International Society For Krishna Consciousness, Inc v. Lee

• Decision Date: 26 June 1992
• Docket Number: No. 91-155,91-155
• Citation: 120 L.Ed.2d 541,505 U.S. 672,112 S.Ct. 2701
• Parties: INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS, INC., and Brian Rumbaugh, Petitioners, v. Walter LEE
• Court: U.S. Supreme Court

505 U.S. 672

112 S.Ct. 2701

120 L.Ed.2d 541

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

v. Walter LEE.

No. 91-155.

Argued March 25, 1992.

Decided June 26, 1992

Syllabus ^*

The Port Authority of New York and New Jersey, which owns and operates three major airports in the New York City area and controls certain terminal areas at the airports (hereinafter terminals), adopted a regulation forbidding, inter alia, the repetitive solicitation of money within the terminals. However, solicitation is permitted on the sidewalks outside the terminal buildings. Petitioner International Society for Krishna Consciousness, Inc., a not-for-profit religious corporation whose members, among other things, solicit funds in public places to support their movement, brought suit seeking declaratory and injunctive relief under 42 U.S.C. § 1983, alleging that the regulation deprived them of their First Amendment rights. The District Court granted petitioner summary judgment, concluding that the terminals were public fora, and that the regulation banning solicitation failed because it was not narrowly tailored to support a compelling state interest. The Court of Appeals reversed as here relevant. It determined that the terminals are not public fora, and found that the ban on solicitation was reasonable.

Held:

1. An airport terminal operated by a public authority is a non-public forum, and thus a ban on solicitation need only satisfy a reasonableness standard. Pp. ____.

(a) The extent to which the Port Authority can restrict expressive activity on its property depends on the nature of the forum. Regulation of traditional public fora or designated public fora survives only if it is narrowly drawn to achieve a compelling state interest, but limitations on expressive activity conducted on any other government-owned property need only be reasonable to survive. Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45, 46, 103 S.Ct. 948, 955, 955, 74 L.Ed.2d 794. Pp. ____.

(b) Neither by tradition nor purpose can the terminals be described as public fora. Airports have not historically been made available for speech activity. Given the lateness with which the modern air terminal has made its appearance, it hardly qualifies as a property that has "immemorially . . . time out of mind" been held in the public trust and used for the purposes of expressive activity. See Hague v. Committee for Industrial Organization, 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423. Nor have airport operators opened terminals to such activities, see Cornelius v. NAACP Legal Defense and Educational Fund, 473 U.S. 788, 802, 105 S.Ct. 3439, 3449, 87 L.Ed.2d 567, as evidenced by the operators' frequent and continuing litigation in this area. Pp. ____.

(c) That speech activities may have historically occurred at "transportation nodes" such as rail and bus stations, wharves, and Ellis Island is not relevant. Many of these sites traditionally have had private ownership. In addition, equating airports with other transportation centers would not take into account differences among the various facilities that may affect the extent to which such facilities can accommodate expressive activity. It is unsurprising to find differences among the facilities. The Port Authority, other airport builders and managers, and the Federal Government all share the view that terminals are dedicated to the facilitation of efficient air travel, not the solicitation of contributions. Pp. ____.

2. The Port Authority's ban on solicitation is reasonable. Solicitation may have a disruptive effect on business by slowing the path of both those who must decide whether to contribute and those who must alter their paths to avoid the solicitation. In addition, a solicitor may cause duress by targeting the most vulnerable persons or commit fraud by concealing his affiliation or shortchanging purchasers. The fact that the targets are likely to be on a tight schedule, and thus are unlikely to stop and complain to authorities, compounds the problem. The Port Authority has determined that it can best achieve its legitimate interest in monitoring solicitation activity to assure that travelers are not interfered with unduly by limiting solicitation to the sidewalk areas outside the terminals. That area is frequented by an overwhelming percentage of airport users, making petitioner's access to the general public quite complete. Moreover, it would be odd to conclude that the regulation is unreasonable when the Port Authority has otherwise assured access to a universally travelled area. While the inconvenience caused by petitioner may seem small, the Port Authority could reasonably worry that the incremental effects of having one group and then another seek such access could prove quite disruptive. Pp. ____.

925 F.2d 576 (CA2 1991), affirmed in part.

REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, O'CONNOR, SCALIA, and THOMAS, JJ., joined. O'CONNOR, J., filed a concurring opinion. KENNEDY, J., filed an opinion concurring in the judgment, in Part I of which BLACKMUN, STEVENS, and SOUTER, JJ., joined. SOUTER, J., filed a dissenting opinion, in which BLACKMUN and STEVENS, JJ., joined.

Barry A. Fisher, Los Angeles, Cal., for petitioners/cross respondents.

Arthur P. Berg, New York City, for respondent/cross petitioner.

Chief Justice REHNQUIST delivered the opinion of the Court.

In this case we consider whether an airport terminal operated by a public authority is a public forum and whether a regulation prohibiting solicitation in the interior of an airport terminal violates the First Amendment.

The relevant facts in this case are not in dispute. Petitioner International Society for Krishna Consciousness, Inc. (ISKCON) is a not-for-profit religious corporation whose members perform a ritual known as sankirtan. The ritual consists of " 'going into public places, disseminating religious literature and soliciting funds to support the religion.' " 925 F.2d 576, 577 (CA2 1991). The primary purpose of this ritual is raising funds for the movement. Ibid.

Respondent Walter Lee, now deceased, was the police superintendent of the Port Authority of New York and New Jersey and was charged with enforcing the regulation at issue. The Port Authority owns and operates three major airports in the greater New York City area: John F. Kennedy International Airport (Kennedy), La Guardia Airport (La Guardia), and Newark International Airport (Newark). The three airports collectively form one of the world's busiest metropolitan airport complexes. They serve approximately 8% of this country's domestic airline market and more than 50% of the trans-Atlantic market. By decade's end they are expected to serve at least 110 million passengers annually. Id., at 578.

The airports are funded by user fees and operated to make a regulated profit. Id., at 581. Most space at the three airports is leased to commercial airlines, which bear primary responsibility for the leasehold. The Port Authority retains control over unleased portions, including La Guardia's Central Terminal Building, portions of Kennedy's International Arrivals Building, and Newark's North Terminal Building (we refer to these areas collectively as the "terminals"). The terminals are generally accessible to the general public and contain various commercial establishments such as restaurants, snack stands, bars, newsstands, and stores of various types. Id., at 578. Virtually all who visit the terminals do so for purposes related to air travel. These visitors principally include passengers, those meeting or seeing off passengers, flight crews, and terminal employees. Ibid.

The Port Authority has adopted a regulation forbidding within the terminals the repetitive solicitation of money or distribution of literature. The regulation states:

"1. The following conduct is prohibited within the interior areas of buildings or structures at an air terminal if conducted by a person to or with passers-by in a continuous or repetitive manner:

"(a) The sale or distribution of any merchandise, including but not limited to jewelry, food stuffs, candles, flowers, badges and clothing.

"(b) The sale or distribution of flyers, brochures, pamphlets, books or any other printed or written material.

"(c) Solicitation and receipt of funds." Id., at 578-579.

The regulation governs only the terminals; the Port Authority permits solicitation and distribution on the sidewalks outside the terminal buildings. The regulation effectively prohibits petitioner from performing sankirtan in the terminals. As a result, petitioner brought suit seeking declaratory and injunctive relief under 42 U.S.C. § 1983, alleging that the regulation worked to deprive them of rights guaranteed under the First Amendment.¹ The District Court analyzed the claim under the "traditional public forum" doctrine. It concluded that the terminals were akin to public streets, 721 F.Supp. 572, 577 (SDNY 1989), the quintessential traditional public fora. This conclusion in turn meant that the Port Authority's terminal regulation could be sustained only if it was narrowly tailored to support a compelling state interest. Id., at 579. In the absence of any argument that the blanket prohibition constituted such narrow tailoring, the District Court granted petitioner summary judgment. Ibid.

The Court of Appeals affirmed in part and reversed in part. 925 F.2d 576 (1991). Relying on our recent decision in United States v. Kokinda, 497 U.S. 720, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990), a divided panel concluded that the terminals are not public fora. As a result, the restrictions were required only to satisfy a standard of reasonableness. The Court of Appeals then concluded that, presented with the issue, this Court would find that the ban on solicitation was reasonable, but the ban on distribution was not. Petitioner sought certiorari respecting the...