International Society for Krishna Consciousness, Inc. v. Lee

WINTER, Circuit Judge:

Appellant Walter Lee, now deceased, was the official responsible for enforcing a regulation of the Port Authority of New York and New Jersey, the party controlling the defense in the instant matter,¹ banning the solicitation of money and distribution of literature within the terminals of three New York area airports. The district court struck down the regulation on the grounds that “the terminals ... possess the characteristics of a bustling metropolitan boulevard” and are traditional public fora for expressive activity. After the district court’s decision, the Supreme Court decided United States v. Kokinda, — U.S. —, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990), which we believe dictates reversal insofar as the district "court invalidated the Port Authority’s ban on the in-person solicitation of funds but affirmance insofar as it invalidated the Port Authority’s ban on the distribution of literature.

BACKGROUND

This action for declaratory and injunctive relief under 42 U.S.C. § 1983 began in 1975. After several detours described in the district court opinion, see International Society for Krishna Consciousness, Inc. v. Lee, 721 F.Supp. 572, 573-74 (S.D.N.Y.1989), that court entered summary judgment in favor of the International Society for Krishna Consciousness, Inc. (“ISK-CON”).

The essential facts are not contested. ISKCON is a not-for-profit religious corporation whose members perform a ritual known as sankirtan. The ritual consists of “going into public places, disseminating religious literature and soliciting funds to support the religion.” While the distribution or sale of religious literature is a major part of the ritual, its primary purpose appears to be fundraising. ISKCON states, for example, that donations received through sankirtan, “including those received for religious literature, not only defray printing and other distribution costs, but are the very lifeblood and principal means of support of [the] religious movement.”

The Port Authority was created by an interstate compact between New York and New Jersey. It owns or operates some thirty-three facilities within the Port District. Among these are the three airport terminals at issue in the present case, John F. Kennedy International Airport (“Kennedy”), La Guardia Airport (“La Guardia”), and Newark International Airport (“Newark”). Together, these airports constitute one of the busiest and most heavily used metropolitan airport complexes in the world. In 1986, they served nearly 79 million travelers, approximately eight percent of the domestic airline market and more than half of the Trans-Atlantic market. By the latter part of this decade, it is estimated that they will serve at least 110 million passengers per year.

Most of the space at Kennedy, La Guar-dia and Newark is leased to commercial airlines, each of which bears primary responsibility for its own leasehold. The Port Authority retains control over the un-leased portions of the airports — specifically, parts of the International Arrivals Building at Kennedy, the Central Terminal Building at La Guardia, and the North Terminal Building at Newark. Initially, ISK-CON challenged restrictions on sankirtan in both leased and unleased portions of the airports, but after a series of legal skirmishes over the need to join various commercial airlines as defendants and, once joined, over their status as state actors, the portion of the litigation involving the airlines was settled. The instant appeal thus pertains only to those unleased portions of Kennedy, La Guardia and Newark — to which we refer for convenience as “terminals” — subject to the Port Authority’s direct control.

The public has access to the terminals, which contain various commercial establishments. At the time of ISKCON’s submissions to the district court on the summary judgment motion, for example, the lobby of the International Arrivals Building at Kennedy included two restaurants, two snack stands, a bar, a postal substation and postal facility, a bank, a telegraph office, a duty-free boutique, a drug store, a nursery, a barber shop, two currency exchange facilities, a dental office, and an area for the display of art exhibits. Along the east and west corridors of that same building were some ten duty-free shops, five bars, two snack stands, a telegraph office, two bookstores, two newsstands, a bank, four travel insurance facilities, two currency exchanges, two cookie and candy shops, a cash and traveler’s check machine, an India store, and a boutique-sized Bloomingdale’s. Similar establishments lined the lobbies and corridors of both the Central Terminal Building at La Guardia and the North Terminal Building at Newark.

Although these areas are open to the public, virtually everyone who enters the terminal does so for a purpose related to air travel. These include travelers, persons meeting or seeing off passengers, members of flight crews, and employees of the terminal, an airline or a business in the terminal.

The Port Authority has promulgated a regulation forbidding both the solicitation of money and the repetitive distribution of literature within such areas. That regulation, which effectively prohibits ISKCON from performing sankirtan,² states in pertinent part:

1. The following conduct is prohibited within the interior areas of buildings or structures at an air terminal if conducted by a person to or with passers-by in a continuous or repetitive manner:

(a) The sale or distribution of any merchandise, including but not limited to, jewelry, food stuffs, candles, flowers, badges and clothing.

(b) The sale or distribution of flyers, brochures, pamphlets, books or any other printed or written material.

(c) The solicitation and receipt of funds.

ISKCON moved for summary judgment on the ground that the airport terminals are traditional public fora for expressive activity and that the Port Authority’s regulation thus violates the First Amendment. The district court granted ISKCON’s motion, whereupon the Port Authority, in Mr. Lee’s name, appealed.

DISCUSSION

The Port Authority does not dispute that ISKCON’S in-person solicitation of contributions and distribution of religious literature are protected speech within the meaning of the First Amendment. See Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 647, 101 S.Ct. 2559, 2563, 69 L.Ed.2d 298 (1981). The issue here is whether the terminals at Kennedy, La Guardia and Newark are traditional fora for ISKCON’s concededly protected activities. Because the terminals are open to the public, heavily traveled and contain a wide array of commercial establishments, the district court concluded that they are akin to public sidewalks and, based on that conclusion and our decision in Wolin v. Port of New York Authority, 392 F.2d 83 (2d Cir.), cert. denied, 393 U.S. 940, 89 S.Ct. 290, 21 L.Ed.2d 275 (1968),³ struck down the Port Authority’s regulation.

Public forum analysis is derived from the axiom that “[e]ven protected speech is not equally permissible in all places and at all times.” Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 799, 105 S.Ct. 3439, 3447, 87 L.Ed.2d 567 (1985). In determining whether a particular restriction on protected speech is permissible, the Supreme Court has “often focused on the ‘place’ of that speech, considering the nature of the forum the speaker seeks to employ.” Frisby v. Schultz, 487 U.S. 474, 479, 108 S.Ct. 2495, 2499, 101 L.Ed.2d 420 (1988). Restrictions on identical kinds of speech may be struck down or upheld “depending on the character of the property at issue.” Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 44, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983).

In recent years, the Supreme Court has classified government-owned property into three categories — “the traditional public forum, the public forum created by government designation, and the nonpublic forum.” Cornelius, 473 U.S. at 802, 105 S.Ct. at 3449. Traditional public fora are places that “have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939). Public streets, sidewalks and public parks are paradigmatic examples of such fora, although streets through military bases, see Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976), are a noteworthy exception.

Designated public fora are areas not traditionally open to assembly and debate that the pertinent governmental authorities have intentionally opened for public discourse. See Cornelius, 473 U.S. at 802, 105 S.Ct. at 3449. Nonpublic fora lack the characteristics of traditional public fora and have not been acknowledged by the pertinent governmental authority as consistent with expressive activity. Speakers may be excluded from traditional or designated public fora “only when the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest.” Id. at 800, 105 S.Ct. at 3448. In traditional and designated public fora, therefore, the government may impose only reasonable time, place and manner restrictions unless there is a compelling state interest. By contrast, restrictions on speech are permissible in nonpublic fora so long as they are reasonable and viewpoint-neutral. See Perry Education Ass’n, 460 U.S. at 49 & n. 9, 103 S.Ct. at 957 & n. 9. The Court’s three-tiered framework, with its focus on the purposes and attributes of the forum rather than the speaker’s desired audience, see supra note 3, has become the governing paradigm where, as here, a court must ascertain whether to apply strict scrutiny or some less demanding standard.

ISKCON does not argue that the Port Authority has designated its airport terminals as public fora for expressive activity. This case thus differs from Jamison v. City of St. Louis, 828 F.2d 1280, 1283 (8th Cir.1987), cert. denied, 485 U.S. 987, 108 S.Ct. 1289, 99 L.Ed.2d 499 (1988), in which the Eighth Circuit held that the City’s terminals were traditional public fora but also emphasized that “[t]he City’s regulations ... implicitly acknowledged that the first amendment activities that take place in more traditional public forums are not incompatible with the purposes of an airport’s public concourses.” In the instant matter, the Port Authority has not conceded, by regulation or otherwise, that expressive activities are consistent with its operation of Kennedy, La Guardia and Newark. The sole issue on appeal, therefore, is whether the terminal areas are traditional public fora for protected speech.

Neither the Supreme Court nor this circuit has ever addressed the issue of where airline terminals fit in public forum analysis. The “well-established” authority in other circuits, see Fernandes v. Limmer, 663 F.2d 619, 626 (5th Cir. Unit A Dec.1981), is that airport terminals are traditional public fora for speech activities. See, e.g., Jamison, supra; Jews for Jesus, Inc. v. Board of Airport Commissioners, 785 F.2d 791, 793-95 (9th Cir.1986), aff'd on other grounds, 482 U.S. 569, 107 S.Ct. 2568, 96 L.Ed.2d 500 (1987). Prior to the decision in Kokinda, this panel was prepared to follow the authority established in other circuits. To hold otherwise would have created a conflict among the circuits over an issue that the Supreme Court has declined to address despite numerous opportunities. Where there is the considerable weight of unanimous authority, we believe that creation of such a circuit conflict must be baned on an abiding conviction that the view of several other courts is unreasonable, lest the Supreme Court’s ability to resolve conflicts among the circuits be impaired by the sheer number of such conflicts. We believe, however, that Kokinda has altered public forum analysis and that we would not be faithful to Supreme Court precedent if we were to follow the other circuits.

Until Kokinda, and with the exception of Greer, the Court’s decisions treated streets and sidewalks as traditional public fora without engaging in any detailed analysis of their particular purposes. In Frisby v. Schultz, supra, for example, the Court held that a public street does not lose its status as a traditional public forum simply because it runs through a residential neighborhood. The Frisby Court explained that “[n]o particularized inquiry into the precise nature of a specific street is necessary” because “all public streets are held in the public trust and are properly considered traditional public fora.” 487 U.S. at 481, 108 S.Ct. at 2500 (emphasis added). Given this approach, the district court’s reliance on the visual and other similarities between the terminals’ passageways and a “bustling metropolitan boulevard” was understandable.

Kokinda involved a free-standing post office with its own sidewalk and parking lot. The sidewalk was neither connected to any pedestrian thoroughfare nor used for any purpose other than negotiating the space between the post office and parking lot. 110 S.Ct. at 3118. At issue was a Postal Service regulation prohibiting the in-person solicitation of money on postal premises. Id. Four members of the Court concluded that the sidewalk was a nonpublic forum and thus applied the reasonableness test of Cornelius. Writing for the four, Justice O’Connor stated that the sidewalk was not a public passageway designed “to facilitate the daily commerce and life of the neighborhood or city” but was intended “solely to assist postal patrons” to get access to postal services. Id. 110 S.Ct. at 3120. She further agreed with the Postal Service that the in-person solicitation of funds is “inherently disruptive of the postal service’s business” and “impedes the normal flow of traffic.” Id. at 3123. In particular, she noted that such solicitation “requires action by those who would respond” and is to be distinguished from the distribution of literature that may be taken without pause to be read later. Id.

Justice Kennedy, who wrote separately, did not reach the question of whether the sidewalk was a traditional public or nonpublic forum. However, he voted to uphold the regulation as an appropriate time, place and manner restriction on the ground that the government has “a significant interest in protecting the integrity of the purposes to which it has dedicated the property, that is, facilitating its customers’ postal transactions.” 110 S.Ct. at 3126. His agreement with the plurality was thus limited to the view that the in-person solicitation of funds is disruptive of postal transactions. He noted, however, his belief that other, less disruptive forms of expressive activity, such as leafletting, should be permitted on the sidewalk. Id.

Notwithstanding the different rationales employed by the plurality and Justice Kennedy, Kokinda dictates reversal of the judgment in the instant action insofar as it invalidates the Port Authority’s regulation prohibiting in-person solicitation of funds in the terminals of the three airports. A majority held in Kokinda that in-person solicitation of money on the post office sidewalk could be prohibited without violating the First Amendment. Like the sidewalk in Kokinda, the Port Authority’s terminals are remote from pedestrian thoroughfares and are intended solely to facilitate a particular type of transaction — air travel — unrelated to protected expression. Persons using the passageways in terminals are not there primarily to meet a friend for lunch, windowshop, take the air, or engage in any of the multitude of other purposes for which typical downtown streets are used. They are there solely as air travelers, persons connected with air travelers, or employees of businesses serving air travelers.

The Port Authority’s anti-solicitation restriction serves precisely the same purpose as did the restriction upheld in Kokinda. Kennedy, La Guardia and Newark are funded by user fees and operated so as to make a regulated profit. Just as the Postal Service in Kokinda had a significant interest in protecting users of the branch office from the in-person solicitation of funds, the Port Authority has an interest in protecting its airport patrons from the identical disruption of in-person solicitation. It is true that the various commercial establishments and art exhibits at the three airports create an appearance similar to a busy downtown street. It is also true, however, that the facilities in question exist solely to accommodate the needs of air travelers, just as the post office and sidewalk in Kokinda existed solely to facilitate the use of postal services.

Given the possibility of further review, we take care to detail our understanding of Kokinda. We read the plurality opinion of Justice O’Connor to distinguish between passageways or other facilities that exist solely to facilitate the public's carrying on of a particular endeavor — subway or air travel for example — and passageways or facilities that enable the public to carry out the multitude of purposes persons pursue in their daily life — the typical Main Street. The former are non-public fora, and government may prohibit the in-person solicitation of funds at least where those using the passageway or facility might be disrupted by such solicitation. Passageways or facilities used solely for a particular purpose are of course among society’s choke-points and thus particularly useful to those seeking to solicit funds. However, where the particular purpose is such that the public uses them as a matter of necessity, or at least great convenience, we read the plurality opinion to allow the prohibition of in-person solicitation of funds to prevent disruption of that public. Justice Kennedy reaches the same result because he believes that a prohibition on the in-person solicitation of funds is a legitimate time, place and manner restriction.

The Port Authority’s concern over disruption of the air-traveling public is justified on the present record. That record establishes that pedestrian congestion is one of the greatest problems facing the three terminals. Much of the facilities in question was built before wide-body aircraft, and a pressing need for expansion exists. Air travelers, who are often weighted down by cumbersome baggage and may be hurrying to catch a plane or to arrange ground transportation, will find in-person solicitation even more disruptive than did the postal patrons in Kokinda. We are thus unable to distinguish that case.

With regard to the Port Authority’s ban on the distribution of literature, we read Kokinda as looking in a different direction. The four dissenting justices believed the sidewalk to be a public forum and additionally indicated that they perceived no relevant distinction between the in-person solicitation of funds and the distribution of leaflets. See 110 S.Ct. at 3126-39. They would therefore allow the latter in the air terminals in question. So too, we believe, would Justice Kennedy, whose concurring opinion stressed the need “to protect public places where traditional modes of speech and forms of expression can take place.” 110 S.Ct. at 3125. Justice Kennedy relied entirely upon the distinction between the disruptive effect of the in-person solicitation of funds and the lesser inconvenience of the distribution of literature in upholding the Postal Service regulation and did not reach the public/nonpublic forum issue. We thus count him as having adopted a view that would permit the distribution of literature in the instant matter. We also note that the four justices who considered the post office sidewalk to be a nonpublic forum also relied in part on the distinction between in-person solicitation and leafletting in upholding the regulation. See 110 S.Ct. at 3123-24. There was thus at least a majority, and perhaps more, that would allow the latter. We therefore hold that the Port Authority must provide reasonable access to the terminals for the distribution of literature.

Affirmed in part, reversed in part.

1 . The district court dismissed the Port Authority as a defendant in 1977 pursuant to Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), and City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973).

2 . While the Port Authority concedes that sankir-tan may be performed on the sidewalks outside its airports, ISKCON does not seek access to those areas. The district court thus concluded that the relevant forum for purposes of determining ISKCON’s rights is the place to which ISKCON seeks access — namely, the interior portions of the airport terminals. See Cornelius v. NAACP Legal Defense and Educational Fund, 473 U.S. 788, 801, 105 S.Ct. 3439, 3448, 87 L.Ed.2d 567 (1985).

3 . Wolin held that the Port Authority’s bus terminal in New York City was an appropriate place for distributing leaflets, carrying placards and conducting antiwar discussions with passing pedestrians. We noted that the bus terminal was a place "where the relevant audience [for an antiwar protest] may be found.” Id. at 90. Because Wolin’s antiwar protest was aimed at both “the general public and ... a special audience— servicemen traveling to and from their bases, particularly buses arriving from Fort Dix” — we struck down the Port Authority’s “plenary prohibition of speech” as violative of the First Amendment.

Id. at 90-91.

The theory of Wolin would appear to protect the in-person solicitation of funds inside the bus terminal. Whether that result is still good law need not be decided. Wolin's rationale regarding the right to reach particular audiences seems undermined by the Supreme Court’s analysis concerning traditional public fora, designated fora and nonpublic fora described two paragraphs infra in the text of this opinion and by, for reasons stated later in the text, Kokinda. However, the Port Authority bus terminal, or portions thereof, contains various commercial establishments that serve non-traveling pedestrians off adjoining streets, id. at 85, and is arguably like a public street. In contrast, commercial establishments in the air terminals at issue in the instant matter are not realistically used by persons not connected with air travel.