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

Supreme >." us. |

PILE"

FFB 15 1992

Nos. 91-155, 91-339 OFFICE Ur ine CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

WALTER LEE, Superintendent of Port Authority Police,

Cross-Petitioner,

V.

INTERNATIONAL SOCIETY FOR KRISHNA

CONSCIOUSNESS, INc., and BRIAN RUMBAUGH,

Cross-Respondents.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Second Circuit

BRIEF AMICUS CURIAE OF

FREE CONGRESS FOUNDATION

IN SUPPORT OF CROSS-RESPONDENTS

WENDELL R. BIRD*

DAVID J. MYERS

Bird & Associates

1150 Monarch Plaza

3414 Peachtree Road, N.E.

Atlanta, Georgia 30326

(404) 264-9400

*Counsel of Record

Attorneys for Amicus

Curiae

&

3

TABLE OF CONTENTS

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF AMICUS IN THIS CASE

SUMMARY OF ARGUMENT

INTRODUCTION

ARGUMENT

I. THE SEARCH FOR TRUTH IN THE

"MARKETPLACE OF IDEAS" IS A

PRIMARY JUSTIFICATION FOR THE

FREEDOM OF SPEECH.

A. The Philosophers Who Influenced the Framing

and Interpretation of the First Amendment

Emphasized the Great Value of Permitting Free

Expression of Competing Ideas.

1. Milton and Locke

2. The Framers of the First Amendment

3. John Stuart Mill

. This Court Has Relied on the Marketplace of

Ideas Rationale More than Any Other.

|. The Earliest Judicial Descriptions of the

Marketplace: Holmes and Brandeis

2. Subsequent Applications by the Court

THE MARKETPLACE OF IDEAS JUSTIFI-

CATION IS A NATURAL COROLLARY

TO THIS COUNTRY’S FREE MARKET

ECONOMIC SYSTEM.

A. Free Markets in Economics Produce the

Best Results.

SND WD

14

II.

-ij-

B. The First Amendment’s Marketplace of

Ideas is Directly Analogous to Free

Markets in Economics.

THE MARKETPLACE OF IDEAS

CONCEPTION OF THE FREEDOM

OF SPEECH REQUIRES ALLOWING

LITERATURE DISTRIBUTION AND

CHARITABLE SOLICITATION IN A

MUNICIPAL AIRPORT FORUM.

A. Government Is Not Competent To Control the

Marketplace of Ideas, Just as It Is Not

Competent To Control Economic Markets.

1. With Ideas, as With Economics, Citizens

Know Better than Government what

Information They Need To Receive

and To Disseminate.

. Government Distorts the Marketplace of

Ideas When It Closes Forums, and Particul-

arly Low-Cost Avenues of Expression, Such

as the Airport Here.

a. Airports and Other Public Fora Are

the Most Accessible to the Non-

Powerful, and Must Be Kept Available

as Public Fora.

b. The Government Cannot Divert

Speakers to Alternative Fora

Because the Alternatives Are Not

as Effective And Do Not Reach the

Same Audience.

th

c. Distortion Results from Closing Acces-

sible Public Fora Such as Airports.

B. Both Literature Distribution and Solicitation

Are Protected Speech.

1. Distribution Is Protected.

15

19

19

-lil-

2. Solicitation Is Also Protected.

a. Solicitation Is Speech.

b. Freedom To Solicit Is Necessary to the

Freedom To Disseminate.

c. Solicitation May Be More Time Consu-

mingfor the Audience, but It Is Also a

MoreEffective Mode of Communication. 2

d. Solicitation in the Airport Is Analogous

to Door-to-Door Solicitation, which the

Court Has Recognized Is Entitled to

Special Solicitude Because It Is

Inexpensive.

CONCLUSION

-iV-

TABLE OF AUTHORITIES

CASES: . Page

Abrams v. United States, 250 U.S. 616 (1919) Q

Barenblatt v. United States, 360 U.S. 109 (1959) 12

Board of Airport Commissioners of the City of Los

Angeles v. Jews for Jesus, Inc., 482 U.S. 569

(1987) 26

Buckley v. Valeo, 424 U.S. 1 (1976) 13, 23

California v. LaRue, 409 U.S. 109 (1972) 3,7

Cantwell v. Connecticut, 310 U.S. 296 (1940) 27

Chicago Area Military Project v. City of Chicago,

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

992 (1975) 21

Columbia Broadcasting System v. Democratic National

Committee, 412 U.S. 94 (1973) 12

Cornelius v. NAACP Legal Defense and Educational

Fund, Inc., 473 U.S. 788 (1985) 27, 28

Dennis v. United States, 341 U.S. 494 (1951) 13

FCC v. Pacifica Foundation, 438 U.S. 726 (1978) 3

Fernandes v. Limmer, 663 F.2d 619 (Sth Cir. 1981) 21

Food Employees v. Logan Valley Plaza, 391 U.S.

308 (1968) 24

Grayned v. City of Rockford, 408 U.S. 104 (1972) 24

Hague v. CIO, 307 U.S. 496 (1939) 22

Heffron v. International Society for Krishna

Consiousness, 452 U.S. 640 (1981) 24, 26, 27

Hudgens v. NLRB, 424 U.S. 507 (1976) 21

Hustler Magazine v. Falwell, 485 U.S. 46 (1988) 12, 13

Jamison v. 73 St. Louis, 828 F.2d 1280

(8th Cir. 1987), cert. denied, 485 U.S. 987

(1988) 21

Jamison v. Texas, 318 U.S. 413 (1943) 26

Jews for Jesus, Inc. v. Board of Airport

Commissioners, 785 F.2d 791 (9th Cir. 1986),

aff'd on other grounds, 482 U.S. 569 (1987) 21

Kovacs v. Cooper, 336 U.S. 77 (1949) 29

Lamont v. Postmaster General, 381 U.S. 301 (1965) — 12

Largent v. Texas, 318 U.S. 418 (1943) 26

Lloyd Corp. v. Tanner, 407 U.S. 551 (1972) 21

FOE ET om om

—_——~

-V-

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

Mantin v. City of Struthers, 319 U.S. 141

(1943) 13, 23,

Members of the City Council v. Taxpayers for

Vincent, 466 U.S. 789 (1984)

Murdock v. Pennsylvania, 319 U.S. 105 (1943)

New York Times v. Sullivan, 376 U.S. 254 (1964)

Paris Adult Theatre I v. Slaton, 413 U.S. 49

(1973) :

Poe v. Ullman, 367 U.S. 497 (1961)

PruneYard Shopping Center v. Robins, 447 U.S.

74 (1980)

Red 969) Broadcasting Co. v. FCC, 395 U.S. 367

(196

Riley v. National Federation of the Blind of North

Carolina, Inc., 487 U.S. 781, 101 L. Ed. 2d 669

(1988)

Shapero v. Bar Association, 486 U.S. 466 (1988)

Schaumburg v. Citizens for a Better Environment,

444 U.S. 620 (1980)

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

Schneider v. State, 308 U.S. 141 (1939)

United States Southwest A frica/Namibia Trade &

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

(D.C. Cir. 1983)

United States v. Kokinda, 110 S. Ct.

3115 (1990)

West Virginia State Board of Education v. Barnette,

319 U.S. 624 (1943)

Young v. American Mini Theatres, Inc., 427 U.S.

50 (1976)

U.S. CONSTITUTION:

25,

p aN

we

U.S. Const. amend. I 3, passim

OTHER AUTHORITIES:

Baker, Scope of the First Amendment Freedom of

Speech, 25 UCLA L. Rev. 964 (1978)

Canavan, J.S. Mill on Freedom of Expression,

Modern Age, Fall 1979, at 362

Q.

1]

9

-Vi-

Chaffee, Free Speech in the United States (1967) 11

Coase, Advertising and Free Speech, 6 J. Legal

Studies 1 9, 11, 16, 17, 20

Coase, The Market for Goods and the Market for

Ideas, 64 Am. Econ. Rev. Papers & Pro-

ceedings 384 (1974) 16, 17, 20

Cole, Agon at Agora: Creative Misreadings in

the First Amendment Tradition, 95 Yale L.J.

857 (1986) 5,9, 12, 20

Director, The ey 8 the Economic Market-

Place, 7 J.L. & Econ. 1 (1964) 14, 15, 16, 17

T. Emerson, Toward A General Theory of the First

Amendment (1967) 7, 11

Evans & Body, /ntroduction to Freedom and

Stability in the World Economy (D. Evans &

R. Body eds. 1976) 14

Francione, Experimentation and the Marketplace

Theory of the First Amendment, 136 U. Pa.

L. Rev. 417 (1987) 1]

Friedman, Free Markets and Free Speech, 10

Harv. J.L. & Pub. Pol’y 1 (1987) 15, 16

Friedman, The Economics of Free Speech, in

The Essence of Friedman 9 (K. Leube ed.

1987) 25, 28

M. Friedman & R. Friedman, Free To Choose (1980) 14

Furubotn, Worker Alienation and the Structure of

the Firm, in Governmental Controls and the

Free Market 195 (S. Pejovich ed. 1976) 15

K. George & J. Shorey, The Allocation of

Resources (1978) 15

G. Gunther, Constitutional Law (11th ed. 1985) 11

Greenawalt, Free Speech Justifications, 89 Colum.

L. Rev. 119 (1989) 11

12 Hening’s Laws of Virginia 84 (1786) 6

O. Holmes, Collected Legal Papers (1920) 18

Holmes-Laski Letters 1916-1935

(M. Howe ed. 1953) 18

Holmes-Pollock Letters 1874-1932

(M. Howe ed. 1941) 18

Ingber, The Marketplace of Ideas: A Legitimizing

Myth, 1984 Duke L.J. 5, 7, 8, 9, 14, 15, 20

eee

-Vii-

Justice O.W. Holmes (H. Shriver ed. 1936) 18

Kalven, The Concept of the Public Forum:

Cox v. Louisiana, 1965 Sup. Ct. Rev. 1 22

F. Knight, The Economic Organization (1951) 15

I. Kristol, Two Cheers for Capitalism (1978) 16

Locke, An Essay Concerning Human Understanding,

in The Tradition of Freedom (M. Mayer ed. 1957) 7

Locke, A Letter Concerning Toleration, in

The Second Treatise of Government (An Essay

Concerning the True Origin, Extent and End of

Civil Government) and A Letter Concerning

Toleration (J. Gough ed. 1966) 6

A. Marshall, Principles of Economics (8th ed. 1950) —14

Mill, On Liberty of Thought and Discussion, in

Utilitarianism, Liberty, and Representative

Government i, 8

Miller & Howell, The Myth of Neutrality in

Constitutional Adjudication, 27 U. Chi. L.

Rev. 661 (1960) 9

Milton, Aeropagitica, A Speech for the Liberty

of Unlicensed Printing (C. Eliot ed. 1937) 6

M. Novak, Free Persons and the Common Good

(1989) 7, 17, 18, 23

J. Nowak, R. Rotunda & J. Young, Constitutional

Law (2d ed. 1983) 1]

Posner, Free Speech in an Economic Perspective,

20 Suffolk U.L. Rev. (1986) 26

Note, Speech Activists in Shopping Centers: Must

Property Rights Give Way to Free Expression?,

64 Wash. L. Rev. 133 (1989) 21

Quadres, Content-Neutral Public Forum Regulations:

The Rise of the Aesthetic State Interest, the Fall

of Judicial Scrutiny, 37 Hastings L.J. 439 (1986) a

D. Ricardo, Principles of Political Economy and

Taxation, in The Works of David Ricardo |

(J. McCulloch new ed. 1888) 14

P. Samuelson, Economics (11th ed. 1980) 15

H. Schlossberg, /dols for Destruction (1983) 16

Simon, The Crucial Issue Is Freedom, in

Dilemmas Facing the Nation | (H. Prochnow

ed. 1979) 15

-Viil-

H. simons, Economic Policy for a Free Society (1948)

A. Smith, An Inquiry into the Nature and Causes

of the Wealth of Nations (R. Campbell, A.

Skinner, W. Todd ed. 1979 teapties ed. 1981)

A. Smith, An Inquiry Into the Nature and Causes of

the Wealth of Nations (7th ed. London 1793)

(1st ed. London 1776)

Stone, Content Regulation and the First Amendment, -

25 Wm. & Mary L. Rev. 189 (1983)

L. Tribe, American Constitutional Law (1978)

Wright, A Rationale from J.S. Mill for the Free

Speech Clause, 1985 Sup. Ct. Rev. 158

15

14

11

——

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1991

Nos. 91-155, 91-339

International Society for Krishna

Consciousness, Inc., and Brian Rumbaugh,

Petitioners,

Vv.

Walter Lee, Respondent

On Writ Of Certiorari To The

United States Court Of Appeals For The Second Circuit

BRIEF AMICUS CURIAE OF

FREE CONGRESS FOUNDATION, INC.

IN SUPPORT OF PETITIONERS

INTEREST OF AMICUS IN THIS CASE!

Amicus curiae, the Free Congress Research & Education

Foundation, is a non-partisan, non-profit public policy

research institute formed in 1977. It is dedicated to

advancing traditional values through, among other activities,

lCounsel of record to the parties in this case have

consented to the filing of this brief. Letters of consent

have been filed with the Clerk of the Court pursuant to Rule

37.

&

(i) education and research on issues of legal and social poli-

cy, State policy (including the initiative and referendum pro-

cess), fiscal responsibility, and institutional reform, and

(ii) training in conservative governance and coalition leader-

ship, both in the United States and throughout «astern Europe

and the new independent states.

Amicus strongly supports free speech, religious liberty,

and free enterprise. Amicus strongly opposes restrictions on

speech upon public property such as major airports, and be-

lieves that the free exchange of ideas is crucial to effec-

tive democratic government and to the betterment of individu-

als, families, and society.’

2 amicus participates in the case to oppose the Port

Authority's restrictions on speech upon public property and

to promote the free exchange of ideas. Amicus and its

counsel are not affiliated with ISKCON in any way, do not

endorse ISKCON’s religious beliefs in any way, and in fact

find ISKCON’s religious beliefs distasteful. | However, the

freedom of speech of all citizens and of ISKCON stand and

fall together. As this Court has said,

We can have intellectual individualism and the rich

cultural diversities that we owe to exceptional minds only

at the price of occasional eccentricity and abnormal

attitudes. When they are so harmless to others or to the

State as those we deal with here, the price is not too

great. But freedom to differ is not limited to things

that do not matter much. That would be a mere shadow of

freedom. The test of substance is the right to differ as

to things that touch the heart of the existing order.

West Virginia State Board of Education v. Barnette, 319 US.

624, 641-42 (1943).

x*%

SUMMARY OF ARGUMENT

The Second Circuit incorrectly held that the municipal air-

ports in this case are not public fora and that the Port Au-

thority may ban charitable solicitation in the public areas

of those airports. (The Second Circuit correctly held that

the Port Authority could not ban literature distribution.)

The Port Authority’s ban of literature distribution and chari-

table solicitation contravenes a foundational principle of

the first amendment: "that the ultimate good desired is bet-

ter reached by free trade in ideas [and] that the best test

of truth is the power of the thought to get itself accepted

in the competition of the market." Justice Holmes’s

well-known and oft-cited formulation is based on the politi-

cal and economic philosophy of Milton, Locke, the framers,

and J.S. Mill, and wonderfully captures the essence of free

speech.

This "marketplace of ideas" should be governed by the same

limited-government principles that work best in the market

for goods and services. Just as free economic markets per-

form better than regulated economies, the marketplace of

ideas is most likely to produce truth (or at least the best

solution to any given problem) with less government interfer-

ence and more citizen input. Government simply is not compe-

tent to control either ideas or economic markets.

Just as government intrusion distorts economic markets,

the Port Authority has distorted the marketplace of ideas in

this case by attempting to close part of that market.

Unfortunately, the Port Authority has chosen to close a mar-

-4-

ket/forum that is most accessible to the non-powerful, leav-

ing them at a severe government-imposed disadvantage in the

marketplace. ISKCON’s alternative fora, if any, are less

available (because more expensive) and are less effective.

Finally, both aspects of ISKCON’s aciivities in the New

York airports are protected under the first amendment. Liter-

ature distribution and charitable solicitation often occur

together (often out of economic necessity). The many previ-

ous cases decided by this Court reflect that reality and make

no distinction between the two activities, but protect them

together. The same should be true here.

INTRODUCTION

The economic marketplace works best when it is not distort-

ed by government control and regulation. The same is true

of the "marketplace of ideas," and that is a central mes-

sage of the first amendment’s free speech clause.?

This nation has applied economic free market principles

more consistently than any other, with the result that our

nation’s standard of living and ability and willingness to

3The marketplace of ideas rationale does not extend to

obscenity and erotic materials, which are more characterized

by nonideational action than speech. See Young v.

American Mini Theatres, Inc. 427 U.S. 50, 61, 70-71 (1976)

(plurality opinion) (pornographic expression “is of a wholly

different, and lesser, magnitude than the interest in

untrammeled political debate"). Accord, FCC v. Pacifica

Foundation, 438 U.S. 726, 743 (1978); California v. LaRue,

409 U.S. 109, 118 (1972)

Lp

help others have been unrivalled for decades. In light of

the interconnection of economic liberty and liberty of expres-

sion, it is not surprising that this nation also has applied

free speech principles more consistently than any other, with

the result that our nation’s enduring political stability is

unrivalled.

The recent collapse of the communist economies simulta-

neous with the collapse of the communist governments exempli-

fies the intertwining of economic freedom and freedom of

speech. Unprecedented measures of both economic freedom and

freedom of speech have come to the former Soviet Union.

While it may not be possible to say which freedom came first,

it is clear that they came together (and assisted each oth-

er’s emergence).

In light of this history in our nation and, recently and

dramatically, in our world, the Port Authority’s effort to

exclude ISKCON from the public fora under its control is an

anomaly. (It may very well be that the Soviet republics now

allow more freedom for literature distribution and charitable

solicitation in airports than does the Port Authority.) More

to the point for this Court, the Port Authority’s policy is

an unconstitutional interference with the "marketplace of

ideas" protected by the first amendment.

ARGUMENT

I. THE SEARCH FOR TRUTH IN THE "MARKETPLACE

OF IDEAS" IS A PRIMARY JUSTIFICATION FOR

THE FREEDOM OF SPEECH.

-6-

A. The Philosophers Who Influenced the Framing and Inter-

of the First Amendment Empha the Great

alue of Permitting Free Expression of Competing Ideas.

1. Milton and Locke

"Any examination of the First Amendment . . . requires a

preliminary overview of the British tradition." Cole, Agon

at Agora: Creative Misreadings in the First Amendment Tradi-

tion, 9S Yale L.J. 857, 876 & n.71 (1986). That tradition

includes John Milton’s argument in 1643 that the search for

truth is best accomplished by competition between ideas rath-

er than by government fiat.

And though all the winds of doctrine were let loose to

play upon the earth, so truth be in the field, we do

injuriously by licensing and prohibiting to misdoubt

her strength. Let her and falsehood grapple; who ever

knew truth put to the worse, in a free and open

encounter.

Aeropagitica, A Speech for the Liberty of Unlicensed Print-

ing 227 (C. Eliot ed. 1937).

Following Milton, John Locke further developed what has

become known as "classic marketplace theory." Ingber, The

Marketplace of Ideas: A Legitimizing Myth, 1984 Duke L.J.

1,6 & n.21. Locke argued that truth is discovered through

competition with falsehood and that any authoritatively im-

posed truth is plagued with the danger of error. J. Locke,

A Letter Concerning Toleration, in The Second Treatise

of Government (An Essay Concerning the True Origin, Extent

and End of Civil Govemment) and A Letter Concerning Tolera-

tion 125, 139-43 (J. Gough ed. 1966). For Locke, "truth

still stood apart, above, to be striven for." Cole, 95 Yale

x |

L.J. at 877. In Locke’s words, “let truth have fair play in

the world . . . [and] men the liberty to search after it."

An Essay Concerning Human Understanding, in The Tradi-

tion of Freedom 285 (M. Mayer ed. 1957).

2. The Framers of the First Amendment

The framers of the first amendment, like John Locke and

armed with his philosophy, were convinced of the danger of

error in governmentally decreed truth. That conviction led

directly to the first amendment’s protection of expression.

From this pervasive state of ignorance, ov liberal

forefathers } ar tome three imperatives: (1) No coercion

of conscience of one by the other (out of respect for

the responsibility of each); (2) liberty of speech

for everyone so that all may inquire, argue, and

persuade; and (3) the development of institutions that

nourish practical cooperation in practical activities,

without requiring prior agreement about final ends or

personal motivations.

M. Novak, Free Persons and the Common Good 93 (1989)

(emphasis added).

The framers were also convinced that Milton was correct

about the outcome of the competition between truth and

falsehood: “truth is great and will prevail if left to her-

self." Act for Establishing Religious Freedom, 12 Hening’s

Laws of Virginia 84 (1786) (drafted by Thomas Jefferson and

proposed by James Madison).

3. John Stuart Mill

J.S. Mill wrote after the framing of the constitution but

before this Court considered any cases under the first amend-

ment. His essay, On Liberty, expanded on Milton’s and

Locke’s concept of the competition of ideas and has been ech-

-8-

oed in this Court’s decisions since the turn of the century.

See T. Emerson, Toward a General Theory of the First

Amendment 3 n.1 (1967) (Mill’s On Liberty is one of the

"major sources in the development of the theory" of free

speech).

Mill argued that government control of speech interferes

with the ability to seek truth,’ and he justified free

speech in part because of the aggregate benefits to society,

not merely to the individual speaker.

[T]he peculiar evil of silencing the expression of an

opinion is, that it is robbing the human race; posteri-

ty as well as the existing Pa those who dis-

sent from the opinion, stil

more than those who hold it.

J. Mill, On Liberty of Thought and Discussion, in

Utilitarianism, Liberty, and Representative Government,

at 24° Courts that invoke the marketplace model of

4 See Ingber, 1989 Duke L_J. at 6:

[Flirst, if the censored opinion contains truth, its

silencing will lessen the chance of our disovering that

truth; secondly, if the conflicting opinions each contain

part of the truth, the clash between them is the only

method of discovering the contribution of each toward the

whole of the truth; finally, even if the censored view is

wholly false and the upheld opinion wholly true,

challenging the accepted opinion must be allowed if people

are to hold that accepted view as something other than

dogma and prejudice; if they do not, its meaning will be

lost or enfeebled.

SThough Mill is often portrayed as anarchically

libertarian, that may not be the case.

[H]owever libertarian the formal application of Mill’s

-9.

the first amendment also justify free speech because of its

aggregate benefits, and thereby echo Mill. Ingber, 1984 Duke

L.J. at 4.

B. This Court Has Relied on the Marketplace of Ideas

Rationale More than Any Other.

1. The Earliest Judicial Descriptions of the

Marketplace: Justice Holmes

In 1919, Justice Holmes crystallized the political theory

of Milton, Locke, the framers, and Mill in one phrase: "free

trade in ideas."

n men have realized that time has upset many fight-

ing faiths, they may come to believe even more than

they believe the very foundations of their own conduct

that the ultimate good desired is better reached by

-—<--e@ aero

principles, his was a highly moralistic libertarianism.

. . The arguments he . . . present[s] are too steeped

in a moralistic rationalism to allow the conclusions of

our contemporary liberals to be drawn from them with

any firmness.

Canavan, J.S. Mill on Freedom of Expression, Modern Age,

Fall 1979, at 362, 368, 369.

Mill’s defense of the regime of free speech . . . was

informed not by an_ undifferentiated libertarianism but

by a vision of the progressive enlightened development

of a society. . . . Mill’s thinking is not adequately

reflected by focusing . . . on a mere absence of

restraint. The end is social progress through

individual character development.

Wright, A Rationale from J.S. Mill for the Free Speech

Clause, 1985 Sup. Ct. Rev. 158.

In any event, the Court correctly has rejected extreme

extensions of Mill’s argument for liberty in general, such as

an extension to obscenity. E.g, Paris Adult Theatre I!

v. Slaton, 413 US. 49, 68 n.14 (1973) (obscenity not

protected); California v. LaRue, 409 US. 109, 118 (1972)

(nonobscene dance on periphery of Constitution).

-10-

free trade in ideas--that the best test of truth is the

power of the thought to get itself accepted in the com-

petition of the market, and that truth is the only

ground upon which their wishes safely can be carried

out. That at any rate is the theory of our Constitu-

tion.

Abrams v. United States, 250 U.S. 616, 630 (1919)

(Holmes, J., dissenting).° Holmes’ rationale of "free

trade in ideas" has been described as the classic case for

free speech.’ Eg, Miller & Howell, The Myth of

Neutrality in Constitutional Adjudication, 27 U. Chi. L.

Rev. 661, 675 (1960).

2. Subsequent Applications by the Court

The search for truth in the marketplace of ideas has been

OSee Coase, 6 J. Legal Studies at 1 ("A statement

such as this displays an extreme faith in the efficiency of

competitive markets and a profound distrust of government

regulation.").

TSome commentators have pointed out that not everyone

agrees that objective truth exists, and have therefore

questioned whether the metaphor of a search for truth in the

marketplace of ideas retains vitality. Se¢d Baker,

Scope of the First Amendment Freedom of Speech, 25 UCLA

L. Rev. 964, 965, 974 (1978). Whether or not the end product

of the marketplace of ideas is objective truth, however, the

process nevertheless yiclds the best results in an imperfect

world. See Cole, 95 Yale LJ. at 891 ("[Even i]f we can

know the truth only by popular approximation, . . . our

concern in protecting speech should not be with truth itself

but with the process and results of popular deliberation,

i.c., democracy.") Accord Ingber, 1984 Duke LJ. at 15 &

n.69.

-11-

Francione, Experimentation and the Marketplace Theory of

the First Amendment, 136 U. Pa. L. Rev. 417, 422 & n.13

(1987) ("The marketplace model of the first amendment .. .

is the generally accepted judicial choice among first amend-

ment theories."); Baker, Scope of the First Amendment Free-

dom of Speech, 25 UCLA L. Rev. 964, 973 ( 1978) ("[T]he mar-

ket theory dominates"). See also Chaffee, Free Speech

in the United States 33 (1967); T. Emerson, Toward a Gen-

eral Theory of the First Amendment 3 (1966) ("Maintenance

of a system of free expression is necessary ... aS a means

of attaining the truth"); G. Gunther, Constitutional Law

977 (11th ed. 1985) (Holmes’s marketplace rationale for free

speech is "among the best known articulations" of first amend-

ment values); J. Nowak, R. Rotunda & J. Young,

Constitutional Law 863-64 (2d ed. 1983) (the development

of marketplace theory from John Milton, through J.S. Mill, to

Holmes is the “initial justification for a system of free

speech"); L. Tribe, American Constitutional Law §

12-1 (1978) (the marketplace theory is the "most familiar the-

ory of free speech"); Greenawalt, Free Speech Justifica-

tions, 89 Colum. L. Rev. 119, 130 (1989) ("The most famil-

iar argument for freedom of speech is that speech promotes

the discovery of truth."); Stone, Content Regulation and

the First Amendment, 25 Wm. & Mary L. Rev. 189, 193 (1983)

8 See also Coase, Advertising and Free Speech, 6

J. Legal Studies 1, 27 (1977) ("The rationale of the First

Amendment is that only if an idea is subject to competition

-12-

The Court has on occasion cited Mill directly regarding

the competition of ideas. E.g., Columbia Broadcasting Sys-

_ tem v. Democratic National Committee, 412 U.S. 94, 189 n.25

(1973) (Brennan & Marshall, JJ., dissenting); Red Lion

Broadcasting Co. v. FCC, 395 U.S. 367, 392 n.18 (1969);

New York Times v. Sullivan, 376 U.S. 254, 272 n.13, 279

n.19 (1964); Poe v. Ullman, 367 U.S. 497, 514-15 (1961)

(Douglas, J. dissenting); Barenblatt v. United States,

360 US. 109, 151 n.22 (1959) (Black & Douglas, JJ., and War-

ren, C.J., dissenting).

The Court has relied on the marketplace of ideas rationale

in many cases,’ including the following: Texas v.

Johnson, 491 U.S. 397, 417 (1989) ("The First Amendment

does not guarantee that other concepts virtually sacred to

our Nation as a whole . . . will go unquestioned in the

in the marketplace can it be discovered ioe acceptance

or rejection) whether it is false or not.").

2s of early 1986, the Court had made 33 references to

the “marketplace of ideas” since the first use of that phrase

by Justice Brennan in Lamont v. Postmaster General, 381 U/S.

301, 308 (1965) (concurring opinion), and had made 14

references to Holmes’s phrase “free trade in ideas” since

1925. Cole, 95 Yale LJ. at 894 n.160. Since 1986, the

Court has referred to the “marketplace of ideas" an

additional three times and to the “free trade in ideas"

twice. See Texas v. Johnson, 491 US. 397, 417 (1989)

("marketplace of ideas"); Shapero v. Bar Association, 486

U.S. 466, 481 (1988) (“marketplace of ideas” and “free trade

in ideas"); Hustler Magazine v. Falwell, 485 U.S. 46, 50, 52

(1988) ("marketplace of ideas” and “free trade in ideas").

-*

marketplace of ideas."); Shapero v. Bar Association, 486

U.S. 466, 481 (1988) (quoting Holmes and referring to “the

constitutional fence around this metaphorical marketplace of

ideas"); Hustler Magazine v. Falwell, 485 U.S. 46, 50, 52

(1988) ("False statements of fact are particularly

valueless: they interfere with the truth-seeking function of

the marketplace of ideas."); Buckley v. Valeo, 424 US.

1, 14 (1976) (“unfettered interchange of ideas") (quoting

Roth v. United States, 354 U.S. 476, 484 (1957)); Red

Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969)

("the purpose of the First Amendment [is] to preserve an unin-

hibited marketplace of ideas in which truth will ultimately

prevail, rather than to countenance monopolization of that

market, whether it be by the Government itself or a private

licensee"); Martin v. City of Struthers, 319 U.S. 141,

143 (1943) (The authors of the First Amendment knew that nov-

el and unconventional ideas might disturb the complacent, but

they chose to encourage a freedom which they believed essen-

tial if vigorous enlightenment was ever to triumph over sloth-

ful ignorance."),'°

10 See also Dennis v. United States, 341 US. 494,

584 (1951) (Douglas, J., dissenting) ("When ideas compete in

the market for acceptance, full and free discussion exposes

the false and they gain few adherents. Full and free

discussion even of ideas we hate encourages the testing of

our own prejudices and preconceptions. Full and free

discussion keeps a society from becoming stagnant and

unprepared for the stresses and strains that work to tear all

civilizations apart.")

-14-

Il. THE MARKETPLACE OF IDEAS JUSTIFICATION

IS A NATURAL COROLLARY TO THIS COUNTRY’S

FREE MARKET ECONOMIC SYSTEM.

A. Free Markets in Economics Produce the Best Results.

The collapse of communist and socialist economies else-

where in the world fas’provided additional evidence for the

conclusion that most economists had already reached: though

not perfect, competition in a free market optimizes produc-

tion, allocation, and overall utility. As Ingber notes,

"Economists have praised the laissez-faire economic model as

facilitating optimal production and allocation of

goods.""" 1984 Duke LJ. at 5 n.14 (citing M. Friedman

& R. Friedman, Free To Choose 1-13 (1980); A. Marshall,

Principles of Economics 63-70 (8th ed. 1950); A. Smith,

An Inquiry Into the Nature and Causes of the Wealth of Na-

tions (7th ed. London 1793) (ist ed. London 1776); D. Ricar-

do, Principles of Political Economy and Taxation, in

The Works of David Ricardo 1 (J. McCulloch new ed. 1888);

Evans & Body, /ntroduction to Freedom and Stability in

Director provides a working definition of

“laissez-faire” that applies equally to the market for goods

and the market for ideas: “Laissez-faire has never been more

than a slogan in defense of the proposition that every

extension of state activity should be examined under a

presumption of error." Director, The Parity of the

Economic Market Place, 7 J. L. & Econ. 1, 2 (1964)

(emphasis added).

-15-

rubotn, Worker Alienation and the Structure of the Firm,

in Governmental Controls and the Free Market 195, 216-17

(S. Pejovich ed. 1976); Simon, The Crucial Issue Is Free-

dom, in Dilemmas Facing the Nation 1 (H. Prochnow ed.

1979). See also Director, 7 J.L. & Econ. at 8 ("The

short period of [free market] liberalism has been accompanied

by as much material progress as took place in all prior

times."); Friedman, Free Markets and Free Speech, 10

Harv. J.L. & Pub. Pol’y 1, 7 (1987) ("A free society . . . is

a more productive society than any other; it releases the en-

ergies of people, enables resources to be used more effective-

ly, and enables people to have a better life."); Ingber, 1984

Duke LJ. at 16 & n.72 ("A free economic market, arguably,

values goods and services and allocates resources in a manner

that maximizes utility.") (citing K. George & J. Shorey,

The Allocation of Resources 31 (1978); F. Knight, The

Economic Organization 32-35 (1951); P. Samuelson,

Economics 38-42 (11th ed. 1980); H. Simons, Economic

Policy for a Free Society 46-47 (1948)).

B. The First Amendment’s Marketplace of Ideas is Directly

Analogous to Free Markets in Economics.

The marketplace of ideas metaphor has had such power and

significance (from Milton, through Locke, through Mill,

through Holmes, and to the present) because economic freedom

and freedom of speech are in fact interconnected.

There is a direct connection between free markets on

the one hand and free speech on the other. That is

part of the story of free markets making free men. In-

terferences with markets constitute and produce inter-

ferences with free speech.

-16-

Friedman, 10 Harv. J.L. & Pub. Pol’y, at 3. Thus, there are

no examples "of a society that repressed the economic liber-

ties of the individual while being solicitous of his other

liberties." I. Kristol, Two Cheers for Capitalism xi

(1978), quoted in H. Schlossberg, /dols for Destruction

120 (1983). See generally Coase, Advertising and Free

Speech, 6 J. Legal Studies 1, 1-5 (1977); Coase, The Mar-

ket for Goods and the Market for Ideas, 64 Am. Econ. Rev.

Papers & Proceedings 384 (1974); Director,7 J. L. &

Econ. at 3-6.

R.H. Coase explains why the two markets are analogous:

I do not believe that [a] distinction between the

market for goods and the market for ideas is valid.

There is no fundamental difference between these two

markets and, in deciding on public policy with regard

to them, we need to take into account the same consider-

ations. In all markets, producers have some reasons

for being honest and some for being dishonest; consum-

ers have some information but are not fully informed or

even able to digest the information they Loe regula-

tors commonly wish to do a good job, and though often

incompetent and subject to the influence of special in-

terests, they act like this because, like all of us,

they are human beings whose strongest motives are not

the highest.

.. . My argument is that we should use the same

approach for all markets when deciding on public

policy.

l2Coase’s articles argue that the same level of

skepticism of government competence to regulate markets

applies both to the marketplace of ideas and to the economic

market. 6 J. Legal Studies at 4; 64 Am. Econ. Rev. Papers &

Proceedings at 386, 389.

tt.

64 Am. Econ. Rev. Papers & Proceedings at 389. See also

id. at 390 (advocating "a more consistent view"); Coase, 6

J. Legal Studies at 14 ("It seems to me that the arguments

which Emerson uses to support freedom in the market for ideas

are equally applicable in the market for goods.").

Director agrees: "[T]here is a remarkable similarity be-

tween the underlying basis for complete laissez faire in the

market for ideas and the market for economic goods and servic-

es." 7 J. L. & Econ. at 3. See also id. at 6 (any

‘dichotomy" between the two markets "is a mistaken one").

In fact, the concept of a free marketplace for ideas pre-

ceded its economic counterpart.

The free market as a desirable method of organizing the

intellectual life of the community was urged long be-

fore it was advocated as a desirable method of organiz-

ing its economic life. The advantage of free exchange

of ideas was recognized before that of the voluntary

exchange of goods and services in competitive markets.

Director, 7 J.L. & Econ. at 3. Novak emphasizes this in ex-

plaining the origins of the metaphor:

But before this problem arose in economics, it arose

with regard to liberty of conscience. To deal with lib-

erty of conscience, the first liberals were driven to a

metaphor rooted in village experience: "a marketplace

of ideas." Anyone could enter a marketplace; anyone

could "sell" or "buy"; anyone could stroll through only

to look and listen. In short, a market was a place in

which practically everyone entered, a place without co-

ercion, normally a place peaceful, bustling, and law-

like. As the first liberals did not fully trust human

intellect (because of their basic maxim of ignorance),

so also did they trust it. That is, intellect is never

complete, instantaneous, and full; on the other hand,

in most persons it is active, reasonably fair, and

-18-

questing. The ignorance of human beings is such that

no man should be entrusted with power over the unalien-

able responsibilities of others. But it is also such

that most persons, most of the time (not always), are

honest enough inquirers to acquit their own responsibil-

ities. The first principle makes a marketplace of

ideas necessary. The second principle makes it work

able.

M. Novak, Free Persons and the Common Good at 94-5,

Justice Holmes himself shows the concatenation of free en-

terprise and free speech. While he is often assumed to have

been an economic liberal because of his regular affirmance of

social welfare legislation, he personally subscribed to free

enterprise beliefs. He deprecated "the tendency common to

the time to believe in regulating everything--against which I

am as prejudiced as you. ... Many of our friends seem to

w13

believe they can regulate bliss. lie “never read a

socialist yet from Karl Marx down, and I have read a number,

that I didn’t think talked drool.""

lil. THE MARKETPLACE OF IDEAS CONCEPTION

OF THE FREEDOM OF SPEECH REQUIRES

ALLOWING LITERATURE DISTRIBUTION AND

13 Holmes-Laski Letters 1916-1935 at 49 (M Howe ed.

1953). Holmes believed in the right of “winning in the

competition of the market." O. Holmes, Collected Legal

Papers 281 (1920). Accord, id. at 280, 293-94:

Justice O.W. Holmes 197 (H.Shriver ed. 1936);

Holmes-Laski Letters 1916-1935, supra at 945, 87.

I+ Holmes-Laski Letters 1916-1935, supra at 96.

Accord, id. at 84, 845, 942; 1 Holmes-Pollock Letters

1874-1932 at 175-76, 124 (M.Howe ed. 1941).

-19-

CHARITABLE SOLICITATION IN A MUNICIPAL

AIRPORT FORUM.

A. Government Is Not Competent To Control the Market place

of Ideas, Just as It Is Not Competent To Control Econom-

ic Markets.

1. With Ideas, as With Economics, Citizens Know Better

than Government what Information They Need To Re-

ceive and To Disseminate.

As Justice Scalia recognized recently in Riley v. Nation-

al Federation of the Blind of North Carolina, Inc., 487

U.S. 781, 101 L. Ed. 2d 669, 694 (1988) (concurring opinion),

“our traditional understanding, embodied in the First Amend-

ment, [is] that where the dissemination of ideas is con-

cerned, it is safer to assume that the people are smart

enough to get the information they need than to assume that

the Government is wise or impartial enough to make the judg-

ment for them."

Skepticism about government competence in economics dates

at least to 1776 and Adam Smith.

What is the species of domestic industry which his cap-

ital can employ, and of which the produce is likely to

be of the greatest value, every individual, it is evi-

dent, can, in his local situation, judge much better

than any statesman or lawgiver can do for him. The

statesman, who should attempt to direct private people

in what manner they ought to employ their capitals,

would not only load himself with a most unnecessary at-

tention, but assume an authority which could be safely

trusted, not only to no single person, but to no coun-

cil or senate whatever, and which would nowhere be so

dangerous as in the hands of a man who had folly and

presumption enough to fancy himself fit to exercise it.

A. Smith, An Inquiry into the Nature and Causes of the

-20-

Wealth of Nations 456 (R. Campbell, A. Skinner, W. Todd ed.

1979) (reprint ed. 1981).

Government control of ideas presents the same competence

problems as government control of markets.

Free speech issues can be viewed in terms of allocation

of institutional competence. In strictly pragmatic

terms, the history of official determination of truth

has been noted especially for its errors.

Ingber, 1984 Duke LJ. at 7 n.26."

Thus, the marketplace of ideas metaphor is particularly

apt.

aon

The market metaphor introduced by Holmes’ "free trade

in ideas" concept invokes a laissez-faire conception of

the role of government in the regulation of speech.

Grounded . .. on the "imperfect knowledge" of partici-

ants and overseers alike ... [h]is "free trade in

ideas" concept captures these British theories in a pe-

culiarly American metaphor, suggesting the ideal of the

small business economy--free, self-interested participa-

tion by individuals and a laissez-faire role for

government."

Cole, 95 Yale LJ. at 886.

2. Government Distorts the Marketplace of Ideas When It

Closes Forums, and Particularly Low-Cost Avenues of

Expression, Such as the Airport Here.

a. Airports and Other Public Fora Are the Most Ac-

Coase is blunt about government incompetence in

the = marketplace of ideas:

The government, if it attempted to regulate, would be

inefficient and its motives would, in general, be bad,

so that even if it were successful in achieving what it

wanted to accomplish, the results would be undesirable.

Coase, 64 Am. Econ. Rev. Papers & Proceedings at 384. See

also Coase, 6 J. Legal Studies at 1.

-2|-

cessible to the Non-Powerful, and Must Be Kept

Available as Public Fora."°

In both location and function, large municipal airports

are the modern equivalent of ancient city gates. Every prior

court of appeals to consider the question concluded that mu-

nicipal airports are equivalent to streets, parks, and other

traditional public fora."’

lOThis access argument is_ specifically limited to

public property. It has no application to private

property, such as shopping centers or malls. The Court quite

correctly does not recognize a first amendment right of

expression on the premiscs of privately owned shopping

centers. Hudgens v. NLRB, 424 U.S. 507, 519-21 (1976); Lloyd

Corp. v. Tanner, 407 U.S. 551 (1972). The Court recognizes a

first amendment right “to engage in speech activilics on™

private property contrary to the wishes of the owner

only if such property consists of a company town or other

entity which performs ‘the full spectrum of municipal powers

and [stands] in the shoes of the State.” M. Nimmer,

Nimmer of Freedom of Speech § 4.09|D] at 4-114

(1984) (quoting Lloyd Corp., 407 U.S. at 569). The Court has

authorized states under their own constitutions to offer more

expansive rights. PruneYard Shopping Center v. Robins, 447

U.S. 74, 81 (1980). However, it has been suggested that the

Court’s subsequent takings clause cases have made it doubtful

that state constitutional rights such as those found in

PruneYard can continue to be upheld. Note Speech Activists

in| Shopping Centers: Must Property Rights Give Way to Free

Expression ?, 64 Wash. L. Rev. 133 (1989).

"See Jamison v. City of St. Louis, 828 F.2d 1280

(8th Cir. 1987), cert. denied, 485 US. 987 (1988); Jews

for Jesus, Inc. v. Board of Airport Commissioners, 785 F.2d

791 (9h Cir. 1986), affd on other grounds, 482 US. 569

(1987); United States Southwest Africa/Namibia Trade &

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

1983); Fernandes v. Limmer, 663 F.2d 619 (Sth Cir. 1981);

Chicago Arca Military Project v. City of Chicago, S08 F.2d

921 (7th Cir.), cert. denied, 421 U.S. 992 (1975).

ye”

-——

In part because they are public fora, municipal airports

are accessible to speakers who may not have effective access

to any other platform. In this modern world, only "two meth-

ods exist for communicating nonsanctioned views to the

public: the mass communication media for those with access,

and the public forum for those without such media access."

Ingber, 1984 Duke LJ. at 37. Thus, the same streets, parks,

and other similar places that "have immemorially been held in

trust for the use of the public," Hague v. ClO, 307 U.S.

496, 515 (1939), often are the only fora of any type accessi-

ble to many citizens,

These alternative forums for public communication

[streets, parks, and open places] enable dissenting or

low status individuals and groups to disseminate their

views even when they cannot gain access to mass media.

Ingber, 1984 Duke LJ. at 41. See also id. at 5

(recognizing the existence of "access limitations suffered by

disfavored or impoverished groups’).

Professor Kalven recognized the unique value of public

places as public fora when this Court had just begun its pub-

lic forum analysis:

[I]n an open democratic society the streets, the parks,

and other public places are an important facility for pub-

lic discussion and political process. They are in brief a

public forum that the citizen can commandeer; the generosi-

tv and empathy with which such facilities are made avail-

able is an index of freedom.

Kalven, The Concept of the Public Fonum: Cox v. Louist-

ana, 1965 Sup. Ct. Rev. 1, 12.

Justice Kennedy reiterated the same concern in the Court's

most recent public forum decision:

As society becomes more insular in character, it be-

«2? Ge

~s

comes essential to protect public places where tradi-

— modes of speech and forms of expression can take

place.

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

(concurring opinion).

This Court’s cases repeatedly have stressed the economic

need for access to public fora. E.g, Martin, 319 US.

at 146 ("Door to door distribution of circulars is essential

to the poorly financed causes of little people."); Murdock

v. Pennsylvania, 319 U.S. 105, 112 (1943) ("Spreading reli-

gious beliefs in this ancient and honorable manner would thus

be denied the needy [by a license tax on colporteurs]. Those

who can deprive religious groups of their colporteurs can

take from them a part of the vital power of the press which

has survived from the Reformation.").!5

b. The Government Cannot Divert Speakers to Alter-

native Fora Because the Alternatives Are Not as

Se. Effective And Do Not Reach the Same Audience.

Ips;

This is not to say that government has any affirmative

obligation to remove access limitations that it has not

erected, but only that government should not impose

additional access limitations on the only forums to which

disfavored or impoverished groups still have access. The

government violates free speech (and other) rights when it

attempts to act as a ‘leveler” of society, attempting to

impose cquality of results rather than merely ensuring

equality of opportunity. Buckley, 424 U.S. at 17

(portions of FECA unconstitutional; provisions “aimed in part

at equalizing the relative ability of all voters to affect

electoral outcomes" necessarily involved “suppressing

communication’). See also Novak, Free Persons and the

Common Good at 97 (“Liberals [referring to carly or

classical liberals] were not often levellers.’).

-24-

That alternative tora may be available to a given speaker

cannot justify excluding that speaker altogether from the fo-

rum in question.

{T]he streets are natural and proper places for the dis-

semination of information and opinion; and one is not

to have the exercise of his liberty of expression in

uppropriate places abridged on the plea that it may be

exercised in some other place.

Schneider v. State, 308 U.S. 141, 163 (1939).

Access to the "streets, sidewalks, parks, and other sim-

ilar public places . . . for the purpose of exercising

[First Amendment rights] cannot constitutionally be de-

nied broadly ...." Free expression "must not, in the

guise of regulation, be abridged or denied."

Grayned v. City of Rockford, 408 U.S. 104, 117 (1972)

(quoting Food Employees v. Logan Valley Plaza, 391 U.S.

308, 315 (1968), and Hague v. CIO, 307 U.S. 496, 516

(1939)). For example, in Heffron v. International Society

for Krishna Consiousness, 452 U.S. 640 (1981), charitable

solicitation and literature distribution could legitimately

be confined to a fixed location within the fairgrounds, but

could not be excluded from the fairgrounds altogether.

Id. at 655.

Nor does the Court simply accept without examination the

government's assertion that alternative fora are available.

Alternative fora may be available theoretically, but not real-

istically.

[T]he Court expressly should evaluate the feasibility

of the proposed alternatives. The Court should require

that a given speaker have available realistic alterna-

tives to disseminate effectively his particular mes-

Sage.

-25-

_—~

... The fact that the media may only be used at

great expense, and in contrast to traditional forums,

has recognized power to exercise prior restraint on

what it will disseminate, would seem to mandate great-

er, rather than lesser, protection of the traditionally

low cost open forums, if for no other reason than to

preserve a situs for voices otherwise lost in the wil-

derness.

Quadres, Content-Neutral Public Forum Regulations: The

Rise of the Aesthetic State Interest, the Fall of Judicial

Scrutiny, 37 Hastings L.J. 439, 481, 486 (1986) (original

emphasis). Furthermore, access to more than one forum may be

more of a necessity than a luxury.

We seldom recognize the enormous importance of

diversified sources of financial and economic sup-

port in making it possible for a "nut" to have his say.

... [T]oday’s nut may be tomorrow’s prophet. The es-

sence of free speech is to preserve the opportunity for

nuts to turn into prophets.

Friedman, The Economics of Free Speech, in The Essence

of Friedman 9, 10 (K. Leube ed. 1987) (emphasis added).

¢. Distortion Results from Closing Accessible Pub-

lic Fora Such as Airports.

The marketplace of ideas, like the economic marketplace,

operates best when the government does not suppress informa-

tion or, worse, close portions of the marketplace altogether.

The suppression of relevant information in the politi-

cal market [and in the marketplace of ideas in

general], as in the market for (ordinary) goods and ser-

vices, may distort choice and in that way reduce wel-

fare....

... There will be less experimentation if the fi-

nancial rewards are systematically reduced because of

suppression. .. . New ideas may never get a hearing.

.. . [T]he loss of information from a refusal to

_~s

provide public ee is slight unless the govern-

ment goes so far as to forbid the use of its streets,

sidewalks, and parks [and airports].

Posner, Free Speech in an Economic Perspective, 20 Sut-

folk U.L. Rev. 1, 11, 24, 52 (1986) (emphasis added).

In this case, the Port Authority’s threatened closure of a

unique and critical portion of the marketplace of ideas will

necessarily distort the overall marketplace.

B. Both Literature Distribution and Solicitation Are Pro-

tected Speech.

1. Distribution Is Protected.

As this Court has previously held, "the oral and written

dissemination of the Krishnas’ religious views and doctrines

is protected by the First Amendment." Heffron, 452 U.S.

at 647 (citing Schneider v. State, 308 U.S. 147, 160.

162-164 (1939), and Lovell v. City of Griffin, 303 U.S

444, 452 (1938)). See also Martin, 319 US. 141:

Largent v. Texas, 318 U.S. 418 (1943); Jamison v. Tex-

as, 318 U.S. 413 (1943). Accord Board of Airport Commis-

stoners of the City of Los Angeles v. Jews for Jesus, Inc.,

482 U.S. 569 (1987).

2. Solicitation Is Also Protected.

a. Solicitation Is Speech.

‘Solicitation is a recognized form of speech protected by

the First Amendment." Kokinda, 110 S. Ct. at 3119

(citing Schaumburg v. Citizens for a Better Environment,

444 US. 620, 629 (1980), and Riley, 487 US. at

788-89). See also Riley, 487 U.S. at 693 (Scalia, J.,

concurring) ("We have held the solicitation of money by chari-

ties to be fully protected as the dissemination of ideas."),

-?7-

In Heffron, 452 U.S. at 647, the Court emphasized that

the first amendment protects solicitation as well as litera-

ture distribution:

Nor does [the state] claim that this protection is lost

because the written materials sought to be distributed

are sold rather than given away or because contribu-

tions or gifts are solicited in the course of propagat-

ing the faith. Our cases indicate as much. Murdock

v. Pennsylvania, 319 U.S. 105, 111 (1943);

Schaumburg v. Citizens for a Better Environment.

444 U.S. 620, 632 (1980). See Cantwell v. Connecti-

cut, 310 U.S. 296 (1940).

The Court has more than once expounded the followi ng rea-

sons that solicitation is protected speech:

[S]oliciting funds involves interests protected by the

First Amendment's guarantee of freedom of speech. So-

liciting financial support is undoubtedly subject to

reasonable regulation but the latter must be undertaken

with due regard for the reality that solicitation is

characteristically intertwined with informative and per-

haps persuasive speech seeking support for particular

causes or for particular views . . . and for the reali-

ty that without solicitation the flow of such informa-

tion and advocacy would likely cease."

ape "(CJharitable appeals for funds, on the street

or door to door, involve a variety of speech inter-

ests--communication of information, the dissemination

and propagation of views and ideas, and the advocacy of

causes--that are within the protection of the First

Amendment."

Comelius v. NAACP Legal Defense and Educational Fund,

Inc., 473 U.S. 788, 797-98 (1985) (quoting Schaumburg,

444 U.S. at 632).

b. Freedom To Solicit Is Necessary to the Freedom

To Disseminate.

Charitable solicitation is both an economic and a constitu-

tional necessity.

-28-

We seldom ize the enormous importance of diversi-

fied sources of financial and economic support in mak-

ing it possible for a "nut" to have his say. .

Today S$ nut may be tomorrow’s prophet. The essence

of free speech is to preserve the opportunity for nuts

to turn into prophets.

Friedman, The Economics of Free Speech, at 10.

That explains the Court’s recognition in Cornelius that

literature distribution is not possible without solicitation,

and that solicitation must therefore be protected.

"{W]ithout solicitation the flow of such information and advo-

cacy would likely cease." Cornelius, 473 U.S. at 798

(quoting Schaumburg, 444 U.S. at 632). “[WJithout the

funds obtained from solicitation in various fora, the organi-

zation’s continuing ability to communicate its ideas and

goals may be jeopardized." Cornelius, 473 U.S. at

799,"

¢. Solicitation May Be More Time Consuming for the

Audience, but It Is Also a More Effective Mode

of Communication.

As the Court recognized in Cornelius, “In a

face-to-face encounter there is a greater opportunity for the

exchange of ideas and the propagation of views than is avail-

able in [written solicitation]." 473 U.S. at 798. In-person

advocacy, including solicitation, should therefore be no less

protected than silent literature distribution.

The audience’s experience in a face-to-face encounter

is more imposing than when it passively reads about or

19cf. Lovell, 303 U.S. at 452 ("Liberty of

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

liberty of publishing; indeed, without the circulation, the

publication would be of little value.”).

9.

listens to a viewpoint. The interchange is more flexi-

ble, more of the senses are engaged, and the audience's

response, whether negative or positive, is likely to be

more pronounced.

Ingber, 1984 Duke L.J. at 41.

d. Solicitation in the Airport Is Analogous to

Door-to-Door Solicitation, which the Court Has

Recognized Is Entitled to Special Solicitude

Because It Is Inexpensive.

Door-to-door solicitation is often used by individuals and

groups whose messages have not attracted large amounts ot

funding, because door-to-door solicitation is inexpensive.

For those individuals and groups, without door-to-door solici-

tation "the flow of [much] information and advocacy would

likely cease.” Village of Schaumburg v. Citizens for a Bet-

ter Environment, 444 U.S. 620, 632 (1980). See also Mem-

bers of the City Council v. Taxpayers for Vincent, 466 U.S.

789, 812-13 n.30 (1984) ("the Court has shown special solici-

tude for forms of expression that are much less expensive

than feasible alternatives and hence may be important to a

“The Court went on to note that “this solicitude has

practical boundaries,” quoting Kovacs v. Cooper, 336 U.S. 77,

88-89 (1949) ("That more people may be more casily and

cheaply reached by sound trucks . . ., is not enough to call

forth constitutional protection for what those charged with

public welfare reasonably think is a nuisance when casy means

of publicity are open.”).

Here, ISKCON does not seck to use sound trucks or anything

remotely similar, and no easy means of publicity are open in

the airport forum under the Port Authority’s rules.

-30-

CONCLUSION

The market for goods and the marketplace of ideas shou!d

both be free of government interference. That interference

distorts and defeats the optimum results the markets would

otherwise achieve if they were controlled only by the produc-

ers and consumers, who best know their own needs and inter-

ests. The Port Authority's attempt to close a portion of the

marketplace of ideas in this case violates the tirst amend-

ment’s embodiment of free market principles.

For the toregoing reasons, amicus respectfully urges this

Court to affirm in part and to reverse in part the judgment

of the U.S. Court of Appeals for the Second Circuit in this

case.

Date: February 14, 1992.

Respectfully submitted,

WENDELL R. BIRD*

DAVID J. MYERS

Bird & Associates

1180 Monarch Plaza

3414 Peachtree Road, N.E.

Atlanta, Georgia 30326

(404) 264-9400

*Counse! of Record

Attorneys for Amicus

Cunae