983), and Greer v. Spock,424 U.S. 828 (1976), that government

property which has not traditionally served as a place for, and

which does not have as a principal purpose, the expression of ideas

may be preserved for the purposes for which it is intended and need

not be treated as a public forum.

This brief will establish that airports, no less than the govern-

ment facilities involved in the above cases, have not traditionally

served as places for, and do not have as a principal purpose, the ex-

pression of ideas and therefore may be preserved for the air

transportation purpose for which they were intended. Accordingly,

the decision below holding that the Central Terminal Area building

of Los Angeles International Airport is a traditional public forum

should be reversed.

STATEMENT OF THE CASE

The Statement Of The Case contained in Petitioners’ Brief is

adopted by AOCI for purposes of this Amicus Curiae Brief.

SUMMARY OF ARGUMENT

The power of government to regulate First Amendment activity

in both traditional pubiic fora and designated public fora is severely

circumscribed. Such regulations are constitutional only if they are

necessary to serve a compelling government interest. However, in

a non-public forum, a government's power to regulate First

Amendment activity is much broader and expressive activity may

be reasonably regulated in the interest of preserving the non-public

forum for the purposes for which it was intended.

The Ninth Circ::it erred in holding airports to be traditional

public fora based on the facts that airports are generally open to the

public and have large numbers of visitors. This Court has made it

clear that these factors alone do not establish a traditional public

forum.

Airports fall into the category of non-public fora. In recent years,

this Court has made it clear that traditional public fora are only

those places which have traditionally been devoted to assembly and

debate, and which have as a principal purpose serving as a site for

expressive activity. Cornelius v. NAACP Legal Defense & Educa-

tional Fund, Inc.,___U.S.__, 105 S.Ct. 3439 (1985); Perry Educa-

tion Ass'n v. Perry Local Educators’ Ass'n, 460 U.S. 37 (1983). Air-

ports, like other non-public fora, neither have a long tradition of

being used as sites for assembly and debate, nor have they been

created to serve as sites for expressive activity. Indeed, airports have

a single purpose — facilitating safe, efficient and convenient air

travel.

That single purpose causes airports to have other critical dif-

ferences from traditional public fora which reflect their non-public

forum status. Unlike traditional public fora, airports are not in-

tegrated into their neighboring communities but rather serve as

portals to those communities. Also, airport patrons, unlike users of

traditional public fora, are a captive audience to expressive activity

being conducted in the areas where they must remain to serve their

air travel needs. Furthermore, airports suffer from special conges-

tion problems which do not exist in traditional public fora. Finally,

airports present special security problems, not found ir traditional

public fora, which necessitate security precautions taken at few

other public facilities in our society.

It is also clear that classification of Los Angeles International Air-

port's (LAX’s) Central Terminal Area building (CTA) as a

designated public forum would be contrary to the decisions of this

Court. A designated public forum only can be created if the rele-

vant government authority intends to open the site to First Amend-

ment activity by the public at large. However, LAX’s explicit pro-

hibition of First Amendment activities at the CTA precludes any in-

ference of such intent. Moreover, even if First Amendment activity

is permitted at any particular airport, that, in and of itself, would

not support a conclusion that the airport’s proprietor intended to

create a designated public forum, since any such permission would

have been granted in response to erroneous circuit court precedent.

Finally, LAX’s prohibition against distributing literature on the

CTA concourse floor fully satisfies the First Amendment re-

quirements for the regulacion of expressive activity in a non-public

forum. The regulation is viewpoint-neutral and is reasonably

related to preserving LAX for the purpose for which it was

intended — facilitating air transportation.

ARGUMENT

POINT I

AIRPORTS ARE NOT TRADITIONAL PUBLIC FORA

BY REASON OF THEIR HISTORY, PURPOSE AND

CHARACTER

Three years ago, in Perry Education Ass'n v. Perry Local

Educators’ Ass'n, 460 U.S. 37 (1983), this Court set forth a com-

prehensive analytical model for determining whether, and to what

degree, a government is required by the First Amendment to per-

mit expressive activity in a publicly-owned facility. That model

properly differentiated between a traditional public forum, a

designated public forum, and a non-public forum which is created

for purposes other than expressive activity on the part of the public

at large.

Under the Perry model, which was applied by this Court most

recently in Cornelius v. NAACP Legal Defense & Educational

Fund, Inc., ___ U.S. ___. , 105 S.Ct. 3439 (1985), a government

may not constitutionally prohibit First Amendment activity from

a traditional public forum or a designated public forum unless the

prohibition is necessary to serve a compelling government interest. ,'

In sharp contrast, in a non-public forum reasonable regulations

that preserve the forum for its “intended purposes” are fully con-

stitutional, as long as there is no viewpoint discrimination. Perry

Education Ass’n v. Perry Local Educators’ Ass'n, 460 U.S., at 46.

In the instant case, the Ninth Circuit erroneously held that air-

ports are traditional public fora because it mistakenly based public

forum status on the fact that airports are generally open to the

public and the fact that large numbers of people are frequently on

the premises.” This Court, however, has made it clear in numerous

‘Ina traditional public forum, only time, place and manner regulations narrow-

ly tailored to serve a significant government interest may be enforced. Moreover,

such regulations must leave open ample alternative channels of communication.

Perry Education Ass'n v. Perry Local Educators’ Ass'n, 460 U.S., at 45.

? For example, Kuszynski v. City of Oakland, 479 F.2d 1130 (9th Cir. 1973), held

that Oakland’s airport was a public forum merely because it was public property,

id., at 1131, using “public” to refer to government ownership or unrestricted ac-

cess. Similarly, in U.S. Southwest Africa/Namibia Trade & Cultural Council v.

United States, 708 F.2d 760 (D.C. Cir. 1983), Fernandes v. Limmer, 663 F.2d

619 (5th Cir. 1981), cert. dismissed, 458 U.S. 1124 (1982), and Chicago Area

Military Project v. City of Chicago, 508 F.2d 921 (7th Cir. 1975), cert. denied,

42] U.S. 992 (1975), the respective circuits held that the airports in question were

public fora because the public had unrestricted access to the airports and because

large numbers of people used the airports. See, U.S. Southwest Africa/Namibia

Trade ¢> Cultural Council v. United States, 708 F.2d, at 764; Fernandes v. Lim-

mer, 663 F.2d, at 607; Chicago Area Military Project v. City of Chicago, 508

F.2d, at 925.

Other circuit court decisions holding airports to be public fora merely rely on

the circuit's prior decision so holding. See, Rosen v. Port of Portland, 641 F. 2d

1243, 1246 (9th Cir. 1981); International Society for Krishna Consciousness, Inc.

v. Rochford, 585 F.2d 263, 267 (7th Cir. 1978).

Another circuit court decision treated an airport as a public forum without

describing it as such or explaining why that classification was appropriate. /n-

ternational Society for Krishna Consciousness of Atlanta v. Eaves, 601 F.2d 809

(5th Cir. 1979).

cases that such facts do not establish public forum status. More

specifically, this Court has

“.. . expressly rejected the suggestion that ‘whenever

members of the public are permitted freely to visit a

place owned or operated by the Government, then that

place becomes a “public forum” for purposes of the First

Amendment.’”

United States v. Albertini, ___U.S.___ , 105 S.Ct. 2897, 2905

(1985), quoting Greer v. Spock, 424 U.S., at 836; see also, United

States v. Grace, 461 U.S. 171, 177 (1983).

Similarly, in Members of the City Council v. Taxpayers for Vin-

cent, 466 U.S. 789 (1984), this Court rejected in equally une-

quivocal terms the proposition that a publicly-owned facility is a

public forum because it would be a useful place for the communica-

tion of ideas:

“Lampposts can of course be used as signposts, but the

mere fact that government property can be used as a

vehicle for communication does not mean that the Con-

stitution requires such uses to be permitted. Cf. United

States Postal Service v. Greenburgh Civic Assns., 453

US, at 131.”

Id., at 814 (footnote omitted); see also, United States v. Albertini,

105 S.Ct., at 2905; Greer v. Spock, 424 U.S., at 838 n. 10.

The basis for excluding expressive activity from government-

owned property otherwise generally open to the public is, as held

by this Court, that:

“The State, no less than a private owner of property, has

power to preserve the property under its control for the

use to which it is lawfully dedicated.”

Adderley v. Florida, 385 U.S. 39, 47 (1966).

As held by this Court, “a principal purpose of traditional public

fora is the free exchange of ideas . . . .” Cornelius v. NAACP

Defense & Educational Fund, Inc., 105 S.Ct., at 3448. Thus, a

government-owned facility is a traditional public forum only if it

is among “those places which ‘by long tradition or by government

fiat have been devoted to assembly and debate.’ ” Id., at 3449,

quoting Perry Education Ass'n v. Perry Local Educators’ Ass'n, 460

U.S., at 45. This description hearkens back to the often-quoted

passage by Justice Roberts in Hague v. C.1.0O., 307 U.S. 496, 515

(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 pur-

poses of assembly, communicating thoughts between

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.”

As the quotation from Hague suggests, public streets and parks

are a unique species of public property. The special character of

streets and parks is reflected in the fact that this Court has never

specifically identified as a traditional public forum anything other

than astreet, sidewalk, or park.’ See, Cornelius v. NAACP Legal

Defense ¢> Educational Fund, Inc., 105S. Ct., at 3449; Members

of the City Council v. Taxpayers for Vincent, 466 U.S., at 792-93;

United States v. Grace, 461 U.S., at 177; Perry Education Ass'n. v.

Perry Local Educators’ Ass'n, 460 U.S., at 45.

Significantly, airports, unlike streets and parks, do not have a

tradition of being used as sites for assembly and debate. Moreover,

in sharp contrast to streets and parks which have the exchange

» A college campus has been described as possessing “many of the characteristics

of a traditional public forum” for its students. Cornelius v. NAACP Legal

Defense ¢ Educational Fund, 105 S.Ct., at 3450, citing Widmar v. Vincent, 454

U.S. 263, 267 n.5 (1981). Widmar described a college campus as having the

characteristics of a public forum because the campus serves as a “marketplace of

ideas.” 454 U.S., at 267 n.5. However, the same cannot be said of an airport, the

purpose of which is transportation, not discourse.

of ideas as a principal purpose, airports have only one purpose, i.e.,

to effect the safe, efficient and convenient movement of departing

and arriving passengers to and from aircraft. Al] airport functions

and services are either directly or indirectly related to air travel.’

See, R. Horonjeff & F.X. McKelvey, Planning & Design of Air-

ports, at 325-27 (3d ed. 1983) [Lodg 3-5].§

The sole purpose of airports, the facilitation of air travel, is

reflected in all aspects of airport operations, such as their financ-

ing, their lack of integration with neighboring communities, the

creation of captive audiences, and the special congestion and

security problems which are not present in traditional public fora.

Streets and parks are financed from general tax funds. In con-

trast, reflecting their limited purpose, airports are financed to the

greatest extent possible from user fees paid by the airlines, air

passengers and general aviation. In a 1985 report to Congress, the

ding comes from airport-user sources. Department of Transporta-

tion, National Plan of Integrated Airport Systems 1984-1993, at 16

(1985) [Lodg 11].

Even the limited portion of airport capital funding provided by

the Federal Government does not come from general revenues.

Rather, federal aid to airports is derived from user fees collected

from air passengers via an airline ticket excise tax, Internal

Revenue Code of 1954, § §4261-62, as amended, 26 U.S.C.

§ §4261-62 (1982 & Supp. III 1985), and from transporters of pro-

perty by air via an airwaybill excise tax. Id., §§4271-72 , 26U.S.C.

§ §4271-72 (1982). These user fees are accumulated in a trust fund

together with an amount of taxes equivalent to those received as

excise taxes on aircraft tires and aircraft fuel, Tax Equity and

* Indirect aids to air travel at airports include refreshment stands, restaurants

and retail shops, which are provided for the comfort and convenience of air

travelers.

* “Lodg” followed by numerals refers to pages in the Lodging of the Amicus

Curiae. The Lodging, which has been deposited with the Court, contains copies

of material other than statutes, regulations and judicial opinions referred to

herein.

Fiscal Responsibility Act of 1982, §281(a), as amended, 26 U.S.C.

§9502(b) (1982 & Supp. III 1985), plus such additional monies as

are necessary to defray the expense of maintaining the federal com-

ponents of the national air traffic system. Id., §281(a), 26 U.S.C.

§9502(c) (1982). Trust fund monies are disbursed as federal grants

to airport operators for the construction of airport additions and

improvements. The primary criterion guiding the distribution of

federal aid is the number of passengers enplaned at each airport.

Airport and Airway Improvement Act of 1982, §507, 49 U.S.C.

app. §2207 (1982). Significantly, an explicit statutory requirement

for the receipt of federal aid is that an airport be self-supporting to

the extent possible. Airport and Airway Improvement Act of 1982,

§511(a)(9), 49 U.S.C. app. §2210(a)(9) (1982).

LAX is typical of most major airports in the United States in that

it is, in fact, financially self-supporting. At such airports, operating

costs must be satisfied with revenues generated from travel related

user fees. See, Joint Appendix, at 15a-16a, 4444-45. As indicated

by their financing, including the Federal Aid statutes, it is clear that

the sole purpose of airports is the facilitation of air transportation.

An essential feature of a traditional public forum, totally absent

in an airport because of its limited purpose, is that a public forum

is integrated into the community. Streets and parks, “time out of

mind, have been used for purposes of assembly, communicating

thoughts between citizens, and discussing public questions”, Hague

v. C.1.0., 307 U.S., at 515, because those sites are integral to daily

life in their communities. Thus, in Marsh v. Alabama, 326 U.S. 501

(1946), this Court held that, notwithstanding private ownership,

First Amendment activity could not be prohibited in the “business

block” of a “company town”, since,

“The ‘business block’ serves as the community shopping

center and is freely accessible and open to the people in

the area and those passing through.”

Id., at 508.

The importance of integration into the surrounding community

to the existence of a traditional public forum is demonstrated by the-

the Fort Dix Military Reservation in New Jersey. See also, United

States v. Albertini, __ U.S. —, 105 S.Ct. 2897 (1985). Fort Dix

was held by this Court to merit different treatment from that of

Spock, 424 U.S., at 835-36. Consequently, Fort Dix’s commanding

officers were held not to have “abandoned” their “claim of special

interest in regulating the distribution of unauthorized leaflets . . .

United States v. Grace, 461 U.S. 17] (1983), is also in point on

is issue. There, this Court held that the statute prohibiting,

among other things, distributing leaflets and displaying banners on

However, in holding that the statute was invalid with respect to the

sidewalks surrounding the Supreme Court, this Court emphasiz-

ed that such sidewalks were indistinguishabie from other

Washington, D.C. sidewalks. More specificaily, this Court stated

that,

“There is no separation, no fence, and no indication

whatever to persons stepping from the street to the curb

and sidewalks that serve as the perimeter of the Court

Srounds that they have entered some special type of

enclave.”

Id. , at 180.

11

Here, as in the case of Fort Dix, and unlike the facts in Flower

and Grace, it is clear that airports are not integrated into the day-

to-day life of surrounding communities. The singular purpose of an

airport, air transportation, delimits the role it serves in relation to

its neighboring communities to that of a portal to those com-

munities. The people living near an airport do not enter it as they

go about their daily life, but enter only to leave their locale or to

drop off or pickup an air passenger. Therefore, airport officials, no

less than the military officials at Fort Dix, have not “abandoned”

their “claim of special interest in regulating the distribution of

unauthorized leaflets . . . within the confines of the [airport].”

Additionally, and ir: sharp contrast to the traditional public fora

of streets and parks, the singular purpose of airports creates captive

audiences. Airports are used by the public to board and leave

airplanes at scheduled departing and arrival times, or to meet and

see off air passengers. Persons waiting for an airplane to arrive or

depart shortly are not free to roam the airport. Rather, they must

remain in a waiting area or risk missing the airplane. Thus, persons

using the waiting areas constitute a captive audience for anyone ex-

pressing his or her views within their visual or aural range. Captive

audiences exist not only at the enplaning and deplaning points, but

also at ticket counters, security checkpoints, baggage conveyor

belts, and car rental and other ground transportation counters. The

public must remain at all of these locations to complete travel-

related tasks.

Quite obviously, as noted by Justice Douglas with regard to the

patrons of public transportation vehicles, the rights of such captive

audiences “to be free from forced intrusions on their privacy” would

be violated if they were forced to be th¢pbject of uninvited persua-

sion. Lehman v. City of Shaker Heights, 418 U.S. 298, 307 (1974)

(Douglas, J., concurring); cf., Consolidated Edison Company of

New York, Inc. v. Public Service Comm'n, 447 U.S. 530, 542

(1980).

The singular purpose of facilitating air transportation is also

reflected in the unique pedestrian congestion problems of airports.

Initially, it should be noted that at an airport, unlike the usual

12

situation in a street or a park, a pedestrian delay of minutes or even

seconds could very well cause a loss of hours in travel time because

of a missed plane. Secondly, at an airport, unlike a street or a park,

there is little or no choice among alternative pedestrian routes.

Those using an airport to board a departing airplane move from the

airport entrance to the terminal building, and then from ticketing

counter to security checkpoint to gate check-in counter to enplaning

waiting area to airplane boarding ramp. See, W. Hart, The Airport

Passenger Terminal, at 17-18 (1985) [Lodg 15-16]. Similarly, ar-

riving passengers move from the deplaning ramp to the baggage

pick-up area to ground transportation facilities. Id., at 18 [Lodg

16).

It also is well-established that at major airports, pedestrian routes

are heavily congested during peak travel hours. Lemer, Airport

Landside Capacity: A Growing Concern, T.R. News, May-June

1986, at 5 [Lodg 31]. The timing and duration of peak periods are

subject to considerable fluctuation. Problems of congestion often

are multiplied and lengthened by delays resulting from local

weather conditions, mechanical difficulties, airline “hubbing” ac-

tivities, and other causes. In addition, charter flight activity and

schedule changes caused by weather conditions and other factors

throughout the United States and the world also cause considerable

variation in the intensity of use of each airport. See generally, Con-

gress, Oftice of Technology Assessment, Airport System Develop-

ment, at 48-49 (1984) [Lodg 39-40]. Thus, airport congestion varies

substantially, and in a manner that cannot be accurately predicted.

Moreover, congestion at major airports is getting worse. In the

words of the Congressional Budget Office,

“Crowding has thus emerged as the major airports’

number-one problem, and the FAA anticipates a

worsening of airport congestion in coming years.”

Congressional Budget Office, F inancing U.S. Airports in the

1980's, at xix (1984) [Lodg 48]. A senior research advisor of the

Transportation Research Board has observed that “[s]ome airports

are exceeding capacity almost on a daily basis.” Lemer, Airport

Landside Capacity: A Growing Concern, T.R. News, May-June

13

1986, at 2 [Lodg 28]. And the F ederal Aviation Administration has

estimated that the annual number of passengers using the nation’s

airports will increase more than 70 % over the next decade, which

will result in the nation’s airports being “swamped”. Id., at 3.

LAX itself provides a good example of airport congestion pro-

blems. LAX handled over 33 million passengers annually in 1983,

together with an estimated equal number of “meeters and greeters.”

Joint Appendix, at 9a, 410. The growth of airport use has

necessitated costly expansion construction. Id., at 8a, 446-7.

However, anticipated growth in usage to 40 million passengers in

1986 means that this costly expansion project merely ameliorates

but does not eliminate congestion. Joint Appendix, at 2a.

Finally, the sole purpose of facilitating air transportation is

reflected in the heightened security concerns of airports which are

not present in streets and parks. The well-known history of skyjack-

ing and other forms of terrorism at airports has resulted in the adop-

tion of equally well-known security precautions. The critical nature

of these airport precautions, which need to be taken at few other

locations in this society, is reflected in the fact that they are man-

dated by federal law. The Air Transportation Security Act of 1974

required the Secretary of Transportation to issue regulations for the

mandatory screening of air passengers using international, in-

terstate, and intrastate flights. Air Transportation Security Act of

1974, §202, as amended, 49 U.S.C. app. §§1356, 1357 (1982 &

Supp. III 1985). The air security regulations currently in effect im-

pose security obligations on airport operators, 14 C.F.R., Part 107

(1986), airline operators, id., Part 108, and indirect air carriers such

as freight forwarders. Id., Part 109. These regulations address the

potential dangers of terrorist bombing and air piracy. See, 14

C.F.R. §§107.23(b)(3), 108.19(a), 109.3(a)(1) (1986). These very

real dangers both distinguish airports from traditional public fora

and mandate that airport operators in carrying out their sole pur-

pose of facilitating air transportation not be limited in prohibiting

activities unrelated to air travel such as the expressive activity in-

volved here.

The undeniable singular purpose of facilitating air transporta-

tion and the resultant distinctions between airports and traditional

14

public fora clearly make airports inappropriate locations for First

Amendment activity. Such activity, as has been demonstrated, is

clearly inconsistent with the purpose of an airport. Indeed, if the

decision below, holdir, the Central Terminal Area building of

LAX to be a public forum were affirmed, then every airport ter-

minal building, as well as every government parking lot, court-

house, office building and all other government facilities generally

open to the public would, “immediately become Hyde Parks open

to every would-be pamphleteer and politician.” Lehman v. City of

Shaker Heights, 418 U.S., at 304, quoted in United States Postal

Service v. Council of Greenburgh Civic Assn’s, 453 U.S. 114, 130

n.6 (1981), and, Perry Education Ass'n v. Perry Local Educators’

Ass'n, 460 U.S., at 49 n.9. F ortunately, for the future safe, efficient

and orderly operation of this nation’s air transportation system and

other essential governmental functions, such a result is not constitu-

tionally required.

Time and time again, in such cases as Taxpayers for Vincent,

Greenburgh Civic Ass'ns, Greer, and Lehman, this Court has held

that First Amendment use of those fora was incompatible with

those sites because such use was not consistent with their intended

purposes. See, United States Postal Service v. Council of Green-

burgh Civic Assn’s, 453 U.S., at 130 n.6. Here, no less than in the

above cited cases, it is clear that the use of airport terminal buildings

for First Amendment activities is incompatible with those sites

because such use is not consistent with their intended purpose.

In sum, the decision below is erroneous and in direct contraven-

tion of prior decisions by this Court. Accordingly, Amicus respect-

fully submits that this Court should hold that the Central Terminal

Area building of LAX is not a traditional public forum.

15

POINT II

LOS ANGELES INTERNATIONAL AIRPORT'S CEN-

TRAL TERMINAL AREA IS NOT A DESIGNATED

PUBLIC FORUM BECAUSE IT HAS NOT BEEN

OPENED FOR FIRST AMENDMENT USE BY THE

PUBLIC AT LARGE

As defined by this Court, a designated public forum is a publicly-

owned facility which is not a traditional public forum, but which

has intentionally been opened for First Amendment activity on the

part of the public at large. Cornelius v. NAACP Legal Defense &

Educational Fund, Inc., 105 $.Ct., at 3449; Perry Education Ass'n

v. Perry Local Educators’ Ass'n, 460 U.S., at 45.°

A designated public forum only can be created if the relevant

government authority so intends. Therefore, a designated public

forum is not created by inaction or if there is clear evidence of con-

trary intent. Cornelius v. NAACP Legal Defense d> Educational

Fund, Inc., 105S.Ct., at 3449, 3450. Furthermore, a designated

public forum is not created when a government selectively opens

a forum for use by certain speakers or on certain subjects. For ex-

ample, in Cornelius, this Court held that the opening of the Com-

bined Federal Campaign to over 200 charities did not transform

that program into a designated public forum. /d., at 3450-51.

Similarly, in Perry, this Court held that the use of the school

mailboxes by school officials, the recognized teachers’ union and

certain civic associations, did not transform the mailboxes into a

designated public forum. 460 U.S., at 47. And finally, in Greer v.

Spock, this Court held that inviting certain civilians to speak at Fort

Dix did not transform it into a public forum. 424 U.S., at 836.

Application of the foregoing principles to the instant case leads

to the inescapable conclusion that the concourse of Los Angeles

* In general, the restrictions applicable to a traditional public forum are ap-

plicable to a designated public forum except that a government need not main-

tain the open character of a designated public forum indefinitely, but may

change the status of a designated public forum. Perry Education Ass'n v. Perry

Local Educators’ Ass'n, 460 U.S., at 46.

16

International Airport's Central Terminal Area (CTA) is not a

designated public forum.

Resolution No. 13787 of the Los Angeles Board of Airport Com-

missioners explicitly states that the CTA is to be used only for air

commerce and uses incidental thereto, and that the CTA is not open

for First Amendment activity. Joint Appendix, at 3a-4a. Pursuant

to Resolution No. 13787 the Board of Airport Commissioners has

acted consistently in denying requests to conduct First Amendment

activities at the CTA. Joint Appendix, at 15a, 4442-43.

In view of the Resolution’s explicit limitation of the use of the

CTA and the express prohibition against First Amendment activity,

it is clear that the airport's governing authority has not intended to

open the CTA for First Amendment activity by the public at large,

thereby precluding a determination of designated public forum

status.’ Cornelius v. NAACP Legal Defense ¢> Educational Fund,

Inc., 105S. Ct., at 3449, 3450.

Furthermore, classification of the CTA as a designated public

forum would be unwarranted even if the Board of Airport Com-

missioners had not adopted Resolution No. 13787. Airports have

permitted First Amendment activity only in the face of erroneous

circuit court precedent holding airports to be public fora. Quite ob-

viously, under such circumstances, the existence of a present policy

at any particular airport permitting First Amendment activity is

more a reflection of existing erroneous precedent than it is a reflec-

tion of the intent of the airport proprietor to designate the airport

as a public forum.

For the foregoing reasons, we submit that it is clear that the Cen-

tral Terminal Area of LAX has not been designated as a public

forum.

"It is equally clear that the unauthorized occurrence of First Amendment activity

in the CTA cannot transform that site into a designated public forum. As

previously noted, inaction cannot create a public forum, especially in the face of

an express policy to the contrary. Cornelius v. NAACP Legal Defense ¢> Educa-

tional Fund, Inc., 1055S. Ct., at 3449, 3450.

17

POINT III

PROHIBITION OF RESPONDENTS DISTRIBUTION

OF LEAFLETS AT LOS ANGELES INTERNATIONAL

AIRPORT’S CENTRAL TERMINAL AREA IS A PER-

MISSIBLE REGULATION OF FIRST AMENDMEN'1

ACTIVITY IN A NON-PUBLIC FORUM

It is well-established that governments may prohibit or restrict

First Amendment activity in a non-public forum if the restriction

is both reasonable in light of the purpose of the site in question and

is not designed to suppress a particular viewpoint. Cornelius v.

NAACP Legal Defense & Educational F und, Inc., 105 S.Ct., at

3448, 3451; Perry Education Ass’n v. Perry Local Educators’ Ass'n,

460 U.S., at 49.

The prohibition of the distribution of literature by respondents

on the concourse floor of the CTA fully satisfies the requirements

for the permissible regulation of First Amendment activity in a non-

public forum.

Initially, it should be noted thai there has never been an allega-

tion that the airport’s prohibition against First Amendment activity

on the concourse floor of the CTA was adopted to suppress

respondents’ particular viewpoint. Also, to the extent that air

travel-related expressive activity is permitted at the CTA, it is per-

mitted not on the concourse floor but only in rented display cases,

counters and offices. Moreover, to the extent that travel-related ex-

pressive activity on the part of rent-paying tenants is permitted at

such fixed locations and non-travel-related expressive activity by

non-tenants is prohibited, such a status-based distinction is

eminently reasonable and constitutional in a financially self-

supporting airport.

“Implicit in the concept of the nonpublic forum is the

right to make distinctions in access on the basis of subject

matter and speaker identity. These distinctions may be

impermissible in a public forum but are inherent and in-

escapable in the process of limiting a nonpublic forum tc

18

activities compatible with the intended purpose of the

property. The touchstone for evaluating these distinc-

tions is whether they are reasonable in light of the pur-

pose which the forum at issue serves.”

Perry Education Ass'n v. Perry Local Educators’ Ass'n, 460 U.S. ;

at 49 (footnote omitted).

In view of the foregoing, it is evident that LAX’s prohibition of

respondents’ distribution of literature on the concourse floor of the

CTA is a permissible regulation of First Amendment activity ina

non-public forum. Accordingly, AOCI respectfully submits that

the decision below holding that such prohibition was violative of

the First Amendment should be reversed and the complaint

dismissed.

19

CONCLUSION

It is respectfully submitted that the foregoing establishes that the

Central Terminal Area building of Los Angeles International Air-

port is neither a traditional public forum, nor a designated public

forum, and the prohibition of respondents’ distribution of literature

in the Central Terminal Area is a permissible regulation of First

Amendment activity in a non-public forum. Consequently, the

judgment of the United States Court of Appeals for the Ninth Cir-

cuit should be reversed and instead this Court should order entry

of judgment dismissing the complaint.

Respectfully submitted,

ARTHUR P. BERG

Attorney for Amicus Curiae

Arpport OPERATORS COUNCIL

INTERNATIONAL (AOCI)

One World Trade Center

Suite 66E

(212) 466-8794

On the Brief:

Arthur P. Berg

Anne M. Tannenbaum

Arnold D. Kolikoff

Dated: New York, New York

November 20, 1986