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

Text File | 1992-06-25 | 34.5 KB | 632 lines

SUPREME COURT OF THE UNITED STATES
--------
Nos. 91-155 and 91-339
--------
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 Kennedy, with whom Justice Blackmun,
Justice Stevens, and Justice Souter join as to Part I,
concurring in the judgment.
  While I concur in the judgment affirming in this case, my
analysis differs in substantial respects from that of the
Court.  In my view the airport corridors and shopping areas
outside of the passenger security zones, areas operated by
the Port Authority, are public forums, and speech in those
places is entitled to protection against all government
regulation inconsistent with public forum principles.  The
Port Authority's blanket prohibition on the distribution or
sale of literature cannot meet those stringent standards,
and I agree it is invalid under the First and Fourteenth
Amendments.  The Port Authority's rule disallowing in-
person solicitation of money for immediate payment,
however, is in my view a narrow and valid regulation of the
time, place, and manner of protected speech in this forum,
or else is a valid regulation of the nonspeech element of
expressive conduct.  I would sustain the Port Authority's
ban on solicitation and receipt of funds.
                            I
  An earlier opinion expressed my concern that -[i]f our
public forum jurisprudence is to retain vitality, we must
recognize that certain objective characteristics of Govern-
ment property and its customary use by the public may
control- the status of the property.  United States v.
Kokinda, 497 U. S. 720, 737 (1990) (Kennedy, J., concur-
ring in judgment).  The case before us does not heed that
principle.  Our public forum doctrine ought not to be a
jurisprudence of categories rather than ideas or convert
what was once an analysis protective of expression into one
which grants the government authority to restrict speech by
fiat.  I believe that the Court's public forum analysis in this
case is inconsistent with the values underlying the speech
and press clauses of the First Amendment.
  Our public forum analysis has its origins in Justice
Roberts' rather sweeping dictum in Hague v. Committee for
Industrial Organization, 307 U. S. 496, 515 (1939); see also
ante, at 6.  The doctrine was not stated with much precision
or elaboration, though, until our more recent decisions in
Perry Education Assn. v. Perry Local Educators' Assn., 460
U. S. 37 (1983), and Cornelius v. NAACP Legal Defense &
Educational Fund, Inc., 473 U. S. 788 (1985).  These cases
describe a three part analysis to designate government-
owned property as either a traditional public forum, a
designated public forum, or a nonpublic forum.  Perry,
supra, at 45-46; ante, at 5.  The Court today holds that
traditional public forums are limited to public property
which have as -`a principal purpose . . . the free exchange
of ideas'-; ante, at 6 (quoting Cornelius, supra, at 800),
ante, at 1 (opinion of O'Connor, J.); and that this purpose
must be evidenced by a long-standing historical practice of
permitting speech.  Ante, at 7; ante, at 1-2 (opinion of
O'Connor, J.).  The Court also holds that designated
forums consist of property which the government intends to
open for public discourse.  Ante, at 6, citing Cornelius,
supra, at 802; ante, at 2 (opinion of O'Connor, J.).  All
other types of property are, in the Court's view, nonpublic
forums (in other words, not public forums), and govern-
ment-imposed restrictions of speech in these places will be
upheld so long as reasonable and viewpoint-neutral.  Under
this categorical view the application of public-forum
analysis to airport terminals seems easy.  Airports are of
course public spaces of recent vintage, and so there can be
no time-honored tradition associated with airports of
permitting free speech.  Ante, at 7.  And because govern-
ments have often attempted to restrict speech within
airports, it follows a fortiori under the Court's analysis that
they cannot be so-called -designated- forums.  Ibid.  So, the
Court concludes, airports must be nonpublic forums, subject
to minimal First Amendment protection.
  This analysis is flawed at its very beginning.  It leaves
the government with almost unlimited authority to restrict
speech on its property by doing nothing more than articu-
lating a non-speech-related purpose for the area, and it
leaves almost no scope for the development of new public
forums absent the rare approval of the government.  The
Court's error lies in its conclusion that the public-forum
status of public property depends on the government's
defined purpose for the property, or on an explicit decision
by the government to dedicate the property to expressive
activity.  In my view,  the inquiry must be an objective one,
based on the actual, physical characteristics and uses of the
property.  The fact that in our public-forum cases we
discuss and analyze these precise characteristics tends to
support my position.  Perry, supra, at 46-48; Cornelius,
supra, at 804-806; Kokinda, supra, at 727-729 (plurality
opinion).
  The First Amendment is a limitation on government, not
a grant of power.  Its design is to prevent the government
from controlling speech.  Yet under the Court's view the
authority of the government to control speech on its
property is paramount, for in almost all cases the critical
step in the Court's analysis is a classification of the
property that turns on the government's own definition or
decision, unconstrained by an independent duty to respect
the speech its citizens can voice there.  The Court acknowl-
edges as much, by reintroducing today into our First
Amendment law a strict doctrinal line between the propri-
etary and regulatory functions of government which I
thought had been abandoned long ago.  Ante, at 4-5;
compare Davis v. Massachusetts, 167 U. S. 43 (1897); with
Hague v. Committee for Industrial Organization, supra, at
515; Schneider v. State, 308 U. S. 147 (1939); Grayned v.
City of Rockford, 408 U. S. 104, 115-116 (1972).
  The Court's approach is contrary to the underlying
purposes of the public forum doctrine.  The liberties
protected by our doctrine derive from the Assembly, as well
as the Speech and Press Clauses of the First Amendment,
and are essential to a functioning democracy.  See Kalven,
The Concept of the Public Forum:  Cox v. Louisiana, 1965
S. Ct. Rev. 1, 14, 19.  Public places are of necessity the
locus for discussion of public issues, as well as protest
against arbitrary government action.  At the heart of our
jurisprudence lies the principle that in a free nation citizens
must have the right to gather and speak with other persons
in public places.  The recognition that certain government-
owned property is a public forum provides open notice to
citizens that their freedoms may be exercised there without
fear of a censorial government, adding tangible reinforce-
ment to the idea that we are a free people.
  A fundamental tenet of our Constitution is that the
government is subject to constraints which private persons
are not.  The public forum doctrine vindicates that principle
by recognizing limits on the government's control over
speech activities on property suitable for free expression.
The doctrine focuses on the physical characteristics of the
property because government ownership is the source of its
purported authority to regulate speech.  The right of speech
protected by the doctrine, however, comes not from a
Supreme Court dictum but from the constitutional recogni-
tion that the government cannot impose silence on a free
people.
  The Court's analysis rests on an inaccurate view of
history.  The notion that traditional public forums are
property which have public discourse as their principal
purpose is a most doubtful fiction.  The types of property
that we have recognized as the quintessential public forums
are streets, parks, and sidewalks.  Cornelius, 473 U. S., at
802; Frisby v. Schultz, 487 U. S. 474, 480-481 (1988).  It
would seem apparent that the principal purpose of streets
and sidewalks, like airports, is to facilitate transportation,
not public discourse, and we have recognized as much.
Schneider v. State, supra, at 160.  Similarly, the purpose for
the creation of public parks may be as much for beauty and
open space as for discourse.  Thus under the Court's
analysis, even the quintessential public forums would
appear to lack the necessary elements of what the Court
defines as a public forum.
  The effect of the Court's narrow view of the first category
of public forums is compounded by its description of the
second purported category, the so-called -designated- forum.
The requirements for such a designation are so stringent
that I cannot be certain whether the category has any
content left at all.  In any event, it seems evident that
under the Court's analysis today few if any types of
property other than those already recognized as public
forums will be accorded that status.
  The Court's answer to these objections appears to be a
recourse to history as justifying its recognition of streets,
parks, and sidewalks, but apparently no other types of
government property, as traditional public forums.  Ante, at
7-8.  The Court ignores the fact that the purpose of the
public forum doctrine is to give effect to the broad command
of the First Amendment to protect speech from governmen-
tal interference.  The jurisprudence is rooted in historic
practice, but it is not tied to a narrow textual command
limiting the recognition of new forums.  In my view the
policies underlying the doctrine cannot be given effect
unless we recognize that open, public spaces and thorough-
fares which are suitable for discourse may be public forums,
whatever their historical pedigree and without concern for
a precise classification of the property.  There is support in
our precedents for such a view.  See Lehman v. City of
Shaker Heights, 418 U. S. 298, 303 (1974) (plurality
opinion); Hague, 307 U. S., at 515 (speaking of -streets and
public places- as forums).  Without this recognition our
forum doctrine retains no relevance in times of fast-chang-
ing technology and increasing insularity.  In a country
where most citizens travel by automobile, and parks all too
often become locales for crime rather than social inter-
course, our failure to recognize the possibility that new
types of government property may be appropriate forums
for speech will lead to a serious curtailment of our expres-
sive activity.
  One of the places left in our mobile society that is
suitable for discourse is a metropolitan airport.  It is of
particular importance to recognize that such spaces are
public forums because in these days an airport is one of the
few government-owned spaces where many persons have
extensive contact with other members of the public.  Given
that private spaces of similar character are not subject to
the dictates of the First Amendment, see Hudgens v. NLRB,
424 U. S. 507 (1976), it is critical that we preserve these
areas for protected speech.  In my view, our public forum
doctrine must recognize this reality, and allow the creation
of public forums which do not fit within the narrow tradi-
tion of streets, sidewalks, and parks.  We have allowed
flexibility in our doctrine to meet changing technologies in
other areas of constitutional interpretation, see, e.g., Katz
v. United States, 389 U. S. 347 (1967), and I believe we
must do the same with the First Amendment.
  I agree with the Court that government property of a type
which by history and tradition has been available for speech
activity must continue to be recognized as a public forum.
Ante, at 7.  In my view, however, constitutional protection
is not confined to these properties alone.  Under the proper
circumstances I would accord public forum status to other
forms of property, regardless of its ancient or contemporary
origins and whether or not it fits within a narrow historic
tradition.  If the objective, physical characteristics of the
property at issue and the actual public access and uses
which have been permitted by the government indicate that
expressive activity would be appropriate and compatible
with those uses, the property is a public forum.  The most
important considerations in this analysis are whether the
property shares physical similarities with more traditional
public forums, whether the government has permitted or
acquiesced in broad public access to the property, and
whether expressive activity would tend to interfere in a
significant way with the uses to which the government has
as a factual matter dedicated the property.  In conducting
the last inquiry, courts  must consider the consistency of
those uses with expressive activities in general, rather than
the specific sort of speech at issue in the case before it;
otherwise the analysis would be one not of classification but
rather of case-by-case balancing, and would provide little
guidance to the State regarding its discretion to regulate
speech.  Courts must also consider the availability of
reasonable time, place, and manner restrictions in under-
taking this compatibility analysis.  The possibility of some
theoretical inconsistency between expressive activities and
the property's uses should not bar a finding of a public
forum, if those inconsistencies can be avoided through
simple and permitted regulations.
  The second category of the Court's jurisprudence, the so-
called designated forum, provides little, if any, additional
protection for speech.  Where government property does not
satisfy the criteria of a public forum, the government
retains the power to dedicate the property for speech,
whether for all expressive activity or for limited purposes
only.  See ante, at 5; Perry, 460 U. S., at 45-46; Southeast-
ern Promotions, Ltd. v. Conrad, 420 U. S. 546 (1975).  I do
not quarrel with the fact that speech must often be restrict-
ed on property of this kind to retain the purpose for which
it has been designated.  And I recognize that when property
has been designated for a particular expressive use, the
government may choose to eliminate that designation.  But
this increases the need to protect speech in other places,
where discourse may occur free of such restrictions.  In
some sense the government always retains authority to
close a public forum, by selling the property, changing its
physical character, or changing its principal use.  Otherwise
the State would be prohibited from closing a park, or
eliminating a street or sidewalk, which no one has under-
stood the public forum doctrine to require.  The difference
is that when property is a protected public forum the State
may not by fiat assert broad control over speech or expres-
sive activities; it must alter the objective physical character
or uses of the property, and bear the attendant costs, to
change the property's forum status.
  Under this analysis, it is evident that the public spaces
of the Port Authority's airports are public forums.  First,
the District Court made detailed findings regarding the
physical similarities between the Port Authority's airports
and public streets.  721 F. Supp. 572, 576-577 (SDNY
1989).  These findings show that the public spaces in the
airports are broad, public thoroughfares full of people and
lined with stores and other commercial activities.  An
airport corridor is of course not a street, but that is not the
proper inquiry.  The question is one of physical similarities,
sufficient to suggest that the airport corridor should be a
public forum for the same reasons that streets and side-
walks have been treated as public forums by the people who
use them.
  Second, the airport areas involved here are open to the
public without restriction.  Ibid.  Plaintiffs do not seek
access to the secured areas of the airports, nor do I suggest
that these areas would be public forums.  And while most
people who come to the Port Authority's airports do so for
a reason related to air travel, either because they are
passengers or because they are picking up or dropping off
passengers, this does not distinguish an airport from streets
or sidewalks, which most people use for travel.  See supra,
at ---.  Further, the group visiting the airports encom-
passes a vast portion of the public:  In 1986 the Authority's
three airports served over 78 million passengers.  It is the
very breadth and extent of the public's use of airports that
makes it imperative to protect speech rights there.  Of
course, airport operators retain authority to restrict public
access when necessary, for instance to respond to special
security concerns.  But if the Port Authority allows the uses
and open access to airports that is shown on this record, it
cannot argue that some vestigial power to change its
practices bars the conclusion that its airports are public
forums, any more than the power to bulldoze a park bars a
finding that a public forum exists so long as the open use
does.
  Third, and perhaps most important, it is apparent from
the record, and from the recent history of airports, that
when adequate time, place, and manner regulations are in
place, expressive activity is quite compatible with the uses
of major airports.  The Port Authority's primary argument
to the contrary is that the problem of congestion in its
airports' corridors makes expressive activity inconsistent
with the airports' primary purpose, which is to facilitate air
travel.  The First Amendment is often inconvenient.  But
that is besides the point.  Inconvenience does not absolve
the government of its obligation to tolerate speech.  The
Authority makes no showing that any real impediments to
the smooth functioning of the airports cannot be cured with
reasonable time, place, and manner regulations.  In fact,
the history of the Authority's own airports, as well as other
major airports in this country, leaves little doubt that such
a solution is quite feasible.  The Port Authority has for
many years permitted expressive activities by the plaintiffs
and others, without any apparent interference with its
ability to meet its transportation purposes.  App. 462,
469-470; see also ante, at 8 (opinion of O'Connor, J.).  The
Federal Aviation Authority, in its operation of the airports
of the Nation's capital, has issued rules which allow
regulated expressive activity within specified areas, without
any suggestion that the speech would be incompatible with
the airports' business.  14 CFR 159.93, 159.94 (1992).
And in fact expressive activity has been a commonplace
feature of our Nation's major airports for many years, in
part because of the wide consensus among the Courts of
Appeals, prior to the decision in this case, that the public
spaces of airports are public forums.  See, e.g., Chicago
Area Military Project v. Chicago, 508 F. 2d 921 (CA7), cert.
denied, 421 U. S. 992 (1975); Fernandes v. Limmer, 663 F.
2d 619 (CA5 1981), cert. dism'd, 458 U. S. 1124 (1982);
United States Southwest Africa/Namibia Trade & Cultural
Council v. United States, 228 U. S. App. D.C. 191, 708 F. 2d
760 (1983); Jews for Jesus, Inc. v. Board of Airport Com-
m'rs, 785 F. 2d 791 (CA9 1986), aff'd on other grounds, 482
U. S. 569 (1987); Jamison v. St. Louis, 828 F. 2d 1280 (CA8
1987), cert. denied, 485 U. S. 987 (1988).  As the District
Court recognized, the logical consequence of Port Author-
ity's congestion argument is that the crowded streets and
sidewalks of major cities cannot be public forums.  721 F.
Supp., at 578.  These problems have been dealt with in the
past, and in other settings, through proper time, place, and
manner restrictions; and the Port Authority does not make
any showing that similar regulations would not be effective
in its airports.  The Port Authority makes a half-hearted
argument that the special security concerns associated with
airports suggest they are not public forums; but this
position is belied by the unlimited public access the
Authority allows to its airports.  This access demonstrates
that the Port Authority does not consider the general public
to pose a serious security threat, and there is no evidence
in the record that persons engaged in expressive activities
are any different.
  The danger of allowing the government to suppress
speech is shown in the case now before us.  A grant of
plenary power allows the government to tilt the dialogue
heard by the public, to exclude many, more marginal voices.
The first challenged Port Authority regulation establishes
a flat prohibition on -[t]he sale or distribution of flyers,
brochures, pamphlets, books or any other printed or written
material,- if conducted within the airport terminal, -in a
continuous or repetitive manner.-   We have long recognized
that the right to distribute flyers and literature lies at the
heart of the liberties guaranteed by the Speech and Press
Clauses of the First Amendment.  See, e.g., Schneider v.
State, 308 U. S. 147 (1939); Murdock v. Pennsylvania, 319
U. S. 105 (1943).  The Port Authority's rule, which prohibits
almost all such activity, is among the most restrictive
possible of those liberties.  The regulation is in fact so broad
and restrictive of speech, Justice O'Connor finds it void
even under the standards applicable to government regula-
tions in nonpublic forums.  Ante, at 7-8.  I have no difficul-
ty deciding the regulation cannot survive the far more strin-
gent rules applicable to regulations in public forums.  The
regulation is not drawn in narrow terms and it does not
leave open ample alternative channels for communication.
See Ward v. Rock Against Racism, 491 U. S. 781, 791
(1989).  The Port Authority's concerns with the problem of
congestion can be addressed through narrow restrictions on
the time and place of expressive activity, see ante, at 8
(opinion of O'Connor, J.).  I would strike down the regula-
tion as an unconstitutional restriction of speech.
                           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 govern-
ment 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 signifi-
cant 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 circum-
stances 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 conflu-
ence 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 expres-
sive 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 -solicita-
tion 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 enve-
lopes along with a plea to contribute money to the distribu-
tor 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 expres-
sion 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 unfamil-
iar 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 pres-
sure, 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 Interna-
tional 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) (empha-
sis 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 address-
es 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 organiza-
tion, 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 differ-
ences between the two activities are of sufficient signifi-
cance 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 transac-
tion 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 solicita-
tion.  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 solicita-
tion.
  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 unconstitu-
tional, but upholding the prohibition on solicitation and
immediate receipt of funds.