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

Nos. 91-339 and 91-155

IN THE Bocleh :

Supreme Court of the United States

OCTOBER TERM, 1991

INTERNATIONAL SOCIETY FOR KRISHNA

CONSCIOUSNESS, INC., AND BRIAN RUMBAUGH,

Petitioners,

Vv.

WALTER LEE,

Respondent.

. and *

WALTER LEE,

Cross-Petitioner,

Vv.

INTERNATIONAL SOCIETY FOR KRISHNA

CONSCIOUSNESS, INC. AND BRIAN RUMBAUGH

Cross-Respondents.

On Writ of Certiorar?

to the United States Court of Appeals

for the Second Circuit

BRIEF OF PROJECT VOTE, PEOPLE FOR THE

AMERICAN WAY, AND FAMILIES U.S.A.,

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

ELLIOT M. MINCBERG ROBERT PLOTKIN

SONIA A. BACCHUS Counse! of Record for

PEOPLE FOR THE AMERICAN WAY the Amici Curiae

2000 M STREET, N.W. ELINOR L. COLBOURN

Surre 400 ANDREW J. STEINBERG

WASHINGTON, D.C. 20036 2000 M STREET, N.W.

SUITE 400

WASHINGTON, D.C. 20036

(202) 467-2392

QUESTIONS PRESENTED

Whether the public concourses of airport terminals are public

forums presumptively available for free speech in which the

Port Authority’s blanket prohibition against leafletting is

unconstitutional .

Whether the Port Authority’s sweeping ban on distribution of

literature in the public concourses of its airport terminals is

unconstitutional under a non-public forum analysis.

TABLE OF CONTENTS

THE PUBLIC CONCOURSES OF THE NEW YORK

PORT AUTHORITY’S AIRPORTS ARE PUBLIC

TE

A. The Second Circuit Erred In Finding That

The Expressed Purpose Of A Property Is

Determinative Of Its Status As A Public Or

ee et st et ee ee

B. The Objective Characteristics Of Property,

Including Actual Use Patterns, Rather Than

A Subjective Statement Of Intended Purpose,

Must Determine Whether The Property Is A

Traditional Public Forum ................

C. Public Airport Terminals Are Public Forums

Because They Meet The Necessary Objective

ESTEE, cts ec ec ee ee ees

D. Under the Public Forum Standard, The Port

Authority’s Broad Ban On The Distribution of

All Written Material Violates The First

Te ke ee eee ee

i a - se se & Se & &€ &¢ S&S 6 & 6

Page

Il. THE PORT AUTHORITY'S SWEEPING BAN ON

DISTRIBUTION OF LITERATURE IS

UNCONSTITUTIONAL EVEN IF THE AIRPORTS

ARE NOT FOUND TO BE QUINTESSENTIAL

PUBLIC PORUMS. .. ccc ccc ccc cece sees 15

A. The Distribution of Literature In

Public Places Has Always Been Regarded

As Essential First Amendment Expression,

And The Court Has Carefully Scrutinized

Broad Bans On This Important Channel

ee re 15

B. Even If The Court Finds That The Airports

In Question Are Not Public Forums, The

Port Authority’s Broad Ban On The

Distribution of All Written Material

Is Not a Reasonable Restriction ...........-. 17

86s On Pee Le ES ee a 27

-iv-

LE OF AUTHORITIE

Cases Page(s)

Albany Welfare Rights Org. v. Wyman,

493 F.2d 1319 (2d Cir.), cert. denied,

es I te oe ee 26

Board of Airport Comm'rs of Los Angeles v. Jews For Jesus,

ee I 23

Buckley v. Valeo, 5

PI I, cg ew on wee wwncaccidn 16

Chicago Area Military Project v. City of Chicago,

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

et ee, WI oma 10, 22

City of Lakew y. Plain Dealer Publishing Co..,

4 ee 16, 20

Cohen v. California,

ee CP os oe ee cies oe ee 25

Cornelius v. NAACP Legal Defense and Ed. Fund,

Gm Ws PUP MUM vv kc cc cwrwcwccwcccccnanr 20

Davis v. Massachusetts,

RT a oe 4

Eastern Connecti itizens Action Group v. Powers,

ves Fae Ww Ge Cle. 1969)... wc cee 21

-V-

Fernandes v, Limmer

663 F.2d 619 (Sth Cir. 1981),

cert. dismissed, 458 U.S. 1124 (1982)......... 11, 24

Frisby v. Schultz,

487 U.S. 474 (1988) ......-..--000-- 7, 14, 15, 19

r ’

745 F.2d 767 (2d Cir. 1984)... .....- 52 eee ees 21

Grayned v, City of Rockford,

~ 5 g © rere 4, 20, 21

Hague v, Committee for Industrial Organization, :

{ie § asa 7, 8,2

H Vv ,

~ ) i fer e e e e 16

Heffron v, International Society for Krishna Consciousness,

452 U.S. 640 (1981) ........ 7, 14, 16, 18, 19, 23, 24

Hen Vv jan,

168 F. Supp. 1 (D.D.C. 1991), appeal docketed,

No. 91-5258 (D.C. Cir. Aug. 16, 1991) ......... 8,9

International Caucus of Labor Comms. v. Dade County,

724 F. Supp. 917 (S.D. Fla. 1989)... ......-.55-- 9

In

721 F. Supp. 572 (S.D.N.Y. 1989) .......-.--5- 23

925 F.2d 576 (2d Cir. 1991)............. 6, 13, 17

-Vi-

Jamison vy. City of St. Louis,

828 F.2d 1280 (8th Cir. 1987), cert. denied

,

| eee eee 8, 11, 12, 22

Kuszynski v. City of Oakland,

479 F.2d 1130 (9th Cir. 1973) ............. in.

Lamont v. Postmaster General,

RE 16

Lovell v. City of Griffin,

303 U.S. 444 (1938).................... 13, 16

Martin v. City of rs,

319 U.S. 141 (1943)... ..0002020000....... 14, 16

Members of City Council v, Taxpa yers for Vincent,

466 U.S. 789 (1984) ............... 14, 18, 19, 24

Metromedia, Inc, v, City of San Diego.

nr rn I de ee on a I Ned 18

Neighborhood Information Sharing Exchange v. Engler,

No. 4:91-CV-140 (W.D. Mich. 1991) ............ 26

New York City Unemployed and Welfare Council v. Brezenoff,

re Wee ee P,P ok ik vk oho oo vce 26

New York Times v. Sullivan,

ds EE oie howe we bdawne oun 25

rganization For a Better Austin v. Keefe.

ge ere 14, 16

Perry E ion Ass'n v. Perry Local Educators’

Ass'n,

460 U.S. 37 (1983)

Project Vote vy, Freeman,

Civ. No. 84-509-B (S.D. lowa July 26, 1984)

patna ne ars 4, 5, 7, 9, 13, 17, 20

-Vii-

Proj

‘Proj

h

r

Vv ‘ ’

No. 84-4333-CV-C-5 (W.D. Mo. Sept. 27, 1984) .... 26

V i l TVi

No. C-1-82-905 (S.D. Ohio Sept. 13, 1982) ........ 26

Vv ‘ i

No. I P. 84-394-C (S.D. Ind. March 25, 1984) ...... 2

No. 84-1255 (E.D. Pa. 1984) .... 2... 55 ee eee 26

Vv Ephraim,

“Tis |. Se 18, 24

308 US. 147 (1939)........-- 13, 14, 16, 18, 19, 24

" ; 16

394 U.S. 557 (1969)... 6. ee ees

Ww istri ia Arm ’ -

563 F.2d 1013 (D.C. Cir. 1988) ........-- 525s 2

394 U.S. 576 (1969)... 2 es 16

Vv ’

332 F. Supp. 1372 (D.R.I. Eos ee ee 26

726 F. Supp. 871 (D.D.C. 1989)... 6... . ees 23

| tS. f are ee x

US. ,110S. Ct.

3115 (1990) ey aidan saat tag 5, 6, 7, 8, 9, 12, 17, 20, 23

-Vili-

en Senora Attica! Nemnibia Trade & Caltucal Counci

we xy F.2d 760 in Ges WU nce cue ceseccn 10,

Virgini v. Virginia Citizen

Consumer Council,

oe ea

W ry Vv rs,

376 U.S. 1 (1964) Pe ee ee ee

Wolin v. Port of New York Authority,

392 F.2d 83 (2d Cir.), cert. denied,

woe U.S. SOD CIE . ww ec ee ee 11, 14, 16,

tatu nd Regulati

PO rae © ND one ove ce cec sass abies

45 Fed. Reg. 35,314 (1980) .................. 12,

Miscellaneous

Laurence H. Tribe, American Constitutional Law

Ne Os a avo x ac os ew uaa ae cee 3

St. Louis Airport Authority Rule 1.05 .

City of Oakland Ordinance 1.151 ..................

Laurence H. Tribe, American Constitutional Law 993

(2d ed. 1988)... ..

Robert C. Post, Between Governance and Management:

The History and Theory of the Public Forum,

34 UCLA L. Rev. 1713 (1987) ...................

Richard B. Saphire, Reconsidering the Public Forum

Doctrine, 59 Cinn. L. Rev. 739 (1991)

-ix-

l

INTEREST OF THE AMICI CURIAE

Project VOTE is a nationwide, non-partisan organization

which seeks to increase civic participation by communicating with,

educating and helping register to vote millions of Americans who

have not previously participated in elections, particularly low-

income and minority citizens. Since its creation in 1982, Project

VOTE, working with local coalitions, has registered over 1.4

million new poor and minority voters, resulting in praise and

support from Republicans and Democrats alike. One of Project

VOTE’s most important and effective activities is to work in

conjunction with local organizations to engage in informational and

voter registration campaigns aimed at low-income citizens in public

waiting areas of unemployment and welfare offices and other such

public places to which large numbers of citizens come. The federal

courts have consistently recognized the First Amendment right of

Project VOTE to engage in such activity. Project VOTE has

requested leave to file an amicus brief in this case in order to

vindicate in this Court the important First Amendment principle that

government cannot forbid all First Amendment activity in these and

other public places which are important forums for citizens to

communicate with each other across the country.

People for the American Way ("People For") is a non-

partisan, education-oriented citizens’ organization established to

promote and protect civil and constitutional rights, including First

Amendment freedoms. Founded in 1980 by a group of religious,

civic and educational leaders devoted to our nation’s heritage of

tolerance, pluralism and liberty, People For has frequently

represented parties and filed amicus curiae briets in litigation

seeking to defend First Amendment rights. People For has

requested leave to file an amicus brief in this case in order to help

vindicate the important First Amendment principles at stake,

particularly the principle that government cannot prohibit free

distribution of literature and other First Amendment activity in

government controlled and owned public places such as airport

terminals and the public waiting rooms of government buildings

where people congregate.

Families USA is a _ national, non-partisan advocacy

organization which focuses its efforts on seeking fundamental

2

improvements to ensure access to affordable, high-quality heaiu

care and long term care for families across America. Among its

other activities, Families USA speaks out on health care and related

issues and has established a grass roots, legislative-alert network of

senior citizens and others interested in such issues. Families USA

has sought leave to participate as an amicus in this case because of

its interest in helping to ensure broad participation by citizens in

communicating and decision-making on vital civic issues and in

preventing government action which improperly closes off entire

public forums as places for citizens to receive information on such

issues.

SUMMARY OF ARGUMENT

Under the public forum doctrine, as set forth by this Court,

the public concourses of airport terminals should be categorized as

traditional public forums. The opinion of the Second Circuit below

erroneously interprets public forum doctrine concluding, contrary

to established precedent in five Circuits, that public airport

terminals are non-public forums. The Second Circuit opinion

should be reversed in this respect.

Traditional public forums are not strictly limited to the

quintessential, and increasingly anachronistic, examples of streets,

sidewalks, and parks. This Court has carefully delineated the

objective characteristics of those properties that embody the concept

of a traditional public forum. These characteristics are found today

in modern public thoroughfares such as public airport and bus

terminals and train stations. The argument that public forum

doctrine can be limited, however, by such means as allowing the

government's own decisions concerning the purpose of property to

determine public forum status or limiting traditional public forums

strictly to historical concepts of streets, sidewalks and parks would

emasculate the doctrine. Under such a view, the government would

have unlimited discretion to determine when and if a regulation

restricting protected speech is reviewed under a strict scrutiny or a

reasonableness standard. Vesting such broad discretion in the

government runs contrary to decades of precedent. Amici urge this

Court to reverse the Second Circuit’s opinion regarding the non-

public character of public airport terminals and find that these

terminals are traditional public forums in which the Port Authority's

3

free speech restrictions are subject to strict judicial scrutiny, and are

therefore unconstitutional.

Even if the Court finds that the airport terminals are not

“quintessential” public forums, the Court should uphold the Second

Circuit’s determination that the Port Authority may not

constitutionally enforce a blanket ban on the distribution of

literature there. Leafletting is fundamental to First Amendment

expression, and restrictions on that type of activity are evaluated

with special care. Moreover, the Port Authority’s regulation

imposes a categorical ban on this activity in places which, even i

they are noi viewed as traditional public forums, possess many of

the objective characteristics of public forums and are among the few

remaining sites uniquely suited for public expression in a society

becoming increasingly insular.

In light of the important First Amendment concerns which are

clearly implicated here, the Port Authority could only have justified

its intrusion on free speech by showing, at a minimum, that the

prohibited activity is incompatible with the normal activity of the

airport terminals. This, however, it failed to do. Leafletting, one

of the least disruptive forms of First Amendment expression, is

plainly compatible with the nature of airport terminals -- public

places to which millions of people are freely admitted who engage

in significant social and commercial intercourse. Because leafletting

is, On its face, compatible with the nature of airport terminals, the

Port Authority’s sweeping ban on distribution is not reasonable.

The Port Authority has made no effort to tailor its regulation to

certain times, quantities or sites within the terminals so that its

asserted traffic-flow needs could be harmonized with First

Amendment activity.

Although this particular case involves religious speech in

airport terminals, the Court’s holding will have implications for

other core First Amendment activities as well. For example, the

efforts of voter registration organizations like amicus Project

VOTE, which inform citizens of their right to vote and enable them

to exercise that right, could be endangered by this Court’s decision.

Numerous lower court decisions upholding the First Amendment

right of such organizations to engage in this kind of fundamental

4

- political speech on public property could be undermined by this

Court’s decision.

For these reasons, the judgment of the Court of Appeals that

the Port Authority’s leafletting regulation is unconstitutional should

be upheld.

ARGUMENT

I. THE PUBLIC CONCOURSES OF THE NEW YORK

PORT AUTHORITY’S AIRPORTS ARE PUBLIC

FORUMS

This Court’s assessment of free speech protections afforded

under the First Amendment has evolved from an 1897 opinion

upholding a ban on any public address upon publicly owned

property without a permit,” to an analysis based on the

compatibility of the speech activity with the normal relevant activity

of the forum,” to the currently favored public forum doctrine.

As the process of refining the public forum doctrine continues, it is

imperative that the fundamental framework of the doctrine retain its

integrity by maintaining a viable category of traditional public

forums not limited exclusively to streets, sidewalks and parks.

The fundamental framework of the public forum doctrine set

forth by this Court, properly applied, inevitably leads to the

conclusion, as five Circuit Courts of Appeal have recognized, that

municipal airports are quintessential public forums. As explained

infra, any other reading of the public forum doctrine, such as the

interpretation by the Second Circuit in its opinion below, would

emasculate it and sharply curtail fundamental free speech

protections.

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

2/ Grayned v. City of Rockford, 408 U.S. 104 (1972).

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

(1983).

5

A. The Second Circuit Erred In Finding That

The Expressed Purpose Of A Property Is

Determinative Of Its Status As A Public Or

Non-Public Forum

Under public forum doctrine as articulated by this Court, the

character of the public property at issue determines the standard by

which limitations on the First Amendment right of free speech on

that property must be evaluated. Perry Education Ass'n v. Perry

Local Educators’ Ass'n, 460 U.S. 37, 44 (1983). For these

purposes, property is divided into three categories: traditional

public forums, designated public forums, and non-public forums.

In traditional public forums and government-designated public

forums, attempted government regulation of speech activities is

subject to strict scrutiny. In non-public forums, however,

government regulations need only be reasonable and “not an effort

to suppress expression merely because public officials oppose the

speaker’s view." Perry Education Ass'n, 460 U.S., at 46. The

first, and most critical, level of analysis under public forum

doctrine, then, is a determination of the category of forum at issue.

It is this analysis that the Second Circuit misconstrued in its opinion

below.

4/ The present form of the public forum doctrine has come under attack from

scholars and Justices alike. See Justice Brennan's dissent in United States v

Kokinda, __ U.S. __, 110 S. Ct. 3115, 3127 (1990); Laurence H. Tribe,

American Constitutional Law 993 (2d ed. 1988); Robert C. Post, Between

Governance and Management: The History and Theory of the Public Forum, 34

UCLA L. Rev. 1713, 1716 n.7 (1987) ("In a world of disputatious academic

criticism, the unrelenting and unanimous condemnation of contemporary public

forum doctrine is truly remarkable."); Richard B. Saphire, Reconsidering the

Public Forum Doctrine, 59 Cinn. L. Rev. 739, 741-743 (1991) ("[T]}he public

forum Coctrine has attracted few supporters in the scholarly community.”).

Because the analytical process used to determine the status of the public property

at issue is ultimately the deciding factor in many First Amendment cases, debates

over the correct analytical process to be applied lie at the heart of current criticism

of the public forum doctrine. Particularly in the wake of this Court's plurality

opinion in United States v. Kokinda, US. ___, 110 S. Ct. 3115 (1990), the

analytical process is being misconstrued and misapplied by some lower courts,

including the Second Circuit in the decision below. It is the misinterpretation of

(continued. __)

6

The Second Circuit’s opinion erroneously interpreted this

Court’s plurality opinion in United States v. Kokinda, _ US.

—_, 110 §. Ct. 3115 (1990), to limit traditional public forums to

property which the government has expressly declared to be

available for multiple purposes or for protected expression.

International Soc'y for Krishna Consciousness v. Lee, 925 F.2d

576, 581-82 (2d Cir. 1991). This is a misreading of Kokinda. The

plurality opinion in Kokinda examined the objective characteristics,

including use, of the property at issue, concluding that in that

particular instance, the post office sidewalk at issue was not used in

a manner that exemplified a traditional public forum. The purpose

of the property, and the government's interest in facilitating that

purpose, was determinative of the reasonableness of the regulation

at issue, not the category into which the property was initially

placed. Moreover, Justice Kennedy’s concurrence read the char-

acteristics of the property differently, implying that the property's

use indicated it was a public forum.

As discussed below, the Second Circuit's analysis emasculates

the public forum doctrine by: (1) effectively restricting the category

of traditional public forums to historical concepts of sidewalks,

streets and parks: and (2) placing unlimited subjective discretion in

the government to determine the public nature of the property.

This dangerous misconstruction of the public forum doctrine should

be reversed.

B. The Objective Characteristics Of Property,

Including Actual Use Patterns, Rather Than

A Subjective Statement Of Intended

Purpose, Must Determine Whether The

Property Is A Traditional Public Forum

The Court’s early public forum decisions placed little emphasis

on factors to be considered, or on the analytical approach to be

applied, when categorizing public property. The Court relied

almost exclusively on the historical traditions of public expression,

concluding that streets, parks and sidewalks are quintessential public

4/ (...continued)

Kokinda that has resulted in the Second Circuit's departure from the consensus

among the courts of appeal that an airport terminal is a traditional public forum.

7

forums. Hague v. Committee for Industrial Organization, 307 U.S.

496, 515-516 (1939); Perry Education Ass'n v. Perry Local

Educators’ Ass'n, 460 U.S. 37, 45 (1983); Frisby v. Schultz, 487

U.S. 474, 480-481 (1988). As the oft-quoted language of Hague

States:

Wherever 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 assembly,

communicating thoughts between citizens, 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.

307 U.S., at 515. Thus, places historically associated with free

exercise of expressive activities are considered, without more, to be

public forums. United States v. Grace, 461 U.S. 171, 177

(1983).*

While this approach correctly recognizes that core public

places must be held open for community expression, it fails to

accommodate explicitly the development of new, nonhistorical,

“quintessential” public forums, such as the airport terminals at issue

in the present case. This Court’s more recent public forum

decisions seek to resolve this difficulty by emphasizing factors

beyond the property’s historical character. A property’s location,

purpose, special attributes and customary use also are appropriately

considered to determine whether it is a traditional public forum.

See United States v. Kokinda, ___ US. , 110 S. Ct. 3115

(1990); Heffron v. International Soc'y for Krishna Consciousness.

452 U.S. 640, 650 (1981). The Court now has made explicit what

was implicit in earlier public forum analysis: public property is not

d Public forum simply because it is called a "street" or a

“sidewalk,” but because it has the characteristics commonly

5/ as recently as 1988, the Court stated that "[nJo particularized inquiry into the

precise nature of a specific street is necessary; all public streets are held in the

public trust and are properly considered traditional public fora.” Frisby v. Schultz,

487 U.S. 474, 481 (1988).

associated with such traditional public places. United States v.

Kokinda, U.S. __, 110 S. Ct., at 3120 (plurality opinion)

("[t}he mere physical characteristics of the property cannot dictate

forum analysis."). This approach allows the flexibility to respond

to the evolution of the loci of public discourse.

It is crucial in determining the public forums of modern

society to maintain an emphasis on the “objective characteristics of

Government property and its customary use by the public." United

States v. Kokinda, _ U.S. ___, 110S. Ct., at 3125 (Kennedy, J.,

concurring). Determining when public property is a public forum

must be based upon an objective assessment of its character, such

as whether it is utilized as a public thoroughfare, and whether it is

a place of open public access. The lower court, and apparently the

federal government, have mistakenly interpreted the plurality

opinion in Kokinda to approve the use of subjective factors, such as

the government’s expressed purpose of the property, in public

forum analysis. This erroneous interpretation elevates form

(defined by the government) over function (the property’s actual use

characteristics) and grants the government virtually unlimited

discretion to determine for itself what is a public forum.

Resting such unbounded discretion over First Amendment

rights in government hands has been disapproved consistently by the

courts. "The Supreme Court has consistently invalidated such

practices, in recognition of the immeasurable injury inflicted on first

amendment freedoms by the potentially arbitrary and discriminatory

exercise of an official’s unfettered discretion." Jamison v. City of

St. Louis, 828 F.2d 1280, 1284 (8th Cir. 1987) (striking down an

airport regulation that gave the airport director “complete and

unguided discretion to rule on applications to exercise first

amendment rights"), cert. denied, 485 U.S. 987 (1988); Hague v.

Committee for Industrial Organization, 307 U.S., at 516 (holding

unconstitutional a Jersey City ordinance that enabled the Director

of Safety to refuse a permit “on his mere opinion that such refusal

will prevent ‘riots, disturbances or disorderly assemblage. ’").

However, in Henderson v. Lujan, 768 F. Supp. 1 (D.D.C.),

appeal docketed, No. 91-5258 (D.C. Cir. Aug. 16, 1991), the

federal government has overtly attempted to dictate the status of

even a traditional public forum, a sidewalk. Relying on the

9

plurality in Kokinda, the government argued that its own subjective

characterization of the sidewalk on Constitution Avenue opposite the

Vietnam Veterans Memorial as part of the Memorial justified a

prohibition on distribution of literature on this sidewalk. The

district court properly rejected the government's arguments, noting

that "the government cannot ‘transform the character of the

property by the expedient of including it within the statutory

definition of what might be considered a nonpublic forum parcel of

property.’" Henderson, supra, at 2 (quoting United States vy.

Grace, 461 U.S. 171, 180 (1983)).

Under the Second Circuit’s interpretation of Kokinda, if public

streets were, like airport terminals, a recent innovation, they would

not be a traditional public forum because their “overriding purpose"

is to facilitate land transportation, not public debate and discourse.

Public streets have never been devoted to assembly and debate "by

government fiat"’, nor was assembly and debate ever the specific

purpose of the streets. It is the actual use made of the streets,

rather than the government’s purported purpose for them, that has

transformed streets into "quintessential" public forums. Similarly,

it is the actual use made of airport terminals that establishes them

as public forums and warrants reversal of the Second Circuit's

decision below.

At least one court has taken to its logical extreme the Second

Circuit’s deference to the expressed purpose of a property, and

explicitly interpreted the public forum doctrine to limit the category

of traditional public forums solely to historical places. See

International Caucus of Labor Comms. v. Dade County, 724 F.

Supp. 917, 921 (S.D. Fla. 1989), where the court found a public

airport to be a non-public forum because it was neither a historical

public forum, i.e., one created by "sheer weight of tradition," nor

was it expressly designated as a public forum by the government.

Such a position effectively vests total control over the determination

of public forums in the government, contrary to established Court

precedent. Amici urge the Court to clarify that traditional public

forums are not restricted to outdated concepts of Main Street, USA,

nor is the expressed government purpose or other subjective

6/ Perry Education Ass'n, 460 US., at 45.

10

characteristics of public property determinative of whether that

place is a traditional public forum.”

C. Public Airport Terminals Are Public Forums

Because They Meet The Necessary Objective

Criteria

Public airports are not, of course, places for public discourse

since “ancient time” nor have they been held in trust for public use

"immemorially.". Nonetheless, it must be recognized that as

modern society evolves, so too will its natural meeting places.

Where public parks were once considered a safe, central place for

citizens to gather at their leisure, today’s parks may often be

locations to be avoided. Where once only paths, and then town

lanes existed as public thoroughfares, now public airport terminals,

train stations and bus stations are an integral part of the modern

public thoroughfare. Like streets and sidewalks, terminals are open

to all citizens, facilitate commerce and transportation, and are the

focus of numerous commercial activities. Terminals are typically

busy, noisy places where an audience can be found and speech

activities are not out of place.

Significantly, every Court of Appeals that has heretofore

considered the character of the hubs of modern transportation has

held that they possess the objective characteristics of historical

public forums. See, e.g., United States Southwest Africa/Namibia

Trade & Cultural Council v. United States, 708 F.2d 760, 764

(D.C. Cir. 1983) ("Whatever common sense differences may exist

in the forms of free speech allowable in airports, as opposed to

parks and streets, an unusual consensus of judicial, legislative, and

administrative opinion would classify the public areas of National

and Dulles squarely within the public forum family"); Chicago Area

Military Project v. City of Chicago, 508 F.2d 921, 925 (7th Cir.),

cert. denied, 421 U.S. 992 (1975) ("the spacious, city-owned

common areas [of Chicago’s O’Hare Airport] . . . resemble those

public thoroughfares which have been long recognized to be

particularly appropriate places for the exercise of constitutionally

7/ Such factors may, however, properly affect the determination of whether a

particular regulation is an appropriate time, place and manner restriction, or a

reasonable restriction.

11

protected rights to communicate ideas and information"); Fernandes

v. Limmer, 663 F.2d 619, 627 (Sth Cir. 1981), cert. dismissed, 458

U.S. 1124 (1982) ("The parallel between public streets and the . . .

central concourses of the . . . terminal buildings, where air

travelers as well as the general public may shop, dine, imbibe, and

sightsee, is clear and powerful... ."); Kuszynski v. City of

Oakland, 479 F.2d 1130, 1131 (9th Cir. 1973) (Oakland Airport);

Jamison v. City of St. Louis, 828 F.2d 1280 (8th Cir. 1987) (City

of St. Louis Airport), cert. denied, 485 U.S. 987 (1988); Wolin v.

Port of New York Authority, 392 F.2d 83, 89 (2d Cir.), cert.

denied, 393 U.S. 940 (1968) (Port Authority Bus Terminal: “In

other times . . . 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

. . . becomes something of a smali city -- but built indoors, with its

"streets’ in effect set atop one another.... Thus, we cannot

accept the argument that the mere presence of a roof alters the

character of the place... .").

The Port Authority argued below that the New York airport

terminals are not traditional public forums because their sole

purpose is to facilitate air travel, not public discourse, and the

exclusion of basic First Amendment activities is necessary to fulfill

that purpose. This narrow view is the illogical equivalent to

arguing that the sole purpose of a public park is to fecilitate

recreation, or that the sole purpose of a public street is to facilitate

land travel. While the facilitation of air travel may be an essential

purpose of airports, it clearly is not the only purpose. Business

meetings are conducted at airport facilities, family members visit

with relatives who have layovers between flights, businesses hawk

wares ranging from food to postage stamps, people buy and read

newspapers, magazines and books, and even discuss their contents

with others in airport lounges.

Significantly, the federal government’s _ regulations

acknowledge the objective public forum character of airport

terminals. According to the Federal Aviation Administration

(FAA):

in many respects, the terminals are like any

other public thoroughfare where there is no

12

question that the Constitutional guarantees of

freedom of speech, the exercise of religion and

the right to peaceable assembly apply. These

activities enjoy the protection of the First

Amendment, and they may not be regulated by

airport authorities in the same manner as

commercial activity.

45 Fed. Reg. 35,314 (1980) (emphasis added) (regarding Dulles and

National airports in Washington, D.C.). FAA _ regulations

specifically permit a broad range of First Amendment activities in

these airports, including distribution of written and printed materials

and solicitation of funds, subject to certain time, place and manner

restrictions. 14 C.F.R. § 159.93 (1991). Similarly, St. Louis

Airport Authority Rule 1.05 states that persons or organizations

desiring to exercise constitutional freedoms "shall be protected in

such activities, provided that the same do not constitute commercial

activities and do not result in interference with transportation

functions of the Airport." Airport Authority Rule 1.05, quoted in

Jamison v. City of St. Louis, 828 F.2d, at 1282. See also City of

Oakland ordinance 1.151, quoted in Kuszynski v. City of Oakland,

479 F.2d, at 1130-31 ("The use of the Airport for the purpose of

exercising the right of free expression and communication,

including but not limited to the distribution of non-commercial,

non-obscene, non-subversive literature . . . shali not be allowed to

impair or interfere with the transportation function of the Airport.

The exercise of sucl. rights shall be in accordance with the

following rules and regulations . . . .").®

As Justice Kennedy noted in Kokinda, "|a|s society becomes

more insular in character, it becomes essential to protect public

places where traditional modes of speech and forms of expression

can take place." Kokinda, _- U.S. __, 110 S. Ct., at 3125

8/ There are also examples of government regulations, including the regulations

at issue in this case, that expressly prohibit virtually all First Amendment acuvitics

in public airport terminals. This fact reinforces the argument that government

regulations are not determinative of public forum analysis. If regulations were

determinative, an airport facility in one city might be determined to be a public

forum while a virtually identical airport facility in a similar city would be a non-

public forum.

a

13

(Kennedy, J., concurring). Citizens may no longer pay neighborly

visits in the park or stroll down main street. They do, however,

congregate in public waiting rooms of public buildings. They

emerge from their cars and circulate in public airport and bus

terminals. If these places are not modern society’s traditional

public forums, then such places effectively no longer exist. To

ensure that the public forum doctrine and its two-tiered standard for

assessing the constitutionality of restrictions on free speech retains

its integrity and vitality, amici urge this Court to reverse the Second

Circuit’s erroneous interpretation of the public forum doctrine and

find that public airport terminals are a traditional public forum

Subject to strict judicial scrutiny.

D. Under the Public Forum Standard, The Port

Authority’s Broad Ban On The Distribution

of All Written Material Violates The First

Amendment

Because public airport terminals are public forums, the Port

Authority’s regulations on public airport terminals are analyzed

under strict scrutiny. Perry Education Ass'n, 460 U.S., at 45. A

time, place, and manner regulation in a public forum must be

"content-neutral ... narrowly tailored to serve a significant

government interest, and leave open ample alternative channels of

communication.” Jd.

The Port Authority’s regulation prohibits, in part, the

"continuous or repetitive . . . distribution of flyers, brochures,

pamphlets, books or any other printed or written material" to

passers-by in the terminals of Kennedy, La Guardia and Newark

airports. International Soc’y For Krishna Consciousness v. Lee,

925 F.2d 576, 578-79 (2d Cir. 1991) (citing the regulation in

question). Under a strict scrutiny analysis, the Court has

consistently struck down such broad bans on leafletting in public

forums. Lovell v. City of Griffin, 303 U.S. 444 (1938): Schneider

9/ While each of the regulations in question in this case are arguably

unconstituuional under either a strict or lesser level of scrutiny, these amici wil!

focus their discussion on the constitutionality of the Port Authority's leafletting

regulation since, as described infra, the Court's treatment of this part of the Port

Authonity’s regulation is most directly relevant to amici's interests.

14

v. New Jersey, 308 U.S. 147 (1939); Martin v. City of Struthers,

319 U.S. 141, 146-47 (1443); Organization For a Better Austin v.

Keefe, 402 U.S. 415, 419 (1971).

The Port Authority’s complete prohibition on leafletting does

not serve a significant government interest. As discussed infra,

leafletting is one of the least intrusive forms of First Amendment

activity, and is not incompatible with the nature of airport

terminals, which are open public spaces characterized by a

significant amount of social and commercial intercourse. Any

incidental annoyance caused by petitioner’s activity is justified by

"the constitutional protection of the freedom of speech and press.

Schneider, 308 U.S., at 162; Martin, 319 U.S., at 146-47.

In addition, the Port Authority’s regulation is not narrowly

tailored. "A statute is narrowly tailored if it targets and eliminates

no more than the exact source of the ‘evil’ it seeks to remedy.

Frisby v. Schultz, 487 U.S., at 485 (citing Members of City Council

v. Taxpayers for Vincent, 466 U.S. 789, 808-10 (1984)). The Port

Authority has made no showing that each instance of handing out

a leaflet interferes with the purposes of the airport terminals. . See

Taxpayers for Vincent, 466 U.S., at 808-10 (finding constitutional

a ban on posting of signs because each instance of posting

inherently interfered with the government's interest). Nor has the

Port Authority tailored its regulation, so as not to seme ng

speech than necessary, by limiting its restrictions to certain times,

pane and/or sites within the terminals. See Heffron, 452 U S.,

at 648-54 (upholding a restriction on leafletting on public

fairgrounds because the restriction was less than 4 total ban, and

only limited distribution of literature to fixed locations).

Finally, the regulation does not leave open ample alternative

means of communication. Where, as here, the government seeks

to totally ban distribution of literature in a public forum, the Court

has for some time rejected the view that such an action is

constitutional because other forums are available for that activity.

An individual “is nc to have the exercise vd - liberty A

xpression in riate places abridged on the plea that it may be

pa in aes other place.” Schneider, 308 U.S., at 163;

Wolin, 392 F.2d, at 91-92. The Port Authority’s complete ban on

15

the distribution of literature thus cannot survive First Amendment

scrutiny.

il. THE PORT AUTHORITY’S SWEEPING BAN ON

DISTRIBUTION OF LITERATURE IS UNCON-

STITUTIONAL EVEN IF THE AIRPORTS ARE

NOT FOUND TO BE QUINTESSENTIAL PUBLIC

FORUMS.

Amici urge the Court in Section I to reverse the Second

Circuit’s determination that the airports are not public forums, and

consequently find that under strict scrutiny the Port Authority’s

broad ban on the distribution of literature violates the First

Amendment. However, even if the Court finds that the Port

Authority’s leafletting prohibition does not operate in traditional

public forums, amici urge the Court to uphold the Second Circuit’s

determination that the First Amendment requires the Port Authority

to provide reasonable access to the terminals for the distribution of

literature, and that the regulation, in completely closing off such

access, is unconstitutional.

A. The Distribution of Literature in Public

Places Has Always Been Regarded As

Essential First Amendment Expression, And

The Court Has Carefully Scrutinized Broad

Bans On This Important Channel of

Communication

An analysis of the Port Authority’s ban on leafletting, which

categorically prohibits the distribution of literature in public places,

must begin with the recognition that the regulation "operates at the

core of the First Amendment." Frisby v. Schultz, 487 U.S. 474,

479 (1988) (describing anti-picketing ordinance). As described

below, the Court has long held that protecting the ability to

disseminate written information in public is fundamental to ensuring

the open exchange of ideas and information contemplated by the

Constitution.

It is beyond dispute that the written dissemination of views,

information, and opinions in the form of leafletting is protected by

16

the First Amendment. Lovell v. City of Griffin, 303 U.S. 444

(1938); Schneider v. New Jersey, 308 U.S. 147 (1939);

Organization For a Better Austin v. Keefe, 402 U.S. 415, 419

(1971); Heffron v. International Soc'y for Krishna Consciousness,

452 U.S., at 647. Early in the development of First Amendment

jurisprudence, the Court emphasized that distributed pamphiets were

“historical weapons in the defense of liberty," which "have proved

most effective instruments in the dissemination of opinion,"

Schneider, 308 U.S., at 162, 164, and concluded that protecting the

right to distribute information is "vital to the preservation of a free

society." Martin v. City of Struthers, 319 U.S., at 146-47.

Even more recently, the Court made it clear that “peaceful

pamphleteering ‘is not fundamentally different from the function ot

a newspaper.’" City of Lakewood v. Plain Dealer Publishing Co. ;

486 U.S. 750, 761 (1988) (quoting Organization for a Beiter Austin

v. Keefe, 402 U.S., at 419). While both mediums provide essential

means for communicating information and ideas, leafletting may in

fact serve First Amendment interests which a newspaper cannot,

because it provides a more accessible forum to those with diverse

views or those who may not have the financial means to communi-

cate through more elaborate channels. See Martin, 319 U.S., at

146.

For these reasons, leafletting traditionally has been viewed as

fundamental to free expression, and the Court has accordingly

evaluated the constitutionality of restrictions upon that kind of

expression with special care. L. Tribe, supra note 4, § 12-24, at

988; see also Heffron, 452 U.S., at 649-55 (finding that time, place

and manner restriction on leafletting at a state fair must serve a

significant government interest, must be the least restrictive means

of regulation and must leave open ample alternative channels for

communication of the information); Wolin, 392 F.2d, at 92. With

10/ "beaffetting involves several related First Amendment nights: ¢the mght to

express ideas, see, ¢.g., Street v. New York, 394 U.S. 576, 593 (1969), Martin

City of Struthers, 319 U.S., at 143, the right to be exposed to ideas expressed by

others, see, ¢.g., Stanley v. Georgia, 394 U.S. 557, 564 (1969); Lamont

Postmaster General, 381 U.S. 301 (1965); Martin, 319 U.S., at 143, and the nght

to associate with others in the expression of opinivw, see, e.g., Buckley v. Valeo,

424 U.S. 1 (1976); Healy v. James, 408 U.S. 169, 181 (1972).

17

these principles in mind, the Port Authority’s ban on leafletting, as

discussed below, is unconstitutional even if the terminals are not

considered public forums.

B. Even if the Court Finds That the Airports

In Question Are Not Public Forums, The

Port Authority’s Broad Ban On _ the

Distribution of All Written Material Is Not

a Reasonable Restriction

Even if the Court finds that the airports are not

“quintessential” public forums, amici urge the Court to uphold the

Second Circuit’s determination that the Port Authority’s ban on the

distribution of literature is unconstitutional. In reaching its

conclusion, the Second Circuit stressed the Kokinda plurality’s

finding that leafletting nad a relatively small disruptive effect on

government business, and emphasized Justice Kennedy’s important

concern with the need "’to protect public places where traditional

modes of speech and forms of expression can take place."

International Soc’y For Krishna Consciousness v. Lee, 925 F.2d

576, 582 (2d Cir. 1991) (quoting Kokinda, ae

S. Ct., at 3125 (Kennedy, J., concurring)). The Second Circuit's

analysis is correct: it is plainly unconstitutional for the government

to completely prohibit, in places uniquely suited for public

discourse, an entire channel of expression which traditionally has

been viewed as core First Amendment activity, and which is

entirely compatible with the normal activity of those places.

At a minimum, any regulation of speech must be "reasonable

and not an effort to suppress speech merely because public officials

oppose the speaker’s view." Perry Education Ass'n, 460 U.S.. at

46. However, the Court has not, and should not, merely rubber-

stamp time, place and manner restrictions on speech whenever it

determines that a "quintessential" public forum is not involved.

Such an approach endangers core First Amendment values by arti-

ficially emphasizing the significance of the public forum

determination over other equally important concerns which are

central to the Court’s First Amendment analysis.

Aside from applying public forum analysis to a public place,

the Court has also looked closely at the nature and scope of the

18

restriction at issue and its relation to (1) the asserted government

interest, and (2) the particular characteristics of the regulated place.

For instance, categorical bans on a particular medium of expression

generally pose significant threats to First Amendment values, and

call for careful scrutiny. Metromedia, Inc. v. City of San Diego,

453 U.S. 490, 526-27 (1981) (Brennan, J., concurring); Schneider,

308 U.S., at 160-62 (striking down complete bans on handbilling

because less restrictive alternatives were available). In addition,

“consideration of a forum’s special attributes is relevant to the

constitutionality of a regulation since the significance of | the

governmental interest must be assessed in light of the characteristic

nature and function of the particular forum involved." Heffron, 452

U.S., at 650-51. Thus, determining the reasonableness of

restrictions on speech in public places must also include an

evaluation of these factors.

This applies equally to the regulation of speech in public

places found to be non-public forums. For example, in Members

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

Court, in considering an ordinance which prohibited the posting of

signs on public property, carefully considered all the significant

First Amendment implications of the regulation despite the Court's

finding that the property covered by the regulation was a non-public

forum. The Court focused on the fact that the ordinance broadly

curtailed a manner of communication, and proceeded to analyze the

significance of the asserted government interest, whether the

11/ See also Schad v. Borough of Mt. Ephraim, 452 U.S. 61 (1981) (striking

down zoning ordinance which totally banned live commercial entertainment

because the government could not sufficiently justify its interests and because those

interests could be satisfied with less intrusive means); Virginia State Board of

Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 771 (1976)

(striking down a state ban on advertising of prescription drug prices, and finding

that such a complete prohibition on advertising could not de characterized as 4

mere time, place, or manner restriction).

12/ = See Schad, 452 U.S., at 75-76, ("[t}o be reasonable, ume, place, and

manner restrictions not only must serve significant state interests but also must

leave open adequate alternative channels of communication.) (emphasis added)

19

ordinance was narrowly tailored and whether it left open

alternative channels of communication. In addressing the public

forum issue, the Court stated that the non-public forum label was

of “limited utility" in the case before it, and especially in cases

“falling between the paradigms of government property interests.”

Id., at 815 n.32.% See also Heffron, 452 U.S., at 650-56

(distinguishing fairgrounds from the quintessential public forum of

city streets, but then focusing on the significance of the government

interest, the availability of alternative forums, the nature and scope

of the regulation, and whether the regulation was narrowly

tailored).

This case similarly implicates important First Amendment

principles beyond the more formalistic distinction of whether the

airports at issue are quintessential public forums..“ Even if the

airport terminals are found not to be "quintessential" public forums,

the airport terminals still possess objective characteristics very

similar to streets, sidewalks and parks, and thus provide a unique

Opportunity for the dissemination and communication of

13/ See Frisby v. Schultz, 487 U.S., 485-86, where the Court interpreted part

of its ruling in Taxpayers for Vincent:

A complete ban can be narrowly tailored, but only if each activity

within the proscription’s scope is an appropriately targeted evil. For

example, in Taxpayers for Vincent we upheld an ordinance that

banned all signs on public property because the interest supporting

the regulation . . . rendered each sign an evil.

14/ While the Court in Taxpayers for Vincent upheld the regulation at issue, it

explicitly distinguished its holding from that of Schneider, where the Court struck

down a ban on leafletting. 466 U.S., at 809-10.

15/ As the Vincent Court suggested, "'the analytical line between a regulation

of the “ume, place, and manner" in which First Amendment rights may be

exercised in @ traditional public forum, and the question of whether a particular

piece of personal or real property owned or controlled by the government is in fact

a “public forum” may blur at the edges." Taxpayers for Vincent, 466 U.S., at

815 n.32 (quoting United States Postal Service v. Greenburgh Civic Ass'n, 453

U.S. 114, 132 (1981)).

20

information, especially by those of limited financial means.“ See

Section I, supra. For these reasons, they are clearly “more than 4

non-public forum,” and demand higher scrutiny than “those

instances where the Government created a nontraditional forum to

accommodate speech for a special purpose,” as with teachers’

mailboxes in Perry, or the Combined Federal Campaign in

Cornelius v. NAACP Legal Defense and Ed. Fund, 473 U.S. 788

(1985). See Kokinda, US. __,110S.Ct.,at 3125 (Kennedy,

J., concurring). In addition, within these unique public places the

Port Authority here seeks a complete ban on an activity which » as

discussed supra, has traditionally been recognized as central to First

Amendment expression. Given the gravity of the various First

Amendment considerations at stake here, the Court would seriously

undermine First Amendment protection on a broad scale if it allows

the Port Authority to ban the distribution of literature based

predominately on a finding that airports are not traditional public

forums.

Rather, when a complete ban on a particular channel of

communication in public places is at issue, as it is here, the

heightened threat to First Amendment freedoms warrants a closer

examination of whether the activity at issue actually interferes with

the normal activity of a public place:

The danger giving rise to the First Amendment inquiry

is that the government is silencing or restraining a

channel of speech; we ask whether some interest

unrelated to speech justifies this silence. To put it

another way, the question is whether ‘the manner of

expression is basically incompatible with the normal

activity of a particular place at a particular time.

City of Lakewood, 486 U.S., 763 (emphasis added) (describing

time, place, and manner test which would apply to a complete ban

on a particular manner of expression on public property) (quoting

Grayned v. City of Rockford, 408 U.S. 104, 116 (1972)); see also

16/ As society becomes more “insular in character,” places like the airport

terminals become even more valuable and unique as “public places where

traditional modes of speech and forms of expression can take place.” See

Kokinda, U.S.__, 110 S. Ct., at 3125 (Kennedy, J., concurring).

21

Grayned, 408 U.S., at 116 ("The nature of a place, ’the pattern of

its normal activities, dictate the kinds of regulations of time, place

and manner that are reasonable.’") (citation omitted).

Several circuit courts of appeal have reached the same

conclusion, finding that a broad restriction on speech even in a non-

public forum is “reasonable” only if the expressive activity is

incompatible with the normal activity of the place being regulated.

For example, in Gannett Satellite Information Network y.

Metropolitan Transp. Auth. , 745 F.2d 767 (2d Cir. 1984), the court

found that public property which is neither a traditional nor a

designated public forum can still serve as a forum for First

Amendment expression if the expression is appropriate for the

property and is not "’incompatible with the normal activity of a

particular place at a particular time." J/d., at 773 (quoting

Grayned, 408 U.S., at 116). The court held that the presence of

newsracks is not incompatible with the operation of train stations.

See also Eastern Connecticut Citizens Action Group v. Powers, 723

F.2d 1050 (2d Cir. 1983) (finding that a state railway bed was

neither a traditional or limited public forum, but holding that the

State could not broadly prohibit demonstrations there without

showing that the activity interfered or was incompatible with the

place); Stewart v. District of Columbia Armory Board, 863 F.2d

1013, 1019-20 (D.C. Cir. 1988) ("compatibility is relevant to the

ultimate determination of whether restrictions on speech are either

reasonable or narrowly tailored to a compelling state interest").

Under these standards, the Port Authority’s complete ban on

distribution of literature in the airport terminals is not

"reasonable." Given the broad nature of this restriction, the

17/ In Grayned, the Court upheld a narrowly tailored anti-picketing ordinance

because it “punishes only conduct which disrupts or is about to disrupt norma!

school activities." Grayned, 408 U.S., at 119. In contrast, the leafletting

regulation at issue here is an "impermissibly broad prophylactic ordinance." Id.

18/ The fact that the regulation only bans “repetitive” distribution is not relevant

to First Amendment analysis. It can hardly be said that the Port Authority's

prohibition is any less intrusive on speech because it allows a person to travel to

the airport, hand out one leaflet, and leave. By definition, leafletting involves

repetitive activity, as its purpose is almost always to reach a number of people.

22

fundamental expressive activity which it seeks to restrict, and the

highly public nature of the regulated place, the Port Authority has

not sufficiently shown that peaceful pamphleteering is incompatible

or interferes with the activity which normally occurs in airport

terminals.

The airport terminals are public spaces where people generally

wait for a flight, mill about, shop or just pass through. Circuit

courts of appeal have noted that this scene resembles a city street.

"Both are lined by shops, restaurants, newsstands and other

businesses, with travelers or other members of the general public

coming and going as they please." Jamison v. City of St. Louis,

828 F.2d 1280, 1283 (8th Cir. 1987), cert. denied, 485 U.S. 987

(1988). Millions of people are freely admitted to and pass through

these terminals each year, engaging in a "’considerable amount otf

social and commercial interchange."" United Staies Southwest

Africa/Namibia Trade & Cultural Council v. United States, 708

F.2d 760, 765 (D.C. Cir. 1983) (quoting FAA at 45 Fed. Reg.

35,314 (1980)). Because airport terminals possess these

characteristics, they closely "resemble those public thoroughfares

which have been long recognized to be particularly appropriate

places for the exercise of constitutionally protected rights to

communicate ideas and information." Chicago Area Military

Project v. City of Chicago, 508 F.2d 921, 925 (7th Cir.), cert.

denied, 421 U.S. 992 (1975) (citing Hague v. Committee for

Industrial Organization, 307 U.S. 496, 515-16 (1939)).

Against this backdrop, leafletting is plainly compatible with

the nature of airport terminals. See, e.g. Chicago Area Military

Project, 508 F.2d, at 925 (peaceful leafletting did not interfere with

activity of Chicago’s O’Hare Airport), Wolin v. Port of New York

Authority, 392 F.2d 83, 89-90 (2d Cir.), cert. denied, 393 U.S. 940

(1968) (ban on leafletting in bus terminal invalidated because the

terminal, attended with “noisy crowds" and “less than perfect

order,” is an appropriate place to express one’s views). Amongst

a free flow of people engaging in social and commercial interchange

19/ In its opinion below, the Second Circuit found the record sufficient to

demonstrate that in-person solicitation is likely to cause disruption in the airport

terminals. However, neither that court nor the district court made any such

finding with respect to leafletting.

23

in an open public space, the act of handing out pamphlets to

passersby is hardly disruptive.” Indeed, the Court has

recognized that leafletting is one of the least disruptive forms of

expression and communication:

One need not ponder the contents of a leaflet

or pamphlet in order mechanically to take it

out of someone’s hand... . ’The distribution

of literature does not require that the recipient

stop in order to receive the message the

speaker wishes to convey; instead, the

recipient is free to read the message at a later

scue

Kokinda, __U.S.__, 110 S. Ct., at 3123 (quoting Heffron, 452

U.S., at 665 (Blackmun, J., concurring)). In addition, a person

offered a leaflet is free to decline it. It would be especially easy for

an airline passenger whose hands are occupied with baggage to

decline a leaflet without even breaking stride. Thus, it is extremely

unlikely that leafletting would interfere with the normal activity of

airport terminals or with the facilitation of air travel 2!

Aside from the fact that leafletting poses little potential

interference with airport activities, neither of the courts below

20/ ‘Petitioners seek access only to the wide open spaces within the terminals

where people are moving about. As the district court found, they do not seek to

leaflet "in any private offices, ticket counters and lines, check-in areas, baggage

claim areas, or exclusively-leased waiting areas — in short, those areas where

concerns Over security, congestion and captive audiences may be particularly

acute.” International Soc y for Krishna Consciousness v. Lee, 721 F. Supp. 572,

578 n.9 (S.D.N.Y. 1989).

21/ Moreover, such activity is no more intrusive than if petitioners attempted

to communicate their views verbally. See United States v. Fennelly, 726 F. Supp.

871, 874 (D.D.C. 1989) (recognizing that there is no principled distinction in

government interest between banning leafletting and banning communication by

word of mouth). Thus, if the Port Authority can constitutionally prohibit

leafletting in the airport terminals, it might be free to ban oral communication as

well — a result inconsistent with Board of Airport Comm'rs of Los Angeles v. Jews

For Jesus, 482 U.S. 569 (1987) (finding unconstitutional a regulation prohibiting

all First Amendment activities in the Los Angeles International Airport terminal).

24

found that the Port Authority presented any hard evidence of actual

interference with airport activities or purposes with respect to

leafletting, as opposed to solicitation. See Lee, 925 F.2d, at 582;

cf. Schad, 452 U.S., at 75 (no evidence had been presented to

establish that regulated activities interfered with the uses of the

place). And, unlike the situation in Vincent, where the Court found

that visual blight inherently accompanied the posting of every sign,

there has been no showing that every act of distributing a leaflet in

the airports, regardless of the specific time, place within the

terminals, and manner of such activity, would inherently cause

disruption. See Taxpayers for Vincent, 466 U.S., at 809-10 (distin-

guishing the posting of signs from the leafletting at issue in

Schneider). Nor has the Port Authority attempted to find a less-

intrusive alternative which could serve its asserted goals, as in

Heffron, where the Court upheld a restriction on leafletting on

public fairgrounds because the restriction was less than a total ban,

and only limited distribution to fixed locations. See Fernandes v.

Limmer, 663 F.2d 619, 633-635 (Sth Cir. 1981), cert. dismissed,

458 U.S. 1124 (1982) (blanket prohibition on solicitation and

distribution inside airport terminals overbroad).

In light of these facts, a ruling by this Court that the act of

distributing literature interferes with the activity of the airports, and

thus that the prohibition is constitutional, could open the door to

substantial erosion of First Amendment protection for activities

which have historically been found to lie at the core of First

Amendment expression. Since the restriction on speech being

scrutinized here is a broad time, place and manner regulation which

applies to all types of speech, the Court’s ruling will have

implications beyond the instant activity of distributing religious

materials; also at stake is First Amendment protection for societal

and political speech. For example, the efforts of organizations

22/ Justice Harlan has commented eloquently on the dangers of overreacting to

what one might consider the fringes of protected speech:

To many, the immediate consequence of this freedom may often

appear to be only verbal tumult, discord, and even offensive

utterance. These are, however, within established limits, in truth

necessary side effects of the broader enduring values which the

(continued...)

25

like amicus Project VOTE, which is engaged in fundamental

political speech in its efforts to encourage and enable citizens to

exercise their right to vote, could clearly be affected by this Court’s

decision.

The right to vote is the most fundamental right in our system

of government and exercise of that right is critical to the

preservation of the system and of all other rights and freedoms

enjoyed under it:

No right is more precious in a free country than that of

having a voice in the election of those who make the

laws under which, as good citizens, we must live. Other

rights, even the most basic, are illusory if the right to

vote is undermined.

Wesberry v. Sanders, 376 U.S. 1, 17 (1964). Thus, speech which

centers on a citizen’s right to have a direct say in who will govern

and how, is fundamental to the First Amendment’s essential role in

ensuring an open and effective political process. See New York

Times v. Sullivan, 376 U.S. 254, 269 (1964) (in its essence, First

Amendment protects free political discussion so that "’government

may be responsive to the will of the people’") (quoting Stromberg

v. California, 283 U.S. 359, 369 (1931)).

. As described above in its Statement of Interest, Project VOTE

is engaged primarily in an effort to inform and increase civic

participation and voter registration among millions who have not

previously participated in elections, particularly low-income

citizens. In order to target this audience, for some ten years Project

VOTE has conducted many of its First Amendment activities in the

waiting rooms and lobbies of various government agencies,

including unemployment, welfare and food-stamp offices, which are

22/ (...continued)

process of open debate permits us to achieve... . We cannot lose

sight of the fact that, in what otherwise might seem a trifling and

annoying instance . . ., these fundamental societal values are truly

implicated.

Cohen v. California, 403 U.S. 15, 24-25 (1971) (citations omitted).

26

forums were many people congregate. Nowhere else can large

numbers of such citizens be reached nearly as effectively.= Nor

is there a more appropriate setting in which to advise them oi their

rights to vote and to encourage the exercise of those rights.

Government efforts to curtail these and similar activities have

been consistently held by lower courts to violate the First

Amendment, based primarily on findings that these waiting areas

and lobbies are public forums, that bans on such communication

efforts are not reasonable, and that such activities do not interfere

with the proper functioning of such places That First

Amendment analysis is clearly at issue in this case. Should the

Court narrowly constrict public forum doctrine, find that the

airports are non-public forums, and then find that distribution of

leaflets is incompatible with airport activity, it could undermine

numerous decisions upholding the right of Project VOTE and other

similar organizations to access the only practical public places

where they can communicate with populations of unregistered

voters, inform them of their fundamental right to vote, and help

them to exercise that right.

23/ See, e.g., Albany Welfare Rights Org. v. Wyman, 493 F.2d 1319 (2d Cir.),

cert. denied, 419 U.S. 838 (1974) (finding that state welfare offices were the only

appropriate places in which plaintiffs could identify and organize welfare

recipients); Unemployed Workers Union v. Hackett, 332 F. Supp. 1372 (D.R.1.

1971) (ruling that state unemployment office waiting rooms were the only place

in which plaintiffs could identify their target population and that the offices’

general nature, essential purpose, and pattern of usual activity made them

appropriate forums).

24/ See, e.g., New York City Unemployed and Welfare Council v. Brezenoff, 677

F.2d 232 (2d Cir. 1982); Albany Welfare Rights Org. v Wyman, 493 F.2d 1319

(2d Cir.), cert. denied, 419 U.S. 838 (1974); Neighborhood Information Sharing

Exchange v. Engler, No. 4:91-CV-140 (W.D. Mich. 1991); Project Vote v

O'Hara, No. $4-4333-CV-C-5 (W.D. Mo. Sept. 27, 1984), Project Vote v

Freeman, Civ. No. 84-509-B (S.D. lowa July 26, 1984); Project Vote v

Thornburgh, No. 84-1255 (E.D. Pa. 1984), Project Vote v. Orr, No. | P 84-394-C

(S.D. Ind. March 25, 1984); Project Vote v. Ohio Bureau of Employment Services,

No. C-1-82-905 (S.D. Ohio Sept. 13, 1982); Unemployed Workers Union v

Hackett, 332 F. Supp. 1372 (D.R.1. 1971).

27

CONCLUSION

For the forgoing reasons, the airport terminals ar ic

forums and the judgment of the cana appeals on nar

should be reversed. Further, under a public forum analysis, the

Port Authority’s blanket prohibition on the distribution of literature

violates the First Amendment. Even if the airport terminals are not

traditional Public forums, the judgment of the court of appeals that

the leafletting prohibition is unconstitutional since it does not allow

reasonable access to the terminals for the distributi i

e distribution of liter;

should be upheld. aan

Respecttully submitted,

Robert Plotkin

Counsel of Record for

the Amici Curiae

Elinor L. Colbourn

Andrew J. Steinberg

2000 M Street, N.W.

Suite 400

Washington, D.C. 20036

(202) 467-4999

Elliot M. Mincberg

Sonia A. Bacchus

People For The American Way

2000 M St., N.W.

Suite 400

Washington, D.C. 20036

(202) 467-4999

February 14, 1992