INT. SOCIETY FOR KRISHNA CONSCIOUSNESS v. LEE

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Argument of Barry A. Fisher

Chief Justice Rehnquist: We'll hear argument first this morning in No. 91-155, International Society versus Krishna Consciousness v. Walter Lee, and Walter Lee v. International Society for Krishna Consciousness.

Mr. Fisher.

Mr. Fisher: Mr. Chief Justice and may it please the Court:

Born at the onset of the Seventies and by the early Eighties the subject of an unusual consensus of 30-plus cases, now in the Nineties the issue presented today of airport crossroads as commerce and idea marketplaces may well serve to shape the future of the public forum as we not long from now end this and enter the next century.

And it's from the vantage point today of what so many cases, including six circuits, the Canadian supreme court, findings of Congress and the FAA with its special knowledge and airport expertise, almost 20 years of time, place, and manner regulations that have been tailored by airports throughout the country to ensure and protect the free and unburdened passenger flow at airports, also today some free market and other analysis supplied by amici, Free Congress Foundation and Concerned Women for America, and also unlike perhaps any case in recent times, a kind of special judicial notice because everyone in the courtroom has probably witnessed what's at issue here.

Indeed, Your Honors, from the Ninth Circuit's Kuszynski... the '73 case, not the judge... to the present, no kind of forum has been the subject of so much analysis covering so many facets, and it's from this vantage point that we present this case today which began 17 years ago with a very fast track start of a TRO hearing within less than an hour of filing the case that I had with my colleague here, Mr. Berg.

But soon the case took a slow track nose dive, and the first 13 years of the case... '75 to '88... focus solely on the airline leased terminals as opposed to the Port Authority unleased general circulation areas, which the Port Authority months before we filed the case, months before we talked about the case, said was subject to no regulations excluding ISKCON, and the Port Authority agreed to ISKCON's very limited presence and subject to detailed Port Authority tailored time, place, and manner regulations, and these regulations were altered over the ensuing 13 years as the Port Authority saw its needs increase, and I want to give an example.

The only place at Kennedy Airport that was allowed then and is allowed to this day is an off-the-beaten-track area in the mezzanine area of the international arrivals building.

It's in the vicinity of the stained glass chapel that holds regular Catholic, Protestant, and Jewish services.

Now, during the first 13 years of the case the Port Authority neither disputed that those areas that they allowed ISKCON to be in were public fora nor did they complain about the agreement, and the airport deputy director, Mr. Sloane, testified in his deposition in 1985 that the arrangement with ISKCON worked out okay.

But Your Honors, in 1988, ISKCON settled with all the airlines.

At one point the district court ordered in every airline from Aeroflot to Zambia Air, but we settled with all of the airlines and the Port Authority standing alone for the first time in the history of this case and perhaps inspired by Jews for Jesus that not long ago at that point expressly left the public forum issue open, in 1988 for the first time in this case the Port Authority put the nonleased areas at issue when it declared at a summary judgment proceeding--

Unknown Speaker: Mr. Fisher--

Mr. Fisher: --Yes, Your Honor.

Unknown Speaker: --Are you making some point that they have waived that or that the Second Circuit was wrong in dealing with it on the merits?

If not, why do you spend so much time on that?

Mr. Fisher: I think what this case is about, and what the--

Unknown Speaker: Can you answer my question?

Mr. Fisher: --The answer is no, Your Honor.

I'm not--

Unknown Speaker: You're not arguing that--

Mr. Fisher: --I'm not arguing that point, and the reason I'm presenting this is that I think that it's important for the actual factual context of this case and the importance or nonimportance of facts that are now being argued to the Court be put in perspective as to what this case is about, so I think it is important for the Court to understand this, and I'll just spend another minute or two on it.

But at the summary judgment hearing it was announced for the first time that a regulation had just been promulgated banning ISKCON's literature distribution and solicitations, but Your Honors, at that summary judgment hearing which was held 4 years ago today on March 25, 1988, Mr. Berg at Joint Appendix 496 underscored that the ban was based on purpose characterization, a legal presentation, and not anything to do with ISKCON's conduct, and that if the Court did in fact determine that the areas in question were public fora, then as far as he was concerned and the Court Authority was concerned, and he said, we don't object to the present arrangement that's been made.

Now, for the first time in this case the briefs here say that if it is a forum it can still be excluded.

Now, the Port Authority enacted this regulation, announced that day, behind closed doors without any record, without any hearing, except a preamble, and that makes clear that it was directed at ISKCON's scripture ministry which consists of religious book distribution and solicitations from book-takers of a printing cost-defraying donation without which their ministry would be crippled.

Now, the regulations preamble singles out ISKCON in a way that is not so different from the way that the Moonies were singled out in the law that was struck down in Larson v. Valente and the laws we cite in our reply brief in the 1880's that were tailored to exclude the Salvation Army from their particular mode of expression.

Now, as I've said, the petitioners have continued their activity at the airports during the last 4 years, as they have for the 13-plus years before, pending review of this law that categorically bans their literature distribution and solicitations in the terminals if done for any length of time, no matter how innocuously conducted, but the regulation does recognize that the terminals are fora for and does permit continuous preaching, but not 1 Timothy 5, and it allows repetitive singing, but not the praises of solicitations.

It does--

Unknown Speaker: --Mr. Fisher--

Mr. Fisher: --Yes, Your Honor.

Unknown Speaker: --Would you conceive that the airport could limit access to only ticketed passengers?

Mr. Fisher: Yes, Your Honor, and in fact the--

Unknown Speaker: And it did so rather recently in many areas--

Mr. Fisher: --In Desert Storm.

Unknown Speaker: --Did it not?

Yes.

Mr. Fisher: Yes, and that wasn't the first time that that happened.

Over the 17 years of this case there have been storms, there have been wars, there have been a number of instances where all or part of the airports have been restricted to ticketed passengers.

Unknown Speaker: Do you think that that conceded ability of the airport to limit access bears on our forum analysis in any way?

Mr. Fisher: Not on the question of whether the airport is a forum or not.

It bears on the question of what time, place, and manner regulations would be appropriate, and in fact I mentioned airports throughout the country that have time, place, and manner regulations, they typically provide for emergency situations and what-have-you where it's necessary to--

Unknown Speaker: Well, I would have thought that it had some relationship to the analysis in Kokinda, for example, and I just wondered how you would characterize that.

Mr. Fisher: --I don't think that the question, again, of whether the airport is a forum which can be subject to time, place, and manner regulation as it has been for these 17 years is answered by the question of whether, in an emergency or some catastrophe or whatever, areas in addition to areas that normally would be no problem for passenger flow or whatever, whether those areas also could be closed at that time.

I don't think that answers the question in and of itself, the fact that at some points it could be closed.

I mean, obviously the sidewalks and the parks can be closed at certain times, but that doesn't answer the question as to whether they are classic public fora.

I was commenting on this regulation of what it allows and doesn't allow.

Yes, Your Honor.

Unknown Speaker: You would say that if an airport permanently permitted only ticketed passengers that you would think that was invalid.

Mr. Fisher: Not necessarily.

I think--

Unknown Speaker: Well, it's hardly a time, place, or manner--

Mr. Fisher: --Well, it wouldn't be--

Unknown Speaker: --Regulation, is it?

Mr. Fisher: --No.

Your Honor, it's true--

Unknown Speaker: Just as long as it's forever, that's a time all right.

Mr. Fisher: --That's a time--

[Laughter]

And what the petitioners do is a manner, I suppose, but the... you know, we might come back to a Court such as this, if that were the case, and argue that it didn't make any sense whatsoever and challenge it under the Court's jurisprudence regarding time, place, and manner regulations, and say that that isn't the time, place, and manner regulation.

Unknown Speaker: What jurisprudence is that?

Are things that don't make sense jurisprudence?

This is either a public forum, in which case--

Mr. Fisher: Well, I would hope it at least includes that.

Pardon?

Unknown Speaker: --This is either a public forum, in which case things that make sense have to be allowed, or it's not a public forum, in which even things that make sense don't have to be allowed.

I mean, that's simply the issue, isn't it... whether it's a public forum or not, and--

Mr. Fisher: Whether it's a public forum--

Unknown Speaker: --I don't see how you can answer Justice White to say that the airports can keep everybody out except ticketed passengers and yet still maintain that it's a public forum.

Mr. Fisher: --Well, I don't know what it would look like if they really did that. It would not make it a--

Unknown Speaker: I don't care what it would look like.

You acknowledge they can do it.

Mr. Fisher: --I acknowledge that you can have an airport that did that.

It wouldn't have the attraction of shops, and therefore there wouldn't be shops, and there wouldn't be a lot of the things that are at the airports--

Unknown Speaker: Well, if it's not a public forum... I mean, you couldn't do that with the public streets, could you?

You couldn't say nobody on the public streets.

Mr. Fisher: --In some places and some times, you can close streets.

Unknown Speaker: Yeah, but not forever.

Not forever.

Let's just talk about Kennedy Airport.

Now, do you agree that the Port Authority could ban all people from the airport except ticketed passengers inside the terminal, or not?

I thought you said yes a while ago.

Mr. Fisher: I said yes in the context of the fact that happens on occasion.

Now, whether they could do it all the time would--

Unknown Speaker: It can't be a public forum if they could do it all the time.

Mr. Fisher: --Well... all I meant by that was that it would be subject to time, place, and manner regulation, and I would argue that they couldn't, but in fact they do sometimes close the airports.

Unknown Speaker: Well, why couldn't they limit it to ticketed passengers?

Your answer is because it's a public forum.

Well, that's just--

Mr. Fisher: Thank you.

[Laughter]

Unknown Speaker: --Well, that's just circular, to say that they can't because it's a... what we do is look at the way a thing exists and decide whether it's a public forum, not say in advance it's a public forum and therefore it has to exist in a certain way.

Why isn't your answer the fact that they have not done that?

You can close parks too, I suppose, but that doesn't stop it from being a public forum.

Mr. Fisher: Well, that obviously is true, that this has never happened.

It's happened for short periods of time.

We are talking theoretically, and I guess I could envision some airport that wanted to do that, and let me just say that over the years of this litigation where airports decided to close off... I mean, it wasn't always that ticketed passengers at some airports couldn't go beyond a security check, but now in some places they do that, and generally ISKCON has respected that and not challenged that proposition.

If it wasn't open to the general public beyond the security check area, then they sought the general circulation areas where the general public was allowed.

Unknown Speaker: Well, is there anything that--

--What were the findings of fact by the district court?

Didn't the district court make some findings as to people... what class of people use the airport?

Mr. Fisher: Yes, Your Honor.

Unknown Speaker: What I'm trying to get at, do people simply come out to the airport to shop even though they're not meeting anybody or sending someone off or themselves traveling?

Mr. Fisher: Yes, Your Honor.

There's a wide variety of people that come to the airport.

Unknown Speaker: Well, did the district court make findings?

Mr. Fisher: Yes, Your Honor.

Unknown Speaker: What are they?

Mr. Fisher: I cannot refer you to the page.

Unknown Speaker: Well, I mean if you could generally--

Mr. Fisher: The findings were generally characterizing the airport, pointing out that people come to the airport, first of all travelers, and they're there and they're waiting around because of delay, cancelled flights--

Unknown Speaker: --Could you address yourself to my particular inquiry?

Mr. Fisher: --Yes.

Meeters... there are meeters and greeters, they have art and music exhibits and events at airports that are designed to attract people.

There are people that do go to the airport shops to shop.

There are very profitable--

Unknown Speaker: I realize that, but--

Mr. Fisher: --Yes.

Unknown Speaker: --Let me rephrase my question, since you apparently didn't understand at first.

I'm sorry.

Are there people who go out to the airport who are not either meeting planes or to greet someone or send someone off on a plane or to get on a plane themselves or to get off a plane themselves?

Mr. Fisher: And the answer is yes.

There are people that are curious, people that hang out at airports, that go to Anton's at National Airport--

Unknown Speaker: Did the district court find on this particular point?

Well, maybe... maybe--

Mr. Fisher: --I'm sorry, I cannot refer you... I cannot refer you to a specific--

Unknown Speaker: --Maybe you could cover... then what was your answer based on that you gave me just now if it wasn't on a district court finding?

Mr. Fisher: --There are materials in our brief that set out statistics regarding the nature and interest of the people that go to the airports, and it's a wide variety, and it's all set out in our brief.

Unknown Speaker: To Kennedy Airport?

Mr. Fisher: Yes, Your Honor, and airports generally in the country.

Unknown Speaker: Mr. Fisher, would it make any difference to the significance of your case if the answer was no, that nobody went out there who was not either going out to get a plane or meet somebody, but that they did other things while they were there?

In other words, obviously they don't have to go to a Bloomingdale's in order to meet a plane.

Wouldn't your position be just as strong or just as weak, as the case may be, if the answer were nobody went out there except to meet a plane, but they also when they did go out there they went out to do other things, and the Government in effect has created a space in which that in fact is done?

Mr. Fisher: The answer is yes, Your Honor.

The airports are designed to attract large numbers of people and to fill their time while they are waiting, and people wait whether they're meeters or greeters or people on journeys.

Unknown Speaker: They're designed to attract people.

You mean, they're trying to get more people into Kennedy Airport?

[Laughter]

Mr. Fisher: Yes, they're trying to get people to come there.

Isn't that surprising?

Unknown Speaker: I know a lot of people who go out of their way to avoid Kennedy Airport.

[Laughter]

But I don't know anybody that goes there--

Mr. Fisher: Your Honor, there are--

Unknown Speaker: --Just to be part of the crowd.

Mr. Fisher: --There are wonderful shops there.

For 17 years there's been the opportunity for spiritual counseling, there's a... there's such a wide variety of opportunities for spending time out there.

Unknown Speaker: Can you argue, counsel, that it is consistent with our precedents to say that a public forum exists in part depending upon the uses to which the Government decides to put the property from time to time?

Mr. Fisher: Yes, Your Honor, I think that is a factor.

This gets into perhaps a designated forum.

Unknown Speaker: So the fact that the Government or the airport authority can close the airport is under that theory irrelevant if in fact it has not done so.

Is that the theory of your case?

Mr. Fisher: The theory of the case first of all is that the airport is a transportation crossroads and we've made an argument of crossroads and transportation nodes in history that are marketplaces for commerce and ideas and that are appropriate places for First Amendment expression.

That's the first argument.

Unknown Speaker: Well, I'm still puzzled as to the answer to my question.

Is it your theory of the case that a public forum either exists or doesn't exist depending upon the uses to which the Government has decided to put particular property?

Mr. Fisher: There would be the argument discussed before that even if arbitrarily and suddenly they decided to close the airport to the nonticketed public that it would still be a public forum.

The fact here is that these airports and airports generally serve a billion people a year half of which are nontravelers and they are set aside and designated and utilized by a wide variety of public and the public is encouraged by a wide variety of shops and what-have-you to spend time there, to spend money, and to utilize the airports in ways that public malls are--

Unknown Speaker: Well, I'm trying to ask you to focus on the precedents of this Court and to ask you whether or not we approach a public forum by determining whether or not property has certain objective traditional criteria like streets and parks so that we know it's a public forum from that standpoint, or whether or not the analysis is different.

We look to see property to property, city to city, airport to airport, how this particular airport or property is now being used, and if it's the latter, I'd like to know what in our cases supports that proposition.

Mr. Fisher: --The cases that we rely on for the proposition that the airports as a general proposition throughout the country, like streets and parks, are thoroughfares and sidewalks and the same sort of enterprise of Government that provides a place for commerce and ideas to be disseminated is the public street cases and all of the park cases and it's a jurisprudence that is not so well developed.

There are not so many cases that define the public forum.

You have a first case of Hague v. CIO that makes some comment about from time immemorial.

You have cases that we cited that go back to the last century.

The Salvation Army cases, which were State supreme court cases that talk in terms of natural law and common law, and it's this tradition, it's the accepted social norms that we pointed to in our briefs that show that the fanning out of religious true believers and others throughout the country to transportation centers through history--

Unknown Speaker: Perhaps with the consent of the people who owned the transportation centers.

Mr. Fisher: --Sometimes that's the case.

Unknown Speaker: Do you have cases that show that these people were sought to be excluded and the court said no, you can't exclude them from, let's say, Penn Station, which was privately owned?

Mr. Fisher: Well, the Salvation Army cases that we came across from the 1880's, soon after the Salvation Army came through Ellis Island to these shores, were cases where the cities tried to exclude them and they weren't based on First Amendment law but the courts talked in terms of natural law or common law, and it's true, you know, we have a history that we've shown in our brief of the fact of this activity taking place, of the fact of broadsides and pamphlets being distributed everywhere where there were people in the 18th Century, and the American Track Society and others sending out their culpators to pioneer wagon train trailheads and to docks and to riverboat sidings and everywhere else.

Unknown Speaker: I know, and private hotels let the Gideon Society put Bibles in their rooms, too, but that doesn't make that a public forum, just because they choose to allow that.

Mr. Fisher: I'm not arguing that it does make it a forum, but to the extent that the word tradition comes into play and history is any part of the decision, looking to what was accepted, what really occurred over our history, is something that the Court should consider, and so looking to what has been the history, what has been accepted, what were the social norms, is what we've presented in part in our argument.

Unknown Speaker: Maybe you're not making... it seems to me that what you have to show was accepted is not just that people they like were allowed there, you have to show that people they didn't like were allowed there, that people they didn't want were allowed there.

All that your brief shows, I think, is that the people that own these facilities or the municipalities that own these facilities liked to have certain people there, but you never show that somebody that they didn't like could not have been excluded.

Mr. Fisher: Your Honor--

Unknown Speaker: And that's what a public forum is.

You have to let the person jump up on a soap box and talk about the most absurd and in the view of the person who owns the place the most objectionable matter.

Mr. Fisher: --Well, many of these religious groups in the 18th Century and 19th Century that we point to are the predecessors of the Hare Krishnas.

They were unpopular groups that fanned out, that were going everywhere they could to public places, and this case does not turn on hotels and private places.

We don't make that argument in our brief, Your Honor.

Unknown Speaker: Yes, but the case does turn on some proposed theory from you as to when we have a public forum, and I must say I infer from your answer to me and your colloquy with Justice Scalia that the approach I suggested is not justified by our cases and would be considerable departure from our analysis.

You seem to be resting on the idea that we know if a public forum is a public forum based on tradition.

Mr. Fisher: That's a factor--

Unknown Speaker: An airport is or it isn't, and I--

Mr. Fisher: --No, I think that's a factor--

Unknown Speaker: --I am rather surprised that you take that approach.

Mr. Fisher: --No, Your Honor, you misperceived what I say.

As we said in our briefs, we argue the characteristics of the facility and its similarity to streets and parks, we argue the history of acceptance regarding public transportation centers throughout American history and even English common law history, and we point to the actual facts of the New York Port Authority and the history of the people that are there, and the designation and allowance of this activity for all these years.

It's a recent convention, it's a tradition, it's all of these things that come together that make this a public forum, and I'd like to reserve the rest of my time.

Thank you.

Unknown Speaker: Very well, Mr. Fisher.

Mr Berg, we'll hear from you.

Argument of Arthur P. Berg

Mr. Berg: Mr. Chief Justice, and may it please the Court:

The record in the instant case establishes that virtually everyone who enters the terminal at Kennedy, La Guardia, and Newark, does so for a purpose related to air travel, and that was reflected in the decision by the Second Circuit which is found at appendix 5 in the Petition for a writ of cert.--

Also, I'd like to make clear that the consistent Port Authority policy has always been to oppose solicitation and distribution of literature in the air terminals.

The agreement referred to by Mr. Fisher was made between counsel and was motivated on the part of the Port Authority by a litigation strategy in order to avoid the granting of a preliminary injunction which in our view would have granted greater access to our facilities than the agreement which we reached, and the agreement... it was always understood that the agreement was during the pendency of the litigation.

At a hearing before the magistrate after our new regulations were adopted in 1988 Mr. Lieberman... and this colloquy is found at page 498 and 99 of the joint appendix... Mr. Lieberman, representing the Krishnas, said that he just found out about the new regulation a few days ago, but I don't really think it changes anything because the port in their opposing papers made it very clear what their policy was.

That is, that the airport terminals are a nonforum, that their policy is to exclude the distribution of literature and solicitation of donations in the general circulation areas controlled by the port.

Unknown Speaker: What are you reading from?

Mr. Berg: This is page 499 of the joint appendix.

Unknown Speaker: And you're reading from the district court--

Mr. Berg: This was a hearing before the magistrate.

Unknown Speaker: --You were arguing.

Mr. Berg: Excuse me?

No, I was reading what Mr. Lieberman stated.

Unknown Speaker: Thank you.

Mr. Berg: Conceding that the Port Authority had not changed its position, and that the regulations didn't alter the Port Authority's policy that we have always maintained.

Unknown Speaker: Just so I understand it, your regulation would prohibit handing out pamphlets relating to candidates in a presidential campaign at the time of the general election.

Mr. Berg: That is correct, Justice Kennedy.

Unknown Speaker: Does the regulation allow the gathering of signatures on petitions in the airport?

Mr. Berg: It would allow that as long as there was no distribution of literature and as long as it did not create--

Unknown Speaker: I thought the regulation only went to repetitive distribution of literature.

Am I wrong?

Mr. Berg: --No, that is correct.

Unknown Speaker: Well, by repetitive, does that mean to more than one person, or does that mean on more than one occasion, or what?

Mr. Berg: Well, there's two words used.

It prohibits continuous or repetitive distribution of literature, and Black's Law Dictionary--

Unknown Speaker: Well, does that... as you understand it, would it prohibit a local charity, for example, from going to the airport on a given day and handing out a bunch of leaflets encouraging people to participate in a fundraising activity to many people, or does it just prohibit coming back day after day to do that?

I don't understand.

Mr. Berg: --Our understanding is that it would prohibit a one-day activity.

That would be continuous or repetitive.

Unknown Speaker: To more than one person.

Mr. Berg: Right, to more than one person.

The idea was to exclude a passing of a note, say, to a companion, to make it clear that it did not apply to that situation, or if one traveler said to another traveler, would you like to contribute to my--

Unknown Speaker: Well, let me ask you this: suppose it's a nonpublic forum, do the regulations still have to meet a reasonable test, do you suppose?

Mr. Berg: --I believe they do.

The regulations, as I read this Court's decisions on nonpublic fora, they must be reasonable and viewpoint neutral.

Unknown Speaker: And in an airport that has a lot of commercial activity and permits people to stand around and visit and allows children to play, and petition signatures to be gathered and one thing and another, do you think it's reasonable to prohibit the passing out of literature in the public area?

You defend that as being totally reasonable.

Mr. Berg: I do, Your Honor.

Unknown Speaker: And why?

Mr. Berg: Because our experience has shown that this type of activity solicitation and distribution of literature is inconsistent with the air travel purpose to which the airports are devoted.

Unknown Speaker: Well now, how can you say that handing out a leaflet to someone who wants to accept it is inconsistent with the other activities that the airport has allowed, and hasn't this Court drawn a distinction in part for solicitation, which requires much more?

Mr. Berg: This Court has drawn such a distinction, and I agree that solicitation is more disruptive and that solicitation also has other problems attached to it such as it's conducive to fraud, but I also believe that distribution of literature is also disruptive and that it would be reasonable to prohibit such activity.

It has many of the same attributes that solicitation does.

It still interferes, creates congestion, delay, interferes with people's passage.

Unknown Speaker: Well, does it bother you if you say no thanks, and keep walking?

I mean, I don't understand.

Mr. Berg: Presumably with a solicitor you could also say no, I'm not interested, and keep walking, but the activity at the airports is... does cause delay by stopping people, even if it stops a person who wants to discuss it.

That backs up people behind them.

Unknown Speaker: Well, isn't the answer that it does bother you, but there are a lot of things in the First Amendment that bother you?

That's what the First Amendment is for, is to bother people.

[Laughter]

Mr. Berg: The issue, I believe, is where this type of activity is appropriate.

Unknown Speaker: Mr. Berg, are you sure you want to concede that the First Amendment requires that even in nonpublic forums any limitations you impose have to be reasonable, it's sort of an overarching reasonableness requirement for all areas that are at all publicly owned or publicly regulated, a sort of general Federal administrative prescription that every rule has to be reasonable?

Mr. Berg: I believe this Court in Cornelius and other cases has stated that even in a nonpublic forum--

Unknown Speaker: You can't have content discrimination, I suppose, but does every restriction have to be a reasonable restriction?

Now, I... that's a... I--

--Well, at least that's what this Court has said, right?

Mr. Berg: --Right.

It has said--

[Laughter]

It has also said that it need not be the most reasonable nor the only reasonable, and I think there is a low level of scrutiny in a nonpublic forum.

Unknown Speaker: Mr. Berg, doesn't reasonable mean you have to be judged in some kind of a functional term, and doesn't that prevent there being any kind of a blanket rule, necessarily, for all airports?

If the Government constructed a comparatively small airport in the City of Washington and said we're sick and tired of having all of the designer shops and the crowd that they attract, we're going to have nothing but plain, narrow corridors leading from a front door to the place where you get on the plane, wouldn't the question of reasonable regulation, and wouldn't the question of whether a public forum had been created or not be affected by simply the physical characteristics and the capacities of the airport as distinguished from the kind of airports that we're talking about here, in which there is an apparent desire to, or a compatibility with attracting crowds for something other than just getting on and off planes?

In other words isn't there a functional component to this that forbids us to talk about airports in the abstract?

Mr. Berg: Well, I believe that our airports are typical of--

Unknown Speaker: Well, how about the answer to my question?

I mean, don't we have to approach it on a kind of functional capacity basis to begin with?

Mr. Berg: --I believe that you have to look at each individual case and look at the purpose of the facility, the nature of the facility, the characteristics, and to the extent that other airports would be different than our airport, you would have to look at that--

Unknown Speaker: Well, do you agree that if an airport is compatible with and has apparently been designed for and used for the kind of functions that historically have taken place in town centers, in courthouse squares, in sidewalks and things like that, that the answer to the question of whether a public forum had been created there would be different from the answer in the case that I gave in which a no-frills airport with narrow corridors had been created?

Wouldn't the answer be different?

Mr. Berg: --If an airport terminal was the substitute for a public street, the answer would be different, but the concessions at major airports are designed for the people who are there for an air travel purpose, not for the general public.

Unknown Speaker: So that you think that regardless of the characteristics of the particular airport it's the intention of the Government that determines whether or not it may be treated as a public forum?

Mr. Berg: It is the... I think the major consideration is the purpose of the facility as shown by--

Unknown Speaker: Well, is purpose... are you talking... when you say purpose, do you mean intention, or do you mean the apparent functional capacity of what has been created?

Mr. Berg: --I mean the purpose to which the property is dedicated.

Unknown Speaker: So that if the Government says we're going to build an airport, we're going to have vast expanses of meeting places, shops, stores, we're going to have restaurants and invite the world in, but we're doing this only for the ultimate purpose of facilitating air traffic and nothing which is in our judgment incompatible with that can be allowed, that would foreclose the question whether there was a public forum or not.

Is that a fair summary of what you're saying?

Mr. Berg: No, I don't believe that the Government by Government fiat can dictate what the purpose is.

Unknown Speaker: Okay.

Now, what's the distinction, then, between that case in which you don't allow the Government fiat and the case that we've got before us?

Mr. Berg: In this case all the record evidence supports the finding that the sole purpose of the air terminals at Kennedy, La Guardia, and Newark Airports are to facilitate the safe, efficient, and convenient movement of air travel.

Unknown Speaker: So you rest in effect on the factual findings as you understand them that the function of the airport as an airport is inconsistent with leafleting and solicitation, is that the nub of it?

Mr. Berg: That is correct.

We believe that it's demonstrated that it's inconsistent and that such activity causes delay, congestion, that the people at the airport are a captive audience--

Unknown Speaker: So... and I don't mean to interrupt you unduly, but the real difference, then, between you and your brother is a disagreement over the significance of facts in this case, then.

Mr. Berg: --Well, I think it's a disagreement over the controlling factors in public forum analysis.

We believe--

Unknown Speaker: But it's also a disagreement in fact.

I understand him to be saying there is plenty of room for distributing leaflets and soliciting change.

Mr. Berg: --Well, I think he disagrees with the purpose of the facility, which is uncontested in the record and which was found by the Second Circuit--

Unknown Speaker: Oh, he disagrees with more than that.

He says that an airport is a traditional public forum.

That is, whether you want it to be exclusively for travelers or not, it can't be exclusively for travelers.

He says it's like public streets.

He says it's like public parks.

You cannot stop that from being a public forum.

I thought that was his argument, that airports you must allow outsiders into airports, you must allow literature to be passed out, because it's like the public streets.

Isn't that more than differing on the facts of what you've allowed in this particular airport?

Mr. Berg: --Well, I think that we have... we have demonstrated that all the characteristics of the airport distinguish it from public streets.

The location of the airport--

Unknown Speaker: But he's making a fundamental argument that does not hinge upon what you in this particular airport have in fact allowed the public to do.

He's saying all airports, just like all public streets, must allow these things.

Isn't that fundamentally different from your contention, and different on something other than the facts?

Mr. Berg: --That is correct.

It's the characteristics that we disagree on... the location, the presence of captive audiences, we think all these--

Unknown Speaker: Facts have to do with whether this is a designated public forum, where... they have to do with whether, even though it isn't a traditional public forum, you have chosen to make it that, and that it seems to me is quite a separate question, and maybe we ought to discuss the two separately.

Mr. Berg: --There is no contention here, from what I understand, and the Second Circuit found there wasn't a contention, that this is a designated public forum.

Unknown Speaker: May I ask, Mr. Berg, you had this long history under the sort of tentative settlement or stand-by agreement, or whatever you might call it.

Did the district court make any findings about the extent to which there was in fact interruption with access to the planes and the kind of thing that troubles you?

Mr. Berg: No, Your Honor.

This case was decided on a motion for summary judgment so there was not a trial.

Unknown Speaker: Do you think we should just presume that there's going to be all this crowding and interruption, or should there be a remand for hearings on that issue?

Mr. Berg: I don't believe there should be a remand.

I think the record, the affidavits in the record and the uncontested facts are sufficient for this Court to find that the air terminals are nonpublic fora and that it's reasonable to prohibit solicitation and distribution of literature.

Unknown Speaker: Is it reasonable for us to find that solicitation at this airport causes a serious problem with reference to the convenience of passengers and the congestion of traffic?

Mr. Berg: Yes, Your Honor.

Unknown Speaker: Is that uncontested, in your view?

Mr. Berg: The Second Circuit made a finding that solicitation would be even more of a problem here at air terminals than it was on the sidewalk involved in the Kokinda case.

Unknown Speaker: It made a finding.

Mr. Berg: They held that because of the nature of air travel, with passengers going through the terminal buildings, rushing to catch a plane or going to secure ground transportation, carrying luggage, that it would be more disruptive here than in Kokinda to allow solicitation.

I think that this case is quite close to the recent decision by this Court in Kokinda.

In fact, I think Kokinda was a more difficult case than this case, because in Kokinda the Government had to overcome the strong presumption that any sidewalk was a public forum.

In the instant case, airport terminals, unlike sidewalks, have not long been devoted to expressive activity.

Significantly, in Kokinda, in the course of holding that a postal sidewalk was not a public forum, the court set forth a number of critical factors, all of which are present in the instant case.

First, this Court noted that the Government has much greater flexibility in restricting First Amendment activity when it is acting as the operator of a facility rather than as a Government regulator.

In the instant case, as in Kokinda, the Port Authority is acting as the operator of a facility rather than as a regulator.

Airports, like post offices, are intended to be operated much like private businesses and be as self-supporting as possible.

A second critical factor in Kokinda, and also present here, is the special purpose of the forum involved.

This Court noted that the sidewalk involved in Kokinda was constructed solely to assist postal patrons to negotiate the space between the parking lot and the front door of the post office and not to facilitate the daily commerce and life of a neighborhood or city.

In the instant case, the sole purpose of the air terminals is to facilitate air travel.

As an airport operator, the Port Authority has a legitimate, managerial interest to preserve air terminals for their air travel purpose.

A final, critical factor set forth in Kokinda which is also present here is the physical separation of the airports from the surrounding community.

In Kokinda, the postal sidewalk was held to-be akin to the nonpublic forums of the military... the sidewalks of the military base involved in Greer and distinguished from the public forum sidewalks surrounding this Court involved in Grace.

Unknown Speaker: You allow solicitation and distribution of literature on the sidewalks anyway, don't you?

Mr. Berg: That is correct.

Unknown Speaker: So why isn't that enough, anyhow?

Why do we have to get into all the rest of the argument?

Isn't that a reasonable time, place, and manner restriction?

Mr. Berg: We do make that argument in our brief that even if it would be found to be a public forum that our regulations are valid because they are narrowly tailored and leave open ample alternative means of communication.

Unknown Speaker: I think you have the same opportunity to collect from somebody carrying a lot of baggage at the terminal in the street as you do once they get in to check their baggage.

Mr. Berg: It gives exposure to those people if they wish to contribute.

In the instant case even more than in Kokinda the airports are an enclave clearly separated from the surrounding community.

I think the Kokinda decision is also significant for what it finds to be noncontrolling factors.

Unknown Speaker: Would you help me on that separation from the rest of the community?

Why is that relevant?

I'm not sure I understand that.

Mr. Berg: I think the separation is relevant because people are clearly aware that they are entering a different facility.

They do not wander back and forth between city streets and the airport, so they're clearly aware of... the entrances and exits are clearly marked, so they are aware that they have entered a different type of facility, a special enclave.

Unknown Speaker: Where they're protected from this kind of activity.

Mr. Berg: Where the operator of the facility has the right to protect them from annoying activity, since they're--

Unknown Speaker: Would your argument be the same with regard to railroad stations if they were publicly owned?

Mr. Berg: --The railroad... a railroad station would have many of the similarities of the airport, but they also would have some differences.

One difference would be the location, and there's a possibility that the railroad terminal located in the center of the city might be used for other purposes, other than rail travel.

In Kokinda, this Court set forth a number of factors that it found to be noncontrolling, and those factors are the principal factors relied upon by the plaintiffs in the instant case.

The Court noted that public forum analysis isn't dictated by the mere physical characteristics of the property.

There a sidewalk was held not to be a public forum.

Here, plaintiffs attempt to argue that because there's some physical similarity between the air terminals and a public street, that they should be a public fora.

The Court also--

Unknown Speaker: Mr. Berg, let's assume that the airport is not a traditional public forum but that what we're arguing about is whether it's in effect a designated public forum, that you've allowed some forum-type activity and you should therefore have to allow this: I mean, you have stores, you have shops, you have a lot of those other things.

Now, you say you need a reasonable basis for excluding this solicitation and this passing out of literature.

What is the reasonable basis?

Your passengers don't like it, it's annoying to them.

Is that a reasonable basis?

Mr. Berg: --Well, the reasonable basis, Your Honor, is that it causes delay, and causes congestion, and that the passengers are a captive audience because they must be in the terminal and they must take designated routes in order to accomplish their air travel purpose.

Unknown Speaker: Well, couldn't those problems be solved by restricting the solicitors to certain areas?

You wouldn't have to keep them out of the building entirely, would you?

Mr. Berg: Well, as a practical matter, time, place, and manner regulations are very difficult to administer, and if it's a nonpublic forum, there is no requirement that a regulation be narrowly tailored as long as the regulation is reasonable.

Unknown Speaker: What do your lessees do in the forum with respect to handing out literature and soliciting?

Say there's a place where... a fast food place where you can sit down and do sit down.

Do your lessees allow solicitation?

Mr. Berg: As... they cannot... they could not distribute literature or solicit on Port Authority-controlled areas of the airports.

Unknown Speaker: Well, I know, but don't you lease out areas to stores?

Mr. Berg: That's correct.

Inside their own store they could distribute literature or solicit.

Unknown Speaker: Well, but it would be up to the lessee, wouldn't it?

Mr. Berg: That's correct.

Unknown Speaker: You don't require the lessees to keep them out or let them in.

Mr. Berg: That is correct.

The--

Unknown Speaker: So it would depend on the lessee as to whether solicitation could take place in, say, a bar.

Mr. Berg: --The Krishnas entered into an agreement with the lessees, with the airline lessees that they would not solicit or distribute literature in their areas.

They dismissed their action against the airlines with prejudice.

Unknown Speaker: But how about stores?

Mr. Berg: The issue has never come up.

I would doubt very much that the stores would permit them in their areas.

We have never had to deal with the problem.

We would have to examine the leases and determine what our rights would be under the leases.

Unknown Speaker: I take it your... I take it that your regulation would forbid solicitation or handing out of handbills at the very entrance, say, to a big store.

Mr. Berg: That is correct.

Unknown Speaker: Even though anybody who is entering that store certainly isn't on the way to a gate.

Mr. Berg: That is correct, but they would be a captive audience.

Unknown Speaker: What difference does that make, by the way?

Mr. Berg: Well--

Unknown Speaker: It just means that they are what, going to be bothered against their will?

Mr. Berg: --It means that they have no choice but to be bothered, whereas on a public street you have the option of taking a different route or being in a different location.

This Court has acted to recognize--

Unknown Speaker: Thank you, Mr. Berg.

Mr. Fisher, you have 4 minutes remaining.

Rebuttal of Barry A. Fisher

Mr. Fisher: Thank you, Your Honor.

The narrow pavement strip serving the post office parking lot in Kokinda, of course, is wholly unlike the complex environment and the actual use and the reality of the New York area airports that the district court found in its opinion to add up to it being a public forum.

The Port Authority, as is clear, allows continuous solicitations of people to read and sign petitions and membership forums, but you can't give out a self-addressed donation mailer, you can't stand there mute holding a bucket, and you can say read this and sign this, but not give or join, distinctions that are not borne out as having any impact difference in the record of this case.

And in fact this case was not ever... was not ever presented by the Port Authority as one dealing with specific impacts justifying the regulation or even before 1988 when there wasn't a regulation, they never argued the facts, and in fact the only thing in the record is this.

It's a single page, bald table with numbers, and it tells you failure to check in, to wear ID's, and some other problems that they've had in administering this, which are minor and diminished by 1980 and trail off by 1984, and the chart ends in 1986.

Unknown Speaker: Mr. Fisher--

Mr. Fisher: Yes, Your Honor.

Unknown Speaker: --Let me ask you about a procedural point.

The district court ruled in favor of your clients on a motion for summary judgment--

Mr. Fisher: Yes.

Unknown Speaker: --And the court of appeals ruled in favor of the Port Authority also.

They didn't send it back for trial.

It ruled... it kind of granted summary judgment to the Port Authority, I take it.

Mr. Fisher: I suppose so, Your Honor, and what it did that none of the litigants asked to be done.

What the court... what the Second Circuit did, even though nobody had argued this and there wasn't any evidence to support it, was to say yes on a literature distribution and no on solicitations, but there's not any evidence in the record of this case to support any such distinction.

As I say, nor was it asked for.

Unknown Speaker: So the case now... the court of appeals in its view ended the case.

There was no remand for hearing--

Mr. Fisher: Exactly.

Unknown Speaker: --Or factual development.

Mr. Fisher: Yes, Your Honor.

Also, the... you know, there was a question a moment ago about sidewalks.

Sidewalks were never mentioned in this case until the brief before this Court.

It wasn't argued in the district court, it wasn't argued or mentioned or briefed, or there's no evidence on--

Unknown Speaker: It's in the regulations, isn't it?

Mr. Fisher: --It's not even mentioned in the regulations, Your Honor.

The regulation that is the subject of this case only refers to the interiors, which have been the forum that has been the focus of this case and the attention of the district court and the Second Circuit in all of the briefs, Your Honor, until the Port Authority's brief before this Court when they mentioned sidewalks, a wholly inappropriate place for which there is no evidentiary record to support, and again it's been the forum of the interior, which is the place where people finally come to realize that they have time, and that's why the very profitable Airport Bloomingdale's and other shops are there.

They're not there to serve passenger flow, but they're there for economic reasons because they know when people come to rest they have time, they wander around, and they wander around to the area that the Hare Krishnas are allowed to be there now.

I told you that it's an out-of-the-way spot near the stained glass chapel.

That's the only place at the Kennedy Airport, in that huge complex, that they're allowed, and they've been allowed to be there for 17-plus years, and there's been no problem.

Unknown Speaker: Mr. Fisher, may I--

Mr. Fisher: Yes, sir.

Unknown Speaker: --I understand that is a fact.

I guess I want to go back to kind of question 1 before your time is up.

Do you claim that any airport is a public forum without more?

Mr. Fisher: We are arguing the general proposition that airports as transportation crossroads and thoroughfares are, in the first instance, to be considered public forum.

What I was trying--

Unknown Speaker: You say the first instance.

What's the second instance?

Mr. Fisher: --Well, let me explain, because I... I obviously--

Unknown Speaker: Are they public forums or are they not?

Mr. Fisher: --Well, I'm trying to be, you know, open in this discussion.

I did say before, and ran into some trouble, that I could conceive of the structure... I don't know of any airport that exists like this, and it certainly isn't the New York airports, but you could have a... you know, a runway with some kind of special security where people are only allowed into the parking lot, or into the terminal, where there are no shops, where there's no characteristics, anything like the not only New York airports but the L.A. airports and the Washington airports and every airport that I know of--

Chief Justice Rehnquist: Mr. Fisher--

Mr. Fisher: --But I mean I could theoretically conceive of--

Chief Justice Rehnquist: --Mr. Fisher.

Mr. Fisher: --Yes, Your Honor.

Chief Justice Rehnquist: I think you've answered the question.

Your time has expired.

Mr. Fisher: Yes, thank you, Your Honor.

Chief Justice Rehnquist: The case is submitted.

Print this transcript Transcript: 

Argument of Justice O'Connor

Mr. O'Connor: The next two cases are related.

They are a petition and a cross-petition.

One of them, I am announcing on behalf of the Chief Justice who was unable to here this morning for the announcement.

These cases come to us on certiorari to the Court of Appeals for the Second Circuit.

The respondent in International Society for Krishna Consciousness against Lee, and Lee against the International Society for Krishna Consciousness.

The respondent operates three major airports in the New York City area.

It adapted a regulation banning the repetitive solicitation of money within its terminals while allowing such solicitation on the sidewalks outside the terminal.

The petitioner is a not-for-profit religious corporation whose members solicit funds in public places to support their movement.

It brought suit claiming that the regulation banning solicitation activities deprive them of their rights under the First Amendment.

In an opinion authored by the Chief Justice, we hold that the airport terminals are not public fora.

Historically, airports have not been made available as locations for speech activity, nor has the respondent in this case voluntarily opened the terminals to solicitation.

To survive review, therefore, the solicitation ban need only be shown to be reasonable.

The solicitation ban satisfies this test as it is a reasonable means of attacking the risks of duress, fraud, and congestion that attend personal solicitation for funds in airports.

In a separate per curium opinion, dealing with the related challenge to respondent's ban on leafleting activity within the terminals, we strike down the port authority's regulation.

I have filed a separate concurring opinion; Justice Kennedy has filed an opinion concurring in the judgment in which he is joined in part by Justices Blackmun, Stevens, and Souter; Justice Souter has filed an opinion concurring in part and dissenting in part in which Justices Blackmun and Stevens joined; Chief Justice Rehnquist has delivered a second opinion dissenting in part in which Justices White, Scalia, and Thomas joined.

Now, if anyone can figure that out, they are doing well.