505 U.S. 672 (1992), 91-155, International Society For Krishna Consciousness, Inc. v. Lee

Docket Nº:91-155, 91-339.
Citation:505 U.S. 672, 112 S.Ct. 2711, 120 L.Ed.2d 541
Party Name:INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS, INC., and Brian Rumbaugh, Petitioners, v. Walter LEE. Walter LEE, Superintendent of Port Authority Police v. INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS, INC., et al.
Attorney:Barry A. Fisher argued the cause for petitioners. With him on the briefs were David Grosz, Robert C. Moest, David M. Liberman, Jay Alan Sekulow, and Jeremiah S. Gutman. Arthur P. Berg argued the cause for respondent. With him on the brief were Philip Maurer, Arnold D. Kolikoff, and Milton H. Pach...
Judge Panel:Justice O'CONNOR, concurring. Justice KENNEDY, with whom Justice BLACKMUN, Justice STEVENS, and Justice SOUTER join.
Case Date:June 26, 1992
Court:United States Supreme Court
 
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505 U.S. 672 (1992)

112 S.Ct. 2711, 120 L.Ed.2d 541

INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS, INC., and Brian Rumbaugh, Petitioners,

v.

Walter LEE.

Walter LEE, Superintendent of Port Authority Police

v.

INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS, INC., et al.

Nos. 91-155, 91-339.

United States Supreme Court.

June 26, 1992

On Writs of Certiorari to the United States Court of Appeals for the Second Circuit.

COUNSEL

Barry A. Fisher argued the cause for petitioners. With him on the briefs were David Grosz, Robert C. Moest, David M. Liberman, Jay Alan Sekulow, and Jeremiah S. Gutman.

Arthur P. Berg argued the cause for respondent. With him on the brief were Philip Maurer, Arnold D. Kolikoff, and Milton H. Pachter.

OPINION

For majority opinions of the Court, see 505 U.S. 672, 112 S.Ct. 2701; 505 U.S. 830, 112 S.Ct. 2709.

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Justice O'CONNOR, concurring in No. 91-155 and concurring in the judgment in No. 91-339.

In the decision below, the Court of Appeals upheld a ban on solicitation of funds within the airport terminals operated by the Port Authority of New York and New Jersey, but struck down a ban on the repetitive distribution of printed

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or written material within the terminals. 925 F.2d 576 (CA2 1991). I would affirm both parts of that judgment.

I concur in the Court's opinion in No. 91-155, and agree that publicly owned airports are not public fora. Unlike public streets and parks, both of which our First Amendment jurisprudence has identified as "traditional public fora," airports do not count among their purposes the "free exchange of ideas," Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 800, 105 S.Ct. 3439, 3448, 87 L.Ed.2d 567 (1985); they have not "by long tradition or by government fiat ... been devoted to assembly and debate," Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983); nor have they "time out of mind, ... been used for purposes of ... communicating thoughts between citizens, and discussing public questions," Hague v. Committee for Industrial Organization, 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939). Although most airports do not ordinarily restrict public access, "[p]ublicly owned or operated property does not become a 'public forum' simply because members of the public are permitted to come and go at will." United States v. Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 1707, 75 L.Ed.2d 736 (1983); see also Greer v. Spock, 424 U.S. 828, 836, 96 S.Ct. 1211, 1216, 47 L.Ed.2d 505 (1976). "[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." Perry, supra, 460 U.S. at 53, 103 S.Ct., at 959. There is little doubt that airports are among those publicly owned facilities that could be closed to all except those who have legitimate business there. See Grace, supra, 461 U.S. at 178, 103 S.Ct., at 1707. Public access to airports is thus not "inherent in the open nature of the locations," as it is for most streets and parks, but is rather a "matter of grace by government officials." United States v. Kokinda, 497 U.S. 720, 743, 110 S.Ct. 3115, 3128, 111 L.Ed.2d 571 (1990) (Brennan, J., dissenting). I also agree with the Court that the Port Authority has not expressly opened its airports to the types of expression at issue here, see 112 S.Ct., at 2706, and therefore has not created a "limited" or "designated" public forum relevant to this case.

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For these reasons, the Port Authority's restrictions on solicitation and leafletting within the airport terminals do not qualify for the strict scrutiny that applies to restriction [112 S.Ct. 2712] of speech in public fora. That airports are not public fora, however, does not mean that the government can restrict speech in whatever way it likes. "The Government, even when acting in its proprietary capacity, does not enjoy absolute freedom from First Amendment constraints." Kokinda, supra, at 725, 110 S.Ct., at 3119 (plurality opinion). For example, in Board of Airport Comm'rs of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 107 S.Ct. 2568, 96 L.Ed.2d 500 (1987), we unanimously struck down a regulation that prohibited "all First Amendment activities" in the Los Angeles International Airport (LAX) without even reaching the question whether airports were public fora. Id., at 574-575, 107 S.Ct., at 2572. We found it "obvious that such a ban cannot be justified even if LAX were a nonpublic forum because no conceivable governmental interest would justify such an absolute prohibition of speech." Id., at 575, 107 S.Ct., at 2572. Moreover, we have consistently stated that restrictions on speech in nonpublic fora are valid only if they are "reasonable" and "not an effort to suppress expression merely because public officials oppose the speaker's view." Perry, supra, 460 U.S., at 46, 103 S.Ct., at 955; see also Kokinda, supra, 497 U.S. at 731, 110 S.Ct., at 3122; Cornelius, supra, 473 U.S. at 800, 105 S.Ct., at 3448; Lehman v. Shaker Heights, 418 U.S. 298, 303, 94 S.Ct. 2714, 2717, 41 L.Ed.2d 770 (1974). The determination that airports are not public fora thus only begins our inquiry.

"The reasonableness of the Government's restriction [on speech in a nonpublic forum] must be assessed in light of the purpose of the forum and all the surrounding circumstances." Cornelius, supra, 473 U.S. at 809, 105 S.Ct., at 3453. " '[C]onsideration 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 characteristic nature and function of the particular forum involved.' " Kokinda, supra, 497 U.S. at 732, 110 S.Ct., at 3122, quoting Heffron v. International Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 650-651, 101 S.Ct. 2559, 2566, 69 L.Ed.2d 298 (1981).

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In this case, the "special attributes" and "surrounding circumstances" of the airports operated by the Port Authority are determinative. Not only has the Port Authority chosen not to limit access to the airports under its control, it has created a huge complex open to travelers and nontravelers alike. The airports house restaurants, cafeterias, snack bars, coffee shops, cocktail lounges, post offices, banks, telegraph offices, clothing shops, drug stores, food stores, nurseries, barber shops, currency exchanges, art exhibits, commercial advertising displays, bookstores, newsstands, dental offices, and private clubs. See App. 183-185 (Newark); id., at 185-186 (JFK); id., at 190-192 (La Guardia). The International Arrivals Building at JFK Airport even has two branches of Bloomingdale's. Id., at 185-186.

We have said that a restriction on speech in a nonpublic forum is "reasonable" when it is "consistent with the [government's] legitimate interest in 'preserv[ing] the property ... for the use to which it is lawfully dedicated.' " Perry, supra, 460 U.S. at 50-51, 103 S.Ct., at 958, quoting Postal Service v. Council of Greenburgh Civic Assns., 453 U.S. 114, 129-130, 101 S.Ct. 2676, 2685, 69 L.Ed.2d 517 (1981) (internal quotation marks omitted). Ordinarily, this inquiry is relatively straightforward, because we have almost always been confronted with cases where the fora at issue were discrete, single-purpose facilities. See, e.g., Kokinda, supra (dedicated sidewalk between parking lot and post office); Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985) (literature for charity drive); City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984) (utility poles); Perry, supra (interschool mail system); Postal Service v. Council of Greenburgh Civic Assns., supra (household mail boxes); Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966) [112 S.Ct. 2713] (curtilage of jailhouse). The Port Authority urges that this case is no different and contends that it, too, has dedicated its airports to a single purpose--facilitating air travel--and that the speech it seeks to prohibit is not consistent with that purpose. But the wide range of activities promoted by the

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Port Authority is no more directly related to facilitating air travel than are the types of activities in which the International Society for Krishna Consciousness, Inc. (ISKCON), wishes to engage. See Jews for Jesus, supra, 482 U.S. at 576, 107 S.Ct., at 2573 ("The line between airport-related speech and nonairport-related speech is, at best, murky"). In my view, the Port Authority is operating a shopping mall as well as an airport. The reasonableness inquiry, therefore, is not whether the restrictions on speech are "consistent with ... preserving the property" for air travel, Perry, supra, 460 U.S. at 50-51, 103 S.Ct., at 958 (internal quotation marks and citation omitted), but whether they are reasonably related to maintaining the multipurpose environment that the Port Authority has deliberately created.

Applying that standard, I agree with the Court in No. 91-155 that the ban on solicitation is reasonable. Face-to-face solicitation is incompatible with the airport's functioning in a way that the other, permitted activities are not. We have previously observed that "[s]olicitation impedes the normal flow of traffic [because it] 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...

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