The Supreme Court/The Supreme Court.iso/pc/ascii/1991/91_155/91_155.zx1

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SUPREME COURT OF THE UNITED STATES
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Nos. 91-155 and 91-339
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INTERNATIONAL SOCIETY FOR KRISHNA CON-
SCIOUSNESS, INC., and BRIAN RUMBAUGH,
PETITIONERS
91-155                     v.
WALTER LEE

WALTER LEE, SUPERINTENDENT OF PORT
AUTHORITY POLICE
91-339                     v.
INTERNATIONAL SOCIETY FOR KRISHNA CON-
SCIOUSNESS, INC., et al.
on writs of certiorari to the united states court of
appeals for the second circuit
[June 26, 1992]

  Justice O'Connor, concurring in 91-155 and concurring
in the judgment in 91-339.
  In the decision below, the Court of Appeals upheld a
ban on solicitation of funds within the airport terminals
operated by the Port Authority of New York and New
Jersey, but struck down a ban on the repetitive distribution
of printed or written material within the terminals.  925
F. 2d 576 (CA2 1991).  I would affirm both parts of that
judgment.
  I concur in the Court's opinion in No. 91-155 and agree
that publicly owned airports are not public fora.  Unlike
public streets and parks, both of which our First Amend-
ment jurisprudence has identified as -traditional public
fora,- airports do not count among their purposes the -free
exchange of ideas,- Cornelius v. NAACP Legal Defense &
Educational Fund, Inc., 473 U. S. 788, 800 (1985); they

have not -by long tradition or by government fiat . . . been
devoted to assembly and debate;- Perry Education Assn. v.
Perry Local Educators' Assn., 460 U. S. 37, 45 (1983); nor
have they -time out of mind, . . . been used for purposes of
. . . communicating thoughts between citizens, and discuss-
ing public questions,- Hague v. CIO, 307 U. S. 496, 515
(1939).  Although most airports do not ordinarily restrict
public access, -[p]ublicly owned or operated property does
not become a `public forum' simply because members of the
public are permitted to come and go at will.-  United States
v. Grace, 461 U. S. 171, 177 (1983); see also Greer v. Spock,
424 U. S. 828, 836 (1976).  -[W]hen government property is
not dedicated to open communication the government
may-without further justification-restrict use to those
who participate in the forum's official business.-  Perry,
supra, at 53.  There is little doubt that airports are among
those publicly owned facilities that could be closed to all
except those who have legitimate business there.  See
Grace, supra, at 178.  Public access to airports is thus not
-inherent in the open nature of the locations,- as it is for
most streets and parks, but is rather a -matter of grace by
government officials.-  United States v. Kokinda, 497 U. S.
720, 743 (1990) (Brennan, J., dissenting).  I also agree with
the Court that the Port Authority has not expressly opened
its airports to the types of expression at issue here, see
ante, at 7, and therefore has not created a -limited- or
-designated- public forum relevant to this case.
  For these reasons, the Port Authority's restrictions on
solicitation and leafletting within the airport terminals do
not qualify for the strict scrutiny that applies to restriction
of speech in public fora.  That airports are not public fora,
however, does not mean that the government can restrict
speech in whatever way it likes.  -The Government, even
when acting in its proprietary capacity, does not enjoy
absolute freedom from First Amendment constraints.-
Kokinda, supra, at 725 (plurality opinion).  For example, in
Board of Airport Commrs. of Los Angeles v. Jews for Jesus,
Inc., 482 U. S. 569 (1987), we unanimously struck down a
regulation that prohibited -all First Amendment activities-
in the Los Angeles International Airport (LAX) without
even reaching the question whether airports were public
fora.  Id., at 574-575.  We found it -obvious that such a ban
cannot be justified even if LAX were a nonpublic forum
because no conceivable governmental interest would justify
such an absolute prohibition of speech.-  Id., at 575.
Moreover, we have consistently stated that restrictions on
speech in nonpublic fora are valid only if they are -reason-
able- and -not an effort to suppress expression merely
because public officials oppose the speaker's view.-  Perry,
460 U. S., at 46; see also Kokinda, supra, at 731; Cornelius,
supra, at 800; Lehman v. City of Shaker Heights, 418 U. S.
298, 303 (1974).  The determination that airports are not
public fora thus only begins our inquiry.
  -The reasonableness of the Government's restriction [on
speech in a nonpublic forum] must be assessed in light of
the purpose of the forum and all the surrounding circum-
stances.-  Cornelius, supra, at 809.  -`[C]onsideration of a
forum's special attributes is relevant to the constitutionality
of a regulation since the significance of the governmental
interest must be assessed in light of the characteristic
nature and function of the particular forum involved.'-
Kokinda, supra, at 732, quoting Heffron v. International
Soc. for Krishna Consciousness, Inc., 452 U. S. 640, 650-651
(1981).  In this case, the -special attributes- and -surround-
ing circumstances- of the airports operated by the Port
Authority are determinative.  Not only has the Port
Authority chosen not to limit access to the airports under
its control, it has created a huge complex open to travelers
and nontravelers alike.  The airports house restaurants,
cafeterias, snack bars, coffee shops, cocktail lounges, post
offices, banks, telegraph offices, clothing shops, drug stores,
food stores, nurseries, barber shops, currency exchanges, art
exhibits, commercial advertising displays, bookstores,
newsstands, dental offices and private clubs.  See 1 App.
183-185 (Newark); id., at 185-186 (JFK); id., at 190-192
(LaGuardia).  The International Arrivals Building at JFK
Airport even has two branches of Bloomingdale's.  Id., at
185-186.
  We have said that a restriction on speech in a nonpublic
forum is -reasonable- when it is -consistent with the
[government's] legitimate interest in `preserv[ing] the
property . . . for the use to which it is lawfully dedicated.'-
Perry, supra, at 50-51, quoting United States Postal Service
v. Council of Greenburgh Civic Assns., 453 U. S. 114,
129-130 (1981) (internal quotation marks omitted).
Ordinarily, this inquiry is relatively straightforward,
because we have almost always been confronted with cases
where the fora at issue were discrete, single-purpose
facilities.  See, e.g., Kokinda, supra (dedicated sidewalk
between parking lot and post office); Cornelius v. NAACP
Legal Defense & Educational Fund, Inc., 473 U. S. 788
(1985) (literature for charity drive); City Council of Los
Angeles v. Taxpayers for Vincent, 466 U. S. 789 (1984)
(utility poles); Perry, supra (interschool mail system);
United States Postal Service v. Council of Greenburgh Civic
Assns., supra, (household mail boxes); Adderley v. Florida,
385 U. S. 39 (1966) (curtilage of jailhouse).  The Port
Authority urges that this case is no different and contends
that it, too, has dedicated its airports to a single pur-
pose-facilitating air travel-and that the speech it seeks
to prohibit is not consistent with that purpose.  But the
wide range of activities promoted by the Port Authority is
no more directly related to facilitating air travel than are
the types of activities in which ISKCON wishes to engage.
See Jews for Jesus, supra, at 576 (-The line between
airport-related speech and nonairport-related speech is, at
best, murky-).  In my view, the Port Authority is operating
a shopping mall as well as an airport.  The reasonableness
inquiry, therefore, is not whether the restrictions on speech
are -consistent with . . . preserving the property- for air
travel, Perry, supra, at 50-51 (internal quotation marks and
citation omitted), but whether they are reasonably related
to maintaining the multipurpose environment that the Port
Authority has deliberately created.
  Applying that standard, I agree with the Court in No.
91-155 that the ban on solicitation is reasonable.  Face-to-
face solicitation is incompatible with the airport's function-
ing in a way that the other, permitted activities are not.
We have previously observed that -[s]olicitation impedes the
normal flow of traffic [because it] 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. . . . As
residents of metropolitan areas know from daily experience,
confrontation by a person asking for money disrupts
passage and is more intrusive and intimidating than an
encounter with a person giving out information.-  Kokinda,
497 U. S., at 733-734 (plurality opinion) (citations omitted);
id., at 739 (Kennedy, J., concurring in judgment) (accepting
Postal Service's judgment that, given its past experience,
-in-person solicitation deserves different treatment from
alternative forms of solicitation and expression-); Heffron,
supra, at 657 (Brennan, J., concurring in part and dissent-
ing in part) (upholding partial restriction on solicitation at
fair grounds because of state interest -in protecting its
fairgoers from fraudulent, deceptive, and misleading
solicitation practices-); id., at 665 (Blackmun, J., concur-
ring in part and dissenting in part) (upholding partial
restriction on solicitation because of the -crowd control
problems- it creates).  The record in this case confirms that
the problems of congestion and fraud that we have identi-
fied with solicitation in other contexts have also proved true
in the airports' experience.  See App. 67-111 (affidavits).
Because airports users are frequently facing time con-
straints, and are traveling with luggage or children, the ban
on solicitation is a reasonable means of avoiding disruption
of an airport's operation.
  In my view, however, the regulation banning leafletting-
-or, in the Port Authority's words, the -continuous or
repetitive . . . distribution of . . . printed or written materi-
al--cannot be upheld as reasonable on this record.  I
therefore concur in the judgment in No. 91-339 striking
down that prohibition.  While the difficulties posed by
solicitation in a nonpublic forum are sufficiently obvious
that its regulation may -rin[g] of common-sense,'' Kokinda,
supra, at 734 (internal quotation marks and citation
omitted), the same is not necessarily true of leafletting.  To
the contrary, we have expressly noted that leafletting does
not entail the same kinds of problems presented by face-to-
face solicitation.  Specifically, -[o]ne need not ponder the
contents of a leaflet or pamphlet in order mechanically to
take it out of someone's hand . . . . `The distribution of
literature does not require that the recipient stop in order
to receive the message the speaker wishes to convey;
instead the recipient is free to read the message at a later
time.'-  Ibid. (plurality opinion), quoting Heffron, 452 U. S.,
at 665 (Blackmun, J., concurring in part and dissenting in
part).  With the possible exception of avoiding litter, see
Schneider v. State, 308 U. S. 147, 162 (1939), it is difficult
to point to any problems intrinsic to the act of leafletting
that would make it naturally incompatible with a large,
multipurpose forum such as those at issue here.
  We have only once before considered restrictions on
speech in a nonpublic forum that sustained the kind of
extensive, nonforum-related activity found in the Port
Authority airports, and I believe that case is instructive.  In
Greer v. Spock, 424 U. S. 828 (1976), the Court held that
even though certain parts of a military base were open to
the public, they still did not constitute a public forum in
light of -`the historically unquestioned power of [a] com-
manding officer summarily to exclude civilians from the
area of his command.'-  Id., at 838, quoting Cafeteria &
Restaurant Workers v. McElroy, 367 U. S. 886, 893 (1961).
The Court then proceeded to uphold a regulation banning
the distribution of literature without the prior approval of
the base commander.  In so doing, the Court -emphasized-
that the regulation on leafletting did -not authorize the
Fort Dix authorities to prohibit the distribution of conven-
tional political campaign literature.-  Rather, the Court
explained, -[t]he only publications that a military com-
mander may disapprove are those that he finds constitute
`a clear danger to [military] loyalty, discipline, or morale'-
and that -[t]here is nothing in the Constitution that
disables a military commander from acting to avert what he
perceives to be a clear danger to the loyalty, discipline, or
morale of troops on the base under his command.-  424
U. S., at 840 (citation omitted).  In contrast, the regulation
at issue in this case effects an absolute prohibition and is
not supported by any independent justification outside of
the problems caused by the accompanying solicitation.
  Moreover, the Port Authority has not offered any justifi-
cations or record evidence to support its ban on the distri-
bution of pamphlets alone.  Its argument is focused instead
on the problems created when literature is distributed in
conjunction with a solicitation plea.  Although we do not
-requir[e] that . . . proof be present to justify the denial of
access to a nonpublic forum on grounds that the proposed
use may disrupt the property's intended function,- Perry,
460 U. S., at 52, n. 12, we have required some explanation
as to why certain speech is inconsistent with the intended
use of the forum.  In Kokinda, for example, we upheld a
regulation banning solicitation on postal property in part
because the Postal Service's 30-year history of regulation of
solicitation in post offices demonstrated that permitting
solicitation interfered with its postal mission.  497 U. S., at
731-732 (plurality opinion).  Similarly, in Cornelius, we
held that it was reasonable to exclude political advocacy
groups from a fundraising campaign targeted at federal
employees in part because -the record amply support[ed] an
inference- that the participation of those groups would have
jeopardized the success of the campaign.  473 U. S., at 810.
Here, the Port Authority has provided no independent
reason for prohibiting leafletting, and the record contains
no information from which we can draw an inference that
would support its ban.  Because I cannot see how peaceful
pamphleteering is incompatible with the multipurpose
environment of the Port Authority airports, I cannot accept
that a total ban on that activity is reasonable without an
explanation as to why such a restriction -preserv[es] the
property- for the several uses to which it has been put.
Perry, supra, at 50-51 (internal quotation marks and
citation omitted).
  Of course, it is still open for the Port Authority to
promulgate regulations of the time, place, and manner of
leafletting which are -content-neutral, narrowly tailored to
serve a significant government interest, and leave open
ample alternative channels of communication.-  Perry,
supra, at 45; United States Postal Service, 453 U. S., at 132.
For example, during the many years that this litigation has
been in progress, the Port Authority has not banned
sankirtan completely from JFK International Airport, but
has restricted it to a relatively uncongested part of the
airport terminals, the same part that houses the airport
chapel.  Tr. of Oral Arg. 5-6, 46-47.  In my view, that
regulation meets the standards we have applied to time,
place, and manner restrictions of protected expression.  See
Clark v. Community for Creative Non-Violence, 468 U. S.
288, 293 (1984).
  I would affirm the judgment of the Court of Appeals in
both No. 91-155 and No. 91-339.