Amicus Curiae Brief — Lee v. International Soc. for Krishna Consciousness, Inc.

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@ ( ‘Spree CO 3.5.

Nos. 91-155 & 91-339 ‘ - Pp

IN THE

Supreme Court of the Siniteh Witted _

OCTOBER TERM, 1991

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INTERNATIONAL SOCIETY FOR

KRISHNA CONSCIOUSNESS, INC.,

et al.,

Petitioners/Cross-Respondents,

WALTER LEE,

Respondent/Cross-Petitioner.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF AMICUS CURIAE OF THE AMERICAN CIVIL

‘LIBERTIES UNION AND NEW YORK CIVIL LIBERTIES UNION

IN SUPPORT OF PETITIONERS/CROSS-RESPONDENTS

Steven R. Shapiro

(Counsel of Record)

John A. Powell

American Civil Liberties Union

Foundation

132 West 43 Street

New York, New York 10036

Daniel A. Farber (212) 944-9800

University of Minnesota Arthur N. Eisenberg

Law School New York Civil Liberties Union

285 Law Center Foundation

229 19th Avenue South 132 West 43 Street

Minneapolis, Minnesota 55455 New York, New York 10036

(612) 625-1022 (212) 382-0557

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................. ii

CG l

STATEMENT OF THE CASE ............... l

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

er as 5

I. THE PERRY TEST, AS CONSTRUED

BY THIS COURT AND OTHER

COURTS, IS INCONSISTENT WiTH

THE ORIGINAL PREMISES OF THE

PUBLIC FORUM DOCTRINE, AND

HAS ALREADY BEEN ERODED

PO COREE GUE ce caccccccceseca: 5

Il. THE PERRY TEST HAS ONLY

SERVED TO CONFUSE _ FIRST

AMENDMENT ANALYSIS ........... 10

Ill. ANY RESTRICTIONS ON SPEECH

SHOULD BE JUDGED BY THE NA-

TURE OF THE GOVERNMENT'S IN-

TEREST AND NOT BY THE ARTI-

FICIAL CATEGORIZATION OF ITS

PRE Sead eeneecneseannaceses 12

IV. DEFENDANTS BAN ON SOLICITA-

TION CANNOT SURVIVE FIRST

AMENDMENT SCRUTINY UNDER

PERRY OR ANY OTHER APPLICA-

ee I das en neds censceuceneces 15

Ey Cenedtn unk at O60 SS WKS We es 18

Sin oh eek I i

TABLE OF AUTHORITIES

Page

Cases

Adderly v. Florida,

Se GE SEED ccc ctbncesecenabunauaueel 6

Bethel School Dist. No. 403 v. Fraser,

Ge Gs GP GD. bh vb eddekeecncesscubuneee 14

Board of Airport Comm'rs v. Jews

for Jesus, Inc.,

TE es 10

Clark v. Community for

Creative Non-Violence,

Gap Gas SEP CUD: céiccessvdcunasantie y

Cornelius v. NAACP Legal Defense

& Educ. Fund, Inc.,

oe! Se ee er 5

Cox v. Louisiana,

500 US SOO CED nc cnckeckene ee 6

Estiverne v. Louisiana State Bar Ass'n,

863 F.2d 371 (Sth Cir. 1989) .................. 5

Fernandes v. Limmer,

GSS F268 GOD Coe Ge GRU cc ike bndeeuuesuns 16

Grayned v. City of Rockford,

Ge US, 006 Cie, ok ceacesaateee 4, 6, 13

Greer v. Spock,

CH US, GHP CHRD cc cbaneuccinne: 5

Hague v. CIO,

oot US, Ga Ge acess ae ks 6

Heffron v. International Society

for Krishna Consciousness, Inc.,

BE EE a 4, 13

International Society for Krishna

Consciousness, Inc. v. Barber,

a |

Jews for Jesus, Inc. v. Board of

Airport Comm'rs,

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

aff'd on other t

BE 16

Perry Educ. Ass’n v. Perry Local

Educators’ Ass'n,

MP UD «MD cc cece 3

Planned Parenthood v. Clark County

School Dist.,

| 8

Police Dep’t v. Mosley,

ee 13

Schneider v. New Jersey,

EE re 13

Simon & Schuster v. Members of the

New York State Crime Victims Board,

—_ Ya

60 U.S.L.W. 4029 (Dec. 10, 1991) ............ 3, 13

Tinker v. Des Moines School District,

ee ck ese ween 4

United States Postal Serv. v. Council

of Greenburgh Civic Ass’ns,

EE ee 6, 10

United States v. Grace,

es a bib or 11

United States v. Kokinda,

_ oy

of eR ere 2, 5, 9, 10, 11

Ward v. Rock Against Racism,

ee EE on os oo KD S 6608 eee Re's 9, 16

Widmar v. Vincent,

Nn ren waa ee tebe Ewa 11

Other Authorities

Bollinger, "Commentaries: The

Tolerant Society: A Response

to Critics,"

oe A ree 8

Dienes, "The Trashing of the Public

Forum: Problems in First

Amendment Analysis,"

55 Geo. Wash. L.Rev. 109 (1986)............... 5

Farber & Nowak, "The Misleading

Nature of Public Forum Analysis:

Content and Context in First

Amendment Adjudication,"

FO Va.-2.ey, 1219 (1SBS) ow. cece 5, 6, 14

Kalven, "The Concept of the

Public Forum: Cox v. Louisiana,"

CS ROP OCT TORE ET TT ee 6

Laycock, "Equal Access and Moments

of Silence: The Equal Status of

Religious Speech by Private Speakers,"

PP: DUE ood vocentecsceceacens 5

iv

Post, "Between Governance and

Management: the History and

Theory of the Public Forum,"

34 U.C.L.A. L.Rev. 1713 (1987) ........

Stone, "Content-Neutral Restrictions,’

54 U. Chi. L.Rev. 46 (1987) ...........

Tribe, American Constitutional Law

a Sree eee eee eee

INTEREST OF AMICI

The American Civil Liberties Union (ACLU) is a

nationwide, nonpartisan organization of nearly 300,000

members dedicated to defending the principles of liberty

and equality embodied in the Bill of Rights. The New

York Civil Liberties Union is one of its state affiliates.

Throughout its 70 year history, the ACLU has been

particularly concerned with any abridgement of the free-

doms guaranteed by the First Amendment. The ACLU

has, therefore, appeared before this Court in numerous

cases involving the First Amendment, both as direct

counsel and as amicus curiae. Because this case raises

an important First Amendment issue of organizational

concern to the ACLU, we respectfully submit this brief

as amici curiae for the Court’s consideration.

STATEMENT OF THE CASE

The International Society for Krishna Consciousness

(ISKCON) is a not-for-profit religious corporation whose

members perform a religious ritual known as "sankirtan,"

which involves "going into public places, disseminating

religious literature and soliciting funds to support the re-

ligion.". International Society for Krishna Consciousness,

Inc. v. Lee, 925 F.2d 576, 577 (2d Cir. 1991). The reli-

gious bona fides of this practice are not at issue in this

case. What is at issue is plaintiffs’ right to distribute re-

ligious literature and solicit contributions at the three

major airports serving New York City.’ These terminals

' Letters of consent to the filing of this brief have been lodged with

the Clerk of the Court pursuant to Rule 37.3.

? As Judge Irving Kaufman has explained, to ban these activities pre-

vents ISKCON’s members “from fulfilling a central duty of their faith,

removing the ‘theological heart’ of the religion." /nternational Society

for Krishna Consciousness, Inc. v. Barber, 650 F.2d 430, 443 (2d Cir.

1981).

have much the same character as many downtowns. For

example, the lobby of one building includes "two restau-

rants, two snack stands, a bar, a postal substation and

postal facility, a bank, a telegraph office, a duty-free

boutique, a drug store, a nursery, a barber shop, two cur-

rency exchange facilities, a dental office, and an area for

the display of art exhibits." Jd. at 578.

After fifteen years of litigation, the issues in dispute

have been significantly narrowed. Defendant is willing

to allow solicitation on the sidewalks outside the termi-

nal buildings, while plaintiffs’ claims relating to leased

areas of the airport (such as the gates) have been set-

tled.’ In the unleased areas, defendant’s regulations pro-

hibit the sale of merchandise, distribution of literature,

or solicitation of funds, if those activities are "conducted

by a person to or with passers-by in a continuous or re-

petitive manner.™

This restriction of plaintiffs’ First Amendment rights

was struck down in its entirety by the district court. 721

F.Supp. 572 (S.D.N.Y. 1989). A divided panel of the

Second Circuit affirmed in part and reversed in part,

holding that solicitation could be banned but the distri-

bution of literature could not. In reaching this split de-

cision, the court of appeals concluded that an airport ter-

minal is not a public forum, 925 F.2d at 580, although

conceding that the "well-established" authority in other

circuits is to the contrary. /d. Its decision rested on the

view that United States v. Kokinda, _ U.S. __, 110 S.Ct.

* Most of the space at New York’s three metropolitan airports is

leased to commercial airlines. The unleased areas are controlled by

the Port Authority itself and include the International Arrival Building

at Kennedy Airport, the Central Terminal Building at LaGuardia Air-

_" the North Terminal Building at Newark Airport. 925 F.2d

alt .

. Although the point has not been raised in this case, amici believe

that that “repetitive manner” standard is unconstitutionally vague.

2

3115 (1990), had “altered public forum analysis," 925

F.2d at 580.

On January 10, 1992, this Court granted plaintiffs’

petition for certiorari and defendant’s cross-petition.

SUMMARY OF ARGUMENT

The majority below struggled to follow the test first

announced by this Court in Perry Educ. Ass’n v. Perry

Local Educators’ Ass’n, 460 U.S. 37 (1983). Perry created

a tripartite framework for evaluating regulations of

speech on government property. Under Perry, the de-

gree of judicial scrutiny depends on whether the property

in question is: (1) a "traditional" public forum such as a

park; (2) a "designated" forum that has been opened to

the public for expressive activity; or (3) a "nonpublic"

forum, which includes all other government property.

Amici believe that the court of appeals reached the

wrong result even under Perry. More fundamentally,

however, we believe that Perry has been undermined by

later decisions and should now be abandoned. Indeed, it

is a sufficient comment on the difficulty of following Per-

ry that this case has already involved more than fifteen

years of litigation.

Perry has three basic flaws. First, the divisions be-

tween the categories have proved elusive, as the present

case illustrates. Second, the Perry test lacks any founda-

tion in the language, original understanding, or purposes

of the First Amendment. Third, the test has proved con-

fusing and mechanistic. It focuses attention on formalis-

tic classification rather than on the strength of the gov-

ernment’s regulatory interest.

Because of these inadequacies, amici respectfully

submit that Perry should be reexamined. We have seri-

ous doubts that content-based prohibitions can ever be

upheld. See Simon & Schuster v. Members of the New

York State Crime Victims Board, __ U.S. __, 60 U.S.L.W.

4029, 4034-35 (Dec. 10, 1991)(Kennedy, J., concurring).

At a minimum, however, "the significance of the govern-

mental interest must be assessed in light of the charac-

teristic nature and function of the particular forum."

Heffron v. International Society for Krishna Consciousness,

Inc., 452 U.S. 640, 650-51 (1981). More specifically, the

government should be required to show that the expres-

sive activity it seeks to ban is "basically incompatible

with the normal activity of [the] particular place at a

particular time." Grayned v. City of Rockford, 408 U.S.

104, 116 (1972). For example, a regulation of speech on

school property should only be justified by the need to

avoid disruption of the educational process. See Tinker

v. Des Moines School District, 393 U.S. 503 (1969). Such

an analysis, we submit, is no more than commonsense.

The airport regulation at issue in this case cannot

survive this functional analysis or any other serious First

Amendment scrutiny. The court of appeals upheld the

ban on solicitation solely on the basis of pedestrian con-

gestion. 925 F.2d at 582. As Judge Oakes pointed out in

dissent, however, "public streets and sidewalks no less

than airport terminals are subject to tremendous traffic

problems all over the New York metropolitan area." /d.

at 586. No one would suggest that crowding alone

would justify a ban on solicitations and leafletting in

downtown New York, yet defendant’s regulations are not

linked to any distinguishing attribute of airport terminals.

Thus, the regulations violate the First Amendment.

ARGUMENT

I. THE PERRY TEST, AS CONSTRUED BY

THIS COURT AND OTHER COURTS, IS

INCONSISTENT WITH THE ORIGINAL

PREMISES OF THE PUBLIC FORUM

DOCTRINE, AND HAS ALREADY BEEN

ERODED BY LATER CASES

Public forum doctrine has been sharply criticized by

members of this Court,’ other federal judges,° and nu-

merous legal scholars.’ Just two years ago, four Justices

joined in an opinion questioning whether public forum

doctrine "serves to obfuscate rather than clarify the is-

sues at hand." United States v. Kokinda, 110 S.Ct. at

3127 (Brennan, J., dissenting). The present case high-

lights the wisdorn of that observation and provides the

opportunity to reappraise the continued viability of the

* See Comelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 US.

788, 813 (1985)(Blackmun, J., joined by Brennan, J., dissenting); id. at

833 (Stevens, J.)(expressing skepticism about the public forum doc-

trine); Greer v. Spock, 424 U.S. 828, 859-60 (1976)(Brennan, J., dis-

senting).

° See, e.g., Estiveme v. Louisiana State Bar Ass'n, 863 F.2d 371, 377 &

n.7 (Sth Cir. 1989)(criticizing “formulaic appiication of the public

forum doctrine” and citing commentators’ warnings that “rigid applica-

tion of public forum analysis threatens to obscure important first

amendment issues").

’ E.g., L. Tribe, American Constitutional Law 992-93 (2d ed. 1988);

Post, "Between Governance and Management: the History and Theo-

ry of the Public Forum,” 34 U.C.L.A. L.Rev. 1713, 1715 (1987); Stone,

"Content-Neutral Restrictions,” 54 U. Chi. L.Rev. 46, 93-94 (1987);

Laycock, "Equal Access and Moments of Silence: The Equal Status

of Religious Speech by Private Speakers,” 81 Nw. U.L.Rev. 1, 46-49

(1986); Dienes, "The Trashing of the Public Forum: Problems in First

Amendment Analysis,” 5S Geo Wash. L.Rev. 109 (1986); Farber &

Nowak, "The Misleading Nature of Public Forum Analysis: Content

and Context in First Amendm&™® Adjudication,” 70 Va. L.Rev. 1219,

1220-24 (1984).

Perry test.

Current public forum doctrine is a relatively recent

innovation. Prior to 1970, the phrase “public forum" had

appeared in only two opinions of this Court, and it was

used only seventeen times in the 1970s.* In its present

version, therefore, public forum doctrine is largely a phe-

nomenon of the 1980s.

Given the fact that public forum doctrine is often in-

voked today to justify restrictions on speech, it is useful

to remember that the doctrine originated in an effort to

increase the constitutional protection for free expres-

sion.” In a famous dictum in Hague v. CIO, 307 U.S.

496, 515-16 (1939), Justice Roberts spoke of the special

historic role of streets and parks as forums for public

debate. His purpose, however, was not to indicate that

freedom of speech was less important at other locations.

Rather, he referred to the special status of streets and

parks only to rebut the notion -- then arguable but now

clearly defunct -- that the government has unrestricted

authority as a landowner to contro! speech on its own

property.”

Regulation of speech in public places once again be-

came an important issue in the 1960s and early 1970s.

In a series of cases, the Court attempted to define the

contours of government regulation of speech on public

* See Farber & Nowak, supra note 7, at 1221-22.

* Justice Marshall noted this inconsistency between the origins of the

doctrine and its current use in United States Postal Serv. v. Council of

Greenburgh Civic Ass'ns, 453 U.S. 114, 147-48 (1981)(Marshall, J., dis-

senting).

'° See Post, supra note 7, at 1721-24. Professor Kalven emphasized

this aspect of the Roberts dictum in his classic article, "The Concept

of the Public Forum: Cox v. Louisiana,” 1965 Sup.Ct. Rev. 1.

6

property." Although these cases remain useful sources

of guidance, it was only in the early 1980s that a test

crystallized in Perry Educ. Ass’n v. Perry Local Educators’

Ass'n, 460 U.S. 37. Thus, the Perry test is by no means a

long-standing pillar of the law.

Perry divides government property into three catego-

ries, each with its own detailed set of First Amendment

rules. In a traditional public forum, the government

"may not prohibit all communicative activity," and can

only enforce content exclusions based on compelling

state interests. Perry also recognizes two other forum

categories. In a designated public forum, where the

state has voluntarily allowed public communication, the

same rules apply as in the traditional public forum, ex-

cept that the government retains the power to close a

designated forum completely. The final category, which

includes most government property, consists of nonpublic

forums. In this residual category, the state may "reserve

the forum for its intended purposes, communicative or

otherwise, as long as the regulation on speech is reason-

able and not an effort to suppress expression merely be-

cause public officials oppose the speaker’s view." /d. at

45-46.

As one commentator has observed, neither Perry nor

later cases "articulate a defensible constitutional justifica-

tion for its basic project of dividing government property

into distinct categories, much less for the myriad of for-

mal rules governing the regulation of speech within these

categories."* The language of the First Amendment

does not contain even the slightest hint of this tripartite

scheme. Nor does the Perry opinion refer to any evi-

dence of original intent that might serve to explain its

' See, e.g., Grayned v. City of Rockford, 408 U.S. 104 (1972), Adderly

v. Florida, 385 U.S. 39 (1966); Cox v. Louisiana, 379 U.S. 559 (1965).

2 Post, supra note 7, at 1715-16 (footnote omitted).

7

rigid conceptual framework.

On its face, the Perry analysis seems only distantly

related to the purposes of the First Amendment. Special

protection is given to speech on property that "has been

traditionally open to the public for expressive activity."

Id. at 45. But why should newer kinds of public spaces

automatically be deemed less open to First Amendment

activity than older varieties? The fact that a certain kind

of government property has been used for expressive

purposes for many years is undoubtedly relevant. Yet,

unless the First Amendment is to be reduced to a

branch of the doctrine of adverse possession, such past

history cannot be decisive. As Dean Bollinger has said

of the public forum doctrine:

[None of this really provides us with an in-

telligible and acceptable solution to how

much public property must be subject to the

public forum rules, given the prior decision

to make streets and parks conform to those

rules. History is a rational reason only to

the extent that one can give some other rea-

son why what has or has not been should

matter. By itself it is meaningless, and the

truth is that we do not rely on it consistent-

ly."

It is equally unclear why the government’s decision

to open property for expressive uses should work a radi-

cal transformation in the test applied to that property.

The perverse result is that if the government is wholly

indifferent or hostile to free expression, it has the bene-

fit of reduced constitutional scrutiny," but it loses that

* Bollinger, "Commentaries: The Tolerant Society: A Response to

Critics," 90 Colum. L.Rev. 979, 997 (1990).

'* See Planned Parenthood v. Clark County School Dist., 941 F.2d 817,

831 (9th Cir. 1991)(Norris, J., dissenting)(en banc).

8

benefit if it makes any affirmative efforts to promote

free expression.

Because the Perry Court justified its test solely by

reference to previous cases, Perry is best understood as

an effort to synthesize the Court’s prior holdings. That

synthesis has not, however stood the test of time. To the

contrary, later cases have substantially undermined the

Perry test in three regards.

First, Perry no longer governs a broad range of First

Amendment issues. This Court has increasingly applied

a single standard in assessing the validity of time, place

and manner regulations.” And Perv itself requires strict

scrutiny of viewpoint-based regulations even in nonpublic

forums. 460 U.S. at 46. Thus, at best, the Perry catego-

ries only remain relevant for judging government regula-

tions that are content-based but viewpoint-neutral.

Second, the middle category of designated public

forums has virtually evaporated. According to the Ko-

kinda plurality, a designated forum exists only if the gov-

ernment has "expressly dedicated" the property to speech

activity, 110 S.Ct. at 3119, and is not created merely be-

cause the government has permitted speech activities to

take place on its property, id. at 3121. Furthermore,

even if the government property "has been dedicated to

some First Amendment uses ... regulation of the re-

served non-public uses would still require application of

the reasonableness test." /d. Kokinda thus reinforces

the scholarly view that the designated public forum re-

ferred to in Perry has little practical significance,” leaving

'S See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 798 (1989);

Clark v. Community for Creative Non-Violence, 468 U.S. 288, 298-99

(1984)(general test for content-neutral regulations “in the last analysis

is little, if any, different from the standard applied to time, place, or

manner restrictions” in public forum).

'© See Post, supra note 7, at 1756-57.

9

only two of the original three categories intact.

Third, according to the Perry test, the defining char-

acteristic of the traditional forum is that "[i]n these quin-

tessential public forums, the government may not prohib-

it all communicative activity." 460 U.S. at 45. More re-

cently, however, this Court has observed that even in a

nonpublic forum, "an absolute prohibition on speech" is

impermissible. See Board of Airport Comm'rs v. Jews for

Jesus, Inc., 482 U.S. 569, 575 (1987). Thus, what was

supposed to be the defining trait of the traditional forum

-- the government’s inability to prohibit expressive use of

the — -- turns Out to apply to the other categories

as well.

In short, a mere decade after Perry, its analytic

no aus lies in tatters. It can and should be reconsid-

ered.

Il. THE PERRY TEST HAS ONLY SERVED

TO CONFUSE FIRST AMENDMENT

ANALYSIS

Kokinda illustrates the extent to which public forum

doctrine has confused First Amendment analysis." Eight

“ As Professor Tribe has observed, “many recent cases illustrate the

blurriness, the occasional artificiality, and the frequent irrelevance, of

the categories within the public forum classification.” L. Tribe, supra

note 7, at 987. For example, in United States Postal Serv. v. Council of

Greenburgh Civic Ass'ns, 453 U.S. 114, the issue was whether non-

profit organizations could be prosecuted for placing pamphlets in the

letter boxes of private homes. A letter box might be regarded as a

public forum because it is a traditional means for the public commu-

nication of stamped letters, or as a nonpublic forum because the gov-

ernment has reserved it for the delivery of stamped mail. The majori-

ty’s ultimate resolution of the case was to say that mailboxes could be

reserved for stamped letters because they were not public forums; the

reason they weren't public forums was that the government had re-

(continued...)

10

Justices reached the issue of whether a post office side-

walk was a public forum. They split evenly on this rec-

ondite issue -- a clear indication of the practical unwork-

ability of the Perry approach. More importantly, despite

the attention given in each of the opinions to this issue,

public forum analysis was in fact irrelevant to the ulti-

mate position taken by any member of the Court. The

plurality viewed the regulation as content-neutral, 110 S.

Ct. at 3124. Justice Kennedy concluded that the regula-

tion was valid even if the sidewalk was a traditional pub-

lic forum. Id. at 3125-26. The dissenters, meanwhile, ar-

ed that the post office regulation was unreasonable

even if the sidewalk was not a public forum. /d. at 3137.

Thus, the proper classification of the sidewalk was quite

irrelevant to the analysis of any member of the Court. It

served only as a distraction and source of confusion.

In other cases, public forum analysis has led to a

series of seemingly inexplicable distinctions. Perhaps

there is a defensible distinction between leafletting on

the steps of the Supreme Court and on the adjoining

sidewalk," or between an educational institution’s restric-

tions on access to unused classrooms and to faculty mail-

boxes,” but any distinctions that exist are certainly more

contextual and subtle than public forum analysis would

indicate.

The present case further demonstrates the analytical

inadequacy of public forum doctrine. It is clear that air-

port terminals are like downtown sidewalks in many re-

7 (continued)

served them for stamped letters. The analysis is a perfect exercise in

circularity, which is why Justice White’s concurrence, id. at 142, de-

scribed the public forum analysis as “bootless.”

'8 See United States v. Grace, 461 U.S. 171, 178-84 (1983).

'° Compare Widmar v. Vincent, 454 U.S. 263 (1981), with Perry Educ.

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

11

spects and unlike them in other respects. But a mere

list of factual similarities and differences cannot resolve

the First Amendment issue. Rather, what is needed is a

sensible appraisal of the significance of these factual dif-

ferences in light of the speech interests involved.

. Our objection to public forum analysis is not that it

invariably yields wrong results (although it may some-

times do so), but that it distracts attention from the val-

ues at stake in a given case. Too often, the effect of

public forum analysis is that, "[rjather than taking the

nature of the property into account in balancing the First

Amendment interests of the speaker and society’s inter-

ests in freedom of speech against the interests served by

reserving the property to its normal use, the Court sim-

ply labels the property and dispenses with the balancing."

Cornelius, 473 U.S. at 821 (Blackmun, J., dissenting). A\l-

though amici do not advocate ad hoc balancing, the

point remains that the current analysis obscures more

than it illuminates.

lll. ANY RESTRICTIONS ON SPEECH

SHOULD BE JUDGED BY THE

NATURE OF THE GOVERN-

MENT’S INTEREST AND NOT BY

THE ARTIFICIAL CATEGORIZA-

TION OF ITS PROPERTY

As previously noted, the distinctive legal standard

created by Perry is only dispositive when dealing with

regulations that restrict the content of speech in a view-

point neutral way.” Under Perry, such regulations are

typically upheld in nonpublic forums and invalidated in

traditional or designated public forums.

To the extent that the Perry taxonomy is meant to

reflect the government’s interest in the effective func-

” See p.9, supra

tioning of its offices and facilities, amici have no quarrel.

However, contrary to the approach adopted in Perry,

amici do not believe that this government interest is pre-

ordained by history or by the government’s intention to

open its property for expressive activity. The flaw in

Perry is that its formalistic test discourages rather than

encourages a serious examination of the government's

regulatory interest.

There is a much simpler and far more straightfor-

ward approach. If content-based prohibitions are ever

permissible,” the government must be able to demon-

strate that "the characteristic nature and function of the

particular forum," Heffron, 452 U.S. at 651, are "basically

incompatible" with the speech the government seeks to

ban, Grayned, 408 U.S. at 116. A special restriction on

picketing near schools must be justified by the needs of

schools; a ban on faculty mailbox use must have some-

thing to do with other demands on the mail system; a

ban on airport solicitation must have some connection

with the special characteristics of the airport terminal.

Moreover, the government’s justification must be a sub-

stantial one given the preferred status of free expression

in our constitutional scheme. See Schneider v. New Jer-

sey, 308 U.S. 147 (1939)(ban on handbilling not justified

by government's interest in curbing litter).

The shift in emphasis from form to function more

faithfully reflects core First Amendment principles. In

addition, a functional test that looks to whether the par-

ticular speech is basically incompatible with other pur-

poses for which the property is designed, would clarify

First Amendment standards. It would not, however, re-

quire a radical break with the results in prior cases. In

| For a cogent argument that content-based prohibitions of speech

are per se invalid under the First Amendment, see Justice Kennedy's

concurring opinion in Simon & Schuster v. Members of the New York

State Crime Victims Board, 60 U.S.L.W. at 4034-35

13

most public forum cases, the Court has not been content

with an application of Perry, but has also made some at-

tempt to consider whether a restriction on speech was

linked to a particular government interest. For example,

the Court has decided a series of public school cases.

The "forums" involved have ranged from the sidewalk

outside the school” to a school assembly.” Despite the

diversity of these settings, including both traditional

forums and nonpublic forums, the decisive factor in the

cases has always been whether the speech in question in-

terfered with the educational mission of the public

schools.”

__ Like the Perry approach, a functional test also pro-

vides special leeway for speech on streets, sidewalks, and

parks. It is difficult indeed to imagine how the identity

of a speaker, or the subject matter of the speech, would

have any connection at all with street maintenance, traf-

fic flow, or any other government interest relating to

streets. Thus, under a functional test, strict content neu-

trality would remain the rule in these settings.

Although a functional test might produce the same

results as Perry in many situations, it nonetheless offers

several advantages. First, a functional test is much sim-

pler. It replaces a three-part scheme with a unified test.

Second, rather than requiring courts to grapple with an

esoteric classification scheme, it directs their attention to

the practical reasons for a government regulation. The

result should be a clearer and more consistent body of

precedent. Third, a functional test gives both speakers

and government authority a much more understandable

guideline. The difference between a designated or lim-

22

See Grayned v. City of Rockford, 408 U.S. 104; Police Dep't v

ley, 408 U.S. 92 (1972). » Folice Dep't v. Mos-

” Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986).

* See Farber & Nowak, supra note 7, at 1245-53,

i4

ited public forum and a nonpublic forum is not easy to

discern even for the members of this Court, let alone to

explain to an administrator or a protester. A school’s

legitimate interest in preventing interference with its

educational mission is something that everyone can un-

derstand, even if there is disagreement about when that

interference occurs.

One of the subtle harms caused by the Perry ap-

proach is that it actually discourages administrators from

adopting clear regulations about access to government

forums. Having adopted a rule that establishes a clear

right to access, the government may then be faced with a

claim that it has established a designated or limited pub-

lic forum. If it decides the access question on an ad hoc

basis, it avoids this risk. In contrast, a functional test en-

courages the implementation of clear regulations. With-

out a clear statement of what speech is allowed or for-

bidden, the government would be hard-pressed to show

that a restriction is closely tied to any specific govern-

ment interest.

A functional test would not require the government

to throw open every bulletin board, classroom, and office

building to the general public. What it would require --

and what this Court should require of the government if

it permits content-based regulations at all -- is a clear

articulation of the government interest in restricting

speech at a particular location. That commonsense in-

quiry has been largely observed by the artificial catego-

ries imposed by the Perry test.

IV. DEFENDANT’S BAN ON SOLICITATION

CANNOT SURVIVE FIRST AMENDMENT

SCRUTINY UNDER PERRY OR ANY

OTHER APPLICABLE TEST

In our view, defendant’s ban on solicitation is prop-

erly viewed as a restriction on the subject matter of

15

speech -- the topic being the desirability of a charitable

donation. This ban has no relationship with any peculiar

feature of the airport. Busy travelers, like busy pedestri-

ans in other locations, may prefer not to be distracted by

such requests. But there is nothing about an airport that

makes the subject of charitable donations in general --

or religious donations in particular -- an inappropriate

subject for discussion. The regulation therefore fails a

functional test because there is no connection at all be-

tween the regulation and the special needs of the partic-

ular government operation.

The solicitation regulation is equally invalid even if

it is deemed content neutral. In Ward v. Rock Against

Racism, 491 U.S. at 800, the Court made it clear that

content-neutral regulations of speech must be "narrowly

tailored" and cannot be "substantially broader than nec-

essary to achieve the government’s interest." As Judge

Oakes pointed out in his dissent below, numerous alter-

natives exist to the outright ban adopted by defendant,

such as badges for solicitors, limitations on the number

of solicitors, or restrictions on the locations of solicita-

tion within the terminal. 925 F.2d at 586.” Given that

essentially the same test applies to content-neutral regu-

lations on all government property, a ruling upholding

defendant’s ban on solicitation would open the door to

similar regulations in any crowded public place.

Finally, defendant’s ban on solicitation is clearly in-

valid even under Perry. As the court below acknowl-

edged, every other circuit to consider the issue has con-

cluded that an airport terminal is a public forum. /d. at

580. Defendant has not even begun to make a case for

a ban on leafletting and solicitation on a typical sidewalk

or other traditional public forum. Indeed, defendant’s

* See also Jews for Jesus, Inc. v. Board of Airport Comm'rs, 785 F.2d

791, 793-95 (%h Cir. 1986), aff'd on other grounds, 482 US. 569

(1987); Femandes v. Limmer, 663 F.2d 619, 633-35 (Sth Cir. 1982).

16

regulations cannot withstand scrutiny under the Perry test

for nonpublic forums. The essence of that test Is that

the government can reserve a nonpublic forum for its

"intended purpose." The intended purpose of a terminal

is to serve the manifold needs of the traveling Public.

Only by fiat can those needs can be defined to include

the provision of items as diverse as haircuts and artistic

displays, 925 F.2d at 578, but not a traveler's possible

desire to make a charitable contribution or to obtain en-

lightenment from religious or political literature.

17

CONCLUSION

For the reasons stated herein, the judgment below

should be reversed insofar as it upheld defendant’s ban.

on solicitation.

Respectfully submitted,

Steven R. Shapiro

(Counsel of Record)

John A. Powell

American Civil Liberties Union

Foundation

132 West 43 Street

New York, New York 10036

(212) 944-9800

Daniel A. Farber

University of Minnesota

Law School

285 Law Center

229 19th Avenue South

Minneapolis, Minnesota 55455

(612) 625-1022

Arthur N. Eisenberg

New York Civil Liberties Union

Foundation

132 West 43 Street

New York, New York 10036

(212) 382-0557

Dated: February 10, 1992

18