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

Nos. 91-155, 91-339

Ss

i IN THE

~~ Saupreme Court of the United States

- OCTOBER TERM, 1991

INTERNATIONAL SOCIETY FOR KRISHNA

CONSCIOUSNESS, INC., and BRIAN RUMBAUGH,

7 Petitioners,

WALTER LEF,

eed Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

MOTION FOR LEAVE TO FILE A BRIEF AMICI CURIAE

AND BRIEF AMICI CURIAE OF

MULTIMEDIA NEWSPAPER COMPANY,

THE GREENVILLE NEWS-PIEDMONT COMPANY,

THE ASHEVILLE CITIZEN-TIMES COMPANY,

THE ADVERTISER COMPANY, LEAF-CHRONICLE

COMPANY, BAXTER COUNTY NEWSPAPERS, INC,

OHIO VALLEY PUBLISHING COMPANY,

THE OBSERVER PUBLISHING COMPANY, AND

STAUNTON LEADER PUBLISHING COMPANY

IN SUPPORT OF AFFIRMANCE

IN PART OF THE OPINION BELOW

CARL F. MULLER

Counsel of Record

WALLACE K. LIGHTSEY

WYCHE, BURGESS, FREEMAN &

PARHAM, P.A.

44 East Camperdown Way

Post Office Box 728

Greenville, South Carolina 29602-0728

(803) 242-3131

Counsel for the Amici Curiae

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

IN THE

Supreme Court of the United States

OcTOBER TERM, 199]

Nos. 91-155, 91-339

INTERNATIONAL SOCIETY FOR KRISHNA

CONSCIOUSNESS, INC., and BRIAN RUMBAUGH,

° Petitioners,

WALTER LER,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

MOTION FOR LEAVE TO FILE A BRIEF AMICI CURIAE

The companies listed below, through their undersigned

counsel, respectfully move the Court for leave to file a

brief amic’ curiae, The brief is not in support of either

petitioners or respondent, but rather in support of par-

tial affirmance of the opinion below,

The petitioners have consented to the filing of the brief;

their letter of consent has heen filed with the Clerk of

Court. The respondent has refused such consent.

Movants are the owners of local newspapers of gen-

eral circulation in various parts of the South and the

Ohio Valley. Movants have an interest in the outcome

of this proceeding because they consider the distribution

of their newspapers in their communities’ publie air-

ports to be of great import in their respective locales.

Hence a decision by the Covrt in this case on the ques-

tion whether the public area- of public airports are pub-

lic forums is of substantial concern to movants, both fi-

nancially and philosophically.

Movants have reason to believe that the parties to

this action may not present the facts or matters of law

addressed in the within Brief Amici Curiae. In contrast

to petitioners, movants seek only to distribute newspapers

in public airports through vending machines, a passive

means of distribution. Because petitioners also seek to

solicit funds through active, personal interaction with

people in airports, movants’ perspective may be broader

and perhaps more moderate than that of petitioners. In

contrast to respondent, movants do not believe that all

First Amendment activity in public airports should be

left to the bureaucratic discretion of airport manage-

ment, limited only by a “reasonableness” standard of

judicial review.

For these reasons, the undersigned respectfully re-

quest the Court to grant leave to file the within Brief

Amici Curiae.

Respectfully submitted,

CARL F. MULLER

Counsel of Record

WALLACE K. LIGHTSEY

WYCHE, BURGESS, FREEMAN &

PARHAM, P.A.

44 East Camperdown Way

Post Office Box 728

Greenville, South Carolina 29602-0728

(803) 242-3131

Counsel for the Amici Curiae

Movants:

Multimedia Newspaper Company, The Greenville News-

Piedmont Company, The Asheville Citizen-Times Company,

The Advertiser Company, Leaf-Chronicle Company, Barter

County Newspapers, Inc., Ohio Valley Publishing Company,

The Observer Publishing Company, and Staunton Leader

Publishing Company

TABLE OF CONTENTS

A ay |.

INTEREST OF THE AMICI CURIAE ......000 0...

ARGUMENT ......

THE PUBLIC AREA OF A PUBLIC AIRPORT

SI PPUEEI I 5.3.5 ccc cnccnescecsncacessennsnceeesererees

CONCLUSION |

il

TABLE OF AUTHORITIES

Cases

Chicago Area Military Project v. City of Chicago,

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

SEE TINTED 5.05 ss odinmincentarctalensenapeiibiatainacnedtconsiaammenees

Chicago Tribune Co. v. City of Chicago, 705 F.

& ff *§ ) | ae

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

1981), cert. denied, 458 U.S. 1124 (1982) .......

Gannett Satellite Information Network, Ine. v.

Berger, 716 F. Supp. 140 (D.N.J. 1989), aff'd in

part and rev'd in part, 894 F.2d 61 (3d Cir.

SN eo eee

Gannett Satellite Information Network, Inc. v.

Metropolitan Transportation Authority, 579 F.

Supp. 90 (S.D.N.Y.), rev'd, 745 F.2d 767 (2d

Cir. 1984) | saan cnasemvaan dadimeaaminiaemndeaias POSS

Greer v. Spock, 424 U. Ss. SRE OE ce cncccecancdhinne races

Jamison v. City of St. Louis, 828 F.2d 1280 (8th

Cir. 1987), cert. denied, 485 U.S. 987 (1988)

Jews for Jesus, Inc. v. Board of Airport Commis-

sioners, 785 F.2d 791 (9th Cir. 1986), aff'd, 482

Sr Se I

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

(1974) | . . ea

Lloyd Corp. v. Tanner, 407 U.S. 551 (1972)

Members of City Council v. Taxpayers for Vincent,

466 U.S. 789 (1984) £ mee

U.S. Southwest Africa’ Namibia Trade & Crl-

tural Council v. United States, 708 F.2d 760

OA SEMIN SIIIIIIE cicseunvenadiaccaanssiacaiiadis ack Se

United States v. Kolcinda,

i es I rer ee er ee ener

Ward v. Rock Against Racism, —— U.S. —,

109 S. Ct. 2746 (1989) , mies on .

Wolin v. Port of New York Authority, 392 F.2d

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

or)

6

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

Nos. 91-155, 91-339

INTERNATIONAL SOCIETY FOR KRISHNA

CONSCIOUSNESS, INC., and BRIAN RUMBAUGH,

" Petitioners,

WALTER LEF,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF AMICI CURIAE

IN SUPPORT OF PARTIAL AFFIRMANCE

The undersigned respectfully submit this Brief Amici

Curiae in support of neither petitioners nor respondent,

but rather in support of affirming that part of the opin-

ion below which held invalid the respendent’s prohibition

of the distribution of literature in the public areas of the

airports.

INTEREST OF THE AMICI CURIAE

The amici are nine companies that publish daily and

non-daily newspapers across the South and in the Ohio

Valley. Included within this group are the publishers of

the Asher le Citizen-Times, the largest newspaper in

western North Carolina; the Montgomery Advertiser and

Alahama Jovrval, the daily newspapers of the capital of

Alabama; and The Greenville News and The Greenville

2

Piedmont, the largest newspapers in upstate South Caro-

lina. The group also includes newspaper publishers of

lesser size, such as the publisher of the Daily News-

Leader in Staunton, Virginia, and the Daily Sentinel in

Pomeroy-Middleport, Ohio. Though united under a com-

mon parent headquartered in South Carolina, they are

all published independently.

The amici submit this brief not in favor of any of the

litigants to this appeal, but rather in support of the prop-

osition that public areas of public airports are public

forums under the First Amendment. Regardiess of the

Court’s determination of the other issues on appeal, it

is of great importance to the amic/ for the Court to affirm

the correctness of this proposition.

Through “an unusual consensus of judicial, legisla-

tive, and administrative opinion”, U.S. Southicest

Africa Namibia Trade & Cultural Council vo United

States, 708 F.2d 760, 766 (D.C. Cir. 1983), virtually

every court to address this issue has held that the public

areas of public airports are public forums.' Yet not

every state or federal circuit has been called upon to

make that determination. For this reason, the issue,

though litigated many times with virtually the identical

result in every case, will continue to be litigated in the

future until this Court plainly states its position.

1 See also, e.g., Jamison v. City of St. Louis, 828 F.2d 1280, 1285

(Sth Cir. 1987), cert. denied, 485 U.S. 987 (1988): Jews for Jesus,

Inc. v. Board of Airport Commissioners, 785 F.2d 791, 793-95 (9th

Cir. 1986), aff'd on other grounds, 482 U.S. 569 (1987). Fernandes

v. Limmer, 663 F.2d 619, 626-27 (5th Cir. 1981), cert. denied, 458

U.S. 1124 (1982); Chicago Area Military Project v. City of Chicago,

508 F.2d 921, 924-26 (7th Cir.), cert. denied, 421 U.S. 992 (1975);

Gannett Satellite Information Network, Ine. v. Berger, 716 F. Supp.

140, 149 (D.N.J. 1989), aff'd on this ground and rev'd in part on

other grounds, 894 F.2d 61 (3d Cir. 1990); Chicago Tribune Co.

v. City of Chicago, 705 F. Supp. 1345, 1347-48 (N_D. TIL. 1989).

Were the issue of only passing legal significance, liti-

gation of the same issue, with the same result time after

time, would be no more than grist for the lawyers han-

dling those cases and for those who rightly complain of

our courts being clogged with unnecessary matters.

But this issue is more. It is not only of constitutional!

dimension, but it also arises under the First Amendment,

which this Court has recognized many times as requiring

special solicitude. More importantly, it affects not just

the Krishnas, or some other relatively small but notice-

able element of our society. It affects everyone, including

newspaper publishers of the type which have submitted

this brief, because virtually everyone in this country uses

the public areas of public airports many times during the

courses of their lives. Those who ask to use these areas

as public forums for legitimate First Amendment pur-

poses should not be put to the considerable delay and

enormous expense of protracted court battles to determine

an issue that is as settled in the law as any can be with-

out a clear statement from this Court. Those who have

no such aims, but instead would simply hear or see the

proffered communication, are entitled either te have it

and have it promptly, or else to have the comfort of

knowing that its denial was not the result of an airport

manager's decision to use the public treasury to fight a

battle that has been fought and lost elsewhere many

times.

a

ARGUMENT

THE PUBLIC AREA OF A PUBLIC AIRPORT IS A

PUBLIC FORUM.

The defining characteristics of a public forum § are,

first, that it be a place where people gather, and second,

that it be an appropriate place for the expression and

discussion of issues and ideas by the public at large. It

is an unfortunate fact that the streets and parks of our

country do not serve the same role for publie gathering,

discussion, and debate today as they did in 1791. Apart

from privately owned shopping malls ‘in which the prop-

erty Owner may substantially restrict: expressive activ-

ity *), increasingly today the public gathering places are

governmentally owned transportation centers, such as bus

terminals, railroad stations, and in particular, airports.

In most cities today, the town square is a desert compared

to the local public airport. The airport serves as a meet-

ing place for businessmen and friends, a location for

public announcements by political candidates and govern-

ment officials, and a place where the public may shop, eat,

have a drink, or sit and watch the airplanes or the

people. In functional terms, the airport is an essential

part of the daily commerce and movement of people,

capital, and ideas in our loca! communities. All this is

true not just of large airports such as the ones involved

in the instant action, but also of the many smaller re-

gional airports located throughout the country.

In evaluating whether such a gathering place is an ap-

propriate locale for the free expression and discussion of

issues and ideas by the public at large, two paramount

concerns must be addressed: whether such freedom of

expression would significantly undermine or threaten the

legitimate primary activities of the facility, and whether,

because of the physical structure of the facility, members

of the public who use it for its primary purpose might

2 See Lloyd Corp. v. Tanner, AOT US. 551 61972).

5

be forced to endure for more than a passing moment

communications which they would prefer not to receive.

It is for these reasons that military bases and street

cars are not public forums. See Greer v. Spock, 424 U.S.

828 (1976); Lehman v. City of Shaker Heights, 418 U.S.

298 (1974). It is for these reasons also that a narrow

sidewalk leading only from a parking lot to a post office

may not be a public forum, either. See United States v.

Kokinda, U.S. , L110 S. Ct. 3115 (1990).

For these same reasons, the public area of a public

airport is a public forum. Experience has shown that

allowing it to be used for expressive purposes—subject

to proper time, place, and manner restrictions—will not

threaten or undermine the primary purpose of the air-

port. Further, the physical structure and customary

use and features of the typical airport eliminate any

possibility that it can be used by speakers to foist an

unwanted message on a captive audience. The typical

public airport is open, spacious, bustling, noisy, readily

accessible to the public at large, and composed of a mul-

titude of passageways on different levels." It is quite

common for public airports to contain banks, restaurants,

lounges, outdoor terraces, gift shops, travel agencies,

rental car bureaus, and numerous public seating areas,

restrooms, and telephones—in short, precisely the types

of commercial establishments and public facilities that

one encounters on the streets of the local community.

Vast numbers of people are freely admitted to public air-

ports, and admission is not restricted to those who wish to

use them solely in connection with air travel. Public air-

ports function as major publie thoroughfares and, for

hundreds of millions of people a year, are the gateways

to and from their respective communities.

*Cf. Lehman, 418 U.S. at 303 (“Here, we have no open spaces .

or other public thoroughfare.”) (plurality opinion).

6

In one of the formative decisions on public forums, the

Court of Appeals for the Second Circuit described the

physical characteristics of the Manhattan bus terminal

that made it a public forum, using language directly ap-

plicable te publie airports:

“Unlike an office building corridor or an apartment

house hallway, the people are not simply using the

connecting passageway to reach a place where they

engage in different, more pacific or reflective activ-

ities. They are in the Terminal for the principal

purpose of moving to and from other means of trans-

portation—and the space is designed for precisely

the purpose of transit. With the scope of operations

so vast, the enclosure is desirable and indeed neces-

sary if the congestion and confusion that would at-

tend if all waited for buses on the street are to be

avoided. In other times or better climes travelers

have waited by the roadside or under some shelter

for the oncoming vehicle. But here, the buses drive

into the building and the passengers meet them there.

The terminal, with its many adjuncts, becomes some-

thing of a small city—but built indoors, with its

‘streets’ in effect set atop one another, . . . not

unlike some futuristic design for urban living.”

Wolin v. Port of New York Authority, 392 F.2d 838, 89

(2d Cir.) (citation omitted), cert. denied, 393 U.S. $40

(1968).*

In short, all of the physical and functional character-

istics of the airport make it an appropriate place for

' See also U.S. Southwest Africa Namihia Trade & Cultural Coun-

cil vw. United States, 708 F.2d 760, 766-67 (D.C. Cir. 1983) ‘dis-

tinguishing airport terminal from streetcars involved in Lehman) ;

Gannett Satellite Information Network, Inc. ». Metropolitan Trans-

portation Authority, 579 F. Supp. 90, 96 (S.D.N.Y.) (| U \nlike the

streetcar in Lehman, fa commuter rail station! is not unduly con-

fined, and contains waiting rooms, concourses, passageways, and

platforms that are in many ways analogous to the street corners

and meeting halls which are the traditional public forums.”), rev'd

on other grounds, 745 F.2d 767 (2d Cir. 1984).

7

the free exercise of speech and press, subject to such re-

striclions as are permissible in public forums.

“The first amendment is not an abstract proposi-

tion; our society’s commitment to free speech must

exist in fact as well as in principle. In fact, the

open, public areas of {the public airport] have be-

come contemporary crossroads in which millions of

people each year engage in a considerable amount of

commercial, social, and political interchange. As the

FAA itself recognizes, ‘in many respects, the ter-

minals are like any other public thoroughfare where

there is no question that the constitutional guaran-

tee|| of freedom of speech . . . appllies].’”

U.S. Southwest Africa Namibia Trade & Cultural Coun-

cil v, United States, 708 F.2d 760, 774 (D.C. Cir. 1983)

(quoting 45 Fed. Reg. at 35,314) (brackets in original).

If public forum analysis is to retain its vitality in a

changing society, the notion of the “traditional public

forum” cannot be confined to streets and parks per se,

and no Supreme Court precedent suggests that it should

be so confined. To the contrary, in Members of City

Council v. Taxpayers for Vincent, 466 U.S. 789 (1984),

the Court noted that traditional public forums are “those

clearly held in trust, either by tradition or by recent

convention, for the use of citizens at large.” Jd. at 815

n.$2 (emphasis added).

If public forums exist only in the streets and parks

and in those places which the government has devoted

to unrestricted communicative activity, the continued

existence of the public forum will come to rest wholly

in the hands of the government as the streets and parks

cease to be natural gathering places.” Such a result is

* The streets and parks themselves did not become public forums

because the yovernment opened them up for unrestricted expressive

activity by the public; they became public forums because they were

the natural gathering places of the people and because they were

appropriate places for free expression and discussion. A colonial

&

fundamentally at odds with the First Amendment. Jus-

tice Kennedy cautioned in his opinion concurring in the

judgment in United States v. Kokinda:

“As society becomes more insular in character, it

becomes essential to protect public places where tra-

ditional modes of speech and forms of expression can

take place.

“e

.

“If our public forum jurisprudence is to retain vital-

ity, we must recognize that certain objective charac-

teristics of Government property and its customary

use by the public may control the case.”

Id, at 110 S. Ct. at 3125 (Kennedy, J., concurring

in the judgment). As discussed above, both the “objective

characteristics” and the “customary use” of the typical

public airport give it the status of a public forum.

Recognition of the public areas of public airports as

public forums will not mean the end of public air travel

in a safe, orderly, and enjoyable manner. The govern-

ment may regulate expression in a public forum. All that

is required is that the regulation be content neutral, that

it relate to the time, place, or manner of expression, that

it be narrowly tailored to serve a significant govern-

mental interest, and that it leave open adequate alterna-

tive channels of communication. E.g., Ward v. Rock

Against Racism, US. , 109 S. Ct. 2746, 2753

(1989). Under this rule of law, airport managers have

umple means to keep out bullhorns, to limit the numbers

of contemporaneous speakers, and to restrict or perhaps

even prohibit highly intrusive personal solicitations of

ulms.

This country has drawn its strength and spirit from

a free exchance of ideas, and often that exchange has

patriot who wished to stir up the crowd ayainst the British would

use a street or park because he would have an audience there, not

because the British allowed speeches in the streets and parks.

9

occurred in public forums. Often it has not been alto-

gether pleasant at the time, but ultimately it has been

good for our country and her people. Two centuries ago

that exchange occurred on the commons of New England

towns. Three decades ago it occurred on the sidewalks

and statehouse grounds and in the bus stations of the

South. As the lives of our people have changed, so too

have their public forums, as indeed they must if the

public forum is to serve effectively as the instrument of

liberty which it always has been and always shall be

under the First Amendment.

CONCLUSION

The Court should hold that the public area of a public

airport is a public forum and affirm that part of the

opinion below which invalidated respondent’s prohibition

of the distribution of literature.

Respectfully submitted,

CARL F. MULLER

Counsel of Record

WALLACE K. LIGHTSEY

WYCHE, BURGESS, FREEMAN &

PARHAM, P.A.

44 East Camperdown Way

Post Office Box 728

Greenville, South Carolina 29602-0728

(803) 242-3131

Counsel for the Amici Curiae

Amic:

Multimedia Newspaper Company, The Greenville News-

Piedmont Company, The Asheville Citizen-Times Company,

The Adve rtiser Company, Leat-Chronicle Company, Baste r

County Newspapers, Ine., Ohio Valley Publishing Company,

The Observer Publishing Company, and Staunton Leader

Publishing Company