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- NOTICE: This opinion is subject to formal revision before publication in the
- preliminary print of the United States Reports. Readers are requested to
- notify the Reporter of Decisions, Supreme Court of the United States, Wash-
- ington, D.C. 20543, of any typographical or other formal errors, in order that
- corrections may be made before the preliminary print goes to press.
- SUPREME COURT OF THE UNITED STATES
- --------
- No. 91-155
- --------
- INTERNATIONAL SOCIETY FOR KRISHNA CON-
- SCIOUSNESS, INC., and BRIAN RUMBAUGH,
- PETITIONERS v. WALTER LEE
- on writ of certiorari to the united states court of
- appeals for the second circuit
- [June 26, 1992]
-
- Chief Justice Rehnquist delivered the opinion of the
- Court.
- In this case we consider whether an airport terminal
- operated by a public authority is a public forum and
- whether a regulation prohibiting solicitation in the interior
- of an airport terminal violates the First Amendment.
- The relevant facts in this case are not in dispute.
- Petitioner International Society for Krishna Consciousness,
- Inc. (ISKCON) is a not-for-profit religious corporation whose
- members perform a ritual known as sankirtan. The ritual
- consists of -`going into public places, disseminating reli-
- gious literature and soliciting funds to support the reli-
- gion.''' 925 F. 2d 576, 577 (CA2 1991). The primary
- purpose of this ritual is raising funds for the movement.
- Ibid.
- Respondent Walter Lee, now deceased, was the police
- superintendent of the Port Authority of New York and New
- Jersey and was charged with enforcing the regulation at
- issue. The Port Authority owns and operates three major
- airports in the greater New York City area: John F.
- Kennedy International Airport (Kennedy), La Guardia
- Airport (La Guardia), and Newark International Airport
- (Newark). The three airports collectively form one of the
- world's busiest metropolitan airport complexes. They serve
- approximately 8% of this country's domestic airline market
- and more than 50% of the trans-Atlantic market. By
- decade's end they are expected to serve at least 110 million
- passengers annually. Id., at 578.
- The airports are funded by user fees and operated to
- make a regulated profit. Id., at 581. Most space at the
- three airports is leased to commercial airlines, which bear
- primary responsibility for the leasehold. The Port Authori-
- ty retains control over unleased portions, including La
- Guardia's Central Terminal Building, portions of Kennedy's
- International Arrivals Building, and Newark's North
- Terminal Building (we refer to these areas collectively as
- the -terminals-). The terminals are generally accessible to
- the general public and contain various commercial estab-
- lishments such as restaurants, snack stands, bars, news-
- stands, and stores of various types. Id., at 578. Virtually
- all who visit the terminals do so for purposes related to air
- travel. These visitors principally include passengers, those
- meeting or seeing off passengers, flight crews, and terminal
- employees. Ibid.
- The Port Authority has adopted a regulation forbidding
- within the terminals the repetitive solicitation of money or
- distribution of literature. The regulation states:
- ``1. The following conduct is prohibited within the
- interior areas of buildings or structures at an air
- terminal if conducted by a person to or with passers-by
- in a continuous or repetitive manner:
- ``(a) The sale or distribution of any merchandise,
- including but not limited to jewelry, food stuffs, can-
- dles, flowers, badges and clothing.
- ``(b) The sale or distribution of flyers, brochures,
- pamphlets, books or any other printed or written
- material.
- ``(c) Solicitation and receipt of funds.'' Id., at 578-579.
-
- The regulation governs only the terminals; the Port
- Authority permits solicitation and distribution on the
- sidewalks outside the terminal buildings. The regulation
- effectively prohibits petitioner from performing sankirtan in
- the terminals. As a result, petitioner brought suit seeking
- declaratory and injunctive relief under 42 U. S. C. 1983,
- alleging that the regulation worked to deprive them of
- rights guaranteed under the First Amendment. The
- District Court analyzed the claim under the -traditional
- public forum- doctrine. It concluded that the terminals
- were akin to public streets, 721 F. Supp. 572, 577 (SDNY
- 1989), the quintessential traditional public fora. This
- conclusion in turn meant that the Port Authority's terminal
- regulation could be sustained only if it was narrowly
- tailored to support a compelling state interest. Id., at 579.
- In the absence of any argument that the blanket prohibition
- constituted such narrow tailoring, the District Court
- granted petitioner summary judgment. Ibid.
- The Court of Appeals affirmed in part and reversed in
- part. 925 F. 2d 576 (1991). Relying on our recent decision
- in United States v. Kokinda, 497 U. S. ___ (1990), a divided
- panel concluded that the terminals are not public fora. As
- a result, the restrictions were required only to satisfy a
- standard of reasonableness. The Court of Appeals then
- concluded that, presented with the issue, this Court would
- find that the ban on solicitation was reasonable, but the
- ban on distribution was not. Petitioner sought certiorari
- respecting the Court of Appeals' decision that the terminals
- are not public fora and upholding the solicitation ban.
- Respondent cross-petitioned respecting the court's holding
- striking down the distribution ban. We granted both
- petitions, 502 U. S. ___ (1992), to resolve whether airport
- terminals are public fora, a question on which the Circuits
- have split and on which we once before granted certiorari
- but ultimately failed to reach. Board of Airport Comm'rs of
- Los Angeles v. Jews for Jesus, Inc., 482 U. S. 569 (1987).
- It is uncontested that the solicitation at issue in this case
- is a form of speech protected under the First Amendment.
- Heffron v. International Society for Krishna Consciousness,
- Inc., 452 U. S. 640 (1981); Kokinda, supra, at ___ (citing
- Schaumburg v. Citizens for a Better Environment, 444 U. S.
- 620, 629 (1980)); Riley v. National Federation of Blind of
- N.C., Inc., 487 U. S. 781, 788-789 (1988). But it is also
- well settled that the government need not permit all forms
- of speech on property that it owns and controls. United
- States Postal Service v. Council of Greenburgh Civic Assns.,
- 453 U. S. 114, 129 (1981); Greer v. Spock, 424 U. S. 828
- (1976). Where the government is acting as a proprietor,
- managing its internal operations, rather than acting as
- lawmaker with the power to regulate or license, its action
- will not be subjected to the heightened review to which its
- actions as a lawmaker may be subject. Kokinda, supra, at
- ___ (plurality opinion) (citing Cafeteria & Restaurant
- Workers v. McElroy, 367 U. S. 886, 896 (1961)). Thus, we
- have upheld a ban on political advertisements in city-
- operated transit vehicles, Lehman v. City of Shaker Heights,
- 418 U. S. 298 (1974), even though the city permitted other
- types of advertising on those vehicles. Similarly, we have
- permitted a school district to limit access to an internal
- mail system used to communicate with teachers employed
- by the district. Perry Education Assn. v. Perry Local
- Educators' Ass'n, 460 U. S. 37 (1983).
- These cases reflect, either implicitly or explicitly, a
- -forum-based- approach for assessing restrictions that the
- government seeks to place on the use of its property.
- Cornelius v. NAACP Legal Defense and Educational Fund,
- Inc., 473 U. S. 788, 800 (1985). Under this approach,
- regulation of speech on government property that has
- traditionally been available for public expression is subject
- to the highest scrutiny. Such regulations survive only if
- they are narrowly drawn to achieve a compelling state
- interest. Perry, supra, at 45. The second category of public
- property is the designated public forum, whether of a
- limited or unlimited character - property that the state
- has opened for expressive activity by part or all of the
- public. Ibid. Regulation of such property is subject to the
- same limitations as that governing a traditional public
- forum. Id., at 46. Finally, there is all remaining public
- property. Limitations on expressive activity conducted on
- this last category of property must survive only a much
- more limited review. The challenged regulation need only
- be reasonable, as long as the regulation is not an effort to
- suppress the speaker's activity due to disagreement with
- the speaker's view. Ibid.
- The parties do not disagree that this is the proper
- framework. Rather, they disagree whether the airport
- terminals are public fora or nonpublic fora. They also
- disagree whether the regulation survives the -reasonable-
- ness- review governing nonpublic fora, should that prove
- the appropriate category. Like the Court of Appeals, we
- conclude that the terminals are nonpublic fora and that the
- regulation reasonably limits solicitation.
- The suggestion that the government has a high burden in
- justifying speech restrictions relating to traditional public
- fora made its first appearance in Hague v. Committee for
- Industrial Organization, 307 U. S. 496, 515, 516 (1939).
- Justice Roberts, concluding that individuals have a right to
- use -streets and parks for communication of views,-
- reasoned that such a right flowed from the fact that -streets
- and parks . . . have immemorially been held in trust for the
- use of the public and, time out of mind, have been used for
- purposes of assembly, communicating thoughts between
- citizens, and discussing public questions.- We confirmed
- this observation in Frisby v. Schultz, 487 U. S. 474, 481
- (1988), where we held that a residential street was a public
- forum.
- Our recent cases provide additional guidance on the
- characteristics of a public forum. In Cornelius we noted
- that a traditional public forum is property that has as -a
- principal purpose . . . the free exchange of ideas.- 473
- U. S., at 800. Moreover, consistent with the notion that the
- government - like other property owners - -has power to
- preserve the property under its control for the use to which
- it is lawfully dedicated,- Greer, supra, at 836, the govern-
- ment does not create a public forum by inaction. Nor is a
- public forum created -whenever members of the public are
- permitted freely to visit a place owned or operated by the
- Government.- Ibid. The decision to create a public forum
- must instead be made -by intentionally opening a nontradi-
- tional forum for public discourse.- Cornelius, supra, at 802.
- Finally, we have recognized that the location of property
- also has bearing because separation from acknowledged
- public areas may serve to indicate that the separated
- property is a special enclave, subject to greater restriction.
- United States v. Grace, 461 U. S. 171, 179-180 (1983).
- These precedents foreclose the conclusion that airport
- terminals are public fora. Reflecting the general growth of
- the air travel industry, airport terminals have only recently
- achieved their contemporary size and character. See H.V.
- Hubbard, M. McClintock, & F.B. Williams, Airports: Their
- Location, Administration and Legal Basis, 8 (1930) (noting
- that the United States had only 807 airports in 1930). But
- given the lateness with which the modern air terminal has
- made its appearance, it hardly qualifies for the description
- of having -immemorially . . . time out of mind- been held in
- the public trust and used for purposes of expressive activity.
- Hague, supra, at 515. Moreover, even within the rather
- short history of air transport, it is only -[i]n recent years
- [that] it has become a common practice for various religious
- and non-profit organizations to use commercial airports as
- a forum for the distribution of literature, the solicitation of
- funds, the proselytizing of new members, and other similar
- activities.- 45 Fed. Reg. 35314 (1980). Thus, the tradition
- of airport activity does not demonstrate that airports have
- historically been made available for speech activity. Nor
- can we say that these particular terminals, or airport
- terminals generally, have been intentionally opened by
- their operators to such activity; the frequent and continuing
- litigation evidencing the operators' objections belies any
- such claim. See n.2, supra. In short, there can be no
- argument that society's time-tested judgment, expressed
- through acquiescence in a continuing practice, has resolved
- the issue in petitioner's favor.
- Petitioner attempts to circumvent the history and practice
- governing airport activity by pointing our attention to the
- variety of speech activity that it claims historically occurred
- at various -transportation nodes- such as rail stations, bus
- stations, wharves, and Ellis Island. Even if we were
- inclined to accept petitioner's historical account describing
- speech activity at these locations, an account respondent
- contests, we think that such evidence is of little import for
- two reasons. First, much of the evidence is irrelevant to
- public fora analysis, because sites such as bus and rail
- terminals traditionally have had private ownership. See
- United Transportation Union v. Long Island R. Co., 455
- U. S. 678, 687 (1982); H.R. Grant & C.W. Bohi, The
- Country Railroad Station in America, 11-15 (1978);
- United States Dept. of Transportation, The Intercity Bus
- Terminal Study 31 (Dec. 1984). The development of
- privately owned parks that ban speech activity would not
- change the public fora status of publicly held parks. But
- the reverse is also true. The practices of privately held
- transportation centers do not bear on the government's
- regulatory authority over a publicly owned airport.
- Second, the relevant unit for our inquiry is an airport, not
- -transportation nodes- generally. When new methods of
- transportation develop, new methods for accommodating
- that transportation are also likely to be needed. And with
- each new step, it therefore will be a new inquiry whether
- the transportation necessities are compatible with various
- kinds of expressive activity. To make a category of -trans-
- portation nodes,- therefore, would unjustifiably elide what
- may prove to be critical differences of which we should
- rightfully take account. The -security magnet,- for exam-
- ple, is an airport commonplace that lacks a counterpart in
- bus terminals and train stations. And public access to air
- terminals is also not infrequently restricted - just last year
- the Federal Aviation Administration required airports for
- a 4-month period to limit access to areas normally publicly
- accessible. See 14 CFR 107.11(f) (1991) and United States
- Dept. of Transportation News Release, Office of the Assis-
- tant Secretary for Public Affairs, January 18, 1991. To
- blithely equate airports with other transportation centers,
- therefore, would be a mistake.
- The differences among such facilities are unsurprising
- since, as the Court of Appeals noted, airports are commer-
- cial establishments funded by users fees and designed to
- make a regulated profit, 925 F. 2d, at 581, and where
- nearly all who visit do so for some travel related purpose.
- Id., at 578. As commercial enterprises, airports must
- provide services attractive to the marketplace. In light of
- this, it cannot fairly be said that an airport terminal has as
- a principal purpose -promoting the free exchange of ideas.-
- Cornelius v. NAACP Legal Defense and Educational Fund,
- Inc., 473 U. S. 788 (1985). To the contrary, the record
- demonstrates that Port Authority management considers
- the purpose of the terminals to be the facilitation of
- passenger air travel, not the promotion of expression.
- Sloane Affidavit, -11, 2 App. 464; Defendant's Civil Rule
- 3(g) Statement, -39, 2 App. 453. Even if we look beyond
- the intent of the Port Authority to the manner in which the
- terminals have been operated, the terminals have never
- been dedicated (except under the threat of court order)
- to expression in the form sought to be exercised here: i.e.,
- the solicitation of contributions and the distribution of
- literature.
- The terminals here are far from atypical. Airport
- builders and managers focus their efforts on providing
- terminals that will contribute to efficient air travel. See,
- e.g., R. Horonjeff & F. McKelvey, Planning and Design of
- Airports 326 (3d. ed. 1983)(-[t]he terminal is used to process
- passengers and baggage for the interface with aircraft and
- the ground transportation modes-). The Federal Govern-
- ment is in accord; the Secretary of Transportation has been
- directed to publish a plan for airport development necessary
- -to anticipate and meet the needs of civil aeronautics, to
- meet requirements of the national defense . . . and to meet
- identified needs of the Postal Service.- 49 U. S. C. App.
- 2203(a)(1) (emphasis added); see also, 45 Fed. Reg. 35317
- (1980) (-[t]he purpose for which the [Dulles and National
- airport] terminal[s] was built and maintained is to process
- and serve air travelers efficiently-). Although many
- airports have expanded their function beyond merely
- contributing to efficient air travel, few have included among
- their purposes the designation of a forum for solicitation
- and distribution activities. See supra, at 7. Thus, we think
- that neither by tradition nor purpose can the terminals be
- described as satisfying the standards we have previously set
- out for identifying a public forum.
- The restrictions here challenged, therefore, need only
- satisfy a requirement of reasonableness. We reiterate what
- we stated in Kokinda, the restriction ```need only be reason-
- able; it need not be the most reasonable or the only reason-
- able limitation.'- 496 U. S., at ___ (plurality opinion)
- (quoting Cornelius, supra, at 808). We have no doubt that
- under this standard the prohibition on solicitation passes
- muster.
- We have on many prior occasions noted the disruptive
- effect that solicitation may have on business. -Solicitation
- requires action by those who would respond: The individual
- solicited must decide whether or not to contribute (which
- itself might involve reading the solicitor's literature or
- hearing his pitch), and then, having decided to do so, reach
- for a wallet, search it for money, write a check, or produce
- a credit card.- Kokinda, supra, at ___; see Heffron, 452
- U. S., at 663 (Blackmun, J., concurring in part and dissent-
- ing in part). Passengers who wish to avoid the solicitor
- may have to alter their path, slowing both themselves and
- those around them. The result is that the normal flow of
- traffic is impeded. Id., at 653. This is especially so in an
- airport, where -air travelers, who are often weighted down
- by cumbersome baggage . . . may be hurrying to catch a
- plane or to arrange ground transportation.- 925 F. 2d, at
- 582. Delays may be particularly costly in this setting, as a
- flight missed by only a few minutes can result in hours
- worth of subsequent inconvenience.
- In addition, face-to-face solicitation presents risks of
- duress that are an appropriate target of regulation. The
- skillful, and unprincipled, solicitor can target the most
- vulnerable, including those accompanying children or those
- suffering physical impairment and who cannot easily avoid
- the solicitation. See, e.g., International Society for Krishna
- Consciousness, Inc. v. Barber, 506 F. Supp. 147, 159-163
- (NDNY 1980), rev'd on other grounds 650 F. 2d 430 (CA2
- 1981). The unsavory solicitor can also commit fraud
- through concealment of his affiliation or through deliberate
- efforts to shortchange those who agree to purchase. 506 F.
- Supp., 159-163. See 45 Fed. Reg. 35314-35315 (1980).
- Compounding this problem is the fact that, in an airport,
- the targets of such activity frequently are on tight sched-
- ules. This in turn makes such visitors unlikely to stop and
- formally complain to airport authorities. As a result, the
- airport faces considerable difficulty in achieving its legiti-
- mate interest in monitoring solicitation activity to assure
- that travelers are not interfered with unduly.
- The Port Authority has concluded that its interest in
- monitoring the activities can best be accomplished by
- limiting solicitation and distribution to the sidewalk areas
- outside the terminals. Sloane Supp. Affidavit, -11, 2 App.
- 514. This sidewalk area is frequented by an overwhelming
- percentage of airport users, see id., at -14, 2 App. 515-516
- (noting that no more than 3% of air travelers passing
- through the terminals are doing so on intraterminal flights,
- i. e. transferring planes). Thus the resulting access of those
- who would solicit the general public is quite complete. In
- turn we think it would be odd to conclude that the Port
- Authority's terminal regulation is unreasonable despite the
- Port Authority having otherwise assured access to an area
- universally traveled.
- The inconveniences to passengers and the burdens on
- Port Authority officials flowing from solicitation activity
- may seem small, but viewed against the fact that -pedestri-
- an congestion is one of the greatest problems facing the
- three terminals,- 925 F. 2d, at 582, the Port Authority could
- reasonably worry that even such incremental effects would
- prove quite disruptive. Moreover, -the justification for the
- Rule should not be measured by the disorder that would
- result from granting an exemption solely to ISKCON.-
- Heffron, supra, at 652. For if petitioner is given access, so
- too must other groups. -Obviously, there would be a much
- larger threat to the State's interest in crowd control if all
- other religious, nonreligious, and noncommercial organiza-
- tions could likewise move freely.- 452 U. S., at 653. As a
- result, we conclude that the solicitation ban is reasonable.
- For the foregoing reasons, the judgment of the Court of
- Appeals sustaining the ban on solicitation in Port Authority
- terminals is
- Affirmed.
-