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

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Nos. 91-155 & 91-339

—— — ————————————————————————— — ~_—

In The

Supreme Court of the United States

October Term, 1991

— -~-——-- — @&— --——- —

INTERNATIONAL SOCIETY FOR KRISHNA

CONSCIOUSNESS, INC., et al.,

Petitioners/Cross-Respondent:

VS.

WALTER LEE, Superintendent of Port Authority Polic

Respondent/Cross-Petitior

SEE ——— @——_-_ —- — —

On Writ Of Certiorari To The United States

Court Of Appeals For The Second Circuit

e-—- —————EEeee

BRIEF AMICUS CURIAE OF THE AIRPORTS

ASSOCIATION COUNCIL INTERNATIONAL-NORTH

AMERICA (AACI-NA) IN SUPPORT OF

RESPONDENT/CROSS-PETITIONER

—————— o¢—-—-------

Micnart M. Conway’

THOMAS le 1); VIN]

BRYAN S. ANDERSON

Hopkins & SUTTER

Three First National Pla

Chicago, Illinois 60602

Telephone: (312) 558-b¢

' 4 , P

Counsel for Ami

2 ry j

< ounsel of NRECOrEU

TABLE OF CONTENTS

Page

po ee eer iii

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

SUMMARY OF ARGUMENT....................... 2

EE cares SU aky as eke od ooo ea Ae hee 3

I. GOVERNMENT PROPERTY CONSTITUTES A

TRADITIONAL PUBLIC FORUM ONLY IF IT

HAS A HISTORY OR A PRIMARY PURPOSE OF

SERVING AS A PLACE FOR EXPRESSING

Il. AN AIRPORT’S PURPOSE IS TO PROVIDE FOR

THE SAFE AND EFFICIENT FLOW OF PAS-

SENGERS IN AIR TRANSPORTATION ........ 6

A. Unique Security Concerns And Security

Measures Reflect Airports’ Purpose Of

Facilitating Safe Air Transportation And

Distinguish Airports From Traditional Pub-

8 Ree eer eee eer ere er eee 7

B. Special Problems Of Congestion Reflect Air-

ports’ Purpose Of Facilitating Efficient Air

Transportation And Distinguish Airports

From Traditional Public Fora....... ... 10

C. Airports Are Run By Governmental Entities

In Their Role As Proprietors, Not Regula

tors, As Evidenced By The Nature Of Their

Business And Their Financing 11

1. Airport Financing Emphasizes The Air

Transportation Purpose of Airports 11

il

TABLE OF CONTENTS - Continued

Page

nN

Local Governmental Entities Operate

Airports Strictly To Facilitate Efficient

Air Transportation .............-+++5+- 13

3. The Fact That Airports Are Theo-

retically Open To The Public Or Avail-

able For Other Forms Of Expressive

Activity Does Not Make Them Public

a Bo 15

4. Solicitation Is Inherently Disruptive Of

The Business Of Operating An Airport 17

D. Physical Separation Of Airports From The

Community Distinguishes Airports From

Traditional Public Fora ................... 20

E. The Presence Of Captive Audiences In Air-

ports Distinguishes Airports From Tradi-

tional Public Foes. ........scccescuceeaames 22

Ill. BECAUSE AIRPORTS ARE NOT TRADI-

TIONAL PUBLIC FORA, FIRST AMENDMENT

ACTIVITY MAY BE REASONABLY REGU-

LATED TO PRESERVE THE AIR TRANSPOR-

TATION PURPOSE OF AIRPORTS............ 23

CONCLUSION... 6062000000605 0 eee ore 26

ill

TABLE OF AUTHORITIES

Page

Cases

Adderly v. Florida, 385 U.S. 39 (1966) ............. 16, 24

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

Ne Shi eee d ss seccccescces 6

Brown v. Palmer, 915 F.2d 1435 (10th Cir. 1990),

aff'd on rehearing en banc, 944 F.2d 732 (1991)....... 7

Consolidated Edison Company v. Public Service Com-

SE SE OP GUUMEID. 6 cece eens 23

Cornelius v. NAACP Defense & Educational Fund,

ey re Gram Few (ISOS) ............... 2, 4, 5, 24, 25

Flower v. United States, 407 U.S. 197 (1972).......... 20

Greer v. Spock, 424 U.S. 828 (1976)..9, 15, 20, 22, 23, 24

Seen ee Gl OO (I999).................... 5

Heffron v. International Society for Krishna Con-

sciousness, Inc., 452 U.S. 640 (1981)......... 14, 17, 18

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

eee ise sa sey cccescccececs 13, 23, 24

Members of the City Council v. Taxpayers for Vincent,

Nee ccs cc ccs ec cceesccs: 5

Pearson v. United States, 581 A.2d 347 (D.C. 1990),

cert. denied, __ U.S. __, 112 S. Ct. 51 (1991)...... 16

Perry Education Association v. Perry Local Educators’

Association, 460 U.S. 37 (1983)... .2, 3, 4, 5, 16, 24, 25

rn PB QUUUID, £5.16. ee tee eee y

United States v. Bader, 698 F.2d 553 (1st Cir. 1983) ..... 7

iv

TABLE OF AUTHORITIES - Continued

Page

United States v. Burton, 888 F.2d 682 (10th Cir.

Pcs css ackeeneedeue baeao Ae nawus nanan OeeNebaknan 7

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

United States v. Kokinda, __-:sO.S. __, 110 S. Ct.

PO 5646 66. 0 adbeenecienesiee enna passim

STATUTES

ee es: Oe ee I 0 0.90:0405404540bveade ec 12

ee Sis Oe SI I e's va vundawadscucencesaeneu 12

ee Wace SED I 6.6.4.0 vo so ccuseciacntupanrenns 12

ee Wes Oe I oo 6 ooo oid csccss4baeeeleen 12

SP ee Oe EE CIEE ys 06 5 per 5 cre sky se ckeeeuaenes 12

USA... App. § DIS) CIP)... oc ccccssessvses 12

> USL. App. & ZAGMaMs) CHOSE). ... in cc sicccccvccs. 6

49 US.C. App. § 2203(a) (1968).................008. 14

9 USL. App. § Za0Gla) CISGB) .. 2. ccceesicecss 14

49 US.C. App. § 2210 (1988) and Supp. II (1990)...12, 13

REGULATIONS

ey ee Ey 8 aes oh el ere er a ee 8,9

We eee WI eis SiS owe eebecavassencksaaes dere 8, 9

14 C.FR. 107.11(f)

i ET STE ET TTT ET ee ee 8, 9

TABLE OF AUTHORITIES - Continued

Page

Ge CW oo 0 6500 ch ccs cnevdesusvaseusns candi 8, 9

EG WD on aN o aah secnebessnudetuauuatnenwe wed 8, 9

PPT eT ee eeSe rrr rerr rrr ret 8

OE Ges IR 6 vase cas Senvewsadescszacvess sabes 8

GO Tiree WIS o Foo x ches veccendcudercictossenne 8

MIscELLANEOUS

R. Horonjeff & F.X. McKelvey, Planning & Design

OF EI Ge Gs WOE 6 6 5.6.6 ha he hesciccessseeel 6

A. Lemer, Airport Landside Capacity: A Growing

Concern, TR News, May-June 1986................ 10

Congressional Budget Office, Financing U.S. Air-

SD TE GE Fe © CUMS ko Skee cs icecvececendset 10

U.S. Department of Transportation, National Plan

of Integrated Airport Systems 1984-1993 (1985) .... 12

U.S. Department of Transportation, National Plan

of Integrated Airport Systems 1990-1999 (1991) .... 10

INTEREST OF AMICUS CURIAE!

The Airports Association Council International-

North America (“AACI-NA”) is a cooperative, non-profit

association of approximately 150 state, local and regional

governmental bodies that own and operate more than 200

airports throughout North America. AACI-NA member

airports serve more than 90% of the United States domes-

tic scheduled air passenger and cargo traffic, and vir-

tually all United States scheduled international traffic.

More than 850 million annua! passenger enplanements

and deplanements occurred at our U.S. airports in recent

years.

AACI-NA submits this amicus brief to urge that our

nation’s public airports be allowed to preserve their fuii-

damental air transportation purpose by regulating First

Amendment activity on their premises so as to prohibit

fund solicitations and leafleting. The three commercial air

Carrier airports operated by the Port Authority are not

public fora, and they and other airports around the coun- -

try have consistently resisted efforts to turn them into

public fora. Historically airports have not served as

venues for expression of ideas, nor would such usage be

consistent with their fundamental purpose, which is to

facilitate safe and efficient air travel.

If this Court should hold that the Respondent's air-

ports are public fora, all AACI-NA United States member

' This amicus curiae brief is filed pursuant to the consent of

each of the parties to this matter, which written consents have

been obtained and filed with the Clerk of this Court pursuant

to United States Supreme Court Rule 37.3.

airports would be required to be made available for solic-

itation, leafleting and other expressive activity for which

airports are not intended and which would interfere with

the safe and efficient operation of the nation’s airports.

4

SUMMARY OF ARGUMENT

Governmental regulations of First Amendment activ-

ity in both traditional public fora and designated public

fora must be reasonable with respect to time, place and

manner in order to be constitutional. However, in a non-

public forum, a government’s power to regulate First

Amendment activity is much broader. Expressive activity

may be reasonably regulated and even prohibited in the

interest of preserving the non-public forum for the pur-

poses for which it was intended.

This Court has consistently held that government

property that has not traditionally served as a place for

expressive activity may be preserved for the purposes for

which it is intended and need not be treated as a public

forum. United States v. Kokinda, __ US. __, 110 S. Ct.

3115 (1990); Cornelius v. NAACP Legal Defense And Educa-

tional Fund, Inc., 473 U.S. 788 (1985); Perry Educational

Association v. Perry Local Educators’ Association, 460 U.S. 37

(1983).

Airports have a single purpose - facilitating safe,

efficient and convenient air travel. Airport operations,

including security measures and the need to manage

heavy pedestrian traffic flows and congestion, reflect this

purpose. Airport facilities financing, which relies on air

transportation user fees and not general tax revenues,

similarly reflects the air transportation purpose of air-

ports.

Because of their sole purpose of facilitating air trans-

portation, airports have critical differences from tradi-

tional public fora. Airports, unlike traditional public fora,

are not integrated into their neighboring communities.

Airport patrons, unlike users of traditional public fora,

are a captive audienc: to expressive activity being con-

ducted in the areas which they must use in order to

travel.

Because airports do not have a long tradition of being

used as sites for assembly and debate, and were not

created to serve as sites for expressive activity, airports

are not public fora. Indeed, commonplace airport security

restrictions, which would be constitutionally forbidden

on a public street or town square, are compelling evi-

dence that, to the government and its citizenry alike,

airport premises are unlike public fora. Governmental

airport proprietors should therefore be permitted to pro-

hibit leafleting and soliciting at airports in the interest of

preserving their air transportation purposes.

¢

ARGUMENT

I. GOVERNMENT PROPERTY CONSTITUTES A

TRADITIONAL PUBLIC FORUM ONLY IF IT HAS

A HISTORY OR A PRIMARY PURPOSE OF SERV-

ING AS A PLACE FOR EXPRESSING IDEAS

In Perry Education Association v. Perry Local Educators’

Association, 460 U.S. 37 (1983), this Court established a

legal framework for determining whether, and to what

degree, the First Amendment requires the government to

permit expressive activity in a publicly owned facility.

For purposes of evaluating government regulation of

expressive activity in publicly owned facilities, Perry dif-

ferentiates between a traditional public forum, a desig-

nated public forum, and a non-public forum which is

created for purposes other than expressive activity by the

general public. Perry 460 U.S. at 45-46. Petitioners/Cross-

Respondents (“Petitioners”) erroneously claim that the

Port Authority’s three airports are public fora. They do

not argue that the airports are designated public fora.

Under the Perry framework the government may con-

stitutionally prohibit expressive activity in a content-neu-

tral manner within a traditional public forum or a

designated public forum only if the prohibition is reason-

able as to time, place and manner. Perry, 460 U.S. at 45-46;

Cornelius, 473 U.S. at 800?

In a non-public forum, however, the government may

constitutionally enact reasonable regulations that pre-

serve the forum for its “intended purposes,” as long as

there is no viewpoint discrimination. Perry, 460 U.S. at 46.

As the Court most recently stated in its plurality opinion

in Kokinda, “regulation of speech activity where the

2 Additionally, government regulations of expressive

activity within traditional public fora and designated public

fora which are content-based, as opposed to content-neutral,

must also be “narrowly drawn to effectuate a compelling state

interest.” Perry, 460 U.S. at 46. There has been no suggestion in

the present case that the Port Authority’s regulations are con-

tent-based.

Government has not dedicated its property to First

Amendment activity is examined only for reasonable-

ness.” Kokinda, 110 S. Ct. at 3119-3120.

As this Court has held, a government-owned facility

is a traditional public forum only if it is among “those

places which ‘by long tradition or by government fiat

have been devoted to assembly and debate.’ ” Cornelius,

473 U.S. at 802 (quoting Perry, 460 U.S. at 45). In addition,

“a principal purpose of traditional public fora is the free

exchange of ideas.” Cornelius, 473 U.S. at 800.

Classic examples of traditional public fora include

public streets and parks. As the Court stated in Hague v.

C.1.0., 307 U.S. 496, 515 (1939):

Wherever the title of streets and parks may rest,

they have immemorially been held in trust for

the use of the public and, time out of mind, have

been used for purposes of assembly, communi-

cating thoughts between citizens, and discuss-

ing public questions. Such use of the streets and

public places has, from ancient times, been a

part of the privileges, immunities, rights, and

liberties of citizens.

This Court has never specifically identified as a tradi-

tional public forum anything other than a street, side-

walk, or park. See Cornelius, 473 U.S. at 806; Members of the

City Council v. Taxpayers for Vincent, 466 U.S. 789, 792-93

(1984); United States v. Grace, 461 U.S. 171, 177 (1983);

Perry, 460 U.S. at 45.

Airports are easily distinguishable from traditional

public fora recognized by the Court - streets, parks and

sidewalks — because airports do not have a tradition of

use or a primary purpose as a place for public debate and

expression of ideas. In fact, this Court has never held that

an airport is a public forum. Board of Airport Commission-

ers v. Jews for Jesus, Inc., 482 U.S. 569 (1987). Justice White,

in his concurring opinion, joined in by the Chief Justice,

specifically stated that the Court’s opinion “should not be

taken as indicating that a majority of the Court considers

the Los Angeles International Airport to be a traditional

public forum.” Board of Airport Commissioners, 482 U.S. at

577 (White, J., concurring).

Il. AN AIRPORT’S PURPOSE IS TO PROVIDE FOR

THE SAFE AND EFFICIENT FLOW OF PAS-

SENGERS IN AIR TRANSPORTATION

Airports facilitate air travel, not the expression of

ideas. J.A. 453. As Congress stated in the Declaration of

Policy of the Airport and Airway Improvement Act of

1982, “[T]he continuation of airport and airway improve-

ment programs and more effective management of the

Nation’s airport and airway system are required to meet

the current and projected growth of aviation and the

requirements of interstate commerce, the Postal Service,

and the national defense.” 49 U.S.C. App. § 2201(a)(2).

All airport functions and services either directly or

indirectly relate to air travel. See R. Horonjeff & F.X.

McKelvey, Planning & Design of Airports, at 325-27 (3d ed.

1983) [Lodg 3-5]. The special security and congestion

3 “Lodg” followed by numerals refers to pages in the

Lodging of Amicus Curiae. The Lodging, which has been depos-

ited with the Court, contains copies of material other than

statutes, regulations and judicial opinions referred to herein.

problems of airports reflect their primary function of

providing for the safe and efficient flow of passengers in

air transportation. J.A. 456, 459. Airport financing also

reflects the air transportation purpose of airports by plac-

ing the cost of operating airports on the users of airports,

not on the general public. J.A. 454.

A. Unique Security Concerns And Security Mea-

sures Reflect Airports’ Purpose Of Facilitating

Safe Air Transportation And Distinguish Air-

ports From Traditional Public Fora

Security concerns and security measures at airports

underscore airports’ sole purpose of facilitating the safe

and efficient transportation of air travelers and goods,

and not the expression of ideas. The federal government

requires screening of airport patrons and their luggage,

so as to facilitate safe air travel.

The notorious history of skyjacking and other forms

of terrorism at airports has resulted in the adoption of

pervasive security precautions. J.A. 454. Federal law man-

dates these security precautions, which are taken at few

other public locations.4 Federal regulations require the

* Other locations marked by attendant security precau-

tions have also been judicially and administratively recognized

as not available for the general exercise of free speech rights:

an Air Force base, Brown v. Palmer, 915 F.2d 1435 (10th Cir.

1990) aff'd on rehearing en banc, 944 F.2d 732 (1991); Internal

Revenue Service offices, United States v. Burton, 888 F.2d 682

(10th Cir. 1989); and a federal post office and courthouse

building, United States v. Bader, 698 F.2d 553 (1st Cir. 1983). See

(Continued on following page)

screening of all airport patrons and the items they are

carrying when they enter “sterile” security areas —

regardless of whether probable cause exists to believe

that any such individual is carrying a weapon. 14 C.F.R.

107.1, 107.3, 108.5, 108.7, 108.9.

While these screening or security checkpoints are

typically set up as airport patrons enter concourses lead-

ing to aircraft gates, some airports set up the sterile areas

immediately after the airline ticket counters; in such facil-

ities, aside from ticket areas, unscreened individuals may

not enter the terminal. The sterile area could even be

established - at the airport’s option, subject only to the

approval of the FAA Director of Civil Aviation Security —

at the entrance to the airport terminal, thus requiring the

screening of anyone seeking access to the terminal.

Airports could, if they chose, restrict access to their

facilities so that only ticketed passengers or employees

could obtain entry to the terminal, or even to the airport

itself. In fact, in 1990-91 during Operation Desert Storm,

the Federal Aviation Administration, exercising its emer-

gency powers under 14 C.FR. 107.11(f), required airports

to limit access to the sterile areas to such ticketed pas-

sengers or employees. These stringent requirements were

in effect for more than four months, extending even after

the military operation was over. In airports where the

(Continued from previous page)

also 41 C.F.R. 101-20.308 and 101-20.309 which prohibit solicit-

ing alms and distributing flyers in property under the charge

and control of the General Services Administration, as well as

39 C.F.R. 232.1(h)(1), prohibiting soliciting alms and contribu-

tions on Postal Service premises.

sterile area began immediately after the ticket counters,

this federally mandated restriction effectively banned

everyone but ticket holders and employees from virtually

the entire airport terminal. Moreover, even in the absence

of a military emergency, the general public is subjected to

searches and other security restrictions, see 14 C.F.R.

107.1, 107.3, 108.5, 108.7 and 108.9, which would never

pass constitutional muster if carried out in a park or ona

city street.°

Such wholesale screening, without probable cause,

would not be permitted in a traditional public forum,

such as a village square or a city street. See. ¢.g., Terry v.

Ohio, 392 U.S. 1 (1968) (pedestrian on public street may

not be searched for weapons unless officer reasonably

believes that he or others are at risk of harm). That the

federal government requires screening at airports under-

scores the fact that airports differ from such public fora;

the government action recognizes that the function of

> The fact that airports do not routinely choose to restrict

access to their facilities to passengers and employees does not

dilute the significance of the fact that they could do so. See

Kokinda, 110 S. Ct. at 3121: “In Greer we held that the power of

the Fort’s commanding officer summarily to exclude civilians

from the area of his command demonstrated that ‘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... historically and constitutionally false.’ ” (quoting Greer v

Spock, 424 U.S. 828, 838 (1976)).

10

airports is to provide for the safe and efficient flow of

passengers in air transportation, not to provide a forum

for the expression of ideas.

B. Special Problems Of Congestion Reflect Air-

ports’ Purpose Of Facilitating Efficient Air

Transportation And Distinguish Airports From

Traditional Public Fora

Congestion at major airports is bad and getting

worse. J.A. 456. According to the Congressional Budget

Office,

Crowding has thus emerged as the major air-

ports’ number-one problem, and the FAA antici-

pates a worsening of airport congestion in

coming years.

Congressional Budget Office, Financing U.S. Airports in

the 1980's, at xix (1984) [Lodg 21]. A senior research

advisor of the Transportation Research Board (“TRB”) has

observed that “[s]ome airports are exceeding capacity

almost on a daily basis.” Lemer, Airport Landside Capacity:

A Growing Concern, TR News, May-June 1986, at 2 [Lodg

14).

One factor which has contributed to congestion in

airport terminals is the use of larger aircraft to conduct

aircraft operations. “Between 1972 and 1988, there was a

78% increase in the average number of passengers per

aircraft operation nationwide, and a 60% increase at large

hub airports.” U.S. Department of Transportation,

National Plan of Integrated Airport Systems 1990-1999

(1991), at p. 14 [Lodg 33]. Asa result, even airports which

11

have not experienced an increase in the number of flights

have suffered increased congestion in the terminals.

The unique pedestrian congestion problems are

symptomatic of airports’ singular purpose of facilitating

the transportation of air travelers and goods. At an air-

port, unlike in a street or a park, a pedestrian delay of

minutes or even seconds can cause a loss of hours in

travel time because of a missed plane. J.A. 455. The

design and operation of individual airports is intended to

facilitate the efficient flow of hundreds of millions of

people to and from tightly scheduled airline flights

within a national air transportation network, not to pro-

vide places for people to congregate and express ideas.

J.A. 455.

C. Airports Are Run By Governmental Entities In

Their Role As Proprietors, Not Regulators, As

Evidenced By The Nature Of Their Business

And ‘their Financing.

1. Airport Financing Emphasizes The Air

Transportation Purpose Of Airports

In accordance with the public policy of making users

pay for transportation facilities, airports are generally

financed by user fees, not by general tax funds. The

source of revenue for most capital projects at airports,

including their terminals, streets and sidewalks, is reve-

nue bond financing, backed up by the airport users, who

pay rentals, fees and other charges. On the other hand,

general revenue bonds backed up by general tax funds

finance streets and parks. Similarly, user fees, not general

12

revenues, pay for the operation and maintenance of air-

port facilities, again, in contrast to streets and parks. J.A.

454. These characteristics further distinguish airports

from streets and parks and illustrate that airports are

special purpose facilities which do not function as places

for expressive activity. In this vein, Congress recently

authorized airport operators to impose, at their option, a

local “passenger facility charge, of up to $3 per enplaned

passenger, to be used for capital projects to improve

capacity, safety, security and noise mitigation.” Aviation

Safety and Capacity Expansion Act of 1990, § 9110, 49

U.S.C. App. 1513(e).

In a 1985 report to Congress, the Secretary of Trans-

portation said that virtually all airport funding comes

from airport-user sources. Department of Transportation,

National Plan of Integrated Airport Systems 1984-1993, at

16 (1985) [Lodg 11]. The Port Authority’s airports are

typical of most major airports in the United States in that

they are, in fact, financially self-supporting. At such air-

ports, operating costs must be satisfied with revenues

generated from travel related user fees. 49 U.S.C. App.

§ 2210(a)(9) (1988) and Supp. II (1990).

Even that portion of airport capital funding provided

by the federal government does not come from general

revenues, but is derived from excise taxes on airline

tickets, air waybills, aircraft tires and aircraft fuel. 26

U.S.C. §§ 4041, 4261-62, 4271-72, 9502(b) (1988); 49 U.S.C.

App. § 2210(a)(9) (1988) and Supp. II (1990).

The Airport and Airway Improvement Act of 1982,

Pub. L. No. 97-248, Title V, 96 Stat. 671, as amended,

requires airports which accept federal aid (which

13

includes all major air carrier airports) to “maintain a fee

and rental structure for the facilities and services being

provided to the airport users which will make the airport

as self-sustaining as possible under the circumstances

existing at that particular airport, taking into account

such factors as the volume of traffic and economy of

collection. ...” 49 U.S.C. App. § 2210(a)(9) and Supp. II

(1990).

Thus, airports are under the same type of Congres-

sional directive as the U.S. Postal Service, as noted by this

Court in Kokinda. “Congress has directed the Service to

become a self-sustaining service industry... . ” Kokinda,

110 S. Ct. at 3122.

2. Local Governmental Entities Operate Air-

ports Strictly To Facilitate Efficient Air

Transportation

“The Government, even when acting in its propri-

etary capacity, does not enjoy absolute freedom from First

Amendment constraints, as does a private business, but

its action is valid in these circumstances unless it is

unreasonable, or, as was said in Lehman, ‘arbitrary, capri-

cious, or invidious.’ ” Kokinda, 110 S. Ct. at 3119 (quoting

Lehman v. City of Shaker Heights, 418 U.S. 298, 303).

While acting as an airport proprietor, local govern-

ments are constrained by the Congressional directive that

the purpose of airports is to provide for the safe and

efficient flow of travelers and goods in air commerce. See,

e.g., The Airport and Airway Improvement Act of 1982,

Sections 505(a), “[i]n order to maintain a safe and efficient

nationwide system of public-use airports to meet the present

14

and future needs of civil aeronautics, the Secretary is

authorized to make grants from the Trust Fund for air-

port development and airport planning ... ” and

504(a)(1), requiring the Secretary of Transportation to

publish a plan which “shail include the type and esti-

mated cost of eligible airport development considered by

the Secretary to be necessary to provide a safe, efficient, and

integrated system of public-use airports to anticipate and

meet the needs of civil aeronautics, to meet requirements

in support of the national defense as determined by the

Secretary of Defense, and to meet identified needs of the

Postal Service.” 49 U.S.C. App. §§ 2204(a) and 2203(a)

(emphasis added).

This purpose is germane to the issue before the

Court. “Consideration of a forum’s special attributes is

relevant to the constitutionality of a regulation, since the

significance of the governmental interest must be

assessed in light of the characteristics, nature, and func-

tion of the particular forum involved.” Heffron v. Interna-

tional Society for Krishna Consciousness, Inc., 452 U.S. 640,

650-51 (1981). In Kokinda, the purpose of the forum was

“to accomplish the most efficient and effective postal

delivery system.” Kokinda, 110 S. Ct. at 3122. In the

instant case, the purpose of the forum is to accomplish

the safe, efficient and effective movement of travelers and

goods in air commerce.

Consistent with this purpose, airports typically seek

only to provide facilities and amenities for shippers, trav-

elers, and those who assist them. The finding by the

Second Circuit and the undisputed facts in the record of

this case — that virtually everyone at the airports in

15

question was there on airport-related business — is typical

of the experience of our members across the country.

Thus, much as this Court found in Kokinda that “the

postal sidewalk was constructed solely to provide for the

passage of individuals engaged in postal business,”

Kokinda, 110 S. Ct. at 3120, airport facilities are con-

structed solely for the passage of individuals engaged in

airport business. And just as the District Court found in

Kokinda that “Postal patrons must use the sidewalk to

enter the post-office,” air travelers and those who accom-

pany them must use airport roadways, sidewalks, and

terminals to get to their planes.

3. The Fact That Airports Are Theoretically

Open To the Public Or Available For Other

Forms Of Expressive Activity Does Not

Make Them A Public Forum

Even though portions of airport facilities are open to

the public, this fact does not make such facilities public

fora. “Publicly owned or operated property does not

become a ‘public’ forum simply because members of the

public are free to come and go at will.” United States v.

Grace, 461 U.S. 171, 176 (citing Greer v. Spock, 424 U.S. 828,

836 (1976)). Although the question of whether the prop-

erty has been “generally open to the public is a factor to

consider in determining whether the government has

opened its property to the use of the people for communi-

cative purposes, it is not determinative of the question. . . .

There is little doubt that in some circumstances the gov-

ernment may ban the entry on to public property that is

not a ‘public forum’ of all persons except those who have

legitimate business on the premises. The government, ‘no

16

less than a private owner of property, has the power to

preserve the property under its control for the use to

which it is lawfully dedicated.’ ” Grace, 461 U.S. at

177-178 (quoting Adderly v. Florida, 385 U.S. 39, 47-48

(1966)).

Airports are just such facilities which could be closed

off to all except those who have legitimate business - and

as a practical matter, they are. Airports are rarely fre-

quented by people without legitimate business on the

premises, whether it is to catch a plane, help a friend or

relative who is catching a plane, deplane or meet some-

one who is deplaning. J.A. 458. In this regard, airports are

more like the Supreme Court plaza, steps and building

itself - where expensive activities are prohibited - than

the public sidewalks on the perimeter of the Court

grounds which, as this Court found in Grace, are indis-

tinguishable from any other sidewalk in the District of

Columbia. Pearson v. U.S., 581 A.2d 347 (D.C. 1990), cert.

denied, —_ U.S. __, 112 & Ct. 51 (1991).

The fact that some airports invite the general public in

for some special occasions (e.g., an airport “open house”),

does not make an airport a public forum any more than

admission of the public to the Supreme Court building

makes it a public forum or the annual airshow at an air

force base, which may attract hundreds of thousands of

spectators, makes the base a public ‘orum. Rather, proper

analysis of the factors outlined by the court in Perry must

still be done.

Petitioners argue that the fact that some First Amend-

ment expressive activity, such as campaign press confer-

ences by presidential candidates, has been conducted. on

17

airport premises requires a finding that airports have

opened themselves up as public fora. See Petitioner’s

brief at 35. This Court has rejected that notion as well.

“Whether or not the [Postal] Service permits other forms

of speech, which may or not be disruptive, it is not

unreasonable to prohibit solicitation on the ground that it

is unquestionably a particular form of speech that is

disruptive of business. Solicitation impedes the normal

flow of traffic.” Kokinda, 110 S. Ct. at 3123 (citing Heffron,

452 U.S. at 653).

4. Solicitation Is Inherently Disruptive Of

The Business Of Operating An Airport

In Kokinda, this Court agreed with the Government’s

assertion that “it is reasonable to restrict access of postal

premises to solicitation, because solicitation is inherently

disruptive of the postal service business.” Kokinda, 110 S.

Ct. at 3123. If it is disruptive of the business of providing

postal services - where people seek to mail letters and

parcels, buy stamps, and pick up mail - it is even more

disruptive of the business of providing air travel services,

where delays of a few minutes or even seconds can mean

the difference between catching a plane and missing it.

This Court has recognized the problems inherent in solic-

itation — that the person confronted “must listen, compre-

hend, decide and act in order to respond to a

solicitation,” that “[sJolicitors can achieve their goal only

by ‘stopping [passersby] momentarily or for longer

periods as money is given or exchanged for literature,’ ”

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

653), and that “sales and the collection of solicited funds

18

not only require the fairgoer to stop, but also ‘engender

additional confusion . . . because they involve acts of

exchanging articles for money, fumbling for and drop-

ping money, making change, etc.’ ” Kokinda, 110 S. Ct. at

3124 (quoting Heffron, 452 U.S. at 665 (Blackman, J., con-

curring in part and dissenting in part)). Such problems

are compounded at airports, where the people being

solicited often have luggage which must be put down as

they get out their wallets or open their purses to remove

their money. Such luggage creates a further obstruction to

the orderly flow of traffic in an airport.

This Court found that the above-quoted description

of the disruption and delay caused by solicitation “rings

of ‘commonsense,’ which is sufficient in this Court to

uphold a regulation under reasonableness review.”

Kokinda, 110 S. Ct. at 3124. Another factor recognized by

this Court as a significant disruption of the Postal Ser-

vice’s attempts to operate its facilities efficiently was that

“[blecause of a continual demand from a wide range of

groups for permission to conduct fundraising or vending

on postal premises, postal facility managers were dis-

tracted from their primary jobs by the need to expend

considerable time and energy fielding competing

demands for space and administering a program of per-

mits and approvals.” Kokinda, 110 S. Ct. at 3124. Such

demands place no less of a burden on airport directors.

For a variety of reasons, the decisions on such issues

wind up in the laps of the top officials at airports, who

have other pressing demands on their time relating

directly to operating the airport.

The Court in Kokinda was also impressed by the

experience that the Postal Service had in attempting to

19

regulate expressive activity. Airports have attempted to

ban expressive activity or, if ordered by the courts to

permit leafleting and soliciting, to restrict such activities

since they first manifested themselves at airports in the

early 1970s.

The list of cases Petitioners have appended to their

brief speaks volumes of the vigor with which airports

have uniformly tried to ban or restrict those activities at

their facilities. Rather than open themselves up to expres-

sive First Amendment activities, airports have fought

such activities in court because soliciting and leafleting

are so disruptive of airports’ purpose. As in Kokinda, it is

reasonable in the instant case to determine that such

expressive activities create significant interference with

the mandate to operate the facilities in question as effec-

tively and efficiently as possible. Kokinda, 110 S. Ct. at

3124.

Finally, Petitioners make much of the fact that few

complaints about their activities have been received at

the airports in question or at other airports. See Peti-

tioner’s brief at 11-12. It “rings of commonsense” that the

people who are most disturbed by a delay of minutes or

seconds as they rush through airports to catch their

flights are not inclined to take the time to inquire as to

how to file a complaint about being harassed or delayed,

nor to take the additional time required to actually follow

up. The fact that any complaints at all are filed under

these circumstances is rather remarkable.

20

D. Physical Separation Of Airports From The

Community Distinguishes Airports From Tra-

ditional Public Fora

Unlike streets and parks, airports do not provide

sites for assembly and debate. Instead, airports process

departing and arriving passengers to and from aircraft.

Unlike streets and parks which are integrated into the

day-to-day life of surrounding communities, airports are

physically separated from neighboring communities. The

people living near an airport do not enter it as they travel

in their neighborhood. Even airport visitors frequently do

not enter the terminal buildings when they drop off or

pick up an air passenger.

This feature of airports — separation from the commu-

nity they serve — further distinguishes airports from tra-

ditional public fora. For example, in determining whether

two military bases could prohibit leafleting, the Court

focused on the integration of the bases into the surround-

ing community. Flower v. United States, 407 U.S. 197

(1972), and Greer v. Spock, 424 U.S. 828 (1976). In Flower

this Court held that a military commander could not bar

leafleting on a street in Fort Sam Houston, Texas, where

the streets of the military base were wholly integrated

into and a part of the surrounding city of San Antonio. In

Greer, on the other hand, the Court upheld Fort Dix’s

regulations forbidding leafleting in part because Fort Dix

was not integrated into any surrounding community, and

thereby retained its character as a separate military

enclave. Greer v. Spock, 424 U.S. at 835-36.

Like the military base in Greer, and unlike the public

sidewalks in Grace, airports are not physically integrated

21

into the day-to-day life of surrounding communities.

When people enter airport grounds, they know it. This

contrasts sharply with the situation in Grace, where this

Court found that “[t]he sidewalks comprising the outer

boundaries of the Court grounds are indistinguishable

from any other sidewalks in Washington, D.C... . there is

no separation, no fence, and no indication whatever to

persons stepping from the street and the sidewalks that

serve as the perimeter of the Court that they have entered

some special sort of enclave.” Grace, 461 U.S. at 180. This

fact underscores the single purpose of an airport, air

transportation, and further distinguishes airports from

traditional public fora like streets and parks.

In fact, airports are immediately distinguishable as a

“special! type of enclave.” For one thing, virtually no one

enters an airport on foot. Because airports are typically

separated from city centers, people either arrive via mass

transit or by motor vehicle. Either way, airports are

marked. There are directional signs indicating access

routes to the airport, usually beginning several miles

away from the airport boundary. As one enters the air-

port grounds, typically there are prominent signs with

the name of the airport, as well as the now-familiar

directional signs for Arrivals, Departures, and Rental Car

Returns. As one gets closer to the terminal, there are

signs for individual airlines.

Curbsides by terminal buildings are distinctive -

with skycaps and their curbside check-in stations, cars

and vans loading and unloading passengers with their

luggage, and the plethora of hotel and rental car courtesy

vans, along with long lines of taxi cabs. Indeed, airports

22

are so distinctive that it would be implausible for some-

one not to deduce that they had entered an enclave

wholly distinct from the rest of the community, as

opposed to an area that was fully integrated into the

community.

In this regard, even more so than the sidewalks in

_ Kokinda or the streets and sidewalks on the military base

in Greer, it should be clear that even though there are

roadways, curbs and sidewalks at an airport, they are not

public fora. Rather, they are often heavily congested areas

designed for one purpose only - to facilitate the ingress

and egress of passengers and baggage and those who

accompany or assist them to and from the terminals. As

in Kokinda they are the only entryway for persons seeking

to do business at the facility in question. Thus, it is

reasonable for the airport proprietor to keep them less

congested by banning expressive activity such as solic-

iting and leafleting. Although airport roadways and side-

walks are not at issue in the instant case, it is amicus

curiae’s belief that, using the standards followed by the

court in Greer, Grace, and Kokinda, such roadways and

sidewalks are not public fora.

E. The Presence Of Captive Audiences In Air-

ports Distinguishes Airports From Traditional

Public Fora

Unlike the traditional public fora of streets and

parks, airports contain captive audiences. J.A. 458. Air-

port terminals provide the only paths that the public may

use in getting to and from airplanes. Because of space

limitations airports cannot provide alternate routes for

23

people who do not wish to be subjected to uninvited

persuasion.

As noted by Justice Douglas with regard to the

patrons of public transportation vehicles, the rights of

such captive audiences “to be free from forced intrusions

on their privacy” would be violated if they were forced to

be the object of uninvited attempts at persuasion. Lehman

v. City of Shaker Heights, 418 U.S. 298, 307 (1974) (Douglas,

J., concurring); cf. Consolidated Edison Company v. Public

Service Commission, 447 U.S. 530, 542 (1980). Inability of

airport users to avoid uninvited persuasion therefore fur-

ther distinguishes airports from traditional public fora

like streets and parks.

Ill. BECAUSE AIRPORTS ARE NOT TRADITIONAL

PUBLIC FORA, FIRST AMENDMENT ACTIVITY

MAY BE REASONABLY REGULATED TO PRE-

SERVE THE AIR TRANSPORTATION PURPOSE

OF AIRPORTS

As demonstrated above, airports have not tradi-

tionally been sites for nor do they have as a principal

purpose the expression of ideas. Airports therefore do not

constitute public fora. That airports are not public fora is

wholly consistent with the holdings of this Court that

government ownership of property does not automat-

ically open up that property to the public for First

Amendment expressive purposes. United States v. Kokinda,

11¢ S. Ct. 3115 (1990). As the Court stated in Greer v.

Spock, 424 U.S. 828 (1976):

[No principle exists] that whenever members of

the public are permitted freely to visit a place

24

owned or operated by the Government, then

that place becomes a “public forum” for pur-

poses of the First Amendment.

Greer, 424 U.S. at 836. Moreover, “[t]he 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.” Greer, 424 U.S. at 836 (quoting

Adderley v. Florida, 385 U.S. 39, 48 (1966)).

Holding airports to be public fora, on the other hand,

will unreasonably interfere with governments’ ability to

operate airports and all other government property for

the purposes for which they are intended, causing air-

ports and perhaps all other government property to

“immediately . . . become Hyde Parks open to every

would-be pamphleteer and politician.” Lehman v. City of

Shaker Heights, 418 U.S. 298, 304 (1973); see also Perry, 460

U.S. at 49 n. 9.

Petitioners would have the Court overturn the Port

Authority’s regulation banning soliciting and leafleting

because, they assert, time, place and manner restrictions

can serve to protect the Port Authority’s interests in

operating its airport facilities. Petitioners confuse the

possibility that time, place and manner restrictions might

work at airports with the view that airports must be

constrained from adopting any restrictions besides times,

place and manner restrictions. This begs the question of

forum analysis, which, this Court has held, must first be

done to determine the appropriate level of scrutiny to

apply to the airport’s regulation. If the airport is not a

public forum, then any reasonable regulation is allowed,

even if other less restrictive regulations might also be

workable. This Court has found that “the Government's

25

decision to restrict access to nonpublic forum need only

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

only reasonable limitation. In contrast to a public forum,

a finding of strict incompatibility between the nature of

the speech . . . and the functioning of the nonpublic

forum is not mandated.” Cornelius v. NAACP Defense &

Educational Fund, Inc., 472 U.S. 788, 808 (1985).

“Nor is there a requirement that the restriction be

narrowly tailored or that the Government’s interest be

compelling. The First Amendment does not demand

unrestricted access to a non-public forum merely because

use of that forum may be the most efficient means of

delivering the speaker’s message.” Cornelius, 473 U.S. at

809. Thus, following, the recent decisions of this Court,

the fact that the Petitioners find airports to be attractive

places to solicit funds and distribute literature, and the

possibility that lesser restrictions than a total ban on

soliciting and leafleting on the airport might alleviate

some of the airport’s concerns, are not relevant factors if

the Court determines, consistent with the analysis set

forth in Perry, Grace, and Kokinda, that airports are not

public fora. As operators of non-public fora, the airports

would be given latitude to exercise their proprietary

rights, as long as they are reasonable.

Airports should therefore be permitted to enact and

enforce reasonable content neutral regulations, such as

those adopted by the Port Authority, in order to safe-

guard airport premises for the air transportation purpose

to which they are dedicated.

®

26

CONCLUSION

For the reasons stated, the decision of the United

States Court of Appeals for the Second Circuit should be

(i) reversed to the extent that it invalidates the Port

Authority’s regulation of distribution of literature; and f

(ii) affirmed to the extent that it upholds the Port Author-

ity’s regulation of in-person solicitation of money. ,

i

Respectfully submitted, a

MicuaeL M. Conway*

THomas R. Devine

Bryan S. ANDERSON

Hopkins & SuTrer

Three First Nationa Plaza

RE era eS

ete, baie See stor

Suite 4300

Chicago, Illinois 60602

312/558-6600

Attorneys for Amicus Curiae

The Airports Association

Council International -

North America

Dated March 9, 1992

*Counsel of Record

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mt * a