Jews for Jesus, Inc. v. Board of Airport Com'rs of City of Los Angeles

Decision Date25 March 1986
Docket NumberNo. 85-5808,85-5808
Citation785 F.2d 791
PartiesJEWS FOR JESUS, INC., a California non-profit religious corporation and Alan Howard Snyder a.k.a. Avi Snyder, an individual, Plaintiffs/Counter-defendants/Appellees, v. The BOARD OF AIRPORT COMMISSIONERS Of the CITY OF LOS ANGELES; et al., Defendants/Counter-claimants/Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

Joel D. Covelman, Meserve, Mumper & Hughes, Los Angeles, Cal., for plaintiffs/counter-defendants/appellees.

James R. Kapel, Asst. City Atty., Los Angeles, Cal., for defendants/counter-claimants/appellants.

Appeal from the United States District Court for the Central District of California.

Before: SNEED, ANDERSON, and ALARCON, Circuit Judges.

ALARCON, Circuit Judge.

Appellants Board of Airport Commissioners and City of Los Angeles appeal the district court's summary judgment in favor of appellees Jews for Jesus, Inc. and Alan Snyder. The district court found that: (1) the Central Terminal Area at Los Angeles International Airport (the interiors of the eight passenger terminals) is a traditional public forum; and (2) Resolution 13787 which prohibits all First Amendment activities within the Central Terminal Area is unconstitutional on its face. The Board appeals primarily because it disagrees with the district court's finding that the Central Terminal Area is a public forum. We affirm.

I. BACKGROUND

Plaintiffs and appellees (hereinafter Jews for Jesus) are Jews for Jesus, Inc., a non-profit religious corporation, and Alan Howard Snyder, a minister of the Gospel for Jews for Jesus. The defendants and appellants (hereinafter the Board) are the City of Los Angeles and the Board of Airport Commissioners of the City of Los Angeles, as individuals and as operator of Los Angeles International Airport (hereinafter LAX). The Board, pursuant to City of Los Angeles Charter Sec. 238.4, manages and controls all airports owned by the City of Los Angeles including LAX.

On July 13, 1983, the Board adopted Resolution No. 13787 (hereinafter the Resolution) which states in part:

NOW, THEREFORE BE IT RESOLVED by the Board of Airport Commissioners that the Central Terminal Area at Los Angeles International Airport is not open for First Amendment activities by any individual and/or entity;

....

BE IT FURTHER RESOLVED that if any individual or entity engages in First Amendment activities within the Central Terminal Area at Los Angeles International Airport, the City Attorney of the City of Los Angeles is directed to institute appropriate litigation against such individual and/or entity to ensure compliance with this Policy statement of the Board of Airport Commissioners....

On July 6, 1984, Snyder was distributing free religious literature on a pedestrian walkway in the Central Terminal Area (hereinafter CTA) at LAX when he was approached by a uniformed Department of Airports peace officer. The officer showed Snyder a copy of the Resolution, explained that Snyder was violating the Resolution, and asked Snyder to leave. The officer warned Snyder that if he refused to leave the City would take legal action against him. Snyder stopped distributing the leaflets and immediately left the airport terminal.

On July 17, 1984, Jews for Jesus filed suit in district court seeking a declaration of their rights to distribute religious literature in public areas in the CTA. Jews for Jesus challenged the constitutionality of the Resolution under both the Federal and California Constitutions on three grounds: (1) that it is unconstitutional on its face because it totally bans First Amendment activities in a public forum; (2) that the Resolution is unconstitutional as applied to plaintiffs because it has only been used to ban certain kinds of communicative conduct such as leafletting by Jews for Jesus; and (3) that it is unconstitutionally vague and overbroad because the term "First Amendment activities" does not give guidance to officials or the public as to what activity is prohibited.

The matter came before the district court for trial on January 6, 1985. Counsel for all parties orally stipulated to the facts and the district court treated the trial briefs as cross-motions for summary judgment without objection from the parties. The district court ruled that the CTA is a traditional public forum, declared the total ban on First Amendment activities unconstitutional on its face, and declined to reach the other issues raised by Jews for Jesus.

II. STANDARD OF REVIEW

Because the parties stipulated to the facts below, there are no factual issues on appeal. This court reviews de novo the district court's application of the law to the facts on free speech questions. Carreras v. City of Anaheim, 768 F.2d 1039, 1042 n. 2 (9th Cir.1985).

III. DISCUSSION

The United States Supreme Court recently enunciated the proper analysis for a First Amendment issue. First, the court must decide whether the challenged activity or speech is protected by the First Amendment, for, if it is not, the court need go no further. Cornelius v. NAACP Legal Defense & Educational Fund, Inc., --- U.S. ----, 105 S.Ct. 3439, 3446, 87 L.Ed.2d 567 (1985). If the speech is protected, the court must identify the nature of the forum, because the extent to which the government may limit access depends on whether the forum is public or nonpublic. Cornelius, 105 S.Ct. at 3446-47. Finally, the court must assess whether the justifications for exclusion from the relevant forum satisfy the requisite standard. Cornelius, 105 S.Ct. at 3447.

The Board does not dispute that distribution of literature is a form of communication protected by the First Amendment. United States v. Grace, 461 U.S. 171, 176, 103 S.Ct. 1702, 1706, 75 L.Ed.2d 736 (1983); Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938); Rosen v. Port of Portland, 641 F.2d 1243, 1245 (9th Cir.1981). Both parties agree that the determinative legal issue in this case is whether the CTA is a public forum. That determination will provide the standard we must apply when reviewing the constitutionality of the Resolution.

Jews for Jesus argue that the central terminal areas in airports are traditional public forums open to free expression. The Board asserts that a traditional public forum analysis is inapplicable because the CTA at LAX is a nonpublic area which has not been opened to First Amendment expression by the Board. The Board contends that it has operated the terminal facilities solely for airport-related purposes and has neither created a forum for expressive purposes nor opened the area for the debate of issues of public interest unrelated to the airport's intended uses. The Board's reliance on recent Supreme Court decisions in Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983), and Cornelius, 105 S.Ct. 3439 is misplaced. These cases do not concern the determination of traditional public forums. They address the separate and distinct issue whether governmental facilities that are not traditional public forums have been opened for First Amendment activities. See Perry Education Association, 460 U.S. at 46, 103 S.Ct. at 955 (interschool mail system is not a traditional public forum); Cornelius, 105 S.Ct. at 3450 (the Combined Federal Public Campaign literature is not a traditional public forum).

The Supreme Court recently described traditional public forums as "those places which 'by long tradition or by government fiat have been devoted to assembly and debate.' " Cornelius, 105 S.Ct. at 3449, quoting Perry Education Association, 460 U.S. at 45, 103 S.Ct. at 954. "Public streets and parks fall into this category." Cornelius, 105 S.Ct. at 3449. A principal purpose of traditional public forums is the free exchange of ideas. Cornelius, 105 S.Ct. at 3448. "In such places, the government's ability to permissibly restrict expressive conduct is very limited: the government may enforce reasonable time, place, and manner regulations as long as the restrictions 'are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.' " Grace, 461 U.S. at 177, 103 S.Ct. at 1706, quoting Perry Education Association, 460 U.S. at 45, 103 S.Ct. at 954. "Additional restrictions such as an absolute prohibition on a particular type of expression will be upheld only if narrowly drawn to accomplish a compelling governmental interest." Grace, 461 U.S. at 177, 103 S.Ct. at 1706.

This court, like a number of other circuits, has addressed the First Amendment forum issue in the context of airport terminals and concluded that airport terminal buildings are public forums open to First Amendment activity. In Rosen v. Port of Portland, 641 F.2d 1243 (9th Cir.1981), the chairman of Jews for Jesus challenged an ordinance and implementing regulations enacted by the Port of Portland that required those persons seeking to "exercise ... the fundamental constitutional right of free expression" at the Portland International Airport terminal to register in advance and identify their sponsor. Id. at 1245 & n. 2. The district court upheld the ordinance and we reversed. We observed in Rosen that "[t]he first amendment is to be given full effect in the public areas of airport terminal buildings," id. at 1245, and held both the advance notice and the identification provisions of the ordinance unconstitutional. Id. at 1252.

In Rosen we relied on our earlier ruling in Kuszynski v. City of Oakland, 479 F.2d 1130 (9th Cir.1973), and cited with approval a Seventh Circuit decision, Chicago Area Military Project v. City of Chicago, 508 F.2d 921 (7th Cir.), cert. denied, 421 U.S. 992, 95 S.Ct. 1999, 44 L.Ed.2d 483 (1975) (hereinafter CAMP ). The ordinance challenged in Kuszynski provided that "[t]he use of the [Oakland] Airport for the purpose of exercising the right of free...

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