HEFFRON v. INT. SOCIETY FOR KRISHNA CONSCIOUSNESS
A Minnesota law allowed the Minnesota Agricultural Society to devise rules to regulate the annual state fair in St. Paul. Minnesota State Fair Rule 6.05 required organizations wishing to sell or distribute goods and written material to do so from an assigned location on the fairgrounds. In other words, walking vendors and solicitors were not allowed. The International Society for Krishna Consciousness challenged the rule, arguing that it restricted the ability of its followers to freely exercise their religious beliefs at the state fair.
May a state, consistent with the First and Fourteenth Amendments, confine religious organizations wishing to sell and distribute religious literature at a state fair to an assigned location within the fairgrounds?
Legal provision: Free Exercise of Religion
Using the "valid time, manner, and place" criteria which the Court employs to assess government restrictions of First Amendment activities, the Court held that Rule 6.05 did not violate the Constitution. Since the rule was applied equally to all groups wanting to solicit at the fairgrounds, not making restrictions based on the content of a group's message, and because the state had an important interest in "protecting the safety and convenience" of the fair's patrons, Justice White argued that the rule's restrictions were legitimate. Allowing all religious, nonreligious, and commercial groups to move about the grounds distributing literature and soliciting funds would result in "widespread disorder" which would be potentially dangerous to the fair's visitors.
ORAL ARGUMENT OF KENT G. HARBISON, ESQ., ON BEHALF OF THE RESPONDENTS
Chief Justice Burger: We'll hear arguments next in Heffron v. International Society for Krishna Consciousness.
Mr. Harbison: Thank you, Your Honor.
Mr. Chief Justice, and may it please the Court:
My name is Kent Harbison and I represent the petitioners in this case, those Minnesota officials charged with the responsibility of managing the annual Minnesota State Fair.
The question before this Court is whether that State Fair, consistent with the First Amendment, may enforce a rule that essentially provides that all those persons or organizations who participate in the annual affair who desire to sell products, solicit monetary donations, or distribute literature or any other materials, whether it be flags, flowers, or whatever, may do so, but only from rented booths or similar fixed locations on the ground.
This case began in August of 1977 when the respondents, the Krishna Society, commenced a lawsuit in the state district court and obtained a temporary restraining order from that court enjoining the fair from enforcing that rule as it applies to them during that year's fair.
The restraining order, however, also enjoined the Krishnas themselves from selling any of these items that I've mentioned on a peripatetic basis throughout the fairgrounds.
In other words, the effect of that restraining order was to say, the state fair cannot require these respondents to engage in these activities only at a booth, but they must be permitted to do it throughout the fairgrounds.
Mr. Tribe: Mr. Harbison, does the record show what happened in succeeding years?
Mr. Harbison: Since that restraining order?
Mr. Tribe: You spoke of the 1977 fair.
What about '78, '79, '80?
Mr. Harbison: Your Honor, the restraining order applied to the '77 fair.
In 1978, just before the 1978 fair, the state district court granted summary judgment in favor of the state fair.
Therefore, the booth rule was applied during the 1978 fair because the state had received a favorable decision.
That was then appealed by the respondents to the Minnesota Supreme Court which reversed that decision in a 5-to-3 opinion.
That decision did not come down until, as I recall it, just before the 1980 fair.
This court then accepted the case to review it in January of this year.
Mr. Tribe: Well, let me ask specifically, did the Krishna group have a booth in '78, '79, or '80, and did they solicit at all on the grounds during those years?
Mr. Harbison: Your Honor, they did not have a booth and the record doesn't indicate whether or not they solicited during the '78 or '79 or '80 fairs, in part because the record, the trial court record was closed at that time.
Mr. Tribe: Mr. Harbison, following up on Justice Blackmun's question, at pages 35 and 36 of your brief, at the bottom of the page you make the statement,
"in fact, even under current state fair policy, Krishnas could proselytize among and speak with fairgoers and then direct interested donors or purchasers to their booth. "
Now, does that represent a change in the regulation or does that represent your definition of proselytize as opposed to solicit?
The words "proselytize" and "solicit" have been used kind of interchangeably and confusingly, given all the court opinions and briefs in the case.
Mr. Harbison: I'll attempt to see if I can add some definition to that.
The policy has always been, not just at that time or even now, under the booth rule... and that's the rule we're talking about here... that the state fair would not try to prevent anyone from engaging in oral conversations, and the phrase "proselytizing", the way I've intended to use it in the brief and I think the way the Minnesota Supreme Court viewed it, meant the practice of talking to someone and trying to convert them to a particular group's religious or political beliefs.
That statement on pages 35 and 36 is not meant to indicate that that's somehow a change of policy.
That's the way it has always been under the booth rule.
Mr. Tribe: That is, other fairgoers could?
Mr. Harbison: Anyone, Your Honor.
Mr. Tribe: Or anybody inside the premises could try to convince anybody else of the wisdom of his religious or other ideological beliefs and direct such a person to the Krishna booth?
Mr. Harbison: --Exactly right, Your Honor.
In fact, the only prerequisite to gaining entrance to access inside the fairgrounds is the payment of a customary admission fee.
That's the only prerequisite.
Once a person gets into the fairgrounds, the booth rule has no relationship to them whatsoever so long as they engage in the activities you're describing.
Mr. Tribe: So long as they don't try to collect money or sell something?
Mr. Harbison: So long as they don't try to collect money or sell things or distribute things in that connection.
Mr. Tribe: Well, but, it does prevent the distribution of any piece of paper?
If the man... if one of the solicitors makes a speech to somebody, which you say he can do, but then says, here's a copy of what I said, he may not do that?
Mr. Harbison: That he may not distribute literature or any other kinds of materials.
Mr. Tribe: Yes, all right.
Mr. Harbison: And part of the reason as indicated in this case, the record shows that with respect to these respondents... and I think they indicate this in paragraph 11 of the stipulation... that they don't merely want to just distribute the flowers and the books and the magazines and the buttons or whatever it may be, but indeed, they want to collect money for them.
So there is always the monetary exchange that accompanies that sort of activity.
I'd like to give the Court a little bit of a factual outline of what the fair is like and the types of crowds and congestion that we're describing in our brief.
The fair is held every year for a 12-day period in a permanently enclosed fairgrounds occupying about 125 acres in St. Paul, Minnesota.
Mr. Tribe: How many acres of that are actually devoted to booths?
Mr. Harbison: Your Honor, only about 40 to 45 of those acres, or about one third of that area, comprises that part of the fairgrounds where most of the booth operations and the fairgoing traffic occurs.
The rest of it is parking lots and storage facilities and so forth.
Mr. Tribe: What else is there?
An athletic field?
Or a racetrack, anything like that?
Mr. Harbison: There's a racetrack, Your Honor.
There's a racetrack that's connected with the grandstand that... I don't think the record indicates... but it seats several thousand people.
There are in an average year more than 1.3 million people who attend this 12-day event and I emphasize it's not merely just a location, but it is an event that the state stages for a limited period each year.
That breaks down to about 115,000 people per day during the week in this 40-to-45 acre area, and approximately 160,000 people per day on weekends.
And as I said, the only requirement for those people to get into the fairgrounds is if they pay the customary admission fee.
Mr. Tribe: Has it always been that size, or was it expanded after the automobile age came along?
Mr. Harbison: Your Honor, I personally don't know that and I don't the record indicates that but my understanding is that the Minnesota State Fair has for many years been among the top two or three state fairs in the country in terms of size and number of fairgoers.
The booth rule that were talking about is an inherent inseparable part of the state fair, and that's in part because the state fair has a system called the space rental system.
And under that the state fair enters into lease agreements with all these organizations and people who desire to sell and solicit and distribute materials.
Under these lease agreements these people and organizations are required to conduct these activities at a booth that requires them to post an identification sign that clearly in some manner informs the fairgoing public as to who they are or at least gives them some idea of the nature of the booth operation.
Mr. Tribe: When you speak of the booths, are you including under that term the halls and areas where they have farm machinery and other machinery?
Mr. Harbison: Yes, Your Honor.
The booth rule in a sense is somewhat of a misnomer in that we're not talking only about little stands and booths but I am using the term to mean fixed locations generally.
Sometimes it's inside buildings, sometimes it's a location known as Machinery Hill that perhaps Your Honor is referring to.
Mr. Tribe: Is the statement in your joint appendix at A-49... A-52 listing all the organizations, the Seventh Day Adventists, the Lutheran Council, Abortion Rights Council, the American Association for Retired Persons, et cetera, are those all people who have rented booths?
Mr. Harbison: Your Honor, these are all organizations that have rented booths for a number of years from the state fair.
In fact, there are approximately 1,400 booth operations on the fairgrounds during the period covered by this case, and these organizations that you're referring to, Your Honor, represent at least 40 of the organizations who at the time were considered to qualify probably as religious or political or news media type organizations.
I think under the respondents' current proposal in their brief, that this be expanded to include charitable and noncommercial organizations as well.
I think it's likely that a significant number, in addition to these, of the 1,400 booth operators would qualify under that definition, whatever the definition may be.
But the rule, again, doesn't have any effect whatsoever on the ability or the right of anyone to engage in some communications or proselytizing, however you want to phrase it.
It relates primarily to the distribution and the monetary activities.
The respondents in this case are a religious organization whose members engage in an activity known as Sankirtan.
That consists of a number of aspects, singing, dancing, chanting, selling not only books but other tokens, and soliciting donations.
The first aspects of that, the first three, the singing, dancing, and chanting, the respondents don't claim or aren't pressing this Court or any other court that we're aware of as covered by their First Amendment arguments.
In other words, they're not... perhaps they would be covered by it, I suppose, but they're not pressing those claims.
We're only worried about the latter three.
Mr. Tribe: Suppose the American Legion Drum and Bugle Corps wanted to have a parade through the streets and through the area to stimulate patriotic reactions, could they do that under these regulations?
Mr. Harbison: Your Honor, they would not be able to do that, I think.
And not only so much because of the booth rule but because of the state fair management's inherent responsibility, as this Court recognized in Cox v. New Hampshire, which involved public streets, the responsibility to maintain some order so that they're not overlapping parades, if you will.
And I suggest that in this case there is even more evidence than there was in Cox v. New Hampshire that that sort of conflict would be posed.
The state fair would have a right and an obligation, in fact, to the public to control that sort of activity.
It doesn't mean that it couldn't occur.
It just means it would have to be done in an orderly fashion so that there would be some order in an already crowded area, 40 to 45 acres, which on a typical day would have between 100,000 and 200,000 people.
I'd like to mention one more factual point here, I think that is of interest to this case, and that is, after the 1977 restraining order, there were about 17 or 18 members of ISKCON or Krishnas who did participate in the fair and engage in these activities outside the confines of a booth.
That was consistent with the restraining order.
What was not consistent, however, was the fact that they did sell, they did engage in sales.
The restraining order basically said that if you wish to sell something you still have to do that from a booth, but the other aspects of the booth rule we enjoin... the court, meaning "we"... enjoin as to the Krishnas.
In addition, the record shows that even just during this five or six day period when these sales and solicitations were taking place, the Krishnas represented... I should say, misrepresented themselves to the potential donors and purchasers, indicating that they represented something called the Division of Natural Resources, and schools for needy and handicapped children, drug treatment programs, and indeed the state fair itself.
And there is also evidence that these sorts of things took place with respect to donors who were minors.
It's been suggested by the respondents that this booth rule is a totally preclusive regulation, and it strikes me that if that were the case it would be virtually impossible ever to have any sort of regulations that weren't preclusive in some way, and it would be impossible to apply the balancing test, the reasonable time, place, and manner test, because there was always going to be some preclusion.
In fact, I refer the Court to the alternative suggested by the Minnesota Supreme Court and by the respondents themselves as alleging, allegedly, less restrictive alternatives.
They themselves involve some preclusive aspects and again, the booth rule, not only does and doesn't do what I've already discussed, but it doesn't give the state fair or any state official any discretion whatsoever to determine whether or not someone shall abide by the rule or whether they shall not.
It's applied nondiscriminatorily on its face, and as applied it has absolutely no relationship to the ideology or the content of anyone's political or religious beliefs.
And as I said, it doesn't prohibit any sort of oral proselytizing or oral conversations at all.
One of the things at this stage of the case that I think is critical is that the respondents have now abandoned what I believe to be the basis, the key basis, for the Minnesota Supreme Court's decision.
That is, they're no longer making a claim that they are entitled to a single exemption from the booth rule because of some unique status that they have because of this practice of Sankirtan.
Mr. Tribe: You mean they've abandoned the Sankirtan argument, do you think?
Mr. Harbison: It may be overstating it to say they have totally abandoned it.
It sounds to me in their brief now as if they're making some sort of an alternative argument.
But what sticks out to me, Your Honor, is the fact that I think they are recognizing that those aspects of Ankirtan that involve religious solicitations or whatever are no different than those of any other political or religious organization.
Mr. Tribe: Well, at page 47 of their brief they say,
"Respondents seek no unique treatment within this category. "
I would take that to mean that they would agree that other organizations should be treated the same as they should.
Mr. Harbison: Exactly, Your Honor, and that's my point.
Mr. Tribe: Or a candidate for a political office?
Mr. Harbison: Pardon me?
Mr. Tribe: Or a candidate for a political office, I suppose.
Mr. Harbison: I would think so, Your Honor, I don't see how the free exercise rights could be elevated over free speech or free association rights.
Mr. Tribe: Do the candidates and the parties have booths?
Mr. Harbison: Yes, Your Honor, they do.
There are absolutely no exceptions to the booth rule with respect to the sales and monetary exchanges and distributions of materials.
Mr. Tribe: Incidentally, your justifications have been, as I recall it, safety and the prevention of fraudulent practices.
On the latter, prevention of fraudulent practices, how does a prohibition against distribution of literature further that interest?
I'm not speaking now of the fund raising but the distribution of--
Mr. Harbison: Your Honor, in this case it's important.
It still has a relevance.
Mr. Tribe: --I gather a political candidate can't distribute a little--
Mr. Harbison: Stickers or--
Mr. Tribe: --Sticker; whatever.
Mr. Harbison: --Yes, Your Honor, that's right.
But in this case there is still some relevance regarding the control on fraudulent practices.
Because if you look at the record, and even the stipulation, again, in paragraph 11, the Respondents don't merely want to just distribute the books or the flowers or the incense or the flags.
They want to get money for them.
Now, whether that call that a sale or a donation, it's not just a pure distribution activity.
Mr. Tribe: Well, I don't quite... how does that make it fraudulent?
Mr. Harbison: Because of the fact that there is money involved, Your Honor, and the record already indicates that they have in getting this money have represented themselves to be agents of organizations for which they are not.
And beyond that, with respect--
Mr. Tribe: Couldn't they do that in a booth?
Mr. Harbison: --Your Honor, they could do that in a booth and we don't mean to suggest that deceptive sales don't take place at booths, they surely do.
But what the booth rule does is provide some accountability, some control of the fair, because the booth operators have a contract with the fair, the fair knows who the owners and operators of the booth are, they know where they're located, the booths must have identification signs identifying who they are and what their purposes are.
Mr. Tribe: Well, I gather, Mr. Harbison, your answer to me is that prevention of deceptive practices in connection with the distribution of circulars and that sort of thing, is only when joined with effort to sell.
Is that it?
I mean, the political candidate who does nothing but pass them around, you would not defend that as necessary to?
Mr. Harbison: Your Honor, I think that it's possible that in a pure distribution setting without any monetary exchange that it's still possible to have some misrepresentation as to what it is, whether it be a record, as it was in the New York case, or--
Mr. Tribe: Well, again, I go to the political candidate.
He just wants to hand out something with his picture on it and something about his biography or something like that.
Mr. Harbison: --I think, Your Honor, it's still possible to have that but beyond that there are other public purposes that this booth rule serves.
And in fact, the Minnesota Supreme Court expressly found that even the public purpose, the governmental interest of providing order and in traffic control and minimizing congestion in an already crowded place is a substantial governmental interest that is significantly furthered by the booth rule.
Mr. Tribe: How about littering?
Is there any?
Mr. Harbison: Your Honor, littering would be a problem under that, but we don't advance that as a justification for the rule.
Mr. Tribe: Well, P. T. Barnum would roll over in his grave if deception were absolutely prohibited at state fairs.
P. T. Barnum wouldn't be the only one.
Mr. Harbison: We wouldn't have egresses I suppose, Your Honor.
Well, I think... we know that, we recognize that, Your Honor.
But what I'm saying is, to the extent that happens, and we acknowledge it, the state fair is more able to control that sort of thing at a booth because they know who the people are.
But, if one has a roving solicitor or vendor walking among 150,000, 200,000 people on a given day, in a 40 to 45-acre area, and sells somebody a record that's supposed to be a religious record and it turns out to be something totally different, or any other example, by the time that the purchaser or the donor is aware of that, there's no way you can do anything about it.
Now, it might be a little bit easier to pick out somebody in this kind of a crowd if they somehow appeared unique, but the indications are that these roving vendors and solicitors look pretty much like everyone else.
Mr. Tribe: Mr. Harbison, I understand what you're saying when the money changes hand.
But part of the attack on the rule is an overbreadth attack, that it's overbroad because it covers the handout of written material even though these people want to get money for it.
How do you defend the prohibition if you don't rely on littering?
How do you defend the prohibition of handing out material for no money?
Mr. Harbison: With respect to the overbreadth attack even, it seems to me, under this Court's decisions such as in Broadrick, even in First Amendment cases, that should not automatically be applied and in fact, I think, the phrase, "substantial"--
Mr. Tribe: Well let's assume for the moment... I mean, one argument you make is there should be no overbreadth analysis.
But assume for a moment we were going to say, yes, we'll look at it under overbreadth.
Do you defend the rule to... say, the plaintiffs here just wanted to hand out leaflets like a political candidate.
Do you defend the rule as applied just to that and, if so, why, if it's not based on littering?
Mr. Harbison: --Well, Your Honor, that is just one component of it.
But beyond that--
Mr. Tribe: I want to know what your justification for that component is.
Mr. Harbison: --Our argument is that it... especially in contrast with the way the fairgrounds and the fair is set up now, if you have someone walking around the fairgrounds handing out materials... and I think that it would be very difficult to start drawing lines between the kinds of things that would be distributed, but it seems to me that if you had that sort of activity going on with not just the Krishnas but 10 or 20 or 30 representatives from perhaps 30 to 60 or 70 groups, that inevitably is going to draw more attention and going to cause or create more or less moving pockets or moving congested crowds, because of the fact that someone is doing something unique on the fairgrounds, especially giving something away free, I think that's going to--
Mr. Tribe: It's a card that says, vote for me for county assessor, or something, but it's a--
Mr. Harbison: --Your Honor, but my point would be, with respect to that, that those fairgoers may not know that right away until they actually get up there and receive it, but if all of a sudden the crowd becomes aware of the fact that dozens of people are walking around passing out materials and they're going to inevitably be attracted by that.
Whereas, they wouldn't be if people were just talking.
Mr. Tribe: --Well, you... I take it that if the county officer who is running for office puts a sign on his back, vote for me, with his picture on, or on his hat, on his straw hat, you'd let him do that, and you'd let him stop people and try them into voting for him.
And it might even be that it would be simpler to let him pass out a card rather than to try to buttonhole people and talk to them.
Mr. Harbison: --Your Honor, that sort of thing, to my knowledge of the record, hasn't happened, and my point would be that the booth rule doesn't have to be perfect.
What it has to be is a reasonable attempt to accommodate a number of conflicting interests.
Mr. Tribe: So, in short, your answer to my brother Stevens, I gather, is you justify it on the basis of crowd control or traffic control.
Is that it?
Mr. Harbison: Yes, Your Honor.
It is also related, I would think, to the protection of the fairgoers' rights of privacy themselves, particularly when we're talking about the potential of dozens or maybe several hundred solicitors.
Mr. Tribe: Incidentally, Mr. Harbison, when did the Krishnas first request booth space at this fair?
Mr. Harbison: Your Honor, I don't recall if the record indicates that, but to my knowledge it was sometime in May or June of 1977.
Mr. Tribe: And was this after this booth rule had first been promulgated?
Mr. Harbison: Your Honor, this booth rule has been in existence since 1966, at least, and that's before the Krishnas were even in this country.
Mr. Tribe: So that at least its promulgation had nothing to do with the arrival of the Krishnas?
Mr. Harbison: Absolutely nothing.
In fact, Your Honor, they did not apply for booth space.
They were informed that the booth rule existed and they informed the fair that they didn't feel they had to submit to it.
I'd like to make one comment about another argument that's raised in the respondents' brief, and that is that the primary purpose, despite what I've just gone through on these other purposes, the primary purpose of this rule is alleged to be to insulate potentially receptive listeners or audiences from all communications.
They have to take some affirmative step.
That is just plain wrong.
First, it seems to me that there is implicit in that some sort of improper motivation and I think the comment I just made about when the booth rule was enacted cuts against that.
But, the only difference with respect to that context, the only difference between a booth operator and a roving vendor is the ability to pursue and follow an unwilling audience or listener or purchaser or donor.
A booth operator cannot go after a fairgoer who walks by the booth and declines the sales pitch or the solicitation.
Mr. Tribe: Does the record show whether barkers are permitted outside of the booths or inside the booths?
Mr. Harbison: It doesn't show, Your Honor.
But I would think that under the booth rule it's pretty clear that whether they're standing in front of it or behind it they've got to stay generally in that location.
Mr. Tribe: Who owns the fairgrounds?
Mr. Harbison: The State of Minnesota does, Your Honor.
Mr. Tribe: Is this a... and the booth rule involves the charge of rentals for the booths, doesn't it?
Mr. Harbison: Yes, Your Honor.
Mr. Tribe: Is this a revenue raising measure of any consequence?
Mr. Harbison: This is, Your Honor.
The record is pretty much silent on that but to my knowledge the state fair does not even receive a legislative appropriation from the State of Minnesota.
It's a self--
Mr. Tribe: Self-supporting?
Mr. Harbison: --sustaining, self supporting enterprise.
Mr. Tribe: And how much is raised by these booth rentals?
Mr. Harbison: Your Honor, I don't know and the record doesn't indicate that.
I am sure the total gross revenues... and I don't know how it would be broken down, would be well over a million dollars.
I'd like to emphasize one final point here and then reserve some time for rebuttal, and that is that it seems to me that the booth rule does not prohibit booth operators from talking to fairgoers as they walk around, or trying to sell them something or solicit donations.
Roving solicitors simply have moving booths, that's all it is.
But the booth operator doesn't have the advantage to follow, pursue, harass, however you'd like to characterize it, fairgoers who aren't interested.
And I submit that's not enough of a justification.
The alternatives to the booth rule that are alleged to be less restrictive are both unworkable and I suspect constitutionally suspect because they would turn what is now a a non content directed rule into a regulation that inherently is going to require the state fair to look into the content and the religious basis of the organizations.
They're suggesting that the state fair could do this by registering all organizations who are charitable or noncommercial, whomever they may be.
The problem with that is, how does the fair determine that?
That sounds to me like the kind of regulation this Court struck down in Cantwell v. Connecticut.
I don't think the state fair, even if they're qualified, would constitutionally be able to do that.
The numerical limitations that have been suggested, the requirement to wear identification badges, sound nice in the abstract but in practice they wouldn't work; the state fair would have no way to guarantee that they were being complied with.
What we have here is not an attempt to suppress communication but an attempt by the state fair along this less restrictive continuum to draw the line.
Chief Justice Burger: If you wish to save any rebuttal time, this is the time to do it.
Mr. Harbison: Thank you, Your Honor.
Chief Justice Burger: Mr. Tribe.
ORAL ARGUMENT OF LAURENCE H. TRIBE, ESQ., ON BEHALF OF THE RESPONDENTS
Mr. Tribe: Mr. Chief Justice, and may it please the Court:
The state in this case seeks to expel from the open and public areas of the state fair and to corral in these fixed booths, which indeed, as Mr. Harbison points out, are sometimes inside building, exercises of speech, press, and religion, which clearly lie at the very core of the First Amendment.
Now, I think a number of the questions that have been directed to Mr. Harbison expose in a way that perhaps the record and the briefs alone would not have done quite so dramatically the sweep and breadth of this rule.
Mr. Justice White asked, what about a politician walking around with information on a sign?
And Mr. Harbison says, perhaps that would be allowed.
But it appears, in the stipulated facts, as one might expect, since a rule against exhibiting or distributing literature can hardly draw much of a line between what you wear on your back and what you put in your palm and what you hand to someone, it appears that that might not be allowed at all.
Mr. Tribe: Do we have to decide that issue here?
Mr. Tribe: I think we needn't urge this Court to reach that issue, but it does make clear how broad the rule is.
Mr. Tribe: When someone puts one of these boards on back and front like advertising for a restaurant, then we'll decide that case.
Mr. Tribe: Well, the overbreadth position that we take here, Mr. Chief Justice, we think is well founded in the Schaumberg case itself.
That is, we are dealing here with activity that is hardly at the periphery of the First Amendment.
We're dealing here with core First Amendment activity, distributing literature, and the fact that the law does reach that far is one of the reasons that this Court should strike it down.
Mr. Tribe: But aren't there going to be a large number of people, as suggested in Justice Todd's dissent, at A-73 of the Joint Appendix, who are going to be able to make the same claim as your clients, that they should be able to freely roam and proselytize?
And he comments there that under the existing rule fair officials cannot arbitrarily determine that some exhibitors are free to roam the fair grounds while others are not.
Mr. Tribe: No, it's not arbitrary.
It's simply a flat exclusion, and I think that, Mr. Justice Rehnquist, the dissent below rightly pointed out that we were not claiming any special treatment.
Others would potentially be eligible to seek exemption.
But as this Court last month said in Thomas v. Indiana Review Board, simply conjuring up an unmanageable number of requests for exemptions without proof in the record that it would indeed be unmanageable through some neutral feeling on numbers, is not a permissible basis for suppressing protected activity.
Mr. Tribe: But when you have it in the record, all that list of people who have previously paid for booths, presumably all of them would do the same thing your clients have done.
Mr. Tribe: I'm afraid, Mr. Justice Rehnquist, I can't share that presumption.
The business of wandering around in the heat of a Minnesota State Fair hoping to attract attention is not an obviously pleasant alternative to a nicely rented, probably air conditioned booth.
Mr. Tribe: I thought that Minnesota was a cool state.
Mr. Tribe: Well, I guess that the decision will not turn on the temperature of Minnesota in the summer.
Mr. Tribe: Mr. Tribe, did I understand you just to suggest that you've abandoned the uniqueness, Sankirtan argument?
Mr. Tribe: No, we certainly haven't abandoned the argument that the claim is stronger here, nor did we argue below, which is suggested by some notion of abandonment, that a special exemption was warranted.
As Justice Todd pointed out in his dissent, on page 72--
Mr. Tribe: Your position now is not that you're entitled to special consideration based on the Sankirtan argument, is that right?
Mr. Tribe: --That's correct.
We think that that makes the claim even more dramatic, but we believe that it would not be principled to limit the exemption just to one religious group.
Mr. Tribe: While I have you interrupted, do you agree with your colleague that this booth rule has nothing to do with the arrival, chronologically, with the?
Mr. Tribe: The language of the rule, we agree, pre dates their arrival, but it's interesting to note that the rule on its face says nothing about solicitation.
It's simply been interpreted to encompass solicitation now.
And the record doesn't itself illuminate the question of why the rule has been broadened to deal with solicitation.
In light of the problem suggested, Mr. Justice Rehnquist, by your question, about the degree to which one is genuinely free in the State Fair of Minnesota under this rule, looked at on its face, to wander around and proselytize orally.
We are assured by the Attorney General of Minnesota that one could quite freely indicate verbally, as long as one didn't have a sign on or hand out anything, that one represented a certain religion which was in need of funds, that there was a booth back there, that contributions might be made at the booth.
I am at a loss to know where the line is ever going to be drawn between that and solicitation.
Mr. Tribe: Mr. Tribe, I read recently, and I wouldn't want to vouch for what I read in the newspaper, but it suggested that there were 153 religious organizations in the State of California alone that would qualify under this category.
Now assume that's very high.
Could we take judicial notice, do you think, that there must be at least 100 religious organizations in the United States that could avail themselves of what you are urging?
Mr. Tribe: I am certain you could, Mr. Chief Justice.
And if you added political and charitable organizations, there might be more still.
But even if you take the Attorney General's representation and attempt to paint the chaos at its worst, that perhaps there would be a thousand proselytizers and solicitors and distributors in an area where there are over 115,000 visitors a day, even if we assume at worst that one out of 100 people is trying to persuade someone else to give money to a fledgling religion or to a rising candidacy, it seems to me the proposition that that in itself is the sort of specter the state can shut down protected speech and religious exercise to avoid will be consistent with the judgments of this Court.
Mr. Tribe: That to me isn't a specter.
I mean, the primary purpose of state fairs in their origin was pie contests and corn contests and so forth.
Mr. Tribe: So it isn't all that bad.
Mr. Tribe: What?
Mr. Tribe: So it isn't all that bad if all this should materialize, I suppose.
Mr. Tribe: Well, if you have all of these roving groups around the pedestrian malls, they will come to take over the state fair and the kind of agricultural aspect of the thing will totally disappear.
Mr. Tribe: But I'm curious why that hasn't happened in state fair after state fair where the lower courts have ruled at the behest of the Krishna Consciousness group that it was unconstitutional to ban solicitation and distribution.
Mr. Tribe: What about the New York district court ruling?
Mr. Tribe: Well, it is true that the New York district court ruling now pending in this Court seeking certiorari before judgment has gone the other way, but in the majority of cases, in the 4th Circuit, in the 7th Circuit, in the Northern District of Texas, in a number of cases over the past four or five years, I would say the trend has been to say that because this is obviously a public forum, a literal marketplace of ideas, and because the concerns about congestion and fraud can be more narrowly met, that there has to be a relaxation of the rule when it comes to a religious group.
Mr. Tribe: Well, is a fairground a "marketplace of ideas" as much as a marketplace for wares?
Mr. Tribe: Well, historically, the fairs of Europe and Leipzig and in other places surely were primarily religious activities.
They did become more secular but the history of the Minnesota State Fair, not a typical in this country, shows that it has been a literal crossroads of cultural, religious, political, as well as commercial activity.
It was the favorite stopping point of presidential candidates in the early 20th century.
There's no suggestion here that it is a less appropriate place for the exchange of ideas than streets and parks where people usually go to get some place or to enjoy themselves.
There is no suggestion that it is less appropriate in any sense than the other places that this Court has suggested are public fora.
And in this kind of public forum to have a total ban on even distribution of literature with no commercial element, as Justice Stevens points out, with no problem of littering, when there are other methods of dealing with fraud and congestion, seems to us to be grossly overbroad.
Mr. Tribe: Well, Mr. Tribe, would you think the fair could say, well, there's 150,000 a day, perhaps we could put up with 500 wandering people who are soliciting and we'll put the names in a hat and draw by lot as to who gets in that day?
Mr. Tribe: I think that putting some reasonable ceiling numerically, as the respondents in this case have said they would be willing to live with, is perfectly constitutional.
The fact that something is a public forum... a courtroom... a public forum in which people can come and listen, doesn't mean that more people than can be accommodated for its purpose must be permitted to be there.
Mr. Tribe: Well, would people be permitted to walk around this courtroom of any courtroom?
Mr. Tribe: It would be so incompatible with the function and decorum of this courtroom, for the people here to walk around, in contrast with the state fair, that I'm sure the answer's no.
Mr. Tribe: How about out in the halls, where we have exhibits, and the museum downstairs?
Mr. Tribe: I think the quiet and tranquillity and the educational function of these halls is incompatible with that kind of wandering, although I must admit I haven't carefully enough thought about it to want to be held to that.
A state fair is at the other end of the spectrum, surely.
Mr. Tribe: Is not a state fair fundamentally an educational function and in a state like Minnesota, agriculture and agricultural machinery, and a great many other things?
Mr. Tribe: But educational, not in the sense that a library is, where people wander and carefully, quietly, calmly select.
It's educational in the sense that the cross fire of ideas and options and opinions makes it a saturation place for exposure.
It's for that very reason that respondents find it such an attractive and important place to expose people to the possibility that what the respondents believe in really merits their attention.
Mr. Tribe: Well, the lower Great Hall here, to pursue that, is a museum of sorts and people look at the pictures of the Justices of times gone by and read their biographies attached, and look at a great many things relating to the Court's history.
They are free to talk about it all they want as long as they don't create a disturbance.
How would the peripatetic missionary be any more or less a problem downstairs than at the state fair?
Mr. Tribe: Well, I suppose, Mr. Chief Justice, that because people come to this Court for a much more specific purpose and with a particular event or set of events in mind, it would not be nearly so difficult to justify the proposition that the purposes of the Court, like the purposes of a library or of the White House or of some other special building, are incompatible with quite the same kind of robust, wide open discussion and distribution and solicitation that clearly is compatible with the function of a fair.
But again this Court needn't decide exactly how many institutions and fora are brought within the principle.
There's no claim made by the State of Minnesota in this case, and no proposition adduced by the Supreme Court of Minnesota, to the effect that the purposes of the fair are compromised by the very presence of these people.
What is claimed, rather, is that if they engage in certain kinds of excessive or abusive behavior, which incidentally has not been found here... there are simply some unverified complaints and four signed complaints... if they engage in that kind of behavior, or if they blocked entranceways or get in the way of certain queues and lines, that they then may pose an administrative problem.
Mr. Tribe: Well, if we felt bound by the Supreme Court of Minnesota's decision, presumably we would not have granted certiorari.
Mr. Tribe: Well, that's... certainly, Mr. Justice.
And the only kind of deference that I would suggest even remotely to that court's decision in this case is that its proximity to the situation and its sensitivity to the purposes that the State of Minnesota seeks to advance are at least as likely to be reflected in its judgment as this Court indicated was true in Michael M. v. Superior Court of Sonoma County, not long ago, when deference was to the Supreme Court of California where that Court had upheld rather than struck down a law of the state that seemed appropriate.
We simply suggest that if the Supreme Court of Minnesota sees no difficulty with less restrictive modes of achieving the state's goals and if the Attorney General of Minnesota doesn't indicate that this state fair is somehow more like the Supreme Court of the United States than like the fairs of early America and of Europe, that there is no reason for the Court to view the case in other than the context of a conventional public forum.
Mr. Tribe: Well, would this be different if it came from the 8th Circuit rather than the Supreme Court of Minnesota?
Mr. Tribe: I would not have one additional argument that I think is one that strengthens the case.
I think the result ought to be the same.
But I think in this case the fact that the Supreme Court of Minnesota viewed the record as it did is helpful.
It makes it less problematic than it otherwise might for this Court to speculate on the purposes of the rule and the way in which it operates.
Now, as to the way in which the rule--
Mr. Tribe: Mr. Tribe, I think a minute ago you conceded that a reasonable limitation on numbers would be constitutional?
Mr. Tribe: --Yes.
Mr. Tribe: Would you say the same thing about a reasonable limitation on area?
Mr. Tribe: Well, as long as the limitation on area did not, was not designed to shunt the devotees into places where in effect they could neither be seen nor heard, as long as in effect they were prevented simply from blocking access, then we do think that area limitations, as have been upheld before, would be okay.
Mr. Tribe: Well, what about... what if they were excluded from other booths?
Mr. Tribe: Excluded from other booths?
I suppose interference with what's going on in other booths is something--
Mr. Tribe: Well, I mean, just keep them out.
Say, if they're permitted to solicit, or... you cannot solicit in somebody else's booth?
Mr. Tribe: --I think as long as all people are granted some--
Mr. Tribe: Or in somebody else's... or in the queues lined up at somebody else's booth?
Mr. Tribe: --I think that probably would be all right, Mr. Justice White.
Mr. Tribe: Well, certainly, they can be heard and seen in a booth that they have.
Mr. Tribe: They can be heard and seen, but that's an important, I think, additional point, and that is, we suggested that the primary operation of the booth rule, since it's so obviously overbroad and imprecise with respect to the goals of fraud, safety, congestion, and the like, is to limit distribution and receipt of religious literature and solicitation and the making of religious contributions, to those people who already know about, feel some sympathy toward, and are willing to be publicly associated with the very kinds of groups that are going to need most to engage in a kind of outreach program.
And the response of the Attorney General of Minnesota to the suggestion that people might actually feel stigmatized at going over to and publicly indicating interest in the Hare Krishnas, was interesting.
Their response is that it's preposterous to suppose any such thing, page 15 of their brief; that alleged fear, they say, does not seem to prevent fairgoers from going to the carnival freak shows and similar attractions.
That is, they are comparing those who assert fundamental First Amendment rights to freak shows.
Mr. Tribe: Isn't there another response to that argument, and that is that they do have the opportunity to try to persuade orally the people to go over to the booth?
Mr. Tribe: To some extent.
But if they persuade too effectively, might they not be guilty of soliciting?
That is, as this court thought in Thomas v. Collins, there may not be any very bright line between saying the union is your only real source of protection and saying, join the union.
Mr. Tribe: I thought it was clear... maybe I missed it, but I thought it was clear that it would be perfectly permissible to accost somebody in the common grounds of the fair and say, we would like to sell you some literature which you must purchase over at our booth.
You don't think that's clear?
Mr. Tribe: Well, because... I don't think it is clear, Mr. Justice Stevens.
The reason I don't is that just as this Court in Primus thought that a representation by the Attorney General was not necessarily conclusive on the point when the rule itself is vague, so, too, here, if someone were to walk around and say, devotion to Krishna Consciousness means sacrifice of the material things to which you are enslaved, and that's where you can give money, it would not at all surprise me if that were to be regarded as solicitation.
But I think there is a dilemma here.
Because if that is not a forbidden form of solicitation, then we fail to understand any conceivable purpose that can be served by banning solicitation and not banning that kind of advocacy.
That is, as the court below in the dissenting opinion, parts of--
Mr. Tribe: Well, the purpose is you confine the exchange of money to booths.
Mr. Tribe: --It's not just the exchange of money.
That is, this Court has... we're not dealing here with a suggestion that although the solicitation may occur out in the fairground, the final transaction must occur in the booth.
That was the compromise suggested by the dissenting opinion, and that is the solution that one other lower federal court proposed.
What is proposed and defended here is not a rule that you can say anything you want and hand out literature as long as the money doesn't change except back at the booth.
Mr. Tribe: Well, no, they prohibit the handing out literature--
Mr. Tribe: And even solicitation.
Mr. Tribe: --But no physical transfer of any chattel one way or the other except at the booth.
Mr. Tribe: And also, but also solicitation.
That is, they also forbid oral as well as written solicitation of contributions in the fairgrounds.
Mr. Tribe: Do you agree that your adversary doesn't read the rule that way?
Mr. Tribe: I think he probably does but we will see.
That is, the difference between us is on what constitutes solicitation--
Mr. Tribe: On page 35 and 36 of his brief he says,
"In fact, even under current state fair policy, Krishnas could proselytize among and speak with fairgoers and then direct interested donors or purchasers to their booth. "
Mr. Tribe: --That's correct, Mr. Justice Rehnquist.
But what I'd be curious to know is whether the Attorney General of Minnesota can square with this record the proposition that if the devotees of the Krishna Society were specifically to say orally in the fairgrounds, please give us one dollar, whether that would not clearly violate this rule?
We believe that there's no doubt on this record that it would, and the line drawing--
Mr. Tribe: Even if they said, give it at the booth?
Mr. Tribe: --I think there's nothing in the record to suggest that the place at which it is ultimately given determines whether the solicitation of contributions is protected or unprotected.
Mr. Tribe: Well, what's in the record to show that it is forbidden?
Mr. Tribe: Well, that's the whole point of the disagreement between the majority and the dissent.
Mr. Tribe: Well, that's not an answer to my question.
Mr. Tribe: Well, I suppose the--
Mr. Tribe: Just tell me what's in the record.
Mr. Tribe: --The stipulated facts say that soliciting in the fairgrounds is forbidden as well as--
Mr. Tribe: But not soliciting for membership?
Mr. Tribe: --Soliciting for contributions, not membership.
Mr. Tribe: So you can solicit for support?
Mr. Tribe: Apparently.
Although the line between soliciting for support and soliciting for contributions is too vague.
Mr. Tribe: So there's nothing in the argument, there's nothing in the record any more than that.
To say that soliciting... does the stipulation say it's permitted or forbidden?
Mr. Tribe: It says it's forbidden.
Soliciting, by which it is clear is meant soliciting for contributions, is forbidden in the fairgrounds outside a booth, and the entire disagreement between the majority and the dissent below is whether that is too broad.
But even if one were to look at a much narrower rule that says, it's okay to solicit contributions as long as the ultimate donation is made at the booth.
Nothing has been shown here to justify that.
There is speculation, surely not meeting this Court's standard in Thomas v. Indiana Review Board, that maybe there'd be some confusion if money were to change hands in the middle of a fair.
Well, I find that preposterous.
The idea that it would be confusing or a source of congestion for people to hand money to one another in the thoroughfares of a state fair is rather hard to believe; and moreover, the notion that it is permissible to limit donations to a religion to those people who are willing not only to make the donation but walk a mile in order to make it; that is, go all the way over to the booth and give their 25 cents or one dollar.
It's also incompatible with the protected nature of the right to solicit donations.
It's as though we were to tell an ordinary church that it couldn't pass a collection plate but could only take pledges for remote contributions.
Mr. Tribe: Do you think a state is forbidden from enacting an ordinance that prohibits a devotee of a religion from suddenly grabbing a pedestrian off the mall and saying, listen, I want to talk to you about my religion for three or four minutes.
You stay here and listen to me.
Mr. Tribe: Yeah.
Surely, the state can forbid that.
And in this case there's nothing to suggest that the right the respondents seek is the right to do anything coercive or intrusive.
There is no denial in the record that the religion in question teaches that that kind of coercive behavior is immoral and impermissible.
Mr. Tribe: But there are also affidavits of some misrepresentation.
Mr. Tribe: Well, there are four sworn affidavits which have not been subjected to the process of cross examination or trial.
Mr. Tribe: Were you denied... did you request and were denied that opportunity?
Mr. Tribe: No, we think that the issue is one of the facial validity of this rule, and we think it would be far more pernicious to sacrifice the principle that the validity of the rule cannot be sustained by a few episodes, even if true, of misconduct, than to get involved in a sideshow of disputing those particular episodes.
But I simply point out that it's not as though we have here a finding by the courts below that the organization is guilty of some kind of systematic misconduct.
It's not as though we have a record on the basis of which such a finding could be made, and it's not as though we have a rule that is narrowly targeted to any kind of misconduct.
This is not a rule which specifically forbids particular kinds of abusive behavior.
This is a rule which says, you can't solicit in the fairgrounds at all.
You can't distribute or exhibit literature in the fairgrounds at all.
Mr. Tribe: So is it your position that the rule, the booth rule, is unconstitutional on its face?
Mr. Tribe: On its face with respect to a certain category of protected behavior, that is, we don't challenge it--
Mr. Tribe: Well, isn't every prospective booth renter's behavior protected by the First Amendment?
Aren't we all, in other words?
Mr. Tribe: --I suppose there would be some... well, we're all protected by the First Amendment.
Mr. Tribe: Yes.
Mr. Tribe: But the distinction this Court drew in Village of Schaumberg v. Citizens for a Better Environment between the category of activities as applied to which the 75 percent rule in that case was unconstitutional, and other kinds of activities, raising money for more conventional charities unconnected with advocacy as to which it might not be unconstitutional, is exactly the same kind of distinction as the one we seek to draw here.
That is, just as this Court in the pair of cases represented by Martin v. Struthers and Breard v. Alexandria, suggested that it's permissible to forbid door to door distribution of purely commercial material but not permissible to do so with respect to religion and politics, so that kind of a distinction, we think, is vital here.
Mr. Tribe: So this booth rule might, you think, be constitutionally valid as it applied to purely commercial booth renters?
Mr. Tribe: We think it would be.
We certainly don't challenge it.
Mr. Tribe: Well, what did the... didn't the Minnesota court strike it down on its face?
Mr. Tribe: Well, the Minnesota court's opinion said that it could not constitutionally be applied to these respondents.
Mr. Tribe: And therefore what?
Mr. Tribe: And therefore, that it was not valid--
Mr. Tribe: Isn't your overbreadth argument, though, isn't the bottom line that it's unconstitutional on its face and that if they want to apply it to a permissible category of activity, they should redraw it?
Mr. Tribe: --Redraw it or more narrowly construe it.
That is, I don't think that... so, this Court--
Mr. Tribe: We can't do that.
They can't proceed--
Mr. Tribe: --That's right.
We're not asking this Court to do it, but I think that even in Schaumberg--
Mr. Tribe: --Oh, yes.
Mr. Tribe: --It was not clear that one had to go back to a legislative drawing board.
It might be clearer that a lower court might be able to redraw it.
Mr. Tribe: So... but you don't know what the Minnesota court did?
Mr. Tribe: We don't know what they would do.
As matters now stood, they said that the rule... in a footnote they indicated the rule could constitutionally be applied to commercial vendors of literature and of other materials.
Mr. Tribe: Did they say whether the ordinance was severable in the sense?
Mr. Tribe: They didn't address severability.
Mr. Tribe: All they did was enjoin its enforcement against these litigants.
Mr. Tribe: That's right.
They did not strike it down on a ground as broad as we think would be appropriate for this Court.
Mr. Tribe: Well, even under their holding I don't think the candidate for political office could get the benefit of this rule.
Mr. Tribe: Well, the dissenting justices didn't quite agree.
Justice Todd, joined by two other members of that court, said that although the majority might not have adverted to it, because the respondents here made no claim for some special treatment and because no principled line could be drawn between religion and politics in this context, indeed, other groups would be exempt.
Mr. Tribe: And you agree with that?
I'm not sure that the dissenting opinion is the best guide as to what the majority meant.
Mr. Tribe: No, except the majority didn't disagree.
Mr. Tribe: Well, yes, their order is very specific on A-68.
It just enjoins the application of the rule to these litigants.
Mr. Tribe: That's right.
That is the only order we think this Court needs to affirm.
Mr. Tribe: And it also emphasized the special character of these litigants in its opinion.
Mr. Tribe: Insofar as that made it easier to decide the case.
What we are--
Mr. Tribe: What I'm saying is, they clearly have not decided anything other than the fact that these litigants are entitled to relief.
But you agree with the dissenters to that extent?
Mr. Tribe: --To that extent, Mr. Justice Stewart.
I think it's right that we agree that no principled line could be drawn and we don't urge this Court on what we think would be a disingenuous basis to uphold what would be a very narrow decision.
We think it really is broader, broader than that, necessarily.
Mr. Tribe: No, we got into this because Justice White asked you if the rule was invalid on its face or if the lower court had so held, and I say, it clearly did not so hold.
Mr. Tribe: It clearly did not so hold.
We think it clearly is, however, invalid on its face.
Mr. Tribe: Would it give you more relief than you got if it were stricken down on its face?
Mr. Tribe: No, not... I don't think it would give us any more relief.
It might give more solace to a number of other organizations that believe that the rule inhibits their First Amendment rights and because we are making an overbroad attack.
Mr. Tribe: Well, why are you entitled to urge us to declare it unconstitutional on its face?
As long as it's unconstitutional as to you?
Mr. Tribe: I suppose that it would be an ironic--
Mr. Tribe: Overbreadth usually applies when it's not unconstitutional as to you but it may be as to others, doesn't it?
Mr. Tribe: --Well, I suppose the answer is that we are arguing that whether or not all of the activity in which respondents have engaged and seek to engage come within the protected core, we are entitled to have the rule struck down insofar as its enforcement against us with respect to the proposed activities is contemplated.
In that sense, even though clearly we are not among the many other organizations whose rights we would seek to champion, and even though we are not, as perhaps the Citizens for a Better Environment was in the Schaumberg case, in the troublesome position of not even being able to plausibly claim, or at least not being able convincingly to show that we are likely to be in the core, we are not invoking overbreadth out of necessity, but it's not a gratuitous invocation because we do think it important to explain why all of the allegations about possible misconduct are irrelevant.
They're irrelevant because the claim made here is that it would not be constitutional to apply the booth rule to prevent the activities that we in out complaint sought to engage in.
Mr. Tribe: But it seems to me there's a refinement here and that is that theoretically, at least, and I don't know whether this is the correct answer, the rule might be overbroad only to the extent that it prohibited the free handing out of literature.
And if the ruling on that ground was the ultimate decision, that wouldn't do your clients any good.
Mr. Tribe: It would do them some good, but they--
Mr. Tribe: As I understand it, they don't want to do that.
Part of their mission is to get money--
Mr. Tribe: --They would much rather do more.
Mr. Tribe: --Isn't it part of their religious mission to get the money at the time--
Mr. Tribe: It is their religious... it is--
Mr. Tribe: --they engage in this transaction because they don't give these things away.
Mr. Tribe: --That is part of their religious mission, but it would not be incompatible with the religion if that was the best that one could possibly do, to hand out literature which exposed people to the religion and informed them of how they might make subsequent contributions.
I see my time is up.
Chief Justice Burger: Do you have anything further, counsel?
Mr. Harbison: Yes, Mr. Chief Justice.
Chief Justice Burger: Very well.
ORAL ARGUMENT OF KENT G. HARBISON, ESQ., ON BEHALF OF THE PETITIONERS -- REBUTTAL
Mr. Harbison: I'd like to take up, may it please the Court, on that very point.
Under Minnesota statutes, every law in Minnesota is severable unless it's expressly provided not to be.
Furthermore, the comment that the Minnesota Supreme Court suggested some lesser restrictive alternatives to the rule has to be taken with the understanding that their decision was based upon the assumption that they were dealing only with one organization, not with potentially 30, 40, 50, 100, whatever it might be.
I suggest that in light of the fact that they found substantial public purposes furthered by the rule, they would have concluded very likely that in a different way, because their allegedly less restrictive alternatives would not fit in the same context.
So the basis for those alternatives is no longer there.
Without the booth rule I'm suggesting that the entire nature of the state fair would be changed drastically and that's one of the factors this Court has typically looked at, the nature of the forum here.
And I'd like to emphasize that the event of the annual state fair is not on the same plane, it's not the same as a public park or a public street corner.
Mr. Tribe: Mr. Harbison, can I ask you one question about the meaning of the rule?
I thought I understood it before but I'm not sure I do now.
In the stipulation, the rule is quoted and it refers to
"sale or distribution of any merchandise, including printed or written material, except under license issued for from the society and/or from a duly licensed location. "
Now, as I read that, it does contemplate some licenses for distribution that are roving licenses, in effect.
Is that right?
Mr. Harbison: I think the literal language of it on the face would indicate that, but it's never been applied outside the booth context in the Minnesota Supreme Court interpretive--
Mr. Tribe: You don't even have any roving hot dog vendors or anything like that or?
Mr. Harbison: --No, Your Honor, there are no roving--
Mr. Tribe: Good Humor man or anything like that?
Mr. Harbison: --sales activities whatsoever.
Chief Justice Burger: Thank you, gentlemen.
The case is submitted.
Mr. Tribe: The Honorable Court is now adjourned until Monday next at ten o'clock [= 10:00].