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

Nos. 91-155 & 91-339

ass we

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1991

INTERNATIONAL SOCIETY FOR KRISHNA

CONSCIOUSNESs, INC., and BRIAN RUMBAUGH,

Petitioners,

Vs.

WALTER LEE, Superintendent of Port Authority Police,

Respondent.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Second Circuit

BRIEF AMICI CURIAE OF THE AMERICAN TRACT

SOCIETY, CHRISTIAN ADVOCATES SERVING

EVANGELISM, FREE SPEECH ADVOCATES AND

CONCERNED WOMEN FOR AMERICA IN SUPPORT OF

PETITIONERS

THOMAS PATRICK MONAGHAN JAMES MATTHEW HENDERSON Sr.

6375 New Hope Road Counsel of Record

New Hope, KY 40052 MARK N. TROOBNICK

(502) 549-5454 1000 Thomas Jefferson Street NW

Suite 520

CHARLES E. RICE Washington, DC 20007

NoTRE DAME LAW SCHOOL (202) 337-2273

Notre Dame, IN 46556

(219) 239-5667

Attorneys For Amici Curiae

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

QUESTION PRESENTED

1. Whether the distribution of free religious liter-

ature may be prohibited from public concourses of

Port Authority Airports?

2. Whether the distribution of free religious liter-

ature is a form of expression which is compatible with

the environs of the public concourses of Port Au-

thority Airports?

il

TABLE OF CONTENTS

Page

a eemeneunbenenmane i

a ccuuvieuininboonnune ii

ee eS ccseueudameccenteteecosecs ili

BINT GP FABIITE COUIBATE oncececccvcccccccecccvcccccccocceses l

MUIEMBARY OF AMGUDBIENT ....2<c.cccccoccccccoccccccccccccccccsss. 3

EEE EEE EEE Oe 5

1. DISTRIBUTION OF FREE RELIGIOUS LIT-

ERATURE IS WELL-RECOGNIZED AS A

CONSTITUTIONALLY PROTECTED FORM OF

EXPRESSION. ..... (ESTES Ee 7

Il. WHETHER THE PORT AUTHORITY’S AIR-

PORT TERMINALS ARE TRADITIONAL PUB-

_ LIC FORUMS OR NONPUBLIC FORUMS, THE

PORT AUTHORITY’S BAN ON DISTRIBUTION

OF FREE RELIGIOUS LITERATURE DOES

NOT WITHSTAND CONSTITUTIONAL

a eds nldiainieemnnitie 10

A. THE PORT AUTHORITY’S PUBLIC AIR-

PORT TERMINALS, ESSENTIAL PUBLIC

THOROUGHFARES IN THE LIVES OF

THE COMMUNITIES THEY SERVE, ARE

TRADITIONAL PUBLIC FORA. ................ 10

B. EVEN IN A NONPUBLIC FORUM, A TO-

TAL BAN ON LEAFLETTING IN AREAS

OF PUBLIC AIRPORT TERMINALS OTH-

ERWISE OPEN TO THE PUBLIC WOULD

BE UNCONSTITUTIONAL. ........................ 19

Nee ec psumuenerunrencocess 22

iil

TABLE OF AUTHORITIES

CASES: Page(s)

Adderley v. Florida, 385 U.S. 39 (1966) .........000.. 15-16

Board of Airport Commissioners v. Jews for Jesus,

SE EE EY EEE sic ciceeirennnemnnisalioneniameiaseueabin 18

Cafeteria Workers v. McElroy, 367 U.S. 886

EINE itd iiclatelsiashaasiaatdanpsiantadasieanieiipaiinadinenteasioosndstcosietds 15

Cornelius v. NAACP Legal Defense and Education

Fund, 473 U.S. 788 (1985) ........................ 3°4,6-7.20

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

EL Sadalictealoaspabhninabaiiddigdaedadedbiisedadainnicecineemnicndiens 1]

Flower v. United States, 407 U.S. 197 (1972) ....... 13-14

Frisby v. Schultz, 487 U.S. 474 (1988) ............. 22

Grayned v. City of Rockford, 408 U.S. 104

III irdinsisiaslt dics hasadueidinanniesionsenansmeneeseneumebosniecieass 21

Greer v. Spock, 424 U.S. 828 (1976) ...............cc008 15

Hague v. CIO, 307 U.S. 496 (1939) .................... 10,13-i4

Heffron v. International Society for Krishna Con-

sciousness, 452 U.S. 640 (1981) ...................... 7-8,13

Hudgens v. NLRB, 424 U.S. 507 (1976) ..........0.0... 13

International Society for Krishna Consciousness v.

Lee, 721 F. Supp. 572 (S.D.N.Y. 1989) ...... 4, passim

International Society for Krishna Consciousness v.

Lee, 925 F.2d 576 (2d Cir. 1991) ............... 4, passim

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

i a 11

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

stoners, 785 F.2d 791 (9th Cir. 1986)) ........... 4,11

Lovell v. City of Griffin, 303 U.S. 446 (1938) ...0000.. 4,7-9

Marsh v. Alabama, 326 U.S. 501 (1946) ..0..00.000.... 13-14

Members of City Council of Los Angeles v. Taxpay-

ers for Vincent, 466 U.S. 789 (1984) ...... 10-11,13-14

Murdock v. Pennsylvania, 319 U.S. 105 (1942) ..... i)

Table of Authorities Continued

Page

Perry Education Association v. Perry Local Edu-

cators’ Association, 460 U.S. 37 (1983) ....... 10,13-15

United States Postal Service v. Council of Green-

burgh Cime Ass’ns, 453 U.S. 114 (1981) 2.0.00... 14-15

United States v. Grace, 461 U.S. 171

gE ES ES Fa ate Ds: REDD ee RS AoE 11,13-14,17-18

United States v. Kokinda, 497 U.S. —_., 111

NEED SOO COE cectesezicdenscananiierectecassnenncns 4, passim

STATUTES AND CONSTITUTIONS:

IE St PERRIN at ana a ye ene passim

Rules and Regulations of the Port Authority of New

York and New Jersey, Chapter III, Part

OTHER AUTHORITIES:

Article I, Constitution and By-Laws (American

Se I SI Weivicdinenetwiesbictlntwddsuicedoaicomces

Davidson, Propaganda and the American Revolution

DEAR REI ERE Sree ~

Dissertation by Stephen E. Slocum, Jr., The Amer-

wean Tract Society: 1825-1975, An Evangelical

Ejfort To Influence the Religious And Moral

Life Of The United States (New York Univer-

sity School of Education 1975) .........cc..ce.

bo

to

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,

VS.

WALTER LEE, Superintendent of Port Authority Police,

Respondent.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Second Circuit

Brief Amici Curiae Of The American Tract Society,

Christian Advocates Serving Evangelism, Free

Speech Advocates and Concerned Women For America

In Support Of Petitioners

INTEREST OF THE AMICI IN THIS CASE*

Amici are organizations involved actively either in

the production and distribution of free religious |it-

erature or in the defense of the right to distribute

free religious literature in public places.

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

to the filing of this brief. Letters of consent have been filed

with the Clerk of the Court pursuant to Rule 37.

i)

Amici share a common view that hand-to-hand dis-

tribution of free religious literature is an efficacious

means of communicating with members of the public

about such matters. Amici oppose the contention of

Respondent that prohibiting the free distribution of

religious literature from the public concourses of Port

Authority Airports is a reasonable means of promot-

ing the safe and convenient use of the Port Authority

Airports.

The American Tract Society (‘the Society’’) was

founded in May, 1825, “‘to provide improved efficiency

and greater economy in proclaiming the Gospel

through the printed page in tract form.’ Through

its efforts in creating, printing and circulating relli-

gious materials, principally religious tracts, the So-

ciety has sought:

to diffuse a knowledge of our Lord Jesus

Christ as the Redeemer of sinners and to

promote the interests of vital godliness and

sound morality, by the circulation of Reli-

gious Tracts, calculated to receive the ap-

probation of all Evangelical Christians.

ARTICLE |, Constitution and By-Laws at 1 (American

Tract Society 1825). In its 166-year pursuit of this

goal, the society has circulated over one billion lea-

flets.

‘ Dissertation by Stephen E. Slocum, Jr., The American Tract

Society: 1825-1975, An Evangelical Effort To Influence the Re-

ligious And Moral Life Of The United States at 234 (New York

University School of Education 1975) (hereafter cited as ‘‘Slo-

cum’’).

* Slocum, supra n.1, at 238.

Christian Advocates Serving Evangelism (‘““CASE”’)

and Free Speech Advocates are dedicated to the ideal

that religious freedom and freedom of speech are in-

alienable rights given by God. CASE and FSA were

formed to educate, and where necessary, to litigate

on issues affecting the right to bear public witness

to the Gospel. The commitment of CASE and FSA

to the constitutional rights necessary for effective

public evangelism has resulted in application of this

Court’s Public Forum Doctrine in a variety of public,

nontraditional settings: beaches, state-owned resorts,

college campuses, public secondary schools, national

monuments, publicly owned coliseums, public bus ter-

minals, and metropolitan rapid transit terminals.

Concerned Women for America (‘““CWA’’) is a na-

tional, nonprofit organization representing approxi-

mately 700,000 people. The purpose of CWA is to

preserve, protect and promote traditional and Judeo-

Christian values through education, legal defense, leg-

islative programs, humanitarian aid, and related ac-

tivities.

The amici joined in this brief urge the Court to

uphold the right to distribute free religious literature

in such public places as the Port Authority Airport

Terminals.

SUMMARY OF ARGUMENT

Analysis of the right to distribute free religious

literature in the Port Authority’s Airport Terminals

proceeds in three steps, Cornelius v. NAACP Legal

Defense and Education Fund, 473 U.S. 788, 797

(1985), identifying the nature of the speech and the

nature of forum, and then evaluating the challenged

regulation or practice in light of the kind of speech

and the kind of- forum.

In the case of the distribution of free religious lit-

erature, the unquestioned rule is that distributing free

religious literature is a protected form of expression.

With remarkable consistency,this Court has noted the

constitutional value of religious leafletting in a line

of cases from Lovell v. City of Griffin, 303 U.S. 446

(1938) to Board of Airport Commissioners v. Jews for

Jesus, 482 U.S. 569 (1987).

The courts below disagreed on the nature of the

forum at issue here. The district court concluded that

the Port Authority’s Airport Terminals were tradi-

tional public forums. International Society for Krishna

Consciousness v. Lee, 721 F. Supp. 572 (S.D.N.Y.

1989). The second circuit, initially inclined to agree

with the district court, ultimately concluded that the

Airport Terminals were nonpublic forums from which

the free distribution of religious literature could not

reasonably be banned. International Society for

Krishna Consciousness v. Lee, 925 F.2d 576 (2d Cir.

1991). The second circuit’s conclusions, both as to the

nonpublic forum status of the Airport Terminals and

as to the unreasonability of a complete prohibition on

leafletting therein, are attributed by that court to this

Court’s decision in United States v. Kokinda, 497 U.S.

—_, 111 L.Ed.2d 571 (1990).

While these amici do not read Kokinda as announc-

ing the startlingly new public forum analysis that the

second circuit below attribute to it, it is clear that

whether the district court was correct, or the second

circuit, distribution of free religious literature is an

inherently less disruptive form of speech than many

others. Thus, even in a nonpublic forum, a complete

prohibition of leafletting activities would be unrea-

sonable.

ARGUMENT

The Port Authority of New York and New Jersey

has promulgated a regulation, Rules and Regulations

of the Port Authority of New York and New Jersey,

Chapter III, Part B, which provides:

B. Non-commercial activity at Port Authority

air terminals which are not occupied by a

lessee, licensee or permittee is subject to the

following conditions and restrictions:

1. The following conduct is prohibited within

the interior areas of buildings or structures

at an air terminal if conducted by a person

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

petitive manner:

(a) The sale or distribution of any mer-

chandise, including but not limited to, jew-

elry, food stuffs, candles, flowers, badges and

clothing.

(b) The sale or distribution of flyers, bro-

chures, pamphlets, books or any other printed

or written material.

(c) The solicitation and receipt of funds.

Petitioners, the International Society for Krishna

Consciousness and Brian Rumbaugh brought the ac-

tion below to challenge the constitutionality of Rules

and Regulations of the Port Authority of New York

and New Jersey, Chapter III, Part B. International

Society for Krishna Consciousness v. Lee, 925 F.2d

576, 577 (2d Cir. 1991). Under Rules and Regulations

of the Port Authority of New York and New Jersey,

Chapter III, Part B, a principal religious duty of the

Petitioners known as Sankirtan cannot «e conducted

in the public areas of the Port Authority’s Airport

Terminals, even though the public is freely admitted

to these areas. Sankirtan includes aspects both of

charitable solicitation and distribution of religious lit-

erature. 925 F.2d at 577-78.

Both at trial and on appeal, Petitioners succeeded

in their challenge to the Port Authority’s prohibition

of leafletting. The district court struck the leafletting

ban after concluding that the Port Authority’s Airport

Terminals were traditional public forums. Jnterna-

tional Society for Krishna Consciousness v. Lee, 721

F. Supp. 572 (S.D.N.Y. 1989). The second circuit also

reached the conclusion that leafletting could not be

prohibited in the Airport Terminals, although it did

so on the basis that the complete prohibition of lea-

fletting in the nonpublic forum terminals was, inter

alia, unreasonable. 925 F.2d at 582.

Even in the wake of this Court’s decision in United

States v. Kokinda, 497 U.S. —_, 111 L.Ed.2d 571

(1990), there remains a well-established framework for

analyzing conflicts between governmental! regulation

and otherwise protected expression. Analysis of the

right to distribute free religious literature in the Port

Authority’s Airport Terminals proceeds in three steps.

See Cornelius v. NAACP Legal Defense and Education

Fund, 472 U.S. 788, 797 (1985). First, this Court

must cetermine whether the distribution of free re-

ligious literature is speech protected by the First

Amendment. Jd. Next, this Court “must identify the

nature of the forum, because the extent to which the

Government may limit access depends on whether the

~)

forum is public or nonpublic.”’ Jd. Finally, this Court

must determine whether the Port Authority's as-

serted justifications for a flat ban on free distribution

of written materials satisfy the pertinent constitu-

tional standards. /d.

Application of the Public Forum Doctrine frame-

work here leads ineluctably to the same result, with

respect to the right to distribute free religious lit-

erature, as reached by the United States Court of

Appeals for the Second Circuit below.

I. DISTRIBUTION OF FREE RELIGIOUS LITERATURE IS

WELL-RECOGNIZED AS A CONSTITUTIONALLY PRO-

TECTED FORM OF EXPRESSION.

As a preliminary matter, the parties, and the court

below, agree that the distribution of free religious

literature is a form of expression protected by the

First Amendment. International Society for Krishna

Consciousness v. Lee, 925 F.2d 576, 579 (2d Cir. 1991)

(‘{t}he Port Authority does not dispute that ... dis-

tribution of religious literature [is] protected speech

with the meaning of the First Amendment’’) (citations

omitted).

This Court’s consistent jurisprudence, for fifty

years, recognizes the free distribution of literature as

a form of expression protected by the United States

Constitution. See, e.g., Lovell v. City of Griffin, 303

U.S. 446 (1938) and Heffron v. International Society

for Krishna Consciousness, 452 U.S. 640 (1981).° In-

‘The fact that Petitioners’ solicit donations while distributing

literature does not alter this conclusion. In Heffron, 452 U.S.

at 647, this Court noted that the First Amendment protections

afforded to ‘‘the oral and written dissemination of ... religious

deed, in Lovell, this Court put the case for consti-

tutional protection of leaflets and pamphlets quite

cleariy:

The liberty of the press is not confined to

newspapers and periodicals. It necessarily

embraces pamphlets and leaflets. These in-

deed have been historic weapons in the de-

fense of liberty, as the pamphlets of Thomas

Paine and others in our history abundantly

attest. The press in its historic connotation

comprehends every sort of publication which

affords a vehicle of information and opinion.

What we have had recent occasion to say

with respect to the vital importance of pro-

tecting this essential liberty from every sort

of infringement need not be repeated.

Lovell, 303 U.S. at 452 (emphasis added) (citations

omitted).#

Of course, the constitutional value of leaflets and

broadsides is not lessened by the fact that they ad-

dress matters of religion. The pamphlets at issue in

Lovell, religious in nature, were ‘‘a pamphlet and

magazine in the nature of religious tracts. ...’’ 303

views and doctrines” is not “lost because the written materials

sought to be distributed are sold rather than given away or

because contributions or gifts are solicited in the course of prop-

agating the faith.’’ 452 U.S. at 647 (and cases cited therein).

‘An excellent discussion of the effective use of pamphlets,

tracts and broadsides, by Whigs, in fomenting the American

Revolution, is found in Davidson, Propaganda and the American

Revolution at 209-23 (UNC Press 1941). Tories seldom, if ever,

made effective use of tracts, pamphlets and broadsides, to reason

with their fellows or to calm secessionist fervor. Jd. at 310-11,

332-33.

U.S. at 448. Just five years after Lovell, in Murdock

v. Pennsylvania, 319 U.S. 105 (1942), this Court said:

The hand distribution of religious tracts is an

age-old form of missionary evangelism—as old

as the history of printing presses. It has been

a potent force in various religious movements

down through the years. ... It is more than

preaching; it is more than distribution of re-

ligious literature. It is a combination of both.

Its purpose is as evangelical as the revival

meeting. This form of religious activity oc-

cupies the same high estate under the First

Amendment as do worship in the churches

and preaching from the pulpits.

Murdock, 319 U.S. at 108-09 (1943) (footnotes omit-

ted).

Beyond cavil, Petitioners’ literature distribution ac-

tivities warranted the constitutional protections ac-

corded them below. Indeed, so plain is the right, and

so valuable the liberty, that this Court must act, if

at all, only with the closest inspection, as it reviews

this matter.

10

Il. WHETHER THE PORT AUTHORITY’S AIRPORT TER-

MINALS ARE TRADITIONAL PUBLIC FORUMS OR

NONPUBLIC FORUMS, THE PORT AUTHORITY’S BAN

ON DISTRIBUTION OF FREE RELIGIOUS LITERA-

TURE DOES NOT WITHSTAND CONSTITUTIONAL

SCRUTINY.

A. THE PORT AUTHORITY’S PUBLIC AIRPORT TER-

MINALS, ESSENTIAL PUBLIC THOROUGHFARES

IN THE LIVES OF THE COMMUNITIES THEY

SERVE, ARE TRADITIONAL PUBLIC FORA.

The district cuurt below correctly decided that the

Port Authority’s Airport Terminals are traditional

public forums. As long ago as the case of Hague 1.

CIO, 307 U.S. 496 (1939), this Court recognized that

[w)herever the title of streets and parks may

rest, they have immemorially been held in

trust for the use of the public and, time out

of mind, have been used for purposes of as-

sembly, communicating thoughts between cit-

izens, and discussing public questions. Such

use of the streets and public places has, from

ancient times, been a part of the privileges,

immunities, rights, and liberties of citizens.

Id. at 515 (plurality opinion).

Streets, sidewalks, and parks represent the ‘‘quin-

tessential public forums.”’ Perry Education Associa-

tion v. Perry Local Educators’ Association, 460 U.S.

37, 45 (1983). On the range of properties open in

varying degrees to expressive activities, streets and

parks lie at the very ‘“‘end of the spectrum,” id.;

hence, “‘[oJne who is rightfully on a street open to

the public ‘carries with him there as elsewhere the

constitutional right to express his views in an orderly

fashion.’ ’’ Members of City Council of Los Angeles v.

1]

Taxpayers for Vincent, 466 U.S. 789, 810 (1984) (ci-

tations omitted). Thus, ‘‘ ‘public places’ historically as-

sociated with the free exercise of expressive

activities,such as streets, sidewalks, and parks, are

considered, without more, to be ‘public forums.’ ”

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

cases cited).

The district court, International Society for Krishna

Consciousness v. Lee, 721 F. Supp. 572 (S.D.N.Y.

1989), and the second circuit, /nternational Society

for Krishna Consciousness v. Lee, 925 F.2d 576 (2d

Cir. 1991), disagreed on the appropriate classification

for the Port Authority’s Airport Terminals (ulti-

mately, however, they agreed that the Port Author-

ity’s complete prohibition on leafletting was

untenable). The district court’s conclusion that the

Airport Terminals are traditional public forums can-

not be manifestly unreasonable—the second circuit

noted that, until this Court’s decision in Kokinda, it

was “‘prepared to follow”’ the rule established in other

circuits on the public forum status of airport termi-

nals. 925 F.2d at 580 (citing Fernandes v. Limmer,

663 F.2d 619 (5th Cir. 1981); Jamison v. City of St.

Louis, 828 F.2d 1280 (8th Cir. 1987); and, Jews for

Jesus, Inec., v. Board of Airport Commissioners, 785

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

A reasonable determination of the public forum sta-

tus of the Port Authority’s Airport Terminals cannot

be made without examining the facts revealed by the

record. Kokinda, 497 U.S. at —_, 111 L.Ed.2d at

583 (‘the location and purpose of a publicly-owned

sidewalk is critical to determining whether such a

sidewalk constitutes a public forum’’). In the present

case, the district court found the public areas of the

12

Port Authority Airport Terminals to ‘‘possess the

characteristics of a bustling metropolitan boulevard.”’

721 F. Supp. at 576. Based on the facts in the record,

the district court concluded that the public terminals

were “‘the functional equivalent of public streets.’’ 721

F. Supp. at 577.°

The facts in this case fully support the district

court’s conclusion. As the Kokinda plurality sug-

gested; the role of the disputed situs in ‘“‘the daily

commerce and life of the neighborhood or city”’ is an

essential factor in the public forum determination.

Kokinda, 497 U.S. at __ , 111 L.Ed.2d at 570. Here,

no rational person could justifiably assert that these

Port Authority Airport Terminals are places insignif-

icant in “‘the daily commerce and life” of the region

served by the Port Authority Airports. Indeed,

* The district court had before it the findings of a magistrate

who had, on the facts and law, concluded that the Petitioners

were entitled to summary judgment on their complaint. Appen-

dix to the Petition for Certiorari at 72 (hereinafter cited as

“App.”’). The magistrate’s findings of fact amplify the correct-

ness of the district court’s conclusion that the Port Authority

Airport Terminals were traditional public forums:

[the] interior terminal areas bear a strong physical

resemblance to the quintessential public fora of streets

and parks. Like streets, they have broad corridors

lined by shops, restaurants, newsstands, and other

businesses, with travelers or other members of the

general public coming and going as they please. ...

Like parks, they have large open areas where people

meet each other or relax in public seats. They are

open at all times of day, and there is absolutely no

restriction on entry. In short, these areas both look

and function like public thoroughfares.

App. 70-71 (citations and internal quotation marks omitted).

13

Respondent urged that its Cross-Petition be granted,

at least in part, because airports “‘play a vital role

in providing transportation to the nation.’’ Cross-

Petition for A Writ of Certiorari at 18.

Nor is the district court’s conclusion inconsistent

with this Court’s prior holdings. When reviewing an

asserted right of access for purposes of free expres-

sion, the crucial question is typically whether the

forum at issue is sufficiently analogous to municipal

sidewalks and streets so as to constitute a public

forum. E.g., Grace, 461 U.S. 171 (sidewalk on perim-

eter of Supreme Court grounds indistinguishable from

other city sidewalks); Marsh v. Alabama, 326 U.S.

501 (1946) (sidewalks and streets of company town

indistinguishable from municipal sidewalks and

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

(per curiam) (street and adjoining sidewalks through

military facility indistinguishable from municipal tho-

roughfare); Hudgens v. NLRB, 424 U.S. 507 (1976)

(shopping mall not functional equivalent of munici-

pality); Heffron, 452 U.S. 640 (state fairgrounds sig-

nificantly different from municipal streets).

Nor does the fact that the terminals are controlled

and operated by the Port Authority dispose of the

otherwise correct conclusion that the terminals are

traditional public forum property. Technical ownership

of the terminals, is irrelevant: ‘‘[w]herever the title

of streets and parks may rest,’’ Hague, 307 U.S. at

515 (emphasis added), these properties are “‘freely

accessible and open to the people in the area and

those passing through,’’ Marsh, 326 U.S. at 507. It

is this openness “‘for indiscriminate use by the general

public,’ Perry, 460 U.S. at 47, this “‘traditiona! right

14

of access,’ Taxpayers for Vincent, 466 U.S. at 814,

that characterizes public forum property.

Nor is it dispositive that the Port Authority’s Air-

port Terminals lack a two hundred year history of

use as traditional public forums. It is simply not in

keeping with this Court’s precedents to argue that a

particular public property must have a history of spe-

eific expressive activities before it can be considered

a public forum. In Marsh and Flower, there was no

indication that other individuals had previously dis-

tributed literature on the sidewalks in question. In

Grace and Hague, the Court saw no need to inquire

whether previous demonstrations of any sort had

taken place at the sites in question. Indeed, in Hague,

there was ‘“‘no competent proof that the parks of

Jersey City are dedicated to any general purpose other

than the recreation of the public,’ 307 U.S. at 505;

this Court nevertheless ruled that streets and parks

have, ‘‘time out of mind,” been used for purposes of

free expression, id. at 515.

Such a site specific inquiry, demanding proof of an

established history of prior use, proves too much. Un-

der such an approach, any newly incorporated mu-

nicipality could avoid the strictures of the Constitution

merely by constructing its public thoroughfares and

parks in places where none had existed previously.

Thus a ban on leafletting on that property, while

certainly offensive to the Constitution would not of-

fend notions of history. Such artifice cannot stand in

for constitutional principle.

From the foregoing, it is plain that the facts of

this case are in clear contrast to those of this Court’s

nonpublic forum cases, particularly Perry, United

States Postal Service v. Council of Greenburgh Civic

15

Ass’ns, 453 U.S. 114 (1981), Greer v. Spock, 424 U.S.

828 (1976), Adderley v. Florida, 385 U.S. 39 (1966),

and Kokinda.

The Perry case involved an interschool mail system,

460 U.S. at 38-39, and Council of Greenburgh Civic

Ass’ns involved residential mailboxes, both nonpublic

fora strikingly different from public sidewalks and

streets.

In Greer, the disputed forum was the United States

Army post at Fort Dix, New Jersey. 424 U.S. 828.

The “‘special constitutional function of the military in

our national life,’ 424 U.S. at 837, taken together

with ‘‘the historically unquestioned power of [the base]

commanding officer summarily to exclude civilians

from the area of his command{,]’’ 424 U.S. at 838

(quoting Cafeteria Workers v. McElroy, 367 U.S. 886,

893 (1961)), and the fact that the military command

at Fort Dix had never ‘‘abandoned any claim of spe-

cial interest’’ in controlling the conduct of visitors to

the base, 424 U.S. at 837, led ineluctably to the

Court’s conclusion that Fort Dix was not a public

forum. Greer itself acknowledged ‘‘the long-estab-

lished constitutional rule that there cannot be a blan-

ket exclusion of First Amendment activity from a

municipality’s open streets, sidewalks, and parks... .”’

Greer, 424 U.S. at 835.

In Adderley, this Court found no constitutional war-

rant to overturn convictions for trespass resulting

from a demonstration held on nonpublic grounds of

a Florida county jail. In Adderley, ‘“‘the demonstrators

entered the jail grounds through a driveway used only

for jail purposes and without warning to or permission

from the sheriff.’’ 385 U.S. at 41. The jailhouse drive-

way was ‘“‘not normally used by the public, but by

16

the sheriff's department for transporting prisoners to

and from the courts ... and by commercial concerns

for servicing the jail.’’ 385 U.S. at 45.

In this case, the district court found that the airport

terminals “‘possess the characteristics of a bustling

metropolitan boulevard.”’ 721 F. Supp. at 576. In Ad-

derley, the forum was nonpublic because it was re-

served for internal governmental operations; here, the

fora are traditionally public and the record is devoid

of objective indicia suggesting that the sidewalks are

reserved solely for internal governmental operations.

Finally, the analogy to the Kokinda case actually

undercuts the Port Authority’s arguments. In Ko-

kinda, this Court addressed the forum status of cer-

tain postal service property:

the Bowie post office is a free-standing build-

ing, with its own sidewalk and parking lot.

It is located on a major highway, Route 197.

A sidewalk runs along the edge of the high-

way, separating the post office property from

the street. To enter the post office, cars en-

ter a driveway that traverses the public si-

dewalk and enter a parking lot that surrounds

the post office building. Another sidewalk

runs adjacent to the building itself, separat-

ing the parking lot from the building. Postal

patrons must use th{at] sidewalk to enter the

post office. Th{at] sidewalk belongs to the

post office and is used for no other purpose.

111 L.Ed.2d at 579 (citation omitted). The sidewalk

along Route 197 was the ‘‘municipal sidewalk,’’ which

could be and was used for pedestrian access up and

down Route 197. The other sidewalk, the post office

17

walkway, was constructed wholly within and on the

post office property. That post office sidewalk was

constructed for one purpose only, to provide a means

of ingress and egress for postal patrons. 111 L.Ed.2d

at 579, 582.

Unlike that postal sidewalk, the Port Authority Air-

port Terminals serve the myriad, nongovernmental

purposes of their countless users. Beyond the private

purposes of their airline passengers, the Terminals

are shop-lined avenues open to the public and inviting

the commercial interest of the public.

Thus, the district court correctly concluded that

Port Authority Airport Terminals were traditional

public fora. Having correctly determined the nature

of the forum, the court turned to the issue of the

ban on the distribution of religious materials. Here

again, the district court concluded consistent with this

Court’s precedents that ‘the airports’ character, pat-

tern of activity and nature of purpose make the ter-

minals appropriate places for the exercise of First

Amendment activity and place them squarely within

the public forum family.”’ 721 F. Supp. at 579.

The district court’s holding was plainly correct. The

interests asserted by the Port Authority are no more

powerful or carefully tailored to the regulation at is-

sue than were the interests this Court found insuf-

ficient in Grace. Furthermore, the Port Authority’s

flat ban on leafletting also fails the compelling gov-

ernment interest standard.

The Port Authority’s regulation prohibits all free

distribution of written material. This flat ban applies

throughout the airport terminals. When a govern-

mental entity, including the Port Authority, under-

18

takes to prohibit an entire class of expression from

a traditional public forum, its decision is subject to

the most stringent examination. Grace, 461 U.S. at

177 (‘‘{a]dditional restrictions such as an absolute pro-

hibition on a particular type of expression will be

upheld only if narrowly drawn to achieve a compelling

interest’’); see also Kokinda, 110 S. Ct. at 3119 (plu-

rality) (‘‘[rjegulation of speech activity on govern-

mental property that has been traditionally open to

the public for expressive activity, such as public

streets and parks, is examined under strict scrutiny”’).

The Port Authority’s ban on leafletting is just such

an absolute prohibition on a type of expression. As

such, it cannot be a “‘reasonable’’ time, place, or man-

ner regulation. In a long line of cases, this Court nas

consistently struck down such sweeping prohibitions

of cherished First Amendment speech. In Board of

Airport Commissioners, 482 U.S. 569, for example,

this Court held unconstitutional a regulation which

prohibited all free speech activities in an airport ter-

minal. As this Court explained, ‘“‘we think it obvious

that such a ban cannot be justified even if [the airport

terminal] were a nonpublic forum because no con-

ceivable governmental interest would justify such an

absolute prohibition of speech.”’ 482 U.S. at 575. Thus,

this Court has already disposed of the possibility that

a compelling interest exists to justify a flat prohibition

on speech.

Nor has the Port Authority narrowly tailored its

prohibition to achieve the goal of “‘safe, efficient and

effective management” of the Airport Terminals. The

complete prohibition of leafletting shows no sensitivity

toward the rights of expression that it squelches.

Rather than focusing on abusive practices, such as

19

obstructing passages or fraudulent solicitations, the

Port Authority has banned the quiet leafletter with

the noisome hawker of wares. Surely the Port Au-

thority does not claim to be powerless to reach and

proscribe disorderly conduct, unsafe movement or

violence. The flat ban simply fails to distinguish be-

tween protected and unprotected activities. This min-

imal tailoring, a basic prerequisite for restrictions on

free speech, is absent from the Port Authority’s reg-

ulation.

Lacking a compelling interest, or even a significant

interest, and having in addition failed to tailor its

regulation to the asserted interests, the Port Au-

thority has no basis for objection to the district court’s

decision below.

B. EVEN IN A NONPUBLIC FORUM, A TOTAL BAN ON

LEAFLETTING IN AREAS OF PUBLIC AIRPORT

TERMINALS OTHERWISE OPEN TO THE PUBLIC

WOULD BE UNCONSTITUTIONAL.

Initially, the second circuit below was inclined to

affirm the district court’s conclusion that the airport

terminals were traditional public forums. Between its

initial consideration and the issuance of its opinion,

however, this Court decided Kokinda. As understood

by the second circuit court, Kokinda worked a sub-

stantial modification of this Court’s Public Forum

Doctrine, which modification compelled the conclusion

that the airport terminals were nonpublic forums in

which a flat ban on leafletting was unreasonable.

Even if these airport terminals were not traditional

public fora, which was the conclusion of the second

circuit below, the Port Authority’s complete prohibi-

tion of leafletting is still unconstitutional under the

standards applicable to nonpublic fora, as the second

20

circuit held. Viewed ‘‘in light of the purpose of the

forum and all the surrounding circumstances, Cor-

nelius, 473 U.S. at 808, a flat ban would be manifestly

unreasonable here.

First, as the second circuit correctiy concluded, this

Court’s decision in Kokinda turned on the distinction

between in-person solicitation and leafletting. Inter-

national Society for Krishna Consciousness, 925 F.2d

at 582. The second circuit’s analysis of Kokinda led

it to conclude that a ban on the distribution of free

literature would be unconstitutional. 925 F.2d at 582.

An apparent majority (the dissenting justices to-

gether with the concurring justice) considered the dis-

tribution of free literature to be a protected activity,

even in a nonpublic forum. As the second circuit be-

low stated:

With regard to the ... ban on the distri-

bution of literature, we read Kokinda as look-

ing in a different direction. The four

dissenting justices believed the sidewalk to

be a public forum and additionally indicated

that they perceived no relevant distinction

between the in-person solicitation of funds

and the distribution of leaflets. They would

therefore allow the latter in the [property] in

question. So too, we believe, would Justice

Kennedy, whose concurring opinion stressed

the need “‘to protect public places where tra-

ditional modes of speech and forms of expres-

sion can take place.’’ Justice Kennedy relied

entirely upon the distinction between the dis-

ruptive effect of the in-person solicitation of

21

funds and the lesser inconvenience of the dis-

tribution of literature in upholding the ...

regulation and did not reach the public/non-

public forum issue. We thus count him as

having adopted a view that would permit the

distribution of literature in the instant mat-

ter. We also note that the four justices who

considered the post office sidewalk to be a

nonpublic forum also relied in part on the

distinction between in-person solicitation and

leafletting in upholding the regulation. There

was thus a majority, and perhaps more, that

would allow the latter. .

925 F.2d at 582 (citations omitted).*

Second, there was no evidence to support the Port

Authority's hypothesis that permitting leafletting

might jeopardize or disrupt the safe, efficient and

effective management of these airports. Rather, the

Port Authority relied upon speculation, an undiffer-

entiated fear, to support its conclusion that noncom-

mercial leafletting would disrupt the transportation

purposes of the terminals. The Port Authority failed

—_»«-s ———_—__-___

"In this respect, Kokinda and the second circuit decision below

are consistent with this Court's reasoning in Grayned v. City

of Rockford, 408 U.S. 104, 116 (1972). In Grayned, this Court

focused on the ‘nature of a place, ‘the pattern of its normal

activities’ '’ in seeking to define a reasonable regulation of time,

place and manner. 408 U.S. at 116 (footnote omitted). As this

Court indicated, “{t]he crucial question is whether the manner

of expression is basically incompatible with the normal activity

of a particular place at a particular time.” Jd. The Port Au-

thority leapfrogged past this key point of analysis and drew,

without considered proof, the regulatory conclusion that all lea-

fletting is completely incompatible with normal airport termina!

activity at all places and at all times.

22

to prove that permitting the free distribution of lit-

erature would destroy the Airport Terminals. On this

point, of course, both the district court and the second

circuit were in agreement.

Third, given the purpose and circumstances of the

airport terminals, an absolute prohibition of all lea-

fletting would be patently unreasonable. These airport

terminals bear all the indicia of city sidewalks, in-

cluding heavy pedestrian use and attendant noise as

well as adjacent commercial enterprise. App. 70-71;

721 F. Supp. at 576. Nor was the bare act of handing

someone a piece of literature, inside the Port Au-

thority Airport Terminals, shown to be somehow de-

structive of the Terminals.

There is no ready nexus between the “‘evils’’ of

leafletting assertedly feared by the Port Authority

and the flat ban; hence, the ban on all distribution

of written material is unreasonable. A reasonable reg-

ulation is one which targets no more than the evil to

be avoided. Frisby v. Schultz, 487 U.S. 474, 485

(1988).

The Port Authority can cite no authority to support

its implicit view that leafletting is a cognizable evil.

Thus, even if the Port Authority’s Airport Terminals

were nonpublic fora, the complete prohibition of lea-

fletting would remain manifestly unreasonable and un-

constitutional.

CONCLUSION

For all the foregoing reasons, the Court should af-

firm the judgment of the United States Court of

Appeals for the Second Circuit, to the extent that it

23

permits the free distribution of religious literature in

the public concourses of the Port Authority Airports.

Respectfully submitted,

THOMaS PATRICK MONAGHAN JAMES MATTHEW HENDERSON SR.

6375 New Hope Road Counsel of Record

New Hope, KY 40052 MARK N. TROOBNICK

(502) 549-5454 1000 Thos. Jefferson Street NW

CHARLES E. RICE Suite 520

NotRE DAME LAW SCHOOL Washington, DC 20007

Notre Dame, IN 46556 (202) 337-2273

(219) 239-5667

Attorneys For Amici Curiae

February 14, 1992