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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0181%3A18

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1992
- **Citation:** 505 U.S. 830

## Text

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0181%3A18. Public record. Not legal advice.