Rosen v. Port of Portland

• Decision Date: 09 April 1981
• Docket Number: No. 79-4141,79-4141
• Citation: 641 F.2d 1243
• Parties: Moishe Meyer ROSEN, Plaintiff-Appellant, v. The PORT OF PORTLAND; James Hawley; and Steven C. Laxton, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1243

641 F.2d 1243

Moishe Meyer ROSEN, Plaintiff-Appellant, v. The PORT OF PORTLAND; James Hawley; and Steven C. Laxton Defendants-Appellees.

No. 79-4141.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 5, 1980.

Decided March 5, 1981.

Filed April 9, 1981.

Elden M. Rosenthal, Portland, Or., for plaintiff-appellant.

Donald J. Morgan, Wood, Wood, Tatum, Mosser & Brooke, Portland, Or., for defendants-appellees.

Appeal from the United States District Court for the District of Oregon.

Before HUG and REINHARDT, Circuit Judges, and SMITH, ^* District Judge.

REINHARDT, Circuit Judge:

Moishe Meyer Rosen, chairman of Jews for Jesus, arrived at Portland International Airport by plane and started distributing religious literature in the airport terminal. He was arrested for violating an ordinance requiring advance registration by those desiring to exercise first amendment rights at the terminal. ¹ The ordinance provides for (1) one business day's notice of an intent to distribute literature, picket, demonstrate, or "otherwise communicate with the general public" and (2) advance disclosure of the names, addresses, and telephone numbers of the sponsoring person and "responsible" person. ²

Rosen brought suit for declaratory and injunctive relief, claiming that the ordinance is unconstitutional on its face under the first and fourteenth amendments. ³ The district court upheld the ordinance and granted summary judgment for the defendants. ⁴ Rosen appealed. ⁵

The distribution of literature is a form of communication protected by the first amendment. Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938). The first amendment is to be given full effect in the public areas of airport terminal buildings. Kuszynski v. City of Oakland, 479 F.2d 1130 (9th Cir. 1973); Chicago Area Military Project v. City of Chicago, 508 F.2d 921 (7th Cir. 1975). However, the regulation of activity that interferes with the normal use of an airport facility is a proper governmental function. The issue before us then is whether a public agency may regulate activity protected by the first amendment in the manner provided in the challenged ordinance.

The Port of Portland contends that the ordinance, although it affects the exercise of first amendment rights, is justified. The Port asserts the need for advance notice when activity potentially disruptive of normal airport business will occur, so that it may take adequate precautions to preserve the peace. It also suggests that advance notice may enable it to avoid the conflicts that might arise if several groups demonstrated at the same time. Finally, it argues that requiring the names, addresses, and telephone numbers of sponsoring and "responsible" persons will help it to assess the possibility of disruption and will assist in its efforts to make arrangements with those persons for the orderly and peaceful use of the airport's facilities.

Rosen contends that both the advance notice and the identification requirements of the ordinance have a "chilling effect" on free speech. He argues that a public agency may not compel an individual to register with local authorities as a condition to the exercise of free speech rights. He also urges that compulsory disclosure of the identity of sponsors and "responsible" persons is unconstitutional because those communicating with the public have a right to maintain their anonymity.

We begin with the general principles that govern the analysis of statutes or ordinances that regulate or infringe upon the exercise of first amendment rights. Any such law "must survive the most exacting scrutiny." Buckley v. Valeo, 424 U.S. 1, 64, 96 S.Ct. 612, 656, 46 L.Ed.2d 659 (1976). First, the law is presumptively unconstitutional and the state bears the burden of justification. Kuszynski v. City of Oakland, 479 F.2d 1130, 1151 (9th Cir. 1973). Second, the law must bear a "substantial relation," Gibson v. Florida Legislative Commission, 372 U.S. 539, 546, 83 S.Ct. 889, 893, 9 L.Ed.2d 929 (1963), to a "weighty" governmental interest. See Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1964). The law cannot be justified merely by a showing of some legitimate governmental interest. Buckley v. Valeo, 424 U.S. at 64, 96 S.Ct. at 656. Third, the law must be the least drastic means of protecting the governmental interest involved; its restrictions may be "no greater than necessary or essential to the protection of the governmental interest." Baldwin v. Redwood City, 540 F.2d 1360, 1367 (9th Cir. 1976). ⁶ Fourth, the law must be drawn with "narrow specificity." Hynes v. Mayor and Council of Borough of Oradell, 425 U.S. 610, 96 S.Ct. 1755, 48 L.Ed.2d 243 (1976); NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). See also Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980).

Moreover, any law which imposes a "prior restraint" on the exercise of first amendment rights comes to this Court "with a heavy presumption against its constitutional validity." Vance v. Universal Amusement Co., Inc., 445 U.S. 308, 317, 100 S.Ct. 1156, 1161, 63 L.Ed.2d 413 (1980), quoting Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963); Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 558, 96 S.Ct. 2791, 2802, 49 L.Ed.2d 683 (1975); New York Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 2141, 29 L.Ed.2d 822 (1970); Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1577, 29 L.Ed.2d 1 (1970). The presumption is heavier against "prior restraints," and the protection therefore greater, because "prior restraints on speech and publications are the most serious and the least tolerable infringement on First Amendment rights." Nebraska Press Ass'n v. Stuart, 427 U.S. at 559, 96 S.Ct. at 2802.

With these general principles in mind, we turn to an analysis of the constitutionality of the specific requirements of the ordinance.

I The Advance Notice Requirement

We find the requirement of advance registration as a condition to peaceful pamphleteering, picketing, or communicating with the public to be unconstitutional. The United States Supreme Court held more than thirty-five years ago that persons desiring to exercise their free speech rights may not be required to give advance notice to the state. Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 (1944). In Thomas, the Court said:

If the exercise of the rights of free speech and free assembly cannot be made a crime, we do not think this can be accomplished by the device of requiring previous registration as a condition for exercising them and making such a condition the foundation for restraining in advance their exercise and for imposing a penalty for violating such a restraining order. So long as no more is involved than exercise of free speech and free assembly, it is immune to such a restriction. If one who solicits support for the cause of labor may be required to register as a condition to the exercise of his right to make a public speech, so may he who seeks to rally support for any social, business, religious or political cause. We think a requirement that one must register before he undertakes to make a public speech to enlist support for a lawful movement is quite incompatible with the requirements of the First Amendment.

Id. at 540, 65 S.Ct. at 327 (emphasis added).

While Thomas preceded the cases cited for the general principles we noted earlier, it is consistent with the later first amendment cases, and it mandates our decision today. In Thomas, the Court classified the requirement of previous registration as a prior restraint. The Court recently characterized the holding in Thomas as follows: "Thomas held unconstitutional a prior restraint in the form of a registration requirement for labor organizers." Buckley v. Valeo, 424 U.S. at 81, 96 S.Ct. at 664.

The Port points to a few narrow exceptions to the Thomas rule in an attempt to justify its regulations. These exceptions all involve overwhelming governmental interests and precisely tailored regulations; none is applicable to the case before us.

The Port states, correctly, that advance notice provisions may be included in parade permit ordinances. See, e. g., Cox v. Louisiana, 379 U.S. at 558, 85 S.Ct. at 466. The governmental interest in regulating parades, when large groups use public streets and disrupt traffic by causing major arteries to be closed and transportation rerouted, is apparent. ⁷ However, the ordinance before us regulates far more than mass conduct that necessarily interferes with the use of public facilities. It regulates all forms of communication with the public by groups and individuals. Any person who wishes to communicate with the public, by uttering a few words, by silently distributing literature, or "otherwise," is subject to regulation. The Port has failed to demonstrate any interest in regulating individuals or small groups that is comparable to that involved in the regulation of parades. Thus, the parade case exception simply does not apply. ⁸

Next, the Port cites an exception permitting advance notice requirements for demonstrations in the environs of the White House. See A Quaker Action Group v. Morton, 516 F.2d 717, 735 (D.C.Cir. 1975); A Quaker Action Group v. Hickel, 421 F.2d 1111, 1119 (D.C.Cir. 1970). The exception was made because of the unique importance attached to assuring the safety of the President. The Port has no similar justification for regulating expression in the manner provided in the challenged ordinance. ⁹

Finally, the Port argues that some speakers, by the nature of their message, need extra police protection and that advance notice would be helpful. We acknowledge the legitimacy of the Port's interest and recognize that many of those who communicate with the public, whether they represent Jews for Jesus,...