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

Nos. 91-155, 91-339 -i LED

IN THE

Supreme Court of the United eats 15 | “Ons

OCTOBER TERM, 1991

INTERNATIONAL SOCIETY FOR

KRISHNA CONSCIOUSNESS, INC.,

and BRIAN RUMBAUGH,

Petitioners and Cross-Respondents,

v.

WALTER LEE,

Respondent and Cross-Petitioner.

On Writs of Certiorari to the

United States Court of Appeals

for the Second Circuit

REPLY BRIEF

BARRY A. FISHER DAVID M. LIBERMAN

Counsel of Record 2049 Century Park E.

DAVID Grosz Suite 3160

ROBERT C. MozST Los Angeles, CA 90067

FLEISHMAN, FISHER & (310) 277-9288

MOEST JAY ALAN SEKULOW

2049 Century Park E. 1000 Thomas Jefferson St., N.W.

Suite 3160 Suite 520

Los Angeles, CA 90067 Washington, DC 20007

(310) 557-1077 (202) 337-2273

JEREMIAH S. GUTMAN

EUGENE N. HARLEY

LEVY, GUTMAN, GOLDBERG &

KAPLAN

275 Seventh Ave., Suite 1776

New York, NY 10001

(212) 807-0733

Counsel for Petitioners and Cross-Respondents

a

WILSON - Eres PrintinG Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

Page

INTRODUCTION ate l

ARGUMENT 2

I. THE CHARACTERISTICS AND USE OF AIR

TERMINALS MAKE CLEAR THAT THEY

ARE PUBLIC FORA . 2

j A. The Claim of Restriction to “Travel-Re-

lated Purposes” Does Not Defeat Forum

Status ; 2

B. The Nonpublic Forum Cases Are Inapposite 5

C. The Terminals Are Fora By Both Tradition

and Kecent Convention 7

D. The Uses to Which a Forum Is Put Cannot

Be Separated From Its Purpose i)

E. The Expressive Activities Permitted Under

the Resolution Confirm That Airport Ter-

minals Are Appropriate Places for the Dis-

tribution of Religious Literature and Solici-

tation of Donations .. 12

Il. THE COURT BELOW ERRED IN UPHOLD-

ING THE SOLICITATION BAN 14 -

lll. THE PORT AUTHORITY’S RESOLUTION IS

NOT A REASONABLE REGULATION OF

SPEECH EVEN IN A NONPUBLIC FORUM 16

IV. TO THE EXTENT THE ISSUE IS BEFORE

THE COURT,THE PORT AUTHORITY RES-

OLUTION IS NOT A REASONABLE TIME,

PLACE AND MANNER REGULATION 19

CONCLUSION 20

ii

TABLE OF AUTHORITIES

CASES Page

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

Anderson v. City of Wellington, 40 Kan. 173, 19

ei ) =. 15

Board of Airport Commissioners v. Jews for Jesus,

Fue, GER GB. GED CHBGID cecccntnccnee 3

Cafeteria Workers Local 473 v. McElroy, 367 U.S.

| | EEE 6

Cantwell v. Connecticut, 310 U.S. 296 (1940)... 15, 16

City of Chicago v. Trotter, 136 Ill. 430, 26 N.E.

| | I 15

Clark v. Community for Creative Non-violence, 468

FS 2) | pe 19

Cornelius v. NAACP Legal Defense & Educ. Fund,

ete | oO) Re peat 20

Davis v. Massachusetts, 167 U.S. 43 (1897) 7

Erznoznick v. City of Jacksonville, 422 U.S. 205

| | ENEMIES eee | 15

Frisby v. Schultz, 487 U.S. 474 (1988) actinides = 7,9

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

Hague v. CIO, 307 U.S. 496 (1989) 2,7

Heffron v. International Soc’y for Krishna Con-

sciousness, 452 U.S. 640 (1981)... 2,5, 18

Hustler Magazine v. Falwell, 485 U.S. 46 (1988) .. 15

In re Frazee, 63 Mich. 396, 30 N.W. 72 (1886) _. 15

In re Gribben, 5 Okla. 379, 47 P. 1074 (1897) 15

International Soc’y for Krishna Consciousness v.

Barber, 506 F. Supp. 147 (N.D.N.Y. 1980),

cert. before appeal denied, 451 U.S. 971 (1981),

rev'd, 650 F.2d 430 (2d Cir. 1981) 18

Larson v. Valente, 456 U.S. 228 (1982) 14

Lehman v. City of Shaker —_—— 418 U.S. 298

(1974) ....... aie 5,6

Membere of the City Council v. ‘Taxpayers for Vin-

cent, 466 U.S. 789 (1984) sedamaddsabiaielia iene 6, 7, 16

NAACP v. Claiborne Hardware Co., 458 U. S. 886

(1962) .......... naeearesesinneapiiiiidienssiiamealGndlst ee canner 15

Rich v. City of Naperville, 42 Ill. App. 222 (1891). 15

Riley v. National Fed’n of the Blind, 487 U.S. 781

iii

TABLE OF AUTHORITIES—Continued

OTHER

Page

Schneider v. State, 308 U.S. 147 (1939)... 2, 8,15

Terminiello v. City of Chicago, 337 U.S. 1 (1949) . 15

Texas v. Johnson, 491 U.S. 397 (1989)... ; 15

United States v Grace, 461 U.S. 171 (1983) 3,13

United States v. Kokinda, 110 S. Ct. 3115 (1990). passim

United States Postal Serv. v. Council of Green-

burgh Civie Ass’ns, 453 U.S. 114 (1981)... 6

Ward v. Rock Against Racism, 491 U. S. 781

cc cenmnreomonesereseee 16, 19

Wolin v. Port of N.Y. Auth., 392 F.2d 83 (2d

Cir.), cert. denied, 393 U.S. 940 (1968) 6

ADMINISTRATIVE MATERIALS

45 Fed. Reg. 35;314 (1980)... aii 7

Lord Acton, Essays on Freedom and Power 244

(Peter Smith 1972) (1948) 20

Karen De Witt, The 1992 Campaign, N.Y. Times,

Re 13

G.F. Doughty, Review of Passenger Service Issues

at Airports, in Airports for People ( 1988) ......... 10

Don Broderick & Marianne Goldstein, Prof Ducks

Friends & Foes at JFK, N.Y. Post, Aug. 15,

1991, at 2.. 13

Lynette Hazelton, ‘First Rate Conventions You Can

Afford, Black Enterprise, Mar. 1989, at 76 ___ 10

Greg Irsfeld, Airport Concessions Reflect New

Awareness of Market Demands, Airport Serv-

ices, May 1989, at 40... 11, 12

Robert D. MacFadden, Leaders Gather in New

York to Chart a World Order, N.Y. Times, Jan.

a 13

Laurie McGinley, Airports Try to Ease the Pain ig

Waiting with New Ways for Fliers to Spend

Money, Wali St. J., Aug. 21, 1990, at B1 - 10

Katherine Rodeghier, Airport Hotels Reap Day-

Trip Conferences, Crain’s N.Y. Bus., Oct. 24,

AEDT a 2 10

iv

TABLE OF AUTHORITIES—Continued

Bill Turque et al., Southern Voters: Beyond Bub-

bas and Yellow Dogs, Newsweek, Mar. 9, 1992,

ERS Coreen Rr en SE re CPt TE BY

Ira Weinstein & Juliette Madrigal, Airport Cus-

tomers and Their Needs for the 1990s, Airport

Services, May/June 1991, at 18...

Winged Victories, Architectural Rec., June 1989,

PNR aR RSPAS na etre al

Paul H. Wright & Norman J. Ashford, Transporta-

tion Engineering: Planning and Design (1989) ..

Page

13

11,12

10

11

REPLY BRIEF

INTRODUCTION

Airport terminals are public thoroughfares that echo

the commercial and social centers of their communities.

For the Nation and more than a billion travelers a year,

airports are a vital crossroads, meeting place, market

place and gateway. They ought to remain available for

the promulgation and exchange of ideas.

The Port’s resolution bans traditional modes of ex-

pression—literature distribution and solicitation of con-

tributions. The opposite of narrow tailoring, it cannot

withstand scrutiny.

Unable to deny the essential similarities between air

terminals and busy urban thoroughfares, the Port re-

sorts to defining the airports’ “purpose” expediéntly, to

include what it wants and to exclude distribution and

solicitation. The New York terminals are, even in the

Port’s view, places bustling with activity. These charac-

teristics, typical of the city’s streets, reinforce, not de-

tract from, the terminals’ forum status.

This case does not involve security areas or places used

for ticketing or baggage. Rather, petitioners seek access

only to areas where travelers and non-travelers are en-

couraged to spend time. Petitioners have been in the

New York airports for more than seventeen years, under

an arrangement made months before this action was filed

in 1975. During that time, no traveler has missed a

flight because of a momentary pause to examine a reli-

gious book or make a voluntary contribution te Krishna

consciousness. The court below erred in upholding any

part of the Port’s prohibition.

2

ARGUMENT

I, THE CHARACTERISTICS AND USE OF AIR TER-

MINALS MAKE CLEAR THAT THEY ARE PUBLIC

FORA.

A. The Claim of Restriction to “Travel-Related Pur-

poses” Does Not Defeat Forum Status.

The linchpin of the Port Authgrity’s position is that the

public spaces of the three New York airports “are not

public fora because their sole purpose is the facilitation

of safe, efficient and convenient air travel, not public

assembly and debate.” Resp. Br. 29 (emphasis in the

original). For several reasons, the premise cannot stand.

First, a traditional forum is not defined by its “pur-

pose.” A few months after Hague v. CIO, 307 U.S. 496

(1939), the Court recognized what was in any event

plain—that “the primary purpose to which streets are

dedicated” is “the movement of people and property,”

Schneider v, State, 308 U.S. 147, 160 (1939). In Hague

itself, the district court had found “no competent proof

that the parks of Jersey City are dedicated to any gen-

eral purpose other than the recreation of the public.”

307 U.S. at 505.

The Port Authority’s logic, moreover, confuses tradi-

tional with designated fora. It is the latter that ean be

said to have an expressive “purpose.” Traditional fora,

on the other hand, are defined by their character and

use.

The Port attempts to separate the “purpose” of a

forum from its physical characteristics and use, making

the former dispositive of its public or nonpublic status.

The determination of a forum’s purpose cannot be made

in a vacuum, but “must be assessed in light of the char-

acteristic nature and function of the particular forum

involved,” Heffron v. International Soc’y for Krishna Con-

sciousness, 452 U.S. 640, 650-51 (1981), and the uses

to which it is put. “If our public forum jurisprudence

3

is to retain vitality, we must recognize that certain ob-

jective characteristics of Government property and its

customary use by the public may control the case.”

United States v. Kokinda, 110 S. Ct. 3115, 3125 (1990)

(Kennedy, J., concurring in the judgment).

The Port asserts that “it is undisputed that persons

use Port Authority airports only for travel-related pur-

poses.” Resp. Br. 23 (footnote omitted). Just as “‘Con-

gress . . . may not by its own ipse dixit destroy the “pub-

lic forum” status of streets and parks which have his-

torically been public forums,’” United States v. Grace,

461 U.S. 171, 180 (1983), the Port Authority may not

remove the airports from the public forum category by

labeling whatever goes on in them as “travel-related.”

In Board of Airport Commissioners v. Jews for Jesus,

Inc., 482 U.S. 569 (1987), the Court rejected the Los

Angeles airport’s analogous argument that the overbreadth

of its ban on “First Amendment activities” could be elim-

inated by construing it to affect only non-“‘airport-related

purposes,” id. at 576. -

The line between airport-related speech and nonair-

port-related speech is, at best, murky. The petition-

ers, for example, suggest that an individual who

reads a newspaper or converses with a neighbor at

LAX is engaged in permitted “airport-related” ac-

tivity because reading or conversing permits the trav-

eling public to “pass the time”... . We presume,

however, that petitioners would not so categorize the

activities of a member of a religious or political or-

ganization who decides to “pass the time” by distrib-

uting leaflets to fellow travelers.

Id. The pliancy of the distinction impermissibly allows

the Port to arrogate to itself the power to determine the

constitutional question of whether the public areas of the

airport are fora.

The Port Authority also claims that “open access to all

members of the public is not inherent in the nature of,

nor integral to the function of, air terminals... .” Resp.

Br 24. Petitioners do not purport to plumb the depths

4

of the question of the “inherent ... nature” of anything.

But it is undeniable that “open access” is a necessary

condition to the way airports are operated today—the

revenues airports derive from the 500 million nonpas-

sengers who visit and use the facilities, not to mention

the widespread public dissatisfaction that would arise

from the creation of a permanent cordon sanitaire at so

vital a hub, assure that. Even if airports ean theoretically

be closed off, so can, and are, streets or parks, which are

sometimes open, for example, only to neighborhood resi-

dents or for special events.

The Port Authority relies on five other factors—“con-

gestion,” “location,” “captive audiences,” “financing,” and

“security”—to demonstrate that airports are not fora.

See Resp. Br. 24-29. None proves the point.

Problems of congestion, captive audiences, and security

can be and—at the New York airports and many others

throughout the country—are easily ameliorated by time,

place, and manner rules. Indeed, the points are really

non-issues, as the petitioners do not seek to distribute

literature or solicit contributions in the places giving rise

to these concerns.

The claim that a “pedestrian delay of . . . seconds

could very well cause loss of hours in travel time because

of a missed plane,” Resp. Br. 24, while seemingly dra-

matic, ignores reality. In the years in which the Port

has permitted distribution and solicitation at the airports,

it has been unable to document even a single case of a

“missed plane” on account of these activities. The Port’s

generalized assertions of congestion fare no better, since,

as the district court observed, under that theory, “the

clogged and narrow arteries of downtown Manhattan

might, as easily, he denied public forum status.” App.

45, 721 F. Supp. at 578.

None of the places that the Port claims attract “cap-

tive audiences’—“enplaning and deplaning points, at

ticket counters, security checkpoints, baggage conveyor

|

5

belts, and car rental and other ground transportation

counters,” Resp. Br. 27—are at issue. The Port relies

on Lehman v. City of Shaker Heights, 418 U.S. 298, 307

(1974) (Douglas, J., concurring), but this is not a case

about a city bus, but, in effect one about a city—large-

scale open areas and miles of walkway encompassing com-

mercial and non-commercial facilities of every kind.

The security areas, see Resp. Br. 28, are also a non-

issue. They are apart from general circulation areas, and

the petitioners have always treated them accordingly.

The assertion that airports are not fora because they

“are separated from the city streets of nearby communi-

ties by ribbons of highways,” Resp. Br. 25, makes little

sense. The highways are there not to “separate” the air-

ports from, but to link them with, the whole urban infra-

structure. Perhaps even less supportable is the thesis that

the airports “do not serve as ‘a necessary conduit in the

daily affairs of a locality’s citizens,’ ” Resp. Br. 26 (quot-

ing Heffron, 452 U.S. at 651), a notion that would shock

the tens of millions for whom the airports are a “con-

duit” of signal importance in their everyday lives.

The Port posits no logical nexus between user financ-

ing, see Resp. Br. 27-28, and the concept of the public

forum. Regardless of the source of the airports’ funding,

the Port Authority’s charter is to operate them as “an

essential governmental function.” See Pet. Br. 4 (quoting

constitutive statutes). United States v. Kokinda, 110 S.

Ct. 3115 (1990), cited by the Port, is inapposite since,

among other things, the Port Authority is, unlike the

Postal Service, not a player in a “competitive” “market.”

Id. at 3123. Metropolitan airports in New York are—

like those everywhere else in the country—an office of

government.

B. The Nonpublic Forum Cases Are Inapposite.

Trying to demonstrate that the petitioners “virtually

ignore the public forum analysis principles enunciated by

this Court,” Resp. Br. 29, the Port sets up a row of straw

6

men. It asserts, (a) “This Court has made it clear that

a place is not a public forum merely because it resembles

a public street,” Resp. Br. 29 (emphasis added); (b)

“This Court has explicitly stated that a public forum does

not exist merely because persons are freely permitted to

enter a government owned site,” Resp. Br. 30 (emphasis

added); and ‘c) “{T]he usefulness of government prop-

erty as a site for expressive activity does not make such

property a traditional public forum .. .,” Resp. Br. 31.

Petitioners do not rely on such one-dimensional, ab-

stract claims.' Nor did the uniform—until this case—line

of circuit authority involving major transportation cen-

ters, also wrongly disparaged as “ignor{ing] the reason-

ing of the decisions of this Court.” Resp. Br. 32. The

seminal court of appeals decision observed that “the char-

acter and function of the {Port Auhority Bus| Terminal

make clear that it is a thoroughfare used by thousands

of people each day.” Wolin v. Port of N.Y. Auth., 392

F.2d 83, 89 (2d Cir.), cert. denied, 393 U.S. 940 (1968).

Cases concerning airports used fully analogous reasoning,

as did the FAA. See Pet. Br. 20.

1 The particular cases the Port cites serve it no better. Greer v.

Spock, 424 U.S. 828 (1976), relied on “ ‘the historically unques-

tioned power of a commanding officer summarily to exclude civilians

from the area of his command.’” Jd. at 837 (quoting Cafeteria

Workers Local 473 v. McElroy, 367 U.S. 886, 893 (1961)); see

United States v. Kokinda, 110 S. Ct. 3115, 3121 (1990) (plurality

opinion) (describing Greer). Other cases involve places closed to

general public use. See Members of the City Couneil v. Taxpayers

for Vincent, 466 U.S. 789 (1984) (utility poles); United States

Postal Serv. v. Council of Greenburgh Civie Ass'ns, 453 U.S. 114

(1981) (household mail boxes); Adderley v. Florida, 385 U.S. 39

(1966) (curtilage of jailhouse). In Lehman v. City of Shaker

Heights, 418 U.S. 298 (1974), the placement of political advertise-

ments inside city buses would have imposed upon a “captive au-

dience.” Jd. at 304 (plurality opinion), 307 (Dougles, J., concur-

ring). The narrow strip of pavement serving a post office parking

lot in Kokinda is wholly unlike the massive complexes of modern

air terminals. See Pet. Br. 36-38.

7

C. The Terminals Are Fora By Both Tradition and

Recent Convention.

Petitioners have shown that the public spaces of air-

port terminals must be considered public fora “either

by tradition or recent convention.” Members of the City

Council v. Taxpayers for Vincent, 466 U.S. 789, 815 n. 32

(1984). See Pet. Br. 17-35. The Port Authority’s efforts

to refute the conclusion do not succeed.

In terms of recent convention, the FAA acknowledged

over a decade ago that “/i]n recent years it has become

a common practice for various religious and non-profit

organizations to use commerciai airports as a forum for

the distribution of literature, the solicitation of funds, the

proselytizing of new members, and other similar activi-

ties.” 45 Fed. Reg. 35,314 (1980). The Port protests

that petitioners “refer only to two decades’ experience”

out of the “approximately 60 years” that airports are

said to have existed. Resp. Br. 36. A third of the total

period is significant in itself; moreover, it is only in rela-

tively recent years that airports have taken on the urban

characteristics that now prevail and that continue to

burgeon.*

Petitioners have also shown that airports are but the

most recent prominent form of transportation nodes that,

over centuries, have traditionally been places where ideas

and information have been exchanged. The Port does not

controvert this fundamental point, but instead tries un-

successfully to nitpick some of the examples petitioners

have given.

* The Port says that “the so-called ‘tradition’ . . . has existed only

because of litigation against airports, most of which was com-

menced by Plaintiffs.” Resp. Br. 36. The claim rings hollow com-

ing from the Port Authority, whose airports were among the many

that permitted distribution and solicitation before any litigation.

In any event, the forum status even of streets and parks has hardly

been uncontested. Compare Hague v. CIO, 307 U.S. 496 (1989)

with Davis v. Massachusetts, 167 U.S. 43 (1897). Municipalities

continue to disclaim streets as public fora. See Frisby v. Schultz,

487 U.S. 474 (1988).

8

The Port first contends that “reference to the alleged

decline of downtown street life... is clearly irrelevant

; .” Resp. Br. 34. Petitioners do not argue, however,

that airports are fora because downtowns have declined,

but point out only that this decline has been reflected in

the increased presence and importance of analogous fora

in other places, notably including airports. See Pet. Br.

16. Justice Kennedy has noted that, “[als society be-

comes more insular in character, it becomes essential to

protect public places where traditional modes of speech

and forms of expression can take place.” United States

v. Kokinda, 110 S. Ct. 3115, 3125 (1990) (Kennedy, J.,

concurring in the judgment). While Justice Kennedy

concluded that the narrow, single-function purpose of a

suburban post office—“that is, facilitating its customers’

postal transactions”—justified a ban on solicitation,

though evidently not on literature distribution, on the

parking-lot-to-doorway ramp, see id. at 3126, today’s air-

ports present a different, far more complex, variegated,

and interactive environment. In any event, the ban the

Port has imposed is much broader than that at issue in

Kokinda,

Next the Port asserts that “the public forum status

of wharves, and their uses as sites of the distribution of

literature, are clearly irrelevant to the case at bar be-

cause unlike air terminals, wharves ‘served as business

streets.’’’ Resp. Br. 34. But serving as streets and being

streets are not the same thing; indeed, just as wharves

once did, airports now serve as business streets within

their context. Even if wharves and streets sometimes

physically coincided, they certainly did not always do so.

One of the ordinances struck down in Schneider v. State,

308 U.S. 147 (1939), for example, viewed streets and

wharves as separable categories in its ban on handbilling

“in or upon any sidewalk, street, alley, wharf, boat land-

ing, dock or other public place, park or ground within

the City of Milwaukee.’” Jd. at 155. The Port also says

that “the ‘exchange of ideas’ in colonial port districts

occurred in private places, such as clubs, coffee houses

)

and taverns.” Resp. Br. 34-35. While true as far as it

goes, the Port’s dip into history leaves out the simul-

taneous importance of public wharves in these activities.

See Pet. Br. 22.

Similar inaccuracy characterizes the Port’s argument

that “the alleged role of rail terminals as publie fora is

irrelevant because rail terminals, unlike Port Authority

air terminals, are located in the center of a city.” Resp.

Br. 35. It is actually the Port’s claim that is irrelevant.

See Frisby v. Schultz, 487 U.S. 474 (1988) (residential

streets remote from city center were quintessential fora).

In any event, as petitioners have noted, towns were often

built up around railroad stations, Pet. Br. 26, a phenome-

non repeated today as new business districts are created

around airports. Contrary to the Port’s apparent posi-

tion, see Resp. Br. 35, moreover, airports are doing every-

thing they can to attract and keep the attention of non-

passengers, sce e.g., Pet. Br. 32-34. And the fact that the

railroad stations were often privately owned, see Resp.

Br. 35, does not gainsay the tradition carried over to

metropolitan airports, all of which are publicly owned.

On its next point, the Port is compelled to feint in a

different direction, but no more successfully. It does not

dispute the widespread practice of religious groups’ sell-

ing tracts to arriving immigrants at Ellis Island and

its predecessors, Castle Garden and the Barge Office.

That the authorities may have provided selective access

that would be unacceptable today, what seems to be the

Port’s point, see Resp. Br. 35-36, is at best a sidelight to

the central fact the transportation nodes have long been

natural and appropriate places for the kinds of activities

that petitioners have engaged in.

D. The Uses to Which a Forum Is Put Cannot Be

Separated From Its Purpose.

Petitioners have presented extensive documentation, ap-

plicable to both the New York airports and airports na-

tionwide, demonstrating that airports not only “facili-

tate,” but are vital to, “the daily commerce and life” of

10

the communities which they serve. Kokinda, 110 §S. Ct.

at 3120. “If our public forum jurisprudence is to retain

vitality, we must recognize that certain objective charac-

teristics of government property and its customary use

by the public may control the case.” /d. at 3125 (Ken-

nedy, J., concurring in the judgment).

Airports have become commercial and social “gathering

places.’”’ While “two people in Midtown Manhattan” might

not “agree to meet at any of the Port Authority air-

ports,” Resp. Br. 35, a resident of Manhattan might well

meet a traveler at the business conference facility at

LaGuardia. See Laurie McGinley, Airports Try to Ease

the Pain of Waiting with New Ways for Fliers to Spend

Money, Wall St. J., Aug. 21, 1990, at B1.

Organizations also increasingly use airport venues like

the Newark Airport Marriott Hotel for conventions and

meetings, “instead of the glamour and status of a down-

town hotel.” Lynette Hazelton, First Rate Conventions

You Can Afford, Black Enterprise, Mar. 1989, at 76. The

reason is not that airports are isolated and remote, Resp.

Br. 26-27, but because airports sites are efficient, see

Katherine Rodeghier, Airport Hotels Reap Day-Trip Con-

ferences, Crain’s N.Y. Bus., Oct. 24, 1988, at 27.

Closely linked to the airport business centers is the

growth of retail establishments to serve both travelers

and non-travelers. Despite the Port’s efforts to minimize

this trend by counting articles in .lirport Services maga-

zine, Resp. Br. 38 n.26, the fact remains that the devel-

opment of retail centers is “currently one of the most

active areas of change in the airport facility.” G.F.

Doughty, Review of Passenger Service Issues at Air-

ports, in Airports for People 9 (1988). This “striking

trend,” Winged Victories, Architectural Rec., June 1989,

at 130, is not merely “ancillary” to the airports’ purpose,

Resp. Br. 39, but has become an integral to their func-

tion and design, e.g., Paul H. Wright & Norman J. Ash-

1]

ford, Transportation Engineering: Planning and Design

622 (1989).

The impetus underlying this retail growth is that air-

ports stand to gain from the increasing amount of time

that travelers, as well as meeters and greeters and air-

port employees, spend in the terminals. The average pas-

senger, for example, spends a “minimum of 45 minutes”

of “dwell time” in the terminal. Greg Irsfeld, Airport

Concessions Reflect New Awareness of Market Demands,

Airport Services, May 1989, at 40. These people are

not, as the Port suggests, Resp. Br. 24, frantically

running along “terminal pedestrian routes” to catch a

plane or arrange for ground transportation, but rather

are waiting for a flight to depart.

Nor do “meeters and greeters” go to the airport

strictly for “travel-related” purposes. To the contrary,

“the meeter greeter well-wishers who come to the airport

to pick up or see off passengers . . . spend a lot of time

in the airport, an average of 65 minutes .... Those

seeing travelers off come to have a meal and chat with

departing customers. Those meeting arriving passengers

come to the airport early and browse, shop and snack.”

Ira Weinstein & Juliette Madrigal, Airport Customers

and Their Needs for the 1990, Airport Services, May

June 1991, at 18, 19.

The commercial development of airport terminals, in-

cluding those at issue here,* confirms that while persons

present in airports may spend much of their time engaged

in travel related activities, a significant amount of the

time is also spent in non-travel activities.

* The record of this case, contrary to the Port’s suggestion, Resp.

Br. 36, substantiates the New York airports—the Nation’s leading

airport complex—as fitting solidly within this trend. Petitioners

have described in detail the commercial goods, services, and ameni-

ties offered in the three airports, ¢.g., JA 181-93. Secondary au-

thorities are also important, however, to describe phenomena and

trends nationwide, inasmuch as the outcome of this case will affect

all airports. In any event, the Port acknowledges that its airports

are not “atypical” of airports nationwide. Resp. Br. 23 n.14.

12

Price controls and other measures adopted by airports

to govern such retail facilities, moreover, are not intended

merely “to prevent unfair advantage being taken of the

air traveler.” Resp. Br. 38 n.25. Rather, the public

“will find prices in the terminal competitive with about

what they’d expect to pay off-airport,”’ because of the air-

ports’ understandable preference that consumers spend

their money in the airport rather than outside of it. Irs-

feld, supra, at 42. The uses to which the Port Authority

has put its terminals thus reinforce their status as public

thoroughfares. Indeed, airports, including the New York

area airports, have adjusted their priorities “to meet the

changing customers’... . needs so they are viewed not

just a place for airplanes, and not just as a place for

passengers, but as a place for people.” Weinstein &

Madrigal, supra, at 20.

E. The Expressive Activities Permitted Under the

Resolution Confirm That Airport Terminals Are

Appropriate Places for the Distribution of Religious

Literature and Solicitation of Donations.

Petitioners do not seek access to the airport terminals

merely because they are “useful” for their activities.

Resp. Br. 31. Rather, petitioners wish to distribute re-

ligious literature and solicit voluntary contributions in

the airport concourses because they are public thorough-

fares which provide ‘an appropriate place for the exercise

of vital rights of expression.” Kolinda, 110 S. Ct. at

3125 (Kennedy, J., concurring in the judgment).

Although the Port Authority regulation absolutely pro-

hibits the distribution of literature, and the solicitation

and receipt of voluntary contributions, many other forms

of expression, including picketing, demonstrating, and

political campaigning, are permitted so long as they do

not constitute a “danger to persons or property,” or “in-

terfere” with waiting lines, pedestrian or vehicular travel,

the issuance of tickets and boarding passes, luggage or

cargo movement, security, government inspection proce-

13

dures, and cleaning, maintenance, repair and construction

activities. JA 523-24.'

On this basis alone, there is “a powerful argument

that, because of the wide range of activities that the

[Port] permits to take place {in the terminals], it is

more than a nonpublic forum.” Kokinda, 110 S. Ct. at

3125 (Kennedy, J., concurring in the judgment). The

Port does not deny, for example, that political campaign-

ing, with its attendant hordes of media, supporters, staff,

and security, is permitted in the New York terminals,

not to speak of airports nationwide. See, e.g., Bill Turque

et al., Southern Voters: Beyond Bubbas and Yellow Dogs,

Newsweek, Mar. 9, 1992, at 35; Karen De Witt, The

1992 Campaign, N.Y. Times, Mar. 13, 1992, at A16.

Recently, President Boris Yeltsin of Russia used JFK

to address the media and set the stage for his meetings

with leaders of the United Nations and his summit with

President Bush. Sce Robert D. MacFadden, Leaders

Gather in New York to Chart a World Order, N.Y. Times,

Jan. 31, 1992, at Al. And large demonstrations for and

against controversial public figures like Prof. Leonard

Jeffries of CCNY are regularly permitted in the termi-

nals, subject to reasonable restrictions designed to avoid

interference with airport operations. See Don Broderick

& Marianne Goldstein, Prof Ducks Friends & Foes at

JFK, N.Y. Post, Aug. 15, 1991, at 2.°

‘The Port asserts that the “repetitive solicitation and distribu-

tion of literature ... have the highest adverse effects on air travelers

in an airport.” Resp. Br. 42. The Port, of course, provides no proof

or evidence of such adverse effects, sce ¢.g., United States v. Grace,

461 U.S. 171, 182 (1983) (no evidence that “appellees’ activities in

any way obstructed the sidewalks or access to the building, threat-

ened injury to any persons or property, or in any way interfered

with the orderly administration of the building or .. . grounds”),

and the record of this case is precisely the opposite of the Port's

claim,

*In connection with the Jeffries demonstration, which was at-

tended by 400 placard-waving supporters and 15 protesters inside

the terminals, the Port Authority simply allowed Jeffries to leave

the IAB through a back exit. Jd.

14

Thus, although the Port Authority “may intend to im-

pose some limitations on the |airport’s] use,” Kokinda,

110 S. Ct. at 3125 (Kennedy, J., concurring in the judg-

ment), it is evident that the wide range of expressive ac-

tivities that is permitted in airport terminals makes such

facilities appropriate places for the distribution and sale

of literature and the solicitation of voluntary donations

from the public.

Il. THE COURT BELOW ERRED IN UPHOLDING THE

SOLICITATION BAN.

The Port Authority resolution prohibits both the dis-

tribution of literature and the solicitation of contribu-

tions. The panel majority below divided the ban, holding

that the Port could prohibit solicitation, but not litera-

ture distribution.

The Port asserts that literature distribution has essen-

tially the same “effects on pedestrian flow” as does solici-

tation, Resp. Br. 43, although it is unable to document

any deleterious effects from either activity. The Port,

moreover, suggests no severability. Because the Port

neither distinguishes the effects of the activities nor seeks

severance, the court of appeals erred in applying separate

analyses to literature distribution and solicitation. In-

stead, it should have judged the resolution in its entirety

—a total ban on both activities.

In any event, no differential impact from solicitation

is of sufficient magnitude to justify the result it reached.

Every form of speech has some external impacts. Yet

the Constitution and common law consistently demand

that such impacts be tolerated.

Minority religious organizations, like petitioners’, fre-

quently trigger official regulation, which is motivated not

only by the unpopularity of their messages, cf. Larson v.

Valente, 456 U.S, 228, 256-58 (1982) (differential regula-

tion of solicitation designed “to get at... the people

that are running around airports and running around

streets”), but by the physical effects created by their

particular means of expression.

15

For example, before the turn of the century, soon after

the Salvation Army encamped on these shores, its noisy,

eymbal-clanging, horn-playing street marches disturbed

many American localities. The response was municipal

ordinances banning or licensing parades with drums or

musical instruments. The courts—relying more on nat-

ural or common law rights of association and assembly

than on constitutional text—often struck them down.

See, e.g., In re Gribben, 5 Okla. 379, 47 P. 1074 (1897);

City of Chicago v. Trotter, 136 Tl. 430, 26 N.E. 359

(1891); Rich v. City of Naperville, 42 Ill. App. 222

(1891); Anderson v. City of Wellington, 40 Kan. 173,

19 P. 719 (1888); In re Frazee, 63 Mich. 396. 30 N.W.

72 (1886). Nor could convictions of Jehovah’s Witnesses

for breach of the peace stand when they carried Vic-

trolas into Catholic neighborhoods to play virulently anti-

Catholic propaganda. Cantwell v. Connecticut, 310 U.S.

296, 309-10 (1940). Although increased litter is an in-

evitable result of handbilling, the practice may not be

banned to keep the streets clean. Schneider v. State, 308

U.S. 147, 162 (1939).

Disturbing or offensive speech must be tolerated, de-

spite its psychological or economic impact. See, e.g., Texas

v. Johnson, 491 U.S. 397 (1989) (flag burning); Hustler

Magazine v. Falwell, 485 U.S. 46 (1988) (intentional in-

fliction of emotional distress): NAACP v. Claiborne Hard-

ware Co., 458 U.S. 886 (1982) (organized boycott of

businesses). Free speech “may indeed best serve its high

purpose when it induces a condition of unrest, creates

dissatisfaction with conditions as they are, or even stirs

people to anger.”” Terminiello v. City of Chicago, 337 U.S.

1, 4 (1949). This Court has observed that “!m]uch that

we encounter offends our aesthetic, if not our political

and moral, sensibilities.” Erznoznick v. City of Jackson-

ville, 422 U.S. 205, 210 (1975).

Solicitation of funds is at the core of First Amendment

protections. Riley v. National Fed’n of the Blind, 487

U.S. 781, 789 (1988). While the state may regulate

solicitation, it may not “unreasonably obstruct or delay

16

the collection of funds.” See Cantwell, 310 U.S. at 305.

A ban like that at issue here is an extreme form of ob-

struction. Speakers are disabled from seeking support,

and willing listeners prevented from effectively express-

ing that support.

The Court has never sanctioned a complete ban of a

traditional form of protected expression in a_ public

forum. Indeed, like a complete ban on handbilling, so

too would a total prohibition of solicitation “suppress a

great quantity of speech that does not cause the evils

that it seeks to eliminate, whether they be fraud, crimes,

litter, traffic congestion, or noise.” Ward v. Rock Against

Racism, 491 U.S. 781, 799 n.7 (1989).

The Port Authority regulation allows many forms of

expression, but prohibits literature distribution and solici-

tation. Yet a request to donate to a particular cause is

not inherently more intrusive than a request to sign a

cause-related petition, or the delivery of a controversial

speech. Many speakers link solicitation with the distri-

bution of literature as a central feature of missionary

evangelism. Given the Port Authority’s failure to dis-

tinguish solicitation from literature distribution, an ap-

peal for donations should be afforded equal constitutional

dignity.

Ill. THE PORT AUTHORITY’S RESOLUTION IS NOT

A REASONABLE REGULATION OF SPEECH EVEN

IN A NONPUBLIC FORUM.

The Port next attempts to justify the Port Authority’s

total ban on literature distribution and solicitation as a

reasonable regulation of speech in a nonpublic forum.

Resp. Br. 40-45. The nonpublic forum cases support a

more deferential standard, but not unquestioning accept-

ance of unsupported reasons. In cases involving the

use of physical places, like Taxpayers for Vincent and

Kokinda, the Court discussed at considerable length the

extent to which the regulations were narrowly focused

and directly connected to the governmental objectives.

17

In Kokinda, for instance, the regulation before the

Court had been revised many times based on the Postal

Service’s long “real world” experience with solicitation

at its facilities. 110 S. Ct. at 3124 ‘plurality opinion).

The Postal Service was confronted with the administra-

tive nightmare of drafting a rule that would apply ap-

propriately at all of the “tens of thousands of post offices

throughout the nation.” /d. at 3122.

It is clear, see Pet. Br. 44-47, that the relationship

between the Port Authority regulations and the interests

they are alleged to serve lacks the “common sense” of the

Kokinda rule. 110 S. Ct. at 3124. For example, even

apart from the utter lack of evidence suggesting that

expression has in any way exacerbated congestion, closing

many uncrowded areas inside the terminals while rele-

gating solicitation and literature distribution to the ter-

minal exteriors, see Resp. Br. 42, ignores the crowded

and hectic conditions from curbstone to portal. Shuttle

buses, private cars, taxicabs, rental car vans, transit

buses, skycaps, luggage carts and all the passengers and

others using them are crowded into a few feet’s width

of pavement abutting moving traffic. See Brief Amicus

Curiae of the Airports Ass’n Council Int’] at 22 (exterior

sidewalks are “heavily congested areas” inappropriate for

leafleting and solicitation).

Unlike the experiment with solicitation in Kolinda,

the experience not only at the New York airports but at

airports throughout the country points to the ease with

which regulations short of a total ban satisfy any legiti-

mate administrative needs. No one administrative agency

is charged with regulating “tens of thousands” of airport

facilities. The Port Authority and other airports are large

and diverse complexes, covering square miles of land,

virtual cities unto themselves. Airports are typically in-

dependent of one another, with a sizeable local adminis-

tration well attuned to the particular requirements of

each facility.

Because airports have been generally available for

solicitation and distribution of literature for twenty years,

18

the experience of airport administrators fairly reflects

not only the impact of petitioner’s activities, but of al/

organizations that have desired to reach members of the

public at airports. Thus, the concern in Heffron, 452 U.S.

at 654, with the impact not only of one group but all

possible groups has already been put to rest here.

The accumulated experience also belies the claims that

petitioners in particular have caused problems requiring

greater regulation. While the Port Authority points to

unverified complaints during the period from 1975

through 1986, their nature and pattern is, if anything,

a strong argument for the effectiveness of rules short of

a total ban. For example, although there were forty

complaints—overwhelmingly for technical violations—in

1976, the first full year for which records were kept, that

number had dropped to zero in 1980. Although there

were a smattering of complaints thereafter, they were

almost entirely for administrative violations, like not

wearing the proper identification tags or soliciting in the

wrong area. In the seven years beginning with 1980,

there were no complaints of “monetary deception” and

only one complaint of “failure to identify or misrepre-

sentation of organization.” In sum, the assessment of the

Deputy Director of Aviation, Morris Sloane, in 1985—

that, with respect to petitioners activities, “the operation

has gone fairly well”—seems more accurate than the

Port Authority’s belated attempt to smear the petitioners."

“The Port Authority’s effort not only includes a highly selective

characterization of the experience at the New York airports, but

a citation to a 1980 district court opinion involving supposed mis-

conduct in an entirely different setting. Sere International Soc’y for

Krishna Consciousness v. Barber, 506 F. Supp. 147 (N.D.N-Y. 1980),

cert. before appeal denied, 451 U.S. 971 (1981), rev'd, 650 F.2d 430

(2d Cir. 1981); see Resp. Br. at 44. Even more astonishing, the

Port Authority refers to an affidavit of Philip Douglas, counsel for

certain airlines that have long been dismissed from the suit, in

support of a motion to compel discovery. The Douglas affidavit

(which was almost exclusively scurrilous hearsay) was found so

irrelevant to the subject matter of this case as not even to be a

basis for discovery.

19

IV. TO THE EXTENT THE ISSUE IS BEFORE THE

COURT, THE PORT AUTHORITY RESOLUTION Is

NOT A REASONABLE, TIME, PLACE AND MAN-

NER REGULATION.

The Port, finally, seeks to justify the ban on distribut-

ing literature and soliciting donations as a valid regula-

tion of speech in a public forum.” Without ever using the

phrase, “time, place or manner,” the Port argues that its

restrictions “are reasonable and narrowly tailored to serve

significant governmental interests, and leave open ample

alternative channels of communication.” Resp. Br. 46.

The present ban is far more sweeping than a time,

place or manner rule. In the two cases upon which the

Port primarily relies, Ward +. Rock Against Racism, 491

U.S. 781 (1989); Clark +. Community for Creative Non-

Violence, 468 U.S. 288 (1984), far narrower rules were

upheld that permitted substantial access to the forums in

question. In Clark, a rule against camping was upheld

against the claim that it interfered with demonstrators’

sleeping in parks—which the Court assumed to be a kind

of symbolic speech connected with a demonstration on

behalf of the homeless. The rule, however. allowed 24-

hour-per-day demonstrations, including tents erected in

Lafayette Park, to continue uninterrupted, as long as the

demonstrators remained awake. In Ward, the question

Was not whether rock musie performances would be per-

mitted in a particular arena, or even whether the volume

of those performances could exceed a certain level, but

whether the City of New York had chosen a reasonable

means to enforce a maximum volume level.

* The Port admits it Sas not previously claimed that the Port

rule was a valid, content neutral regulation of speech in a public

forum, either in the trial court or the court of appeals. Resp. Br. 46.

Instead, the Port has previously argued that the airports were not

public fora, and has implicitly conceded that, if the airports were

public fora, its regulation would be invalid. Therefore, the record

does not permit a full consideration of whether the ban is a valid

time, place or manner regulation. and the issue is not properly be-

fore the Court.

20

Here, by contrast, the Port Authority regulations ban

all literature distribution and all solicitation from the

terminal areas otherwise open to the public. These are,

moreover, forms of expression not, like rock music and

sleeping in the parks, near the periphery of the Free

Speech Clause, but at its core.

Content neutrality, see Resp. Br. 46-47, cannot alone

validate the Port’s resolution. If it could, the public

forum doctrine would be vitiated. Nor does the supposed

availability of sidewalks outside the terminal as an alter-

native forum, id. at 47, advance the Port’s cause with re-

spect to the interior areas. As the district court noted,

“»ylaintiffs have consistently limited their demands to the

interior of the terminal buildings only.” App. 35, 721

F. Supp. at 574. “[I]n defining the forum, we have

focused on the access sought by the speaker.” Cornelius

v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788,

801 (1985).

Nor may it fairly be said that the Port Authority

resolution is narrowly tailored. Resp. Br. 47. The in-

terests claimed—congestion, annoyance of captive audi-

ences, and fraud—are more’ than adequately addressed

by other means, both in New York and elsewhere.

CONCLUSION

The public forum doctrine powerfully supports “the

intellectual freedom which is essential to the progress of

truth.” Cf. Lord Acton, Essays on Freedom and Power

244 ‘(Peter Smith 1972) (1948). This rationale of the

court below would rob the doctrine of much of its force

and deny to citizens significant opportunities for ex-

pression. The judgment should be reversed to the extent

it upholds the Port Authority’s resolution.

BARRY A. FISHER

Counsel of Record

DAVID GROSZ

ROBERT C. MOEST

FLEISHMAN, FISHER &

MOEST

2049 Century Park E.

Suite 3160

Los Angeles, CA 90067

(310) 557-1077

21

Respectfully submitted,

DAVID M. LIBERMAN

2049 Century Park E.

Suite 3160

Los Angeles, CA 90067

(310) 277-9288

JAY ALAN SEKULOW

1000 Thomas Jefferson St., N.W.

Suite 520

Washington, DC 20007

(202) 337-2273

JEREMIAH S. GUTMAN

EUGENE N. HARLEY

LEVY, GUTMAN, GOLDBERG &

KAPLAN

275 Seventh Ave., Suite 1776

New York, NY 10001

(212) 807-0733

Counsel for Petitioners and Cross-Respondents

March 19, 1992