Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/ussct/kris2.asc

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/* We continue with the ISOKC case regarding the Port Authority
and the concurring opinion. */

II

  It is my view, however, that the Port Authority's ban on the
"solicitation and receipt of funds" within its airport terminals
should be upheld under the standards applicable to speech
regulations in public forums.  The regulation may be upheld as
either a reasonable time, place, and manner restriction, or as a
regulation directed at the nonspeech element of expressive
conduct.  The two standards have considerable overlap in a case
like this one.

  It is well settled that "even in a public forum the government
may impose reasonable restrictions on the time, place, or manner
of protected speech, provided the restrictions `are justified
without reference to the content of the regulated speech, that
they are narrowly tailored to serve a significant governmental
interest, and that they leave open ample alternative channels for
communication of the information.'" Ward, supra, at 791 (quoting
Clark v. Community for Creative Non-Violence, 468 U. S. 288, 293
(1984)).  We have held further that the government in appropriate
circumstances may regulate conduct, even if the conduct has an
expressive component.  United States v. O'Brien, 391 U. S. 367
(1968).  And in several recent cases we have recognized that the
standards for assessing time, place, and manner restrictions are
little, if any, different from the standards applicable to
regulations of conduct with an expressive component.  Clark,
supra, at 298, and n. 8; Ward, supra, at 798; Barnes v. Glen
Theatre, Inc., 501 U. S. ---, --- (1991) (slip op., at 5)
(plurality opinion); see generally Kalven, 1965 S. Ct. Rev., at
23, 27 (arguing that all speech contains elements of conduct
which may be regulated).  The confluence of the two tests is well
demonstrated by a case like this, where the government regulation
at issue can be described with equal accuracy as a regulation of
the manner of expression, or as a regulation of conduct with an
expressive component.

  I am in full agreement with the statement of the Court that
solicitation is a form of protected speech.  Ante, at 4; see also
Riley v. National Federation of Blind, 487 U. S. 781, 788-789
(1988); Schaumburg v. Citizens for a Better Environment, 444 U.
S. 620, 629 (1980); Murdock v. Pennsylvania, supra.  If the Port
Authority's solicitation regulation prohibited all speech which
requested the contribution of funds, I would conclude that it was
a direct, content-based restriction of speech in clear violation
of the First Amendment.  The Authority's regulation does not
prohibit all solicitation, however; it prohibits the
"solicitation and receipt of funds."  I do not understand this
regulation to prohibit all speech that solicits funds.  It
reaches only personal solicitations for immediate payment of

money.  Otherwise, the "receipt of funds" phrase would be written
out of the provision.  The regulation does not cover, for
example, the distribution of preaddressed envelopes along with a
plea to contribute money to the distributor or his organization.
As I understand the restriction it is directed only at the
physical exchange of money, which is an element of conduct
interwoven with otherwise expressive solicitation.  In other
words, the regulation permits expression that solicits funds, but
limits the manner of that expression to forms other than the
immediate receipt of money.

  So viewed, I believe the Port Authority's rule survives our
test for speech restrictions in the public forum.  In-person
solicitation of funds, when combined with immediate receipt of
that money, creates a risk of fraud and duress which is well
recognized, and which is different in kind from other forms of
expression or conduct.  Travelers who are unfamiliar with the
airport, perhaps even unfamiliar with this country, its customs
and its language, are an easy prey for the money solicitor.  I
agree in full with the Court's discussion of these dangers in No.
91-155.  Ante, at 10-11; ante, at 5 (opinion of O'Connor, J.).  I
would add that our precedents as well as the actions of
coordinate branches of government support this conclusion.  We
have in the past recognized that in-person solicitation has been
associated with coercive or fraudulent conduct.  Cantwell v.
Connecti- cut, 310 U. S. 296, 306 (1940); Riley, supra, at 800;
Heffron v. International Society for Krishna Consciousness, Inc.,
452 U. S. 640, 657 (1981) (Brennan, J., concurring in part and
dissenting in part); Schaumburg, supra, at 636-638.  In addition,
the federal government has adopted regulations which acknowledge
and respond to the serious problems associated with solicitation.
The National Park Service has enacted a flat ban on the direct
solicitation of money in the parks of the Nation's capital within
its control.  36 CFR 7.96(h) (1991); see also United States v.
Kokinda, 497 U. S., at 739 (Kennedy, J., concurring in judgment).
Also, the Federal Aviation Authority, in its administration of
the airports of Washington, D.C., even while permitting the
solicitation of funds has adopted special rules to prevent
coercive, harassing, or repetitious behavior.  14 CFR 159.94(e) -
(h) (1992).  And in the commercial sphere, the Federal Trade
Commission has long held that "it constitutes an unfair and
deceptive act or practice" to make a door-to- door sale without
allowing the buyer a three-day -cooling-off period- during which
time he or she may cancel the sale. 16 CFR 429.1 (1992).  All of
these measures are based on a recognition that requests for
immediate payment of money create a strong potential for fraud or
undue pressure, in part because of the lack of time for
reflection.  As the Court recounts, questionable practices
associated with solicitation can include the targeting of
vulnerable and easily coerced persons, misrepresentation of the
solicitor's cause, and outright theft.  Ante, at 10-11; see also
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).

  Because the Port Authority's solicitation ban is directed at
these abusive practices and not at any particular message, idea,
or form of speech, the regulation is a content-neutral rule
serving a significant government interest.  We have held that the
content neutrality of a rule must be assessed based on whether it
is -`justified without reference to the content of the regulated
speech.'-  Ward, 491 U. S., at 791 (quoting Clark, 468 U. S., at
293) (emphasis in original).  It is apparent that the
justification for the solicitation ban is unrelated to the
content of speech or the identity of the speaker.  There can also
be no doubt that the prevention of fraud and duress is a
significant government interest.  The government cannot, of
course, prohibit speech for the sole reason that it is concerned
the speech may be fraudulent.  Schaumburg, 444 U. S., at 637.
But the Port Authority's regulation does not do this.  It
recognizes that the risk of fraud and duress is intensified by
particular conduct, the immediate exchange of money; and it
addresses only that conduct.  We have recognized that such
narrowly drawn regulations are in fact the proper means for
addressing the dangers which can be associated with speech.
Ibid.; Riley, 487 U. S., at 799, n. 11.

  To survive scrutiny, the regulation must be drawn in narrow
terms to accomplish its end and leave open ample alternative
channels for communication.  Regarding the former requirement, we
have held that to be narrowly tailored a regulation need not be
the least restrictive or least intrusive means of achieving an
end.  The regulation must be reasonable, and must not burden
substantially more speech than necessary.  Ward, supra, at
798-800. Under this standard the solicitation ban survives with
ease, because it prohibits only solicitation of money for
immediate receipt.  The regulation does not burden any broader
category of speech or expressive conduct than is the source of
the evil sought to be avoided.  And in fact, the regulation is
even more narrow because it only prohibits such behavior if
conducted in a continuous or repetitive manner.  The Port
Authority has made a reasonable judgment that this type of
conduct raises the most serious concerns, and it is entitled to
deference.  My conclusion is not altered by the fact that other
means, for example the regulations adopted by the Federal
Aviation Authority to govern its airports, may be available to
address the problems associated with solicitation, because the
existence of less intrusive means is not decisive.  Our cases do
not so limit the government's regulatory flexibility.  See Ward,
supra, at 800.

  I have little difficulty in deciding that the Port Authority
has left open ample alternative channels for the communi- cation
of the message which is an aspect of solicitation.  As already
discussed, see supra, at --- the Authority's rule does not
prohibit all solicitation of funds:  It restricts only the manner
of the solicitation, or the conduct associated with solicitation,
to prohibit immediate receipt of the solicited money.  Requests
for money continue to be permitted, and in the course of
requesting money solicitors may explain their cause, or the
purposes of their organization, without violating the regulation.
It is only if the solicitor accepts immediate payment that a
violation occurs. Thus the solicitor can continue to disseminate
his message, for example by distributing preaddressed envelopes
in which potential contributors may mail their donations.  See
supra, at ---.

  Much of what I have said about the solicitation of funds may
seem to apply to the sale of literature, but the differences
between the two activities are of sufficient significance to
require they be distinguished for constitutional purposes.  The
Port Authority's flat ban on the distribution or sale of printed
material must, in my view, fall in its entirety.  See supra, at
---.  The application of our time, place, and manner test to the
ban on sales leads to a result quite different from the
solicitation ban.  For one, the government interest in regulating
the sales of literature is not as powerful as in the case of
solicitation.  The danger of a fraud arising from such sales is
much more limited than from pure solicitation, because in the
case of a sale the nature of the exchange tends to be clearer to
both parties. Also, the Port Authority's sale regulation is not
as narrowly drawn as the solicitation rule, since it does not
specify the receipt of money as a critical element of a
violation.  And perhaps most important, the flat ban on sales of
literature leaves open fewer alternative channels of
communication than the Port Authority's more limited prohibition
on the solicitation and receipt of funds.  Given the
practicalities and ad hoc nature of much expressive activity in
the public forum, sales of literature must be completed in one
transaction to be workable.  Attempting to collect money at
another time or place is a far less plausible option in the
context of a sale than when soliciting donations, because the
literature sought to be sold will under normal circumstances be
distributed within the forum.  These distinctions have been
recognized by the National Park Service, which permits the sale
or distribution of literature, while prohibiting solicitation.
Supra, at ---; 36 CFR 7.96(j)(2) (1991).  Thus the Port
Authority's regulation allows no practical means for advocates
and organizations to sell literature within the public forums
which are its airports.

  Against all of this must be balanced the great need, recognized
by our precedents, to give the sale of literature full First
Amendment protection.  We have long recognized that to prohibit
distribution of literature for the mere reason that it is sold
would leave organizations seeking to spread their message without
funds to operate.  "It should be remembered that the pamphlets of
Thomas Paine were not distributed free of charge."  Murdock, 319
U. S., at 111; see also Schaumburg, supra, at 628-635 (discussing
cases). The effect of a rule of law distinguishing between sales
and distribution would be to close the marketplace of ideas to
less affluent organizations and speakers, leaving speech as the
preserve of those who are able to fund themselves.  One of the
primary purposes of the public forum is to provide persons who
lack access to more sophisticated media the opportunity to speak.
A prohibition on sales forecloses that opportunity for the very
persons who need it most.  And while the same arguments might be
made regarding solicitation of funds, the answer is that the Port
Authority has not prohibited all solicitation, but only a narrow
class of conduct associated with a particular manner of
solicitation.

  For these reasons I agree that the Court of Appeals should be
affirmed in full in finding the Port Authority's ban on the
distribution or sale of literature unconstitutional, but
upholding the prohibition on solicitation and immediate receipt
of funds.

  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 Amendment
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 discussing 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 -reasonable- 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.

/* An attempt is being made here to go to an intermediate
standard of review and justify this by pointing out that although
the airports are not public forums, they are nevertheless
government property. */

  "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 circumstances."  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
-surrounding 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 purpose -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 functioning 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 dissenting 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., concurring 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 identified 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 constraints, 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
material"-- 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).

/* Or free to throw it out or give it someone who cares. */


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] commanding 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 conventional
political campaign literature."  Rather, the Court explained,
"[t]he only publications that a military commander 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 justifications
or record evidence to support its ban on the distribution 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.