International Soc. for Krishna Consciousness, Inc. v. Lee

• Citation: 925 F.2d 576
• Decision Date: 25 April 1991
• Docket Number: No. 1082,D,1082
• Parties: , 18 Media L. Rep. 1921 INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS, INC. and John Winslow, on behalf of themselves and all International Society for Krishna Consciousness members, Plaintiffs-Appellees, v. Walter LEE, Superintendent of Port Authority Police, Defendant-Appellant. ocket 89-9182.
• Court: U.S. Court of Appeals — Second Circuit

Page 576

925 F.2d 576

59 USLW 2498, 18 Media L. Rep. 1921

INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS, INC. and

John Winslow, on behalf of themselves and all

International Society for Krishna

Consciousness members, Plaintiffs-Appellees, v. Walter LEE, Superintendent of Port Authority Police,

Defendant-Appellant.

No. 1082, Docket 89-9182.

United States Court of Appeals, Second Circuit.

Argued March 27, 1990.

Decided Feb. 8, 1991.

Rehearing and Rehearing In Banc

Denied April 25, 1991.

Arthur P. Berg, New York City (Joseph Lesser, Philip A. Maurer, Arnold D. Kolikoff, New York, New York, of counsel), for defendant-appellant.

Barry A. Fisher, Los Angeles, Cal. (David Grosz, Robert C. Moest, Fleishman, Fisher & Moest, David M. Liberman, Los Angeles, Cal.; Jeremiah S. Gutman, Eugene N. Harley, Levy, Gutman, Goldberg & Kaplan, New York City, of counsel), for plaintiffs-appellees.

Arthur Eisenberg, Michael Simon, New York City, for amicus curiae New York Civil Liberties Union.

Before OAKES, Chief Judge, and WINTER and MINER, Circuit Judges.

WINTER, Circuit Judge:

Appellant Walter Lee, now deceased, was the official responsible for enforcing a regulation of the Port Authority of New York and New Jersey, the party controlling the defense in the instant matter, ¹ banning the solicitation of money and distribution of literature within the terminals of three New York area airports. The district court struck down the regulation on the grounds that "the terminals ... possess the characteristics of a bustling metropolitan boulevard" and are traditional public fora for expressive activity. After the district court's decision, the Supreme Court decided United States v. Kokinda, --- U.S. ----, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990), which we believe dictates reversal insofar as the district court invalidated the Port Authority's ban on the in-person solicitation of funds but affirmance insofar as it invalidated the Port Authority's ban on the distribution of literature.

BACKGROUND

This action for declaratory and injunctive relief under 42 U.S.C. Sec. 1983 began in 1975. After several detours described in the district court opinion, see International Society for Krishna Consciousness, Inc. v. Lee, 721 F.Supp. 572, 573-74 (S.D.N.Y.1989), that court entered summary judgment in favor of the International Society for Krishna Consciousness, Inc. ("ISKCON").

The essential facts are not contested. 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." While the distribution or sale of religious literature is a major part of the ritual, its primary purpose appears to be fundraising. ISKCON states, for example, that donations received through sankirtan, "including those received for religious literature, not only defray printing and other distribution costs The Port Authority was created by an interstate compact between New York and New Jersey. It owns or operates some thirty-three facilities within the Port District. Among these are the three airport terminals at issue in the present case, John F. Kennedy International Airport ("Kennedy"), La Guardia Airport ("La Guardia"), and Newark International Airport ("Newark"). Together, these airports constitute one of the busiest and most heavily used metropolitan airport complexes in the world. In 1986, they served nearly 79 million travelers, approximately eight percent of the domestic airline market and more than half of the Trans-Atlantic market. By the latter part of this decade, it is estimated that they will serve at least 110 million passengers per year.

but are the very lifeblood and principal means of support of [the] religious movement."

Most of the space at Kennedy, La Guardia and Newark is leased to commercial airlines, each of which bears primary responsibility for its own leasehold. The Port Authority retains control over the unleased portions of the airports--specifically, parts of the International Arrivals Building at Kennedy, the Central Terminal Building at La Guardia, and the North Terminal Building at Newark. Initially, ISKCON challenged restrictions on sankirtan in both leased and unleased portions of the airports, but after a series of legal skirmishes over the need to join various commercial airlines as defendants and, once joined, over their status as state actors, the portion of the litigation involving the airlines was settled. The instant appeal thus pertains only to those unleased portions of Kennedy, La Guardia and Newark--to which we refer for convenience as "terminals"--subject to the Port Authority's direct control.

The public has access to the terminals, which contain various commercial establishments. At the time of ISKCON's submissions to the district court on the summary judgment motion, for example, the lobby of the International Arrivals Building at Kennedy included two restaurants, two snack stands, a bar, a postal substation and postal facility, a bank, a telegraph office, a duty-free boutique, a drug store, a nursery, a barber shop, two currency exchange facilities, a dental office, and an area for the display of art exhibits. Along the east and west corridors of that same building were some ten duty-free shops, five bars, two snack stands, a telegraph office, two bookstores, two newsstands, a bank, four travel insurance facilities, two currency exchanges, two cookie and candy shops, a cash and traveler's check machine, an India store, and a boutique-sized Bloomingdale's. Similar establishments lined the lobbies and corridors of both the Central Terminal Building at La Guardia and the North Terminal Building at Newark.

Although these areas are 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 a business in the terminal.

The Port Authority has promulgated a regulation forbidding both the solicitation of money and the repetitive distribution of literature within such areas. That regulation, which effectively prohibits ISKCON from performing sankirtan, ² states in pertinent part:

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) The solicitation and receipt of funds.

ISKCON moved for summary judgment on the ground that the airport terminals are traditional public fora for expressive activity and that the Port Authority's regulation thus violates the First Amendment. The district court granted ISKCON's motion, whereupon the Port Authority, in Mr. Lee's name, appealed.

DISCUSSION

The Port Authority does not dispute that ISKCON'S in-person solicitation of contributions and distribution of religious literature are protected speech within the meaning of the First Amendment. See Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 647, 101 S.Ct. 2559, 2563, 69 L.Ed.2d 298 (1981). The issue here is whether the terminals at Kennedy, La Guardia and Newark are traditional fora for ISKCON's concededly protected activities. Because the terminals are open to the public, heavily traveled and contain a wide array of commercial establishments, the district court concluded that they are akin to public sidewalks and, based on that conclusion and our decision in Wolin v. Port of New York Authority, 392 F.2d 83 (2d Cir.), cert. denied, 393 U.S. 940, 89 S.Ct. 290, 21 L.Ed.2d 275 (1968), ³ struck down the Port Authority's regulation.

Public forum analysis is derived from the axiom that "[e]ven protected speech is not equally permissible in all places and at all times." Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 799, 105 S.Ct. 3439, 3447, 87 L.Ed.2d 567 (1985). In determining whether a particular restriction on protected speech is permissible, the Supreme Court has "often focused on the 'place' of that speech, considering the nature of the forum the speaker seeks to employ." Frisby v. Schultz, 487 U.S. 474, 479, 108 S.Ct. 2495, 2499, 101 L.Ed.2d 420 (1988). Restrictions on identical kinds of speech may be struck down or upheld "depending on the character of the property at issue." Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 44, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983).

In recent years, the Supreme Court has classified government-owned property into three categories--"the traditional public forum, the public forum created by government designation, and the nonpublic forum." Cornelius, 473 U.S. at 802, 105 S.Ct. at 3449. Traditional public fora are places that "have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Hague v. CIO, 307 U.S. 496, 515 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939). Public streets, sidewalks and public parks are paradigmatic examples of such fora, although streets through military bases, see Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976), are a noteworthy exception.

Designated public fora are areas not traditionally open to assembly and debate that the pertinent governmental authorities have intentionally opened for public discourse. See Cornelius, 473 U.S. at 802, 105 S.Ct. at 3449. Nonpublic fora lack the characteristics of traditional public fora and have not been acknowledged by the pertinent governmental authority...