Soc’y for Krisha Consciousness v. Lee, 505 U.S. 672 (1992)

International Society for Krishna Consciousness, Inc. v. Lee

No. 91-155

Argued March 25, 1992
Decided June 26, 1992
505 U.S. 672

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Syllabus

The Port Authority of New York and New Jersey, which owns and operates three major airports in the New York City area and controls certain terminal areas at the airports (hereinafter terminals), adopted a regulation forbidding, inter alia, the repetitive solicitation of money within the terminals. However, solicitation is permitted on the sidewalks outside the terminal buildings. Petitioner International Society for Krishna Consciousness, Inc., a not-for-profit religious corporation whose members, among other things, solicit funds in public places to support their movement, brought suit seeking declaratory and injunctive relief under 42 U.S.C. § 1983, alleging that the regulation deprived them of their First Amendment rights. The District Court granted petitioner summary judgment, concluding that the terminals were public fora, and that the regulation banning solicitation failed because it was not narrowly tailored to support a compelling state interest. The Court of Appeals reversed as here relevant. It determined that the terminals are not public fora, and found that the ban on solicitation was reasonable.

Held:

1. An airport terminal operated by a public authority is a non-public forum, and thus a ban on solicitation need only satisfy a reasonableness standard. Pp. 677-683.

(a) The extent to which the Port Authority can restrict expressive activity on its property depends on the nature of the forum. Regulation of traditional public fora or designated public fora survives only if it is narrowly drawn to achieve a compelling state interest, but limitations on expressive activity conducted on any other government-owned property need only be reasonable to survive. Perry Education Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 45, 46. Pp. 677-679.

(b) Neither by tradition nor purpose can the terminals be described as public fora. Airports have not historically been made available for speech activity. Given the lateness with which the modern air terminal has made its appearance, it hardly qualifies as a property that has "immemorially . . . time out of mind" been held in the public trust and used for the purposes of expressive activity. See Hague v. Committee for Industrial Organization, 307 U.S. 496, 515. Nor have airport operators opened terminals to such activities, see Cornelius v. NAACP Legal Defense and Educational Fund, 473 U.S. 788, 802, as evidenced by the operators’ frequent and continuing litigation in this area. Pp. 679-681.

(c) That speech activities may have historically occurred at "transportation nodes" such as rail and bus stations, wharves, and Ellis Island is not relevant. Many of these sites traditionally have had private ownership. In addition, equating airports with other transportation centers would not take into account differences among the various facilities that may affect the extent to which such facilities can accommodate expressive activity. It is unsurprising to find differences among the facilities. The Port Authority, other airport builders and managers, and the Federal Government all share the view that terminals are dedicated to the facilitation of efficient air travel, not the solicitation of contributions. Pp. 681-683.

2. The Port Authority’s ban on solicitation is reasonable. Solicitation may have a disruptive effect on business by slowing the path of both those who must decide whether to contribute and those who must alter their paths to avoid the solicitation. In addition, a solicitor may cause duress by targeting the most vulnerable persons or commit fraud by concealing his affiliation or shortchanging purchasers. The fact that the targets are likely to be on a tight schedule, and thus are unlikely to stop and complain to authorities, compounds the problem. The Port Authority has determined that it can best achieve its legitimate interest in monitoring solicitation activity to assure that travelers are not interfered with unduly by limiting solicitation to the sidewalk areas outside the terminals. That area is frequented by an overwhelming percentage of airport users, making petitioner’s access to the general public quite complete. Moreover, it would be odd to conclude that the regulation is unreasonable when the Port Authority has otherwise assured access to a universally traveled area. While the inconvenience caused by petitioner may seem small, the Port Authority could reasonably worry that the incremental effects of having one group and then another seek such access could prove quite disruptive. Pp. 683-685.

925 F.2d 576 (CA2 1991), affirmed in part.

REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, O’CONNOR, SCALIA, and THOMAS, JJ., joined. O’CONNOR, J., filed a concurring opinion. KENNEDY, J., filed an opinion concurring in the judgment, in Part I of which BLACKMUN, STEVENS, and SOUTER, JJ., joined, post, p. 693. SOUTER, J., filed a dissenting opinion, in which BLACKMUN and STEVENS, JJ., joined, post, p. 709.