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

‘

rat

No. 86-104

“Sirreme coun U.S,

IN THE | EILED

Supreme Court of the Gnited States

October Term, 1986 | DEC 24 1986

THE BOARD OF AIRPORT COMMISSIONERS GE°°H F. SPANIOL, JR,

THE CITY OF LOS ANGELES, et al., + CLERK

Petitioners,

v.

JEWS FOR JESUS, INC., et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF THE RUTHERFORD INSTITUTE,

AND THE RUTHERFORD INSTITUTES OF ALABAMA,

COLORADO, CONNECTICUT, DELAWARE, FLORIDA,

GEORGIA, KENTUCKY, MICHIGAN, MINNESOTA,

MONTANA, PENNSYLVANIA, TENNESSEE, TEXAS,

VIRGINIA AND WEST VIRGINIA,

AMICI CURIAE, IN SUPPORT OF THE RESPONDENTS

James J. Knicely Ira W. Still, Ul J. Douglas Alexander

Counsel of Record The Rutherford Institute The Rutherford Institute

John W. Whitehead of Florida of Montana

Gary C. Leedes 6198 Laurel Lane 104 Second Avenue, S.W.

The Rutherford Institute Tamarac, Florida 33319 Sidney, Montana 59270

9411 Battle Street

Manassas, Virginia 22110 William P. Hollberg Victor E. Vouga

(703) 369-0100 Wendell R. Bird The Rutherford Institute

The Rutherford Institute of Pennsylvania

A. Eric Johnston of Georgia 234 West Pine Street

The Rutherford Institute 1275 Peachtree Street, N.E. Grove City, Pennsylvania 16127

of Alabama Altanta, Georgia 30367 oe

P.O. Box $9561 Les Bailey

The Rutherford Institute

of Tennessee

710 Easi Sullivan Street

Birmingham, Alabama 35259 John K. Webb

The Rutherford Institute

Lynn M. Watwood, Jr. of Kentucky Ki T 76

The Rutherford Institute 8 Ardery Place, Suite 4 ingsport, Tennessee 57660

of Colorado Paris, Kentucky 40361 W. Charles Bundren

One Civic Center Plaza - The Rutherford Institute

Suite 340 David A. French of Texas

1560 Broadway Street The Rutherford Institute P.O. Box 923

Denver, Colorado 80202 of Michigan Dallas, Texas 75221

2010 Devolson

Joseph S. Secola Ann Arbor, Michigan 48104 Randall L. Trautwein

The Rutherford Institute The Rutherford Institute

of Connecticut Thomas W. Strahan of West Virginia

122 Broad Street The Rutherford Institute Morris Building - Suite 200

On the Green of Minnesota 845 Fourth Avenue

Milford, Connecticut 06460 1313 Fifth Street, S.E. Huntington, West Virginia 25701

Minneapolis, Minnesota 55414

Alfred J. Lindh Steven W. Graber

The Rutherford Institute The Rutherford Institute

of Delaware of Virginia

1 Customs House Square P.O. Drawer GR

Wilmington, Delaware 19801 Williamsburg, Virginia 23187

Attorneys for Amici Curiae

TABLE OF CONTENTS

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on cc ectcéeescessbasenveues

EE SEE O PEEP EPPO TEE EE TT OE PO Te Te

Summary of Argument ..............0eeee8: iweknwes

Argument

Ill.

IV.

Petitioners’ First Amendment Theory Presents

A Threat To Free Speech Generally And Should

Be Unequivocally Rejected As Inconsistent With

The First Amendment And This Court’s Cases

Interpreting The First Amendment.............

The Central Terminal Area Of Los Angeles

International Airport Is A Traditional Public

Forum Subject Only To Reasonable Time, Place

And Manner Restrictions.............-++++55:

The Central Terminal Area Of Los Angeles

International Airport Is A Designated Public

Forum In Which Respondents May Not Be

Selectively Excluded On The Basis Of The

Subject Matter Or Content Of Their Expression. .

The Imprecisely Worded Resolution Fails To

Give Persons Seeking Access To The Public

Forum Fair Warning About The Kinds Of

Expression That Are Permitted, And Owing To

Its Incurable Ambiguity, Is Substantially

Overbroad And Unconstitutionally Vague ......

CUR on bhi veccccecnesses See seeseubeusessepaes

seseeees 17

Table of Authorities

Cases

Page

Adderley v. Florida, 385 U.S. 39 (1966) ...............0c0 ce eeee 15

Amalgamated Food Employees Union Local 590 v.

Logan Valley Plaza, Inc. 391 U.S. 308 (1968) ................. 6

American Future Systems, Inc. v. Pennsylvania State

University, 568 F. Supp. 666 (M.D. Pa. 1983)................. 11

Cantwell v. Connecticut, 310 U.S. 296 (1940) ................ 7, 24

Carey v. Brown, 447 U.S. 445 (1980) .. 0.000000 00 ee. 19, 20, 23

Carreras v. City of Anaheim, 768 F. 2d. 1039

ee ibe coe vkcbewceaseces 11

Cinevision Corporation vy. City of Burbank,

Nee ee esau ev beeeeeces 11, 20

City Council v. Taxpayers for Vincent,

I 3, 8, 23

City of Renton v. Playtime Theatres, Inc.,

ER LS ES 20

Clark v. Community for Creative Non- Violence,

EE 12

Cohen v. California, 403 U.S. 15 (1971)... ..........0.0..0.2005. 7

Commonwealth v. Davis, 162 Mass. 510 (1895) ................. 8

Consolidated Edison Co. v. Public Service Commission

ee 19

Cornelius v. NAACP Legal Defense and Educational

Fund, Inc., 105 S. Ct. 3439 (1985)... .............. 3, 5,7, 9, 10,

12, 13, 14, 18

Country Hills Christian Church v. Unified Schoo!

Dist. No. 512, 560 F. Supp. 1215 (D. Kan. 1983)............... 11

Dallas Association of Community Organizations for Reform

v. Dallas County Hospital District, 670 F. 2d 629

ie ee ee eee daknbebacedvescseveee dhs 11

Davis v. Commonwealth, 167 U.S. 43 (1897). .........0.0.0.0.... 8

Dombrowski v. Pfister, 380 U.S. 479 (1965) ........0000000.5... 23

Edwards v. South Carolina, 372 U.S. 229 (1963)... .......0...... 12

Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975) ........... 19

Gooding v. Wilson, 405 U.S. 518 (1972)... 2... 2... c cece eee 22

Grayned v. City of Rockford, 408 U.S. 104(1972)......... 4, 16,17

Greer v. Spock, 424 U.S. 828 (1976) ... 00.0... ccc ce ee eee 15

ii

Hague v. CIO, 307 U.S. 496 (1939)... 6. eens 6

Hennessey v. Independent School District No. 4,

Lincoln County, 552 P. 2d 1141 (Okla. 1976) ...... 2.6.6.0 00s 10

Hoffman Estates v. Flipside, Hoffman Estates,

EG occ dc ees dbee ieee sareevenececoceesens 22

ISKON v. New Jersey Sports and Exposition Authority,

Be ie BO Gls BOE oc ccc ccc ccceseccccecccesesess 8

Jaffe v. Alexis, 659 F. 2d 1018 (9th Cir. 1981)... 2.2... 6. eee eee 1]

Jones v. North Carolina Prisoners’ Labor Union,

Neen ee ebaCeneseceevererene 14

Knights of KKK v. East Baton Rouge School Board,

SO, ee PEt FFD ccc ccc secs ccccosscceseveceees 11

Kolender v. Lawson, 461 U.S. 352 (1983)... . 2... eee 22

Lehman y. City of Shaker Heights, 418 U.S. 298 (1974) . 8, 15, 17, 19

Lewis v. City of New Orleans, 415 U.S. 130 (1974) ....... 66.5055: 22

Lovell v. Griffin, 303 U.S. 444 (1938)... 0... cee eee 22

Madison School District v. Wisconsin Employment

Relations Commission, 429 U.S. 167 (1976) ...........+5+- 14, 23

Martin v. Struthers, 319 U.S. 141 (1943) 2... 0.66 cee eee 12

Metromedia, Inc. v. San Diego, 453 U.S. 490 (1981) ...........-. 19

National Socialist White People’s Party v. Ringers,

473 F. 2d 1010 (4th Cir. 1973) 2.0... . ccc cece cece eee eee eeee 10

New York v. Ferber, 458 U.S. 747 (1982)... 2.6... cece eee eens 23

New York City Unemployed and Welfare Council v.

Brezenoff, 742 F. 2d 718 (2nd Cir. 1984) ......... 06 eee ee eeee 11

Niemotko v. Maryland, 340 U.S. 268 (1951) .. 2... 66. eee eee es 20

Perry Education Association v. Perry Local Educators’

Association, 460 U.S. 37 (1983) .........0-500 ee 3,8, 14, 15, 18

Police Department of Chicago v. Moseley,

I PEED Since cacecccccesccsccceccess 4, 17, 19, 20, 23

Project Vote v. Ohio Bureau of Employment Services,

578 F. Supp. 7 (S.D. Ohio 1982) .... 22... eee eee eee eee eee 11

Prune Yard Shopping Center v. Robins,

PE vnc ccccccccccersesvvescesecesceccnvers 18

Resnick vy. East Brunswick Township Board of Education,

3OD A. 2A S44 0N.F. 19TB) 0. ccc cece ccc ccccceececvececes 10

Saia v. New York City, 334 U.S. 558 (1948)... 2... eee 12

Schneider v. State, 308 U.S. 147 (1939) ...........50055 3, 8, 12, 15

ill

Shuttlesworth v. Birmingham, 394 U.S. 147 (1969) ........... 5, 22

Smith v. Goguen, 415 U.S. 566 (1974) ...............0005. 5, 7,22

Southeastern Promotions Ltd. v. Conrad,

se et od ee hs tole lo De 14, 23

Southside Estates Baptist Church v. Board of Trustees,

ee nen ee eC ean ee een N ee enebe 10

Spence v. Washington, 418 U.S. 405 (1974)... 2.06 eee eee 12

Thornhill v. Alabama, 310 U.S. 88 (1940)............. 5, 12, 22, 23

Tinker v. Des Moines Independent School District,

en mat emeneewh awed 7, 42

U.C. Nuclear Weapons Labs v. Lawrence Livermore Lab.,

201 Cal. Rptr. 837 (Cal. App. 1 Dist. 1984) ................... 11

U.S. Southwest Africa/Namibia Trade & Cultural Council

v. United States, 708 F. 2d 760 (D.C. Cir. 1983) ............... 8

United States Postal Service v. Council of Greenburgh

Civic Association, 453 U.S. 114(1981)....................2.. 14

Village of Schaumburg v. Citizens for a Better

Environment, 444 U.S. G20 (1980) .. ccc cc ccc cece ccceees 12

Whitney v. California, 274 U.S. 357 (1927) ..... 0... cc ee eee 7

Widmar v. Vincent, 454 U.S. 263 (1981) ..........- 0000 ee eee 14, 23

Other Sources

ue eae oe Rate uke ews 16

Ely, The Wages of Crying Wolf: A Comment on Roe

i eewenaceceaeenes 6

Potision Gar Weil OF COresOeGts . ww ccc ccc ccc cccccces 2, 6, 8, 16

re ee eae eaea ees 4, 9, 17, 18, 21

23, 24

G. Stone, L. Seidman, C. Sunstein and M. Tushnet,

SED 5.6.0 doe 66s dWavenbaatns<dsccséaser 6

iv

IN THE

Supreme Court of the Gnited States

October Term, 1986

No. 86-104

THE BOARD OF AIRPORT COMMISSIONERS OF

THE CITY OF LOS ANGELES, et al.,

Petitioners,

v.

JEWS FOR JESUS, INC., et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OP APPEALS FOR THE NINTH CIRCUIT

BRIEF OF THE RUTHERFORD INSTITUTE,

AND THE RUTHERFORD INSTITUTES OF ALABAMA,

COLORADO, CONNECTICUT, DELAWARE, FLORIDA,

GEORGIA, KENTUCKY, MICHIGAN, MINNESOTA,

MONTANA, PENNSYLVANIA, TENNESSEE, TEXAS,

VIRGINIA AND WEST VIRGINIA,

AMICI CURIAE, IN SUPPORT OF THE

RESPONDENTS

INTEREST OF AMICI CURIAE*

This case presents important issues concerning the free-

dom of speech for all Americans. The American tradition

of free and open discourse in public places has contributed

greatly to the success of our democracy. The Petitioners

would drastically restrict this freedom. Their First Amend-

ment theory would permit legislators to circumscribe

severely speech activities in virtually all public places save

parks, streets and sidewalks. This is not only inconsistent

with American tradition and this Court’s First Amend-

ment cases, but it also poses a grave threat to freedom of

*Counsel of record to the parties in this case have consented to the

filing of this brief and letters of consent have been filed with the Clerk

pursuant to Rule 36.

speech as we now know it in this country. The Rutherford

Institute is opposed to this attempt to restrict free speech

on generally accessible public property and believes that

the decision of the Court of Appeals should be forcefully

affirmed as fully consistent with the mandate of the First

Amendment.

Amici Curiae are non-profit religious corporations

named for Samuel Rutherford, a 17th-century Scottish

minister and rector at St. Andrew’s University. With state

chapters in Alabama, Colorado, Connecticut, Delaware,

Florida, Georgia, Kentucky, Michigan, Minnesota, Mon-

tana, Pennsylvania, Tennessee, Texas, Virginia and West

Virginia and its national office in Manassas, Virginia, the

Rutherford Institute undertakes to assist litigants and to

participate in significant cases relating to First Amend-

ment freedoms. Counsel for Amici Curiae have specialized

in litigation in state and federal courts and have partici-

pated as counsel for amici curiae in previous cases before

this Court. The Rutherford Institute believes the expertise

of its counsel will be of assistance to the Court in this case.

Statement Of Facts

The facts have been stipulated by the parties and are

found in Appendix | to the Petitioners’ Petition for a Writ

of Certiorari filed in this Court.

Summary of Argument

The theory advanced by the Petitioners in this case, if

sustained, will inevitably result in the reduction of count-

less numbers of public forums in this country and will

severely restrict the traditional marketplace of ideas. This

is so because under the Petitioners’ theory, legislative and

other governmental agencies would, in effect, be permit-

ted to restrict or regulate speech on virtually a// public

property, except parks, streets and sidewalks, in order to

accomplish governmental objectives. The problem with

this analysis is that it ignores five decades of this Court’s

decisions concerning the traditional public forum, as well

as hard facts about the speech in question, the nature and

characteristics of the forum involved and the justifica-

3

tions for exclusion of citizens from public property that, in

many instances, as in the present case, is free, open and

generally unhindered by governmental interference.

The Petitioners’ argument is based principally upon dic-

ta from three of this Court’s recent non-public forum

cases, Cornelius v. NAACP Legal Defense and Education

Fund, Inc. 105 S. Ct. 3439 (1985) (Combined Federal

Campaign is a non-public forum), City Council v. Tax-

payers for Vincent, 466 U.S. 789 (1984) (public utility

poles are non-public forum), and Perry Education Associ-

ation v. Perry Local Educators’ Association, 460 U.S. 37

(1983) (public school mail system is a non-public forum).

Seizing upon language from these opinions, the Peti-

tioners deduce that public property becomes a traditional

public forum—and therefore open for speech activities—

only if its principal purpose is the free exchange of ideas.

Because the principal purpose of an airport is air transpor-

tation and aid to the traveling public, and not the free ex-

change of ideas, it follows that it is not a traditional public

forum. Government may therefore restrict or regulate

speech activities in such a forum, or so the argument goes.

The defects in this reasoning are obvious from the

very nature and character of the forum in question. The

Central Terminal Area of Los Angeles International Air-

port is open to the general public on a twenty-four-hour

basis. Like parks, streets and sidewalks, the walkways,

lobbies and meeting areas of the Central Terminal Area

are municipal thoroughfares where groups of people

gather, congregate and traverse, places which are ‘‘natural

and proper’ for all kinds of protected expression.

Schneider v. State, 308 U.S. 147 (1939). This Court

should take judicial notice of the fact that countless

political and other rallies have been staged 1n airports and

other transportation terminals. Sports teams, public of-

ficials, public figures, world-renowned ballet companies,

symphonies and rock groups, and even fugitives—you

name it—have been variously welcomed, interviewed

and/or greeted at airports, whether by mass demon-

strations, high school bands, cheerleaders, fans, news

broadcasters or members of the general public. Even

the ordinary, predominant and diverse expression of in-

dividual travelers, spectators or greeters is no less similar

to or protected than the expression in which the Respon-

dents have sought to engage. It is clear, therefore, that

the general nature of the property in this case is not and

cannot be described as dedicated exclusively to air com-

merce and navigation. Rather, the nature of the property

and its compatibility with the types of expressive activities

carried on there suggest that the proper constitutional

status of the forum is in the nature of a traditional public

forum. Police Department of Chicago v. Moseley, 408

U.S. 92 (1972); Grayned v. City of Rockford, 408 U.S.

104 (1972).

The facts of this case, in any event, evidence a clear

governmental intent to establish a public forum. On the

one hand, Resolution No. 13787 bans ‘‘First Amendment

activities,’ but on the other, it gives tRe government

the right, in effect and practice, to advance speech that

in its opinion promotes air commerce and navigation.

Government becomes the arbiter of what topics and what

types of speech will be permitted in the airport. Thus,

commercial advertising, sale and distribution of printed

matter, T-shirt and clothing slogans, broadcast jour-

nalism, certain types of free literature distribution,

certain types of displays, the Christian Science reading

room, and other expressive activities are permitted by the

Petitioners.

It is axiomatic, and has been for decades under this

Court’s public forum cases, that government ‘‘may not

select which issues are worth discussing or debating in

public facilities....Once a forum is opened up to assembly

and speaking by some groups, government may not pro-

hibit others from assembly or speaking on the basis of

what they intend to say.”’ Police Department of Chicago v.

Moseley, 408 U.S. 92, 96 (1972). Any distinctions drawn

with regard to content or subject matter must be carefully

tailored to meet the asserted governmental objectives. The

distinctions drawn by the policy in this case are highly

subjective, overbroad, and suppress ‘‘undesirable’’

speech. As such, the policy is unconstitutional.

5

The policy also fails to give fair warning about the

kinds of expression that are permitted, and, owing to

its incurable ambiguity, is substantially overbroad and

unconstitutionally vague. A demonstration by air traffic

controllers in the Central Terminal Area about air traffic

safety would ostensibly promote air commerce and navi-

gation—-and yet it would also appear to be banned. An

offer of prayer to passengers facing flight in difficult

weather conditions would constitute aid to the traveling

public. And yet, this too would appear to be banned.

In short, the policy prohibits a broad range of protected

expressive conduct. Moreover, it is not clear what is

and what is not permitted, leaving the public in a quandry

and permitting officials to pursue their personal pre-

dilections with respect to what speech affects air com-

merce and navigation, and thus what will or will not be

permitted speech. Smith v. Goguen, 415 U.S. 566, 575

(1974); Thornhill v. Al:bama, 310 U.S. 88 (1940); Shut-

tlesworth v. Birmingham, 394 U.S. 147 (1969). For these

reasons, the policy implemented by the Resolution chills

the exercise of First Amendment rights because of its over-

breadth and vagueness.

ARGUMENT

I.

Petitioners’ First Amendment Theory Presents

A Threat To Free Speech Generally And Should

Be Unequivocally Rejected As Inconsistent With

The First Amendment And This Court’s Cases

Interpreting The First Amendment.

The overriding issue in this case is, plainly and simply,

how free will speech be in this country. Petitioners have

seized upon language in this Court’s recent opinion in

Cornelius v. NAACP Legal Defense and Educational

Fund, Inc., 105 S. Ct. 3439 (1985), as grounds to impose

‘speechless’? zones on otherwise generally accessible

public property. The Petitioners argue that unless a par-

ticular public property has as its ‘‘principle [sic] purpose’’'

the free exchange of ideas, such property is not a tradi-

tional public forum and speech thereon may be restricted

and/or otherwise regulated by legislative fiat. Applied to

the facts of this case, the Petitioners’ theory holds that

because airport terminal facilities have as their ‘‘principle

[sic] purpose the promotion of air transportation and aid

to the traveling public’? and not the free exchange of

ideas, they are not a traditional public forum.

Petitioners’ argument is delusively simple. ‘‘It mistakes

a definition for a syllogism.’’* Carried to its rational end,

speech on virtually all publicly owned property could be

eliminated by legislative act, save parks, streets and side-

walks. Indeed, even the latter would have difficulty sur-

viving Petitioners’ test since their ‘‘principal purpose”’ is

to facilitate recreation and/or vehicular or pedestrian traf-

fic. Parks, streets and sidewalks are rescued only by the

explicit language of this Court’s precedents (‘‘the titles of

streets and parks...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

between citizens, and discussing public questions’’*).

Petitioners’ theory is not only mistaken, but it also ignores

the values inherent in the First Amendment: (1) the idea

that men and women are free to express their thoughts in

order to enhance their personal growth and self-realization,

(2) the concept of a free marketplace of ideas, (3) the

safety-valve theory, and (4) the idea that our Founders did

not exalt order at the cost of fundamental rights. For a

scholarly summation of the values underlying the First

Amendment, see G. Stone, L. Seidman, C. Sunstein and

M. Tushnet, Constitutional Law, 931-937 (1986); see also

‘See Petitioners’ Petition for Writ of Certiorari at 8.

"Id. at 9.

*The words are Dean Ely’s used in another context. See Ely, The

Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J.

920, 924 (1973).

“Hague v. CIO, 370 U.S. 496, 515 (1939). See also Schneider vy.

State, 308 U.S. 147, 163 (1939); Amalgamated Food Employees Union

Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 315 (1968).

Whitney v. California, 274 U.S. 357, 375-377 (1927)

(Brandeis, J. concurring).

The likely result of Petitioners’ novel constitutional

theory is a tragic and enormous reduction of countless

public forums that have been traditionally used by, among

others, the holders of unpopular, disturbing or noncon-

forming viewpoints. The prevailing consensus has always

been uncomfortable with controversial speech, be it

religious, political or social. Consider, for example, the

facts in Cantwell v. Connecticut, 310 U.S. 296 (1940) (pro-

vocative religious speech in Catholic neighborhood), or

Tinker v. Des Moines Independent School District, 393

U.S. 503 (1969) (Vietnam protest in public school setting),

or Cohen v. California, 403 U.S. 15 (1971) (‘‘F__CK the

Draft’’ protest sewn on jacket worn in public court house)

or Smith v. Goguen, 415 U.S. 566 (1974) (American flag

sewn on seat of trousers). Given the proclivity of legisla-

tive and bureaucratic agencies to reflect conventional or

prevailing views, the creation of ‘‘speechless’’ zones would

be too tempting to officials who prefer, for reasons often

unknown, to avoid any confrontation with unpopular,

disturbing, or nonconforming viewpoints that are incon-

venient or unpleasant to accommodate.

Not only will the inevitable reduction of numerous

public forums restrict the traditional marketplace of

ideas, but the wholesale rollback will also disproportion-

ately burden speakers and groups lacking the money,

popularity or charisma necessary to command attention in

the few remaining forums or secure coverage by the

media. It follows that Petitioners’ denial of arnple access

for speakers attempting to reach the traveling public may

even encourage activities that are potentially more disrup-

tive in airports, such as civil disobedience, particularly

over pressing issues of the day. It is well to recall Brandeis’

admonition that ‘‘[t]hose who won our independence”’

knew that the ‘‘path of safety’’ lies in free discussion.

Whitney v. California 274 U.S. at 375 (Brandeis, J. con-

curring).

Petitioners’ theory is grounded largely in dicta contained

in the Cornelius majority opinion, echoing similar dicta

from two prior cases, City Council v. Taxpayers for Vin-

cent, 466 U.S. 789 (1984) and Perry Education Association

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

Stare decisis takes on a distorted meaning when the Peti-

tioners, who ironically accuse the Court of Appeals of dis-

regarding ‘‘the essential holdings of this Court,’’* choose

to rely primarily upon three cases which involved forums

that are a far cry from traditional speech in a traditional

public forum—i.e., the Combined Federal Campaign, util-

ity poles and a school mail system. This Court should,

therefore, categorically reject Petitioners’ constitutional

theory, which—applying dicta from cases with signif-

icantly different facts—constructs a fictional wonderland

where constitutional rights are sacrificed for fine legal

distinctions that bear little, if any, relationship to reality.°

No doubt ‘‘speechless’’ zones may be created on certain

government property with greatly restricted public access,

such as jails, mail systems or military bases. However, the

*See Petition for Writ of Certiorari at 7.

*As Judge Arlin Adams astutely observed in a public forum case in-

volving a public stadium:

I am concerned that an analysis which relies too heavily on

whether an area, such as a shopping center or sports com-

plex, has traditionally been regarded as a public forum

fails to come to grips with the fact that legal concepts need

to evolve to reflect underlying social realities.

ISKON v. New Jersey Sports and Exposition Authority, 691 F. 2d 155

(3rd Cir. 1982) (Statement of Circuit Judge Adams sur denial of peti-

tion for rehearing). Compare, Lehman v. City of Shaker Heights, 418

U.S. 298 (1974) with U.S. Southwest Africa/Namibia Trade &

Cultural Council v. United States, 708 F. 2d 760 (D.C. Cir. 1983).

The three recent cases cited by Petitioners were not intended by this

Court as a retreat to Justice Holmes’ anachronistic view of the public

forum that ‘‘the right to absolutely exclude all right to use [public pro-

perty] necessarily includes the authority to determine under what

circumstances such use may be availed of, as the greater power con-

tains the lesser.’’ Davis v. Commonwealth, 167 U.S. 43, 48 (1897),

affirming Commonwealth v. Davis, 162 Mass. 510 (1895). That view

has not survived this Court’s determination that certain places are

**natural and proper places for the dissemination of information and

opinion.’’ Schneider v. State, 308 U.S. 147, 163 (1939).

Petitioners read Cornelius to permit any governmental

agency to legislate the scope of speech activity on virtually

any public property even though the general public has

access to and uses the property on a free and unrestricted

basis. The Petitioners’ own policy illustrates the inherent

unconstitutionality of such legislation. On the one hand,

Petitioners have resolved that ‘‘the Central Terminal Area

at Los Angeles International Airport is not open for First

Amendment activities by any individual and/or entity.”’

See Resolution No. 13787. On the other hand, they have

resolved that the Central Terminal Area ‘‘is only to be

used for the promotion and accommodation of air com-

merce and air navigation or uses incidental thereto.’’ Jd.

Although Resolution No. 13787 ostensibly imposes an

absolute ban on all ‘‘First Amendment activities,’’ the ex-

ception it carves out, in the name of promoting air com-

merce and air navigation, permits the Petitioners to pick

and select among types of speech of which they approve

and sanction. Thus, the Petitioners allow commercial adver-

tising, T-shirt and clothing slogans, literature distribution at

‘‘Olympic Family’’ information booths, broadcast speech,

displays on international trade of plants and animals, the

Christian Science reading room, printed literature for sale,

children’s artwork and the limitless other kinds of spon-

taneous speech activities—not unlike that engaged in by

the Respondents—that occur in a public place with unre-

stricted access. This constitutional shell game allows govern-

ment to approve speech in furtherance of its objectives

while engaging in the fiction of imposing a ‘‘ban’’ on

‘*First Amendment activities’? of which it does not

approve, a curious bit of ‘‘double speak’’ that should not

be countenanced or sanctioned by this Court.

No government should be the arbiter of what is desir-

able or acceptable speech on generally used, open and

readily accessible public property. Unless governmental

power in such areas is narrowly limited to the advance-

ment of especially important state objectives in a manner

that constitutes the least restrictive infringement of First

Amendment rights, the door is wide open for censorship.

Free speech in facilities open and accessible to the general

10

public ought not to be redefined in accordance with the ma-

jority’s view of what messages are worthy, otherwise making

the First Amendment a virtual nullity. Surely, this was not

the intended result of the Court’s reasoning in Cornelius.

The issue presented in this case is not novel or wanting

in precedent. Indeed, it has been presented numerous times

and thoroughly considered and decided by various lower

Federal and State courts. Well nigh universally, these

courts have refused to uphold restrictions of the nature

sought to be imposed by Petitioners. This well-established

and well-considered line of precedents should not be arro-

gantly disregarded—as the Petitioners have suggested—as

‘‘out-dated and often times incorrect lines of case author-

ity,’’ but instead should be accorded the respect and

weight that are due the cumulative wisdom of decades of

litigation.

In virtually all of these lower court decisions, annoyance

and inconvenience, or speculation about the effect of free

speech on governmental efficiency or revenues have uni-

formly been rejected as justifications for restricting free

speech activities where the governmental facilities were

readily accessible to and used by the general public. These

holdings by the Court of Appeals and other lower Federal

and State courts represent an application of public forum

principles that is more sensitive to First Amendment

values than that advanced by Petitioners.

In addition to the 16 cases cited in the Respondents’

Brief in Opposition to the Petition for a Writ of Certior-

ari, 14 other cases which generally uphold the line of

reasoning of the Court of Appeals in other contexts are

cited below for reference: Southside Estates Baptist

Church v. Board of Trustees, 115 So. 2d 697 (Fla. 1959)

(religious use of public school facilities); National Socialist

White People’s Party v. Ringers, 473 F. 2d 1010 (4th Cir.

1973) (racist, anti-semitic group’s use of public school

facilities); Hennessey v. Independent School District No. 4,

Lincoln County, 552 P. 2d 1141 (Okla. 1976) (PTA use of

public school facilities); Resnick v. East Brunswick Town-

*See Petition for Writ of Certiorari at 6.

ship Board of Education, 389 A. 24 944(N.J. 1978) (church

use of public school facilities); Knights of KKK v. East

Baton Rouge School Board, 578 F. 2d 1122 (Sth Cir. 1978)

(KKK use of public school facilities); Jaffe v. Alexis, 659 F.

2d 1018, (9th Cir. 1981) (Krishna speech and solicitation at

California DMV office); Dallas Association of Community

Organizations for Reform v. Dallas County Hospital Dis-

trict, 670 F. 2d 629 (Sth Cir. 1982) (literature distribution in

public hospital); Project Vote v. Ohio Bureau of Employ-

ment Services, 578 F. Supp. 7 (S.D. Ohio 1982) (promotion

of voter registration at state unemployment office);

American Future Systems, Inc. v. Pennsylvania State

University, 568 F. Supp. 666 (M.D. Pa. 1983) (solicitation

in state university student dormitories); Country Hills

Christian Church v. Unified School Dist. No. 512, 560 F.

Supp. 1215 (D. Kan. 1983) (use of public school facilities by

church); NewYork City Unemployed and Welfare Council

v. Brezenoff, 742 F. 2d 718 (2nd Cir. 1984) (solici-

tation of membership by welfare rights organization in

public welfare office); U.C. Nuclear Weapons Labs v.

Lawrence Livermore Lab., 201 Cal. Rptr. 837 (Cal. App. 1

Dist. 1984) (literature display and auditorium access in

government nuclear weapons lab visitor center); Cinevision

Corporation v. City of Burbank, 745 F. 2d 560 (9th Cir.

1984) (access to municipally owned amphitheatre); and

Carreras v. City of Anaheim, 768 F. 2d 1039 (9th Cir. 1985)

(solicitation at city stadium). The weight of reasoning con-

tained in the 16 cases cited by the Respondents and the 14

cases cited above should be accorded proper respect in this

Court’s consideration of the present case.

The Central Terminal Area Of Los Angeles

International Airport Is A Traditional Public

Forum Subject Only To Reasonable Time, Place

And Manner Restrictions.

As previously stated, the most recent decision of this

Court with respect to the ‘‘public forum’’ doctrine is

12

Cornelius v. NAACP Legal Defense and Educational

Fund, Inc., 105 S. Ct. 3439 (1985), holding that the Com-

bined Federal Campaign constituted a ‘‘non-public’’—as

opposed to ‘“‘traditional’’ or ‘‘limited’’—public forum.

Although the nature of the ‘‘forum’’ in Cornelius was

drastically and significantly different from the forum in

this case, Cornelius does set forth a framework for

analysis in its summary of public forum principles this

Court has applied in such cases. The holding in Cornelius

was based upon an analysis of several factors*(1) whether

the speech in question was protected speech, (2) the nature

of the forum and its public or non-public characteristics

and (3) the justification for exclusion from the relevant

forum viewed against the requisite constitutional standard

applicable to that type of forum. /d. at 3446-3447.

A. Nature Of The Speech

The initial inquiry is to determine whether the speech in

question is protected speech. There can be little question

that the Respondents’ speech activities are protected by

the First Amendment. The Petitioners do not dispute the

assertion that such activities constitute protected speech.

In any event, this Court’s cases on picketing,* leafleting,’

and solicitation,'® as well as cases governing speech by

conduct'' in public settings, are too numerous and exten-

sive to deny that speaking and leafleting in a public place

*‘would reasonably be understood by the viewer as com-

municative,’’ Clark v. Community for Creative Non-

Violence, 468 U.S. 288, 294 (1984), and, therefore, speech

protected by the First Amendment.

*Thornhill v. Alabama, 310 U.S. 88 (1940); Edwards v. South

Carolina, 372 U.S. 229 (963).

*Schneider v. State, 308 U.S. 147 (1939); Martin v. Struthers, 319

U.S. 141 (1943); Saia v. New York City, 334 U.S. 558 (1948).

‘Village of Schaumburg v. Citizens for a Better Environment, 444

U.S. 620 (1980); Cornelius, 105 S. Ct. 3439 (1985).

''Spence v. Washington, 418 U.S. 405 (1974); Tinker v. Des Moines

Independent School District, 393 U.S. 503 (1969).

13

LABLE COPY

B. The Relevant Forum

There being protected speech in this case, it becomes

necessary to determine the relevant forum. Cornelius

determined that ‘‘a speaker must seek access to public

property or to private property dedicated to public use to

evoke First Amendment concerns....’’ Cornelius, 105 S.

Ct. at 3449. Moreover, this Court, in Cornelius, recog-

nized that ‘‘[w]hen speakers seek general access to public

property, the forum encompasses that property.”’ /d.

In this case, Respondents sought to speak and distribute

literature inside the Central Terminal Area in areas and

places that were open to the general public without restric-

tion or limitation. Importantly, they did not seek access

for speech purposes in rented spaces, or in office areas or

in airline employee lounges or other restricted spaces, or in

restaurants, stores or shops, or in restricted operational

areas or other forums on the property constituting the Los

Angeles International Airport. Rather, they sought access

only to the walkways and open spaces of the Central Ter-

minal Area—areas that were free and open to the public

with little or no restriction and characterized by open and

free expression. The relevant forum in this case—‘‘tailored’”’

to ‘‘the perimeters of a forum within the confines of

government property’’—encompasses only the free and

open areas of the Central Terminal Area. Cornelius, 105

S. Ct. at 3449.

C. The Nature Of The Forum

The next inquiry is to determine the nature and char-

acteristics of the forum. If the Central Terminal Area is a

‘*traditional’’ public forum, then exclusion of Respon-

dents on the basis of the subject matter of their speech

can occur ‘‘only when the exclusion is necessary to

serve a compelling state interest and the exclusion is

narrowly drawn to achieve that interest.’’ Cornelius, 105

S. Ct. at 3448. If the Central Terminal Area is a ‘‘desig-

nated’’ public forum, i.e., a non-traditional forum opened

by intentional governmental policy, any exclusion is

14

governed by the same standard as the traditional public

forum. Perry Education Association v. Perry Local Edu-

cators’ Association, 460 U.S. 37, 46 (1983). Finally, if the

Central Terminal Area is a non-public forum, access “‘can

be restricted as long as the restrictions are ‘reasonable’ and

[are] not an effort to suppress expression merely because

public officials oppose the speaker’s views.’’'? Cornelius,

105 S. Ct. at 3448, citing Perry, 460 U.S. at 46.

In its review of the relevant precedents, this Court in

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

(university campus), Madison School District v. Wiscon-

sin Employment Relations Commission, 429 U.S. 167

(1976) (school board meeting) and Southeastern Promo-

tions Ltd. v. Conrad, 420 U.S. 546, 555 (1975) (municipal

auditorium) as cases having ‘‘many characteristics of a

traditional public forum’’ and evidencing a clear govern-

ment intent to create a public forum, in part from the

nature of the meetings involved and the design, dedication

and actual use of the property involved. Cornelius, 105 S.

Ct. at 3449-3450. Per contra, the Cornelius majority viewed

United States Postal Service v. Council of Greenburgh

Civic Association, 453 U.S. 114 (1981) (mail system),

Jones v. North Carolina Prisoners’ Labor Union, 433

'2Perry, of course, expounded a three-tier public forum analysis

drawn from the Court’s prior decisions. These include: (1) streets,

parks, sidewalks and the like that are traditionaily public forums; (2)

‘*place(s) or channel(s) of communication’’ created by government

designation for assembly and speech, for use by certain speakers or

for the discussion of certain subjects and (3) non-public forums,

created by government, but not open except pursuant to reasonable

government policies. See Cornelius, 105 S. Ct. at 3449.

Perry implicitly and Cornelius explicitly suggest that the second-tier

‘‘designated”’ or ‘‘limited’’ public forum arises not from government

inaction or permitting limited discourse, ‘‘but only by [government]

intentionally opening a non-traditional forum for public discourse.’’

Id.; Perry, 460 U.S. at 47. Thus, Cornelius appears to go beyond

Perry to hold that explicit government policy and practice are para-

mount in ascertaining whether government intends to create a ‘‘desig-

nated’’ public forum. Nevertheless, ‘‘the nature of the property’’ and

its ‘compatibility with expressive activity’’ are also particularly rele-

vant in discerning the government’s intent to create a forum. Cor-

nelius, 105 S. Ct. at 3449.

15

U.S. 119 (1977) Gail), Lehman vy. City of Shaker Heights,

418 U.S. 298 (1974) (bus advertising space), Greer v.

Spock, 424 U.S. 828 (1976) (military base), Adderley v.

Florida, 385 U.S. 39 (1966) (jail) and, indeed, Perry itself

(mail system), as cases with non-public forums resulting

from a government policy denying general public access,

requiring permission for use and seeking to avoid disrup-

tive effects that might arise if general access were given.

Applying these principles to the present case, it should

first be observed that an airport ierminal with a free flow

of traffic and robust and varied expression, both oral and

written, is more akin to a park, street or sidewalk than

even a university campus, school board meeting or munici-

pal auditorium, let alone the Combined Federal Campaign,

an amorphous school mail system, a jail, a military base or

advertising space on city transit buses. Like public streets

and sidewalks, the Central Terminal Area walkways, lob-

bies and meeting places are areas where large groups of

people gather, congregate and traverse, places which, in

this Court’s words, are ‘‘natural or proper’’ for all kinds

of protected expressive activities, including the dissemina-

tion of information and opinion. Schneider v. State, 308

U.S. 147, 163 (1939).

Likewise, speech in the Central Terminal Area is tradi-

tional speech activity—varied in its manifestations, soft,

loud, vibrant or robust, but, in any event, generally

uninhibited. Except there were government censorship of

certain speech in the Central Terminal Area, it is difficult

to imagine a setting in which more diverse speech could be

found. Indeed, it is legitimate to ask whether transporta-

tion terminals and other similar public facilities open to

the general public on a twenty-four-hour basis are not, in

the context of modern society and the technological revo-

lution, in many respects the sidewalks and parks of the

modern era—i.e., functionally equivalent places where

ciowds and people congregate and traverse and carry on

all sorts of dialogue relating not only to the setting or the

events being held, but to issues of the day as well.

The Petitioners argue that ‘‘[a]n airport does not have

as a principal purpose, a long tradition of or a dedication

16

to public assembly and debate.’’ See Brief for the Peti

tioners at 15. This is simply not true. This Court can take

judicial notice that countless political and other rallies

have been staged at airports and other transportation ter-

minals. Sports teams, public officials, public figures, world-

renowned ballet companies and symphonies, rock groups,

fugitives—you name it—have been variously welcomed,

interviewed and/or greeted at airports, whether by mass

demonstrations, high school bands, cheerleaders, fans,

news broadcasters or members of the general public.

These speech and assembly uses and activities are simply

part of the territory. As such, public transportation ter-

minals are no less traditionally dedicated to assembly and

debate than are streets and sidewalks. By their very nature,

their purpose is not—and, indeed, cannot be—exclusively

transportation or aid to the traveling public.

Petitioners also raise the spectre that, if the Respon-

dents prevail, every government building will become a

traditional public forum, with government never able to

restrict facilities to their intended purposes. See Brief for

the Peiitioners at 15, 22 and 26. Experience alone shows

that this parade of horribles is not true. Governments do

restrict—and, indeed, the Petitioners have restricted—access

to their property. For example, the Stipulation of Facts in

this case states that one part of the Los Angeles Interna-

tional Airport is ‘‘the restricted or ‘field side’ area con-

taining runways, taxiways, airline maintenance and cargo

facilities, aircraft loading ramps and various aircraft ser-

vice facilities....’’ See Stipulation of Facts, paragraph 4,

Appendix | to Petition for Writ of Certiorari. There is no

contest—nor is there any doubt—that the Petitioners can

and do restrict access to these facilities. Likewise, govern-

ments everywhere can and do restrict access to a legion of

government property—including all or a portion of hall-

ways in the building housing this Court and countless

other government buildings in this country. This restricted

access is not only for security reasons, but also because

First Amendment expression in such areas ‘‘is basically in-

compatible with the normal activity of [those] particular

places at [those] particular time[s].’’ Grayned v. City of

17

Rockford, 408 U.S. 104, 116 (1972). Moreover, unlike the

present case, access to such property is restricted without

regard to the content or subject matter of the speech in

question. In other words, public facilities would not

become ‘‘Hyde Parks open to every would-be pamphleteer

and politician’’ (Lehman vy. Shaker Heights, 418 U.S.

298, 304 (1974)) unless there was a proper determination

that free speech activities were compatible with the

nature of the forum and there was no justification for

exclusion.

The normal activity of the Central Terminal Area is, of

course, to obtain transit by air, but the size, diversity and

freedom of the forum by definition produce an amalgam

of expression. This includes not only the speech activities

permitted by the Petitioners, but also the spontaneous,

demonstrative, interactive, spectative, vigorous and exu-

berant speech of terminal users, all unhindered by govern-

ment interference (except for the proposed selective en-

forcement of Petitioners). The nature of the government

property and its compatibility with the types of expressive

activities carried on there suggest, therefore, as the Court

of Appeals concluded, that the proper constitutional

status of the forum is in the nature of a traditional public

forum. Police Department of Chicago v. Moseley, 408

U.S. 92 (1972); Grayned v. City of Rockford, 408 U.S.

104, 116 (1972).

The Central Terminal Area Of Los Angeles

International Airport Is A Designated Public

Forum In Which Respondents May Not Be

Selectively Excluded On The Basis Of The

Subject Matter Or Content Of Their Expression.

Whether or not the Zentral Terminal Area is a traditional

public forum, the facts in this case, in any event, evidence

a clear government intent to establish a public forum. As

previously stated, although Resolution No. 13787 osten-

sibly bans all First Amendment activities, it nevertheless

18

permits a wide range of activities that promote and accom-

modate air commerce and air navigation. These latter activi-

ties apparently include, by Petitioners’ practice, commercial

advertising, T-shirt and clothing slogans, broadcast jour-

nalism, certain types of literature distribution, certain types

of displays, the Christian Science reading room, printed

literature for sale and other expressive activity which, in the

opinion of the Petitioners, purportedly advance air com-

merce and navigation. Moreover, but for Petitioners’ newly

adopted policy, the custom in the Central Terminal Area

for over 10 years has been to permit virtually a// First

Amendment activities. In this context, where the state has

expressly and intentionally—by policy and practice—opened

up a forum, it cannot at the same time exclude certain types

01 speech based on content or subject matter.'’

Clearly, the large number of exceptions to the ban imposed

by Resolution No. 13787 are content based. The official deci-

sion as to whether a message accommodates air navigation

and commerce or aid to the traveling public depends ulti-

mately on an evaluation of the message’s content and effect

on ‘‘commerce.”’ It is incredible to suppose that the censor-

ship practiced at the Los Angeles International Airport is

unrelated to the suppression of ideas or that it is ideologi-

cally neutral. Indeed, countless sets of messages are proscribed

based on an evaluation of whether they advance a topic

having some tenuous connection with traffic congestion,

intrusiveness or some other purpose articulated as a justi-

fication for the Petitioners’ restriction on protected speech.

''Dicta in Perry and Cornelius may be read to allow government to

restrict speech in designated public forums that is dissimilar in kind from

speech designated by government as permissible. Assuming the point

arguendo, the religious speech of Respondents in this case is sufficiently

similar to the religious message of the Christian Science reading room as

to prevent any exclusion of Fespondents’ speech. Moreover, First

Amendment distinctions should not be made to depend upon the finan-

cial ability of a speaker to rent space in the designated public forum.

Finally, if Petitioners are implying that airport officials have the same

rights as private property owners to restrict speech on their property, this

Court has already held that owners of private property in California do

not have the constitutional right to suppress the dissemination of pam-

phlets. See Prune Yard Shopping Center v. Robins, 447 U.S. 74 (1980).

19

The First Amendment’s hostility to content-based

regulation extends to bans that prohibit ‘‘public discussion

of an entire topic.’’ Consolidated Edison Co. v. Public

Service Commission of New York, 447 U.S. 530, 537

(1980). Content-based discrimination is not rendered ‘‘any

less odious’’ because it distinguishes ‘‘among entire classes

of ideas, rather than among points of view within a

particular class....’’ Lehman v. City of Shaker Heights,

418 U.S. 298, 316 (1974) (Brennan, J., d' senting).

Moreover, content-based bans that pre*:r commercial

speech over political, religious or other expression cannot

survive judicial scrutiny under the principles of Metro-

media, Inc. v. San Diego, 453 U.S. 490 (1981) (A content-

based distinction that affords greater access to commercial

speech over non-commercial speech is an impermissible

distinction). For a content-based restriction to survive

strict judicial scrutiny, the government has a strong

burden of persuasion to show that its restriction is

**precisely tailored,’’ neither over-inclusive nor under-

inclusive, and that a no less discriminatory classification

is practicable for furthering its bona fide compelling

purposes. See Police Department of Chicago v. Moseley,

408 U.S 92 (1972); Carey v. Brown, 447 U.S. 455

(1980); Erznoznik v. City of Jacksonville, 422 U.S. 205

(1975).

The present ban has been justified on several grounds:

(1) congestion and impeded flow of passenger traffic, (2)

incompatibility with the character and function of the

Central Terminal Area and (3) unwanted and disruptive

intrusions caused by the speech in question. None of these

grounds supports an absolute and virtually total ban on so

many First Amendment activities, particularly when the

Petitioners permit similar activities which in fact cause or

contribute to the same problems. For example, television

broadcasts in the Central Terminal Area generate as much

Or more congestion than prosyletizing ever would. The

Christian Science reading room is no less compatible with

the character and function of the Central Terminal Area

than a sole individual distributing written leaflets reflec-

ting other religious views. Moreover, a person who is a

20

witness to his faith is no more disruptive or intrusive than

an off-color commercial advertisement or a loud, raucous

crowd welcoming home an athletic team, or an offensive

passenger boasting rashly of a football victory. And yet,

the Petitioners would somehow censor the former because

it is, in their opinion, ‘‘non-airport related speech,’’ what-

ever that means.

The restrictions in this case are thus not precisely

tailored. They are over-inclusive and under-inclusive and

discriminate unevenly between governmentally favored and

non-favored expression. Police Department of Chicago v.

Moseley, 408 U.S. 92 (1972); Carey v. Brown, 447 U.S.

455 (1980); see also Niemotko v. Maryland, 340 U.S. 268

(1951) (Denial of park access to Jehovah’s Witnesses but

no other fraternal organizations violates freedom of

speech guarantee). Generally ‘‘[sJelective exclusions from

a public forum may not be based on content alone, and

may not be justified by reference to content alone.’”’ Police

Department of Chicago v. Moseley, 408 U.S. at 96.

This Court has only recently reaffirmed ‘‘the fundamen-

tal principle that underlies [its] concern about ‘content-based’

speech regulations’’ in City of Renton v. Playtime Theatres,

Inc. 106 S. Ct. 925, 929 (1986), indicating that ‘‘govern-

ment may not grant the use of a forum to people whose

views it finds acceptable, but deny use to those wishing to

express less favored or more controversial views.’’ Police

Department of Chicago v. Moseley, 408 U.S. at 95-96. In

sum, ‘‘any content-based regulation that is justified by a

compelling state interest also must be narrowly drawn and

must constitute the /east restrictive means of furthering the

governmental interest.’’ Cinevision Corporation v. City of

Burbank, 745 F. 2d 560, 571 (9th Cir. 1984) cert. den. ____

U.S. , 105 S. Ct. 2115 (1985) (emphasis added). The

Petitioners’ policy must, therefore, fail as an impermissible

content control. As this Court stated in Police Department

of Chicago v. Moseley, 408 U.S. 92, 96 (1972):

Necessarily, then, under the Equal Protection

Clause, not to mention the First Amendment itself,

government may not grant the use of a forum to

21

people whose views it finds acceptable, but deny

use to those wishing to express less favored or

more controversial views. And it may not select

which issues are worth discussing or debating in

public facilities. There is an ‘‘equality of status in

the field of ideas,’’ and government must afford

all points of view an equal opportunity to be

heard. Once a forum is opened up to assembly or

speaking by some groups, government may not

prohibit others from assembling or speaking on

the basis of what they intend to say. Selective ex-

clusions from a public forum may not be based

on content alone, and may not be justified by

reference to content alone.

The case law is clear that government policy restricting

speech on the basis of content or subject matter must be

evenhanded. Any distinctions drawn with regard to con-

tent or subject matter must be carefully tailored to meet

the asserted governmental objective, which must also serve

a legitimate public interest. The distinctions drawn by the

policy in this case are highly subjective, overbroad and

aimed at suppressing ‘‘controversial’’ speech. As such, the

policy is unconstitutional.

IV.

The Imprecisely Worded Resolution Fails To

Give Persons Seeking Access To The Public

Forum Fair Warning About The Kinds Of

Expression That Are Permitted, And Owing To

Its Incurable Ambiguity, Is Substantially

Overbroad And Unconstitutionally Vague.

The Resolution in question is void for vagueness

because it does not give fair warning as to what expression

will be permitted. For example, a demonstration or leaf-

leting by air traffic controllers in the Central Terminal

Area about air traffic safety would ostensibly promote air

commerce and navigation and would be compatible with

22

the character and function of the Central Terminal Area;

so too, would an offer by the Respondents of prayer with

passengers facing flight in difficult weather conditions.

Likewise, the offer of free literature to read during flight

would promote air commerce and navigation as much as

the commercial sale of such literature. And yet, all of these

activities are obstensibly banned.

In First Amendment cases, the void for vagueness stan-

dard is unusually strict. Hoffman Estates v. Flipside, Hoff-

man Estates, 455 U.S. 489, 499 (1982). (‘‘If...the law in-

terferes with the right of free speech or association, a more

stringent vagueness test should apply.’’) A statute can be

unconstitutionally vague on its face even if it is not vague

in all of its permissible applications, Kolender v. Lawson,

461 U.S. 352, 358-359 n. 8 (1983), especially when, as in

the instant case, the absence of sufficient guidelines allows

various governmental officials to ‘‘pursue their personal

predilections.’”’ Smith v. Goguen, 415 U.S. 566, 575

(1974); cf. Shuttlesworth v. Birmingham, 394 U.S. 147,

150-151 (1969) (Statute’s uncertain reach delegates to offi-

cials standardless discretion which permits unjustified sup-

pression of First Amendment freedoms in the public forum).

In the instant case, as in Lovell v. Griffin, 303 U.S. 444

(1938), since no attempt was made to tailor the restrictions

to a substantive evil unrelated to the suppression of ideas,

the Resolution creates an unacceptable risk that it will be

used to suppress speech. In Thornhill v. Alabama, 310

U.S. 88 (1940), the Court concluded that the very existence

of some broadly written statutes may have such a deterrent

effect on free expression, and should, theretore, be subject

to challenge even by a party whose own conduct may be

unprotected. See also Gooding v. Wilson, 405 U.S. 518

(1972); Lewis v. City of New Orleans, 415 U.S. 130 (1974).

As the Court stated in the Thornhill case:

It is not merely the sporadic abuse of power by

the censor but the pervasive threat inherent in its

very existence that constitutes the danger to free-

dom of discussion....The existence of...a statute,

which readily lends itself to harsh and discrimina-

23

tory enforcement by local prosecuting officials,

against particular groups deemed to merit their

displeasure, results in a continuous and passive

restraint on all freedom of discussion that might

reasonably be regarded as within its purview.

Thornhill v. Alabama, 310 U.S. at 97-98.

The challenged Resolution is invalid on its face. Even

if a more narrowly drawn time, place and manner restric-

tion could be applied, in some circumstances, to the

Respondents, it is facially invalid because of its vague-

ness, and because ‘‘it seeks to prohibit such a broad range

of protected conduct that it is unconstitutionally over-

broad.”’ City Council v. Taxpayers for Vincent, 466 U.S.

789, 796 (1984). Moreover, there is ‘‘no readily apparent

construction [that] suggests itself as a vehicle for

rehabilitating [it].....’ Dombrowski v. Pfister, 380 U.S.

479, 491 (1965). Finally, the number of impermissible ap-

plications will no doubt dwarf the number of permissible

applications of the Resolution, which ‘‘has the potential to

repeatedly chill the exercise of expressive activity by many

individuals....’” New York v. Ferber, 458 U.S. 747, 772

(1982).

CONCLUSION

The context of the public property in this case is in the

nature of a traditional public forum or a designated public

forum in which the state may not censor or draw distinc-

tions with respect to the content of speech. See Police

Department of Chicago v. Moseley, 408 U.S. 92 (1972);

Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546

(1975); Madison School District v. Wisconsin Employ-

ment Relations Commission, 429 U.S. 167 (1976); Carey

v. Brown, 447 U.S. 455 (1980); and Widmar v. Vincent,

454 U.S. 263 (1981). The speech activity in those cases, as

in the present case, was not only traditional speech activ-

ity, but was also subjected to the same type of discrimina-

tory treatment, censorship and, perhaps, animus that has

been directed at Respondents’ message. This sort of unequal

24

treatment of ideas was not permitted to stand in those

cases, nor should it be in this case.

Whether or noi this Court determines the Central Ter-

minal Area to be a traditional public forum, it is inexorably

one by designation. The Resolution evidences a clear in-

tent to create a public forum. Moreover, there is no other

valid basis, such as disruption or inconvenience, to justify

the exclusion of Respondents when other speech activities

having the same effects are permitted. The Petitioners’

justifications do not add up to a particularized, com-

pelling state goal that justifies overbroad, unnecessary and

selectively hostile restrictions on protected expression and

association.

Perhaps one person’s speech is another person’s blas-

phemy. Nevertheless, in one of the Supreme Court’s

earliest cases, Cantwell v. Connecticut, 310 U.S. 296, 310

(1940), this Court stated:

In the realm of religious faith, and in that of

political belief, sharp differences arise. In both

fields the tenets of one man may seem the rankest

error to his neighbor. [Bitter controversies may

occur but] the people of this nation have ordained

in the light of history, that, in spite of the pro-

babilities of excesses and abuses...these liberties

are, in the long view, essential to the enlightened

opinion and right conduct on the part of the citi-

zens of a democracy.

In short, ‘‘...a State may not unduly suppress free commu-

nication of views, religious or other, under the guise of

conserving desirable conditions.’’ /d. at 308.

It is crystal clear that the Petitioners’ exclusion of cer-

tain First Amendment activities from a public forum is

neither a content-neutral nor a permissible policy. The

ostensibly direct, nearly total and permanent ban violates

Respondents’ First Amendment freedoms of speech,

association and assembly. The Resolution also violates the

Equal Protection Clause of the Fourteenth Amendment.

For these compelling reasons, the judgment of the Court

of Appeals must be upheld.

25

Respectfully submitted,

James J. Knicely

Counsel of Record

John W. Whitehead

Gary C. Leedes

The Rutherford Institute

9411 Battle Street

Manassas, Virginia 22110

(703) 369-0100

A. Eric Johnston

The Rutherford Institute’

of Alabama

P.O. Box 59561

Birmingham, Alabama 35259

Lynn M. Watwood, Jr.

The Rutherford Institute

of Colorado

One Civic Center Plaza -

Suite 340

1560 Broadway Street

Denver, Colorado 80202

Joseph S. Secola

The Rutherford Institute

of Connecticut

122 Broad Street

On the Green

Milford, Connecticut 06460

26

Alfred J. Lindh

The Rutherford Institute

of Delaware

1 Customs House Square

Wilmington, Delaware 19801

Ira W. Still, II

The Rutherford Institute

of Florida

6198 Laurel Lane

Tamarac, Florida 33319

William P. Hollberg

Wendell R. Bird

The Rutherford Institute

of Georgia

1275 Peachtree Street, N.E.

Atlanta, Georgia 30367

John K. Webb

The Rutherford Institute

of Kentucky

8 Ardery Place, Suite 4

Paris, Kentucky 40361

David A. French

The Rutherford Institute

of Michigan

2010 Devolson

Ann Arbor, Michigan 48104

Thomas W. Strahan

The Rutherford Institute

of Minnesota

1313 Fifth Street, S.E.

Minneapolis, Minnesota 55414

J. Douglas Alexander

The Rutherford Institute

of Montana

104 Second Avenue. S.W.

Sidney, Montana 59270

27

Victor E. Vouga

The Rutherford Institute

of Pennsylvania

234 West Pine Street

Grove City, Pennsylvania 16127

Les Bailey

The Rutherford Institute

of Tennessee

710 East Sullivan Street

Kingsport, Tennessee 37660

W. Charles Bundren

The Rutherford Institute

of Texas

P.O. Box 923

Dallas, Texas 75221

Steven W. Graber

The Rutherford Institute

of Virginia

P.O. Drawer GR

Williamsburg, Virginia 23187

Randall L. Trautwein

The Rutherford Institute

of West Virginia

Morris Building - Suite 200

845 Fourth Avenue

Huntington, West Virginia 25701