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
673
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.
674
Barry A. Fisher argued the cause for petitioners. With him on
the briefs were David Grosz, Robert C. Moest, David M. Liberman,
Jay Alan Sekulow, and Jeremiah S. Gutman.
Arthur P. Berg argued the cause for respondent. With him on the
brief were Philip Maurer, Arnold D. Kolikoff, and Milton H.
Pachter.
*
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
In this case we consider whether an airport terminal operated by
a public authority is a public forum and whether a regulation
prohibiting solicitation in the interior of an airport terminal
violates the First Amendment.
The relevant facts in this case are not in dispute. Petitioner
International Society for Krishna Consciousness, Inc. (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
*Briefs of amici curiae were filed for the Airports Association
Council International-North America by Michael M. Conway; for the
American Civil Liberties Union et al. by Steven R. Shapiro, John A.
Powell, and Arthur N. Eisenberg; for the American Federation of
Labor and Congress of Industrial Organizations by Marsha S. Berzon,
Walter Kamiat, and Laurence Gold; for the American Jewish Congress
et al. by Bradley P. Jacob and Edward McGlynn Gaffney, Jr.; for the
American Newspaper Publishers Association et al. by Robert C.
Bernius, Alice Neff Lucan, Rene P. Milam, Richard A. Bernstein,
Barbara Wartelle Wall, John C. Fontaine, Cristina L. Mendoza,
George Freeman, and Carol D. Melamed; for the American Tract
Society et al. by James Matthew Henderson, Sr., Mark N. Troobnick,
Thomas Patrick Monaghan, and Charles E. Rice; for the Criminal
Justice Legal Foundation by Kent S. Scheidegger and Charles L.
Hobson; for the Free Congress Foundation by Wendell R. Bird and
David
J. Myers; for Multimedia Newspaper Co. et al. by Carl
F. Muller and Wallace K. Lightsey; for Project Vote et al. by
Robert Plotkin and Elliot M. Mincberg; and for the National
Institute of Municipal Law Officers by Benjamin L. Brown, Analeslie
Muncy, Robert
J. Alfton, Frank B. Gummey III, Frederick S.
Dean, Neal M. Janey, Victor
J. Kaleta, Robert
J.
Mangler, Neal E. McNeill, Robert
J. Watson, and Iris
J. Jones.
675
literature and soliciting funds to support the religion.'"
925 F.2d
576, 577 (CA2 1991). The primary purpose of this ritual is
raising funds for the movement.
Ibid.
Respondent Walter Lee, now deceased, was the police
superintendent of the Port Authority of New York and New Jersey and
was charged with enforcing the regulation at issue. The Port
Authority owns and operates three major airports in the greater New
York City area: John F. Kennedy International Airport (Kennedy), La
Guardia Airport (La Guardia), and Newark International Airport
(Newark). The three airports collectively form one of the world's
busiest metropolitan airport complexes. They serve approximately 8%
of this country's domestic airline market and more than 50% of the
trans-Atlantic market. By decade's end they are expected to serve
at least 110 million passengers annually.
Id., at 578.
The airports are funded by user fees and operated to make a
regulated profit.
Id., at 581. Most space at the three
airports is leased to commercial airlines, which bear primary
responsibility for the leasehold. The Port Authority retains
control over unleased portions, including La Guardia's Central
Terminal Building, portions of Kennedy's International Arrivals
Building, and Newark's North Terminal Building (we refer to these
areas collectively as the "terminals"). The terminals are generally
accessible to the general public and contain various commercial
establishments such as restaurants, snack stands, bars, newsstands,
and stores of various types.
Id., at 578. Virtually all who
visit the terminals do so for purposes related to air travel. These
visitors principally include passengers, those meeting or seeing
off passengers, flight crews, and terminal employees.
Ibid.
The Port Authority has adopted a regulation forbidding within
the terminals the repetitive solicitation of money or distribution
of literature. The regulation states:
"1. The following conduct is prohibited within the interior
areas of buildings or structures at an air terminal
676
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."
Id., at 578-579.
The regulation governs only the terminals; the Port Authority
permits solicitation and distribution on the sidewalks outside the
terminal buildings. The regulation effectively prohibits ISKCON
from performing
sankirtan in the terminals. As a result,
ISKCON brought suit seeking declaratory and injunctive relief under
42 U. S. C. § 1983, alleging that the regulation worked to deprive
its members of rights guaranteed under the First Amendment.1 The
District Court analyzed the claim under the "traditional public
forum" doctrine. It concluded that the terminals were akin to
public streets, 721 F. Supp. 572, 577 (SDNY 1989), the
quintessential traditional public fora. This conclusion in turn
meant that the Port Authority's terminal regulation could be
sustained only if it was narrowly tailored to support a compelling
state interest.
Id., at 579. In the absence of any argument
that the blanket prohibition constituted such
1 The suit was filed in 1975. ISKCON originally sought access to
both the airline controlled areas and to the terminals and as a
result sued both respondent and various private airlines. The suit
worked a meandering course, see 721 F. Supp. 572, 573-574 (SDNY
1989), with the private airlines eventually being dismissed and
leaving, as the sole remaining issue, ISKCON's claim against
respondent seeking a declaration and injunction against the
regulation. The regulation at issue was not formally promulgated
until 1988 although it represents a codification of pre suit
policy. App. to Pet. for Cert. 52. As noted in the text,
supra this page, respondent concedes that
sankirtan
may be performed on the sidewalks outside the terminals.
677
narrow tailoring, the District Court granted ISKCON summary
judgment.
Ibid.
The Court of Appeals affirmed in part and reversed in part.
925 F.2d
576 (1991). Relying on our recent decision in
United
States v.
Kokinda, 497 U. S. 720 (1990), a
divided panel concluded that the terminals are not public fora. As
a result, the restrictions were required only to satisfy a standard
of reasonableness. The Court of Appeals then concluded that,
presented with the issue, this Court would find that the ban on
solicitation was reasonable, but the ban on distribution was not.
ISKCON and one of its members, also a petitioner here, sought
certiorari respecting the Court of Appeals' decision that the
terminals are not public fora and upholding the solicitation ban.
Respondent cross-petitioned respecting the court's holding striking
down the distribution ban. We granted both petitions, 502 U. S.
1022 (1992), to resolve whether airport terminals are public fora,
a question on which the Circuits have split2 and on which we once
before granted certiorari but ultimately failed to reach.
Board
of Airport Comm'rs of Los Angeles v.
Jews for Jesus,
Inc., 482 U. S.
569 (1987).3
It is uncontested that the solicitation at issue in this case is
a form of speech protected under the First Amendment.
Heffron v.
International Soc. for Krishna Consciousness,
Inc., 452 U. S.
640 (1981);
Kokinda, supra, at 725 (citing
2 Compare decision below with
Jamison v.
St.
Louis, 828 F.2d
1280 (CA8 1987), cert. denied, 485 U. S. 987 (1988);
Chicago Area Military Project v.
Chicago, 508 F.2d
921 (CA7), cert. denied, 421 U. S. 992 (1975);
Fernandes v.
Limmer, 663 F.2d
619 (CA5 1981), cert. dism'd, 458 U. S. 1124 (1982);
u. S.
Southwest Africa/Namibia Trade &
Cultural Council v.
United States, 228 U. S. App. D.
C. 191,
708 F.2d
760 (1983);
Jews for Jesus, Inc. v.
Board of Airport
Comm'rs of Los Angeles, 785 F.2d
791 (CA9 1986), aff'd on other grounds,
482 U. S. 569 (1987).
3We deal here only with petitioners' claim regarding the
permissibility of solicitation. Respondent's cross-petition
concerning the leafletting ban is disposed of in the companion
case,
Lee v.
International Soc. for Krishna
Consciousness, Inc., post, p. 830.
678
Schaumburg v.
Citizens for a Better Environment,
444 U. S. 620,
629 (1980));
Riley v.
National Federation of Blind of
N. c.,
Inc., 487 U. S. 781, 788-789
(1988). But it is also well settled that the government need not
permit all forms of speech on property that it owns and controls.
Postal Service v.
Council of Greenburgh Civic Assns.,
453 U. S. 114,
129
(1981); Greer v.
Spock, 424 U. S. 828 (1976).
Where the government is acting as a proprietor, managing its
internal operations, rather than acting as lawmaker with the power
to regulate or license, its action will not be subjected to the
heightened review to which its actions as a lawmaker may be
subject.
Kokinda, supra, at 725 (plurality opinion) (citing
Cafeteria &
Restaurant Workers v.
McElroy,
367 U. S. 886,
896 (1961)). Thus, we have upheld a ban on political advertisements
in city-operated transit vehicles,
Lehman v.
Shaker
Heights, 418 U.
S. 298 (1974), even though the city permitted other types of
advertising on those vehicles. Similarly, we have permitted a
school district to limit access to an internal mail system used to
communicate with teachers employed by the district.
Perry Ed.
Assn. v.
Perry Local Educators' Assn., 460 U. S. 37 (1983).
These cases reflect, either implicitly or explicitly, a "forum
based" approach for assessing restrictions that the government
seeks to place on the use of its property.
Cornelius v.
NAACP Legal Defense &
Ed. Fund, Inc., 473 U. S. 788,800 (1985).
Under this approach, regulation of speech on government property
that has traditionally been available for public expression is
subject to the highest scrutiny. Such regulations survive only if
they are narrowly drawn to achieve a compelling state interest.
Perry, 460 U. S., at 45. The second category of public
property is the designated public forum, whether of a limited or
unlimited characterproperty that the State has opened for
expressive activity by part or all of the public.
Ibid.
Regulation of such property is subject to the same limitations as
that governing a traditional public forum.
Id., at 46.
Finally, there is all re-
679
maining public property. Limitations on expressive activity
conducted on this last category of property must survive only a
much more limited review. The challenged regulation need only be
reasonable, as long as the regulation is not an effort to suppress
the speaker's activity due to disagreement with the speaker's view.
Ibid.
The parties do not disagree that this is the proper framework.
Rather, they disagree whether the airport terminals are public fora
or nonpublic fora. They also disagree whether the regulation
survives the "reasonableness" review governing nonpublic fora,
should that prove the appropriate category.4 Like the Court of
Appeals, we conclude that the terminals are nonpublic fora and that
the regulation reasonably limits solicitation.
The suggestion that the government has a high burden in
justifying speech restrictions relating to traditional public fora
made its first appearance in
Hague v.
Committee for
Industrial Organization, 307 U. S. 496, 515, 516
(1939). Justice Roberts, concluding that individuals have a right
to use "streets and parks for communication of views," reasoned
that such a right flowed from the fact that "streets and parks ...
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." We confirmed this observation in
Frisby v.
Schultz, 487
U. S. 474, 481 (1988), where we held that a residential street
was a public forum.
Our recent cases provide additional guidance on the
characteristics of a public forum. In
Cornelius we noted
that a traditional public forum is property that has as "a
principal purpose ... the free exchange of ideas." 473 U. S., at
800. Moreover, consistent with the notion that the governmentlike
other property owners-"has power to preserve the
4 Respondent also argues that the regulations survive under the
strict scrutiny applicable to public fora. We find it unnecessary
to reach that question.
680
property under its control for the use to which it is lawfully
dedicated,"
Greer, 424 U. S., at 836, the government does
not create a public forum by inaction. Nor is a public forum
created "whenever members of the public are permitted freely to
visit a place owned or operated by the Government."
Ibid.
The decision to create a public forum must instead be made "by
intentionally opening a nontraditional forum for public discourse."
Cornelius, supra, at 802. Finally, we have recognized that
the location of property also has bearing because separation from
acknowledged public areas may serve to indicate that the separated
property is a special enclave, subject to greater restriction.
United States v.
Grace, 461 U. S. 171, 179-180
(1983).
These precedents foreclose the conclusion that airport terminals
are public fora. Reflecting the general growth of the air travel
industry, airport terminals have only recently achieved their
contemporary size and character. See H. Hubbard, M. McClintock,
& F. Williams, Airports: Their Location, Administration and
Legal Basis 8 (1930) (noting that the United States had only 807
airports in 1930). But given the lateness with which the modern air
terminal has made its appearance, it hardly qualifies for the
description of having "immemorially ... time out of mind" been held
in the public trust and used for purposes of expressive activity.
Hague, supra, at 515. Moreover, even within the rather short
history of air transport, it is only "[i]n recent years [that] it
has become a common practice for various religious and nonprofit
organizations to use commercial airports as a forum for the
distribution of literature, the solicitation of funds, the
proselytizing of new members, and other similar activities." 45
Fed. Reg. 35314 (1980). Thus, the tradition of airport activity
does not demonstrate that airports have historically been made
available for speech activity. Nor can we say that these particular
terminals, or airport terminals generally, have been intentionally
opened by their operators to such activity; the frequent and
continuing litigation evidenc-
681
ing the operators' objections belies any such claim. See n. 2,
supra. In short, there can be no argument that society's
time-tested judgment, expressed through acquiescence in a
continuing practice, has resolved the issue in petitioners'
favor.
Petitioners attempt to circumvent the history and practice
governing airport activity by pointing our attention to the variety
of speech activity that they claim historically occurred at various
"transportation nodes" such as rail stations, bus stations,
wharves, and Ellis Island. Even if we were inclined to accept
petitioners' historical account describing speech activity at these
locations, an account respondent contests, we think that such
evidence is of little import for two reasons. First, much of the
evidence is irrelevant to
public fora analysis, because
sites such as bus and rail terminals traditionally have had
private ownership. See
United Transportation Union v.
Long Island R. Co., 455 U. S. 678, 687
(1982); H. Grant & C. Bohi, The Country Railroad Station in
America 11-15 (1978); U. S. Dept. of Transportation, The Intercity
Bus Terminal Study 31 (Dec. 1984). The development of privately
owned parks that ban speech activity would not change the public
fora status of publicly held parks. But the reverse is also true.
The practices of privately held transportation centers do not bear
on the government's regulatory authority over a publicly owned
airport.
Second, the relevant unit for our inquiry is an airport, not
"transportation nodes" generally. When new methods of
transportation develop, new methods for accommodating that
transportation are also likely to be needed. And with each new
step, it therefore will be a new inquiry whether the transportation
necessities are compatible with various kinds of expressive
activity. To make a category of "transportation nodes," therefore,
would unjustifiably elide what may prove to be critical differences
of which we should rightfully take account. The "security magnet,"
for example, is
682
an airport commonplace that lacks a counterpart in bus terminals
and train stations. And public access to air terminals is also not
infrequently restricted-just last year the Federal Aviation
Administration required airports for a 4-month period to limit
access to areas normally publicly accessible. See 14 CFR 107.11(f)
(1991) and U. S. Dept. of Transportation News Release, Office of
Assistant Secretary for Public Affairs, Jan. 18, 1991. To blithely
equate airports with other transportation centers, therefore, would
be a mistake.
The differences among such facilities are unsurprising since, as
the Court of Appeals noted, airports are commercial establishments
funded by users fees and designed to make a regulated profit, 925
F. 2d, at 581, and where nearly all who visit do so for some travel
related purpose,
id., at 578. As commercial enterprises,
airports must provide services attractive to the marketplace. In
light of this, it cannot fairly be said that an airport terminal
has as a principal purpose promoting "the free exchange of ideas."
Cornelius v.
NAACP Legal Defense &
Ed. Fund,
Inc., 473 U. S.
788,800 (1985). To the contrary, the record demonstrates that
Port Authority management considers the purpose of the terminals to
be the facilitation of passenger air travel, not the promotion of
expression. Sloane Affidavit, , 11, App. 464; Defendant's Civil
Rule 3(g) Statement, , 39, App. 453. Even if we look beyond the
intent of the Port Authority to the manner in which the terminals
have been operated, the terminals have never been dedicated (except
under the threat of court order) to expression in the form sought
to be exercised here: i.
e., the solicitation of
contributions and the distribution of literature.
The terminals here are far from atypical. Airport builders and
managers focus their efforts on providing terminals that will
contribute to efficient air travel. See,
e. g., R.
Horonjeff & F. McKelvey, Planning and Design of Airports 326
(3d ed. 1983) ("The terminal is used to process passengers
683
and baggage for the interface with aircraft and the ground
transportation modes"). The Federal Government is in accord; the
Secretary of Transportation has been directed to publish a plan for
airport development necessary "to anticipate and meet the needs
of civil aeronautics, to meet requirements in support of the
national defense ... and to meet identified needs of the Postal
Service." 49 U. S. C. App. § 2203(a)(1) (emphasis added); see also
45 Fed. Reg. 35317 (1980) ("The purpose for which the [Dulles and
National airport] terminal[s] [were] built and maintained is to
process and serve air travelers efficiently"). Although many
airports have expanded their function beyond merely contributing to
efficient air travel, few have included among their purposes the
designation of a forum for solicitation and distribution
activities. See
supra, at 680-681. Thus, we think that
neither by tradition nor purpose can the terminals be described as
satisfying the standards we have previously set out for identifying
a public forum.
The restrictions here challenged, therefore, need only satisfy a
requirement of reasonableness. We reiterate what we stated in
Kokinda: The restriction "'need only be
reasonable;
it need not be the most reasonable or the only reasonable
limitation.''' 497 U. S., at 730 (plurality opinion) (quoting
Cornelius, supra, at 808). We have no doubt that under this
standard the prohibition on solicitation passes muster.
We have on many prior occasions noted the disruptive effect that
solicitation may have on business. "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."
Kokinda, supra, at 734;
see
Heffron, 452 U. S., at 663 (BLACKMUN, J., concurring in
part and dissenting in part). Passengers who wish to avoid the
solicitor may have to alter their paths, slowing both themselves
and those around them.
684
The result is that the normal flow of traffic is impeded.
Id., at 653. This is especially so in an airport, where
"[a]ir travelers, who are often weighted down by cumbersome baggage
... may be hurrying to catch a plane or to arrange ground
transportation." 925 F. 2d, at 582. Delays may be particularly
costly in this setting, as a flight missed by only a few minutes
can result in hours worth of subsequent inconvenience.
In addition, face-to-face solicitation presents risks of duress
that are an appropriate target of regulation. 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. See,
e.
g., International Soc. for Krishna Consciousness,
Inc. v.
Barber, 506 F. Supp. 147, 159-163 (NDNY 1980),
rev'd on other grounds,
650 F.2d
430 (CA2 1981). The unsavory solicitor can also commit fraud
through concealment of his affiliation or through deliberate
efforts to shortchange those who agree to purchase. 506 F. Supp.,
159-163. See 45 Fed. Reg. 35314-35315 (1980). Compounding this
problem is the fact that, in 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.
The Port Authority has concluded that its interest in monitoring
the activities can best be accomplished by limiting solicitation
and distribution to the sidewalk areas outside the terminals.
Sloane Supp. Affidavit, , 11, App. 514. This sidewalk area is
frequented by an overwhelming percentage of airport users, see
id., at , 14, App. 515-516 (noting that no more than 3% of
air travelers passing through the terminals are doing so on
intraterminal flights, i.
e., transferring planes). Thus the
resulting access of those who would so-
685
licit the general public is quite complete. In turn we think it
would be odd to conclude that the Port Authority's terminal
regulation is unreasonable despite the Port Authority having
otherwise assured access to an area universally traveled.
The inconveniences to passengers and the burdens on Port
Authority officials flowing from solicitation activity may seem
small, but viewed against the fact that "pedestrian congestion is
one of the greatest problems facing the three terminals," 925 F.
2d, at 582, the Port Authority could reasonably worry that even
such incremental effects would prove quite disruptive.5 Moreover,
"[t]he justification for the Rule should not be measured by the
disorder that would result from granting an exemption solely to
ISKCON."
Heffron, supra, at 652. For if ISKCON is given
access, so too must other groups. "Obviously, there would be a much
larger threat to the State's interest in crowd control if all other
religious, nonreligious, and noncommercial organizations could
likewise move freely." 452 U. S., at 653. As a result, we conclude
that the solicitation ban is reasonable.
For the foregoing reasons, the judgment of the Court of Appeals
sustaining the ban on solicitation in Port Authority terminals
is
Affirmed.
JUSTICE O'CONNOR, concurring in No. 91-155 and concurring in the
judgment in No. 91-339,
post, p. 830.
In the decision below, the Court of Appeals upheld a ban on
solicitation of funds within the airport terminals operated by the
Port Authority of New York and New Jersey, but struck down a ban on
the repetitive distribution of printed
5 The congestion problem is not unique to these airports. See 45
Fed.
Reg. 35314-35315 (1980) (describing congestion at Washington's
Dulles and National Airports) and 49 U. S. C. App. §2201(a)(1l)
(congressional declaration that as part of the national airport
system plan airport projects designed to increase passenger
capacity "should be undertaken to the maximum feasible
extent").
686
Opinion of O'CONNOR, J.
or written material within the terminals.
925
F.2d 576 (CA2 1991). I would affirm both parts of that
judgment.
I concur in the Court's opinion in No. 91-155 and agree that
publicly owned airports are not public fora. Unlike public streets
and parks, both of which our First Amendment jurisprudence has
identified as "traditional public fora," airports do not count
among their purposes the "free exchange of ideas,"
Cornelius
v.
NAACP Legal Defense &
Ed. Fund, Inc., 473 U. S. 788, 800
(1985); they have not "by long tradition or by government fiat ...
been devoted to assembly and debate,"
Perry Ed. Assn. v.
Perry Local Educators' Assn., 460 U. S. 37, 45 (1983);
nor have they "time out of mind, ... been used for purposes of ...
communicating thoughts between citizens, and discussing public
questions,"
Hague v.
Committee for Industrial
Organization, 307
U. S. 496, 515 (1939). Although most airports do not ordinarily
restrict public access, "[p]ublicly owned or operated property does
not become a 'public forum' simply because members of the public
are permitted to come and go at will."
United States v.
Grace, 461 U.
S. 171, 177 (1983); see also
Greer v.
Spock,
424 U. S. 828,
836 (1976). "[W]hen government property is not dedicated to open
communication the government maywithout further
justification-restrict use to those who participate in the forum's
official business."
Perry, supra, at 53. There is little
doubt that airports are among those publicly owned facilities that
could be closed to all except those who have legitimate business
there. See
Grace, supra, at 178. Public access to airports
is thus not "inherent in the open nature of the locations," as it
is for most streets and parks, but is rather a "matter of grace by
government officials."
United States v.
Kokinda,
497 U. S. 720,
743 (1990) (Brennan, J., dissenting). I also agree with the Court
that the Port Authority has not expressly opened its airports to
the types of expression at issue here, see
ante, at 680-681,
and therefore has not created a "limited" or "designated" public
forum relevant to this case.
687
For these reasons, the Port Authority's restrictions on
solicitation and leafletting within the airport terminals do not
qualify for the strict scrutiny that applies to restriction of
speech in public fora. That airports are not public fora, however,
does not mean that the government can restrict speech in whatever
way it likes. "The Government, even when acting in its proprietary
capacity, does not enjoy absolute freedom from First Amendment
constraints."
Kokinda, supra, at 725 (plurality opinion).
For example, in
Board of Airport Comm'rs of Los Angeles v.
Jews for Jesus, Inc., 482 U. S. 569 (1987), we
unanimously struck down a regulation that prohibited "all First
Amendment activities" in the Los Angeles International Airport
(LAX) without even reaching the question whether airports were
public fora.
Id., at 574-575. We found it "obvious that such
a ban cannot be justified even if LAX were a nonpublic forum
because no conceivable governmental interest would justify such an
absolute prohibition of speech."
Id., at 575. Moreover, we
have consistently stated that restrictions on speech in nonpublic
fora are valid only if they are "reasonable" and "not an effort to
suppress expression merely because public officials oppose the
speaker's view."
Perry, supra, at 46; see also
Kokinda,
supra, at 731;
Cornelius, supra, at 800;
Lehman
v.
Shaker Heights, 418 U. S. 298, 303
(1974). The determination that airports are not public fora thus
only begins our inquiry.
"The reasonableness of the Government's restriction [on speech
in a nonpublic forum] must be assessed in light of the purpose of
the forum and all the surrounding circumstances."
Cornelius,
supra, at 809. "'[C]onsideration of a forum's special
attributes is relevant to the constitutionality of a regulation
since the significance of the governmental interest must be
assessed in light of the characteristic nature and function of the
particular forum involved.'"
Kokinda, supra, at 732, quoting
Heffron v.
International Soc. for Krishna Consciousness,
Inc., 452 U. S.
640, 650-651 (1981).
688
Opinion of O'CONNOR, J.
In this case, the "special attributes" and "surrounding
circumstances" of the airports operated by the Port Authority are
determinative. Not only has the Port Authority chosen
not to
limit access to the airports under its control, it has created a
huge complex open to travelers and nontravelers alike. The airports
house restaurants, cafeterias, snack bars, coffee shops, cocktail
lounges, post offices, banks, telegraph offices, clothing shops,
drug stores, food stores, nurseries, barber shops, currency
exchanges, art exhibits, commercial advertising displays,
bookstores, newsstands, dental offices, and private clubs. See App.
183-185 (Newark);
id., at 185-186 (JFK);
id., at
190-192 (La Guardia). The International Arrivals Building at JFK
Airport even has two branches of Bloomingdale's.
Id., at
185-186.
We have said that a restriction on speech in a nonpublic forum
is "reasonable" when it is "consistent with the [government's]
legitimate interest in 'preserv[ing] the property ... for the use
to which it is lawfully dedicated.'"
Perry, supra, at 50-51,
quoting
Postal Service v.
Council of Greenburgh Civic
Assns., 453 U. S.
114, 129-130 (1981) (internal quotation marks omitted).
Ordinarily, this inquiry is relatively straightforward, because we
have almost always been confronted with cases where the fora at
issue were discrete, single-purpose facilities. See,
e. g.,
Kokinda, supra (dedicated sidewalk between parking lot and post
office);
Cornelius v.
NAACP Legal Defense &
Ed. Fund, Inc., 473 U. S. 788 (1985)
(literature for charity drive);
City Council of Los Angeles
v.
Taxpayers for Vincent, 466 U. S. 789 (1984)
(utility poles);
Perry, supra (interschool mail system);
Postal Service v.
Council of Greenburgh Civic Assns.,
supra (household mail boxes);
Adderley v.
Florida, 385 U.
S. 39 (1966) (curtilage of jailhouse). The Port Authority urges
that this case is no different and contends that it, too, has
dedicated its airports to a single purpose-facilitating air
travel-and that the speech it seeks to prohibit is not consistent
with that purpose. But the wide range of activities promoted by
the
689
Port Authority is no more directly related to facilitating air
travel than are the types of activities in which the International
Society for Krishna Consciousness, Inc. (ISKCON), wishes to engage.
See
Jews for Jesus, supra, at 576 ("The line between
airport-related speech and nonairport-related speech is, at best,
murky"). In my view, the Port Authority is operating a shopping
mall as well as an airport. The reasonableness inquiry, therefore,
is not whether the restrictions on speech are "consistent with ...
preserving the property" for air travel,
Perry, supra, at
50-51 (internal quotation marks and citation omitted), but whether
they are reasonably related to maintaining the multipurpose
environment that the Port Authority has deliberately created.
Applying that standard, I agree with the Court in No. 91155 that
the ban on solicitation is reasonable. Face-to-face solicitation is
incompatible with the airport's functioning in a way that the
other, permitted activities are not. We have previously observed
that "[s]olicitation impedes the normal flow of traffic [because
it] 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 ....
As residents of metropolitan areas know from daily experience,
confrontation by a person asking for money disrupts passage and is
more intrusive and intimidating than an encounter with a person
giving out information."
Kokinda, 497 U. S., at 733-734
(plurality opinion) (citations omitted);
id., at 739
(KENNEDY, J., concurring in judgment) (accepting Postal Service's
judgment that, given its past experience, "in-person solicitation
deserves different treatment from alternative forms of solicitation
and expression");
Heffron, supra, at 657 (Brennan, J.,
concurring in part and dissenting in part) (upholding partial
restriction on solicitation at fairgrounds because of state
interest "in protecting its fairgoers from fraudulent, deceptive,
and mis-
690
Opinion of O'CONNOR, J.
leading solicitation practices"); 452 U. S., at 665 (BLACKMUN,
J., concurring in part and dissenting in part) (upholding partial
restriction on solicitation because of the "crowd control problems"
it creates). The record in this case confirms that the problems of
congestion and fraud that we have identified with solicitation in
other contexts have also proved true in the airports' experience.
See App. 67-111 (affidavits). 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.
In my view, however, the regulation banning leaflettingor, in
the Port Authority's words, the "continuous or repetitive ...
distribution of ... printed or written material"cannot be upheld as
reasonable on this record. I therefore concur in the judgment in
No. 91-339,
post, p. 830, striking down that prohibition.
While the difficulties posed by solicitation in a nonpublic forum
are sufficiently obvious that its regulation may "rin[g] of
common-sense,"
Kokinda, 497 U. S., at 734 (internal
quotation marks and citation omitted), the same is not necessarily
true of leafletting. To the contrary, we have expressly noted that
leafletting does not entail the same kinds of problems presented by
face-to-face solicitation. Specifically, "[o]ne need not ponder the
contents of a leaflet or pamphlet in order mechanically to take it
out of someone's hand .... 'The distribution of literature does not
require that the recipient stop in order to receive the message the
speaker wishes to convey; instead the recipient is free to read the
message at a later time.' "
Ibid. (plurality opinion),
quoting
Heffron, supra, at 665 (BLACKMUN, J., concurring in
part and dissenting in part). With the possible exception of
avoiding litter, see
Schneider v.
State (Town of
Irvington), 308
U. S. 147, 162 (1939), 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.
691
We have only once before considered restrictions on speech in a
nonpublic forum that sustained the kind of extensive,
nonforum-related activity found in the Port Authority airports, and
I believe that case is instructive. In
Greer v.
Spock, 424 U.
S. 828 (1976), the Court held that even though certain parts of
a military base were open to the public, they still did not
constitute a public forum in light of" 'the historically
unquestioned power of [a] commanding officer summarily to exclude
civilians from the area of his command.'"
Id., at 838,
quoting
Cafeteria &
Restaurant Workers v.
McElroy, 367
U. S. 886, 893 (1961). The Court then proceeded to uphold a
regulation banning the distribution of literature without the prior
approval of the base commander. In so doing, the Court "emphasized"
that the regulation on leafletting did "not authorize the Fort Dix
authorities to prohibit the distribution of conventional political
campaign literature." Rather, the Court explained, "[t]he only
publications that a military commander may disapprove are those
that he finds constitute 'a clear danger to [military] loyalty,
discipline, or morale'" and that "[t]here is nothing in the
Constitution that disables a military commander from acting to
avert what he perceives to be a clear danger to the loyalty,
discipline, or morale of troops on the base under his command." 424
U. S., at 840 (citation omitted). In contrast, the regulation at
issue in this case effects an absolute prohibition and is not
supported by any independent justification outside of the problems
caused by the accompanying solicitation.
Moreover, the Port Authority has not offered any justifications
or record evidence to support its ban on the distribution of
pamphlets alone. Its argument is focused instead on the problems
created when literature is distributed in conjunction with a
solicitation plea. Although we do not "requir[e] that ... proof be
present to justify the denial of access to a nonpublic forum on
grounds that the proposed use may disrupt the property's intended
function,"
Perry, 460 U. S., at 52, n. 12, we have required
some explanation as to why
692
Opinion of O'CONNOR, J.
certain speech is inconsistent with the intended use of the
forum. In
Kokinda, for example, we upheld a regulation
banning solicitation on postal property in part because the Postal
Service's 30-year history of regulation of solicitation in post
offices demonstrated that permitting solicitation interfered with
its postal mission. 497 U. S., at 731-732 (pluralityopinion).
Similarly, in
Cornelius, we held that it was reasonable to
exclude political advocacy groups from a fundraising campaign
targeted at federal employees in part because "the record amply
support[ed] an inference" that the participation of those groups
would have jeopardized the success of the campaign. 473 U. S., at
810. Here, the Port Authority has provided no independent reason
for prohibiting leafletting, and the record contains no information
from which we can draw an inference that would support its ban.
Because I cannot see how peaceful pamphleteering is incompatible
with the multipurpose environment of the Port Authority airports, I
cannot accept that a total ban on that activity is reasonable
without an explanation as to why such a restriction "preserv[es]
the property" for the several uses to which it has been put.
Perry, supra, at 50-51 (internal quotation marks and
citation omitted).
Of course, it is still open for the Port Authority to promulgate
regulations of the time, place, and manner of leafletting which are
"content-neutral, are narrowly tailored to serve a significant
government interest, and leave open ample alternative channels of
communication."
Perry, supra, at 45;
Postal Service,
453 U. S., at 132. For example, during the many years that this
litigation has been in progress, the Port Authority has not banned
sankirtan completely from JFK International Airport, but has
restricted it to a relatively uncongested part of the airport
terminals, the same part that houses the airport chapel. Tr. of
Oral Arg. 5-6, 46-47. In my view, that regulation meets the
standards we have applied to time, place, and manner restrictions
of protected
693
expression. See Clark v. Community for Creative NonViolence,
468 U. S. 288,
293 (1984).
I would affirm the judgment of the Court of Appeals in both No.
91-155 and No. 91-339.
JUSTICE KENNEDY, with whom JUSTICE BLACKMUN, JusTICE STEVENS,
and JUSTICE SOUTER join as to Part I, concurring in the judgments.
*
While I concur in the judgments affirming in these cases, my
analysis differs in substantial respects from that of the Court. In
my view the airport corridors and shopping areas outside of the
passenger security zones, areas operated by the Port Authority, are
public forums, and speech in those places is entitled to protection
against all government regulation inconsistent with public forum
principles. The Port Authority's blanket prohibition on the
distribution or sale of literature cannot meet those stringent
standards, and I agree it is invalid under the First and Fourteenth
Amendments. The Port Authority's rule disallowing in-person
solicitation of money for immediate payment, however, is in my view
a narrow and valid regulation of the time, place, and manner of
protected speech in this forum, or else is a valid regulation of
the nonspeech element of expressive conduct. I would sustain the
Port Authority's ban on solicitation and receipt of funds.
I
An earlier OpInIOn expressed my concern that "[i]f our public
forum jurisprudence is to retain vitality, we must recognize that
certain objective characteristics of Government property and its
customary use by the public may control" the status of the
property.
United States v.
Kokinda, 497 U. S. 720, 737 (1990)
(KENNEDY, J., concurring in judgment). The cases before us do not
heed that principle. Our public
*[This opinion applies also to No. 91-339, Lee v. International
Soc. for Krishna Consciousness, Inc., post, p. 830.]
694
KENNEDY, J., concurring in judgments
forum doctrine ought not to be a jurisprudence of categories
rather than ideas or convert what was once an analysis protective
of expression into one which grants the government authority to
restrict speech by fiat. I believe that the Court's public forum
analysis in these cases is inconsistent with the values underlying
the Speech and Press Clauses of the First Amendment.
Our public forum analysis has its origins in Justice Roberts'
rather sweeping dictum in
Hague v.
Committee for
Industrial Organization, 307 U. S. 496, 515
(1939); see also
ante, at 679. The doctrine was not stated
with much precision or elaboration, though, until our more recent
decisions in
Perry Ed. Assn. v.
Perry Local Educators'
Assn., 460 U. S. 37 (1983), and
Cornelius v.
NAACP
Legal Defense & Ed. Fund, Inc., 473 U. S. 788 (1985).
These cases describe a three-part analysis to designate
government-owned property as either a traditional public forum, a
designated public forum, or a nonpublic forum.
Perry, supra,
at 45-46;
ante, at 678-679. The Court today holds that
traditional public forums are limited to public property which have
as " 'a principal purpose ... the free exchange of ideas,'"
ante, at 679 (quoting
Cornelius, supra, at 800);
ante, at 686 (O'CONNOR, J., concurring in No. 91-155 and
concurring in judgment in No. 91-339 (hereinafter opinion of
O'CONNOR, J.)); and that this purpose must be evidenced by a
longstanding historical practice of permitting speech,
ante,
at 679;
ante, at 686 (opinion of O'CONNOR, J.). The Court
also holds that designated forums consist of property which the
government intends to open for public discourse.
Ante, at
680, citing
Cornelius, supra, at 802;
ante, at 686
(opinion of O'CONNOR, J.). All other types of property are, in the
Court's view, nonpublic forums (in other words, not public forums),
and governmentimposed restrictions of speech in these places will
be upheld so long as reasonable and viewpoint neutral. Under this
categorical view the application of public forum analysis to
airport terminals seems easy. Airports are of course public spaces
of recent vintage, and so there can be no time-honored
695
tradition associated with airports of permitting free speech.
Ante, at 680. And because governments have often attempted
to restrict speech within airports, it follows
a fortiori
under the Court's analysis that they cannot be so-called
"designated" forums.
Ante, at 680-681. So, the Court
concludes, airports must be nonpublic forums, subject to minimal
First Amendment protection.
This analysis is flawed at its very beginning. It leaves the
government with almost unlimited authority to restrict speech on
its property by doing nothing more than articulating a
non-speech-related purpose for the area, and it leaves almost no
scope for the development of new public forums absent the rare
approval of the government. The Court's error lies in its
conclusion that the public forum status of public property depends
on the government's defined purpose for the property, or on an
explicit decision by the government to dedicate the property to
expressive activity. In my view, the inquiry must be an objective
one, based on the actual, physical characteristics and uses of the
property. The fact that in our public forum cases we discuss and
analyze these precise characteristics tends to support my position.
Perry, supra, at 46-48;
Cornelius, supra, at 804-806;
Kokinda, supra, at 727-729 (plurality opinion).
The First Amendment is a limitation on government, not a grant
of power. Its design is to prevent the government from controlling
speech. Yet under the Court's view the authority of the government
to control speech on its property is paramount, for in almost all
cases the critical step in the Court's analysis is a classification
of the property that turns on the government's own definition or
decision, unconstrained by an independent duty to respect the
speech its citizens can voice there. The Court acknowledges as
much, by reintroducing today into our First Amendment law a strict
doctrinal line between the proprietary and regulatory functions of
government which I thought had been abandoned long ago.
Ante, at 678; compare
Davis v.
Massachusetts,
167 U. S. 43
(1897), with
Hague, supra, at 515;
Schnei-
696
KENNEDY, J., concurring in judgments
der v. State (Town of Irvington),
308 U. S. 147 (1939); and
Grayned v. Rockford,
408 U. S. 104, 115-116
(1972).
The Court's approach is contrary to the underlying purposes of
the public forum doctrine. The liberties protected by our doctrine
derive from the Assembly, as well as the Speech and Press Clauses
of the First Amendment, and are essential to a functioning
democracy. See Kalven, The Concept of the Public Forum: Cox v.
Louisiana, 1965 S. Ct. Rev. 1, 14, 19. Public places are of
necessity the locus for discussion of public issues, as well as
protest against arbitrary government action. At the heart of our
jurisprudence lies the principle that in a free nation citizens
must have the right to gather and speak with other persons in
public places. The recognition that certain government-owned
property is a public forum provides open notice to citizens that
their freedoms may be exercised there without fear of a censorial
government, adding tangible reinforcement to the idea that we are a
free people.
A fundamental tenet of our Constitution is that the government
is subject to constraints which private persons are not. The public
forum doctrine vindicates that principle by recognizing limits on
the government's control over speech activities on property
suitable for free expression. The doctrine focuses on the physical
characteristics of the property because government ownership is the
source of its purported authority to regulate speech. The right of
speech protected by the doctrine, however, comes not from a Supreme
Court dictum but from the constitutional recognition that the
government cannot impose silence on a free people.
The Court's analysis rests on an inaccurate view of history.
The notion that traditional public forums are properties that
have public discourse as their principal purpose is a most doubtful
fiction. The types of property that we have recognized as the
quintessential public forums are streets, parks, and sidewalks.
Cornelius, 473 U. S., at 802;
Frisby v.
Schultz, 487
U. S. 474, 480-481 (1988). It would seem apparent that the
principal purpose of streets and sidewalks, like
697
airports, is to facilitate transportation, not public discourse,
and we have recognized as much.
Schneider v.
State,
supra, at 160. Similarly, the purpose for the creation of
public parks may be as much for beauty and open space as for
discourse. Thus under the Court's analysis, even the quintessential
public forums would appear to lack the necessary elements of what
the Court defines as a public forum.
The effect of the Court's narrow view of the first category of
public forums is compounded by its description of the second
purported category, the so-called "designated" forum. The
requirements for such a designation are so stringent that I cannot
be certain whether the category has any content left at all. In any
event, it seems evident that under the Court's analysis today few,
if any, types of property other than those already recognized as
public forums will be accorded that status.
The Court's answer to these objections appears to be a recourse
to history as justifying its recognition of streets, parks, and
sidewalks, but apparently no other types of government property, as
traditional public forums.
Ante, at 681. The Court ignores
the fact that the purpose of the public forum doctrine is to give
effect to the broad command of the First Amendment to protect
speech from governmental interference. The jurisprudence is rooted
in historic practice, but it is not tied to a narrow textual
command limiting the recognition of new forums. In my view the
policies underlying the doctrine cannot be given effect unless we
recognize that open, public spaces and thoroughfares that are
suitable for discourse may be public forums, whatever their
historical pedigree and without concern for a precise
classification of the property. There is support in our precedents
for such a view. See
Lehman v.
Shaker Heights,
418 U. S. 298,
303 (1974) (plurality opinion);
Hague, 307 U. S., at 515
(speaking of "streets and public places" as forums). Without this
recognition our forum doctrine retains no relevance in times of
fast-changing technology and increasing insularity. In a country
where most citizens travel by automobile, and
698
KENNEDY, J., concurring in judgments
parks all too often become locales for crime rather than social
intercourse, our failure to recognize the possibility that new
types of government property may be appropriate forums for speech
will lead to a serious curtailment of our expressive activity.
One of the places left in our mobile society that is suitable
for discourse is a metropolitan airport. It is of particular
importance to recognize that such spaces are public forums because
in these days an airport is one of the few government-owned spaces
where many persons have extensive contact with other members of the
public. Given that private spaces of similar character are not
subject to the dictates of the First Amendment, see
Hudgens
v.
NLRB, 424
U. S. 507 (1976), it is critical that we preserve these areas
for protected speech. In my view, our public forum doctrine must
recognize this reality, and allow the creation of public forums
that do not fit within the narrow tradition of streets, sidewalks,
and parks. We have allowed flexibility in our doctrine to meet
changing technologies in other areas of constitutional
interpretation, see,
e. g., Katz v.
United States,
389 U. S. 347
(1967), and I believe we must do the same with the First
Amendment.
I agree with the Court that government property of a type which
by history and tradition has been available for speech activity
must continue to be recognized as a public forum.
Ante, at
679. In my view, however, constitutional protection is not confined
to these properties alone. Under the proper circumstances I would
accord public forum status to other forms of property, regardless
of their ancient or contemporary origins and whether or not they
fit within a narrow historic tradition. If the objective, physical
characteristics of the property at issue and the actual public
access and uses that have been permitted by the government indicate
that expressive activity would be appropriate and compatible with
those uses, the property is a public forum. The most important
considerations in this analysis are whether the
699
property shares physical similarities with more traditional
public forums, whether the government has permitted or acquiesced
in broad public access to the property, and whether expressive
activity would tend to interfere in a significant way with the uses
to which the government has as a factual matter dedicated the
property. In conducting the last inquiry, courts must consider the
consistency of those uses with expressive activities in general,
rather than the specific sort of speech at issue in the case before
it; otherwise the analysis would be one not of classification but
rather of caseby-case balancing, and would provide little guidance
to the State regarding its discretion to regulate speech. Courts
must also consider the availability of reasonable time, place, and
manner restrictions in undertaking this compatibility analysis. The
possibility of some theoretical inconsistency between expressive
activities and the property's uses should not bar a finding of a
public forum, if those inconsistencies can be avoided through
simple and permitted regulations.
The second category of the Court's jurisprudence, the socalled
designated forum, provides little, if any, additional protection
for speech. Where government property does not satisfy the criteria
of a public forum, the government retains the power to dedicate the
property for speech, whether for all expressive activity or for
limited purposes only. See
ante, at 678;
Perry, 460
U. S., at 45-46;
Southeastern Promotions, Ltd. v.
Conrad, 420 U.
S. 546 (1975). I do not quarrel with the fact that speech must
often be restricted on property of this kind to retain the purpose
for which it has been designated. And I recognize that when
property has been designated for a particular expressive use, the
government may choose to eliminate that designation. But this
increases the need to protect speech in other places, where
discourse may occur free of such restrictions. In some sense the
government always retains authority to close a public forum, by
selling the property, changing its physical character, or changing
its principal use. Otherwise the
700
KENNEDY, J., concurring in judgments
State would be prohibited from closing a park, or eliminating a
street or sidewalk, which no one has understood the public forum
doctrine to require. The difference is that when property is a
protected public forum the State may not by fiat assert broad
control over speech or expressive activities; it must alter the
objective physical character or uses of the property, and bear the
attendant costs, to change the property's forum status.
Under this analysis, it is evident that the public spaces of the
Port Authority's airports are public forums. First, the District
Court made detailed findings regarding the physical similarities
between the Port Authority's airports and public streets. 721 F.
Supp. 572, 576-577 (SDNY 1989). These findings show that the public
spaces in the airports are broad, public thoroughfares full of
people and lined with stores and other commercial activities. An
airport corridor is of course not a street, but that is not the
proper inquiry. The question is one of physical similarities,
sufficient to suggest that the airport corridor should be a public
forum for the same reasons that streets and sidewalks have been
treated as public forums by the people who use them.
Second, the airport areas involved here are open to the public
without restriction.
Ibid. Plaintiffs do not seek access to
the secured areas of the airports, nor do I suggest that these
areas would be public forums. And while most people who come to the
Port Authority's airports do so for a reason related to air travel,
either because they are passengers or because they are picking up
or dropping off passengers, this does not distinguish an airport
from streets or sidewalks, which most people use for travel. See
supra, at 696-697. Further, the group visiting the airports
encompasses a vast portion of the public: In 1986 the Authority's
three airports served over 78 million passengers. It is the very
breadth and extent of the public's use of airports that makes it
imperative to protect speech rights there. Of course, airport
operators retain authority to restrict public
701
access when necessary, for instance to respond to special
security concerns. But if the Port Authority allows the uses and
open access to airports that is shown on this record, it cannot
argue that some vestigial power to change its practices bars the
conclusion that its airports are public forums, any more than the
power to bulldoze a park bars a finding that a public forum exists
so long as the open use does.
Third, and perhaps most important, it is apparent from the
record, and from the recent history of airports, that when adequate
time, place, and manner regulations are in place, expressive
activity is quite compatible with the uses of major airports. The
Port Authority's primary argument to the contrary is that the
problem of congestion in its airports' corridors makes expressive
activity inconsistent with the airports' primary purpose, which is
to facilitate air travel. The First Amendment is often
inconvenient. But that is beside the point. Inconvenience does not
absolve the government of its obligation to tolerate speech. The
Authority makes no showing that any real impediments to the smooth
functioning of the airports cannot be cured with reasonable time,
place, and manner regulations. In fact, the history of the
Authority's own airports, as well as other major airports in this
country, leaves little doubt that such a solution is quite
feasible. The Authority has for many years permitted expressive
activities by petitioners and others, without any apparent
interference with its ability to meet its transportation purposes.
App. 462, 469-470; see also
ante, at 691-692 (opinion of
O'CONNOR, J.). The Federal Aviation Administration, in its
operation of the airports of the Nation's capital, has issued rules
which allow regulated expressive activity within specified areas,
without any suggestion that the speech would be incompatible with
the airports' business. 14 CFR §§ 159.93,159.94 (1992). And, in
fact, expressive activity has been a commonplace feature of our
Nation's major airports for many years, in part because of the wide
consensus among the Courts of Appeals, prior to the decision in
702
KENNEDY, J., concurring in judgments
these cases, that the public spaces of airports are public
forums. See,
e. g., Chicago Area Military Project v.
Chicago, 508 F.2d
921 (CA7), cert. denied, 421 U. S. 992 (1975);
Fernandes
v.
Limmer, 663 F.2d
619 (CA5 1981), cert. dism'd, 458 U. S. 1124 (1982);
United
States Southwest Africa/Namibia Trade &
Cultural
Council v.
United States, 228 U. S. App. D. C. 191,
708 F.2d
760 (1983);
Jews for Jesus, Inc. v.
Board of Airport
Comm'rs, 785 F.2d
791 (CA9 1986), aff'd on other grounds,
482 U. S. 569 (1987);
Jamison v.
St. Louis, 828 F.2d
1280 (CA8 1987), cert. denied, 485 U. S. 987 (1988). As the
District Court recognized, the logical consequence of the Port
Authority's congestion argument is that the crowded streets and
sidewalks of major cities cannot be public forums. 721 F. Supp., at
578. These problems have been dealt with in the past, and in other
settings, through proper time, place, and manner restrictions; and
the Port Authority does not make any showing that similar
regulations would not be effective in its airports. The Port
Authority makes a halfhearted argument that the special security
concerns associated with airports suggest they are not public
forums; but this position is belied by the unlimited public access
the Authority allows to its airports. This access demonstrates that
the Port Authority does not consider the general public to pose a
serious security threat, and there is no evidence in the record
that persons engaged in expressive activities are any
different.
The danger of allowing the government to suppress speech is
shown in the cases now before us. A grant of plenary power allows
the government to tilt the dialog heard by the public, to exclude
many, more marginal, voices. The first challenged Port Authority
regulation establishes a flat prohibition on "[t]he sale or
distribution of flyers, brochures, pamphlets, books or any other
printed or written material," if conducted within the airport
terminal, "in a continuous or repetitive manner." We have long
recognized that the right to distribute flyers and literature lies
at the heart of the lib-
703
erties guaranteed by the Speech and Press Clauses of the First
Amendment. See,
e. g., Schneider v.
State (Town of
Irvington), 308
U. S. 147 (1939);
Murdock v.
Pennsylvania,
319 U. S. 105
(1943). The Port Authority's rule, which prohibits almost all such
activity, is among the most restrictive possible of those
liberties. The regulation is in fact so broad and restrictive of
speech, JUSTICE O'CONNOR finds it void even under the standards
applicable to government regulations in nonpublic forums.
Ante, at 691-693. I have no difficulty deciding the
regulation cannot survive the far more stringent rules applicable
to regulations in public forums. The regulation is not drawn in
narrow terms, and it does not leave open ample alternative channels
for communication. See
Ward v.
Rock Against Racism,
491 U. S. 781,
791 (1989). The Port Authority's concerns with the problem of
congestion can be addressed through narrow restrictions on the time
and place of expressive activity. See
ante, at 692-693
(opinion of O'CONNOR, J.). I would strike down the regulation as an
unconstitutional restriction of speech.
II
It is my view, however, that the Port Authority's ban on the
"solicitation and receipt of funds" within its airport terminals
should be upheld under the standards applicable to speech
regulations in public forums. The regulation may be upheld as
either a reasonable time, place, and manner restriction, or as a
regulation directed at the nonspeech element of expressive conduct.
The two standards have considerable overlap in a case like this
one.
It is well settled that "even in a public forum the government
may impose reasonable restrictions on the time, place, or manner of
protected speech, provided the restrictions 'are justified without
reference to the content of the regulated speech, that they are
narrowly tailored to serve a significant governmental interest, and
that they leave open ample alternative channels for communication
of the information.'"
704
KENNEDY, J., concurring in judgments
Ward, supra, at 791 (quoting
Clark v.
Community
for Creative Non-Violence, 468 U. S. 288, 293
(1984)). We have held further that the government in appropriate
circumstances may regulate conduct, even if the conduct has an
expressive component.
United States v.
O'Brien,
391 U. S. 367
(1968). And in several recent cases we have recognized that the
standards for assessing time, place, and manner restrictions are
little, if any, different from the standards applicable to
regulations of conduct with an expressive component.
Clark,
supra, at 298, and n. 8;
Ward, supra, at 798;
Barnes v.
Glen Theatre, Inc., 501 U. S. 560, 566 (1991)
(plurality opinion); see generally Kalven, 1965 S. Ct. Rev., at 23,
27 (arguing that all speech contains elements of conduct which may
be regulated). The confluence of the two tests is well demonstrated
by a case like this, where the government regulation at issue can
be described with equal accuracy as a regulation of the manner of
expression, or as a regulation of conduct with an expressive
component.
I am in full agreement with the statement of the Court that
solicitation is a form of protected speech.
Ante, at 677;
see also
Riley v.
National Federation of Blind of N.
c.,
Inc., 487
U. S. 781, 788-789 (1988);
Schaumburg v.
Citizens for
a Better Environment, 444 U. S. 620, 629
(1980);
Murdock v.
Pennsylvania, supra. If the Port
Authority's solicitation regulation prohibited all speech that
requested the contribution of funds, I would conclude that it was a
direct, contentbased restriction of speech in clear violation of
the First Amendment. The Authority's regulation does not prohibit
all solicitation, however; it prohibits the "solicitation and
receipt of funds." I do not understand this regulation to prohibit
all speech that solicits funds. It reaches only personal
solicitations for immediate payment of money. Otherwise, the
"receipt of funds" phrase would be written out of the provision.
The regulation does not cover, for example, the distribution of
preaddressed envelopes along with a plea to contribute money to the
distributor or his organization. As
705
I understand the restriction it is directed only at the physical
exchange of money, which is an element of conduct interwoven with
otherwise expressive solicitation. In other words, the regulation
permits expression that solicits funds, but limits the manner of
that expression to forms other than the immediate receipt of
money.
So viewed, I believe the Port Authority's rule survives our test
for speech restrictions in the public forum. In-person solicitation
of funds, when combined with immediate receipt of that money,
creates a risk of fraud and duress that is well recognized, and
that is different in kind from other forms of expression or
conduct. Travelers who are unfamiliar with the airport, perhaps
even unfamiliar with this country, its customs, and its language,
are an easy prey for the money solicitor. I agree in full with the
Court's discussion of these dangers in No. 91-155.
Ante, at
683-684;
ante, at 689-690 (opinion of O'CONNOR, J.). I would
add that our precedents, as well as the actions of coordinate
branches of Government, support this conclusion. We have in the
past recognized that in-person solicitation has been associated
with coercive or fraudulent conduct.
Cantwell v.
Connecticut, 310 U. S. 296, 306
(1940);
Riley, supra, at 800;
Heffron v.
International Soc. for Krishna Consciousness, Inc., 452 U. S. 640, 657 (1981)
(Brennan, J., concurring in part and dissenting in part);
Schaumburg, supra, at 636-638. In addition, the Federal
Government has adopted regulations which acknowledge and respond to
the serious problems associated with solicitation. The National
Park Service has enacted a fiat ban on the direct solicitation of
money in the parks of the Nation's capital within its control. 36
CFR § 7.96(h) (1991); see also
United States v.
Kokinda, 497 U. S., at 739 (KENNEDY, J., concurring in
judgment). Also, the Federal Aviation Administration, in its
administration of the airports of Washington, D. C., even while
permitting the solicitation of funds has adopted special rules to
prevent coercive, harassing, or repetitious behavior. 14 CFR §
159.94(e)-(h) (1992). And
706
KENNEDY, J., concurring in judgments
in the commercial sphere, the Federal Trade Commission has long
held that "it constitutes an unfair and deceptive act or practice"
to make a door-to-door sale without allowing the buyer a 3-day
"cooling-off period" during which time he or she may cancel the
sale. 16 CFR § 429.1 (1992). All of these measures are based on a
recognition that requests for immediate payment of money create a
strong potential for fraud or undue pressure, in part because of
the lack of time for reflection. As the Court recounts,
questionable practices associated with solicitation can include the
targeting of vulnerable and easily coerced persons,
misrepresentation of the solicitor's cause, and outright theft.
Ante, at 684; see also
International Soc. for Krishna
Consciousness, Inc. v.
Barber, 506 F. Supp. 147, 159-163
(NDNY 1980), rev'd on other grounds,
650 F.2d
430 (CA2 1981).
Because the Port Authority's solicitation ban is directed at
these abusive practices and not at any particular message, idea, or
form of speech, the regulation is a content-neutral rule serving a
significant government interest. We have held that the content
neutrality of a rule must be assessed based on whether it is
"'justified without reference to the content of the
regulated speech.'"
Ward, 491 U. S., at 791 (quoting
Clark, 468 U. S., at 293) (emphasis in original). It is
apparent that the justification for the solicitation ban is
unrelated to the content of speech or the identity of the speaker.
There can also be no doubt that the prevention of fraud and duress
is a significant government interest. The government cannot, of
course, prohibit speech for the sole reason that it is concerned
the speech may be fraudulent.
Schaumburg, 444 U. S., at 637.
But the Port Authority's regulation does not do this. It recognizes
that the risk of fraud and duress is intensified by particular
conduct, the immediate exchange of money; and it addresses only
that conduct. We have recognized that such narrowly drawn
regulations are in fact the proper means for addressing
707
the dangers which can be associated with speech.
Ibid.;
Riley, supra, at 799, n. 11.
To survive scrutiny, the regulation must be drawn in narrow
terms to accomplish its end and leave open ample alternative
channels for communication. Regarding the former requirement, we
have held that to be narrowly tailored a regulation need not be the
least restrictive or least intrusive means of achieving an end. The
regulation must be reasonable, and must not burden substantially
more speech than necessary.
Ward, supra, at 798-800. Under
this standard the solicitation ban survives with ease, because it
prohibits only solicitation of money for immediate receipt. The
regulation does not burden any broader category of speech or
expressive conduct than is the source of the evil sought to be
avoided. And in fact, the regulation is even more narrow because it
only prohibits such behavior if conducted in a continuous or
repetitive manner. The Port Authority has made a reasonable
judgment that this type of conduct raises the most serious
concerns, and it is entitled to deference. My conclusion is not
altered by the fact that other means, for example, the regulations
adopted by the Federal Aviation Administration to govern its
airports, may be available to address the problems associated with
solicitation, because the existence of less intrusive means is not
decisive. Our cases do not so limit the government's regulatory
flexibility. See
Ward, supra, at 800.
I have little difficulty in deciding that the Port Authority has
left open ample alternative channels for the communication of the
message which is an aspect of solicitation. As already discussed,
see
supra, at 704, the Authority's rule does not prohibit
all solicitation of funds: It restricts only the manner of the
solicitation, or the conduct associated with solicitation, to
prohibit immediate receipt of the solicited money. Requests for
money continue to be permitted, and in the course of requesting
money solicitors may explain their cause, or the purposes of their
organization, without
708
KENNEDY, J., concurring in judgments
violating the regulation. It is only if the solicitor accepts
immediate payment that a violation occurs. Thus the solicitor can
continue to disseminate his message, for example, by distributing
preaddressed envelopes in which potential contributors may mail
their donations. See
supra, at 704.
Much of what I have said about the solicitation of funds may
seem to apply to the sale of literature, but the differences
between the two activities are of sufficient significance to
require they be distinguished for constitutional purposes. The Port
Authority's fiat ban on the distribution or sale of printed
material must, in my view, fall in its entirety. See
supra,
at 703. The application of our time, place, and manner test to the
ban on sales leads to a result quite different from the
solicitation ban. For one, the government interest in regulating
the sales of literature is not as powerful as in the case of
solicitation. The danger of a fraud arising from such sales is much
more limited than from pure solicitation, because in the case of a
sale the nature of the exchange tends to be clearer to both
parties. Also, the Port Authority's sale regulation is not as
narrowly drawn as the solicitation rule, since it does not specify
the receipt of money as a critical element of a violation. And
perhaps most important, the fiat ban on sales of literature leaves
open fewer alternative channels of communication than the Port
Authority's more limited prohibition on the solicitation and
receipt of funds. Given the practicalities and ad hoc nature of
much expressive activity in the public forum, sales of literature
must be completed in one transaction to be workable. Attempting to
collect money at another time or place is a far less plausible
option in the context of a sale than when soliciting donations,
because the literature sought to be sold will under normal
circumstances be distributed within the forum. These distinctions
have been recognized by the National Park Service, which permits
the sale or distribution of literature, while prohibiting
solicitation.
Supra, at 705; 36 CFR § 7.96(j)(2) (1991).
Thus the Port Authority's regulation allows no prac-
709
tical means for advocates and organizations to sell literature
within the public forums which are its airports.
Against all of this must be balanced the great need, recognized
by our precedents, to give the sale of literature full First
Amendment protection. We have long recognized that to prohibit
distribution of literature for the mere reason that it is sold
would leave organizations seeking to spread their message without
funds to operate. "It should be remembered that the pamphlets of
Thomas Paine were not distributed free of charge."
Murdock,
319 U. S., at 111; see also
Schaumburg, supra, at 628-635
(discussing cases). The effect of a rule of law distinguishing
between sales and distribution would be to close the marketplace of
ideas to less affluent organizations and speakers, leaving speech
as the preserve of those who are able to fund themselves. One of
the primary purposes of the public forum is to provide persons who
lack access to more sophisticated media the opportunity to speak. A
prohibition on sales forecloses that opportunity for the very
persons who need it most. And while the same arguments might be
made regarding solicitation of funds, the answer is that the Port
Authority has not prohibited all solicitation, but only a narrow
class of conduct associated with a particular manner of
solicitation.
For these reasons I agree that the Court of Appeals should be
affirmed in full in finding the Port Authority's ban on the
distribution or sale of literature unconstitutional, but upholding
the prohibition on solicitation and immediate receipt of funds.
JUSTICE SOUTER, with whom JUSTICE BLACKMUN and JUSTICE STEVENS
join, concurring in the judgment in No.
91-339, post, p.
830, and dissenting in No. 91-155.
I
I join in Part I of JUSTICE KENNEDY'S opinion and the judgment
of affirmance in No. 91-339. I agree with JUSTICE
710
Opinion of SOUTER, J.
KENNEDY'S view of the rule that should determine what is a
public forum and with his conclusion that the public areas of the
airports at issue here qualify as such. The designation of a given
piece of public property as a traditional public forum must not
merely state a conclusion that the property falls within a static
category including streets, parks, sidewalks, and perhaps not much
more, but must represent a conclusion that the property is no
different in principle from such examples, which we have previously
described as "archetypes" of property from which the government was
and is powerless to exclude speech. See
Frisby v.
Schultz, 487 U. S. 474, 480 (1988). To treat the class of
such forums as closed by their description as "traditional," taking
that word merely as a charter for examining the history of the
particular public property claimed as a forum, has no warrant in a
Constitution whose values are not to be left behind in the city
streets that are no longer the only focus of our community life. If
that were the line of our direction, we might as well abandon the
public forum doctrine altogether.
Nor is that a Scylla without Charybdis. Public forum analysis is
stultified not only by treating its archetypes as closed
categories, but by treating its candidates so categorically as to
defeat their identification with the archetypes. We need not say
that all "transportation nodes" or all airports are public forums
in order to find that certain metropolitan airports are. Thus, the
enquiry may and must relate to the particular property at issue and
not necessarily to the "precise classification of the property."
See
ante, at 697 (KENNEDY, J., concurring in judgment). It
is true that property of some types will invariably be public
forums. "No particularized inquiry into the precise nature of a
specific street is necessary; all public streets are held in the
public trust and are properly considered traditional public fora."
Frisby, supra, at 481. But to find one example of a certain
property type
(e. g., airports, post offices, etc.) that is
not a public forum is not to rule out all properties of that
sort.
711
Cf.
United States v.
Kokinda, 497 U. S. 720, 727 (1990)
(pluralityopinion) (implicitly rejecting the categorical approach
by examining whether "[t]he postal sidewalk at issue ... [has] the
characteristics of public sidewalks traditionally open to
expressive activity"). One can imagine a public airport of a size
or design or need for extraordinary security that would render
expressive activity incompatible with its normal use. But that
would be no reason to conclude that one of the more usual variety
of metropolitan airports is not a public forum.
I also agree with JUSTICE KENNEDY'S statement of the public
forum principle: We should classify as a public forum any piece of
public property that is "suitable for discourse" in its physical
character, where expressive activity is "compatible" with the use
to which it has actually been put. See
ante, at 698 (opinion
concurring in judgment); see also
Grayned v.
Rockford, 408
U. S. 104, 116 (1972) ("The crucial question is whether the
manner of expression is basically incompatible with the normal
activity of a particular place at a particular time");
ante,
at 692 (O'CONNOR, J., concurring in No. 91-155 and concurring in
judgment in No. 91-339) (finding that the ban on the sale or
distribution of leaflets here must be struck down "[b]ecause I
cannot see how peaceful pamphleteering is incompatible with the
multipurpose environment of the Port Authority airports," and
concluding that regulations of leafletting may thus only be upheld
if they pass scrutiny under our test for restrictions on time,
place, or manner of speech). Applying this test, I have no
difficulty concluding that the unleased public areas at airports
like the metropolitan New York airports at issue in these cases are
public forums.
II
From the Court's conclusion in No. 91-155, however, sustaining
the total ban on solicitation of money for immediate payment, I
respectfully dissent. "We have held the solicitation of money by
charities to be fully protected as the dissemination of ideas. See
[Riley v.
National Federation of
712
Opinion of SOUTER, J.
Blind of N. c.,
Inc., 487 U. S. 781,] 787-789
[(1988)];
Secretary of State of Maryland v.
Joseph H.
Munson Co., 467
U. S. 947, 959-961 (1984);
Schaumburg v.
Citizens for
a Better Environment, 444 U. S. 620, 628-632
(1980). It is axiomatic that, although fraudulent misrepresentation
of facts can be regulated, the dissemination of ideas cannot be
regulated to prevent it from being unfair or unreasonable."
Riley v.
National Federation of Blind of N. c.,
Inc., 487 U.
S. 781, 803 (1988) (SCALIA, J., concurring in part and
concurring in judgment) (some citations omitted).
Even if I assume,
arguendo, that the ban on the
petitioners' activity at issue here is both content neutral and
merely a restriction on the manner of communication, the regulation
must be struck down for its failure to satisfy the requirements of
narrow tailoring to further a significant state interest, see,
e. g., Clark v.
Community for Creative NonViolence,
468 U. S. 288,
293 (1984), and availability of "ample alternative channels for
communication,"
Virginia State Bd. of Pharmacy v.
Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771
(1976).
As JUSTICE KENNEDY'S opinion indicates, respondent comes closest
to justifying the restriction as one furthering the government's
interest in preventing coercion and fraud. *
*Respondent also attempts to justify his regulation on the
alternative basis of "interference with air travelers," referring
in particular to problems of "annoyance" and "congestion." Brief
for Respondent 24-25, 4244, 47. The First Amendment inevitably
requires people to put up with annoyance and uninvited persuasion.
Indeed, in such cases we need to scrutinize restrictions on speech
with special care. In their degree of congestion, most of the
public spaces of these airports are probably more comparable to
public streets than to the fairground as we described it in
Heffron v.
International Soc. for Krishna Consciousness,
Inc., 452 U. S.
640, 651 (1981). Consequently, the congestion argument, which
was held there to justify a regulation confining solicitation to a
fixed location, should have less force here. See
id., at
650-651. Be that as it may, the conclusion of a majority of the
Court today that the Constitution forbids the ban on the sale, as
well as the distribution, of leaflets puts to rest respondent's
argument that congestion justifies a total ban on solicitation.
While there
713
The claim to be preventing coercion is weak to start with. While
a solicitor can be insistent, a pedestrian on the street or airport
concourse can simply walk away or walk on. In any event, we have
held in a far more coercive context than this one, that of a black
boycott of white stores in Claiborne County, Mississippi, that
"[s]peech does not lose its protected character ... simply because
it may embarrass others or coerce them into action."
NAACP
v.
Claiborne Hardware Co., 458 U. S. 886, 910
(1982). See also
Organization for a Better Austin v.
Keefe, 402 U.
S. 415, 419 (1971) ("The claim that ... expressions were
intended to exercise a coercive impact on respondent does not
remove them from the reach of the First Amendment. Petitioners
plainly intended to influence respondent's conduct by their
activities; this is not fundamentally different from the function
of a newspaper"). Since there is here no evidence of any type of
coercive conduct, over and above the merely importunate character
of the open and public solicitation, that might justify a ban, see
United States v.
O'Brien, 391 U. S. 367 (1968);
Claiborne Hardware Co., supra, at 912, the regulation cannot
be sustained to avoid coercion.
As for fraud, our cases do not provide government with plenary
authority to ban solicitation just because it could be fraudulent.
"Broad prophylactic rules in the area of free expression are
suspect,"
NAACP v.
Button, 371 U. S. 415, 438
(1963), and more than a laudable intent to prevent fraud is
required to sustain the present ban. See,
e. g., Schaumburg
v.
Citizens for a Better Environment, 444 U. S. 620, 636-638
(1980) ("The Village, consistently with the First Amendment, may
not label such groups 'fraudulent' and bar them from canvassing on
the streets and house to house");
Riley, supra, at 800. The
evidence of fraudulent conduct here is virtually nonexistent. It
consists of one affidavit describing eight
may, of course, be congested locations where solicitation could
severely compromise the efficient flow of pedestrians, the proper
response would be to tailor the restrictions to those choke
points.
714
Opinion of SOUTER, J.
complaints, none of them substantiated, "involving some form of
fraud, deception, or larceny" over an entire ll-year period between
1975 and 1986, during which the regulation at issue here was, by
agreement, not enforced. See Brief for Respondent 44; Brief for
Petitioners 46. Petitioners claim, and respondent does not dispute,
that by the Port Authority's own calculation, there has not been a
single claim of fraud or misrepresentation since 1981.
Ibid.
As against these facts, respondent's brief is ominous in adding
that "[t]he Port Authority is also aware that members of
[International Society for Krishna Consciousness] have engaged in
misconduct elsewhere." Brief for Respondent 44. This is precisely
the type of vague and unsubstantiated allegation that could never
support a restriction on speech. Finally, the fact that other
governmental bodies have also enacted restrictions on solicitation
in other places, see,
e. g., 36 CFR § 7.96(h) (1991),
is not evidence of fraudulent conduct.
Even assuming a governmental interest adequate to justify some
regulation, the present ban would fall when subjected to the
requirement of narrow tailoring. See
Riley, supra, at 800;
Schaumburg, supra, at 637 ("The Village may serve its
legitimate interests, but it must do so by narrowly drawn
regulations designed to serve those interests without unnecessarily
interfering with First Amendment freedoms"). "Precision of
regulation must be the touchstone .... "
Button,
supra, at 438. Thus, in
Schaumburg we said:
"The Village's legitimate interest in preventing fraud can be
better served by measures less intrusive than a direct prohibition
on solicitation. Fraudulent misrepresentations can be prohibited
and the penal laws used to punish such conduct directly. Efforts to
promote disclosure of the finances of charitable organizations also
may assist in preventing fraud by informing the public of the ways
in which their contributions will be employed. Such measures may
help make contribution decisions more informed, while leaving to
individual choice the
715
decision whether to contribute .... " 444 U. S., at 637638
(citations and footnotes omitted).
Similarly, in
Riley we required the State to cure its
perceived fraud problem by more narrowly tailored means than
compelling disclosure by professional fundraisers of the amount of
collected funds that were actually turned over to charity during
the previous year:
"In contrast to the prophylactic, imprecise, and unduly
burdensome rule the State has adopted to reduce its alleged donor
misperception, more benign and narrowly tailored options are
available. For example, as a general rule, the State may itself
publish the detailed financial disclosure forms it requires
professional fundraisers to file. This procedure would communicate
the desired information to the public without burdening a speaker
with unwanted speech during the course of a solicitation.
Alternatively, the State may vigorously enforce its antifraud laws
to prohibit professional fundraisers from obtaining money on false
pretenses or by making false statements." 487 U. S., at 800.
Finally, I do not think the Port Authority's solicitation ban
leaves open the "ample" channels of communication required of a
valid content-neutral time, place, and manner restriction. A
distribution of preaddressed envelopes is unlikely to be much of an
alternative. The practical reality of the regulation, which this
Court can never ignore, is that it shuts off a uniquely powerful
avenue of communication for organizations like the International
Society for Krishna Consciousness, and may, in effect, completely
prohibit unpopular and poorly funded groups from receiving funds in
response to protected solicitation. Cf.
Linmark Associates,
Inc. v.
Willingboro, 431 U. S. 85, 93 (1977)
("Although in theory sellers remain free to employ a number of
different alternatives, in practice realty is not marketed through
leaflets, sound trucks, demonstrations, or the like").
716
Opinion of SOUTER, J.
Accordingly, I would reverse the judgment of the Court of
Appeals in No. 91-155 and strike down the ban on solicitation.
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