International Soc. for Krishna Consciousness, Inc. v. Lee
505 U.S. 672 (1992)

Annotate this Case

OCTOBER TERM, 1991

Syllabus

INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS, INC., ET AL. v. LEE, SUPERINTENDENT OF PORT AUTHORITY POLICE

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

No. 91-155. Argued March 25, 1992-Decided June 26,1992

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. (ISKCON), 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 its members of their First Amendment rights. The District Court granted ISKCON 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 nonpublic 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 Ed. 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


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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 & Ed. Fund, Inc., 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 ISKCON'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 ISKCON 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, 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, post, p. 685. 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.


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Full Text of Opinion

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Primary Holding

Restrictions on speech in airports need only have a rational basis, since these are not public forums under the First Amendment.

Facts

The Port Authority did not allow the sale of merchandise, the sale or distribution of written material, or the solicitation and receipt of funds inside airport terminals in New York City. It did allow these activities on the sidewalks outside the terminals. The Krishna members believed in circulating religious literature and soliciting funds in public places as part of their mission. They argued that police superintendent Lee and the Port Authority had violated the First Amendment by enforcing this regulation. While the trial court granted summary judgment to Krishna, the intermediate appellate court ruled that the Port Authority could ban soliciting but not leafletting. Both sides appealed.

Opinions

Majority

  • William Hubbs Rehnquist (Author)
  • William Hubbs Rehnquist
  • Sandra Day O'Connor
  • Antonin Scalia
  • Clarence Thomas

Airport terminals do not have a long history of being forums that are available for public expression, since they are relatively recent innovations. Their main purpose is not related to promoting the free flow of ideas, but instead they are dedicated to the commercial enterprise of air travel. A lower level of scrutiny is appropriate when the government regulates speech on a part of its property that has not traditionally been a public forum. A restriction thus is valid as long as it is reasonable. In this case, it is reasonable to expect that solicitation will disrupt the travel of airport users while raising concerns of fraud and duress. People in the airport are usually in a hurry, so misconduct might be unreported. These issues justify a solicitation ban.

Concurrence

  • Sandra Day O'Connor (Author)

Concurrence/Dissent In Part

  • Anthony M. Kennedy (Author)

Dissent

  • David H. Souter (Author)
  • Harry Andrew Blackmun
  • John Paul Stevens

Case Commentary

The Court chose to adopt a broader rule governing certain public forums like airports, rather than requiring lower courts to hold specific evidentiary hearings in each case to determine whether the speech should be restricted. This area of First Amendment jurisprudence often must be reconciled with rulings on content-based and content-neutral restrictions, the substantive area to which decisions like these provide a procedural counterpart.

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