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

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TABLE OF CONTENTS

PAGE

Ne aac eek 66 eye ccccecccces i

OEY PEEP MUUEMEEEE EE oo occ ccc c cc ccc cceces HW

INTEREST OF THE AMICUS CURIAE .............. l

eeaumenen Ge BEM CASE .. 2... ccc cece cee 2

SUMMARY OF ARGUMENT ..................... 4

eee wis esssbecesesececcees 6

I. Airports are not Public Fora, because Their Purpose is

to Facilitate the Movement of Air Passengers and

Cargo, and They Have Not Traditionally Been Open to

the Public For Expressive Activity ............... 6

I]. The Port Authority's Prohibition of In-Person

Solicitation at Port Authority Airports Should be

Upheld as a Reasonabie Regulation of a Non-Public

ee Sek acu bees eccecesececes 15

III The Port Authority Regulation of Repetitive

Distribution of Literature is a Reasonable, Viewpoint-

ee ean bans sec es ceseess 18

ee ashe ce kccesscccseces 22

s

TABLE OF AUTHORITIES

PAGE

Adderley v. Florida, 385 U.S. 39 (1966) ............cccceceeeeee 11

Board of Airport Commissioners of the City of

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

Fee SET D niicriniisabiibtidbiacadccanncseetacidunnpmninausagdesensabsaninianin 19

Chicago Area Military Project v. City of

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

Ee a He Ce iceentsenieniachiainiicndedieticianinniaginins 14, 16, 18

Cornelius v. NAACP Legal Defense & Education

Fund, Inc., 473 U.S. 788 (1985) ........c cece 8, 13, 15, 21

Cox v. Louisiana, 379 U.S. 536 (1965) .............ccccceceeeee 4,8

Fernandes v. Limmer, 663 F.2d 619 (Sth Cir. 1981)...3, 19

Greer v. Spock, 424 U.S. 828 (1976)........... 6, 10, 11, 13, 14

Heffron v. Int'l. Soc. for Krishna

Consciousness, 452 U.S. 640 (1981)..........cccccceccece essen eee eee 10

International Societiy for Krisha Consciousness, Inc.

Vv. Kae, SES FE FEO Ge Ge, FEED cctvcencscnsncsnscrsncszssveses 3,5

Kuszynski v. City of Oakland, 322 F.Supp. 689

(N.D. Cal. 1971), rev’d and remanded, 479

a Rik fT | Lt en 14, 16, 19

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

Ce vcccisnssnscnenscneminavinnetemosuninidniemiensnenithins 9, 16, 20, 21

Longo v. United States Postal Service,

___ F.2d ___, 1992 W.L. 3512

Una Rs RS I a ian

M’Ara v. Magistrates of Edinburgh, Sess. Cas.

eee” SUITED serssiasscineesiacsaiapesadianidaiceaiadabasivetuniindiadabateiiainsenadiunainitionnes 15

Perry Educ. Ass'n v. Perry Local Educators’

ROSH, TE BB. FF CIRO « -cncnrernssceewnnsessceneninns 4, 6, 7, 8, 21

Southeastern Promotions Ltd. v. Conrad,

A TEE seshuldensetnenniistscdcactéseintnvnemmnnenainets 14

Transport Limo. v. Port Authority of New York,

FUN Wee, DH) GE. We MII éiennccciesinseninserscsnnssstonnes 17

United States v. Grace, 461 U.S. 171 (1983) wo... 13

United States v. Kokinda, 110 S.Ct. 3115

SE OPETE A ciciciniseenslpiicainlaitinainvcidtisdladealeiesenaenaiinecaliaintbihdintnes ares 2-3, passim

United States Postal Service v. Council of

Greenburgh Civic Ass'n, 453 U.S. 114 (1981) «0.0.0... 6

U.S. Southwest Africa/Namibia Trade & Cultural

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

Sei: SUES SUNIIIEdnensciicinncalateiansinsdichdildniaitibdadshaminntinentieenanstonneieeed 14

Village of Schaumburg v. Citizens for a Better

Environment, 444 U.S. 620 (1980 .o....cceccececccececeesesteeeeees 6

Widmar v. Vincent, 454 U.S. 263 (1981) oo... eee 7,14

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 and Cross-Respondents,

v.

WALTER LEE, Superintendent of Port Authority Police,

Respondent and Cross-Petitioner.

ON WRITS OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF OF THE NATIONAL INSTITUTE OF

MUNICIPAL LAW OFFICERS AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT/CROSS-

PETITIONER WALTER LEE

INTEREST OF THE AMICUS CURIAE

The National Institute of Municipal Law Officers

(NIMLO) is a non-profit, non-partisan organization,

consisting of over 1,400 local governments and their city

2

attorneys. NIMLO is dedicated to gathering and

disseminating information on the most recent legal

developments affecting municipalities.!| NIMLO has a vital

interest in the outcome of this case because many NIMLO

members operate airports and other facilities devoted

solely to transportation, such as mass transit systems.

As public-sector attorneys, NIMLO members

recognize the importance of First Amendment expression

and carefully weigh a municipality's attempt to restrict

expressive activity. At the same time, as operators of

special-purpose facilities similar to those at issue in this

case, NIMLO members take the position that the Port

Authority's restriction of repetitive solicitation and

ieafletting at its airports is reasonable and viewpoint-

neutral.

Petitioners in this case seek to persuade this Court

that airports are public fora by making an analogy to

sidewalks and streets. Petitioners’ argument ignores the

specialized purpose of airports — to facilitate the movement

of air passengers and air cargo — which distinguishes them

from traditional public fora. This brief examines the case

law applying the public forum doctrine and demonstrates

why airports are particularly ill-suited to be places for

expressive activity and why they should be considered non-

public fora.

STATEMENT OF THE CASE

This brief argues that the Second Circuit was correct in

finding that airports are not public fora in accordance with

the plurality opinion in United States v. Kokinda, 110 S.Ct.

I Letters of consent by the parties to the filing of this bnef

amicus curiae have been served on the Court pursuant to Rule 37.3.

3115 (1990). Even more than the postal sidewalk in

Kokinda used by postal service patrons, airports serve a

special function in sharp contrast to traditional public fora.

The regulation of solicitation and leafletting at airports is

uniquely designed to further the purpose of airports--to

facilitate the timely arrival and departure of air passengers.

The decision of the Second Circuit holding that the Port

Authority airports were not public fora2 and upholding the

regulation of solicitation at the airports should be affirmed.

The part of the decision striking down the regulation of

leafletting at the Port Authority airports should be

reversed, because leafletting, like solicitation, disrupts the

flow of pedestrian traffic, and its regulation by airport

Operators is reasonable in light of the special function

served by airports.

2 In a subsequent decision by the Second Circuit, Longo v.

Unued States Pustal Service, F.2d __, 1992 W.L. 3512 (2d Cir. Jan.

13, 1992), the court, per Judge Timbers, stated in dictum that in

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

576 (2d Cir. 1991) (ISKCON ), the Second Circuit did not reach the issue

of whether airport terminals are traditional, designated or nonpublic

fora. 1992 W.L. 3512 at 6. However, the dictum in Longo

notwithstanding, and contrary to the assertion in the Amici Curiae Brief

of the American Newspaper Publishers Assoc., et al., in /SKCON, the

Second Circuit applied the analytic framework used by the plurality in

Kokinda to hold that the Port Authority airports were not public fora.

(PA 13); see Amici Curiae Brief, American Newspapers Publishers

Assoc., et al. at 2. Referring to previous decisions in other circuits which

held that airports were public fora, e.g. Fernandes v. Limmer, 663 F.2d

619 (Sth Cir. 1981), the court stated: "We believe, however, that

Kokinda, has altered public forum analysis and that we would not be

faithful to Supreme Court precedent if we were to follow the other

circuits.” (PA 10-11).

4

SUMMARY OF ARGUMENT

The public forum doctrine, as set forth in Perry Educ.

Ass'n v. Perry Local Educators’ Ass'n, 460 U.S. 37 (1983),

is the analytic framework which this Court has used to

balance the interests of the individual in expressive activity

against the interests of the government in regulating such

activity On its property. The Perry model weighs the

significance of the government's interest by examining the

nature and purpose of the forum where the speech activity

would take place. 460 U.S. at 45-46.

Under Perry, courts apply a sliding scale to assess the

permissibility of regulation of First Amendment activity on

government property: in a traditional or designated public

forum, the government must show that any content-based

exclusion of speech activity is necessary to serve a

compelling state interest. For a content-neutral regulation

to be valid, it must be narrowly tailored to serve a

significant interest and leave open alternative means of

communication. Perry, 460 U.S. at 45. On the other hand.

in a non-public forum, the government's regulation of

speech, to reserve the forum for its intended purpose, will

be upheld if the regulation is reasonable and viewpoint-

neutral. 460 U.S. at 46. The balancing test which is at the

heart of public forum analysis fits neatly within the long

tradition of First Amendment jurisprudence which weighs

the individual's First Amendment rights in a democracy

against society's interest in maintaining public order. See

Cox v. Louisiana, 379 U.S. 536, 554 (1965).

In the present case, the Port Authority's regulation of

solicitation and leafletting preserves the airports for their

intended purpose. The Port Authority's interest in

maintaining safe, orderly airports outweighs the restriction

on petitioners’ First Amendment rights caused by the Port

5

Authority's regulation of solicitation and leafletting.3 The

Second Circuit correctly concluded that where the

governmeiit dedicates a public facility like an airport for the

sole purpose of air transportation, the airport may

promulgate reasonable, non-discriminatory regulations on

solicitation activity. (PA 13-15). The Second Circuit's

finding that the regulation of in-person solicitation at

airports was reasonable finds ample Support in the record.

However, the Court of Appeals erred in striking down

the Port Authority's restriction on leafletting at the

airports. Pedestrian congestion and bottlenecks due to

poor weather conditions and other unpredictable variables

that accompany air travel, are particularly acute at the

nation’s airports. (JA 456). As petitioners themselves

concede in their Petition for A Writ of Certiorari,

“(Ijiterature distribution, permitted under the court of

appeals’ decision, might well be as disruptive to a traveller

‘hurrying to catch a plane or to arrange ground

transportation’, App. 14, JSKCON 925 F.2d at 582, as a

request for a voluntary donation." Petitioners’ Writ of

Certiorari, p. 22. If a passenger misses his/her plane by a

matter of seconds, waiting time for the next available flight

can vary from less than an hour to many hours. (JA 455).

The Port Authority's restriction on leafletting is reasonable

given the peculiar function of airports as a transit point for

air passengers. In addition, the Port Authority's restriction

on leafletting is valid because it does not discriminate

based on the viewpoint of the speaker, but applies

evenhandedly as does the ban on solicitation.

3 The Port Authority's prohibition against solicitation and

leafletting, applies only to the "interior areas” of the Port Authority

airports. However, it is NIMLO's position that airport sidewalks as

well as airport interior areas are not public fora. See United States v

Kokinda 110 S. Ct. 3115 (1990).

6

ARGUMENT

|. AIRPORTS ARE NOT PUBLIC FORA, BECAUSE

THEIR PURPOSE IS TO FACILITATE THE

MOVEMENT OF AIR PASSENGERS AND .

CARGO, AND THEY HAVE NOT

TRADITIONALLY BEEN OPEN TO THE Pt SLIC

FOR EXPRESSIVE ACTIVITY

By tradition and purpose, airports are not gathering

places for casual passersby; rather, they are uniquely

designed to expedite the safe and orderly movement of air

passengers and air cargo. (JA 465).

Petitioners, who engage in fund-raising and leafletting

as part of their religious practice of sankirtan, commenced

this action to challenge the Port Authority's ban on

repetitive solicitation—and distribution of literature at the

airports. (JA 34-35). This Court has long recognized that

solicitation and the distribution of literature are protected

speech. Village of Schaumburg v. Citizens for a Better

Environment, 444 U.S. 620, 629 (1980) ("(S)oliciting funds

involves interests protected by the First Amendment's

guarantee of freedom of speech..."); Perry, 460 U.S. 37

(1983).

But this Court has also long held that government

ownership of property does not automatically open that

property to the public for expressive activity, particularly

where, as here, the government is providing a specific

service to the public by operating a special-purpose facility.

Kokinda, 110 S.Ct. at 3119 (1990) (holding that solicitation

could be prohibited on postal service sidewalk); United

States Postal Service v. Council of Greenburgh Civic

Assns., 453 U.S. 114 (1981) (holding that the Postal

Service could prohibit the placing of non-mailed literature in

a letter box); Greer v. Spock, 424 U.S. 828 (1976) (holding

7

that political campaigning and the distribution of literature

could be restricted at a military base). In the present case,

the Second Circuit correctly found that airports are not

public fora, because they have not been open to the public

for expressive activity, but rather are designed solely to

meet the transportation needs of the air passengers who

use them. (PA 14-15).

Less than two years ago, a plurality of this Court held

in Kokinda that a sidewalk adjoining a post office was not a

public forum because the Postal Service had not expressly

dedicated its sidewalks to any expressive activity. Rather,

the sidewalk was intended for the sole use of postal

service patrons. 110 S. Ct. at 3120. In so holding, Justice

O'Connor, speaking for the plurality, employed the tripartite

framework first used in Perry, 460 U.S. 37 (1983), to

assess how and to what extent First Amendment

activities may be regulated on government property.

In Perry, the Court found that the regulation of speech

on governmental property that has been traditionally open

to the public for expressive activity, such as public streets

and parks, should be examined under the strict scrutiny

standard. 460 U.S. at 45.4 The same standard applies

where the government has designated a forum for speech

activity. /d.; see Widmar v. Vincent, 454 U.S. 263 (1981)

(holding that a state university which had an express

policy of making its meeting facilities available to

registered student groups had created a public forum for

their use); Kokinda, 110 S. Ct. at 3119.

4 In a traditional public forum, only content-neutral time,

place and manner regulations that are narrowly tailored to serve a

significant government interest and leave open ample alternative means

of communication may be imposed. Perry, 460 U.S. at 45.

8

However, where the government has not dedicated its

property to First Amendment activity, its regulation of

speech activity will be upheld if it is reasonable and "not an

effort to suppress expression merely because public

officials oppose the speaker's view." Perry, 460 U.S. at 46;

Cornelius v. NAACP Legal Defense & Educational Fund,

Inc., 473 U.S. 788, 800 (1985). The three-tiered framework

of public forum analysis employs a series of balancing

tests, which weighs the government's interest according to

the particular function of the forum where the speech

activity is proposed to take place. The Court logically

applies the lesser standard of "reasonableness" where the

forum is determined to be nonpublic because it is used for a

specific purpose. See Kokinda, 110 S. Ct. at 3120.

_ The balancing of interests which the Court must weigh

in public forum analysis is a hallmark of First Amendment

jurisprudence.5 As this Court said in Cox v. Louisiana, 379

U.S. 536, 554 (1965):

The rights of free speech and assembly, while

fundamental in our democratic society, still do not

mean that everyone with opinions or beliefs to

express may address a group at any public place

and at any time. The constitutional guarantee of

liberty implies the existence of an organized

society maintaining public order, without which

liberty itself would be lost in the excesses of

anarchy.

5 Amicus curiae American Civil Liberties Union (hereinafter

"A.C.L.U.") asserts in error that the public forum doctrine is not

grounded in the First Amendment, even though the balancing tests used

in public forum analysis are widely employed in First Amendment cases.

Brief of A.C.L.U. at 7.

9

To date, the Supreme Court has had only one occasion

to apply the public forum doctrine to a transportation

system. In that case, Lehman v. City of Shaker Heights,

418 U.S. 298 (1974), the Court held that advertising space

on a City transit system was not a public forum, and upheld

the city's ban on political advertising.

In the present case, the Port Authority's interest in the

orderly movement of air travellers at its airports clearly

outweighs the restriction on petitioners’ rights caused by

the regulation of solicitation and leafletting. Petitioners

contend that the mere presence of stores and shops in the

airports to serve air passengers render airports public fora.

Petitioners’ Brief at 17. As this Court has repeatedly held,

“(t}he mere physical characteristics of the (government)

property cannot dictate forum analysis." Kokinda, 110 S.

Ct. at 3120. Rather, the location and purpose of the public

facility determine whether or not it is a public forum.

Kokinda, 110 S.Ct. at 3121.

As the Second Circuit correctly found, although airport

terminals are generally “open to the public, virtually

everyone who enters the terminal does so for a purpose

related to air travel. These include travelers, persons

meeting or seeing off passengers, members of flight crews,

and employees of the terminal, an airline or business in the

terminal." (PA 5). As set forth in the affidavit of Morris

Sloane, former Director of Aviation Operations for the Port

Authority: "The only purpose of all three of the Port

Authority airports is the facilitation of air passenger and air

cargo transportation.” (JA 464). The commercial

establishments found in airport concourses are designed to

serve the needs of waiting air passengers and other airport

users, such as airline employees. (JA 453-454). Airports

thus stand at the opposite side of the spectrum from the

quintessential public fora-- public streets and parks which

10

make up “the daily commerce and life of the neighborhood

or city." Kokinda, 110 S.Ct. at 3120.

In Kokinda, the Court ruled that the Postal Service

vould prohibit solicitation on public property because postal

service property was not intended for expressive activity

for the general public, but was intended to serve the needs

of postal patrons. The Court reasoned that:

The postal sidewalk at issue does not have the

characteristics of public sidewalks traditionally

open to expressive activity. The municipal

sidewalk that runs parallel to the road in this case

is a public passageway. The Postal Service's

sidewalk is not such a thoroughfare. Rather, it

leads from the parking area to the front door of the

post office. Unlike the public street described in

Heffron v. Int'l Soc. for Krishna Consciousness,

Inc., 452 U.S. 640 (1981), which was "continually

open, often uncongested, and constitute(d) not

only a necessary conduit in the daily affairs of a

locality's citizens, but also a place where people

(could) enjoy the open air or the company of

friends and neighbors in a relaxed environment,”

id. at 651, 101 S. Ct. at 2566, the postal sidewalk

was constructed solely to provide for the passage

of individuals engaged in postal business. The

sidewalk leading to the entry of the post office is

not the traditional public forum sidewalk referred

to in Perry.

110 S. Cr. at 3120.

Airport sidewalks and interior spaces are also not

“traditional public sidewalks,” but are more akin to the

Streets and sidewalks found in a military installation

described in Greer v. Spock, 424 U.S. 828 (1976). In that

ll

case, this Court upheld Fort Dix regulations governing

political campaigning and the distribution of literature, even

though civilians had access to unrestricted areas of the

military reservation. In so holding, the Court reasoned:

The guarantees of the First Amendment have

never meant “that people who want to

propagandize protests or views have a

constitutional right to do so whenever and

however and wherever they please.” Adderley v.

Florida, 385 U.S. 39, 48, 17 L Ed 2d 149, 87S Ct

242. “The State, no less than a private owner of

property, has power to preserve the property

under its control for the use to which it is lawfully

dedicated.” /d., at 47, 17 L Ed 2d 149, 87 S$ Ct

242.

424 US. at $36.

The notion that federal military reservations, like

municipal streets and parks, have traditionally served

as a place for free public assembly and communication

of thoughts by private citizens is thus historically and

constitutionally false.

424 US. at 838.

More stringent than the security measures described

in Greer at the Fort Dix military base, 424 U.S. at 830,

airports, particularly over the course of the last two

decades, have taken steps to restrict access to parts of

airport terminals to ticketed air passengers only. (JA 459).

Federal regulations require the screening of air

passengers. (JA 459). The presence of persons soliciting

and leafletting who have no connection to air travel

complicates the task of airport operators in providing for

the safety and security of air travellers.

12

Further, like persons waiting in line at the local post

office, airport users are a captive audience for unwanted

solicitation. (JA 458). As Justice Kennedy said in his

concurring opinion in Kokinda: "Many of those who use

postal facilities do so from necessity, not choice." 110 S.

Ct. at 3125. The lack of choice for waiting air passengers 1s

more apparent and- more compelling, particularly air

travellers in peak travel periods or during inclement

weather, whose confinement is more prolonged and more

confined than a person using a postal sidewalk. As Mr.

Sloane points out: "Persons waiting to purchase airline

tickets, to pick up baggage, to make car rental or other

ground transportation arrangements, to go through security

checks, at telephones, and at eating concessions, tend to

remain in the area in which they are located to complete

their transaction." (JA 458).

In fact, as set forth in the 3(g) Statement of the

Superintendent of Port Authority Police:

The airport terminal concourses are not used as

thoroughfares to or from destinations within the

surrounding communities, nor as gathering places

for community activities. Virtually all of the

persons in the airport terminals are passengers,

"meeters and greeters", or employees of airlines,

of airline contractors, of the Port Authority, of the

federal inspection services, or other airport-

related businesses or enterprises for travel-

related purposes.

(JA 458) (paragraph numbers and cross-references

omitted).

Thus, airport sidewalks and concourses are not like

the sidewalks surrounding the Supreme Court, which this

13

Court held in United States v. Grace, 461 U.S. 171 (1983),

to be a public forum. As the Court in Grace explained:

The sidewalks comprising the outer boundaries of

the Court grounds are indistinguishable from any

other sidewalks in Washington, D.C., and we can

discern no reason why they should be treated any

differently. Sidewalks, of course, are among those

areas of public property that traditionally have

been held open to the public for expressive

activities and are clearly within those areas of

public property that may be considered, generally

without further inquiry, to be public forum

property. In this respect, the present case differs

from Greer v. Spock, supra. In Greer, the streets

and sidewalks at issue were located within an

enclosed military reservation, Fort Dix, N.J., and

were thus separated from the streets and

sidewalks of any municipality. That is not true of

the sidewalks surrounding the Court. There is no

separation, no fence, and no indication whatever

to persons stepping from the street to the curb

and sidewalks that serve as the perimeter of the

Court. grounds that they have entered some

special type of enclave.

461 U.S. at 179-80 (footnotes omitted).

Nor does the existence of large concourses, shops,

restaurants, and other places designed to serve waiting

passengers mean that the airport operator has created a

public forum because of opportunities for "limited

discourse" among air travellers and others meeting or

waiting for arriving passengers. Cornelius v. NAACP Legal

Defense & Education Fund, 473 U.S. at 802 (1985)

(holding that the fund-raising campaign for federal

employees was not a public forum to which all fund raising

14

organizations should have equal access); Cf. Widmar v.

Vincent , 454 U.S. 263 (1981); Southeastern Promotions,

Ltd. v. Conrad, 420 U.S. 546 (1975) (Court found a public

forum where a municipal auditorium and a city-leased

theater were designed for and dedicated to expressive

activities).

The decisions relied upon by petitioners which were

rendered by other circuit courts, holding that airports were

public fora, have no precedential value, since they all ;

predate this Court's decision in ae which _ wo a

stal sidewalk was not a public forum. , 8.

“ase v. City of Oakland, 479 F.2d 1130 (9th Cir.

1973); Chicago Area Military Project v. City of Chicago,

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

U.S. Southwest Africa/Namibia Trade & Cultural Council v.

United States, 708 F.2d 760, 765 (D.C. Cir. 1983)

(comparing airport terminals to "public thoroughfares");

Petitioners’ Brief at 18-19.

Moreover, all of these decisions relied on general

physical characteristics such as public ownership and

public access which this Court has long held are not

dispositive by themselves of whether a facility is a public

forum. As this Court recently said in Kokinda: Postal

entryways, like the walkways at issue in Greer, a

open to the public, but that fact alone does not establis

that such areas must be treated as traditional public fora

under the First Amendment.” 110 S.Ct. at 3121. In

addition, because of the similarities between airperts and

the military installation described in Greer, which, as

discussed above, are both characterized by physical

isolation, security concerns and a special purpose, the

circuit court decisions holding that airports are public fora

cannot be reconciled with this Court's decision in Greer,

holding that a military base was not a public forum. 424

U.S. $28, 836-37.

15

Il. THE POR’ AUTHORITY'S PROHIBITION OF IN-

PERSON SOLICITATION AT PORT AUTHORITY

AIRPORTS SHOULD BE UPHELD AS A

REASONABLE REGULATION OF A NON-PUBLIC

FORUM

It is undisputed that airports are uniquely concerned

with the smooth, safe, and expeditious movement of air

passengers and air cargo. (JA 453). Mr. Sloane of the Port

Authority states that: "Airport pedestrian congestion is the

Port Authority airports’ single greatest problem." (JA 466).

The problem of congestion is not necessarily tied to a

particular time of day or time of year. For example, a

snowstorm in Chicago may delay departing passengers

from Newark Airport to Chicago. A car accident along an

access route to Kennedy Airport may ieave only a few

minutes for a passenger to make his or her flight. In such a

Case, even if the airport concourse is not crowded, a

solicitor who blocks a passenger's path can cause that

person to miss her flight.

The Port Authority restriction on solicitation easily

meets the test of reasonableness, since it is designed to

reduce delays at the airport, and help address the needs of

air passengers who often face severe time constraints in

catching their flights. Cornelius v. NAACP Legal Defense

and Educational Fund , 473 U.S. 788, 808 (1985). As this

Court said in Cornelius: "The Government's decision to

restrict access to a nonpublic forum need only be

reasonable; it need not be the most reasonable or the only

reasonable limitation." /d. Further, the restriction on

solicitation is viewooint-neutral, since it applies regardless

of the identity or viewpoint of the solicitor.

As Lord Dunedin said in’ M’Ara v. Magistrates of

Edinburgh: “The truth is that open spaces and public

16

places differ very much in their character, and before you

could say whether a certain thing could be done in a certain

place you would have to know the history of the particular

place.” (1913) Sess. Cas. 1059, 1073-1074, cited in

Lehman vy. City of Shaker Heights, 418 U.S. 298, 302

(1974). Airports’ consistent efforts to regulate solicitation

activity underscore the reasonableness of the Port

Authority's prohibition of in-person solicitation. Just as the

Court in Kokinda found that the long-standing history of

Postal Service regulation of solicitation in post offices

demonstrated the reasonableness of its current regulation,

so do the prior efforts of airports to regulate solicitation

bear on the reasonableness of the Port Authority regulation

in this case. See Kokinda, 110 S. Ct. at 3122 (where the

Court noted that "(t)he Postal Service has been regulating

solicitation at least since 1958"). A brief review of the

litigation on solicitation at airports throughout the country

reveals that, like the Postal Service, airports have a long

history of promulgating such regulations to minimize the

disruption to air passengers and other airport-related

traffic.

For example, in Chicago Area Military Project v. City

of Chicago, 508 F.2d 921, 924 (7th Cir.), cert. denied, 42)

U.S. 992 (1975), a group challenged an ordinance

promulgated by O'Hare Airport, regulating solicitation and

leafletting which dated back to June 1, 1956. In addition,

the first lawsuits in federal district courts throughout the

country challenging existing airport regulations of

solicitation appeared as early as 1971. See Kuszynski v.

City of Oakland, 322 F. Supp. 689 (N.D. Cal. 1971), rev'd

and remanded, 479 F.2d 1130 (9th Cir. 1973).

Further, like the Postal Service, airports are self-

sustaining business entities. Kokinda, 110 S. Ct. at 3122

("Congress has directed the (Postal) Service to become a

self-sustaining service industry..."). This characteristic

17

underscores the proprietary nature of airports® and the

reasonableness of a restriction on solicitation to minimize

disruption to users of the airport's services, and avoid the

diversion of revenue away from the airport. /d. As set

forth in the record, Port Authority airports are financed

exclusively by user fees.

| Mr. Sloane describes these fees as "rentals paid by

airline tenants..., landing, terminal and ramp gate fees paid

by individual and corporations for use of the airports..., fees

paid by ground transportation providers (such as auto

rental agencies and limousine services), fees paid by

providers of other passenger services (such as restaurants

and shops), and fees paid directly by air passengers (such

as parking lot fees).” (JA 454).

_ As the Second Circuit accurately observed below,

airport regulation of solicitation is reasonable, because

solicitation is "inherently disruptive” for airport users. (PA

12, 15), citing Kokinda, 110 §. Ct. at 3123. The act of

solicitation requires the solicitor to intercept potential

donors "as they move about, and if success is achieved,

stopping them momentarily or for longer periods as money

is given or exchanged for literature.” Kokinda, 110 S. Ct. at

3123. ("Solicitation requires action by those who would

respond: the individual solicited must decide whether or

not to contribute (which itself might involve reading the

solicitor’s literature or hearing his pitch), and then, having

decided to do so, reach for a wallet, search it for money,

write a check, or produce a credit card.” 110 S.Ct. at 3123.)

6

Although the operation of public airports is indeed a

governmental funcuon, the Port Authority manages airport services in a

proprietary capacity. See Transport Limo. v. Port Authority of New York,

571 F.Supp. 576, 581 (S.D.N.Y. 1983).

18

The flow of the crowd and demands of safety are more

pressing in airports than on streets and public sidewalks.

(JA 465-466). Thus, restricting solicitation is reasonably

aimed at facilitating the flow of pedestrian traffic where a

matter of seconds can "cause a traveler to incur substantial

loss in travel time..." (JA 455).

iil. THE PORT AUTHORITY REGULATION OF

REPETITIVE DISTRIBUTION OF LITERATURE IS

A REASONABLE, VIEWPOINT-NEUTRAL

RESTRICTION

The Second Circuit erred in striking down the Port

Autnority's regulation of the repetitive distribution of

literature at Port Authority airports. The Court's reasoning

appeared to be based on dicta in Kokinda, which indicated

that soliciting was a more disruptive activity than

leafletting. 110 S.Ct. at 3124. However, a review of airport

regulation in this area reveals that airport operators have

been as concerned with the inconvenience to air travellers

caused by leafletting as they have with solicitation.

For example, in Chicago Area Military Project v. City

of Chicago, 508 F. 2d 921, 924 (7th Cir.), cert. denied, 421

U.S. 992 (1975), O'Hare Airport promulgated an ordinance

which prohibited both solicitation and the distribution of

literature. It provided that:

no person shall be permitted to picket, sell

anything (except for authorized concessionaires or

lessees, and they only at assigned spaces)

distribute literature of any nature, or solicit or

collect contributions within any building at any

airport operated by the City of Chicago.

508 F.2d at 924.

19

In Kuszynski v. City of Oakland, 322 F. Supp. 689

(N.D. Cal. 1971), rev'd and remanded, 479 F.2d 1130 (9th

Cir. 1973), a group challenged an ordinance at the Oakland

airport which restricted the "distribution of non-commercial,

non-obscene, non-subversive literature." /d. at 1130-1131.

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

issue of solicitation and leafletting activities at Dallas-Fort

Worth Regional Airport arose in late 1974 when members

of ISKCON were arrested for soliciting funds, selling

merchandise, and distributing literature in the airport

terminal buildings without a permit in violation of airport

regulations. 663 F. 2d at 624.

As discussed supra at pages 5 and 15, a delay of

seconds as air passengers make their way through airport

terminals can result in passengers missing their flights.

(JA 455). Petitioners concede that the distribution of

literature, as air passengers rush to waiting flights or

ground transportation, may well be as disruptive as a

request for donations. Petitioners’ Writ of Certiorari, p. 22.

Given the special function served by airports and the time

pressures often faced by air travellers, the Port Authority's

restriction of leafletting is also reasonable.

The Port Authority's narrow regulation stands in stark

contrast to the regulations struck down by this Court in

Board of Airport Commissioners of the City of Los Angeles

v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987), which

would have barred all expressive activity at Los Angeles

Airport. In this case, restricting the repetitive distribution

of literature is targeted only at regulating a narrow

category of expression that disrupts airport users.

Although leafletting, unlike a request for funds, does

not necessarily require an affirmative response on the part

of pedestrians at the airport, the presence of leafletters

slows the movement of air passengers through the airport.

20

Leafletting, therefore, interferes with the main aim of the

airport--to provide a smooth transit point for air

passengers.

Significantly, the only case in which od yo

lied the public forum doctrine to a transportatio ,

pip ‘st v. City of Shaker Heights, 418 U.S. 298 (1974),

underscores the broad leeway that this Court has granted

when the government is providing a service in a nonpublic

forum. In Lehman, this Court upheld a ban on paid political

advertising in a City's rapid transit system, even though

the City of Shaker Heights did not claim that mass transit

users would face potential delays if such advertising were

permitted. It was sufficient for this Court to weigh the

city's interest in not offending passengers sensibilities to

uphold the reasonableness of the city’s ban. Speaking for a

plurality of the Court, Justice Blackmun reasoned:

Revenue earned from long-term commercial

advertising could be jeopardized by a requirement

that short-term candidacy or issue-oriented

advertisements be displayed on car cards. Users

would be subjected to the blare of political

propaganda. There could be lurking doubts about

favoritism, and sticky administrative problems

might arise in parceling out limited space to eager

politicians. In these circumstances, the

managerial decision to limit car card space to

innocuous and less controversial commercial and

service oriented advertising does not rise to the

dignity of a First Amendment violation. Were we

to hold to the contrary, display cases in public

hospitals, libraries, office buildings, military

compounds, and other public facilities immediately

would become Hyde Parks open to every would-

be pamphleteer and politician. This the

Constitution does not require.

21

418 U.S. at 304.

Similar to the prohibition in Lehman, the Port

Authority airports’ prohibition on leafletting is not an

attempt to suppress a particular viewpoint. Cornelius v.

NAACP Legal Defense & Educational Fund, Inc., 473 U.S.

at 800. It thus avoids the "sticky administrative problems"

referred to in Lehman by imposing a prohibition which has

no reference to the identity or viewpoint of the speaker.

418 U.S. at 304.

This Court's decision in Perry, is in accord. In Perry,

the Court held that a local school district could bar a rival

teachers’ union from distributing literature through the

interschool mail system. The school district did grant

access to the duly elected union representative and certain

other outside organizations like the YMCA and parochial

schools. 460 U.S. 47-48. Justice White, writing for the

Court, reasoned that "(t)his type of selective access does

not transform government property into a public forum."

460 U.S. at 47.

In fact, the Court noted, the granting of access to the

elected union representative but not to its rival preserved

the mail system for the use to which it was lawfully

dedicated. /d. at 50-51. In the Court's words:

(W)hen government property is not dedicated to open

communication the government may — without further

justification — restrict use to those who participate in

the forum's official business.

460 U.S. at 53. Similarly, the restriction of leafletting at

Port Authority airports preserves the airports for their

lawfully intended purpose — the safe and expeditious

movement of air passengers and air cargo.

22

CONCLUSION

For the foregoing reasons, it is respectfully submitted

that the judgment of the Second Circuit Court of Appeals

should be: (1) affirmed with respect to the court's ruling

that the Port Authority airports are public fora and that the

Port Authority can restrict solicitation at its airports; and

(2) reversed with respect to the court's ruling that the Port

Authority's restriction on leafletting at Port Authority

airports violates the First Amendment.

Respectfully submitted,

BENJAMIN L. BROWN

Counsel of Record

National Institute of

Municipal Law Officers

1000 Connecticut Avenue, N.W.

Suite 902

Washington, D.C. 20036

(292) 466-5424

Dated: March 9, 1992