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

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cm Nos. 91-155 & 91-339

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a> a IN THE

a: Supreme Court of the United States

OCTOBER TERM, 1991

INTERNATIONAL SOCIETY FOR KRISHNA

CONSCIOUSNESS, INC., AND BRIAN RUMBAUGH,

‘ Petitioners,

WALTER LEE,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

MOTION FOR LEAVE TO FILE A BRIEF

AS AMICUS CURIAE AND

BRIEF OF THE AMERICAN FEDERATION OF LABOR

AND CONGRESS OF INDUSTRIAL ORGANIZATIONS

AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

MARSHA S. BERZON

177 Post Street

San Francisco, CA 94108

WALTER KAMIAT

LAURENCE GOLD

(Counsel of Record)

815 16th Street, N.W.

Washington, D.C. 20006

(202) 637-5390

WILSON - Eres PRINTING Co.. INC. - 789-0056 - WASHINGTON. D.C. 20001

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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,

is Petitioners,

WALTER LEE,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

MOTION FOR LEAVE TO FILE A BRIEF

BY THE AMERICAN FEDERATION OF LABOR

AND CONGRESS OF INDUSTRIAL ORGANIZATIONS

AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

The American Federation of Labor and Congress of

Industrial Organizations (“AFL-CIO”) moves for leave

to file the attached brief amicus curiae in support of

petitioners. Petitioners have granted their consent to the

filing of said brief. Respondent has refused its consent.

In support of this motion the AFL-CIO states as follows:

1. The AFL-CIO is a federation of 90 national and

international unions with a total membership of approx-

imately 14,000,000 working men and women.

2. Historically, the AFL-CIO and its member unions,

have had a vital interest in the First Amendment rights

of citizens to disseminate their views among the pub-

lie by handbilling and other peaceful means. Indeed, many

of the leading cases that this Court has decided in the

First Amendment area—including many of the “public

forum doctrine’ cases—have involved the efforts of union

members to engage in peaceful handbilling and other

expressive activities. See, e.g., Hague v. CIO, 307 U.S.

496 (1939); Schneider v. State, 308 U.S. 147, 155

(1939); Thornhill v. Alabama, 310 U.S. 80 (1940);

Thomas v. Collins, 323 U.S. 516 (1945); NLRB v. Fruit

Packers, 377 U.S. 58 (1964); DeBartolo v. Florida Gulf

Coast Trades Council, 485 U.S. 568 (1988). Because of

the AFL-CIO’s vital interest in this area, the Federation

has filed briefs as an amicus curiae in a substantial num-

ber of this Court’s recent “public forum” cases. See, ¢.g.,

United States v. Kokinda, U.S. ——, 58 L.W. 5013

(1990); Frisby v. Schultz, 487 U.S. 474 (1988); Board

of Airport Commissioners v. Jews for Jesus, Inc., 482

U.S. 569 (1987); Heffron v. International Society for

Krishna Consciousness, 452 U.S. 640 (1981).

3. Respondent in this case has argued, inter alia, that

the government, in order to minimize public congestion

and annoyance, may broadly prohibit members of the

public from engaging in any handbilling activities on a

public property other than a street or park, unless the

government has purposefully dedicated the property to

public expressive activities. Should such a broad argu-

ment be accepted by this Court, the ability of citizens

to peacefully disseminate their views to the public at

large would be severely curtailed. The attached brief

amicus curiae examines those prior decisions of this

Court—and their underlying logic—which have estab-

lished and defined the right of a citizen to disseminate

ideas to fellow citizens on publie properties that have

traditionally been open for public gathering and free

communication. As we show, the bounds of this right

are far broader than respondent concedes, and more than

broad enough to invalidate the rule at issue in this case.

4. In preparing the attached amicus curiae brief, we

have consulted with counsel for petitioners to ensure that

the views and arguments therein will not merely be re-

petitive of those presented in petitioners’ brief. The AFL-

CIO has also requested consent from all parties for the

filing of the attached amicus curiae brief. Counsel for

petitioners has given the AFL-CIO consent. Counsel for

respondent initially gave consent; but, after this Court

granted a motion by petitioners for an extension of time

for the filing of petitioners’ brief, counsel for respond-

ents refused consent for the filing of the attached amicus

curiae brief unless it was filed and served pursuant to the

original, unextended schedule.

5. This motion, with the attached brief, is being filed

and served within the time allowed by the Court for the

filing and service of the brief of petitioners, as provided

in the rules of this Court.

CONCLUSION

For the above-stated reasons, this motion for leave

to file a brief amicus curiae should be granted.

Respectfully submitted,

MARSHA S. BERZON

177 Post Street

San Francisco, CA 94108

WALTER KAMIAT

LAURENCE GOLD

(Counsel of Record)

815 16th Street, N.W.

Washington, D.C. 20006

(202) 637-5390

TABLE OF CONTENTS

Page

INTEREST OF THE AMICUS CURIAE .................... 1

INTRODUCTION AND SUMMARY OF ARGU-

INET <ccascanacnniesguisbeaniibenaiianipaniataiadaiaiaileniadeianaiaamietenenends 1

P ___________ EEE nO F Ore T L e 8

I. The Purposes Of The First Amendment And

Of The Public Forum Doctrine ............. 8

II. The Airport Terminal As A Public Forum ........ 14

jetenneawenhnhiresonnnneibetiinebbinnaasinaddicnenstiiensacenbeieiesies 27

ii

TABLE OF AUTHORITIES

CASES: Page

Adderly v. Florida, 385 U.S. 39 (1966) 0. 13, 20

Bose Corp. v. Consumers Union of United States,

eee a 9

Carey v. Brown, 447 U.S. 455 (1980) _.................. . 12, 25

Carroll v. President and Commissioners of Princess

pe ana 24

Chicago Area Military Project v. City of Chicago,

bs § Ge Le | ee 4,17

City Council v. Taxpayers for Vincent, 466 U.S.

SHIITES acs annie ieataiine etnias peeuenacamioiionneeiananions 20

Cornelius v. NAACP Leg. Def. Fund, 473 U.S. 788

an alanee jean 13, 14, 18, 24, 25

Cox v. Louisiana, 379 U.S. 536 (1965) Se PE ae tone 22,24

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

1981), cert. dismissed, 458 U.S. 1124 (1982)__4, 15, 16

Frisby v. Schultz, 487 U.S. 474 (1988) 2.000000... . 12, 25

Grayned v. City of Rockford, 408 U.S. 102 (1972)... 23, 24

Greer v. Spock, 424 U.S. 828 (1976) ........................ 13, 21

Hague v. CIO, 307 U.S. 496 (1939) -.......--- passim

Hazelwood School District v. Kuhlmeier, 484 U.S.

RR SERTIES EOS To chars sree co CA. ea Se 18

Heffron v. International Society for Krishna Con-

sciousness, 452 U.S. 640 (1981)... oe 21, 23

Hudgens v. NLRB, 424 U.S. 507 (1976) —.............. 12, 25

Hustler Magazine v. Falwell, 485 U.S. 46 (1988). 6,9

International Society for Krishna Consciousness

v. Eaves, 601 F.2d 809 (5th Cir. 1979) —........-.... 4

International Society for Krishna Consciousness

v. Lee, 721 F. Supp. 572 (S.D.N.Y. 1989) —...... "5, 21

International Society for Krishna Consciousness

v. Lee, 925 F.2d 576 (2nd Cir. 1992) _............. 2

Ex Parte Jackson, 96 U.S. 727 (1878) ... sae 12

Jamison v. City of St. Louis, 828 F.2d 120 (8th Cir.

1987), cert. denied, 485 U.S. 987 (1988) 4

Jamison v. Texas, 318 U.S. 413 (1943)... sc amacecens 11, 24

Jews for Jesus, Inc. v. Board of Airport Comm'rs,

785 F.2d 791 (9th Cir. 1986), aff'd on other

grounds, 482 U.S. 569 (1987) ............000-- ee... 4

Kuszynski v. City of Oakland, 479 F.2d 1130 (9th

RRR ENE Re aso Aaa re Ee 4

TE I ON Be

iil

TABLE OF AUTHORITIES—Continued

Page

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

AN AEST RETR Res eee a AE 20, 25

Lovell v. Griffen, 303 U.S. 444 (1938) SRT Pee eens 12

Marsh v. Alabama, 326 U.S. 501 (1946) 0. 25

Martin v. City of Struthers. 319 U.S. 141 (1943) 11, 12, 24

New York Times v. Sullivan, 376 U.S. 254 (1963)... 8, 9

Niemotko v. Maryland, 340 U.S. 268 (1951)... 23

Perry Education Association v. Perry Local Edu-

cators’ Association, 460 U.S. 37 (1983) .....13, 14, 18, 24

Rosen v. Port of Portland, 641 F.2d 1243 (9th Cir.

| Sea ace ana a ee 4

Roth v. United States, 354 U.S. 476 (1957) ........... 9

Schneider v. State, 308 U.S. 147 (1939) —..000.. passim

Southwest Africa/Namibia Trade & Cultural

Council v. United States, 708 F.2d 760 (D.C.

SEE: “TIIITIET cercestesnneniceieasaaibilieidintaiinsiiaicdenenitncciionttahas ia 4, 14, 15, 20

Stromberg v. California, 283 U.S. 359 (1931) ........ 8

United States v. Associated Press, 52 F. Supp. 362

(S.D.N.Y. 1943) ........ Saccdasadicdisaumnsedesinbiastabintdeshiaiaaatiiaes 9

United States v. Grace, 461 U.S. 171 (1983). 12, 14, 24, 25

United States v. Kokinda, U.S. ——, 58 L.W.

| ea SRT AA eer ae ee piledasalion 2, 6, 15, 16, 26

Wolin v. Port of New York Authority, 392 F.2d 83

(2a Cir. 1968) .............. ane sacdanesduiadamnaadokal 4,16, 17,19

REGULATIONS:

FAA, Solicitation and Leafletting Procedures at

National and Dulles International Airports, 45

FE RO RI 4,5,18

4 Fea. Reg. T6Rs: (1980) ................................... aia 5

14C.F.R. §§ 159.93-.94 (1991) 2000... mere 5,18

MISCELLANEOUS:

T. Emerson, The System of Freedom of Expression

RSE ARLENE TEES DNS Si Ciera cS aE ST 8

The Declaration of Independence (1776) .......00..... 8

The Federalist No. 39 (Bantam ed. 1982) 0.0... 8

Stone, Fora Americana; Speech in Public Places,

1974 Supreme Court Rev. 2838 ...............0.000000.0000... 10

IN THE

Suprene Court of the United States

OCTOBER TERM, 1991

Nos. 91-155 & 91-339

INTERNATIONAL SOCIETY FOR KRISHNA

CONSCIOUSNESS, INC., AND BRIAN RUMBAUGH,

. Petitioners,

WALTER LEE,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF OF THE AMERICAN FEDERATION OF LABOR

AND CONGRESS OF INDUSTRIAL ORGANIZATIONS

AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICUS CURIAE

The interest of the American Federation of Labor and

Congress of Industrial Organizations in this case is set

forth in the foregoing motion for leave to file this brief.

INTRODUCTION AND SUMMARY OF ARGUMENT

1, The Port Authority of New York and New Jersey

(“Authority”) absolutely prohibits any individual, while

present in any of the public interior places of the three

major New York metropolitan airports, from distributing

to “passers-by in a continuous or repetitive manner” any

“printed or written material” whatsoever. Appendix to

Petition in Case No. 91-155 (‘“Pet. App.”) at 84. The

é

Authority does not provide for any means of obtaining

an exception based on a willingness to respect reasonable

limits on the time, place, or manner of a proposed dis-

tribution, or for any system of permits that would allo-

cate, on a non-discriminatory basis, the opportunity to

distribute writings to others in a peaceful and nondis-

ruptive manner.

The Authority’s rule thus effectively bans all efforts

by members of the public to disseminate written ideas

among the many millions who pass through these massive

and bustling crossroads of national and international com-

merce. And, the Authority has done so regardless of how

compatible and inoffensive any particular distribution

would be to its various legitimate interests.

Closing a iocation that has traditionally served as

a place of public gathering and interaction to all liter-

ature distribution strikes at the very heart of the First

Amendment’s fundamental rights of free speech and free

press. The decision of the court of appeals holding this

anti-distribution rule unconstitutional should be affirmed.’

1The Authority also prohibits soliciting funds from “passers-by

in a continuous or repetitive manner” in the public interior places

of the airports. Pet. App. 84.

The court of appeals upheld this rule reasoning that this Court’s

recent treatment of a solicitation rule in United States v. Kokinda,

U.S. , 58 L.W. 5013 (1990), justifies prohibitions on face-

to-face solicitations that would not be justified regarding literature

distributions. See International Society for Krishna Consciousness

(“ISKCON”) v. Lee, 925 F.2d 576, 581-82 (2nd Cir. 1992).

Although we believe that the Authority’s prohibition of literature

distributions and its prohibition of solicitations are both unconstitu-

tional, we will only discuss the prohibition on literature distributions

in this brief. We focus on the prohibition of literature distributions

because we regard the activity of peacefully disseminating written

materials to the public in a place of traditional public gathering as

perhaps the purist and most basic exercise of the rights of free

speech and free press protected by the First Amendment, and thus

the exercise most entitled to public concern and to constitutional!

protection. See p. 12, infra.

3

The interior air terminal spaces subject to the Author-

ity’s absolute ban on literature distributions include many

public places entirely open to the public that are fre-

quented by vast numbers of persons from all corners of

the nation and the world who shop, spend idle time, and

otherwise interact in a generally unstructured and un-

monitored manner. As the magistrate below found:

The airport terminals under Port Authority con-

trol are busy places containing large open lobbies

and corridors lined with a variety of shops, res-

taurants, and other businesses. . . . For example,

the second-floor lobby of the International Arrivals

Building at Kennedy is bordered by two restaurants,

two snack bars, a bar, a postal facility, a bank, a

telegraph office, a duty-free boutique, a drug store,

a nursery, a barber shop, and two currency exchange

facilities; it also contains a dental office and a place

for the display of art exhibits. . . . The second-floor

corridors are lined by eight duty-free shops, four

bars, two snack bars, a bank, two currency ex-

changes, two bookstores, two newsstands, two cookie/

candy shops, four travel insurance areas, a cash/

traveler’s check machine, and a retail Blooming-

dale’s; they also contain seating facilities and free-

standing advertising displays.

The Port Authority-controlled areas are open to

the public at all times. The Port Authority does not

deny or monitor the access of the general public

to the three airport complexes or to the general-

circulation areas in the buildings. . . . Thus, the

facilities are freely available to all persons, whether

or not they have travel-related tasks. ... In 1986,

the airports served 78,846,000 passengers; this num-

ber is expected to increase to 110 million in the

1990s. { Pet. App. 53-54 (internal citations omitted) .]

In these respects, the airport terminal areas at issue

here are not materially different from those in other

major public terminal facilities, all of which have become

public gathering places in which citizens freely meet

4

and exchange information and opinion. And, for decades,

every court of appeals that has confronted issues relating

to First Amendment activities in such terminals has

agreed that these locations are wholly appropriate places

for citizens to exercise their First Amendment right to

disseminate ideas and written materials to the public.’

These numerous and consistent judicial decisions rec-

ognize the social fact that the major transportation cen-

ters of our society—where millions from varied origins

and with diverse destinations freely congregate, sit, shop,

rest, eat, and generally intermingle—are places where, for

decades, handbilling and other First Amendment activities

have been pursued without disruptive, or other deleteri-

ous, effect.®

The Federal Aviation Administration (“FAA”) has

likewise recognized that “it has become common prac-

tice for various religious and non-profit organizations to

use commercial airports as a forum for the distribution

of literature, the solicitation of funds, the proselytizing

of new members, and other similar activities.” FAA,

2 See, e.g., Jamison v. City of St. Louis, 828 F.2d 120 (8th Cir.

1987), cert. denied, 485 U.S. 987 (1988); Jews for Jesus, Inc. v.

Board of Airport Comm'rs, 785 F.2d 791 (9th Cir. 1986), aff'd on

other grounds, 482 U.S. 569 (1987); Southwest Africa/ Namibia

Trade & Cultural Council v. United States, 708 F.2d 760 (D.C. Cir.

1983) (“Southwest Africa”); Fernandes v. Limmer, 663 F.2d 619

(5th Cir. 1981), cert. dismissed, 458 U.S. 1124 (1982): Rosen v.

Port of Portland, 641 F.2d 1243, 1245-46 (9th Cir. 1981); Chicago

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

1975) (“CAMP”); Wolin v. Port of New York Authority, 392 F.2d

83 (2d Cir. 1968). See also ISKCON v. Eaves, 601 F.2d 809 (5th

Cir. 1979); Kuszynski v. City of Oakland, 479 F.2d 1130, 1131

(9th Cir. 1973).

® The court below recognized this “unanimous authority” as “well-

established” and of “considerable weight,” and went on to hold that

the Authority’s rule banning al! lit®@rature distributions is uncon-

stitutional, even though the court affirmed the validity of the anti-

solicitation provisions contained in the Authority’s rules. See note

1, supra.

5

Solicitation and Leafletting Procedures at National and

Dulles International Airports, 45 Fed. Reg. 35314 (1980)

(“FAA Notice of Rule’). And, the FAA has, consistent

vith the unanimous view of the courts of appeals, con-

cluded that, because of “the considerable amount of social

and commercial interchange in [airport] terminals,” parts

of these terminals are “in many respects ... like any other

public thoroughfare where there is no question that the

Cons‘itutional cuarantees of freedom of speech, the exer-

cise of religion, and the right of peaceable assembly ap-

ply.” Jd. The FAA, in administering its own airports,

has, moreover, accepted the reality that handbiliing and

other First Amendment activities can be carried out

without interfering with a major airport’s substantial

interests, as long as such activities conform to reasonable

time, place, and manner restrictions. Jd. See also 14

C.F.R. §§ 159.93-.94 (1991) (rule establishing time,

place, and manner restrictions for handbilling at Na-

tional and Dulles Airports) (“FAA Rule’); 45 Fed. Reg.

70237 (1980).

In this litigation the Authority has argued that this

unanimous and well-established understanding should be

rejected in favor of the rule that the government may

prohibit a// distributions of literature within the in-

terior public spaces of air terminals. The Authority con-

tends that areas within public air terminals—whatever

their use—are not intended to be used for public dis-

course. See Brief of Respondent to Petition for a Writ of

Certiorari (“Resp. Br.’’), at 15. And the Authority adds

that this Court’s recent precedents have effectively limited

the right to disseminate writings on public locations to

traditional “streets and parks alone,” leaving the govern-

ment free to totally prohibit such activities in all other

public locations, See ISKCON v, Lee, 721 F.Supp. 572, 577

(S.D.N.Y. 1989) (diseussing the Authority’s argument

that a total ban on airport leafletting is valid because

“the scope of the traditional public forum . . . classifica-

6

tion is a narow one, limited to ‘streets and parks’ alone,

both of which [the Authority] categorizes as a ‘unique

species of public property’ ”’).

This line of argument denies all generative import to

a fundamental premise of our First Amendment law, and

would destroy the principled foundation of that law. See

pp. 21-25, infra. Of at least equal consequence, “|a]s so-

ciety becomes more insular in character,” United States

v. Kokinda, US. , 58 L.W. 5013, 5018 (1990)

(Kennedy, J.), the Authority’s approach would, as a

practical matter, severely inhibit “the free flow of ideas

and opinions” that is “|a]t the heart of the First Amend-

ment.” Hustler Magazine v. Falwell, 485 U.S. 46, 50

(1988). Sce pp. 26-27, infra.

2. In Part I of this brief, we examine the constitu-

tional considerations that led this Court, more than 50

years ago, to uphold a citizen’s right to distribute written

materials in those pubiic places where the public has

traditionally been free to gather and exchange views.

Citizens disseminating their ideas among the public in

this fashion are participating in the processes of public

debate through which the citizenry as a whole formulates

its sovereign will to direct the government. See pp. 8-9,

infra. Recognizing this, the decisions of this Court have

repeatedly held that when the government holds property

open for the free and unstructured use of the gathering

public, members of the public have a constitutional right

to peacefully engage in such activities as the distribution

of handbills. See pp. 9-12, infra (discussing cases).

More recent cases holding that various forms of public

property need not be made available to individuals seek-

ing to use them for expressive purposes have not involved

public locations where citizens have been traditionally free

to gather and exchange views, but have involved instead

7

individual demands of access to government properties

that have traditionally been devoted only to more special-

ized, limited, and structured public uses, or to specialized,

government-sponsored and managed media of communi-

cations. These more recent cases, however, have not ques-

tioned the continued vitality of the principle that where

public property is held for free public gathering and in-

terchange, the government may not prohibit efforts by

members of the public to engage in such activities as

handbilling in order to disseminate their views. See

pp. 12-14, infra.

In Part II, we examine the status of the public areas

of major air terminals within this framework. As we

show, air terminals contain extensive areas designed to

replicate the public streets and plazas, to be held con-

tinuously open to the public, and to invite the public to

gather and engage in free and unstructured use, including,

as members of the public see fit, free discourse and the

exchange of ideas and views. See pp. 14-17, infra. On

these properties, just as on the streets, handbilling can

be-—and has been—regularly conducted in a wholly non-

disruptive manner. See pp. 17-18, infra. Moreover, these

areas, as places where people with varied origins and

destinations congregate and meet, are uniquely valuable

for the exchange of information and ideas among the

gathering public at large. In essence, transportation ter-

minals connect a locality to the outside world and to out-

side ideas, and, for this reason, have traditionally been

used for extensive communicative activities. See pp. 18-19,

infra. For all these reasons, handbilling has been a nor-

mal activity in air terminals for some time. Indeed, the

tradition of using air terminal public areas for such com-

municative activities as handbilling extends over a sig-

nificant portion of the history of the large, public, com-

mercial air terminal. See pp. 19-20, infra.

All this being so, the public areas of air terminals

are squarely within the free-speech and free-press prin-

8

ciple that this Court has recognized; viz., that in those

public areas where citizens have been traditionally free

to gather and exchange views as they wish, such activi-

ties as handbilling are constitutionally protected. See

pp. 20-21, infra.

ARGUMENT

1. The Purposes Of The First Amendment And Of The

Public Forum Doctrine

A. In evaluating the Port Authority’s position in this

case, it is helpful to begin by recalling some very basic

propositions about the purposes of the First Amendment

generally, and the purposes of the public forum doctrine

particularly.

1. This Court has long recognized that the First

Amendment rights of free speech and free press are at

the very foundation of our system of government, which

is based on the “consent of the governed.” See New York

Times v. Sullivan, 376 U.S. 254, 273-75 (1963). “The

consent of the governed” implies not only that consent

shall be uncoerced, but also that it shall be informed.

Free access to the ideas and views of our fellow citizens

is thus essential if our government and our culture are

to reflect the free deliberative choices of our citizenry.

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

(“The maintenance of the opportunity for free political

discussion to the end that government may be responsive

to the will of the people and that changes may be obtained

by lawful means, an opportunity essential to the security

of the Republic, is a fundamental principle of our con-

stitutional system’) ; see also T. Emerson, The System of

Freedom of Expression, at 7 (1970).

4Cf. The Federalist No. 39, at 190 (Bantam ed. 1982) (Madison)

(defining “republic” as a political system in which all authority is

derived “from the great body of the people”); The Declaration of

Independence, para. 2 (1776) (“Governments . . . deriv[e} their just

powers from the consent of the governed’’).

9

The First Amendment, therefore, “assure{s] unfet-

tered interchange of ideas for the bringing about of po-

litical and social changes desired by the people.” Roth v.

United States, 354 U.S. 476, 484 (1957). And, a citi-

zenry denied by the government the practical opportunity

to freely share information and views, debate, and delib-

erate is denied “the absolute sovereignty” which our sys-

tem presumes shall forever rest with “[{t]he people, not

the government.” New York Times v. Sullivan, supra,

376 U.S. at 274 (quoting James Madison’s comments on

= of the press, 4 Elliot’s Debates, at 569-70 (1891

Dd

The First Amendment rests as well on the premise

that the free interchange of ideas is necessary to “se-

cure [for the citizenry] ‘the widest possible dissemina-

tion of information from diverse and _ antagonistic

sources.’”’ New York Times v. Sullivan, supra, 376 U.S.

at 266 (quoting Associated Press v. United States, 326

U.S. 1, 20 (1945)). As this Court recently declared,

“{t]he freedom to speak one’s mind is not only an aspect

of individual liberty—and thus a good unto itself—but

is also essential to the common quest for truth and the

vitality of society as a whole.” Hustler Magazine v.

Falwell, supra, 485 U.S. 46, 50-51 (1988) (quoting Bose

Corp. v. Consumers Union of United States, Inc., 466

U.S. 485, 503-04 (1984) ).

In the words of Judge Learned Hand, “{t]o many this

is, and always will be folly; but we have staked upon it

our all.” United States v. Associated Press, 52 F.Supp.

362, 372 (S.D.N.Y. 1943) (quoted in New York Times v.

Sullivan, supra, 376 U.S. at 270).

2. These First Amendment principles are the founda-

tion of the line of precedents that treat with a citizen’s

right to broadly disseminate ideas to the public at large

while present on those public locations upon which the

public has traditionally gathered. Professor Stone has

aptly summarized their point as being that

10

The right to freedom of speech cannot exist in the

abstract. It necessarily presupposes the right to com-

municate. In the absence of an effective and mean-

ingful opportunity to reach the relevant audience, the

theoretical right of expression would be hollow.

(Stone, Fora Americana; Speech in Public Places,

1974 Supreme Court. Rev. 233, 245. ]

In Hague v. CIO, 307 U.S. 496, 501 (1939), this Court

held unconstitutional a municipal ordinance which pro-

hibited inter alia the distribution of leaflets and pamph-

lets on “any street or public place.” Justice Roberts’

plurality opinion rejected the proposition that, because

the government owned the public places at issue, the

people’s ability to engage in such First Amendment ac-

tivities was “absolutely under the control of the legisla-

ture.” Jd. at 515. “The very idea of a government, re-

publican in form, implies a right on the part of its citi-

zens to meet peaceably for consultation in respect to

public affairs and to petition for a redress of grievances.”

Id. at 513 (quoting United States v. Cruikshank, 92 U.S.

542, 552-53 (1875)). That being so, “communicating

thoughts between citizens, and discussing public ques-

tions,” entailed a “use of the streets and public places

[that] has, from ancient times, been a part of the priv-

ileges, immunities, rights, and liberties of citizens.” I/d.

at 515. As Justice Roberts emphasized, the government’s

interest in the ownership of the property at issue was not

analagous to a private individual’s interest in the owner-

ship of his property. Rather, the property at issue was

“held in trust for the use of the public.” /d.

In Schneider v. State, 308 U.S. 147 (1939), the Court

expanded on the lessons of Hague and invalidated a series

of municipal ordinances which inter alia made it “unlaw-

ful for any person .. . to circulate or distribute any...

circular, hand-bills, cards, posters, dodgers or other

printed . . . matter ... in or upon any sidewalk, street,

alley, wharf, boat landing, dock, or other public place,

park, or ground.” Jd. at 155. In rejecting the argument

11

that such ordinances advance the municipal interest in

reducing litter and congestion, the Court stated, “We are

of opinion that the purpose to keep the streets clean and

of good appearance is insufficient to justify an ordinance

which prohibits a person rightfully on a public street

from handing literature to one willing to receive it.”

Id. at 162:

This court has characterized the freedom of speech

and that of the press as fundamental personal rights

and liberties. The phrase is not an empty one and

was not lightly used. It reflects the belief of the

framers of the Constitution that exercise of the

rights lies at the foundation of free government

by free men. ... Mere legislative preferences or

beliefs respecting matters of public convenience may

well support regulation directed at other personal

activities, but be insufficient to justify such as dimin-

ishes the exercise of rights so vital to the mainte-

nance of the democratic institutions. [308 U.S. at

161 (footnote omitted) .]

Jamison v. Texas, 318 U.S. 413, 416 (1943), once

again emphasized the importance of a citizen’s right to

spread ideas to the public in public places:

{O|ne who is rightfully on a street which the state

has left open to the public carries with him there as

elsewhere the constitutional right to express his

views in an orderly fashion. This right extends to

the communications of ideas by handbills and litera-

ture as well as by the spoken word.

And the Court reaffirmed this principle in Martin v. City

of Struthers, 319 U.S. 141, 146-147 (1943):

Freedom to distribute information to every citizen

wherever he desires to receive it is so clearly vital

to the preservation of a free society that, putting

aside reasonable police and health regulations of

time and manner of distribution, it must be fully

preserved. The dangers of distribution can so easily

be controlled by traditional legal means . . . that

stringent prohibition can serve no purpose but that

12

forbidden by the Constitution, the naked restriction

of the dissemination of ideas. |/d. at 146-147.]

3. The importance of Hague v. CIO and its progeny

to the health of our system of free expression and

self-government cannot be overstated. Put simply, most

citizens wishing to participate in the broad public debate

do not have access to the privately-owned mass media.

For these citizens, effective opportunities to reach their

fellow citizens in public places are of the essence.

The right to peacefully distribute handbills in public

places in order to disseminate one’s views to the public

is thus the paradigm of a citizen’s exercise of his rights

of free speech and free press. See, e.g., Lovell v. Griffen,

303 U.S. 444, 452 (1938) (“The liberty of the press is

not confined to newspapers and periodicals. It necessarily

embraces pamphlets and leaflets. These indeed have been

historic weapons in the defense of liberty, as the pamph-

lets of Thomas Paine and others in our own history |

abundantly attest.”); Martin v. City of Struthers, supra,

319 U.S. at 147 (“distribution of circulars is essential to

the poorly financed causes of little people”); see also Ex

Parte Jackson, 96 U.S. 727, 733 (1878) (“Liberty of cir-

culating is as essential to [freedom of the press] as

liberty of publishing; indeed, without the circulation, the

publication would be of little value.’’).

B. The constitutional doctrine that the government

must permit communicative activities among the public

on those public properties where citizens have traditionally

been permitted to assemble and engage in free discourse

has been repeatedly reaffirmed. See, e.g., Frisby v.

Schultz, 487 U.S. 474, 480-81 (1988); United States v.

Grace, 461 U.S. 171, 176-77 (1983); Carey v. Brown,

447 U.S. 455, 460 (1980); Hudgens v. NLRB, 424 U.S.

507, 515 (1976).

At the same time, however, new issues have arisen re-

garding the nature and extent of a citizen’s right of ac-

cess to various forms of public property other than those

13

that have been traditionally open to public assembly and

the free interchange of ideas. Recent cases have focused

on individuals seeking to use specialized, government-

established media of communication for distribution of

their messages, see, e.g., Cornelius v. NAACP Leg. Def.

Fund, 473 U.S. 788 (1985) (federal workplace charity

drive) ; Perry Education Assn. v. Perry Local Educators’

Assn., 460 U.S. 37 (1983) (internal office mail system) ;

and on individuals seeking access to highly specialized

public property which traditionally has not been open to

the general public for free gathering and discourse, see,

e.g., Greer v. Spock, 424 U.S. 828 (1976) (access to mili-

tary base); Adderly v. Florida, 385 U.S. 39 (1966)

(access to prisen grounds).

As the opinions explain, in these contexts the Court

“has adopted a forum analysis as a means of determining

when the Government’s interest in limiting the use of its

property to its intended purpose outweighs the interest

of those wishing to use the property for other purposes.

Accordingly, the extent to which the Government can

contro] access depends on the nature of the relevant

forum.” Cornelius, supra, 473 U.S. at 800. In order to

weigh those interests, the Court has “identified three

types of fora: the traditional public forum, the public

forum created by government designation, and the non-

public forum.” /d. at 802.

In the first category, the “traditional public forum”’—

which includes those public places, like streets and parks,

where members of the public have been traditionally free

to gather and communicate with each other as they see

fit—the government’s ability to prohibit expressive activ-

ity is sharply circumscribed. Cornelius, supra, 473 U.S.

at 802. Generally, in such places, the government may

only “enforce regulations of the time, place, and manner

of expression which are content-neutral, narrowly tailored

to serve a significant government interest, and leave open

14

ample alternative channels of communications.” Perry,

supra, 460 U.S. at 45.°

In the second category, the “designated public forum”

—which includes those government properties intention-

ally devoted to the purpose of public debate—the same

rules apply. Perry, supra, 460 U.S. at 45-46.

And, in the third category, the “nonpublic forum,” the

“State may reserve the forum for its intended purposes,

communicative or otherwise, as long as the regulation on

speech is reasonable.” Jd. at 46. Of course, even in this

category, “[t]he reasonableness of the Government’s re-

striction of access to a nonpublic forum must be assessed

in light of the purpose of the forum and all surrounding

circumstances.” Cornelius, supra, 473 U.S. at 809.

II. The Airport Terminal As A Public Forum

A. As we have already noted, see pp. 3-5, supra, “an

unusual consensus of judicial, legislative and adminis-

trative opinion would classify the public areas of [air-

port terminals] squarely within the public forum fam-

ily.” Southwest Africa, supra, 708 F.2d at 766. These

decisions are the result of repeated and detailed analyses

of the structure and functions of modern airport public

5 As the Court has emphasized, the requirement that “regulations

of the time, place, and manner of expression” must be “narrowly

tailored to serve a significant government interest” operates to pre-

vent governments from improperly banning expressive activities from

the particular public forum locations reasonably chosen by a speaker,

even when the government allows expression at alternative sites. See,

e.g., United States v. Grace, supra, 461 U.S. at 180-81 (rejecting ar-

gument that prohibition of leafletting on Supreme Court’s sidewalk

was a reasonable regulation of “place” because leafletting was still

permitted on other sidewalks in “the vicinity of the Supreme Court” ;

specific prohibition at issue must have “sufficient nexus with. . .

the public interests . . . urged as its justification”). See also

Schneider, supra, 308 U.S. at 163 (“one is not to have the exer-

cise of his liberty of expression in appropriate places abridged on the

plea that it may be exercised in some other place’).

15

areas as well as of the traditional and intended uses

to which these areas have been put.

In essence, the consensus reflects that the public areas

of airports are held for public use in the same way as are

streets and parks—viz., for generally unstructured and

unmonitored use, so that members of the public are

free to sit, walk, wander, meet, congregate, converse,

discuss, and debate, as they see fit—and that the com-

municative activities that members of the public may

choose to pursue in these areas do not impede the realiza-

tion of any valid overriding governmental interest.

First, public terminal areas are functionally and struc-

turally similar to public streets and plazas. These areas

typically contain “many of the facilities and services of

a fair-sized municipality,” (Southwest Africa, supra, 708

F.2d at 864), including facilities “where air travelers

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

sightsee” (Fernandes, supra, 633 F.2d at 627).

The terminals in the present case, for example, contain

large plazas for sitting, talking, and waiting, which are

lined by cocktail lounges, informational displays, art dis-

plays, banking facilities, and a boutique. The public

areas of an airport not only appear physically similar to

public streets, but like a street, invite the members of the

public to spend substantial free and unstructured time,

during which they may freely wander, shop, meet others,

congregate, converse, debate or pursue whatever other

lawful activities they may choose. See p. 3, supra; see

also Pet. App. 53-54.

Indeed, the presence of these myriad facilities reflect

a conscious effort by the airport authority to replicate,

for use by the public in the airport community, the very

essence of the diverse and busy public commercial street.*

®Compare United States v. Kokinda, supra, 58 L.W. at 5015

(plurality opinion) (“postal sidewalk was constructed solely to assist

16

Second, as is the case with public streets and parks,

the government makes no effort whatsoever to limit who

may enter the public airport terminals. These public

areas, like the streets and parks, are wholly and continu-

ally cpen to any member of the public who wishes to enter.

As with streets and parks, persons need not identify them-

selves, record their presence, or announce their purposes.

Cf. Fernandes, supra, 663 F.2d at 627 (“The analogy

between these terminals concourses and public streets is

further strengthened by the lack of restrictions on public

access to the commercial establishments located along

the . . . passageways. . . .”). Indeed, the general public

may enter not only for travel-related reasons, but to

use the shops and other facilities of the terminal or to

spend idle time in any lawful way. Thus, as with a

public street, members of the public have an open invita-

tion to pursue their chosen affairs in these areas.

Third, to the extent the purpose of the public spaces

of a modern transportation terminal can be character-

ized as a specialized one, it is the same “specialized”

purpose that characterizes public streets; viz., to facili-

tate movement and transportation. Certainly the move-

ment of people through terminal avenues toward the

entrances to airport gate areas is no different an ac-

tivity than the movement of people through public streets

toward subway stations, bus stops, or ferry landings. In

this regard, the Second Circuit’s earlier discussion of

New York’s bus terminal is equally relevant here:

[Passengers] are in the Terminal for the principal

purpose of moving to and from other means of .. .

transportation—and the space is designed for pre-

cisely the purpose of transit. With the scope of oper-

ations so vast, the enclosure is desirable and indeed

necessary if the congestion and confusion that would

postal patrons to negotiate the space between the parking lot and the

front door of the post office, not to facilitate the daily commerce and

life of the neighborhood” ).

17

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

avoided. In other times or better climes travelers

have waited by the roadside or under some shelter

for the oncoming vehicle. But here, the buses drive

into the building and the passengers meet them

there. The terminal, with its many adjuncts, be-

comes something of a small city—but built indoors,

with its “streets” in effect set atop one another, and

vehicles operating under, above, and to the side, not

unlike some futuristic design for urban living.

| Wolin, supra, 392 F.2d at 89.]

As Wolin so convincingly demonstrates, the terminal

plazas and avenues at issue here, though enclosed, serve

no function other than that which streets have tradi-

tionally served. Certainly the mere presence of a roof

cannot make a difference in First Amendment jurispru-

dence. Covered public streets and commercial districts

have existed in many cities for centuries, and exist today

in such cities as Minneapolis and Spokane where weather

conditions render such enclosures necessary. Meteorology,

transportation technology, and publie architecture have

not heretofore been thought to be the sciences that limit

the scope of the First Amendment.

Fourth, an airport terminal shares the characteristics

that make expressive activity appropriate to, and com-

patible with, the myriad other activities that take place

on an urban street. Unlike an office or a courthouse, for

example, a terminal’s normal uses are not those that re-

quire silence, privacy, or solitude: its inhabitants are

not normally engaged in solemn or reflective activities.

See Wolin, supra, 392 F.2d at 89; see also CAMP, supra,

508 F.2d at 925. Rather, like a street or a covered down-

town marketplace, a terminal is often “attended with

noisy crowds and vehicles, some unrest and less than per-

fect order.” Wolin, supra, 392 F.2d at 90. And, when

such active and stimulating tumult is the natural condi-

tion of a public area, there is no realistic need to sup-

18

press expressive activities such as handbilling in order to

assure the area’s smooth, uninterrupted operation.’

Put simply, the terminal spaces, like city streets, are

locations where neutral and reasonable time, place, and

manner restrictions on expressive activities can accommo-

date all substantial competing interests of the govern-

ment and of the public. There is simply no legitimate

need for the government to go further and enact a total

prohibition. Cf. FAA Rule, supra ( establishing detailed

time, place and manner restrictions on leafletting at Dul-

les and National Airports); FAA Notice of Rule, supra.’

Fifth, the public areas of air terminals are by their

nature an invaluable location for communicative activi-

ties. Like other transportation terminals, air terminals

connect a locality to the outside world, and to the outside

world’s peoples and ideas. Because of this unique attri-

bute of transportation terminal areas, prohibiting expres-

sive activities in such locations has a particularly dele-

terious effect on the ability of citizens to spread their

ideas to those from other regions and to learn from those

who wish to spread distant ideas to them.

7 We emphasize in this regard that the expressive activities here

present no issues of perceived government sponsorship of any partic-

ular message or of abdication of government control over its own

specialized means of communications. Compare Hazelwood School

Dist. v. Kuhlmeier, 484 U.S. 260 (1988) ; Cornelius, supra; Perry,

supra. As with expressive activities on the streets, all understand

that expressive activities in air terminals are wholly private activi-

ties engaged in by private citizens who are exercising their First

Amendment rights in a public gathering place.

8 As we have noted, for many years, it has now been the law—as

developed by the unanimous holdings of the courts of appeals—that

interior airport public places are public fora. This law has not

caused any significant problems in the nation’s air transit system

precisely because reasonable time, place, and manner restrictions,

like those that apply to urban streets, can—and indeed do—ade-

quately protect all significant interests, while allowing continued use

by the public of these places for communicative activities. See

pp. 3-5, supra.

19

This attribute of transportation terminals has been

recognized—and acted on—throughout our history. For

example, whistlestop political speeches at rail ter-

minals have been parts of countless political campaigns

and, indeed, have become a part of our political folk-

lore. More recently, “freedom riders” used the facil-

ities of bus terminals to spread the ideas of the civil

rights movement throughout the South. And, in contem-

porary America, we are all familiar with the phenomenon

of crowds of well-wishers, protesters, photographers and

journalists—and simply the curious—gathering at air-

ports to witness the arrival or departure of a politician

public figure, sports team, or wartime military unit,

with the event often accompanied by speeches and rallies,

and with free expressions of view

pe S among those who

The fact that a transportation terminal connects the

people and ideas of a locality with those of the outside

world influences communicative activities in the terminal

in a more commonplace way as well. A terminal is a

place in which people from varied and distant regions—

who may have quite different views and backgrounds—

may meet freely and communicate ideas. It is precisely

this attribute of a terminal—the unique opportunity to

reach an audience from a different region with a different

message—that has motivated handbillers, for a wide va-

riety of causes, to select the terminal as a location for

exercising their rights of free speech and press.°

a Finally, as the years of cases relating to airport hand-

illing and solicitation practices reflect, there is in fact

® Handbillers in transportation terminals may often be seekin

pte yt with a particular audience that may be far te

4 nage or otherwise difficult to reach outside of the terminal. In

olin, for example, the handbiller was seeking to communicate

anti-war message to soldiers who came from outside the New York

area, but who passed through th i j

F.2d at 90-91. . e terminal in great numbers. 392

20

a specific and significant tradition of using the public

areas of airports and other terminals as places for en-

gaging in public expressive activities. See pp. 3-5, supra.

It is highly relevant in its own right that—for a signifi-

cant portion of the history of large urban airports—many

members of the public have indeed used air terminals for

precisely the expressive purposes at issue here. See City

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

(1984) (referring to the public forum as government

property “clearly held in trust, either by tradition or

recent convention, for the use of citizens at large”) ’ (em-

phasis added). The decisions that we have reviewed

above concerning terminal facilities establish that there

is at least a “recent convention” of the use of such facili-

ties for the specific expressive purpose of handbilling.

Moreover, given that the social importance of commercial

air travel is itself a relatively recent phenomenon, the

extensive tradition of using air terminals as places for

this activity of public discourse should carry particular

weight.

. * * *

Taken together, the foregoing factors make clear that

the public interior areas of air terminals are places where

members of the public have traditionally had the full

freedom to conduct themselves in the same manner as

they are free to do in the public streets and parks. This

includes the freedom to meet together in an unstructured

and unmonitored manner as free citizens and, as such,

to. assemble, converse, discuss, and debate whatever

subjects they may choose. For these constitutionally

weighty reasons, “it seems clear that the public places

in these airports are far more akin to such public forums

as streets and common areas than they are to such non-

forums as prisons, buses, and military bases.” South-

west Africa, supra, 708 F.2d at 764.” It follows, we sub-

1© Compare Adderly v. Florida, 385 U.S. 39 (1967) (prison grounds

not public forum); Lehman v. City of Shaker Heights, 418 U.S.

21

mit that the airport terminals in the present case consti-

tute quintessential public fora and, thus, that the

Authority’s total ban on the fundamental free speech and

free press right to distribute written materials is un-

constitutional."

B. The Port Authority has based its argument that

air terminals are not traditional public fora on two

theories: first, that air terminals are distinct from pub-

lie fora because the “terminals’ purpose is not ‘public

assembly and debate’”’; rather “their sole purpose is the

facilitation of air travel,” Resp. Br. 15; second, that this

Court’s precedents limit the areas to be classified as tradi-

tional public fora to “streets and parks alone” so that no

other public areas can qualify. See ISCKON v. Lee,

supra, 721 F. Supp. at 577; Resp. Br. 15 & n.12. Neither

of these arguments can withstand reasoned analysis.

1. In considering the Authority’s first argument, it is

useful to return to the early public forum cases. Those

precedents make unmistakably clear that the public

forum concept, even at its inception, in no way turned

upon whether a particular location was created for the

specific purpose of facilitating free public debate. Rather,

the relevant inquiry is whether the place in question has

been held open for unstructured and unmonitored use,

which would include free communication among free

citizens.

This understanding of the relevant inquiry is evident

as early as Hague, which emphasized that the public

298 (1974) (inside of public bus is not public forum); Greer v.

Spock, supra (military base is not public forum).

'! Heffron v. ISKCON, 452 U.S. 640 (1981), is not to the contrary.

The question in Heffron was not whether the forum in question

(a state fairground) was a public forum, but whether the challenged

restriction—which confined leafletting and solicitation to assigned

booths—constituted a reasonable time, place, and manner regulation

in light of the particular nature of the state fair. See Heffron, 452

U.S. at 647-48. If the Authority here had only restricted literature

distribution to specified areas within the airport terminal, a very

different case would be presented.

22

areas at issue had been places that free citizens tradi-

tionally had used for gathering together in public and for

communicating among themselves according to their

wishes, not that these were places created by govern-

ments for the purpose of facilitating such gatherings or

communications. Indeed, Hague’s whole point is that

such communicative activities are and always have been

normal activities in the public lives of free citizens—

and for that reason are not subject to government pro-

hibition—not that such activities are to be conducted only

at locations to be created by the government for such

purposes. As Hague put it, the relevant public places

“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.” 307 U.S. at 515 (em-

phasis added).

This is as it must be. As all have recognized, the

principal purpose of streets (and airports) is transporta-

tion. And this point has been repeated in precisely those

cases which have emphasized the right of citizens to use

the streets for peaceful expressive activities. See, €.4-s

Schneider, supra, 308 U.S. at 160 (“Municipal authori-

ties, az trustees for the public, have the duty to keep

their community’s streets open and available for move-

ment of people and property, the primary purpose to

which streets are dedicated.”) ; Cox v. Lowisiana, 379 U.S.

536, 554 (1965) (“Governmental authorities have the

duty and responsibility to keep their streets open and

available for movement.” ).”

The governing rule is that the First Amendment none-

theless requires that the weighty free speech rights of

12 The public forum cases reaffirming the people’s right to use

parks for the dissemination of ideas have similarly recognized

that the primary purpose of parks is recreation, not expression.

See, e.g., Hague, supra, 307 U.S. at 505 (“there is no competent

evidence that the parks of Jersey City are dedicated to any general

public purpose other than the recreation of the public”).

23

the people be accommodated in the operation of the streets

and parks. See generally, Niemotko v. Maryland, 340

U.S. 268, 276 (1951) (Frankfurter, J., concurring) (the

issue in cases concerning the dissemination of ideas in

public places is “how to reconcile the interest in allowing

free expression of ideas in public places with the protec-

tion of the public peace and of the primary uses of streets

and parks”).

In short, neither streets nor parks are maintained for

the principal purpose of providing a place for expression.

But this Court has nevertheless repeatedly held that such

public areas—as places where free citizens have been free

to gather and communicate—are public fora."

There is yet anothér reason why the early public

forum cases demonstarate that a location’s status as a

“traditional public forum” cannot depend on whether it

is the government’s purpose that the location be a place

for expressive activity. In every one of those cases, and

in their progeny, the government clearly and unequiv-

ocally denied having any such purpose. It is precisely

'* Of course, the primary purposes of streets, parks, and other

public locations are relevant to the ultimate validity of any time,

place, or manner restriction on speech. Even in the most traditional

public *srum, expressive activity may be limited through neutral,

reasonable, and narrowly tailored time, place, and manner reguiation:

The privilege of a citizen of the United States to use the

streets and parks for communication of views on national ques-

tions may be regulated in the interest of all: it is not absolute,

but relative, and must be exercised in subordination to the gen-

eral comfort and convenience, and in consonance with peace and

good order; but it must not, in the guise of regulation, be

abridged or denied. [Hague, 307 U.S. at 515-16. |

The point is that the non-expressive purposes of the public location

do not foreclose or determine the public forum inquiry; rather, these

purposes are taken into account in the consideration of what regula-

tions of time, place, and manner will be considered reasonable. See

also Schenider, supra, 308 U.S. at 160-61; Grayned v. City of Rock:-

ford, 408 U.S. 102, 115-17 (1972) ; Heffron, supra, 452 U.S. at 647-48

& n.10.

24

because governments have repeatedly refused to dedicate

public places to public expression—and instead have as-

serted the right to ban such expression—that this Court

has been faced with repeated litigation concerning pro-

hibitions on speech in public places. See, ¢.9., United

States v. Grace, supra (ordinance prohibiting hand-

billing on public sidewalk in front of Supreme Court

building) ; Grayned v. City of Rockford, 408 U.S. 102

(1972) (ordinance forbidding expressive activities on

public sidewalk adjacent to public school grounds) ;

Carroll v. President and Commissioners of Princess Anne,

393 U.S. 175 (1968) (prohibition of rally near court-

house steps); Cox v. Louisiana, supra (prosecution for

demonstration on public sidewalk in vicinity of court-

house); Martin v. City of Struthers, supra (ordinance

prohibiting door-to-door leafletting) ; Jamison v. Texas,

supra, 318 U.S. at 415 (ordinance based upon city’s view

“that it has the absolute power to prohibit the use of the

streets for the communication of ideas”) ; Schneider, supra

(various ordinances prohibiting leafletting in streets,

parks, and other public places) ; Hague, supra (same) ."*

2. The Authority’s contention that the “traditional

public forum” classification is limited to “streets and

parks alone” is wholly without merit for a number of

reasons.

First, the prior discussions of “traditional public fora”

by this Court simply do not support such a conclusion.

For example, Schneider invalidated a statute which pro-

hibited handbilling on any “street” or “park” as well as

on any “wharf, boat landing, dock or other public place

14 In essence, the Authority’s insistence that the “traditional public

forum” classification apply only to those places purposefully dedicated

by the government as places of free expression is, in essence, an

insistence that the “traditional public forum” concept and the “‘dedi-

cated public forum” concept be treated as a single concept. But this

Court has recognized that these are different concepts. See, e.g.,

Cornelius, supra, 473 U.S. at 802-803; Perry, supra, 460 U.S. at 45-

46 & n.7.

25

- + . or ground.” 308 U.S. at 155 (emphasis added).

Hague discussed “streets and public places.” 307 U.S. at

515 (emphasis added). And, later cases have discussed

“streets and parks” as examples of traditional public

fora, rather than as an exclusive list. See, e.g., Frisby

v. Schultz, supra, 487 U.S. at 480 (street or park is

“archetype of a traditional public forum”) ; United States

v. Grace, supra, 461 U.S. at 177 (public fora include

““public places’... such as streets, sidewalks, and

parks”) ; Cornelius, supra, 473 U.S. at 803 ( college cam-

pus has “many of the characteristics of a traditional pub-

lie forum”) ; Lehman v. City of Shaker Heights, supra,

418 U.S. at 303 (examples of public fora would include

“open spaces, .. . meeting hall, park, street corner, or

other public thoroughfare”) ; Carey v. Brown, supra, 447

U.S. at 460 (“streets, sidewalks, parks, and other similar

public places”) ; Hudgens v. NLRB, supra, 424 U.S. at

515 (same); Marsh v. Alabama, 326 U.S. 501, 504

(1946) (“streets, sidewalks, and public places”).

Second, the logic of the public forum cases do not sup-

port the Authority’s position. As we have explained, these

cases do not rest on any notion that streets and parks were

created by governments as places to be uniquely devotea

to public debate. Rather, Hague and its progeny rest on

the notion that free citizens, whenever they are free to

gather in public places of unstructured and unmonitored

use, are free as well to conduct the public business of

debating public issues. Streets and parks are paradigm

examples of such public places, not the exclusive examples.

The Authority’s assertion that this Court should treat

“streets and parks” as the extent of traditional public

fora, is nothing less than a call for separating the prior

public forum cases from their intellectual foundations

and denying those cases all their generative potential. To

do this would be to renounce an important aspect of our

First Amendment heritage.

26

Third, to limit the public forum category to traditional

streets and parks—as the Authority urges—is likely to

have a long-term debilitating effect on the nature of public

discourse in our society. Justice Kennedy has warned

that “[a]s society becomes more insular in character,

it becomes essential to protect public places where tradi-

tional modes of speech and forms of expression can take

place.” Kokinda, supra, 58 L.W. at 5018. That warning

goes to the heart of this case.

The role played by traditional streets and parks has

declined over recent history. As American life has adapted

to the automobile, the suburb, and a host of other tech-

nological and architectural developments, the normal rou-

tines of life have changed. Today, for many of us—

perhaps most of us—the casual daily interactions of

social life have been removed from the traditional pub-

lic street and relocated to less traditional, though closely

analogous, public locations. If the public forum doctrine

is stultified, by treating the doctrine as a_ historical

accident rather than a statement of basic First Amend-

ment principles, then the places for public discourse will

grow steadily fewer, and the vitality of our democratic

debate will grow steadily weaker.

Given the tragedy that this would represent, the newer

locations of public assembly and interchange must be

treated as public fora “even though the Government may

intend to impose some limitations on the forum’s use.”

Kokinda, supra, 58 U.W. at 5018 (Kennedy, J.). “If our

public forum jurisprudence is to retain vitality, we must

recognize that certain objective characteristics of Gov-

ernment property and its customary use by the public

may control the ease.” Id.

As we have shown, this is a case controlled by the

objective considerations that stand behind the public

forum doctrine. See pp. 15-21, supra. As the property

is devoted to free and unstructured use of the gathering

public, the government must respect the free speech and

27

free press rights of that public to engage in the public

business of free discourse and debate.

CONCLUSION

For the above stated reasons, the judgment of the court

of appeals should be affirmed to the extent that it holds

unconstitutional the Authority’s rule prohibiting litera-

ture distributions.

Respectfully submitted,

MARSHA S. BERZON

177 Post Street

San Francisco, CA 94108

WALTER KAMIAT

LAURENCE GOLD

(Counsel of Record)

815 16th Street, N.W.

Washington, 9.C. 20006

(202) 637-5390