505 U.S. 672 (1992)
The Port Authority of New York and New Jersey owns and operates three major airports in the metropolitan New York City area: John F. Kennedy International Airport, LaGuardia Airport, and Newark International Airport.1 These airports together form one of the busiest airport systems in the country, with approximately 1,300 daily flights and 80,000,000 passengers per year.2
The airports are funded by user fees and operated to further the efficient use of air transportation.3 The terminal areas at each airport are divided into public areas, which include the central terminal areas and the arrival and departure areas, and restricted areas, which are limited to authorized personnel.4 The public areas house restaurants, snack stands, gift shops, ticket counters, baggage claim areas, car rental agencies, and other commercial activities.5
The International Society for Krishna Consciousness, Inc. is a not-for-profit religious corporation whose members perform a ritual known as sankirtan.6 Sankirtan is a religious ritual that includes the chanting of a religious mantra, dancing, and the distribution of religious literature.7 The purpose of sankirtan is to spread the message of Krishna consciousness to the public and to solicit financial support for the religious movement.8 ISKCON wishes to perform sankirtan at the airports.9
In 1988, the Port Authority adopted a regulation forbidding the repetitive solicitation of money or the sale or distribution of literature in the terminal areas of the airports.10 The regulation applies to all repetitive solicitation and distribution activities, regardless of the content of the speech or the identity of the speaker.11 The regulation permits solicitation and distribution on the sidewalks outside the terminal buildings.12
ISKCON filed suit in the United States District Court for the Southern District of New York challenging the regulation on First Amendment grounds.13 The District Court granted ISKCON's motion for summary judgment.14 The Court of Appeals for the Second Circuit affirmed in part and reversed in part.15 The Supreme Court granted certiorari to resolve a conflict in the Courts of Appeals over whether airports are public forums for First Amendment purposes and whether regulations such as the one at issue here are valid.16 The facts in this case are not in dispute.17
Whether airport terminals operated by a public authority are traditional or designated public forums under the First Amendment?18
Traditional public forums are places which by long tradition or by government fiat have been devoted to assembly and debate.19 Designated public forums are places that the government has opened for use by the public as a place for expressive activity.20 Nonpublic forums are places that are not by tradition or designation a forum for public communication.21 In nonpublic forums the government may restrict speech so long as the restrictions are reasonable and are not an effort to suppress expression merely because public officials oppose the speaker's view.22
No. The Port Authority of New York and New Jersey owns and operates John F. Kennedy International Airport, LaGuardia Airport, and Newark International Airport.23 These airports together handle approximately 80,000,000 passengers per year with about 1,300 daily flights.24 The airports are funded by user fees and operated to facilitate air transportation.25 The terminal areas contain restaurants, snack stands, gift shops, ticket counters, and other commercial establishments.26
The International Society for Krishna Consciousness, Inc. is a not-for-profit religious corporation whose members engage in sankirtan.27 Sankirtan involves chanting a religious mantra, dancing, and the distribution of religious literature while soliciting financial support.28 In 1988 the Port Authority adopted a regulation forbidding the repetitive solicitation of money or the sale or distribution of literature in the terminal areas.29 The regulation applies uniformly to all persons and all speech without regard to content or viewpoint.30 Solicitation and distribution remain permitted on the sidewalks outside the terminal buildings.31
ISKCON wishes to perform sankirtan inside the terminals but the regulation prevents it from doing so.32 The terminals were built to facilitate the movement of passengers and to promote the efficient use of air transportation, not to promote the free exchange of ideas.33 The Port Authority has not intentionally opened the terminals for expressive activity.34 The presence of commercial establishments does not transform the terminals into public forums because the commercial activities are incidental to the primary purpose of the terminals.35 The terminals are therefore nonpublic forums.36
The airport terminals are nonpublic forums under the First Amendment.37
Related opinions on this issue
Joined by Blackmun, Stevens, And Souter, Jj., In Part I
Justice Kennedy concurred in the judgment but concluded that the public spaces of the airports are public forums.38 The objective physical characteristics of the property, the broad public access permitted by the government, and the compatibility of expressive activity with the uses to which the government has dedicated the property establish public forum status.39 Under this analysis the Port Authority's blanket prohibition on distribution or sale of literature cannot survive the stringent standards applicable to public forums.40
The First Amendment is often inconvenient, but that is beside the point.41
Joined by Blackmun And Stevens, Jj.
Justice Souter dissented and joined Part I of Justice Kennedy's opinion.42 He agreed that the public areas of the airports qualify as public forums because the property is suitable for discourse in its physical character and expressive activity is compatible with the use to which it has actually been put.43 The designation of public property as a traditional public forum must represent a conclusion that the property is no different in principle from streets, parks, and sidewalks rather than treating the class of such forums as closed by their description as traditional.44
Treating the class of such forums as closed by their description as traditional has no warrant in a Constitution whose values are not to be left behind in the city streets.45
Justice O’Connor concurred in the judgment and agreed that publicly owned airports are not public forums.46 Airports do not count among their purposes the free exchange of ideas. They have not by long tradition or by government fiat been devoted to assembly and debate.47
They have not time out of mind been used for communicating thoughts between citizens and discussing public questions.48 Publicly owned or operated property does not become a public forum simply because members of the public are permitted to come and go at will.49 The Port Authority has not expressly opened its airports to the types of expression at issue here.50
Whether a regulation prohibiting repetitive solicitation of funds inside airport terminals violates the First Amendment?51
No. The regulation is reasonable because the purpose of the airports is to facilitate the efficient movement of passengers and to promote air travel.54 The repetitive solicitation of funds can be disruptive of the orderly movement of passengers.55 Solicitation can be annoying and intrusive.56 Face-to-face solicitation presents risks of duress that are an appropriate target of regulation because the skillful and unprincipled solicitor can target the most vulnerable, including those accompanying children or those suffering physical impairment.57
The unsavory solicitor can also commit fraud through concealment of affiliation or through deliberate efforts to shortchange those who agree to purchase.58 The Port Authority has concluded that its interest in monitoring the activities can best be accomplished by limiting solicitation to the sidewalk areas outside the terminals.59 The regulation is also viewpoint-neutral because it applies to all persons and all speech without regard to the content or the viewpoint of the message.60 The regulation therefore satisfies the reasonableness requirement applicable to nonpublic forums.61
The regulation prohibiting repetitive solicitation of funds inside airport terminals does not violate the First Amendment.
Related opinions on this issue
Joined by Blackmun And Stevens, Jj.
Justice Souter dissented from the Court's conclusion sustaining the total ban on solicitation of money for immediate payment.62 He concluded that the ban fails the requirements of narrow tailoring to further a significant state interest and availability of ample alternative channels for communication.63 The claim to be preventing coercion is weak because a pedestrian can simply walk away.64
There is virtually no evidence of fraudulent conduct over an eleven-year period.65 Even assuming a governmental interest adequate to justify some regulation, the present ban would fall when subjected to the requirement of narrow tailoring because fraudulent misrepresentations can be prohibited directly and efforts to promote disclosure of finances may assist in preventing fraud.66
Justice O’Connor concurred in the judgment and agreed that the ban on solicitation is reasonable because face-to-face solicitation is incompatible with the airport's functioning in a way that the other permitted activities are not.67 Solicitation impedes the normal flow of traffic.68 It is more intrusive and intimidating than an encounter with a person giving out information.69
The record in this case confirms that the problems of congestion and fraud that have been identified with solicitation in other contexts have also proved true in the airports' experience.70 Because airport 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.71
Joined by Blackmun, Stevens, And Souter, Jj., In Part I
Justice Kennedy concurred in the judgment and would sustain the Port Authority's ban on solicitation and receipt of funds as a narrow and valid regulation of the time, place, and manner of protected speech in a public forum or as a valid regulation of the nonspeech element of expressive conduct.72 The regulation is directed only at the physical exchange of money, which is an element of conduct interwoven with otherwise expressive solicitation.73 It serves the significant government interest in preventing fraud and duress that is intensified by the immediate exchange of money.74
The regulation is content-neutral and leaves open ample alternative channels for communication.75
Whether a regulation prohibiting repetitive distribution of literature inside airport terminals violates the First Amendment?76
In nonpublic forums the government may impose restrictions on speech that are reasonable in light of the purpose served by the forum and that are viewpoint-neutral. The restriction need only be reasonable; it need not be the most reasonable or the only reasonable limitation.
Yes. The regulation is not reasonable as applied to the distribution of literature.77 The distribution of literature is less intrusive than the solicitation of funds.78 The distribution of literature does not involve the same degree of disruption or intrusion as the repetitive solicitation of funds.79
The Port Authority has not shown that the distribution of literature interferes with the efficient operation of the airports.80 While the difficulties posed by solicitation in a nonpublic forum are sufficiently obvious that its regulation may ring of common sense, the same is not necessarily true of leafletting.81 One need not ponder the contents of a leaflet or pamphlet in order mechanically to take it out of someone's hand.82 The Port Authority has provided no independent reason for prohibiting leafletting, and the record contains no information from which an inference can be drawn that would support its ban.83
Because peaceful pamphleteering is not incompatible with the multipurpose environment of the airports, a total ban on that activity is not reasonable without an explanation as to why such a restriction preserves the property for the several uses to which it has been put.84
The regulation prohibiting repetitive distribution of literature inside airport terminals violates the First Amendment.85
Related opinions on this issue
Justice O’Connor concurred in the judgment in the companion case and would strike down the ban on repetitive distribution of literature because the Port Authority has not offered any justifications or record evidence to support its ban on the distribution of pamphlets alone.86 Its argument is focused instead on the problems created when literature is distributed in conjunction with a solicitation plea.87 The regulation banning leafletting cannot be upheld as reasonable on this record.88
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.89
Joined by Blackmun, Stevens, And Souter, Jj., In Part I
Justice Kennedy concurred in the judgment and concluded that the Port Authority's flat ban on the distribution or sale of printed material must fall in its entirety.90 The government interest in regulating the sales of literature is not as powerful as in the case of solicitation because the danger of fraud arising from such sales is much more limited than from pure solicitation.91 The flat ban on sales of literature leaves open fewer alternative channels of communication than the more limited prohibition on the solicitation and receipt of funds.92
A prohibition on sales forecloses opportunity for the very persons who need it most.93
Joined by Blackmun And Stevens, Jj.
Justice Souter joined in Part I of Justice Kennedy's opinion and the judgment of affirmance in the companion case concerning the distribution ban.94 He agreed that the public areas of the airports qualify as public forums because the property is suitable for discourse in its physical character and expressive activity is compatible with the use to which it has actually been put. The distribution ban cannot survive the standards applicable to public forums.95
The practical reality of the regulation is that it shuts off a uniquely powerful avenue of communication for organizations like the International Society for Krishna Consciousness.96 The designation of public property as a traditional public forum must represent a conclusion that the property is no different in principle from streets, parks, and sidewalks.97