International Society for Krishna Consciousness of California, Inc. v. City of Los Angeles , 764 F.3d 1044 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
INTERNATIONAL SOCIETY FOR No. 12-56621
KRISHNA CONSCIOUSNESS OF
CALIFORNIA, INC., a California D.C. No.
nonprofit, religious corporation and 2:97-cv-03616-
EMIL BECA, one of its individual CBM-JC
members,
Plaintiffs-Appellants,
OPINION
v.
CITY OF LOS ANGELES, a California
Municipal Corporation; STEPHEN
YEE, Airport Manager; BERNARD J.
WILSON, Chief of Airport Police,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Consuelo B. Marshall, Senior District Judge, Presiding
Argued and Submitted
May 16, 2014—Pasadena, California
Filed August 20, 2014
2 ISKCON V. CITY OF LOS ANGELES
Before: John T. Noonan and Kim McLane Wardlaw,
Circuit Judges, and Roslyn O. Silver, Senior District
Judge.*
Opinion by Judge Noonan
SUMMARY**
Civil Rights
The panel affirmed the district court’s summary judgment
in an action brought by the International Society of Krishna
Consciousness and the group’s president challenging section
23.27(c) of the Los Angeles Administrative Code, which bans
continuous or repetitive solicitation for the immediate receipt
of funds at Los Angeles International Airport.
The panel held that major international airports have a
legitimate interest in controlling pedestrian congestion and
reducing the risk of fraud and duress attendant to repetitive,
in-person solicitation for the immediate receipt of funds. The
panel held that because section 23.27(c) is limited in nature
and leaves open alternative channels for plaintiffs to raise
money, the ordinance acts as a reasonable restriction on
protected speech under the First Amendment.
*
The Honorable Roslyn O. Silver, Senior District Judge for the U.S.
District Court for the District of Arizona, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ISKCON V. CITY OF LOS ANGELES 3
COUNSEL
David Liberman, Los Angeles, California; and Robert C.
Moest, Santa Monica, California, for Plaintiffs-Appellants.
John M. Werlich, Westlake Village, California, for
Defendants-Appellees.
OPINION
NOONAN, Circuit Judge:
The International Society for Krishna Consciousness of
California, Inc., along with Emil Beca, the group’s president
(collectively, “ISKCON”), appeals the district court’s grant
of summary judgment in favor of the City of Los Angeles
(“City”), Los Angeles International Airport (“LAX”)
manager Stephen Yee, and LAX police chief Bernard J.
Wilson (collectively, “Appellees”).
After nearly two decades of litigation, the only remaining
legal issue in this case is whether section 23.27(c) of the Los
Angeles Administrative Code1—which bans continuous or
repetitive solicitation for the immediate receipt of funds at
LAX, a nonpublic forum—is a reasonable restriction on
protected speech under the First Amendment.
1
Effective June 19, 2000, section 23.27(c) was deleted and reenacted
as section 171.02(c) of the Los Angeles Municipal Code. Consistent with
the standard practice in this case, we nevertheless refer to the ordinance
as section 23.27(c).
4 ISKCON V. CITY OF LOS ANGELES
Because ISKCON has failed to raise a genuine issue of
material fact as to whether section 23.27(c) is a reasonable
restriction on speech in light of LAX’s lawful purpose, we
affirm.
I
A
LAX occupies some 3,500 acres of land southwest of
downtown Los Angeles. Each year, more than 60 million
travelers pass through its doors, making it one of the world’s
busiest airports.
Including Tom Bradley International Terminal (“TBIT”),
LAX has nine separate terminals arranged along the outside
edge of a horseshoe-shaped configuration of multilevel
roadways. The upper roadway services the departure areas,
while the lower roadway services arrivals. At each terminal,
the roadways are flanked continuously with sidewalks
ranging in length from 440 to 876 feet and in width from 12
to 30 feet. A substantial majority of travelers must cross the
sidewalks to enter or exit the terminals, as must any greeters
or well-wishers. The parking structures lie in the horseshoe’s
interior.
Following the terrorist attacks of September 11, 2001
(“9/11”), LAX adopted significant changes to its security
protocols. As part of these changes, the maximum terminal
space available to the general public decreased from
4,000,000 to 211,000 square feet—a reduction of about
ninety-five percent. A significant portion of that previously
available space has since been occupied by the Transportation
Security Administration (“TSA”) and its passenger screening
ISKCON V. CITY OF LOS ANGELES 5
infrastructure. Concession and retail establishments are now
mostly located in sterile areas of LAX’s terminal buildings
and are not open to the general public.
Enacted four years prior to 9/11, section 23.27(c) of the
Los Angeles Administrative Code provides, in relevant part:
(c)(1) No person shall solicit and receive
funds inside the airport terminals at the
Airport.
(2) No person shall solicit and receive funds
in the parking areas at the Airport.
(3) No person shall solicit and receive funds
on the sidewalks adjacent to the airport
terminals or the sidewalks adjacent to the
parking areas at the Airport.
(4) Subdivisions (c)(1), (c)(2), and (c)(3)
apply only if the solicitation and receipt of
funds is conducted by a person to or with
passers-by in a continuous or repetitive
manner. Nothing herein is intended to prohibit
the distribution of flyers, brochures,
pamphlets, books, or any other printed or
written matter as long as such distribution is
not made with the intent of immediately
receiving funds, as defined in subdivision
(c)(5), at the locations referred to in (c)(1),
(c)(2), or (c)(3).
(5) “Solicit and receive funds” means any
written or oral request for
6 ISKCON V. CITY OF LOS ANGELES
(A) the donation of money, alms, property
or anything else of value, or,
(B) the pledge of a future donation of
money, alms, property, or anything else of
value, or,
(C) the sale or offering for sale of any
property upon the representation, express
or implied, that the proceeds of such sale
will be used for a charitable or religious
purpose.
L.A., Cal., Admin. Code § 23.27(c) (1997).
As section 23.27(c)’s text makes clear, persons are
expressly banned from soliciting and receiving funds in three
areas of LAX: airport terminals, parking lots, and the
sidewalks adjacent to both. This ban, however, applies only
to solicitation for the immediate receipt of funds2 and only
when done “in a continuous or repetitive manner.” Id.
§ 23.27(c)(4). Though the ordinance allows the “distribution”
of literature, including “flyers, brochures, pamphlets, [and]
books,” id., it bars the “sale” of such literature for the
immediate exchange of funds, id. § 23.27(c)(5).
2
As noted by the California Supreme Court, Appellees have interpreted
section 23.27(c) as prohibiting only solicitation for “the immediate receipt
of funds.” Int’l Soc’y for Krishna Consciousness of Cal., Inc. v. City of
L.A., 227 P.3d 395, 401 n.6 (Cal. 2010). We accept Appellees’
construction of the ordinance and limit our inquiry to whether the ban on
“immediate receipt of funds” is permissible.
ISKCON V. CITY OF LOS ANGELES 7
B
Brought to the United States from India in 1965, the
Krishna consciousness religion requires adherents to engage
in an evangelical practice known as sankirtan. Specifically,
members of ISKCON must “approach people in public places
in order to proselytize, solicit donations, sell and distribute
religious literature, and disseminate information about
Krishna consciousness programs and activities.” This
practice has four primary purposes: (1) to spread religious
truth; (2) to proselytize and attract new members; (3) to
distribute Krishna consciousness literature to as many people
as possible; and (4) to generate funds to pay for the costs of
the distributed literature and for other religious activities.
According to ISKCON, soliciting and receiving funds,
whether by sale or donation, is “essential” to the group’s
financial sustainability.
ISKCON seeks to practice sankirtan at LAX, a location
it considers “particularly vital.” Hoping to expose “people
from all over the world” to the teachings of Krishna
consciousness, ISKCON wants to practice sankirtan in three
areas at LAX: (1) the exterior sidewalks adjacent to airport
terminals; (2) the arrivals level lobbies; and (3) the non-sterile
mezzanine level food court and duty free shopping areas at
TBIT. Section 23.27(c) prohibits ISKCON from doing so.
On May 13, 1997—two days before section 23.27(c)
entered into force—ISKCON filed a complaint in federal
court for injunctive and declaratory relief, arguing that the
ordinance violated, inter alia, the Liberty of Speech Clause of
the California Constitution and the First Amendment to the
U.S. Constitution. On May 27, 1998, the district court
granted summary judgment in ISKCON’s favor on state law
8 ISKCON V. CITY OF LOS ANGELES
grounds and permanently enjoined section 23.27(c)’s
enforcement. The City appealed.
While that appeal was pending, the California Supreme
Court held that, for purposes of California law, ordinances
“directed at activity involving public solicitation for the
immediate donation or payment of funds should not be
considered content based” and thus “should be evaluated
under the intermediate scrutiny standard applicable to time,
place, and manner regulations, rather than under the strict
scrutiny standard.” L.A. Alliance for Survival v. City of L.A.,
993 P.2d 334, 335–36 (Cal. 2000). As a result, we vacated
the district court’s grant of summary judgment and remanded
the case for reconsideration in light of the California Supreme
Court’s decision. See Order, Int’l Soc’y for Krishna
Consciousness of Cal., Inc. v. City of L.A., No. 98-56215 (9th
Cir. June 28, 2000).
On remand, the district court again granted summary
judgment in favor of ISKCON. See Int’l Soc’y for Krishna
Consciousness of Cal., Inc. v. City of L.A., No. CV97-03616
CBM(VAPX), 2001 WL 1804795 (C.D. Cal. Aug. 2, 2001).
Again, the district court did so on state constitutional
grounds. Id. at *7.
While the City’s ensuing appeal was pending, section
171.07 of the Los Angeles Municipal Code—a provisional
ordinance that allowed groups, including ISKCON, to obtain
permits to solicit and receive funds in designated areas within
airport terminals only—was enacted. On January 13, 2003,
ISKCON filed a separate suit challenging the new law. This
time the district court granted summary judgment in the
City’s favor, ruling on September 18, 2006, that the
ISKCON V. CITY OF LOS ANGELES 9
permitting provision did not run afoul of the First
Amendment. ISKCON appealed.3
On June 9, 2008, this court, having previously remanded
this case so the parties could prepare a post-9/11 record, see
Int’l Soc’y for Krishna Consciousness of Cal., Inc. v. City of
L.A., 59 F. App’x 974, 975–76 (9th Cir. 2003), issued an
order certifying to the California Supreme Court the question
whether LAX is a public forum under the California
Constitution, see Int’l Soc’y for Krishna Consciousness of
Cal., Inc. v. City of L.A., 530 F.3d 768, 770 (9th Cir. 2008).
On March 25, 2010, the California Supreme Court
declined to decide that question, holding instead that even if
LAX were a public forum under California law, section
23.27(c) was “valid as a reasonable time, place, and manner
restriction of expressive rights.” Int’l Soc’y for Krishna
Consciousness of Cal., 227 P.3d at 397. Applying
California’s version of “intermediate scrutiny,” the court held
that section 23.27(c) was narrowly tailored to the significant
government interests of protecting against fraud, duress, and
congestion, while leaving open ample alternative means for
ISKCON to convey its message. Id. at 402–04.
With the state constitutional claim decided, we
“dissolve[d] the injunction” barring enforcement of section
23.27(c) and remanded once more for the district court to
consider ISKCON’s First Amendment challenge. See Int’l
Soc’y for Krishna Consciousness of Cal., Inc. v. City of L.A.,
3
The panel assigned to hear ISKCON’s separate challenge to section
171.07 is withholding submission pending final resolution of the instant
appeal. See Order, Int’l Soc’y for Krishna Consciousness of Cal., Inc. v.
City of L.A., No. 06-56660 (9th Cir. Apr. 16, 2014).
10 ISKCON V. CITY OF LOS ANGELES
386 F. App’x 669, 670 (9th Cir. 2010). In the absence of an
injunction, the City began enforcing section 23.27(c)’s
solicitation ban on September 15, 2010.
On remand, the district court granted the City’s motion
for summary judgment and denied ISKCON’s. In its order
dated August 7, 2012, the court below held that section
23.27(c) was a reasonable, viewpoint-neutral restriction on
expressive activity at LAX, a nonpublic forum under the First
Amendment. Persuaded by the City’s proffered interests in
reducing fraud, congestion, passenger-solicitor conflicts, and
police distraction, the district court concluded that ISKCON
had failed to “create a genuine issue of material fact as to
whether the restriction reasonably fulfills a legitimate need.”
This appeal followed.
II
In evaluating the district court’s grant of summary
judgment dismissing ISKCON’s First Amendment claim,
“[w]e must determine, viewing the evidence in the light most
favorable to the nonmoving party, whether there are any
genuine issues of material fact and whether the district court
correctly applied the relevant substantive law.” Dietrich v.
John Ascuaga’s Nugget, 548 F.3d 892, 896 (9th Cir. 2008)
(internal quotation marks omitted). Our review is de novo.
Id.All that is left for us to decide is whether section 23.27(c)
constitutes a reasonable restriction on protected speech under
the First Amendment. We hold that it does.
ISKCON V. CITY OF LOS ANGELES 11
A
We adhere to “a forum based approach for assessing
restrictions that the government seeks to place on the use of
its property.” Int’l Soc’y for Krishna Consciousness, Inc. v.
Lee (Lee I), 505 U.S. 672, 678 (1992) (internal quotation
marks omitted). Under this approach, the government in
public fora may impose reasonable, content-neutral
restrictions on the time, place, or manner of protected speech
so long as those limits are “narrowly tailored to serve a
significant governmental interest” and “leave open ample
alternative channels for communication of the information.”
Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)
(internal quotation marks omitted). This test embodies “an
intermediate level of scrutiny.” Berger v. City of Seattle,
569 F.3d 1029, 1059 (9th Cir. 2009) (en banc).
In nonpublic fora, by contrast, restrictions on speech need
“survive only a much more limited review.” Lee I, 505 U.S.
at 679. Specifically, the challenged restriction must be
“reasonable in light of the purpose served by the forum” and
“viewpoint neutral.” Cornelius v. NAACP Legal Def. &
Educ. Fund, Inc., 473 U.S. 788, 806 (1985). The restriction
“need not be the most reasonable or the only reasonable
limitation”; it “need only be reasonable.” Id. at 808. A
restriction is “reasonable,” moreover, where it is “wholly
consistent with the [government’s] legitimate interest in
preserv[ing] the property . . . for the use to which it is
lawfully dedicated.” Perry Educ. Ass’n v. Perry Local
Educators’ Ass’n, 460 U.S. 37, 50-51 (1983) (second
alteration in original) (internal quotation marks omitted). The
reasonableness inquiry, we have noted, “is a deferential one.”
Brown v. Cal. Dep’t of Transp., 321 F.3d 1217, 1223 (9th Cir.
2003).
12 ISKCON V. CITY OF LOS ANGELES
Here, the parties agree that LAX (its sidewalks included)
is a nonpublic forum and that section 23.27(c) is viewpoint
neutral. The parties also agree that the “basic purpose” of
LAX is “to facilitate, process and serve the traveling public
in getting to and from airline flights and moving into and out
of the airport terminal areas in a safe, secure, convenient, and
efficient fashion.” What the parties dispute is whether
section 23.27(c) constitutes a reasonable restriction on speech
in light of that purpose.
B
1
Without question, solicitation of funds “is a form of
speech protected under the First Amendment.” Lee I,
505 U.S. at 677. The Supreme Court, however, has
traditionally afforded solicitation less protection than other
forms of speech. Compare Lee v. Int’l Soc’y for Krishna
Consciousness, Inc. (Lee II), 505 U.S. 830, 831 (1992) (per
curiam) (invalidating the Port Authority’s ban on literature
distribution in New York City’s airport terminals), with Lee I,
505 U.S. at 683–85 (upholding the Port Authority’s ban on
solicitation in New York City’s airport terminals), United
States v. Kokinda, 497 U.S. 720, 733–37 (1990) (plurality
opinion) (upholding a federal regulation banning solicitation
on U.S. Post Office premises, including adjacent sidewalks),
and Heffron v. Int’l Soc’y for Krishna Consciousness, Inc.,
452 U.S. 640, 654–56 (1981) (upholding a rule restricting
solicitation to designated booths within the Minnesota State
Fair grounds). This is so, the Court has said, because of “the
disruptive effect that solicitation may have.” Lee I, 505 U.S.
at 683; see also Kokinda, 497 U.S. at 736 (explaining that
ISKCON V. CITY OF LOS ANGELES 13
“solicitation is inherently more disruptive than . . . other
speech activities”).
The Court in Lee I, faced with a challenge similar to the
one at bar, identified two chief consequences of the disruption
wrought by solicitation: pedestrian congestion and fraud.
Concerning the former, the Court stated:
Solicitation 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. Passengers who wish to avoid
the solicitor may have to alter their paths,
slowing both themselves and those around
them. The result is that the normal flow of
traffic is impeded.
Lee I, 505 U.S. at 683–84 (citations and internal quotation
marks omitted). Appellees’ interest in “maintain[ing] the
orderly movement of the crowd”—i.e., controlling pedestrian
congestion—is therefore a “substantial” one. Heffron,
452 U.S. at 649-50.
In the context of major international airports, concerns
over congestion are even more acute. Writing nearly a
decade before 9/11, the Court in Lee I observed that
solicitation at airports was “especially” problematic because
passengers “are often weighted down by cumbersome
baggage [and] may be hurrying to catch a plane or to arrange
ground transportation.” 505 U.S. at 684 (internal quotation
14 ISKCON V. CITY OF LOS ANGELES
marks omitted). “Delays,” continued the Court, “may be
particularly costly in this setting, as a flight missed by only a
few minutes can result in hours worth of subsequent
inconvenience.” Id.
With the security protocols that airports and the TSA have
implemented since 9/11, these worries have only magnified.
Quite apart from any security concerns posed by solicitors,
the reality is that air travel in the United States has changed
dramatically since 1992, when Lee I was decided. At LAX,
for example, the maximum terminal space available to the
general public today is roughly five percent of what it was
prior to 9/11. The disruptive effect of solicitation has been
amplified accordingly, as airport travelers must now spend
more time in less space.
In addition to congestion concerns, airports also possess
a “legitimate interest” in protecting travelers from the risk of
“fraud” and “duress” attendant to “face-to-face solicitation.”
Lee I, 505 U.S. at 684; see also Heffron, 452 U.S. at 657(Brennan, J., concurring in part and dissenting in part)
(expressing “no doubt that the State has a significant interest
in protecting its fairgoers from fraudulent or deceptive
solicitation practices”). As the Court in Lee I explained:
The skillful, and unprincipled, solicitor can
target the most vulnerable, including those
accompanying children or those suffering
physical impairment and who cannot easily
avoid the solicitation. The unsavory solicitor
can also commit fraud through concealment of
his affiliation or through deliberate efforts to
shortchange those who agree to purchase.
Compounding this problem is the fact that, in
ISKCON V. CITY OF LOS ANGELES 15
an airport, the targets of such activity
frequently are on tight schedules. This in turn
makes such visitors unlikely to stop and
formally complain to airport authorities. As a
result, the airport faces considerable difficulty
in achieving its legitimate interest in
monitoring solicitation activity to assure that
travelers are not interfered with unduly.
505 U.S. at 684 (citations omitted). Justice Kennedy,
concurring in Lee I, agreed: “In-person solicitation of funds,
when combined with immediate receipt of that money,
creates a risk of fraud and duress that is well recognized.” Id.
at 705 (Kennedy, J., concurring in the judgments).
2
The twin government interests of reducing congestion and
fraud at airports are at least as pressing here as they were in
Lee I.
As to passenger congestion, Appellees have provided
ample, unrefuted testimony indicating that LAX is a venue
whose inherent crowdedness solicitors only exacerbate. For
instance, Dr. Evert Meyer, director of modeling simulation
and operational planning at an airport consultancy, stated in
his declaration that “to provide the traveling public with a
safe environment and safe access to air travel at LAX, it is
imperative that congestion in the terminal lobbies and
curbside be reduced to the greatest extent possible.” Meyer
Decl. ¶ 4. “[A]ny persons who solicit and receive funds in
the terminals at LAX,” declared Dr. Meyer, “have a
detrimental effect on congestion and passenger flow.” Id.
The record is also littered with declarations from persons
16 ISKCON V. CITY OF LOS ANGELES
working at LAX who attest to the solicitors’ adverse impact
on airport congestion. This concern peaks at TBIT, typically
LAX’s most crowded terminal.
ISKCON, for its part, has failed to raise a genuine issue
of material fact on this score. Indeed, one of ISKCON’s
aviation experts acknowledged that “LAX by its very nature
is a congested area.” Elson Decl. ¶ 19. Furthermore, that
expert’s opinion that airport solicitors “do not present a
meaningful increase in congestion” is fatally undercut by his
exclusive focus on the impact of just a “handful of solicitors,”
id. ¶¶ 32-33, rather than on the entire population of likely
solicitors. This oversight dooms his conclusion. See Lee I,
505 U.S. at 685 (“[T]he justification for the Rule should not
be measured by the disorder that would result from granting
an exemption solely to ISKCON. For if ISKCON is given
access, so too must other groups.” (citation and internal
quotation marks omitted)); Heffron, 452 U.S. at 654 (“[T]he
inquiry must involve not only ISKCON, but also all other
organizations that would be entitled to distribute, sell, or
solicit if the booth rule may not be enforced with respect to
ISKCON.”). And even if the solicitor population as a whole
contributed only marginally to the existing congestion at
LAX’s terminals and sidewalks, Appellees “could reasonably
worry that even such incremental effects would prove quite
disruptive.” Lee I, 505 U.S. at 685.
As to fraud and duress, Appellees have provided
unrebutted testimony that repetitive, in-person solicitation at
LAX presents a legitimate risk of deceit. For example,
Laponda Fitchpatrick, an airport police captain, declared that
solicitors often run a familiar scheme: they will pose as
“Airport Ambassadors,” purport to provide information
(correct, or not) to travelers, reveal later that they are also
ISKCON V. CITY OF LOS ANGELES 17
soliciting funds for a particular cause, and collect money
from the travelers who typically “feel obligated to provide the
solicitor with a donation because of the circumstances.”
Fitchpatrick Decl. ¶ 19. Myriad other examples of solicitor
fraud dot the record: solicitors using badges to deceive
travelers; solicitors pretending to work for disaster relief
organizations; and solicitors posing as City employees to bilk
travelers. According to eyewitness declarations, ISKCON
solicitors are themselves not exempt from practicing
chicanery. The risk of fraud is particularly severe at TBIT,
where a larger portion of travelers struggle with English.
Once again, ISKCON has not shown a genuine issue of
material fact. Rather than disputing Appellees’ factual
allegations, ISKCON argues instead that any fraud or duress
can be prevented through enforcement of existing laws. But
as the Court in Lee I explained, air travelers “on tight
schedules” are “unlikely to stop and formally complain” of
fraud to airport officials. 505 U.S. at 684. International
travelers may be even less inclined, especially if there is a
language barrier or they lack the time to complain until their
arrival in a faraway land. Considering the strong likelihood
of underreporting, Appellees could reasonably conclude that
the enforcement of existing laws would be an inadequate
means of regulating solicitor fraud.
In short, ISKCON has not raised a genuine issue of
material fact as to either of these legitimate interests. Nor has
ISKCON shown that the challenged ordinance is an otherwise
unreasonable means of effectuating those interests. Section
23.27(c), like the regulation upheld in Lee I, is actually quite
limited: it bars only solicitation for the immediate receipt of
funds and only if done in a continuous or repetitive manner.
See L.A., Cal., Admin. Code § 23.27(c)(4) (1997); see also
18 ISKCON V. CITY OF LOS ANGELES
Lee I, 505 U.S. at 707 (Kennedy, J., concurring in the
judgments) (“[T]he solicitation ban survives with ease,
because it prohibits only solicitation of money for immediate
receipt. . . . And in fact, the regulation is even more narrow
because it only prohibits such behavior if conducted in a
continuous or repetitive manner.”). It surprises us little, then,
that the California Supreme Court, applying the state’s form
of intermediate scrutiny, concluded that the ordinance was “a
narrowly tailored regulation of expressive activity.” Int’l
Soc’y for Krishna Consciousness of Cal., Inc. v. City of L.A.,
227 P.3d 395, 403 (Cal. 2010).
Unlike intermediate scrutiny, moreover, reasonableness
review does not require Appellees to show that section
23.27(c) leaves open ample alternative channels for ISKCON
to raise money. See Lee I, 505 U.S. at 683–85 (failing to
mention any such requirement under reasonableness review);
id. at 683 (reiterating that the challenged regulation “need
only be reasonable; it need not be the most reasonable or the
only reasonable limitation” (internal quotation marks
omitted)). The ordinance does so anyway. Indeed, section
23.27(c) permits numerous other forms of communication: it
allows ISKCON to solicit future donations online or via
preaddressed envelopes, to distribute Krishna consciousness
literature, and to spread its word to willing passersby. See id.
at 707-08 (Kennedy, J., concurring in the judgments).
ISKCON, in response, argues that subsisting on donations
via preaddressed envelopes would be financially ruinous. In
the group’s experience, only about ten percent of those
solicited for future donations actually give. Even so, the First
Amendment does not guarantee ISKCON its preferred
method of solicitation. In ACORN v. City of Phoenix,
798 F.2d 1260, 1271 (9th Cir. 1986), overruled on other
ISKCON V. CITY OF LOS ANGELES 19
grounds by Comite de Jornaleros de Redondo Beach v. City
of Redondo Beach, 657 F.3d 936 (9th Cir. 2011) (en banc),
this court rejected another group’s contention that soliciting
vehicle occupants was “a uniquely effective method of
fundraising for the organization, for which no significant
alternative approach exists.” Though applying the more
stringent test for restrictions in a public forum, this court
explained that “the myriad and diverse methods of
fundraising available in this country, including solicitation on
the sidewalk from pedestrians, canvassing door-to-door,
telephone campaigns, or direct mail,” meant that the group
was not “left without ample alternatives by the mere
foreclosure of one questionable approach to soliciting
contributions.” Id.Same here. While ISKCON might justifiably prefer to
obtain money from travelers on the spot, nothing prevents the
group from raising money in countless other ways at
countless other venues. In this case, the First Amendment
demands no more.
Lastly, ISKCON argues that Lee I requires airport
sidewalks to remain open for solicitation. It does no such
thing. True enough, the ban in Lee I reached only solicitation
within airport terminal buildings. See 505 U.S. at 676. In
assessing the regulation’s reasonableness, moreover, the
Court was heartened because ISKCON members could still
solicit funds on “the sidewalk areas outside the terminals,”
ensuring that their access to “an overwhelming percentage of
airport users” would be “quite complete.” Id. at 684-85. But
nowhere in the opinion did the Court suggest that the
regulation would have been unconstitutional had it also
barred solicitation on the sidewalks. The Justices had no
occasion to address this hypothetical. The Court simply
20 ISKCON V. CITY OF LOS ANGELES
found that the solicitors’ continued access to the airport
sidewalks was but one factor weighing in favor of
reasonableness. See ISKCON Miami, Inc. v. Metro. Dade
Cnty., 147 F.3d 1282, 1289–90 (11th Cir. 1998) (interpreting
Lee I as such and finding a solicitation ban that extended to
Miami International Airport’s sidewalks reasonable in light
of their “particularly hectic nature”).
In all events, Appellees’ interest in reducing congestion
is only heightened along LAX’s narrow, oft-crowded
sidewalks, which span but twelve feet in certain areas.
Furthermore, Appellees’ interest in protecting against fraud
and duress is just as strong on the sidewalks as it is inside the
terminals. ISKCON does not contend otherwise.
We therefore find that section 23.27(c) reasonably
furthers Appellees’ legitimate interests in reducing
congestion and fraud at LAX. Under the deferential standard
we apply to content-neutral restrictions in nonpublic fora,
Appellees prevail.
3
We note our agreement with the Eleventh Circuit. In
ISKCON Miami, Inc. v. Metropolitan Dade County, 147 F.3d
1282 (11th Cir. 1998), that court ruled on a remarkably
similar challenge. There, as here, the Krishnas sought to
enjoin a major international airport’s ban on the solicitation
of funds and sale of literature.4 Id. at 1284. There, as here,
4
Section 23.27(c), like the regulation in ISKCON Miami, also bans the
sale of literature for the immediate exchange of funds. See L.A., Cal.,
Admin. Code § 23.27(c)(4)–(5) (1997). Although “no majority of the
[Lee I or II] court directly addressed the [Port Authority’s] ban on the sale
ISKCON V. CITY OF LOS ANGELES 21
the ban extended beyond just the terminal buildings to the
parking lots and sidewalks. Id. at 1285. And there, as here,
the Krishnas were free to solicit future donations because the
ban was limited to “solicitation and sales followed by the
immediate receipt of funds.” Id. at 1290.
Affirming the district court’s grant of summary judgment
for Dade County, the Eleventh Circuit unanimously held that
the ban was “a reasonable restriction on speech” in “a
nonpublic forum.” Id. at 1288. Though sitting three years
before 9/11, the court in ISKCON Miami concluded
nonetheless that the ban was justified in light of Dade
County’s “valid” interests in reducing airport “delays and
disruptions” and protecting against “fraud and coercion.” Id.
The court so held even though the ban also restricted the
locations where persons could distribute free literature to just
“eight areas in the airport.” Id. at 1290. Section 23.27(c)
contains no such restriction.
of literature,” ISKCON Miami, 147 F.3d at 1286, we agree with the
Eleventh Circuit that the “same problems” justifying government
restrictions on solicitation in a nonpublic forum justify those same
restrictions on the sale of literature, id. at 1287. As with solicitation, the
sale of literature “requires action by those who would respond.” Lee I,
505 U.S. at 683 (internal quotation marks omitted). “The individual
[purchaser],” like his solicited counterpart, “must decide whether or not
to contribute (which itself might involve reading the [seller’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.” Id. (internal
quotation marks omitted). Ultimately, the result is the same: “the normal
flow of traffic is impeded.” Id. at 684. Appellees’ “substantial” interest
in “maintain[ing] the orderly movement of the crowd” at LAX is no
weaker because peripatetic sellers, rather than solicitors, have caused the
disruption. Heffron, 452 U.S. at 649-50.
22 ISKCON V. CITY OF LOS ANGELES
The Fourth Circuit’s more recent decision in The News &
Observer Publishing Co. v. Raleigh-Durham Airport
Authority, 597 F.3d 570 (4th Cir. 2010), in no way alters our
conclusion. There, the court invalidated Raleigh-Durham
International Airport’s total ban on newspaper racks inside its
terminals. Id. at 581. In so doing, the court found that the
newspaper racks “would create only trivial congestion.” Id.
at 580. The record here, by contrast, establishes that
solicitors at LAX have a substantial adverse impact on
congestion. In addition, the Fourth Circuit did not address
concerns regarding fraud and duress. How could it?
Inanimate newspaper racks do not pose a risk of deceitful
behavior similar to that posed by face-to-face solicitors.
Unlike LAX’s solicitors, newspaper racks cannot “target the
most vulnerable,” nor are they likely to conceal their
affiliation. Lee I, 505 U.S. at 684. Accordingly, the Fourth
Circuit’s decision does not persuade us.
* * *
Major international airports have a legitimate interest in
controlling pedestrian congestion and reducing the risk of
fraud and duress attendant to repetitive, in-person solicitation
for the immediate receipt of funds. As section 23.27(c) is
limited in nature and leaves open alternative channels for
ISKCON to raise money, we hold that this ordinance acts as
a reasonable restriction on protected speech under the First
Amendment.
AFFIRMED.