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4 Appendix A). The U.S. Supreme Court has recog- nized that state constitutions can create addi- tional protections for speech and thus impose greater restrictions on government proprietors. Section I of this digest concludes by reviewing several speech cases decided under two state con- stitutions. One series of cases involved an airport, and the other series involved advertising on gov- ernment property; in both instances, state courts determined that government proprietors have dif- ferent obligations than under a Federal First Amendment forum analysis. State constitutions can impose additional speech requirements, and airport proprietors must understand both their state and federal obligations. After the discussion in Section I of this digest, Section II summarizes examples of various First Amendment policies from over 40 large airports in the United States. This section is not comprehen- sive and, as with any survey, its contents will become outdated. This information, however, pro- vides examples of airport policies at different times and in different contexts to assist in under- standing how airport proprietors may respond to First Amendment issues. I. FIRST AMENDMENT OVERVIEW FOR AIRPORTS A. Basic Speech Concepts at Airports Over time, the U.S. Supreme Court recognized that there is a difference between government acting as a regulator over speech in general and government acting as a proprietor to manage speech in its own facilities. The Court ultimately developed a âforum analysisâ framework to ad- dress the unique circumstances that arise when applying the First Amendment to government- owned property. That framework balances the governmentâs interest in managing the property with the publicâs interest in access. It first identi- fies the nature of the government-owned forum and then evaluates speech restrictions under a standard that is appropriate for the forum type to determine whether the restriction in that forum is constitutional. The Supreme Court developed this framework because â[t]he existence of a right of access to public property and the standard by which limitations upon such a right must be evaluated differ depending on the character of the property at issue.â3 3 See Perry Educ. Assân v. Perry Local Educatorsâ Assân, 460 U.S. 37, 44, 103 S. Ct. 948, 74 L. Ed. 2d 794 Airport property is strikingly different from other types of property that the government may own. Each airport proprietor must facilitate com- plex transportation functions that connect the ground to the air for people and cargo, manage diverse commercial functions and urgent security concerns, respond to demanding industry regula- tory requirements, and fulfill its responsibilities as a government entity. Thus, public access for First Amendment activities at airports must be evaluated in light of each airportâs unique charac- teristics. This section provides an overview of fo- rum analysis and discusses how it can apply to an airport proprietorâs facilities. 1. Forum Analysis Basics The courts use forum analysis âas a means of determining when the Government's interest in limiting the use of its property to its intended purpose outweighs the interest of those wishing to use the property for other purposes.â4 Under forum analysis, the courts first determine that government property constitutes one of three types of forumsâa traditional public forum, a des- ignated public forum, or a nonpublic forum. They then apply the test associated with that forum type to determine whether a government proprie- torâs speech regulation is constitutional. These forums can range from traditional places of access where government must allow most speech to property that government has dedicated to purposes that are not compatible with speech, where government has greater latitude to impose restrictions. Traditional public forums are places such as streets, sidewalks, and parks that âby long tradi- tion or by government fiat have been devoted to assembly and debate.â5 These are places that âhave immemorially been held in trust for the use of the public and, time out of mind, have been used for the purposes of assembly, communicating thoughts between citizens, and discussing public (1983) (case guiding modern forum analysis and deter- mining that teacher mailboxes were a nonpublic forum). 4 See Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 800, 105 S. Ct. 3439, 87 L. Ed. 2d 567 (1985) (considering whether a federal govern- ment charitable solicitation campaign was a nonpublic forum from which a legal defense fund could be ex- cluded or whether the government intended to desig- nate that forum as open to expression, which included participation by the legal defense fund). 5 See Perry Educ. Assân, 460 U.S. at 45 (case intro- ducing and discussing the forum types involved in a forum analysis).
5 questions.â6 The Supreme Court has determined that the governmentâs ability to restrict speech in a public forum is largely limited, and it uses a âstrict scrutinyâ test to determine whether a re- striction on expression is valid in this type of fo- rum if the restriction is based on the content of the expression. Strict scrutiny requires govern- ment to show that the restriction is ânecessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.â7 If, however, restrictions in this type of forum only govern the time, place, and manner for expression, courts will consider those restrictions under an âinter- mediate scrutiny testâ in which regulations must be ânarrowly tailored to serve a significant gov- ernment interest, and leave open ample alterna- tive channels of communication.â8 A designated public forum is a venue that the government creates âby intentionally opening a non-traditional forum for public discourse,â not by inaction.9 Courts thus must first decide whether a designated public forum exists. When identifying what constitutes the relevant forum for this analysis, the âforum should be defined in terms of the access sought by the speaker.â10 The courts will then examine whether there is evidence of governmentâs intent to allow expression in that forum. They determine intent by looking at the governmentâs consistent policy and past practices for use of the relevant forum and the forumâs compatibility with expressive activity.11 The gov- ernment is not required to âindefinitely retain the open characterâ of property that it has âopened for use by the public as a place for expressive activ- ity,â but âas long as it does so it is bound by 6 See id. 7 See id. 8 See id. 9 See Cornelius, 473 U.S. at 802 (emphasis added). The Court noted it âwill not find that a public forum has been created in the face of clear evidence of a contrary intentâ¦nor will we infer that the government intended to create a public forum when the nature of the prop- erty is inconsistent with expressive activity,â especially âwhere the principal function of the property would be disrupted by expressive activity.â See id. at 803â04. 10 See id. at 801. 11 See id. at 802. The Court also noted that â[e]ven protected speech is not equally permissible in all places and at all times. Nothing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speakerâs activities.â See id. at 799â800. the same standards as apply in a traditional pub- lic forum. Reasonable time, place and manner regulations are permissible, and a content-based prohibition must be narrowly drawn to effectuate a compelling state interest.â12 The government may open a designated public forum to all types of expressive activity, or it may designate this forum for limited purposes, which the courts normally refer to as a âlimited public forum.â The government has more latitude to restrict speech in a limited public forum to pre- serve the forum for the purposes that the govern- ment intends. Those regulations, however, must be reasonable in light of the governmentâs intent for opening the forum to public expression and they must be viewpoint neutral (permitting all points of view on allowable topics). In recent cases, the Supreme Court has sometimes consid- ered limited public forums without mentioning the Courtâs final forum type, the nonpublic forum, when the governmentâs intent is to regulate the use of property that possesses some inherent ex- pressive qualities (such as universities or public broadcasts).13 Any remaining government-owned property that âis not by tradition or designation a forum for public communicationâ is a nonpublic forum.14 This property has not historically been a forum for public expression, and, unlike a designated or limited public forum, the government does not intend to open this forum for any expression. The courts thus do not determine the proprietorâs in- tent. The government owner has reserved this property for certain functions, and speech restric- tions in a nonpublic forum âcan be based on sub- ject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.â Thus, the government can exclude a speaker whose topic is ânot encompassed within the purpose of the forumâ or who is ânot a member of the class of speakers for whose especial benefit the forum was created,â as long as those restric- 12 See Perry Educ. Assân, 460 U.S. at 46. 13 See Christian Legal Soc. Chapter of the UCLA, Hastings College of Law v. Martinez, 561 U.S. 661, 130 S. Ct. 2971, 177 L. Ed. 2d 838 (2010) (analyzing regula- tions that were claimed to restrict a groupâs First Amendment rights of association in light of the âspecial characteristicsâ of a school environment); Arkansas Educ. Television Commission v. Forbes, 523 U.S. 666, 118 S. Ct. 1633, 140 L. Ed.2d 875 (1998) (analyzing regulations that limited a politicianâs access to broad- cast journalism at a publicly owned television station). 14 See Perry Educ. Assân, 460 U.S. at 46.
6 tions are reasonable measures to preserve the propertyâs functions and are viewpoint-neutral.15 The courts determine whether a restriction is reasonable âin light of the purpose of the [nonpub- lic] forum and all the surrounding circum- stances.â16 The Supreme Court has noted that a neutral access restriction âneed only be reason- able; it need not be the most reasonable or the only reasonable limitation.â When considering restrictions, there also need not be âa finding of strict incompatibility between the nature of the speech or the identity of the speaker [being restricted] and the functioning of the nonpublic forum.â17 The courts determine whether a restric- tion is viewpoint neutral by examining whether the restriction denies a speaker access âsolely to suppress the point of view he espouses on an oth- erwise includible subject.â18 Viewpoint discrimina- tion âtargets not subject matter but particular views taken by speakers on a subject.â19 2. Proprietors May Not Ban All First Amendment Rights Without regard to the type of forum, govern- ment proprietors may not entirely deny access for all First Amendment rights in their facilities. âThe Government, even when acting in its pro- prietary capacity, does not enjoy absolute freedom from First Amendment constraints, as does a pri- vate business, but its action is valid in these cir- cumstances unless it is unreasonable, or â¦arbitrary, capricious, or invidious.â20 When the Supreme Court first considered the nature of an airport terminal, it did not apply fo- rum analysis. In Board of Airport Commissioners of City of Los Angeles v. Jews for Jesus, Inc., the Court considered whether an airport proprietor could constitutionally adopt a resolution that closed the airport to all First Amendment activi- 15 See Cornelius, 473 U.S. at 806. 16 See id. at 809. 17 See id. at 808. 18 See id. at 806. 19 See Rosenberger v. Rector and Visitors of the Univ. of Va., 515 U.S. 819, 829, 115 S. Ct. 2510, 2516, 132 L. Ed. 2d 700 (1995) (a university that provided funding to print all student publications could not deny funding to a publication presented with a Christian editorial view- pointâthe government must respect the lawful boundaries that it has itself set). 20 See United States v. Kokinda, 497 U.S. 720, 725â 726, 110 S. Ct. 3115, 111 L. Ed. 2d 571 (1990) (deter- mining that a sidewalk served post office property and was a nonpublic forum). ties, whether by an individual or an entity.21 When striking down this resolution, the Court determined that forum analysis was unnecessary. It held âvirtually every individual who enters LAX [the Los Angeles International Airport] may be found to violate the resolutionâ¦we think it obvi- ous that such a ban cannot be justified even if LAX were a nonpublic forum because no conceiv- able governmental interest would justify such an absolute prohibition of speech.â22 The Court held that this total ban on expres- sive activity in an airport terminal was overly broad. The proprietor argued that the regulation was only intended to reach expressive activity that was unrelated to airport purposes and it would allow speech that was consistent with the airportâs operations, but the Court did not accept that justification. It noted that â[m]uch nondis- ruptive speechâsuch as the wearing of a T-shirt or button that contains a political messageâmay not be âairport related,â but is still protected speech even in a nonpublic forum.â23 All such speech would be banned under the challenged regulation, and the Court found that, regardless of the purpose of the ban, an airport proprietor could not constitutionally preclude all nondisrup- tive expression. The Court also found that the broad language of the prohibition was vague. âThe line between airport-related speech and nonairport-related speech is, at best, murky.â This claimed distinc- tion would give airport officials alone âthe power to decide in the first instance whether a given activity is airport related.â 24 A vague regulation raises a basic concern for arbitrary action, and a regulation determined to be vague is unconstitu- tional because if an official has discretion to apply the regulationâs criteria subjectively, the official can circumvent constitutional requirements through its application. This initial Supreme Court case established that some First Amendment access rights are fun- damental in an airport terminal regardless of its forum type. An airport proprietor cannot constitu- tionally impose a complete ban on nondisruptive 21 See Bd. of Airport Commârs of City of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 107 S. Ct. 2568, 96 L. Ed. 2d 500 (1987) (finding that a resolution banning âFirst Amendment activitiesâ in the terminal area was facially unconstitutional under the First Amendmentâs overbreadth doctrine and unconstitutionally vague). 22 See id. at 575. 23 See id. at 576. 24 See id.
7 expression in airport terminals, and the proprie- tor cannot sanction arbitrary restrictions. 3. Forum Analysis in Airport Terminals The Supreme Court applied forum analysis to airport terminals in 1992 in International Society for Krishna Consciousness, Inc. v. Lee, and it determined that the nature of an airport terminal is a nonpublic forum.25 A plurality of the Court reached that conclusion, and it also upheld pro- prietor regulations that banned solicitations for the immediate receipt of funds in the airportâs terminal buildings (including charitable sales of merchandise). Four justices disagreed, however, believing that the nonsecure areas of airport ter- minals should be a public forum and expressing various opinions under such an analysis. A plural- ity of the Court also rejected a portion of the pro- prietorâs regulation that banned leafleting in the terminals. The Court determined that such a ban could not be upheld even under a nonpublic forum test. The Courtâs opinion and Justice OâConnorâs concurrence expressed the Courtâs reasoning for the Lee decision.26 At the outset, the Court noted some basic First Amendment principles. It had previously determined that solicitation for the receipt of funds is a form of protected speech un- der the First Amendment.27 The government, however, need not permit all forms of speech on property that it owns and controls.28 When the 25 See Intâl Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 112 S. Ct. 2701, 120 L. Ed. 2d 541 (1992) (establishing that the nature of an airport termi- nal is a nonpublic forum). 26 Justice Rehnquist wrote the Courtâs opinion, joined by Justices White, Scalia, and Thomas. Justice OâConnor provided the swing vote in her concurrence. The Court has stated that âwhen no single rationale commands a majority, the holding of the Court may be viewed as the position taken by those Members who concurred in the judgment on the narrowest of grounds.â See City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 764 n.9, 108 S. Ct. 2138, 100 L. Ed.2d 771 (1998) (finding that a statute that gave a mayor unbridled discretion over whether to permit newsracks was unconstitutional). 27 See Lee, 505 U.S. at 677, citing Village of Schaum- burg v. Citizens for a Better Environment, 444 U.S. 620, 101 S. Ct. 2559, 69 L. Ed. 2d 298 (1981) (determin- ing that the solicitation of funds is protected by the First Amendment). 28 See id. at 678, citing U.S. Postal Service v. Council of Greenburgh Civic Assâns, 453 U.S. 114, 129, 101 S. Ct. 2676, 2685, 69 L. Ed. 2d 517 (1981) (upholding stat- ute prohibiting some uses of post office letterboxes âgovernment is acting as a proprietor, managing its internal operations, rather than acting as a lawmaker with the power to regulate or license, its action will not be subject to the heightened review to which its actions as a lawmaker may be subject.â29 In previous decisions the Court had also determined that this type of solicitation is disruptive and can be prohibited on government property that is dedicated to a particular pur- pose.30 Thus the Court noted that under its prece- dents, âthe extent to which the Government can control access depends on the nature of the rele- vant forum.â31 With that background, the Court then consid- ered the nature of an airport terminal and deter- mined it to be a nonpublic forum and not consis- tent with a public forum or a designated public forum. The Court observed that airport terminals were recent developments and that their principal purpose was not traditionally for the free exchange of ideas. Soliciting in these terminals was also a recent development, and proprietors had fought against that development rather than intentionally open the terminals for public dis- course. The Court noted that airport terminals are not comparable to other nodes of transporta- tion, and it rejected attempts to draw those com- parisons. Airport terminals demonstrated critical differences that the Court believed must be taken into account in a forum analysis, such as security requirements. Airports were also commercial enterprises that had to generate revenues and provide services attractive to the marketplace. The purpose of an airport terminal was to facili- tate air travel, not promote expression, and the buildings were planned and constructed for that purpose. In light of all of these factors, the Court determined that an airport terminal is not a pub- lic forum by tradition or purpose.32 After determining that airport terminals are a nonpublic forum, the Court then considered the applicable test to evaluate whether the proprie- where the statute was not geared toward the contents of the messages placed in the boxes). 29 See id. at 677, citing Kokinda, 497 U.S. at 725 (holding that the governmentâs proprietary discretion is not as great as that of a private business; valid govern- ment actions cannot be unreasonable or arbitrary, ca- pricious, or invidious under the circumstances). 30 See id. at 683. 31 See id., 505 U.S. at 678, citing Cornelius, 473 U.S. at 799â800 (even protected speech is not equally per- missible in all places and at all times). 32 See id. at 678â83.
8 torâs restrictions on speech were constitutional. The proprietor banned repetitive, face-to-face, nonprofit solicitations for the immediate receipt of funds in the airportâs terminals (whether solicited through sales or otherwise), and the Court deter- mined that this restriction was reasonable and viewpoint-neutral.33 These solicitations were dis- ruptive in general, as individuals must decide whether or not to contribute or alter their paths. Thus these solicitations could disrupt business by impeding the normal flow of traffic. This was âespecially so in an airport,â where travelers are often weighed down by âcumbersome baggageâ or may be âhurrying to catch a plane or to arrange ground transportation,â and where delays of even a few minutes can result in costly inconvenience to passengers.34 The Court also determined that soliciting to receive funds âpresents risks of duress that are an appropriate target of regulationâ due to vulner- able populations, the difficulty involved in avoid- ing solicitors, the potential for fraud, and tight schedules that make visitors âunlikely to stop and formally complain to airport authorities.â35 It also observed that these risks were difficult for the proprietor to monitor. The Court also noted that the proprietor had provided an alternative loca- tion by allowing solicitations on sidewalk areas that had good public access, and it observed that congestion was one of the greatest problems fac- ing this proprietorâs terminals (John F. Kennedy International Airport or JFK). The Court deter- mined that, under the circumstances, even the incremental effect of these risks would prove dis- ruptive, and face-to-face solicitation was incom- patible with the airportâs functioning. Thus it found that the proprietorâs ban on these solicita- tions was reasonable.36 Justice OâConnor con- curred in this reasoning, while adding that the terminal in question was also similar to a shop- ping mall. When evaluating the reasonableness of the regulations, she believed that the terminalâs relevant attributes included a deliberately created âmultipurpose environmentâ for air travel and commerce. She believed that all of this forumâs âspecial attributesâ were relevant to her analysis because the proprietorâs restrictions needed to be 33 See id. at 679. 34 See id. at 683â84. 35 See id. at 684. 36 See id. at 684â85. consistent with the ânature and function of the particular forum involved.â37 Justice OâConnorâs concurrence provided the Courtâs reasoning for its second, per curiam deci- sion, which struck down the proprietorâs ban on leafleting.38 She noted that âleafleting does not entail the same kinds of problems presented by face-to-face solicitation.â39 She reasoned that it did not involve the same level of disruption even in a congested facility, and that leafleting was not ânaturally incompatible with a large, multipur- pose forum.â40 She noted that the Court had con- sidered one multipurpose forum in the past, a military base, and had upheld a leafleting ban there because the government had shown that leafleting created a clear danger to military loy- alty, discipline, or morale. The Court had also up- held leafleting bans when the government had shown them to interfere with the mission of the post office or to jeopardize the success of a fund- raising campaign.41 In Lee, however, Justice OâConnor found that the proprietor had presented no independent justification for the leafleting ban. She thus rejected the ban, but noted that the pro- prietor could still promulgate properly drafted time, place, and manner regulations for leaflet- ing.42 Leeâs concurring and dissenting opinions illus- trate other perspectives on the issues that were before the Court. Justice Kennedyâs concurrence disagreed with the Courtâs use of forum analysis 37 See id. at 687â89 (OâConnor, J. concurring). Jus- tice OâConnor noted that restrictions are valid only if they are reasonable and not a pretense, but reasonable- ness âmust be assessed in light of the purpose of the forum and all the surrounding circumstances.â The âfo- rumâs special attributesâ are relevant because the âsig- nificance of the governmental interest must be assessed in light of the characteristic nature and function of the particular forum involved.â See id. citing Cornelius, 473 U.S. at 809; Kokinda, 497 U.S. at 732. 38 See Lee v. Intâl Soc. for Krishna Consciousness, Inc., 505 U.S. 830, 112 S. Ct. 2709, 120 L. Ed. 2d 669 (1992) (per curiam decision). 39 See Lee, 505 U.S. at 690. 40 See id. at 690. 41 See id. at 691â92 citing Greer v. Spock, 424 U.S. 828, 96 S. Ct. 1211, 47 L. Ed. 2d 505 (1976) (military base forum); Kokinda, 497 U.S. at 731â32 (post office forum); Cornelius, 473 U.S. at 810 (fundraising forum). 42 See id. at 691â92 (noting that time, place, and manner regulations must be content-neutral, narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communica- tion).
9 in general because he believed that framework essentially allowed the government to restrict speech on its property just by articulating a non- speech purpose for the property. He believed that government property should always be evaluated objectively based on its actual physical character- istics and uses, and he thought that the proprietor in Lee had not shown any real impediment to the use of a time, place, and manner test. He argued that the nonsecure areas of the airport should be treated as a public forum, and he believed that the proprietorâs ban on solicitations for the imme- diate receipt of funds would comply with the strict scrutiny test used in such a forum except for the proprietorâs ban on charitable sales, which he believed was not narrowly tailored. He also agreed that the proprietorâs ban on leafleting could not be upheld under any circumstances. In general, Justice Kennedyâs analysis expressed strong support for allowing public expression, and it closely examined the wording of the regulation and what that wording expressed about the pro- prietorâs justifications. His concurrence did not discuss the proprietorâs congestion concerns.43 Justice Souter (joined by Justices Blackmun and Stevens) dissented from the Courtâs decision that an airport terminal is a nonpublic forum. He agreed with Justice Kennedy that the nonsecure areas of an airport qualify as a public forum, and he believed that the Courtâs analysis should not rely on traditional locations but on âa conclusion that the property is no different in principle from such [traditional] examples,â which constitute âarchetypesâ¦. [Thus] the enquiry may and must relate to the particular property at issue and not necessarily to the precise classification of the property.â44 He believed â[t]he crucial question is whether the manner of expression is basically incompatible with the normal activity of a par- ticular place at a particular time.â45 Justice Souter thus dissented from the Courtâs decision to uphold the proprietorâs solicitation ban. He noted that â[p]recision of regulation must be the touchstone,â and he did not find the pro- prietorâs ban to be narrowly tailored under his view that airport terminals should be a public fo- rum.46 He argued that charitable solicitations are protected as the dissemination of ideas and that, although government regulations could be justi- fied as a protection against coercion and fraud, 43 See id. at 694â709. 44 See id. at 710â11 (citations omitted). 45 See id. at 711 (citations omitted). 46 See id. at 714 (citation omitted). the proprietor had introduced virtually no evi- dence of such conduct.47 He also noted that other, less intrusive methods were available to protect against fraud, such as financial disclosures and prohibitions against fraud itself. He did not be- lieve that the proprietor had created ample alter- natives to allow this expression, but was instead shutting off âa uniquely powerful avenue of com- munication.â48 Although the Court was divided, the plurality opinion in Lee established airport terminals as nonpublic forums and demonstrated how to apply the nonpublic forum test in these facilities. It thus resolved issues that had been unsettled in the lower courts and created clarity to help guide the practices of airport proprietors. A lower court case from that time period illustrates Leeâs effect. In International Society for Krishna Consciousness of Missouri, Inc. v. City of St. Louis, an airport pro- prietorâs regulations had been challenged under prior law, and the proprietor had entered a set- tlement agreement and consent decree that al- lowed speakers to distribute literature and solicit donations generally at the airport.49 After Lee, the proprietor created new regulations that required speakers to obtain a written permit, banned so- licitations and sales in the terminals, confined speaker activities to a few booths at specified loca- tions, and limited hours of operation. The proprie- tor then sought to dissolve or modify the consent decree, and the lower court held that some of the proprietorâs restrictions violated the First Amendment because the airport was a hub airport and the new regulations significantly limited speakersâ access to airport visitors. The state appellate court, however, found that âLee is di- rectly dispositive of this issueâ and that the pro- prietorâs restrictions were reasonable.50 Speakers could still reach much of the public because of the proprietorâs speech booths, which were ânot out of the way or hiddenâ but were âwhere the traffic would flow right by them.â51 Lee thus established the nonpublic forum test as the proper test to evaluate whether a request for First Amendment access is compatible with the unique functions and purposes of a given air- 47 See id. at 713â14. 48 See id. at 715. 49 See Intâl Soc. for Krishna Consciousness of Mis- souri, Inc. v. City of St. Louis, 890 S.W.2d 660 (Mo. Ct. App. 1995) (determining under Lee that the proprietorâs post-Lee regulations were reasonable). 50 See id. at 663. 51 See id. at 664.
10 port. It created clarity that has allowed airport proprietors to more effectively manage their facili- ties. That clarity has also guided lower courts when upholding many proprietor restrictions on speech as reasonable measures to address the publicâs needs at a given facility. 4. First Amendment Zones or Booths Prior to Lee, the Supreme Court determined that government could constitutionally restrict speech to specific locations on public property. In Heffron v. International Society of Krishna Con- sciousness, Inc., a case considering fairground property, the Court held that the state could con- fine individuals to fixed locations on the property to sell or distribute any merchandise, including printed or written material.52 It noted that this rule helped maintain the orderly movement of the crowd in the fairgroundâs congested environ- ment and that the rule was administered in a neutral way. The Court thus held that the stateâs interests in requiring these booth restrictions sat- isfied time, place, and manner requirements. The Supreme Court also implicitly upheld a location restriction for soliciting funds in Lee, where the proprietor had confined these activities to outdoor locations. In post-Lee cases, lower courts have considered and upheld airport practices that con- fine First Amendment activities to specific zones or booths. For example, in ISKCON Miami, Inc. v. Metro- politan Dade County, the Eleventh Circuit consid- ered a challenge to eight âFirst Amendment zonesâ for distributing free literature at the Mi- ami International Airport.53 The aggrieved speaker argued that these eight locations were insufficient and inadequate. Citing Lee and Hef- fron (the fairground case), the proprietor, how- ever, argued that these zones were valid time, place, and manner restrictions and that the speaker had not shown them to be insufficient under the circumstances at the airport. The court agreed with the airport proprietor. The speaker also challenged the proprietorâs regulations as impermissibly granting unfettered discretion to 52 See Heffron v. Intâl Society of Krishna Conscious- ness, Inc., 452 U.S. 640, 654, 101 S. Ct. 2559, 69 L. Ed. 2d 298 (1981) (upholding a regulation that restricted the sale or distribution of literature at the fairgrounds to certain fixed locations). 53 See ISKCON Miami, Inc. v. Metro. Dade County, 147 F.3d 1282 (11th Cir. 1998) (determining that the proprietorâs solicitations ban was reasonable, and that the airport director could select areas where speech could occur). the airport director to select the zone locations. The court again upheld the proprietorâs practice but noted that âdiscretion to set such restrictions cannot be so broad that it âbecom[es] a means of suppressing a particular point of view.ââ These regulations were constitutional because they only gave the director the ability to restrict âthe areas in which distribution activities may take place,â not the ability to âexclude certain persons from those areas.â54 In Stanton v. Fort WayneâAllen County, an Indiana federal district court considered whether by designating âfree speech zonesâ a proprietor had created a designated public forum in those zones that required greater access for expres- sion.55 The courts determine whether government has created a designated public forum by examin- ing the âpolicy and practice of the government to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public forumâ¦[as well as] the nature of the prop- erty and its compatibility with expressive activ- ity.â56 The court noted that designating these air- port speech zones was an âattempt to restrict public discourseâ and was âinconsistent with an intent to designate a public forum.â57 The court also considered the nature of the airport property, which it held was âconsistent with an intent to limit public discourse.â58 It noted that the proprie- tor needed to operate a commercial enterprise that provided attractive services to customers who desired quick, efficient, and safe access to air travel, and that using the airport for public as- sembly and speech was not compatible with that purpose. The court thus held the airport facility to be a nonpublic forum. The court then applied the nonpublic forum test and examined whether the proprietorâs loca- tion restrictions were reasonable. First it noted it is âblack-letter law that, when the government permits speech on government property that is a nonpublic forum, it can exclude speakers on the basis of their subject matter, so long as the distinctions drawn are viewpoint neutral and reasonable in light of the purpose served by the 54 See id. at 1291. 55 See Stanton v. Fort Wayne-Allen County, 834 F. Supp. 2d 865 (N.D. Ind. 2011) (considering a speakerâs request for greater access to conduct leafleting activities that protested against airport security measures). 56 See id. at 872 citing Cornelius, 473 U.S. at 802. 57 See id. 58 See id.
11 forum.â59 The court then determined that the proprietorâs location restrictions had to be âreasonably related to maintaining the multipur- pose environment that the Port Authority had deliberately created.â60 Despite this multipurpose environment, the court determined that the air- portâs primary purpose was âto facilitate commer- cial air travel.â61 It noted that, although the pro- prietor offered a variety of amenities in its terminal, âmost are consistent with the purpose of the Airport to facilitate air travel and to accom- modate customers while they wait for flights.â The court also examined the proprietorâs statements of purpose and intent contained in the regulation, which stated that speech restrictions were in- tended to ensure security, operational efficiency, and aesthetics; ensure adequate nearby police presence to protect speakers; protect airport pa- trons from harassment, intimidation, and unlaw- ful conduct; ensure the free and orderly flow of traffic; reduce congestion; and preserve desirable aesthetic qualities and features in the terminals. After reviewing all of these purposes for the proprietorâs property, the court then considered whether the proprietorâs speech locations were reasonable restrictions to preserve the forum for its intended purposes. The aggrieved speaker argued that the proprietor had unreasonably con- fined him to âsmall out-of-the-way locations,â but the court noted that a nonpublic forum does not need to provide unrestricted access based on a speakerâs unhappiness.62 The court also deter- mined that these locations were ânot out of sight or difficult to reach. They are adjacent to well- traveled areas.â63 The speaker claimed that better locations would not be disruptive, but the court noted that the collective impact of speakers in other locations could have that effect. It also noted that under Supreme Court precedent, a pro- prietor âneed not wait until havoc is wreaked to restrict access to a nonpublic forum.â64 The speaker argued that most travelers did not ap- proach him, but the court found there was no evi- dence that the locations themselves were insuffi- cient or unreasonable. Although the speaker disagreed with the pro- prietorâs rationale for selecting speech areas, the court determined that the speaker had to demon- 59 See id. 60 See id. at 874. 61 See id. at 875. 62 See id. at 873, citing Cornelius, 473 U.S. at 808. 63 See id. at 877. 64 See id. at 877, citing Cornelius, 473 U.S. at 810. strate more than just disagreement. The speaker needed to establish that the location restrictions did not preserve the property for the uses to which it had been put, and the speaker had failed to do so. The court thus held that the speaker had not shown that the proprietor intended to create a designated public forum, and it held that under the nonpublic forum test, the proprietorâs restric- tions were reasonable.65 5. Locations Beyond Terminals Prior to Lee, the Supreme Court had held that the government could restrict access to a sidewalk when the sidewalk was part of a proprietary prop- erty operated by the government. In United States v. Kokinda, a case involving the post office, the Court noted that such sidewalks do not have the characteristics of public thoroughfares, where people congregate to conduct their daily affairs. They are constructed solely to provide access to persons engaged in the business that the govern- ment operates on its proprietary property.66 A number of courts have applied this analysis to airport sidewalks and other locations, such as parking garages. The courts have considered these areas to be property dedicated to supporting the purpose served by the airport terminals and thus subject to the nonpublic forum test. Under this test, the courts examine the specific condi- tions at a given airport to determine whether a proprietorâs restrictions in these locations are rea- sonable and thus constitutional. For example, in Metropolitan Dade County, the Eleventh Circuit considered a proprietorâs ban on nonprofit solicitations and sales that included sidewalk and parking lot areas outside the termi- nal buildings. The court first determined that Leeâs nonpublic forum decision âwas not limited to the particular airports at issue [in Lee], but con- stituted a categorical determination about airport terminals generally.â67 Consistent with that deci- sion, the Eleventh Circuit then determined that âthe sidewalks and parking lots adjacent to the Miami airport terminals are nonpublic fora; the sidewalks and parking lots are intended by the County to be used for air travel-related purposes, ânot to facilitate the daily commerce and life of the neighborhood or city.ââ68 65 See id. The speaker did not challenge viewpoint neutrality, the second requirement under the nonpublic forum test. 66 See Kokinda, 497 U.S. at 727. 67 See Metro. Dade County, 147 F.3d at 1288. 68 See id., quoting Kokinda, 497 U.S. at 735.
12 The court then applied the nonpublic forum test. In Lee, the Supreme Court had cited side- walk speech locations as one of the factors that had led the Court to uphold that airportâs ban on solicitations in the terminals. The Eleventh Cir- cuit noted, however, that â[t]he presence of nearby physical space available for expressive activityâ¦is merely one factor among many in assessing the reasonableness of speech restrictions in nonpublic fora.â69 It noted that the Miami International Air- portâs sidewalks were ânarrow and extremely con- gested areas.â It determined that these areas had to support many confusing transportation activi- ties, and â[d]ue to the layout of the Airport, even a brief delay of persons in these areas can lead to extreme congestion and danger of an accident.â The court thus held that â[i]t is certainly reason- able for the County to conclude that solicitation and sales of literature would be inconsistent with the particularly hectic nature of the airport side- walks at MIA.â70 In addition to sidewalks and parking lots, other facilities at an airport may also constitute a forum for First Amendment analysis. The relevant fo- rum for a First Amendment analysis is âdefined in terms of the access sought by the speaker,â and there can be various âperimeters of a forum within the confines of government property.â71 Very specific physical location on airport property may constitute a forum, such as an advertising diorama or display.72 Some courts have also found 69 See id. at 1289. 70 See id. See also Fort Wayne-Allen County, 834 F. Supp. 2d at 873 (determining âthe sidewalks adjacent to the FWA terminal, which are under the control of the Authority and subject to TSA regulations, are nonpublic fora. They are intended by the Authority to be used for air travel related purposes, ânot to facilitate the daily commerce and life of the neighborhood or cityââ (citation omitted)). 71 See Cornelius, 473 U.S. at 801â03 (determining that the relevant forum was not the federal workplace but a charity fund drive, a more limited channel of communication within that workplace). See also New England Reg'l Council of Carpenters v. Kinton, 284 F.3d 9, 22 (1st Cir. 2002) (considering two distinct roadway areas owned by Massport as separate forums); Hawkins v. City of Denver, 170 F.3d 1281, 1287 (10th Cir. 1999) (considering as a forum a plaza that func- tioned as an entrance and a gathering area for a gov- ernment-owned performing arts center); Chicago Acorn v. Metro. Pier and Exposition Auth., 150 F.3d 695, 698 (7th Cir. 1998) (considering distinct areas of Chicagoâs Navy Pier as separate forums). 72 See Section C.3, infra (discussing advertising). that placing a donation box on government prop- erty can create a forum for nonprofit speech.73 A forum can also be intangible, such as access to the Internet.74 The airspace can also constitute a forum. In Center for Bio-Ethical Reform, Inc. v. City and County of Honolulu, the Ninth Circuit considered whether a city could deny a speaker access to the airspace under regulations that prohibited aerial towing operations.75 After finding that the Cityâs regulation was not preempted by federal law, the court reviewed the âhistory, purpose, and physical characteristics of the airspace at issueâ to deter- mine its forum type.76 It found that the airspace was not a place immemorially held in trust for public assembly and communication; that aerial towing was a modern creation; that historically airspace had been highly restricted and entering it was prohibitive and required special equipment; and that airspace was not just an extension of the ground below. In this case, the City had never sanctioned expressive activity in that forum, and the forum was not naturally compatible with such activity.77 Based on these characteristics, the Ninth Circuit held that the airspace was a non- public forum. It then determined that under the applicable circumstances, the Cityâs towing ban was a reasonable measure to preserve aesthetics and promote safety in a location where visual beauty was âof paramount importanceâ to the community.78 73 See Linc-Drop, Inc. v. City of Lincoln, 996 F. Supp. 2d 845, 854 (D. Neb. 2014) (a city argued that donation boxes on its property should be regulated as commercial speech, like billboards, but the court determined that donation boxes were âsilent solicitors and advocates for particular charitable causesâ and âperhaps persuasive speech seeking support for particular causes or for par- ticular views on economic, political, or social issuesâ), citing Natâl Federation of the Blind of Texas, Inc. v. Abbott, 647 F.3d 202, 213 (5th Cir. 2011) (determining that donation bin solicitations were âcharacteristically intertwined with informative and perhaps persuasive speech for particular causes or for particular views on economic, political, or social issuesâ). 74 See Section D.6, infra (discussing the Internet). 75 See Center for Bio-Ethical Reform, Inc. v. City and County of Honolulu, 455 F.2d 910 (9th Cir. 2006) (up- holding an aerial towing ban under the First Amend- ment). 76 See id. at 919. 77 See id. at 919â20. 78 See id. at 921â23 (also determining that a cityâs aerial towing ban was viewpoint neutral, since the or-
13 Leeâs analysis supplies the basis for making decisions about First Amendment access at indi- vidual airports. The courts rely on Leeâs determi- nation that airport terminals by nature are a non- public forum and address any forum-specific challenges to a forum type. They then look at a particular airportâs circumstances to determine whether that proprietorâs restrictions on speech in the relevant forum are reasonable, and Lee pro- vides guidance on how to apply the nonpublic forum test. The courts adapt that analysis to address differences within a given airport forum. 6. Different Circumstances Can Create Different Outcomes An airport terminal is inherently a nonpublic forum as determined under Lee, but the courts use each airport forumâs individual characteristics to determine whether speech restrictions in that forum are reasonable. Those individual character- istics thus determine the outcome for a given air- port and may distinguish one airport case from another. For example, in Stanton v. Fort WayneâAllen County, the court noted that the Fort Wayne International Airport (FWA) was a multipurpose environment, as Justice OâConnor had concluded in Lee. The court, however, determined that unlike the airport in Lee (JFK), FWAâs proprietor had not âcreated a huge complex open to travelers and nontravelers alikeâ when creating the air- portâs multipurpose environment. JFK was like a shopping mall because it promoted a âwide range of activitiesâ¦[that were] no more directly related to facilitating air travel than are the types of activities [requested by the plaintiffs].â FWAâs proprietor, however, had not added any features and attractions to its facilities that would make it a destination for those who do not otherwise have a reason to be at the Airport for its pri- mary and dedicated purpose. Instead, most of the ameni- ties existing at FWA can only be seen as complementing its primary purpose of serving air passengers.79 The court also concluded that no evidence sug- gested the general public frequented FWA to use its amenities. For example, FWA was not located near other commercially developed areas of the City, patrons had to use the airportâs paid park- ing, and security concerns were pervasive.80 Thus, while both FWA and JFK were multipurpose dinance limited signage in the airspace to aircraft branding information). 79 See id. at 875. 80 See id. at 869. environments, the court found that the circum- stances at FWA differed from those at JFK and demonstrated that the proprietor had preserved its property for air travel purposes. The court then found that FWAâs restrictions were reason- able to serve the purposes to which the property was dedicated. Small airports may operate under significantly different circumstances than those considered in Lee. Courts thus may determine that reasonable restrictions at a small airport differ from those that may be reasonable at a larger, more diverse facility. For example, courts considering large air- ports normally hold that it is not reasonable for a proprietor to impose a total ban on placing news- racks in the airportâs terminals. Large airport proprietors typically seek to justify such a ban based on concerns for operational efficiency, safety, security, aesthetics, and revenue genera- tion. The courts normally find that these concerns are legitimate but that they are insufficient to justify a large airportâs total ban on newsracks. In Jacobsen v. City of Rapid City, South Dakota, the Eighth Circuit considered a proprie- torâs total ban on newsracks at a small airport that had just constructed a new terminal build- ing.81 The Eighth Circuit was unpersuaded by ar- guments concerning efficiency, safety, security, and aesthetics, but this smaller airport had an additional circumstance that larger facilities lacked. The proprietor had banned newsracks to promote its ability to increase revenues from the airportâs gift shop concession that were needed to pay for the new terminalâs debt. The court agreed that selling newspapers outside the gift shop might make the gift shop concession less valuable and âreduce the Cityâs leverage in bargaining for terms such as minimum annual concession fees and pro rata utility charges.â82 The court found that while larger airports may use different strategies to maximize revenues, this airportâs revenue interests would justify banning news- racks and requiring sales through the gift shop where the shop made newspapers generally avail- able and the plaintiff had not produced evidence of adverse impacts. The policy also needed to 81 See Jacobsen v. City of Rapid City, S.D., 128 F.3d 660 (1997) (considering a challenge raised by a small publisher seeking access to the Rapid City Regional Airport terminal). 82 See id. at 663â64.
14 account for impacts to low-budget, controversial newspapers.83 An airportâs own changed circumstances may also serve as a basis for examining whether different speech restrictions are reasonable. For example, in Springfield v. San Diego Unified Port District, a federal district court in San Diego con- sidered whether an airportâs construction activi- ties were changed circumstances that justified a new total ban on leafleting in the terminal.84 The proprietor justified the ban by arguing that due to the construction, the terminal was no longer a multipurpose forum. The court believed, however, that the proprietor could not justify the ban by simply claiming that it would mitigate congestion and assist with construction efforts. The court also found that in this case, outdoor speech loca- tions would not provide adequate alternative ave- nues of communication. The court acknowledged that the ongoing terminal redevelopment program might justify restrictions in some areas, but it held that the terminal remained a multipurpose forum for First Amendment analysis and that the proprietor could not completely ban speech activ- ity.85 The court found that, if anything, the cir- cumstances of this ban were âeven less constitu- tionally acceptableâ than the leafleting ban considered in Lee, which had only prohibited âcon- tinuous or repetitiveâ leafleting as opposed to banning the distribution of âany literature, pam- phlets or other printed materials.â86 Although the court rejected the proprietorâs ban, it acknowl- edged that the redevelopment program was a new consideration that could support some restric- tions. 7. Post-Lee Changes in Security Lee was decided before the terrorist attacks of September 11, 2001, and some cases since Lee have noted that increased security needs can fur- ther justify First Amendment restrictions in air- port facilities. The courts consider the purpose of 83 See id. at 664â65 (dissent noting that this decision placed the burden of proof on the publisher with respect to the proprietorâs policy when Supreme Court prece- dent placed the burden on the proprietor). 84 See Springfield v. San Diego Unified Port Dist., 950 F. Supp. 1482, 1486â87 (S.D. Cal. 1996) (striking a total ban that the proprietor had adopted based on a terminal redevelopment program, and determining that some of the proprietorâs regulatory language was un- constitutionally vague and overbroad and discriminated based on viewpoint). 85 See id. at 1486â87. 86 See id. at 1487. a forum when determining whether restrictions there are reasonable, and modern security demands underscore that airport proprietors have preserved their property to facilitate safe air travel rather than accommodate public discourse. These security demands impose many more restrictions on airport facilities than they did when Lee was decided. For example, nontravelers can no longer enter airport concourses, potential security threats are more diverse, and few termi- nal facilities were originally designed with the space required to accommodate modern security screening activities. Some courts have specifically noted the effect of these developments when con- sidering proprietor speech policies that preserve the forum for safe air travel. For example, in Jews for Jesus, Inc. v. Port of Portland, Oregon, an Oregon federal district court found that âin the post-September 11, 2001 world, air travel is more encumbered than it was when Lee was decided, providing airports with an even stronger interest in regulating non-travel related interferences with passengers.â87 The court noted these new security demands when upholding the proprietorâs permit requirements, which required speakers to submit an application in advance and disclose the identity of the speakers who would be present. The court determined that these requirements were valid time, place, and manner restrictions that met âsignificant governmental interests in the need to ensure passenger safety, traffic flow, and airport security.â88 On appeal, the Ninth Circuit affirmed and noted that permitting requirements âwhich, by definition, must involve some identifying information, have been held con- stitutional by the Supreme Court.â89 As security risks evolve, and as airports continue to respond with preventive measures that impact passengers and airport staffing, technologies, and floor space, security demands may become even more promi- nent when evaluating the reasonableness of air- port speech regulations. 87 See Jews for Jesus, Inc. v. Port of Portland, Or., CV04695HU, 2005 WL 1109698 (D. Or. May 5, 2005) affâd sub nom. Jews for Jesus, Inc. v. Port of Portland, 172 F. Appx. 760 (9th Cir. 2006) (both opinions uphold- ing the proprietorâs permit requirements). 88 See id. at 9. 89 See Port of Portland, 172 F. Appx. at 765, citing Thomas v. Chicago Park Dist., 534 U.S. 316, 122 S. Ct. 775, 151 L. Ed. 2d 783 (2001) (upholding a cityâs speech permit requirements for use of a municipal park).
15 8. Props that Accompany Expression Typically the courts have not found that First Amendment protections for expression extend to props that speakers may wish to use while pursu- ing that expression. They have routinely upheld restrictions that prevent speakers from placing tables, chairs, or other structures on government property to facilitate their expressive activities. Courts normally do not place constitutional value on objects that accompany speech except in infre- quent cases of âsymbolic speech,â where an act involving the object is determined to communicate a generally understood message without the use of words (such as flag burning). For example, in the Port of Portland cases dis- cussed in the previous section, the courts upheld the proprietorâs regulations prohibiting speakers from bringing tables and chairs to the airport (the airport provided them).90 In another example, a district court in Nevada rejected a speakerâs efforts to add a crÃ¨che to the airport proprietorâs holiday display, based in part on an airport regu- lation that prohibited persons from placing objects on airport property.91 Normally, even if speech is protected, accompanying objects are not. B. Viewpoint Neutrality Any permissible constraint on speech in a non- public forum must be viewpoint neutral, or, in other words, must not regulate based on the speakerâs point of view on a topic that is otherwise permissible in the forum. The Supreme Court has stated that when a proprietor is legitimately âact- ing within its power to preserve the limits it has setâ for a limited forum, this Court has observed a distinction between, on the one hand, content discriminationâi.e., discrimination against speech because of its subject matterâwhich may be per- missible if it preserves the limited forumâs purposes, and, 90 See Port of Portland, Or., 2005 WL 1109698, at 15. 91 See Grutzmacher v. County of Clark, 33 F. Supp. 2d 896 (D. Nev. 1999) (upholding the proprietorâs re- striction on placing any âtable, chair, mechanical de- vice, or other structureâ at the airport). See also Am. Civil Liberties Union of Nevada v. City of Las Vegas, 13 F. Supp. 2d 1064 (D. Nev. 1998) (determining that the placement of tables, racks, chairs, and other similar structures on government property (in this case, prop- erty used for a mall) was not conduct commonly associ- ated with expression); Intâl Caucus of Labor Comms. v. City of Chicago, 816 F.2d 337 (1987) (in an early case that examined airport property as a public forum, up- holding a regulation that prohibited the placement of tables and other structures as a valid time, place, and manner restriction). on the other hand, viewpoint discriminationâi.e., dis- crimination because of the speakerâs specific motivating ideology, opinion, or perspectiveâwhich is presumed to be impermissible when directed against speech otherwise within the forumâs limitations.92 Thus, proprietors can restrict topics of speech that are not compatible with the limitations of a non- public forum, but they must allow all points of view on topics that are permissible within the fo- rumâs limitations. Viewpoint discrimination denies access âsolely to suppress the point of view [that the speaker]â¦espouses on an otherwise includible subject,â and thus the government makes distinc- tions based on the contents of a message.93 For example, the Supreme Court determined that a school impermissibly discriminated based on viewpoint when it made funding available to print all student publications, but then refused to fund a publication that was presented from a religious editorial viewpoint.94 Where the school had de- cided to fund all student publications, it could not exclude one because of the viewpoint of its mes- sage. Similarly, the Supreme Court found in an- other case that a state law could not ban all pick- eting near a school except for labor picketing. The state prohibited picketing and allowing an excep- tion for labor messages discriminated against messages that were excluded.95 The Supreme Court has determined that â[w]hen the government targets not subject mat- ter, but particular views taken by speakers on a subject, the violation of the First Amendment is 92 See Rosenberger, 515 U.S. at 829â30 (where a uni- versityâs policy was to fund printing for all student pub- lications, it could not exclude a publication with a Christian viewpoint). 93 See Cornelius, 473 U.S. at 806. 94 See Rosenberger, 515 U.S. at 829; Lambâs Chapel v. Center Moriches School Dist., 508 U.S. 384, 113 S. Ct. 2141, 124 L. Ed. 2d 352 (1993) (where a school district permitted the public to use its buildings to discuss child-rearing topics, it violated First Amendment rights by denying a church groupâs request for use to discuss that topic; allowing such access would not have been an establishment of religion); Springfield, 950 F. Supp. at 1488 (determining that an airport ordinance singled out religious viewpoints for discrimination by using the term âproselytizingâ because the term was undefined, and despite the proprietorâs interpretation of that term, it was generally understood to refer to religious advo- cacy). 95 See Police Depât of City of Chicago v. Mosley, 408 U.S. 92, 92 S. Ct. 2286, 33 L. Ed. 2d 212 (1972) (holding that a state law impermissibly distinguished between peaceful labor picketing and other peaceful picketing).
16 all the more blatantâ¦. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restric- tion.â96 A speech restriction must be âjustified without reference to the content of the regulated speechâ; in other words, restrictions must be justi- fied based on the purposes and limitations of the forum.97 When speech regulations consider the contents of a message, they are âpresumptively unconstitutionalâ and subject to strict scrutiny.98 The Supreme Court has recognized a few limited areas where the government can regulate based on the contents of a message, such as the use of âfighting wordsâ in a message, but modern deci- sions have tended to limit the scope of those areas.99 C. Commercial Speech and Commercial Activity 1. Commercial Speech Standards Commercial activity creates different First Amendment concerns. The courts first determine what constitutes âcommercial speech.â A message 96 See Rosenberger, 515 U.S. at 829. 97 See Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989) (deter- mining that a noise regulation applied to the loudness of a rock band, not the content of its message). 98 See R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992) (where an or- dinance prohibited bias-motivated disorderly conduct based in part on certain expressive conduct that the state supreme court had interpreted as unprotected speech (such as âfighting wordsâ), the Supreme Court found that the ordinance was facially unconstitutional as viewpoint discrimination because it imposed special prohibitions on speakers who expressed views on the disfavored subjects of race, color, creed, religion, or gender while permitting other abusive expression); Ri- ley v. Natâl Fed. of the Blind of N.C., Inc., 487 U.S. 781, 108 S. Ct. 2667, 101 L. Ed. 2d 669 (1988) (determining that a stateâs charitable solicitations statute was uncon- stitutional in part because it compelled fund raisers to make certain disclosures without sufficient state justifi- cation, and compelled speech (and compelled silence) constitute a content-based regulation of speech that is subject to strict scrutiny). 99 See R.A.V., 505 U.S. at 382â83. See also Bose Corp. v. Consumers Credit Union of United States, 466 U.S. 485, 104 S. Ct. 1946, 80 L. Ed. 2d 502 (1984) (determin- ing that appellate courts can scrutinize findings that speech is unprotected, such as fighting words, obscen- ity, incitement to riot, or libel, and may independently examine the record concerning those findings). is commercial speech if it is an âexpression related solely to the economic interests of the speaker and its audience.â100 This speech âproposes a commer- cial transaction.â101 A message remains commer- cial speech even if it blends expression related to the speakerâs economic interests with some mat- ters that are more ideological or that touch on public concern.102 Historically, the Supreme Court gave little weight to claimed constitutional violations for commercial speech. In Central Hudson Gas & Elec. Corp. v. Public Service Commission of New York, however, the Court determined that the Constitution protects commercial speech from âunwarranted governmental regulationâ and pro- hibits government from singling out and prevent- ing this type of speech.103 Although the Constitu- tion provides less protection for this type of speech than for noncommercial messages,104 com- mercial speech receives this protection as long as it âconcern[s] lawful activity and [is] not â¦misleading.â105 The Supreme Court applies less restrictive tests to determine the constitutional validity of commercial speech. The Courtâs traditional test for evaluating a commercial speech regulation, known as the Central Hudson test, applies four factors: 1) the commercial speech must concern lawful activity and not be misleading; 2) the as- serted governmental interest must be substantial; 3) the regulation must directly advance the as- serted governmental interest; and 4) the regula- 100 See Central Hudson Gas & Elec. Corp. v. Pub. Service Commân of N.Y., 447 U.S. 557, 561, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980) (determining that a stateâs ban on a public utilityâs advertising was more extensive than necessary to further the stateâs interests and violated the First and Fourteenth Amendments). 101 See Va. Bd. of Pharmacy v. Va. Citizens Con- sumer Council, Inc., 425 U.S. 748, 771 n.24, 96 S.Ct. 1817, 48 L. Ed. 2d 346 (1976) (determining that a Vir- ginia statute that prohibited advertising drug prices unconstitutionally singled out the content of speech and prevented its dissemination, although the context of commercial speech justified less protection). 102 See Board of Trustees of State Univ. of N.Y. v. Fox,492 U.S. 469, 109 S. Ct. 3028, 106 L. Ed. 2d 388 (1989) (determining that home economics presentations at Tupperware parties involved sales of household goods and did not convert these events into educational speech rather than commercial speech). 103 See Central Hudson, 447 U.S. at 561. 104 See Virginia Bd. of Pharmacy, 425 U.S. at 771, n.24. 105 See Central Hudson, 447 U.S. at 566.
17 tion must not be more extensive than is necessary to serve that interest.106 In an airport context, the courts typically apply the Central Hudson test when a nonproprietor government entity enacts a regulation over commercial speech that applies to commercial activities at the airport (and perhaps elsewhere). For example, in Sobel v. Hertz Corporation, a Nevada federal district court considered a class action brought against a car rental company that separately charged various fees, including an air- port âconcession recovery fee.â107 The plaintiff claimed that the company had quoted a total charge upon reserving the car and then separately disclosed a concession recovery fee upon obtaining the car, and that this resulted in a surcharge that violated a Nevada statute interpreted as prohibit- ing an unbundling of the charge. The company argued that if the statute prohibited a separate disclosure of the fee, it would violate the com- panyâs First Amendment and state constitutional rights as an unwarranted governmental regula- tion of commercial speech. The court determined that the four-part Central Hudson test applied. It assumed that the speech was âonly potentially misleadingâ; that the state had a âsubstantial interest in protecting consumers from misleading advertisingâ; that the statute ensured companies could not âdeceive short-term lessees into believ- ing they are required to pay additional chargesâ that were really operating costs; and that the statute was a âreasonable fit between the legisla- tureâs ends and the means chosen to accomplish those ends.â It thus found no federal constitu- tional violation.108 Other courts have similarly applied the Central Hudson test when considering speech regulations imposed by nonproprietors.109 Where an airport proprietor is acting to man- age its own property, however, the courts gener- ally do not apply the Central Hudson test. In- stead, they view the proprietor to be exercising commercial powers as a market participant, and 106 See id. 107 See Sobel v. Hertz Corp., 698 F. Supp. 2d 1218 (D. Nev. 2010) (considering Nevada statute). 108 See id. at 1229â30. 109 See, e.g., State of Kansas v. United States, 797 F. Supp. 1042, 1053 (D.D.C. 1992), affâd sub nom State of Kan. v. United States, 16 F.3d 436 (D.C. Cir. 1994) (us- ing the Central Hudson test to consider whether the Wright Amendment impermissibly limited commercial speech); Cramer v. Skinner, 931 F.2d 1020, 1033 (5th Cir. 1991) (also applying the Central Hudson test to consider the Wright Amendment). they analyze the proprietorâs restrictions on com- mercial speech under the nonpublic forum frame- work established in Lee. For example, in Capital Leasing of Ohio, Inc. v. Columbus Municipal Air- port Authority, an Ohio federal district court con- sidered whether an airport proprietor could con- tractually restrict what language a car rental company could use on its invoices to describe a separately stated airport fee.110 The company argued that this contractual restriction violated its commercial speech rights under Central Hud- son. It also argued that making this restriction a condition to entering a contract violated the âun- constitutional conditionsâ doctrine, which prohib- its the government from denying a benefit to a person on a basis that âinfringes his constitution- ally protectedâ¦freedom of speech even if he has no entitlement to that benefit.â111 The proprietor argued that the First Amendment had no applica- tion to the case, and that the company could make a business decision to accept the limitation or forego being an onsite concessionaire. But the court did not agree. The court determined that this case involved âthe intersection between government regulation of commercial speech and the regulation of speech on government-owned property,â and that âthe proper standard to be applied in such situations is the reasonableness standard applied to the gov- ernment-owned airport property in [Lee].â112 It noted that the outcome in Lee âdid not turn on the nature of the speech involvedâ but âon the fact that the restriction by the government agency dealt with the government agencyâs own property and the appropriate standard to be applied in that situation.â113 The court believed the Supreme Courtâs recognition of the right of a govern- mental entity, no less than a private owner of property, to preserve the property under its control for the use to which it is lawfully dedicated, is the polestar for locating the proper test or standard to determine the constitution- 110 See Capital Leasing of Ohio, Inc. v. Columbus Mun. Airport Auth., 13 F. Supp. 2d 640 (S.D. Ohio 1998) (considering a proprietorâs requirement in an air- port concession agreement that was a condition for making an award of the contract and determining that the proprietor did not have an unfettered right to re- quire concessionaires to give up First Amendment rights to obtain space in the airport terminal). 111 See id. at 657 citing Bd. of County Commârs, Wa- baunsee County, Kan. v. Umbehr, 518 U.S. 668, 116 S. Ct. 2342, 135 L. Ed. 2d 843 (1996) (unconstitutional conditions doctrine). 112 See id. at 668. 113 See id. at 662.
18 ality of speech restrictions imposed by the government owner on persons desiring access to the ownerâs property. Whether the speech was âpureâ or âcommercialâ was only one factor to consider.114 The court then conducted its evaluation using Leeâs nonpublic forum test and examined the regulationâs reasonableness in light of the pur- poses of the forum. It found that the proprietorâs purpose for the restriction was to prevent descrip- tions of the fee that would mislead consumers. But this restriction, which prohibited using a number of listed words, was âso sweeping in its prohibitionâ that it would prohibit companies âfrom using any of the listed words, even if used in an accurate and non-misleading description of the surcharge.â115 The court found that the pro- prietor could not impose restrictions that would prevent companies from describing the surcharge in a truthful and not a misleading manner. The proprietor could require a single description, or it could leave companies to formulate their own de- scriptions. The regulation, however, infringed on commercial speech rights by allowing companies to create their own descriptions while also impos- ing âexcessively broad prohibitions on the words that can be used.â116 These two tests for commercial speech regula- tions govern the restrictions that may apply on an airportâs campus. When the government acts as a nonproprietor, its commercial speech regulations will normally be examined under the Central Hudson test. When an airport proprietor creates restrictions on commercial speech, however, the courts will normally apply the nonpublic forum test from Lee. 2. State Action Doctrine The state action doctrine determines when a private tenant or operatorâs actions will violate the First Amendment. Under the state action doc- trine, the actions of a private party can create a First Amendment violation for both that party and the government if the private partyâs actions are sufficiently connected with the government. Normally, the conduct of private parties lies be- yond the scope of the Constitution, but âgovern- mental authority may dominate an activity to such an extent that its participants must be deemed to act with the authority of the govern- 114 See id. at 663 (citations omitted). 115 See id. at 665. 116 See id. at 667. The court further analyzed the is- sues under the Central Hudson test to demonstrate that it would produce the same result. ment and, as a result, be subject to constitutional constraints.â117 Actions by private parties, such as tenants or concessionaires, can create these viola- tions whether they involve nonprofit or commer- cial speech. There is not a mechanistic test to determine whether a private party has become a state actor. The courts examine the record to determine âwhether the conduct at issue is âfairly attribut- ableâ to the stateâ or âwhether the claimed depri- vation [of speech rights] resulted from the exer- cise of a right or privilege having its source in state authority,â so that a party âmay be appro- priately characterized as [a] state actor.â118 Other factors that a court may consider include whether the government has delegated to a private party a power âtraditionally exclusively reserved to the Stateâ;119 whether a private actor is a âwillful par- ticipant in joint activity with the State or its agentsâ;120 whether there is âpervasive entwine- mentâ between the state and the private entity;121 or whether a private entity âhas acted together with or has obtained significant aid from state officialsâ to further a challenged action.122 A mere lease or license from a government entity, without more, is insufficient to make a private party a 117 See Edmonson v. Leesville Concrete Co., 500 U.S. 614, 620, 111 S. Ct. 2077, 2082, 114 L. Ed.2d 660 (1991) (determining that exercising preemptory challenges to remove black jurors in district court was done pursuant to a course of state action). 118 See Wickersham v. City of Columbia, 481 F.3d 591, 597 (8th Cir. 2007) (citations omitted) (applying this test to an airshow operator), quoting Luger v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S. Ct. 2744, 73 L. Ed. 2d 482 (1982) (determining that a debtor was deprived of property through state action). 119 See id., citing Jackson v. Metro. Edison Co., 419 U.S. 345, 352, 95 S. Ct. 449, 42 L. Ed. 2d 477 (1974) (determining that the State was not sufficiently con- nected with the termination of utility services to make the utilityâs conduct attributable to the State). 120 See id., citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 151, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970) (determining that the plaintiff would make a state ac- tion claim by showing that a city had a state-enforced custom of segregating races in restaurants and that a denial of service was motivated by that custom). 121 See id., citing Brentwood Acad. v. Tenn. Secon- dary Sch. Ath. Assân, 531 U.S. 288, 295, 121 S. Ct. 924, 148 L. Ed. 2d 807 (2001) (determining that a high school athletic associationâs regulatory enforcement action was state action for purposes of the Fourteenth Amendment). 122 See id., citing Luger, 457 U.S. at 937.
19 state actor.123 If a private partyâs acts meet the requirements for state action, the same acts also qualify as actions taken âunder color of state lawâ for purposes of a claim under 42 U.S.C. Â§ 1983.124 For example, in Wickersham v. City of Colum- bia, the Eighth Circuit considered whether an air- show operator was a state actor when it would not let speakers leaflet or solicit a petition during the show, thus preventing noncommercial expressive activity.125 The airshow operatorâs contract with the proprietor gave the operator temporary authority to exert this control in the area used by the show. The court determined that state action depended on whether there was a ââclose nexusâ not merely between the state and the private party, but between the state and the alleged dep- rivation itselfâ that exceeded âmere approval.â126 The court went on to determine that the air show operator was a state actor for a number of rea- sons. The show could not be held without the pro- prietorâs cooperation; the proprietor was signifi- cantly involved in planning, advertising, managing, and operating the show; the operator represented that it was acting with the proprie- torâs sponsorship to obtain participation by federal aircraft; the proprietor had to continue to operate the airport during the show; and in particular, the proprietorâs police force enforced the show opera- torâs speech restrictions.127 By determining state action, the proprietor and the operator were then both subject to the plaintiffâs Â§ 1983 action and the lower courtâs permanent injunction. Advertising concessionaires may raise even more specific concerns for state action. For exam- ple, in Air Line Pilots Association International v. Department of Aviation of City of Chicago, the Seventh Circuit considered whether an airport advertising concessionaire acted as a state actor pursuant to its concession contract by denying a request to display union advertising that criti- 123 See Gannett Satellite Information Network, Inc. v. Berger, 894 F.2d 61, 67 (3d Cir. 1990) (determining that airport retail concessionaires were not state actors when determining what newspapers to sell). 124 See Wickersham, 481 F.3d at 597, citing Luger, 457 U.S. at 935. 125 See id. 126 See id., citing Burton v. Wilmington Parking Auth., 365 U.S. 715, 722, 81 S. Ct. 856, 6 L. Ed. 2d 45 (1961) (determining that a restaurant owner was a state actor when discriminating against black patrons based on the nature of the ownerâs relationship with the landlord parking authority); Brentwood Acad., 531 U.S. at 295. 127 See id. at 598. cized a major airline tenant.128 The court consid- ered four factors to determine whether âgovern- mental authority dominates an activity to such an extent that its participants must be deemed to act with the authority of the state.â It considered 1) when a âsymbiotic relationshipâ between the pri- vate actor and the state exists; 2) a ânexus test,â in which the state commands or encourages a pri- vate discriminatory action; 3) when a private party carries on a traditional public function; and 4) when âthe involvement of a governmental au- thority aggravates or contributes to the unlawful conduct.â129 The Seventh Circuit held that under the first two of these factors, the advertising concession- aire was a state actor when it denied the adver- tisement. The court noted that the proprietorâs contract with the concessionaire created a role for the proprietorâs participation when denying ad- vertising. It gave the proprietor a right to approve advertising or to order its removal, allowed the proprietor to exercise judgment to determine whether displays were in âgood taste,â and prohib- ited advertising that was âpolitical, immoral, or illegal.â The concessionaire further included these rights of the proprietor in its contracts with ad- vertisers. The proprietor also had other involve- ment with the concessionaire. It paid for lighting in the advertising displays, paid for any construc- tion-related relocation of advertising displays, and provided office and storage space to the conces- sionaire at no charge. The proprietor also had con- tractual authority to review the employment qualifications and assignments of the concession- aireâs employees and order their removal, and the proprietor was entitled to 60 percent of the con- cessionaireâs revenues. 128 See Air Line Pilots Assân, Intâl v. Depât of Aviation of City of Chicago, 45 F.3d 1144 (7th Cir. 1995) (consid- ering an airport advertising concessionaireâs rejection of union advertising). 129 See id. at 1149, citing Burton, 265 U.S. at 721 (de- termining that a symbiotic relationship existed because of a restaurantâs lease in a parking garage, the govern- mentâs reliance on the restaurantâs revenues and park- ers, and the restaurantâs benefits from its tax status); Rendell-Baker v. Kohn, 457 U.S. 830, 840, 102 S. Ct. 2764, 2770, 73 L. Ed. 2d 418 (1982) (former teachers failed to establish a state action claim in a civil rights complaint; significant state encouragement is a prereq- uisite to finding state action). See also Marsh v. Ala- bama, 326 U.S. 501, 66 S. Ct. 276, 90 L. Ed. 265 (1946) (state action existed when a company town deprived its residents of constitutional rights).
20 The court found these facts to be direct evi- dence of a joint enterprise, constituting a symbi- otic relationship between the concessionaire and the proprietor under the courtâs test for state action. It also found that, factually, both parties had acted to reject the advertising, and âboth par- ties have an admitted interest and a stated hostil- ity to the proposed message.â130 Regardless of these facts, however, the court also stated that it would have found state action solely on the basis of the proprietorâs admitted discretion to accept or reject advertisements.131 The court thus found state action, and under that doctrine both the con- cessionaire and the proprietor were responsible for the concessionaireâs action. 3. Advertising In addition to state action concerns, advertising can also raise concerns that a speaker will chal- lenge the forum type of the airportâs advertising locations. Although the Supreme Court has determined that airport terminals are a nonpublic forum, a government property owner can create designated public forums within its property by intentionally allowing expressive activity in a spe- cific forum. The courts determine the relevant forum for analysis âin terms of the access sought by the speaker.â132 Advertising forums may be the most likely airport forums to become the subject of a forum challenge. The courts determine whether a proprietor has designated a forum as open for some or all expres- sion by determining the proprietorâs intent. They determine that intent by looking at evidence of the consistent, actual âpolicy and practice of the government with respect to the underlying prop- ertyâ and âthe nature of the property and its com- patibility with expressive activity.â133 If a courtâs 130 See id. at 1148â50. 131 See id. at 1149. See also Am. Civil Liberties Union of Nevada v. City of Las Vegas, 466 F.3d 784 (9th Cir. 2006) (in a series of cases against a municipality, a mayor, a private operator of a public pedestrian shop- ping mall, and the executive director of the mall opera- tor, the court determined that the government was in- volved in creating and enforcing speech prohibitions that violated the Constitution). 132 See Cornelius, 473 U.S. at 802â03 (determining that the forum was a charity fund drive conducted in a public employment workplace). 133 See Depât of Aviation of City of Chicago, 45 F.3d at 1152 (noting that the larger context of the advertising displays was not separate from the airportâs concourses; the court further noted that inaction cannot create a public forum, but the proprietorâs policy statement, inquiry reveals that a proprietor has been willing to accept almost any message in its past advertis- ing, that practice may serve as evidence of intent to open a particular forum for expression and may moot an argument that a specific type of advertis- ing is incompatible with the airport.134 Con- versely, if a proprietor has a consistently enforced, written policy rejecting certain types of advertis- ing as inconsistent with the forumâs purpose (such as political or public-issue advertising), the courts may find that the proprietorâs advertising space has remained a nonpublic forum.135 A forum analysis is a fact-intensive inquiry. For example, in Department of Aviation of City of Chicago, the Seventh Circuit remanded an airport advertising case to establish the forum type for the requested forum, an advertising diorama. It asked the lower court to develop factual findings to support the proper forum type based primarily on the proprietorâs consistent practice and past policy in the forum, and, if that was inconclusive, whether the requested type of advertising was incompatible with the nature of the display cases in an airport concourse. The proprietorâs stated policy alone was not dispositive of the proprietorâs intent concerning the forum.136 The Seventh Circuit noted numerous factors that the lower court might consider when deter- mining intent. Factors included: â¢ Whether similar advertising had been dis- played in the past; â¢ The larger context of the airport environment where the display cases were located; â¢ The commercial character of the airport prop- erty; â¢ The airportâs need to provide services attrac- tive to the marketplace; â¢ The potentially disruptive effect of the adver- tising on the proprietorâs solicitation of business; â¢ The potential to disrupt the proprietorâs abil- ity to provide air travel to consumers; â¢ The governmentâs status as a proprietor; and â¢ Potential threats to the proprietorâs ability to generate advertising revenue. without supporting evidence, would not negate that statusâthe court sought objective indicia of intent). 134 See id. at 1153 (remanding for factual findings). 135 See Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S. Ct. 2714, 41 L. Ed. 2d 770 (1974) (considering the benefits of a written policy regarding bus advertis- ing). 136 See Depât of Aviation of City of Chicago, 45 F.2d at 1153.
21 The proprietor argued that the court should consider whether this advertising (union criticism of an airline tenant) would undermine other com- mercial interests at the airport, such as those of the tenant. The court found this argument trou- bling because it required considering the view- point of the message when conducting a forum analysis. If the lower court determined that the forum was nonpublic, it could then determine the regulationâs reasonableness and viewpoint neu- trality.137 In another forum challenge case involving ad- vertising, Park Shuttle N Fly, Inc. v. Norfolk Air- port Authority, a Virginia federal district court considered whether an airport proprietor could refuse to allow advertising that competed with the proprietorâs parking facilities.138 The court identi- fied the advertising spaces in question as the rele- vant forum, and it noted that the forum test of Lee applied rather than the Central Hudson test. The court found that the proprietor did not have a written policy concerning its advertising, but that it used the forum to advertise a variety of com- mercial companies, such as hotels offering cour- tesy shuttles. The court found no evidence that the advertising spaces in question had been used for public expression or noncommercial advertis- ing, and it determined that disallowing competing advertising supported the proprietorâs intent not to open the forum for public expression. The pro- prietor imposed this informal policy to prevent ads from companies in competition with the pro- prietor or its airline tenants and thereby âavoid diversion of revenue from the airport or conces- sions within it.â139 The court also noted that when government acts as a commercial participant, that factor makes finding a public forum unlikely.140 137 See id. at 1155â58 (no subsequent proceeding held). 138 See Park Shuttle N Fly, Inc. v. Norfolk Airport Auth., 352 F. Supp. 2d 688 (E.D. Va. 2004) (considering challenges under the Equal Protection Clause and the First Amendment). 139 See id. at 697. 140 See id. at 706. See also Dir., Office of Workersâ Comp. Programs, Depât of Labor v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122, 127â28, 115 S. Ct. 1278, 1284, 131 L. Ed. 2d 160 (1995) (in a case regarding the Administrative Procedures Act, stat- ing that âthe status of the Government as a beneficiary or market participant must be sharply distinguished from the status of the Government as regulator or ad- ministratorâ). The court thus concluded that the spaces were a nonpublic forum.141 The Virginia court then applied the nonpublic forum test. It determined that the proprietorâs purpose for the regulation, to promote its own revenues, made the restriction reasonable, and since this was a regulation over purely commer- cial speech, the proprietor had more freedom than it would with a noncommercial advertisement. The court also noted that the proprietor was required to operate on a financially self-sufficient basis. The court thus concluded that the proprie- torâs advertising policy did not violate the First Amendment.142 In N.A.A.C.P. v. City of Philadelphia, a Penn- sylvania federal district court held that it could not rule on a motion to dismiss without first es- tablishing the forum type of advertising displays by conducting a fact-finding process.143 Upon a subsequent motion for summary judgment, the court then determined that the proprietorâs adver- tising spaces were a nonpublic forum and con- ducted the test for that forum.144 At this stage in the case, the court questioned some aspects of the proprietorâs practices. The proprietor had a newly revised written policy, and the court determined that it also had an unwritten policy under which the proprietor exercised broad discretion to de- termine whether an advertisement was âoffen- sive.â The court also believed that the interests 141 See id. at 705â06. 142 This case did not raise claims under competition laws that may apply to government when acting as a market participant. See City of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 379, 111 S. Ct. 1344, 113 L. Ed. 2d 382 (1991) (noting that the govern- ment may not be immune from antitrust liability when acting as a market participant rather than as a regulator). See also COMPILATION OF STATE AIRPORT AUTHORIZING LEGISLATION (Airport Cooperative Re- search Program, Legal Research Digest 15, Transporta- tion Research Board, 2012), http://onlinepubs.trb.org/ onlinepubs/acrp/acrp_lrd_015.pdf (summarizing antitrust concerns, including the Local Government Antitrust Act of 1984, which protects local governments against damages in antitrust actions, but not against injunctive or declaratory relief). 143 See N.A.A.C.P. v. City of Philadelphia, CIV.A. 11- 6533, 2013 WL 2182704 (E.D. Pa. 2013) (considering a challenge to a revised airport policy that limited adver- tising to ads that proposed a commercial transaction). 144 See N.A.A.C.P. v. City of Philadelphia, 39 F. Supp. 3d 611 (E.D. Pa. 2014) (questioning the airport proprietorâs written and unwritten practices on sum- mary judgment when the proponent of an issue adver- tisement raised a facial challenge).
22 that the proprietor pursued under its unwritten policy, promoting a family-friendly environment and a positive image of the city, constituted view- point discrimination. The case also questioned elements of the Supreme Courtâs forum analysis framework. The court in this Pennsylvania case also cited to cases that considered forum challenges to bus advertising displays. While at first glance these cases seem to consider similar issues, bus adver- tising cases only determine a transit proprietorâs intent relevant to buses, not an airport proprie- torâs intent relevant to an airport. When deter- mining a proprietorâs intent to create a designated public forum, a significant element of the test is determining the ânature of the property and its compatibility with expressive activity.â145 Transit cases thus lack that critical element of the analy- sis if they are applied to an airport case. As Lee recognized, other nodes of transportation are not relevant to considering airport forums.146 When the analysis in transit cases is not spe- cific to establishing a forum type, however, those cases may offer some reasoning that is relevant to airport cases. For example, a Supreme Court transit case noted the general importance of a consistent, written policy when evaluating fo- rums. That case upheld a transit agencyâs long- standing written policy that had consistently pro- hibited political advertising on buses for stated reasons, such as the short-term nature of these ads, disruption to other advertising accounts, the blaring nature of these ads to a captive audience on a bus, concerns for perceptions of favoritism by the agency, and difficulty in selling these ads be- cause many candidates may want limited space.147 A Ninth Circuit transit case determined that if proprietors change their written policies during the course of a dispute, the court must consider that action when analyzing evidence of the pro- prietorâs intent to restrict advertising. The court determined that a cityâs new policy had consis- tently restricted advertising to âspeech which pro- poses a commercial transaction,â148 and, although the city had accepted some noncommercial adver- tising under its previous policy, only 1 percent of 145 See Depât of Aviation of City of Chicago, 45 F.3d at 1156. 146 Lee, 505 U.S. at 678â83. 147 See Lehman, 418 U.S. at 304. 148 See Children of the Rosary v. City of Phoenix, 154 F.3d 972, 975 (9th Cir. 1998) (considering bus advertis- ing). the previous ads had been noncommercial.149 It thus upheld the cityâs policy change. When the city later made another change to the wording of that policy, however, an Arizona state court de- termined that the city had altered the policyâs meaning and that the policy no longer limited ad- vertising solely to advertisements that proposed a commercial transaction.150 Some transit cases have also found against a transit proprietor when the proprietor lacked a clear written policy limiting permissible advertis- ing topics, and, in practice, the proprietor had a history of accepting ads or subjectively rejecting them. For example, a Third Circuit case deter- mined that a transit agency could not reasonably reject social issue ads when a bus policy was open- ended about which ads were permissible, the agency had a past practice of accepting all ads, and the purpose of the program was to earn con- cession revenues.151 A Seventh Circuit case reached the same conclusion when a transit agency had no policy (despite its litigation claims); had accepted commercial, political, public-service, and public issue advertising in the past; and had allowed nonprofit advertisers to advertise at a nominal rate. The Seventh Circuit questioned whether a lack of written standards, coupled with a practice of subjectively rejecting âcontroversialâ ads, could ever pass constitutional muster.152 Forum challenges are fact-intensive issues. As such, transit cases cannot simply be transferred to an airport setting because they do not take key forum challenge elements into account, including the nature of a given airport forum and that air- port proprietorâs intent. Under Lee, forum chal- lenges at airports must consider the range of fac- tors that are relevant to the questioned forum in the given airportâs environment. 149 See id. at 979. 150 See Korwin v. Cotton, 323 P.3d 1200 (Az. Ct. App. 2014) (when the city changed its policy language to limit ads to those that proposed a commercial transac- tion âadequately displayed,â court found that other messages were now permissible under this language as long as the commercial portion of the ad was adequately displayed). 151 See Christ's Bride Ministries, Inc. v. Se. Pa. Transp. Auth., 148 F.3d 242 (3d Cir. 1998) (considering bus advertising). 152 See Planned Parenthood Assân/Chicago Area v. Chicago Transit Auth., 767 F.2d 1225 (7th Cir. 1985) (considering bus advertising).
23 4. Contractual Restrictions on Speech Restrictions on speech that are required by con- tract can also result in First Amendment claims. For example, in Capital Leasing of Ohio, Inc. v. Columbus Municipal Airport Authority, a case affirmed by the Sixth Circuit, an Ohio federal dis- trict court determined that an airport proprietorâs contractual restriction was overbroad when it prohibited car rental concessionaires from using certain terms to describe an airport fee. The pro- prietor thus could not impose the requirement.153 The court also determined that the proprietorâs restrictive contract term violated the âunconstitu- tional conditionsâ doctrine. The Supreme Court has determined that the government âmay not deny a benefit to a person on a basis that in- fringes his constitutionally protectedâ¦freedom of speech even if he has no entitlement to that bene- fit,â such as in a contract setting.154 The proprietor argued that it had a right to insist on a contrac- tual condition restricting speech, and that compa- nies could make a business decision to accept that limitation on their speech or forego the opportu- nity of being an onsite concessionaire. The court, however, determined that, although the proprie- tor, âlike any other property owner, is free to in- sist upon the terms and conditions it imposes upon persons or entities desiring to have access to or use its property, it cannot impose conditions that are contrary to the rights granted to all citi- zens under the United States Constitution.â155 It found that nothing supported an âunfettered right to require Budget to give up its First Amendment right to obtain space in the terminal on a âtake it or leave itâ basis.â156 The proprietor could not âcondition the receipt of a benefitâa contract for an airport concessionâon a curtailment of the First Amendmentâs right to freedom of speech.â157 This same principle applies when government places contractual conditions on the receipt of funds. For example, Congress generally imposes obligations as a condition for accepting federal funding, but âthe government may not deny a benefit to a person on a basis that infringes his constitutionally protectedâ¦freedom of speech 153 See Capital Leasing of Ohio, Inc., 13 F. Supp. 2d at 657. See also Section C.1 supra. 154 See id. at 657, citing Bd. of County Commârs, Wa- baunsee County, Kan., 518 U.S. at 674 (case discussing the âunconstitutional conditionsâ doctrine). 155 See id. at 655. 156 See id. at 659. 157 See id. at 657. even if he has no entitlement to that benefit.â158 The Supreme Court further found, however, that â[i]t is clear that a funding condition cannot be unconstitutional if it could be constitutionally imposed directly.â159 Thus, if the First Amend- ment would not preclude a regulatory require- ment, it will not preclude a contractual require- ment that is imposed as a condition of funding. 5. First Amendment Impacts on Commercial Relationships The Supreme Court has determined that the First Amendment protects contractors and others whose business interests are affected by the gov- ernment from retaliation. The government cannot retaliate against âa contractor, or a regular pro- vider of services, for the exercise of rights of po- litical association or the expression of political allegiance.â160 For example, the Supreme Court determined that a city violated the First Amend- ment by removing a tow truck company from a contracting list after its owner refused to contrib- ute to the mayorâs reelection campaign and sup- ported another candidate. The Court found that â[i]f the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those free- doms would in effect be penalized and inhib- ited.â161 The Court would not sanction this politi- cal coercion, and it was irrelevant that the plaintiff was an independent contractor as opposed to an employee (who is also subject to these constitutional protections).162 Retaliation claims can arise in a number of commercial contexts at airports. For example, in Associated Builders and Contractors, Inc. v. San Francisco Airports Commission, the California Supreme Court considered whether requiring a 158 See Rumsfeld v. Forum for Academic and Institu- tional Rights, Inc., 547 U.S. 47, 59, 126 S. Ct. 1297, 164 L. Ed. 2d 156 (2006) (requiring the presence of military recruiters at law schools on the same basis as other recruiters did not violate the schoolâs First Amendment rights). 159 See id. 160 See OâHare Truck Service, Inc. v. City of North- lake, 518 U.S. 712, 715, 116 S. Ct. 2353, 135 L. Ed. 2d 874 (1996) (the City could not remove a towing company from a contracting list after its owner refused to con- tribute to the mayorâs reelection campaign and sup- ported the mayorâs opponent). 161 See id., citing Perry v. Sindermann, 408 U.S. 593, 597, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972) (lack of ten- ure did not defeat a college professorâs speech rights). 162 See id. at 721.
24 project stabilization agreement between an air- port and a union trade council was retaliatory and thus violated the First Amendment.163 These agreements require signatory unions to pledge that they will not strike on a project, will arbi- trate disputes, and will continue to work on the project despite the expiration of any applicable collective bargaining agreements. The proprietor required entering such a contract as part of its bid specifications for performing airport construction work, and the union claimed that the agreement violated its rights of association. The court noted that the First Amendment prohibits government retaliation against an independent contractor, but it found that these agreements did not prevent trade unions from expressing their philosophies, coerce any association, or punish unions for en- gaging in political activity or advocacy. The court noted that some union choices could have impacts under the agreement, but the First Amendment âdoes not oblige the government to minimize the financial repercussions of such a choice.â164 The court also found that the construction project war- ranted the use of such an agreement. Various other parties may assert First Amend- ment retaliation claims against airports. Typical claimants have included car rental concession- aires, fixed base operators, and ground transpor- tation providers, although commercial claimants are often not successful under the facts of a given case. The Supreme Court has determined that the First Amendment protects contracting parties against patronage decisions and arbitrary actions pursuant to rights of association, speech, and belief. D. Other Speech Concerns at Airports 1. Picketing and Labor Expression at Airports Under the First Amendment, airport proprie- tors can constitutionally impose restrictions on labor expression, such as picketing or leafleting, as with other speakers. The nonpublic forum test under Lee allows airports to create restrictions to manage their facilities and prevent disruption that are reasonable in light of the purposes of the 163 See Associated Builders and Contractors, Inc. v. San Francisco Airports Commân, 981 P.2d 499, 517 (Cal. 1999) (considering an agreement for the construction of a multi-billion dollar airport expansion), citing Lyng v. Automobile Workers, 485 U.S. 360, 368, 108 S. Ct. 1184, 99 L. Ed. 2d 380 (1988) (determining a statute did not violate First Amendment rights of association concern- ing union members). 164 See id. forum and are viewpoint-neutral.165 This includes disruption created by picketing and other labor activities. These activities can, however, create additional questions concerning the scope of First Amendment rights. Labor activities often involve organizing ef- forts, whether in areas open to airport customers or private areas, and those efforts are not exempt from time, place, and manner regulation require- ments to prevent disruption. The proprietor can reserve work time and resources for work-related purposes and preclude access to those resources by others, including unions.166 The Supreme Court has noted that union organizing activity on a pro- prietary government property with strong secu- rity interests (in this case a prison) âmust give way to the reasonable considerations of penal management,â and airport environments can pre- sent similar concerns for managing safety, risks, and disruption.167 Picketing on airport property can involve spe- cific concerns for the size and mobility of picketing groups and the objects that group members may carry, especially inside the terminals. Proprietors may respond with specific regulations that address the time, place, and manner of picketing to prevent disruptions to airport operations.168 Picketing often targets a business located on the premises. The Supreme Court has not addressed picketing against establishments located at an airport, but when considering shopping malls, the Court has determined that union picketers âdid not have a First Amendment right to enter [a] shopping center for the purpose of advertising their strikeâ against one of the stores in the mall. Instead the Court found that the National Labor Relations Act governed rights and liabilities when picketers want to target such an establishment.169 165 See Lee, 505 U.S. 672. 166 See Perry Educ. Assân, 460 U.S. at 45 (teacher mailboxes were a nonpublic forum from which a rival union could be excluded as a means of ensuring labor peace); Cornelius, 473 U.S. at 802 (a government chari- table solicitation campaign was a nonpublic forum from which the government could exclude participation by legal defense funds). 167 See Jones v. North Carolina Prisonersâ Labor Un- ion, Inc., 433 U.S. 119, 132, 97 S. Ct. 2532, 53 L. Ed. 2d 629 (1977) (deferring to management concerns regard- ing union organizing and finding that prisons are not a public forum). 168 See Section II infra (examples of airport policies). 169 See Hudgens v. NLRB, 424 U.S. 507, 520â21, 96 S. Ct. 1029, 47 L. Ed. 2d 196 (1976) (applying the NLRAâs prohibitions to a private shopping mall).
25 State and federal labor statutes can govern a range of issues, and they add complexity to a First Amendment analysis involving labor activities. Generally the courts try to first resolve disputes under these labor laws to avoid a need to examine First Amendment protections. For example, in Edward J. DeBartolo Corp. v. Florida Gulf Coast Building Construction Trades Council, the Supreme Court considered whether union mem- bers who peacefully distributed leaflets without picketing or other conduct had violated federal statutes prohibiting unfair labor practices that were meant to protect secondary employers (em- ployers that are affected by labor actions but that are not the target of the strike).170 The Supreme Court noted that peacefully distributing leaflets was an activity that likely had First Amendment implications. But first it considered the wording of the applicable statute, the nature of peaceful leaf- leting, the statuteâs legislative history, and the general presumption that Congress intends to act within the Constitution. The Court then held that the statute could be construed to permit the peaceful leafleting in question, and it thus avoided the need to determine whether the labor statute was unconstitutional under the First Amendment.171 Labor statutes generally prohibit unfair labor practices, or in other words, labor activity that coerces rather than persuades. While coercive activity is prohibited, persuasive activity carries First Amendment protections, and even courts can struggle to find the line between the two. For example, in 520 S. Michigan Avenue Associates, Ltd. v. Unite Here Local 1, the Seventh Circuit considered a variety of labor activities that were claimed to violate the unfair labor prohibitions of federal statutes. The court noted recent tests for assessing whether these activities were prohibited by statute or protected under the First Amend- ment, and it determined that some of the chal- lenged labor practices, although objectionable to the strike target and other businesses, were sub- ject to First Amendment protection. Other prac- tices, however, could not be determined at the summary judgment stage, and the court re- manded the case so the lower court could deter- mine whether those practices had crossed the line 170 See Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. Const. Trades Council, 485 U.S. 568, 578, 108 S. Ct. 1392, 99 L. Ed. 2d 645 (1988) (finding that the leaf- leting in question did not have a coercive effect, and that the issue could be resolved under federal statutes). 171 See id. at 578 (secondary boycott issues). from constitutionally protected persuasion to statutorily prohibited coercion. The court noted that if conduct was statutorily prohibited, that prohibition âwould pose no greater obstacle to free speech than that posed by ordinary trespass and harassment laws.â172 Thus, legally prohibited un- ion conduct will normally not raise constitutional concerns, but determining what conduct is legally prohibited may not be clear. 2. Speech and Security First Amendment challenges at airports have questioned whether speakers have a right to pur- sue expressive activities at security screening checkpoints. These cases have not always relied on forum analysis to examine the issues, and they tend to focus on whether arresting or detaining the speaker was a valid response to the speakerâs actions. In general, these cases have noted a con- cern for arrests made in response to peaceful, nondisruptive protests. They also illustrate that a court may allow an arrest to overshadow the forum analysis principles that determine whether a proprietorâs policy for expression in these areas is reasonable. For example, in Tobey v. Jones, the Fourth Cir- cuit decided not to dismiss a case in which a plaintiff claimed that he was arrested based on a peaceful protest.173 The plaintiff had removed his clothes at an airport screening checkpoint to dis- play the text of the Fourth Amendment written on his chest, which he stated was a protest of the Transportation Security Administrationâs (TSA) enhanced imaging screening measures. The pro- prietor argued that the officers acted reasonably under Lee because the government can impose reasonable restrictions on speech in an airport as a nonpublic forum. The court, however, did not conduct a First Amendment forum analysis to determine whether the proprietor could restrict protests at the screening checkpoint. Instead it was persuaded by arguments that the arrest was without probable cause because it was based on conduct that was bizarre, but peaceful, and it found that where the plaintiff had alleged a si- lent, peaceful, nondisruptive protest, an arrest on 172 See 520 S. Michigan Ave. Associates, Ltd. v. Unite Here Local 1, 760 F.3d 708 (7th Cir. 2014) (considering union practices such as an uninvited entry onto prop- erty, picketing, communications to dissuade business activity with the strike target, and other actions). 173 See Tobey v. Jones, 706 F.3d 379 (4th Cir. 2013) (considering an arrest for a protest at the screening checkpoint).
26 that basis was not consistent with the First Amendment even in an airport.174 In George v. Rehiel, the Third Circuit consid- ered First Amendment implications when a pas- senger was handcuffed and detained because he refused to submit to additional screening and also possessed flashcards containing Arabic words, some of which discussed terrorism.175 The court found that possessing the flashcards (and an anti- American book) were activities protected by the First Amendment, but officers were not required to ignore the content of those items and refrain from investigating further. The court noted that the First Amendment would not tolerate singling out someone for enhanced scrutiny for carrying materials critical of the United States.176 In these circumstances, however, it found that the officersâ actions were reasonable. In general, the courts avoid interpreting the First Amendment in a way that would âsweepâ¦broadly in restricting the Governmentâs efforts to fight terrorism.â177 In Mocek v. City of Albuquerque, a New Mexico federal district court applied forum analysis un- der Lee when evaluating First Amendment issues in a security screening area.178 In that case, an individual claimed that he could film screening activities even though he was asked to stop. The court determined that even if a citizen had a right to engage in ânewsgatheringâ or to record the ac- tivity of government officials in public, such a right at the screening checkpoint of an airport âentails less First Amendment protection than 174 See id. at 391, citing Bd. of Airport Commârs of City of Los Angeles, 482 U.S. at 576 (nondisruptive speech, such as wearing a T-shirt or a political button, was not airport-related, but was still protected speech even in nonpublic forum). 175 See George v. Rehiel, 738 F.3d 562 (3d Cir. 2013) (also considering Fourth Amendment claims and a Bivens claim in connection with First Amendment re- taliation claims). 176 See id. It is unclear whether the officers argued that the arrest was based on a violation of airport regu- lations governing the time, place, and manner for con- ducting demonstrations. 177 See United States v. Assi, 414 F. Supp. 2d 707, 715â16 (E.D. Mich. 2006) (rejecting a claim of imper- missible guilt by association under the First Amend- ment when a passenger attempted to carry military equipment to a known terrorist organization in viola- tion of a statute prohibiting such support). 178 See Mocek v. City of Albuquerque, 3 F. Supp. 3d 1002 (D. N.M. 2014) (considering action taken against a citizen claiming that he had a right to gather news and film security actions at the checkpoint). that of the plaintiffs in [Lee]â because the check- point was an even more specific location that was dedicated to safety activities.179 Nothing indicated that the checkpointâs primary purpose was the âfree expression of ideas,â that the screening checkpoint differed from the nonpublic forum of the airport terminal, or that government action had âintentionally open[ed] a nontraditional pub- lic forum for public discourse.â180 The courts do not consider disruptive conduct to support a claimed violation of First Amend- ment rights. For example, in Rendon v. Transpor- tation Security Administration, the Sixth Circuit considered whether TSA regulations that prohib- ited interference with a security screener violated First Amendment rights.181 A passenger was asked to submit to a hand wand search at the checkpoint, and the passenger responded with loud and belligerent conduct until a supervisor and police officer had to remove him and issue a civil penalty. The passenger claimed that the TSA regulation was content-based in violation of the First Amendment because a passenger who asked a good-faith question without profanities would not be subject to a penalty, while a passenger ask- ing with profanities would be punished. The court noted that âthe regulation (on its face and as ap- plied) is a content-neutral regulation, as it is justi- fied without reference to the content of the regu- lated speech.â182 It found that the purpose of the regulation was to prohibit interference with screeners and that any impact on speech was in- cidental and, in this case, due to the passengerâs conduct. âA content-neutral regulation that has an incidental effect on speech is upheld so long as it is narrowly tailored to advance a substantial government interest.â183 The court also found that the regulation was not overbroad but only prohib- ited conduct that interfered with the screeners in performing their duties. 179 See id. at 20214 WL 936724, at 58â59. 180 See id. at 59. The court also found that while cir- cuit courts varied, the Tenth Circuit and the Supreme Court had not established an individualâs right to gather news in this context, and even circuits that had addressed a right to film police activities had deter- mined that it was subject to reasonable time, place, and manner limitations. 181 See Rendon v. Transp. Security Admin., 424 F.3d 475 (6th Cir. 2005) (upholding a TSA screening regula- tion against a challenge that it was overbroad). 182 See id. at 479, citing Rock Against Racism, 491 U.S. 781. 183 See id.
27 3. Press at the Airport Cases involving the press at airports typically focus on how a proprietor may constitutionally regulate the placement of newsracks. For exam- ple, in The News and Observer Publishing Co. v. Raleigh-Durham Airport Authority, the Fourth Circuit considered whether an airport proprietor could ban newsracks entirely in a large commer- cial airport.184 It noted preliminarily that âthe First Amendment protects distribution as well as publication of newspapersâ and that âmodes of distribution involving permanent or semi- permanent occupation of publicly-owned property donât lose First Amendment protection because of that fact.â 185 It also noted that a total ban âsig- nificantly restricted the Publishersâ ability to dis- tribute newspapersâ because travelers had trouble buying them from airport shops, which were not open at certain hours or might sell out.186 The Fourth Circuit then considered whether a total ban was reasonable based on the airportâs status as a nonpublic forum under Lee. It noted some of the proprietorâs asserted purposes for its total ban: aesthetics, preserving revenue, prevent- ing congestion, and security. The court found these interests were legitimate, but they did not counterbalance the banâs significant restriction on protected speech for a number of reasons. Aes- thetics did not receive strong consideration in the courts, and the proprietor had offered no evidence of aesthetic harm. The court believed that the proprietorâs revenue interests could be addressed through a newsrack concession, that these inter- ests were not substantial, and that the airportâs concession master plan had not even considered the effect of newsracks on airport revenues. It be- lieved that common sense contradicted the pro- prietorâs congestion argument, and a âlimited number of carefully placed newsracks would cre- ate only trivial congestion.â187 It also found that the proprietorâs security arguments indicated lit- tle about the security risk of allowing a carefully calibrated newsrack presence, and â[s]uch a risk could not be more than de minimis.â188 The court thus found insufficient evidence to justify a total ban on newsracks in this large airportâs terminals. 184 See The News and Observer Publishing Co. v. Ra- leigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (considering requests to place newsracks in- side the airportâs terminals). 185 See id. at 576. 186 See id. at 579. 187 See id at 580. 188 See id. at 581. Other cases considering newsrack regulations at large airports examine similar factors.189 But where airport regulations only prohibit commer- cial activity generally, they will not necessarily raise First Amendment concerns. In a First Amendment analysis, âthe law in question must have a close enough nexus to expression or expressive conduct to give rise to a substantial threat of undetectable censorship.â190 The proprie- tor also must be involved in denying access to the publisher. Where airport retail concession- aires simply decide independently what newspa- pers they will sell from shops in the terminals, these concessionaires normally will not be viewed as state actors subject to First Amendment constraints. When courts consider airport regulations under a forum analysis, they also may reach different outcomes depending on the circumstances of the airport in question. For example, in Jacobsen v. City of Rapid City, S.D., the Eighth Circuit con- sidered a total ban on newsracks at a small com- mercial airport.191 It applied a forum analysis and determined that as with such bans at large air- ports, the proprietorâs interests in operational ef- ficiency, safety, security, and aesthetics were legitimate but insufficient to justify a total ban. The court agreed, however, that this particular proprietor could reasonably ban newsracks in its terminal to leverage a better bargain from its gift shop concession to help pay debt for the small air- portâs newly constructed terminal building. The court noted that the proprietorâs policy would need to consider related impacts to low-budget, controversial newspapers, but the circumstances 189 For example, see Multimedia Pub. Co of S.C., Inc. v. Greenville-Spartanburg Airport Dist., 991 F.2d 154 (4th Cir. 1993) (total ban was an overly heavy burden on expressive activity, and proprietorâs interests in aes- thetics, preserving revenue, and security were not suffi- cient to justify ban). 190 See Gannett, 894 F.2d at 68â69 (determining that an airport regulation that prohibited vending machines without a permit prohibited all such machines, and that this general prohibition on commercial activity was not ânarrowly and specificallyâ directed at expression so as to âwarrant judicial intervention prior to an allegation of actual misuseâ; the court also determined that retail concessionaires in the terminal that independently re- fused to stock a given newspaper were not acting as state actors). 191 See Jacobsen v. City of Rapid City, S.D., 128 F.3d 660 (1997) (considering claims by a small publisher re- questing newsrack access in the Rapid City Regional Airport terminal).
28 present in this particular small airport made the ban in question reasonable.192 A series of cases involving the Hartsfield At- lanta International Airport considered several aspects of a newsrack concession under the First Amendment. Proprietors often build newsrack facilities and charge publishers a fee to use space that the proprietor allocates from time to time. A Georgia federal district court initially enjoined a proprietor from requiring publishers to use air- port newsracks that also bore advertisements for other products. The injunction also prohibited the proprietor from exercising unlimited discretion when deciding which publications could be placed in which newsracks (or whether publishers could maintain their own newsracks in airport facili- ties). The court also initially enjoined the proprie- tor from charging a revenue-raising fee for the use of the newsracks.193 Ultimately, the Eleventh Cir- cuit agreed that the proprietor could not require publishers to use advertising-bearing newsracks and could not exercise unfettered discretion over newsrack locations. But it allowed the proprietor to charge a revenue-raising fee because the pro- prietor was acting in a proprietary capacity rather than as a regulator.194 The proprietor subse- quently sought fees that should have been paid during the period of the injunction, but the court only allowed payment for sums that the proprietor had requested in the litigation. It also awarded the publishers some of their attorneysâ fees under 192 See id. at 664â65. 193 See Atlanta Journal & Constitution v. City of At- lanta Depât of Aviation, 6 F. Supp. 2d 1359 (N.D. Ga. 1998) (enjoining practices under an airport newsrack plan); Atlanta-Journal and Constitution v. City of At- lanta Depât of Aviation, 107 F. Supp. 2d 1375 (noting that limiting the size of the publisherâs logo on the newsrack while requiring large soft drink advertise- ments on the newsrack was unconstitutional, because the proprietor was compelling the publisher to associate with a soft drink company, and the purpose of the fo- rum did not justifying drawing these distinctions for access (the reason for allowing the soft drink adver- tisements related to the Cityâs relationship with the company as an underwriter of city-sponsored cultural programs)). 194 See Atlanta Journal & Constitution v. City of At- lanta Depât of Aviation, 322 F.3d 1298 (11th Cir. 2003) (remanding to allow the airport proprietor to formulate a new plan, to allow consideration of the airportâs claim for fees that were previously enjoined). See also Phoenix Newspapers, Inc. v. Tucson Airport Auth., 842 F. Supp. 381 (1993) (the government acting in proprietary capac- ity can charge newsrack fees). 42 U.S.C. Â§Â§ 1983 and 1988 for prevailing on por- tions of their action.195 News gathering activities by members of the press are also subject to time, place, and manner restrictions. Under Supreme Court precedent, there is a âright to gather news from any source by means within the law.â That right is thus lim- ited to sources legally available to the public, and there is no First Amendment right to compel oth- ers, whether âprivate persons or government, to supply information.â196 The âFirst Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.â197 4. Employment Government cannot condition public employ- ment âon a basis that infringes the employeeâs constitutionally protected interest in freedom of expression.â198 The Supreme Court has found that âpublic employees do not surrender all their First Amendment rights by reason of their employ- ment. Rather, the First Amendment protects a public employeeâs right, in certain circumstances, to speak as a citizen addressing matters of public concern.â199 The courts thus attempt to âarrive at a balance between the interests of theâ¦ [employee], as a citizen, in commenting upon mat- ters of public concern and the interest of the State, as an employer, in promoting the effi- ciency of the public services it performs through 195 See Atlanta Journal & Constitution v. City of At- lanta Depât of Aviation, 442 F.3d 1283 (11th Cir. 2006) (also finding that the proprietorâs litigation strategy was largely responsible for the long duration of the liti- gation). 196 See Houchins v. KQED, Inc. 438 U.S. 1, 11, 98 S. Ct. 2588, 57 L. Ed. 2d 553 (1978) (emphasis added) (de- termining that the news media had no constitutional right of access to a county jail, different from other per- sons, to conduct interviews, photograph, and otherwise gather news, and the county could deny access). 197 See Branzburg v. Hayes, 408 U.S. 665, 684, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972) (rejecting a claimed privilege against testifying before a grand jury based on confidential sources). 198 See Connick v. Myers, 461 U.S. 138, 142, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983) (determining that the matter at issue was a private work issue). 199 See Pickering v. Bd. of Ed. of Township High Sch. Dist. 2005, Will County, Ill., 391 U.S. 563, 568, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968) (a teacherâs exercise of a right to speak on issues of public importance may not furnish the basis for a dismissal from public employ- ment).
29 its employees.â200 The courts first determine âwhether the employee spoke as a citizen on a matter of public concern,â and if so, âwhether the relevant government entity had an adequate jus- tification for treating the employee differently from any other member of the general public.â201 When employees are speaking as citizens about matters of public concern, âthey must face only those speech restrictions that are necessary for their employers to operate efficiently and effec- tively.â202 The Supreme Court observed that this test acknowledges the need for informed, vibrant dia- logue in society and that repressing such a dia- logue comes at a cost. If public employees could not speak about their employersâ operations, âthe community would be deprived of informed opin- ions on important public issues. The interest at stake is as much the publicâs interest in receiving informed opinion as it is the employeeâs own right to disseminate it.â203 Airport environments involve a variety of activities that may raise matters of public concern. For example, in DiMartino v. Richens, the Con- necticut Supreme Court found that an airport manager was speaking on a matter of public con- cern when an airport official advised the manager to discuss break-ins involving an office that had access to security keys and secure areas with the police.204 A subsequent undercover investigation revealed that this managerâs supervisor and oth- ers were entering the office, and airport officials then accused the manager of âsetting upâ other employees and subjected him to lengthy, demean- ing treatment that included effectively demoting him. The court found that the manager had spo- ken on a matter of public concern and suffered consequences because of his speech, and it found the officialsâ claims about their adverse treatment 200 See id. 201 See id. 202 See Garcetti v. Ceballos, 547 U.S. 410, 418 126 S. Ct. 1951, 164 L. Ed. 2d 689 (2006) (determining that the matter at issue was work-related) citing Connick, 461 U.S. at 143. 203 See City of San Diego, Cal. v. Roe, 543 U.S. 77, 82, 125 S. Ct. 521, 160 L. Ed. 2d 410 (2004) (considering off- duty speech); United States v. Natâl Treasury Employ- ees Union, 513 U.S. 454, 470, 115 S. Ct. 1003, 130 L. Ed. 2d 964 (1995) (a government ban on employees ac- cepting honoraria for speeches imposed a significant burden on the publicâs right to read and hear what em- ployees would have said). 204 See DiMartino v. Richens, 822 A.2d 205 (Conn. 2003) (awarding punitive damages to employee). of the manager were pretextual. The court thus found for the manager on actions that involved the First Amendment, the Equal Protection Clause, and punitive damages. The First Amendment also protects public employees against patronage practices under First Amendment rights of association and be- lief.205 The Supreme Court has found that patron- age dismissals cannot be justified under the First Amendment on grounds of government effective- ness, loyalty, or the preservation of the democ- ratic process, unless those qualities are necessary to the effective performance of a given public of- fice. The Court found that patronage dismissals are a âsevere encroachment on First Amendment freedoms,â and that without a clear demonstra- tion that a given practice is the âleast restrictive meansâ of fostering âvitalâ government interests, such dismissals are âunconstitutional under the First and Fourteenth Amendments.â206 It also determined that absent practices that are ânar- rowly tailored to further vital government inter- ests,â patronage promotions, transfers, recalls, and hiring decisions âimpermissibly encroach on First Amendment freedoms.â207 5. Public Meetings Public meetings can also raise First Amend- ment concerns. Many airport proprietors operate in connection with a public board that is regularly involved in airport processes or decisions, whether as the governing body of an airport authority or as a local government advisory board. Proprietors may conduct other public meetings as well, such 205 See Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976) (non-civil service employee dis- missals for political reasons violated the First Amend- ment); Branti v. Finkel, 445 U.S. 507, 518, 100 S. Ct. 1287, 63 L. Ed. 2d 574 (1980) (determining that dis- missals for refusing a request for political and financial support were unconstitutional; continued employment cannot be conditioned on allegiance, and the question turns not on labels of whether âpolicymakerâ or âconfi- dentialâ fit a particular position but on whether the hiring authority can demonstrate that party affiliation is âan appropriate requirement for the effective per- formance of the public office involvedâ). 206 See Elrod, 427 U.S. at 372â73 (also noting that â[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injuryâ). 207 See Rutan v. Republican Party of Ill., 497 U.S. 62, 110 S. Ct. 2729, 111 L. Ed. 2d 52 (1990) (determining that a variety of patronage practices were unconstitu- tional).
30 as formal community meetings to discuss expan- sion plans. The courts are split as to the appropri- ate test for analyzing First Amendment access rights in connection with public meetings. The Supreme Court has recognized that there is a First Amendment right of access to some gov- ernment proceedings. When determining this right, it considers whether a âtradition of accessi- bilityâ¦[indicates that] the place and process has historically been open to the press and general public,â and âwhether public access plays a sig- nificant positive role in the functioning of the par- ticular process in question.â208 Some federal courts have looked to this Supreme Court test concern- ing a right of public access to determine First Amendment rights in public meetings, but others have applied forum analysis to make that deter- mination. For example, in Whiteland Woods, L.P v. Town- ship of West Whiteland, the Third Circuit consid- ered a regulation prohibiting videotaping during meetings of a planning commission, which served in an advisory capacity only.209 It found that the commission was intended to play an active role in municipal land use and was subject to state open meetings laws, and it determined that public access fostered public awareness, perceptions of fairness, and the communityâs ability to evaluate land use information and actions. These meetings were thus the type of public proceeding subject to access rights under the First Amendment.210 The court also noted, however, that a public right of access is not absolute and may be made subject to âreasonable time, place, and manner restrictionsâ in the interests of fair administration. The First Amendment does not require âunfettered access to government information.â211 Thus, it upheld the planning commissionâs restriction on videotaping meetings because a right of public access âwas not meaningfully restricted by the ban on videotap- 208 See Press-Enterprise Co. v. Superior Court of Cal. for Riverside County, 478 U.S. 1, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986) (considering rights of access to criminal proceedings in court). 209 See Whiteland Woods, L.P v. Township of West Whiteland, 193 F.3d 177, 181 (3d Cir. 1999) (examining various rights in a planning commission meeting). 210 See id. at 181. 211 See id. at 181â82, citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581 n.18, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980) (holding that a criminal trial must be open to the public); Houchins, 438 U.S. at 9 (holding that news media have no constitutional right to access a county jail in excess of other persons or to make recordings for broadcast). ing.â The plaintiff had not demonstrated âan essential nexus between the right of access and a right to videotape,â and thus there was no First Amendment right to videotape.212 When applying this test, the Third Circuit expressly rejected the use of forum analysis. It reasoned that public meeting access claims do not allege an interference with speech or other expressive activity but a right to âreceive and re- cord information.â213 It noted, however, that other courts have found forum analysis applicable, determined a forum type for the meeting in ques- tion, and applied the appropriate test.214 In Rowe v. City of Cocoa, Fla., the Eleventh Circuit applied forum analysis to determine that a city council meeting was a limited public forum that could be restricted by âcontent-neutral condi- tions for the time, place, and manner of access, all of which must be narrowly tailored to serve a sig- nificant government interest.â215 The court also determined that there is a âsignificant govern- mental interest in conducting orderly, efficient meetings of public bodies.â216 The city council could thus âconfine their meetings to specified subject matterâ and give the presiding officer authority to âregulate irrelevant debate and dis- ruptive behavior at a public meetingâ so that meetings would not âdrag on interminably, and deny others the opportunity to voice their opin- ions.â Council rules could limit participation to residents or taxpayers, determine when citizens could speak, limit speech to legitimate inquiries rather than âadvancing arguments or repetitious questions,â and limit matters âto discuss the topic at hand.â217 The court also found that none of these requirements regulated based on viewpoint. In Carlow v. Mruk, a Rhode Island federal dis- trict court applied both a right of public access test and a forum analysis test to consider restric- tions on meeting participation in a nonpublic fo- rum, and it determined that their outcome was the same.218 Both allowed a special district to limit meeting participation to persons whose at- tendance was relevant to the purpose of the meet- 212 See id. at 183â84. 213 See id. at 183. 214 See id. at 182. 215 See Rowe v. City of Cocoa, Fla., 358 F.3d 800, 803 (11th Cir. 2004) (considering limitations on conducting city council meetings). 216 See id. at 803. 217 See id. 218 See Carlow v. Mruk, 425 F. Supp. 2d 225 (D. R.I. 2006) (considering an annual fire district meeting).
31 ing. The court also noted that First Amendment rights âdo not entail any government obligation to listen,â and do not âgrant to members of the public generally a right to be heard by public bodies making decisions of policy.â219 Both of these tests also allowed the public body to prohibit videotap- ing by the public at a meeting (despite allowing the press to record meetings), because this restric- tion did not impact the publicâs right to be pre- sent, and it was reasonable under the circum- stances to make distinctions for the press.220 The court also determined that officials could remove meeting attendees for violating meeting rules. 6. Government Speech The First Amendment applies to circumstances where third parties speak, but when government entities are âengaging in their own expressive conduct, then the Free Speech Clause has no ap- plication. The Free Speech Clause restricts gov- ernment regulation of private speech, it does not regulate government speech.â The government is âentitled to say what it wishes and to select the views that it wants to express.â This same free- dom to express the governmentâs own views also applies âwhen it receives assistance from private sources for the purpose of delivering a govern- ment-controlled message.â221 Thus when govern- ment speaks, its acts are not considered to open a forum for speech by others under the Supreme Courtâs forum doctrine. Forum analysis âsimply does not apply,â222 and government may reject requests by others to add their speech to the gov- ernmentâs own speech.223 Under the Supreme Courtâs holding in Johanns v. Livestock Marketing Association, government is 219 See id. at 244. 220 See id. at 247â48 (also noting that if officials had discretion to grant permission to videotape, the regula- tion could be a species of viewpoint-based discrimina- tion). 221 See Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 467, 129 S. Ct. 1125, 172 L. Ed. 2d 853 (2009) (determining permanent monuments that a city places in a city park are government speech, even when con- tributed by private persons). 222 See id. at 480. 223 See County of Clark, 33 F. Supp. 2d 896 (D. Nev. 1999) (upholding a proprietorâs refusal to add a private crÃ¨che to its holiday display); Ill. Dunesland Pres. Socây v. Ill. Depât of Nat. Resources, 587 F. Supp. 2d 1012, 1019â20 (N.D. Ill. 2008) (a parkâs display racks con- tained materials to facilitate park visitorsâ recreational pursuits; public forum principles were out of place, and the plaintiff had no right to display its own materials). speaking when two factors are met: where the âgovernment sets the overall message to be com- municated and approves every word that is dis- seminated.â224 Government speech thus can be determined by the âdegree of governmental con- trol over the message.â225 Others may participate in creating and funding the government speech (and may even be compelled to use the speech), but it remains government speech where govern- ment approves every word and adopts that mes- sage. For example, government is speaking when it effectively controls the messages sent, such as by retaining final approval authority over the selection of permanent monuments in a city park226 or by owning the holiday displays that it erects at an airport and permitting no others.227 Government is not speaking, however, when it only disseminates the speech of others, since oth- ers then determine the message.228 Although the First Amendment does not restrict government speech, other laws may apply (such as the Estab- lishment Clause, statutes, or regulations).229 The Supreme Court has also stated that it is unclear whether the First Amendment provides rights to the government.230 7. Internet Concerns Government practices involving the Internet can raise First Amendment concerns, and the case law in this area continues to develop. The Su- preme Court considered issues that relate to Internet filtering policies in a case involving libraries, United States v. American Library Asso- ciation, Inc.231 The Court believed that forum 224 See Johanns v. Livestock Marketing Assân, 544 U.S. 550, 561â62, 125 S. Ct. 2055, 161 L. Ed. 2d 896 (2005) (the government could require the beef industry to use generic promotional statements created by a board, but approved by the government, and funded by a targeted assessment on beef producers). 225 See id. 226 See Pleasant Grove, 555 U.S. at 473. 227 See County of Clark, 33 F. Supp. 2d at 902. 228 See Matwyuk v. Johnson, 22 F. Supp. 3d 812, (W.D. Mich. 2014) (personalized license plate messages were not government speech). 229 See Pleasant Grove, 555 U.S. at 468â69. 230 See United States v. Am. Library Assân, Inc., 539 U.S. 194, 211, 123 S. Ct. 2297, 156 L. Ed.2d 221 (2003) (considering library Internet services). 231 See id. See also Ashcroft v. Am. Civil Liberties Union, 535 U.S. 564, 122 S. Ct. 1700, 152 L. Ed. 2d 771 (2002) (determining that the Child Online Protection Actâs restrictions on Internet obscenity could constitu- tionally rely on the obscenity standards established by
32 analysis may not apply to the Internet. But it nonetheless considered forum analysis principles, similar to other First Amendment cases that have considered a forum that possesses some inherent expressive qualities. The Court noted that the Internet âdid not exist until quite recently.â It has not âimmemorially been held in trust for the use of the public,â and â[t]he doctrines surrounding traditional public forums may not be extended to situations where such history is lacking.â The Court further noted that the Internetâs presence as a library resource was not âan affirmative choice to open up its [the libraryâs] property for use as a public forum,â and without that intent, the Internet terminals at the library could not constitute a designated public forum.232 The Court then examined the purpose of the libraryâs Internet restriction. It considered the role of libraries in society and their established task of determining what materials to make available to the public. It reasoned that similar to print materials, libraries did not acquire Internet terminals to âcreate a public forum for web pub- lishers to express themselvesâ or to âencourage a diversity of views from private speakers,â but as âsimply another method for making information available.â Thus consistent with that purpose, the Court determined that libraries could exercise judgment in âidentifying suitable and worthwhile materialâ and âexclude certain categories of con- tent.â233 The Court did not attribute its decision in this case to forum analysis. But it considered the libraryâs setting and purpose for providing Inter- net access in a manner similar to other cases where a government proprietor has limited the use of a forum that possesses some inherent ex- pressive qualities, such as media broadcasts or a university setting.234 Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973), and were otherwise appropriately restricted in scope). 232 See id. at 205â06. 233 See id. at 206â08 (determining that Congress could impose Internet filtering requirements on librar- ies as a condition of federal funding). 234 See Ark. Educ. Television, 523 U.S. 666, 118 S. Ct. 1633, 140 L. Ed. 2d 875 (1998) (determining that a pub- licly owned television station could limit a political can- didateâs access to broadcast journalism); Christian Le- gal Soc., 561 US. 661, 130 S. Ct. 2971, 177 L. Ed. 2d 838 (2010) (determining that in light of the âspecial charac- teristicsâ of the school environment, a school could re- quire groups to comply with the schoolâs nondiscrimina- tion policy without violating First Amendment rights). The lower courts have examined issues that may arise when the government denies access to private speakers who want to post private mate- rials or links on the governmentâs Web page. Re- cent cases have analyzed these issues using forum analysis. Typically they consider whether a gov- ernment Web page (including its links) consti- tutes government speech, or whether the govern- ment has opened a limited public forum for private speech by inviting public access to its Web page. For example, in Page v. Lexington County School District One, a Fourth Circuit case, a school district created a Web page to oppose legis- lation.235 The Web site included third-party mate- rials and links to other sites, but the district selected all of those materials and links to bolster its own message. The court determined that the districtâs Web page was government speech under Johanns. The district only posted materials and links that it selected as being consistent with the districtâs message and it did not allow third par- ties to post their own materials. The court further determined that the district had retained control over its Web site by retaining the ability to exclude any link at any time. It never incorpo- rated material from other Web sites, and it con- tinuously and unambiguously communicated a consistent message by only posting links to sites that shared its position. The district also dis- claimed the contents of any linked Web site, mak- ing it clear that only the statements on its own site should be taken as the districtâs speech. The court believed that if the district had transformed its own site into a âchat roomâ or âbulletin boardâ for private opinions, it may have created a limited public forum by inviting private speech. Instead it did not create such a forum but only published its own messages as government speech.236 In a similar First Circuit case, Sutliffe v. Epping School District, a town created a Web site that included hyperlinks to advocate for the approval of budget and spending issues.237 The town denied access to residents who wanted to post opposing points of view, and the court upheld the townâs practices as government speech. The court noted that if the town could open a forum 235 See Page v. Lexington County Sch. Dist. One, 531 F.3d 275 (4th Cir. 2008) (determining that the districtâs Web site practices were government speech). 236 See id at 283â85. 237 See Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 334 (1st Cir. 2009) (upholding a townâs denial of Web page access).
33 for private speech just by placing limited hyper- links on its Web page, the âpublic forum doctrine could risk flooding the Town website with private links, thus making it impossible for the Town to effectively convey its own message and defeating the very purpose of the website and the hyper- links chosen by the Town.â238 The court believed that the town had met the elements of the gov- ernment speech doctrine, including a requirement that the town maintain control over its message, by retaining the right to exclude any link.239 E. Legal Challenges to Policies Airport proprietors implement their First Amendment requirements through written or unwritten policies and practices, and in a com- mercial context, sometimes through contracts and bidding documents as well. The manner in which these requirements are drafted or implemented can create the basis for a First Amendment legal challenge. This section considers some of the key doctrines that courts use to evaluate and uphold or invalidate regulatory language and proprietor practices. First Amendment violations can also serve as the basis to pursue restraining orders or damages; this section will briefly summarize common kinds of actions. 1. Prior Restraints on Speech The prior restraint doctrine examines whether a government restriction has the effect of improp- erly chilling or precluding speech in advance rather than just regulating what speech is com- patible with the forum. The courts will invalidate policies and practices that effectively preclude speech. As such, prior restraint cases often focus on the proprietorâs requirements for authorizing expressive activity at the airport, such as advance permit requirements, requirements to provide identifying information, or the proprietorâs rea- sons for denying a permit. The Supreme Court has determined that neu- tral advance permit requirements will pass con- stitutional scrutiny. In Thomas v. Chicago Park District, the Court considered an ordinance re- quiring an advance permit to use a city park for events that included more than 50 people.240 The court determined that this requirement applied 238 See id. at 334. 239 See id. at 333 (citations omitted). 240 Thomas v. Chicago Park Dist., 534 U.S. 316, 122 S. Ct. 775, 151 L. Ed. 2d 783 (2001) (upholding the Cityâs permit requirement for a municipal park). neutrally to all speakers and activities, and that the object of the permit system was not to exclude communication of a particular content, but to coordinate multiple uses of limited space, to assure preservation of the park facilities, to prevent uses that are dangerous, unlawful, or impermissible under the Park Districtâs rules, and to assure financial accountabil- ity for damage caused by the eventâ¦[T]o allow unregu- lated access to all comers could easily reduce rather than enlarge the parkâs utility as a forum for speech.241 It thus upheld the advance permit require- ment. Although courts will examine content-based licensing schemes more rigorously, a neutral li- censing scheme only ensures safety and conven- ience and thus safeguards âthe good order upon which [civil liberties] ultimately depend.â242 In this same case, the Supreme Court also determined that neutral reasons to deny a permit are constitutional when they do not allow an offi- cial to subjectively exercise discretion over deny- ing the permit. The Court noted that even content-neutral time, place, and manner restrictions can be applied in such a manner as to stifle free expres- sion. Where the licensing official enjoys unduly broad dis- cretion in determining whether to grant or deny a permit, there is a risk that he will favor or disfavor speech based on its content. â¦We have thus required that a time, place, and manner regulation contain adequate standards to guide the officialâs decision and render it subject to ef- fective judicial review.â243 In this case, the ordinance stated that the gov- ernment âmay deny a permit only for one or more of the reasons set forth in the ordinance,â which included incomplete applications and those con- taining material misrepresentations; where the applicant had previously damaged park property and not paid for the damage; where another ap- plicant was using the space; where use would pre- sent an unreasonable danger to health and safety; or where the applicant had violated the terms of a prior permit.244 The speaker argued that this allowed permissive action by providing that an administrator âmayâ rather than âmustâ deny a permit for the stated reasons. But the Court did not believe that this wording created undue dis- cretion absent showing âa pattern of unlawful fa- voritism,â and it did not require more rigid draft- 241 See id. at 322 (citations omitted). 242 See id. at 323. See also Freedman v. Maryland, 380 U.S. 51, 85 S. Ct. 734, 13 L. Ed.2d 649 (1965) (the Court required additional procedural safeguards for a licensing scheme that allowed regulators to reject films by determining that their contents were obscene). 243 See id. 244 See id. at 324.
34 ing.245 The Court noted that the ordinance also contained other safeguards, such as requiring the government to process applications within a speci- fied number of days, requiring a clear explanation of the reasons for a denial, and providing an ad- ministrative appeal process before judicial review. Thus the ordinance did not âleave the decision âto the whim of the administrator.ââ246 In City of Littleton, Colo. v. Z.J. Gifts D-4, L.L.C., the Supreme Court considered how access to a review process after a permit is denied affects the validity of a neutral permitting or licensing scheme.247 The Court noted that a license involv- ing First Amendment protections âmust be issued within a reasonable period of time, because undue delay results in the unconstitutional suppression of protected speech.â Thus, if government denies a permit, the First Amendment requires the government to provide a prompt process to review that decision for error. A prompt review is a safeguard âmeant to prevent âundue delay,ââ¦includ[ing] judicial, as well as adminis- trative, delay. A delay in issuing a judicial deci- sion, no less than a delay in obtaining access to a court, can prevent a license from being âissued within a reasonable period of time.ââ248 Under Littleton, an administrative review process must promptly provide access to the courts, and state courts will normally have the ability to provide for a prompt judicial decision âas long as the courts remain sensitive to the need to prevent First Amendment harms and administer those proce- dures accordingly.â249 The Court noted that its decision was premised on the âcore policyâ of an earlier case that had considered governmentâs regulation of the content of a message. Those cir- cumstances required strict administrative review time limits and the ability to obtain prompt judi- cial review using burden of proof rules that favored speech (placing the burden on the government).250 Airport cases have applied these principles when aggrieved speakers have challenged the va- lidity of permit requirements. For example, Port 245 See id. at 325. 246 See id. at 324 (citations omitted). 247 See City of Littleton, Colo. v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774, 124 S. Ct. 2219, 159 S. Ed. 2d 84 (2004) (considering the âprompt judicial reviewâ re- quirement applicable to licensing schemes under the First Amendment). 248 See id. at 780â81. 249 See id. at 781â82. 250 See id. at 779. of Portland considered a challenge to common per- mit requirements, including requirements to sub- mit identifying information; a scheme to assign airport locations on a first-come basis for any given day; and requirements to submit permit requests no less than 2 nor more than 7 days in advance (without specifying in the regulation when a permit had to be issued).251 A speaker challenged these requirements as imposing a prior restraint on speech. The court found that â[p]rior restraints in a nonpublic forum have been upheld as long as they were reasonable and view- point-neutral.â252 It also found that a ânonpublic forum by definition is characterized by âselective access.ââ253 It concluded that â[r]equiring a permit before engaging in constitutionally protected ex- pressive activity is not unreasonable in light of the airportâs primary purpose of facilitating air travel.â254 The permit and identification require- ments were not a prior restraint on speech. They allowed officials to assign space on a first-come basis, to prevent over-concentrations of activity, and to learn who would actually be on site in the airportâs congested and security-conscious envi- ronment.255 The aggrieved speaker in Port of Portland also claimed that the proprietorâs policy was constitu- tionally deficient because it lacked express proce- dures to provide for the prompt review of a permit denial. For example, the proprietorâs policy did not state a specific time when the proprietor had to decide whether to issue a permit, or contain procedures for obtaining a judicial review after a permit denial.256 The court, however, determined that the policyâs lack of express procedures for 251 See Port of Portland, Or., 2005 WL 1109698, at 8 (upholding the proprietorâs permit policy). 252 See id. at 10, citing Cornelius, 473 U.S. at 813 (de- termining that the government reasonably limited par- ticipation in a charity fund drive). 253 See id. citing Ark. Educ. Television, 523 U.S. at 679 (in a nonpublic forum, the state can select or limit speakers and content as long as the restrictions are reasonable in the forum and viewpoint-neutral). 254 See id. at 11. 255 See id. at 14 (noting that identification require- ments allow the airport proprietor to know who is on the premises and are the only practical way to inform the applicant about when speech activities may occur). 256 See id. at 14. The court found that procedural safeguards applicable to content-based licensing schemes were not applicable to a content-neutral time, place, and manner permit scheme.
35 these issues did not render the policy facially invalid.257 In another example, a speaker in Fort Wayne- Allen County challenged permit requirements under which the speaker had to provide identify- ing information, identify the subject matter of the proposed message (but not the viewpoint), state the number of participants, and obtain a permit in advance. The court found that these requirements were reasonable for the forum, so the proprietor could coordinate operations and security, and thus were constitutional. In this case, the proprietorâs detailed statements of intent and findings in sup- port of its regulations helped the court determine that the regulation was constitutional.258 2. Overbroad or Underinclusive Speech Policies The overbreadth doctrine considers whether a regulation is invalid because it has been drafted in a manner that limits more speech than neces- sary to accomplish its purpose and thus prohibits speech that is constitutionally permissible. An overbroad regulation is said to discourage speak- ers from even attempting to speak in the forum. If an aggrieved speaker can show that a law pun- ishes a ââsubstantialâ amount of protected free speech, âjudged in relation to the statuteâs plainly legitimate sweepââ¦[that] suffices to invalidate all enforcement of that lawâ until the law is narrowed in a manner that removes the threat of deterring constitutionally protected expression.259 The doc- trine is an âexpansive remedyâ provided out of concern that âan overbroad law may deter or âchillâ constitutionally protected speechâespecially when the overbroad statute imposes criminal sanctions.â260 This doctrine, however, also creates societal costs by blocking the âapplication of a law to constitutionally unprotected speech,â and thus the Court insists under this doctrine that the âlawâs application to protected speech be âsubstan- tial,â not only in an absolute sense, but also rela- 257 See Port of Portland, 2005 WL 1109698, at 14. 258 See Fort Wayne-Allen County, 834 F. Supp. 2d 877â78 (considering the proprietorâs permit require- ments and other issues). 259 See Virginia v. Hicks, 539 U.S. 113, 118â19, 123 S. Ct. 2191, 156 L. Ed. 2d 148 (2003) (citations omitted) (considering the overbreadth doctrine). 260 See id. at 119. See also Gannett, 894 F.2d at 66 (plaintiffs may assert a facial challenge that a regula- tion is overbroad irrespective of the plaintiffâs particular injury). tive to the scope of the lawâs plainly legitimate applications.â261 The courts have considered the overbreadth doctrine in a number of contexts at airports. For example, the Supreme Court found that a total ban on all First Amendment activities in airport terminals is overbroad and thus unconstitutional. In Board of Airport Commissioners of City of Los Angeles, the Court determined that regardless of an airportâs forum type, the First Amendment would not support a ban eliminating all speech, including speech that was not disruptive.262 In San Diego Unified Port District, a California federal district court determined that a proprie- torâs regulation was overbroad when it banned the distribution of âany literature, pamphlets or other printed materialsâ to accommodate terminal con- struction. The court found that despite the con- struction, â[s]uch sweeping language cannot with- stand First Amendment scrutiny,â noting that even the ban in Lee prohibited only âcontinuous or repetitiveâ leafleting.263 The court also determined that a ban on carrying signs that were not related to airport business was overbroad because it was ânot limited to large signs or to signs that obstruct pedestrian traffic or interfere with Airport employeesâ work.â It thus covered âeven those [signs] that have no effect on the Airportâs conges- tion problems. â¦The sign prohibition, therefore, cannot survive even the deferential standards ap- plied to non-public fora.â264 The court also ques- tioned another aspect of the signage ban, believ- ing it would not allow signs, T-shirts, or buttons with religious messages because they were âunre- lated to airport business,â even though speakers could discuss religion in speech areas.265 In Port of Portland, the Oregon federal district court upheld a proprietorâs policy against a chal- 261 See id. at 119â20. 262 See Bd. of Airport Commârs of City of L.A., 482 U.S. at 575 (a regulation banning all First Amendment activities in the terminal was determined to be over- broad and vague). 263 See San Diego Unified Port Dist., 950 F. Supp. at 1487 (determining that this airport continued to be a multipurpose forum for a First Amendment analysis during construction). 264 See id. at 1489â90. 265 See id. at 1490. The court noted that a message on oneâs person or home has a unique effect because it âprovide[s] information about the identity of the âspeakerâ [which is] an important component of many attempts to persuade.â See id. quoting City of Ladue v. Gilleo, 512 U.S. 43, 56, 114 S. Ct. 2038, 129 L. Ed. 2d 36 (1994).
36 lenge that it was overbroad. This policy applied regardless of the number of people seeking to engage in speech activities, and an aggrieved speaker claimed that small groups should not be regulated in the same manner as large groups and that the policy was âunconstitutionally overbroad because it sweeps a substantial amount of pro- tected expression into its regulatory ambit.â266 The court, however, determined that in a nonpub- lic forum, âthe relevant question is whether the policy is reasonable in light of the forumâs primary purpose. The airport is legitimately concerned about all leafleters, whether they are in large or small groups.â The court found that the policy was not overbroad because under its language, it only applied to persons desiring to engage in speech activity, regardless of their number.267 The courts may also find that a regulation is underinclusive if its drafting approach is overly limited, and as a result, the drafting favors some speakers by omitting others.268 The Supreme Court has noted that in some instances, underin- clusiveness may essentially be an examination of whether content discrimination is present due to omissions in a regulationâs drafting.269 In a non- public forum, however, a proprietor may constitu- tionally adopt selective regulations if they can be justified without regard to the content of a mes- sage and they are reasonable in light of the pur- poses of the forum. 3. Vagueness The doctrine of vagueness applies to any type of regulation, not just those regulating speech or other First Amendment concerns. It considers whether a regulation has been drafted in a man- ner sufficient to provide reasonable notice of a prohibited activity, consistent with the due proc- ess requirements of the Constitutionâs Fifth and Fourteenth Amendments. Vague regulations are invalid. The courts can find vagueness in several ways. â[V]ague laws violate two fundamental 266 See Port of Portland, 2005 WL 1109698, at 13, cit- ing Broadrick v. Oklahoma, 413 U.S. 601, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973) (determining that an overbroad statuteâs existence may cause others not be- fore the court to refrain from protected expression). 267 See id. 268 See Children of the Rosary v. City of Phoenix, 154 F.3d 972, 982 (9th Cir. 1998) (rejecting an argument that an advertising standard was underinclusive). 269 See R.A.V., 505 U.S. at 387 (noting that the First Amendment imposes not an underinclusiveness limita- tion but a content discrimination limitation upon a stateâs prohibition of proscribable speech). principles of due process: (1) they leave the public guessing as to what actions are proscribed; and (2) they invite arbitrary and discriminatory enforce- ment by giving unbridled discretion to law enforcement officers.â270 In particular, standards of âpermissible statutory vagueness are strict in the area of free expression. â¦Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.â271 For example, in San Diego Unified Port Dis- trict, a California federal district court deter- mined that an airport proprietorâs policy regulat- ing âproselytizingâ and âspeech makingâ raised many unanswered questions. The policy did not define these terms, and its lack of definition failed to âgive the person of ordinary intelligence a rea- sonable opportunity to know what is prohibited, so that he may act accordinglyâ¦[t]his uncertainty chills Plaintiffâs constitutionally protected expres- sion.â272 The court also found that by leaving these crucial terms undefined, the policy necessarily vested the proprietor with the authority to deter- mine when conduct fell within the terms. It found that â[s]uch unbridled discretion cannot survive constitutional scrutiny.â273 The court also noted the Supreme Court case of Board of Airport Com- missioners of City of Los Angeles, in which an air- port policy tried to distinguish between speech that was âairport relatedâ and speech that was not. The Court in that case determined that the term âairport relatedâ was unconstitutionally vague because â[m]uch nondisruptive speech â¦may not be âairport related,â but is still pro- tected speech even in a nonpublic forum.â274 In Port of Portland, an Oregon federal district court noted that a ââvoid for vaguenessâ challenge may be brought against regulations if the terms [used] are vague and would result in arbitrary and discriminatory enforcement by law enforce- ment officials.â275 In that case, however, the court found with little discussion that the proprietorâs 270 See San Diego Unified Port Dist., 950 F. Supp. at 1488, citing Grayned v. City of Rockford, 408 U.S. 104, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972) (determining that a noise ordinance was not unconstitutionally vague). 271 See id. 272 See id. at 1489. 273 See id., citing Bd. of Airport Commârs of City of L.A., 482 U.S. at 576. 274 See id. at 1490, citing Bd. of Airport Commârs of City of L.A., 482 U.S. at 576. 275 See Port of Portland, 2005 U.S. 1109698, at 13.
37 detailed policy âclearly spells out what a person must do before engaging in free speech activitiesâ and was ânot a regulation that âtraps the innocentâ by not providing fair warning.â276 The aggrieved speaker in Port of Portland also argued that the language of certain regulations was permissive rather than mandatory, and as such was too open-ended or gave the proprietor too much discretion. The regulations referred to what an official âwillâ do when considering a per- mit request, and the speaker claimed that this allowed the proprietor to exercise unfettered dis- cretion. But the court construed this language as being âsynonymous with the word âshallââ and interpreted the policy as ânot allowing Port offi- cials discretion in granting permit applica- tions.â277 The speaker also argued that under the policy, the proprietor had unfettered discretion when denying permit requests. The speaker claimed that the policyâs failure to expressly explain all appeal procedures created unfettered discretion, but the court found that in a facial challenge, a lack of certain express provisions would not in- validate the policy. The speaker also claimed that the proprietor could exercise unfettered discretion because under the policy, it could deny future per- mits for a âreasonableâ period of time once a per- mittee had violated a permit. But the court dis- agreed because under this language, âthere must be a prior permit violation for this provision to apply.â278 It also found that such a provision was not unconstitutional in a facial attack âabsent a history of abuse. No such history is demonstrated here.â279 The court further noted that even in a public forum, a permit revocation action based on the conduct of the permittee was considered âa means through which public safety personnel may terminate an activity that becomes dangerous or comes to violate the time, place, and manner re- strictions contained in the regulations.â Thus such a provision âconstitutes an unremarkable and ubiquitous safeguard, constitutional on its face.â280 The Supreme Court has determined that when a government rule is open to âarbitrary applica- tionâ or when âarbitrary discretion is vested in some governmental authority,â it is âinherently inconsistent with a valid time, place, and manner 276 See id. 277 See id. at 11â12. 278 See id. at 12. 279 See id. 280 See id. regulation because such discretion has the poten- tial for becoming a means of suppressing a par- ticular point of view.â281 Such a rule is contrary to rights under the First Amendment, as well as due process rights under the Fifth and Fourteenth Amendments. These challenges can arise both when regulatory language allows discretion over speech and when, in practice, the evidence shows that a proprietor has exercised discretion.282 4. Other First Amendment Challenges Aggrieved speakers who claim a violation of the First Amendment can challenge whether a prac- tice is constitutional based on the contents of a written or an unwritten policy (a âfacialâ chal- lenge) or based on how the proprietor applied the policy to the speakerâs request for access (an âas- appliedâ challenge). Facial challenges are common without regard to whether a policy is written. For example, in City of Philadelphia, the proprietor rejected a proposed advertisement under its writ- ten policy, then displayed the advertisement pur- suant to a settlement agreement and revised its written policy. The speaker then did not resubmit the advertisement but challenged the contents of the new policy and also claimed that there was an âunwritten policy, regularly adhered to, that is unconstitutional.â The speaker also claimed that under this unwritten policy, the City sought to âcreate an attractive environment to kind of pro- mote tourismâ and rejected airport advertising that officials believed was âcontroversial.â283 The court agreed that an unwritten policy existed because in depositions, airport officials had described an internal process under which they provided additional scrutiny to advertisements despite what was written in the policy. The speaker claimed that it could raise facial chal- lenges to both the written and unwritten policies because it was âcertain that the City would reject the ad under both,â and the court agreed that the speaker had standing.284 To raise an as-applied challenge, a speaker must actually request access for speech and suffer 281 See Heffron, 452 U.S. 640, 101 S. Ct. 2559, 69 L. Ed. 2d 298 (1991) (considering leafleting at state fair- grounds). 282 See Pence v. City of St. Louis, Mo., 958 F. Supp. 2d 1079, 1084 (E.D. Mo. 2013) (considering permits for street musicians). 283 See City of Philadelphia, 39 F. Supp. 3d 611 (E.D. Pa. 2014) (finding the plaintiff had standing to pursue a facial challenge where a policy was unwritten). 284 See id. at 2.
38 a denial or some other adverse decision. The chal- lenge then examines the constitutionality of the proprietorâs decision. For example, in Port of Port- land, the speakers did not have standing to pur- sue an as-applied challenge since they could not âshow an injury in factâ¦because they have not yet applied for a permit.â285 The speakers claimed that they should not have to first apply for a per- mit because they had suffered a âcredible threat of injury.â The speakers had previously distributed literature at the airport without a permit, and they feared that they would be arrested if they returned. But the court determined that the evi- dence did not support this claim. On previous occasions when the speakers had distributed leaf- lets without a permit, âthey were left undis- turbedâ and were not threatened with arrest. Thus their claims were only speculative. The facts did not excuse the speakers from applying for a permit before maintaining an as-applied chal- lenge, and without that challenge, the speakers also could not pursue their claims for violations of due process and equal protection rights.286 Speaker challenges attack a policy or a decision as unconstitutional in an effort to invalidate the policy or decision, and these actions can take vari- ous forms. For example, an as-applied challenge to a permit denial will normally take the form of an appeal, first to any administrative review process and then to the courts, in an effort to re- verse the proprietorâs decision. The challenge may include claims that the proprietorâs actions were arbitrary and capricious, such as by making deci- sions that were unsupported by the evidence. Claims also may allege that a decision was illegal by failing to comply with a speech policyâs re- quirements in addition to constitutional claims. The proprietor will need to demonstrate that its actions complied with applicable requirements.287 Speakers may also pursue a court order to restrain the proprietor from enforcing its policies. They can pursue temporary restraining orders or injunctions under state or federal law, and the requirements to obtain these orders are generally similar under both sets of law. The key element to obtain this relief requires the speaker to demon- strate that it will suffer âimmediate and irrepara- 285 See Port of Portland, 2005 U.S. 1109698, at 4. 286 See id. at 4â6. 287 See City of Littleton, Colo. v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774, 779, 124 S. Ct. 2219, 159 S. Ed. 2d 84 (2004) (considering the âprompt judicial reviewâ re- quirement applicable to licensing schemes under the First Amendment). ble injury, loss, or damageâ if the court does not issue an order restraining the proprietor.288 Nor- mally the speaker also must show that there is a likelihood it will succeed on the merits of the underlying claim against the proprietor, and it may need to post a bond and show other grounds in its favor as well, such as injury to the speaker that outweighs harm to the proprietor or that granting the order will not harm the public inter- est. The courts are sensitive to First Amendment violations. The Supreme Court has noted that â[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably consti- tutes irreparable injury.â289 Another court noted that speech rights are âconstitutionally protected from censorshipâ and that âconstitutional rights may not be denied simply because of hostility to their assertion or exercise.â290 Thus injunctive re- lief may be available. When speakers pursue claims for damages, they often do so under 42 U.S.C. Â§ 1983 based on a claimed First Amendment violation. That stat- ute provides a remedy to individuals who have been deprived of federal rights by someone acting under color of state law, and a related statute, 42 U.S.C. Â§ 1988, allows an award of attorneyâs fees for successful claims. In general, Â§ 1983 requires the claimant to show that a person or local gov- ernment entity acted under color of state law (such as under a statute, ordinance, regulation, custom, or usage), and in some manner caused the claimant to be deprived of a right, privilege, or immunity that is secured by the U.S. Constitution or by federal law. That right must be clearly established at the time of the alleged violation so officials could reasonably have known that the law was being violated. Section 1983 claims are complex actions, but they can result in awards of damages and attorneyâs fees against local gov- ernment entities, as well as punitive damages awards against the individuals who caused the 288 See FED. R. CIV. P. 65. 289 See Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976), citing N.Y. Times Co. v. United States, 403 U.S. 713, 91 S. Ct. 2140, 29 L. Ed. 2d 822 (1971). 290 See San Diego Unified Port Dist. v. U.S. Citizens Patrol, 74 Cal. Rptr. 2d 364, 367â68 (Cal. Ct. App. 1998) (invalidating a lower courtâs injunction against two groups where only one group had caused disruption by criticizing the other, and noting that precluding one partyâs rights due to hostile reaction is sometimes re- ferred to in case law as a âhecklerâs vetoâ), citing Cox v. Louisana, 379 U.S. 536, 551, 85 S. Ct. 453, 462, 13 L. Ed. 2d 471 (1965).
39 deprivation if they do not have immunity. Private sector individuals and entities can also be liable for damages if they are determined to be state actors, and injunctive relief is also available. A number of other actions may also be avail- able to remedy claimed violations of the First Amendment. For example, speakers may claim that government has retaliated against them in connection with exercising First Amendment rights and seek a remedy for the retaliation. To prove a retaliation claim, a plaintiff typically must show that the plaintiff engaged in constitu- tionally protected activity, and that the proprietor took adverse action against the plaintiff because of that activity.291 If a claimed First Amendment violation involves the amendmentâs clauses con- cerning rights of belief, actions may focus on reli- gious discrimination claims. In general, actions that provide a remedy for violations of law may be available to remedy an alleged First Amendment violation. F. Airports and Religion The First Amendment prohibits Congress, and through the Fourteenth Amendment the states, from making laws ârespecting an establishment of religion, or prohibiting the free exercise thereof.â This portion of the text imposes two require- mentsâthe Free Exercise Clause considers whether government has unconstitutionally cur- tailed religious observance and the Establishment Clause considers whether government has uncon- stitutionally endorsed religious observance or in- stitutions. The courts have recognized the tension between these two requirements as government works to avoid prohibitions in either direction. Consequently, Supreme Court cases in this area reflect evolving standards under these two clauses and complex issues as the First Amendment interacts with other applicable laws. This section will briefly review the Courtâs standards for evaluating government actions under these clauses and then provide examples of how these clauses have been applied at airports. 1. Free Exercise Clause Standards Challenges under the Free Exercise Clause focus on whether a law prohibits religious beliefs or practices directly or, more commonly, whether 291 For example, see Tobey v. Jones, 706 F.3d 379, 387 (4th Cir. 2013) (considering a peaceful protest at a screening checkpoint that resulted in an arrest and alleging First Amendment retaliation and a claim un- der 42 U.S.C. Â§ 1983). a law that is facially neutral and generally appli- cable places an impermissible burden on those beliefs or practices. Under former Supreme Court standards, the Court considered claims under the Free Exercise Clause by applying a strict scrutiny test. A challenger needed to show that a law sub- stantially infringed a religious practice, and gov- ernment then needed to show that this impact was justified by a compelling state interest.292 Over time, however, the Court upheld many facially neutral laws against challenges and ulti- mately rejected this strict scrutiny balancing test.293 Congress then adopted legislation to require the application of a strict scrutiny test, and the legislation has been found to apply in ad- dition to the Free Exercise Clause when federal actions substantially burden the exercise of relig- ion.294 Although the legislation was drafted to ap- ply to the states as well, the Supreme Court de- termined that it does not apply to state and local governments except for provisions concerning land use regulations and institutionalized per- sons.295 The Court has determined that the Free Exer- cise Clause âdoes not inhibit enforcement of oth- erwise valid laws of general application that inci- 292 See Sherbert v. Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963) (the state could not apply unemployment eligibility provisions to deny benefits to a claimant who refused employment because of reli- gious beliefs). 293 See Employment Div., Deptât of Human Resources of Or. v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990) (the Free Exercise Clause was not offended when prohibiting the exercise of religion is not the object of a regulation but merely an incidental effect of a generally applicable and otherwise valid provision; the State could disqualify employees for unemployment benefits after they were terminated from employment for a religious use of peyote). 294 See Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 189 L. Ed. 2d 675 (2014) (explaining the his- tory of the Courtâs Free Exercise Clause tests and fed- eral legislation and holding that federal regulatory re- strictions must comply with the Religious Freedom Restoration Act of 1993 (RFRA) without regard to past judicial precedent under the Free Exercise Clause); RFRA, 42 U.S.C. Â§Â§ 2000bb-1(a), (b), as amended by the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. Â§ 2000cc-5(7)(A) (RLUIPA) (these stat- utes incorporated and are argued to expand judicial review standards under Sherbert and subsequent cases). 295 See Cutter v. Wilkinson, 544 U.S. 709, 125 S. Ct. 213, 161 L. Ed. 2d 1020 (2005) (upholding a section of RLUIPA against a facial challenge).
40 dentally burden religious conduct.â296 If burdening religion is ânot the objectâ of a law but âmerely the incidental effect of a generally applicable and oth- erwise valid provision, the First Amendment has not been offended.â297 Thus different tests will ap- ply depending on the nature of the law in ques- tion. A law that is neutral and of general applicability need not be justified by a compelling governmental interest [under the Free Exercise Clause] even if the law has the incidental effect of burdening a particular religious practice.â¦[but a] law failing to satisfy these requirements must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest. 298 In addition, when an airport regulation is neutral and of general applicability, it will often comply with both the Free Exercise Clause and Leeâs non- public forum requirements concerning speech.299 2. Establishment Clause Standards The Supreme Court has been refining its Es- tablishment Clause test over a period of years. The Court announced a commonly used, and often criticized, test under Lemon v. Kurtzman, which requires the courts to review a government accommodation of religion to determine whether the accommodation has a secular purpose, whether its primary effect neither advances nor inhibits religion, and whether the accommodation fosters an excessive government entanglement with religion.300 Over time, the Lemon test has focused in particular on whether government actions âendorseâ religion under the specific facts of various cases in opinions that contain vigorous discussions regarding the viability of the test. And in a 2014 case, Town of Greece, N.Y. v. Galloway, the Court did not cite the Lemon test but instead 296 See id. at 714, citing Smith, 494 U.S. at 878â82. 297 See Smith, 494 U.S. at 878. 298 See Church of Lukumi Babalu Aye., Inc. v. Hialeah, 508 U.S. 520, 531â32, 113 S. Ct. 2217, 124 L. Ed. 2d 472 (1993) (an ordinance criminalizing the ritual slaughter of animals was not neutral or of general ap- plicability, and the governmentâs interest did not justify targeting Santeria religious activity). 299 See Port of Portland, Or., 2005 WL 1109698 (de- termining that a leafleting regulation was generally applicable and neutral and did not violate the Free Ex- ercise Clause). 300 See Lemon v. Kurtzman, 403 U.S. 602, 612, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971) (establishing the original Establishment Clause test); County of Alle- gheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 109 S. Ct. 3086, 106 L. Ed. 2d 472 (1989) (refining prongs of the original test). decided a case under the Establishment Clause by essentially using a âtotality of the circumstancesâ test.301 Town of Greece considered a variety of factors to be relevant to an Establishment Clause analy- sis. Among them, the Court determined that the Establishment Clause must be interpreted âby reference to historical practices and understand- ingsâ such as, in that case, a longstanding practice of ceremonial prayer in a legislative setting expressed for the benefit of promoting harmony in the legislative process. The Court found it unnec- essary âto define the precise boundary of the Es- tablishment Clause where history shows that the specific practice is permitted.â It believed acts such as legislative prayer are a symbolic expres- sion tolerating âbeliefs widely heldâ rather than a âtreacherous step towards establishment of a state church.â302 The Court did not rely on an âen- dorsementâ of religion as the proper test to evalu- ate the Establishment Clause in this case, noting that such a test would condemn a host of âtradi- tional practices that recognize the role religion plays in our society, among them legislative prayer and the âforthrightly religiousâ Thanksgiv- ing proclamations issued by nearly every Presi- dent since Washington.â303 Moreover, the Court did not believe that âthe constitutionality of legis- lative prayer turns on the neutrality of its con- tent,â provided there is âno indication that the prayer opportunity has been exploited to prosely- tize or advance any one, or to disparage any other, faith or belief.â304 The Court determined that once the govern- ment invites an observance such as prayer into the public sphere, it must permit that practice unfettered by the governmentâs own view, subject to the constraints of the occasion. It considered factors such as the specific circumstances under which the observance occurred; the purpose for including the observance; whether performing the 301 See Town of Greece, N.Y. v. Galloway, 134 S. Ct. 1811, 188 L. Ed. 2d 835 (2014) (considering whether a city could constitutionally open its council meetings with a prayer by considering numerous factors, but not overrule the Lemon test). See also Elmbrook School Dist. v. Doe, 134 S. Ct. 2283 (Mem.) (2014) (denying certiorari on an Establishment Clause issue after Town of Greece, and the dissent noting a need to clarify the Courtâs use of the Lemon test). 302 See id. at 1819. 303 See id. at 1820. 304 See id. at 1821â22 (noting that government may not mandate a civic religion any more than it may pre- scribe a religious orthodoxy).
41 observance demonstrated a pattern that deni- grated or proselytized (such as by chastising dis- senters or including lengthy religious dogma) or betrayed an impermissible government purpose; whether the government made reasonable efforts to be inclusive of the community that would be in the audience; and whether the setting and audi- ence for the observance indicated government coercion to âsupport or participate in any religion or its exercise.â305 The Court noted that âan Estab- lishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views,â and the âConstitution does not guarantee citizens a right entirely to avoid ideas with which they dis- agree.â306 The Court thus departed from the Lemon test in Town of Greece, but it did not expressly reject that test while continuing to re- fine First Amendment analysis under the Estab- lishment Clause. 3. Airport Property and Religious Observance Cases that have considered airport chapels, meditation rooms, and other airport property impacts involving religion have typically upheld the proprietorâs arrangements under the totality of the circumstances. For example, in Hawley v. City of Cleveland, the Sixth Circuit determined that an airport proprietor could lease space to a Catholic Diocese for an airport chapel without violating the Establishment Clause.307 The court noted that the chapel was located in space that was undesirable as commercial space; at least 16 other airports had chapels; by itself the Diocese had invested over $300,000 to improve the space and paid rent that was consistent with nonprofit use at the airport; the chapel provided aid and comfort to airport patrons and employees; the chapel was not visually distinct from the outside; the Diocese had conducted outreach to invite other faiths to use the space; the chapel contained prayer cards for several religious faiths; the lease required making the chapel available to other re- ligious groups and individuals regardless of the content of their worship activities; and no one had ever been denied use of the chapel. The monsignor 305 See id. at 1819â25 (noting that appreciation by some acknowledging the divine in public institutions does not suggest that those who disagree are compelled to join the expression or approve its content). 306 See id. at 1826. 307 See Hawley v. City of Cleveland, 24 F.3d 814 (6th Cir. 1994) (considering a chapel at the Cleveland Hop- kins International Airport). also provided invaluable secular service to those at the airport; the public frequently made favor- able comments about the chapel; and several air- line representatives had written letters express- ing support for the chapel services and facilities. Under the totality of those circumstances, the Sixth Circuit concluded that neither the presence of the chapel nor the airport documents authoriz- ing it violated the Establishment Clause. A New York federal district court reached a similar conclusion in Brashich v. Port Authority of New York and New Jersey. The airport proprietor in that case entered ground leases that allowed different religious tenants to construct chapels; retook the leased property for airport purposes and relocated the facilities to other locations; charged rent based on a per acre rate; occasionally bought tickets to events by these tenants, as it did with other tenants; and paid for directional sign- age, as it did with other tenants.308 The court determined that these chapels accommodated the religious practices of a large number of travelers, visitors, and employees, and that the airport pro- prietor had made provisions for other services to this population as well, including medical, dental, pharmacy, hotel, parking, shopping, and banking services. The proprietor did not âsponsor, subsi- dize or interfere with the religious groups which operate the chapels at the Airport. Nor does it ad- vise them on the conduct of their institutions.â Thus, â[o]n the facts presented,â the proprietor âhas made accommodations for religion, it has not established religion.â309 The court reached this conclusion based on both the Establishment Clause and the Free Exercise Clause.310 In Christian Science Reading Room Jointly Maintained v. City and County of San Francisco, the airport proprietor sought to evict a religious tenant solely out of a belief that state and federal Constitutions prohibited the lease.311 The Ninth Circuit determined that such an eviction violated the Constitutionâs Equal Protection Clause 308 See Brashich v. Port Auth. of N.Y. and N.J., 484 F. Supp. 697 (S.D.N.Y. 1979) (considering three chapels at John F. Kennedy Airport). 309 See id. at 703. 310 See id. at 702â03 (also determining that the plain- tiff lacked standing because he did not allege standing as a taxpayer (and the proprietor had no taxing author- ity), and he had not alleged or shown any other âdirect economic or non-economic injuryâ). 311 See Christian Science Reading Room Jointly Maintained v. City and County of San Francisco, 784 F.2d 1010 (9th Cir. 1986) (considering a lease at the San Francisco International Airport).
42 because under the circumstances, the lease did not violate the Establishment Clause. The court determined that benefits to religion âare improper only if they are other than âincidental.ââ 312 In this case, the court found that the tenant leased space on the same terms as other tenants; the rental transaction was arms-length; the proprietorâs pur- pose in renting was to obtain rent; the proprietor had little interaction with this tenant; airports commonly rent commercial space; citizens typi- cally do not think of airports as symbols of gov- ernment authority; and nothing suggested that similarly situated tenants were denied the oppor- tunity to rent. The court determined that these arrangements did not violate the Establishment Clause, and that the Equal Protection Clause requires government classifications to at least be rationally related to the purposes for which they are adopted. Thus the proprietorâs stated purpose for refusing to lease (constitutional compliance) was invalid, and its purpose for creating two clas- sifications of tenants violated the Equal Protec- tion Clause. The court noted, however, that this holding was narrow, and that it may be constitu- tionally acceptable to deny leaseholds to religious organizations on other grounds.313 A Seventh Circuit case considered a First Amendment challenge based on airport expansion plans. In St. Johnâs United Church of Christ v. City of Chicago, the court upheld an airport pro- prietorâs action to condemn property under a state statute that was enacted to give the proprietor broad condemnation powers for its expansion, in- cluding the power to condemn cemeteries.314 The plaintiff claimed that condemning a religious cemetery violated the Free Exercise Clause and the Equal Protection Clause, and that it also vio- lated a state statute that mirrored the federal Re- ligious Freedom Restoration Act and Religious Land Use and Institutionalized Persons Act (stat- utes that require courts to apply a strict scrutiny test). The court, however, determined that this condemnation statute was neutral and of general applicability and thus not a violation of these laws. The statute only applied to the religious cemetery because the cemetery was located in the path of the expansion. 312 See id. at 1014. 313 See id. 314 See St. Johnâs United Church of Christ v. City of Chicago, 502 F.3d 616 (7th Cir. 2007) (considering ex- pansion plans for the Chicago OâHare Airport). 4. Airport Holiday Displays Airport holiday displays involve actions taken by the airport proprietor rather than regulations that the proprietor imposes on third parties. These displays are typically considered govern- ment speech and will not be found to raise speech issues, but they may raise concerns under the First Amendmentâs Establishment Clause. For example, in Grutzmacher v. County of Clark, a Nevada federal district court considered whether an airport proprietor had violated the Establishment Clause by displaying a Christmas tree, a menorah, and a sign saluting religious freedom.315 The court determined that these cir- cumstances were almost exactly the same as a display that the Supreme Court had considered and upheld in a separate case, and that as such, the display did not violate the Establishment Clause.316 The plaintiff also argued that by placing its own display, the proprietor had opened a forum for public expression and that the plaintiff should be allowed to add a nativity scene to the display. The court found that â[e]recting its own display, while simultaneously prohibiting private displays, does not suggest an intent to open the Airport to private speech.â317 The court determined that the proprietorâs holiday display was government speech and that it did not create a forum for pri- vate speech. The proprietor also denied access to the speaker under a general regulation that pro- hibited private parties from placing structures at the airport, and the court determined that this general regulation was a reasonable and view- point-neutral way to control potential airport obstructions in a nonpublic forum. Additionally, because there was no First Amendment violation, the court found that the proprietor did not violate the Equal Protection clause.318 315 See County of Clark, 33 F. Supp. 2d 896 (D. Nev. 1999) (considering a private request to add a crÃ¨che to the proprietorâs holiday display). 316 See id., citing County of Allegheny, 492 U.S. 573, 109 S. Ct. 3086, 106 L. Ed. 2d 472 (1989) (considering the same holiday display). 317 See id. at 902. 318 See id. See also Lubavitch Chabad House, Inc. v. City of Chicago, 917 F.2d 341, 346â48 (7th Cir. 1990) (noting that Christmas trees are secular and upholding the airport proprietorâs regulation prohibiting all per- sons from placing private structures in nonleased spaces at the airport as a valid time, place, and manner restriction to assist with airport congestion under the public forum test that the court applied to the airport at that time).
43 5. Other Issues A variety of other matters can implicate the First Amendmentâs clauses concerning rights of belief. For example, leafleting and soliciting can involve religious expression. But as discussed in previous sections, time, place, and manner regula- tions that are reasonable and viewpoint-neutral will not violate the First Amendment in a nonpub- lic forum. The state action doctrine can also apply to the First Amendmentâs clauses concerning rights of belief. For example, in Cady v. City of Chicago, an airport chaplain denied the plaintiff access to display literature in a rack at the airport chapel.319 The plaintiff then asked the court to consider whether the chaplain acted as a state actor and had subjected the proprietor to liability. Prior to the courtâs decision, however, the proprie- tor determined to remove the display rack, so the court found the issue was moot. Security cases can also raise issues under the First Amendmentâs clauses concerning rights of belief. For example, in an Illinois case, a plaintiff pursued a Free Exercise Clause violation after she was subjected to an âextraordinarily intrusive searchâ at an airport âsolely because she adhered to her religious belief.â320 The court found these allegations supported a Free Exercise Clause claim under Supreme Court precedent that pro- vided â[t]he government may notâ¦punish the expression of religious doctrines it believes to be falseâ¦[or] impose special disabilities on the basis of religious views or religious status.â321 Speech issues originate in private expressive activity, but cases under the First Amendmentâs Free Exercise Clause and Establishment Clause can arise in other contexts without expressive activity. 319 See Cady v. City of Chicago, 855 F. Supp. 922 (N.D. Ill. 1993) (considering the Chicago OâHare Airport Chapel). 320 See Kaukab v. Harris, 2003 WL 21823752 (N.D. Ill. 2003) (considering claims by a woman wearing a hijab that she was subjected to an invasive physical search that intensified after she declined to remove her hijab in public or in front of a man for religious rea- sons). See also Shqeirat v. U.S. Airways Group, Inc., 645 F. Supp. 2d 765, 785 (D. Minn. 2009) (considering the arrest of six imams at the Minneapolis airport after, among other things, the imams engaged in public prayer). 321 See id. at 7, citing Smith, 494 U.S. at 877. G. Developing Issues Under State Constitutions All state constitutions contain provisions simi- lar to those found in the First Amendment.322 In general, state provisions establish speech rights, rights of assembly, rights to petition government, and rights that protect individual religious prac- tices and beliefs and prohibit government endorsements of religion. Some states have devel- oped case law interpreting these state provisions, and a few cases have applied such provisions to airport proprietors. State constitutional provi- sions can impose additional obligations on airport proprietors and create a potential for conflicts un- der the Federal Constitution. The Supreme Court has recognized that in gen- eral, state constitutions may create individual rights that are greater than those established under the First Amendment. If state courts de- termine that individuals have additional state rights, the government may have additional obli- gations to address those rights, and courts may determine state rights and obligations in a way that differs from a Federal First Amendment analysis. The U.S. Supreme Court can review these differences to determine whether they vio- late any of the U.S. Constitutionâs requirements. Thus an airport proprietor must comply with Fed- eral First Amendment obligations but must also know the extent to which the proprietorâs state constitution may expand those rights and obliga- tions and how the U.S. Constitution might affect state law. The U.S. Supreme Court has not fully consid- ered how state constitutional speech rights might affect government property owners. But the Court has developed some law under cases that consider speech activity on private property. In an early case, the Court first considered whether a com- pany-owned town could ban leafleting on streets and sidewalks where the private property owner provided government functions for the town. The Court determined that the private property owner was acting as the government, so federal constitu- tional obligations applied to the company in these circumstances and the companyâs ban on leaflet- ing was unconstitutional.323 Cases then chal- 322 See State Constitutional Provisions Table at Appendix A. 323 See Marsh, 326 U.S. 501, 66 S. Ct. 276, 90 L. Ed. 265 (1946) (the State permitted a company to own a town, and the town imposed a total ban on leafleting and caused the speakerâs arrest; the Court determined
44 lenged whether a private shopping mall owner could prohibit leafleting on its commercial prop- erty. Initially, the Supreme Court found that a private mall owner must comply with federal con- stitutional requirements in this setting. But it subsequently determined that state action is not present in a typical shopping mall setting, and as such, private mall property is not subject to the First Amendmentâs requirements.324 Then the Court considered Pruneyard Shop- ping Center v. Robins, a case in which the Califor- nia Supreme Court had determined that the Cali- fornia Constitution protected reasonable speech and petitioning at privately owned shopping cen- ters.325 The private mall owners argued that if the California Constitution created additional speech rights that allowed individuals to circulate peti- tions at the mall, the California Constitution then would deprive the mall owners of their federal First Amendment rights to choose what speech could occur on their property, and this state law would create a taking under the Fifth Amend- ment and constitute arbitrary action in violation of the Fourteenth Amendmentâs Due Process Clause. The Supreme Court in Pruneyard noted that the California Constitutionâs speech rights exceeded the scope of rights under the First Amendment. But the Court found that the First Amendment did not âlimit the authority of the State to exercise its police power or its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution.â326 The Court further found that while the state constitutional right that the private town owner had violated the speakerâs First and Fourteenth Amendment rights). 324 See Lloyd Corp. v. Tanner, 407 U.S. 551, 569, 92 S. Ct. 2219, 2229, 33 L. Ed. 2d 131 (1972) (determining that property does not âlose its private character merely because the public is generally invited to use it for des- ignated purposes,â and the âessentially private charac- ter of a storeâ and abutting private property does not change because it is âclustered with other storesâ in a shopping center). 325 See Pruneyard Shopping Center v. Robins, 447 U.S. 74, 81, 100 S. Ct. 2035, 64 L. Ed. 2d 741 (1980) (considering whether the Federal Constitution pro- tected the rights of mall property owners when the Cali- fornia Constitution permitted speakers to access the mallâs property for expression). 326 See id. at 81, citing Cooper v. California, 386 U.S. 58, 62, 87 S. Ct. 788, 791, 17 L. Ed. 2d 730 (1967) (a state constitutionâs provisions may be more expansive than the Federal Constitution). impacted the private ownersâ property, in this case the scope of that right did not âunreasonably impair the value or use of their property as a shopping center.â327 The mall was a commercial complex that was already open to the public. The Court thus found that under these circumstances, the state constitutional right did not result in a Federal Fifth Amendment taking or in an arbi- trary and capricious government action that vio- lated the Federal Due Process Clause.328 The Court also determined that the state constitu- tional right had not forced the property owners to create a forum for the speech of others in depriva- tion of their own First Amendment rights. The circumstances of the mall did not create a risk that other speakers would be identified with the mall owners, and the owners could post signs to ensure that they would not be so identified.329 Subsequent California cases have considered how that stateâs more expansive speech rights apply to speakers at airports but without address- ing concerns for how these rights might affect the government property owner. In a series of cases involving the Los Angeles International Airport, a speaker challenged a ban on solicitations for the immediate receipt of funds under both the Cali- fornia Constitution and the First Amendment. A federal district court enjoined the proprietor from enforcing this regulation because the court be- lieved that the airport was a public forum under the California Constitution, and that under Cali- fornia law the ban in question was content-based and unconstitutional.330 The Ninth Circuit then stayed these proceedings on appeal. At that time, the California Supreme Court was already con- sidering in a separate case whether this type of fundraising regulation was content-based and prohibited under the California Constitution. The California Supreme Court decided that such a regulation was not content-based and was subject to reasonable time, place, and manner regula- 327 See id. at 83. 328 See id. 329 See id. at 87. 330 See Int'l Soc. for Krishna Consciousness of Cal. Inc. v. City of L.A., 966 F. Supp. 956 (C.D. Cal. 1997) (the district court found that California law defined a public forum more broadly than under federal law for purposes of speech rights, and under the state test that considered whether speech was incompatible with the forum, an airport terminal was a public forum; the court thus found that under California law in such a forum, this solicitations ban was a content-based re- striction that was unconstitutional under the state con- stitution).
45 tions. Based on that state decision, the Ninth Cir- cuit then dissolved the injunction against the Los Angeles airport and remanded the case.331 The district court then entered summary judg- ment against the airport proprietor and perma- nently enjoined enforcement of its solicitation ban. It again determined that airport terminals were a public forum under the California Consti- tution, and it found that under the applicable test, this solicitation ban was not a reasonable time, place, and manner restriction.332 When the airport proprietor appealed, the Ninth Circuit then de- cided to ask the California Supreme Court to de- termine the forum type for the airport terminals under the California Constitution (but first it re- manded to the federal district court so the parties could supplement the record with evidence based on considerations following the terrorist attacks of September 11, 2001 (9/11)).333 The California Su- 331 See L.A. Alliance for Survival v. City of L.A., 993 P.2d 334 (Cal. 2000) (the California Supreme Court determined that an ordinance directed at public solici- tation for the immediate receipt of funds should not be considered content-based or constitutionally suspect under the California Constitution and should be evalu- ated under the intermediate scrutiny standard applica- ble to time, place, and manner regulations rather than under the strict scrutiny standard). 332 See Int'l Soc'y for Krishna Consciousness of Cal., Inc. v. City of L.A., CV97-03616 CBM(VAPX), 2001 WL 1804795 (C.D. Cal. Aug. 2, 2001). The court applied Californiaâs time, place, and manner test, which paral- lels the federal test, and it determined that the proprie- tor adopted the ban to address potential security threats and congestion (among other things). But the court found the regulation was not narrowly tailored and burdened more speech than necessary. It deter- mined on summary judgment that there was no evi- dence in the record concerning security distractions; that the airport presented evidence of peak hour con- gestion in the terminals but the ban applied at all times; and that there was no ample venue providing an alternative for these solicitations. 333 See Int'l Soc'y for Krishna Consciousness of Cal., Inc. v. City of L.A., 59 F. App'x 974 (9th Cir. 2003) (re- manding for supplementation of the record prior to cer- tifying the case to the California Supreme Court); Int'l Socây for Krishna Consciousness of Cal., Inc. v. City of L.A., 530 F.3d 768 (9th Cir. 2008) (certifying the forum question to the California Supreme Court after supple- mentation of the record). In the meantime, the airport proprietor also adopted a new ordinance under which it confined First Amendment activities to specified areas. The plaintiff challenged this ordinance as well, but the federal district court found the ordinance to be constitu- tional under federal law and declined to consider state preme Court then determined that it need not de- cide whether an airport terminal is a public forum under the state constitution. It believed that it had already addressed the issues raised in the case, because in a separate case, it had deter- mined that the California Constitution permitted banning these kinds of solicitations even on a public street.334 The state court had found that ban to be a reasonable time, place, and manner restriction because it was content-neutral, only regulated how the activity was conducted, and other methods of communication were avail- able.335 Based on the state courtâs decision, the Ninth Circuit then again dissolved the district courtâs injunction against the airport proprietor. But it remanded the case so the district court could con- sider the plaintiffâs remaining federal constitu- tional claim,336 and subsequently both the district and appellate federal courts determined that the airportâs regulation was reasonable under a First Amendment forum analysis.337 Thus when the state supreme court did not consider the airportâs forum type, it made a choice to avoid the potential for state conflicts with a federal forum analysis. As a result, the federal courts did not have occa- sion to consider the extent to which the U.S. Con- stitution might affect a different state analysis for rights that are contained in the First Amendment. A series of Oregon cases raised clear differences between the Oregon Constitutionâs speech clause and a First Amendment forum analysis, but these Oregon cases did not address concerns for how a different state analysis might impact a govern- ment proprietor. In a transit case upheld by the law while the primary case was ongoing. See id. at 771â 73 (discussing the procedural history of the cases). 334 See L.A. Alliance for Survival, 993 P.2d 334 (al- lowing time, place, and manner regulation of fundrais- ing solicitations under California law). 335 See Int'l Soc'y for Krishna Consciousness of Cal., Inc. v. City of L.A., 227 P.3d 395 (Cal. 2010) (finding that the proprietorâs ban was a valid restriction in a public forum, but not deciding the forum question un- der the California Constitution). 336 See Int'l Soc'y for Krishna Consciousness of Cal., Inc. v. City of L.A., 386 F. App'x 669 (9th Cir. 2010) (dissolving injunction and remanding). 337 See Intâl Socây for Krishna Consciousness of Cal., Inc. v. City of L.A., 764 F.3d 1044 (9th Cir. 2014) (up- holding the proprietorâs regulation under a federal fo- rum analysis pursuant to Lee after the district court found for the proprietor based on the proprietorâs inter- ests in reducing fraud, congestion, passenger-solicitor conflicts, and police distraction).
46 Oregon Supreme Court, Karuk Tribe of California v. Tri-County Metropolitan Transp. Dist. of Ore- gon, an Oregon state court considered whether a proprietary government transit agency could reject proposed bus advertising.338 The court first had to decide what test to use when applying the Oregon Constitutionâs speech clause to this denial of access for speech: a First Amendment-type forum analysis or a longstanding test under the state speech clause that prohibited the govern- ment from regulating based on the content of speech, except when the regulation fell within limited historic exceptions. The court rejected fo- rum analysis and adhered to the stateâs historic prohibitions without considering the nature or function of the governmentâs property. The transit agency in Karuk argued that as a government proprietor, and under its views of the Oregon Constitutionâs âwording, historical cir- cumstances, and interpretative case law,â the is- sues should be evaluated consistent with a First Amendment forum test.339 The appellate court, however, rejected this argument. It noted that when interpreting the Oregon Constitution, the courtâs goal was one of strict constructionâto âun- derstand the wordingâ¦in light of the way that wording would have been understood and used by those who created the provisionâ and to âapply faithfully the principles embodied in the Oregon Constitution to modern circumstances as those circumstances arise.â340 The First Amendment allows the government to limit speech when rea- sonable in a nonpublic forum and viewpoint- neutral. But the Oregon Supreme Court had pre- viously determined that the Oregon Constitutionâs speech clause âforecloses the enactment of any law written in terms directed to the substance of any âopinionâ or any âsubjectâ of communication, unless the scope of the restraint is wholly confined within some historical exception,â such as perjury or verbal assistance involved in a crime.341 Thus the court determined that the Oregon Constitu- 338 See Karuk Tribe of Cal. v. Tri-County Metro. Transp. Dist. of Or., 251 P.3d 773 (Or. Ct. App. 2011), affirmed by Karuk Tribe of Cal. v. Tri-County Metro. Transp. Dist. of Or., 323 P.3d 947 (Or. 2014) (affirming lower courts by an equally divided court). 339 See id. at 546, citing Priest v. Pearce, 840 P.2d 65 (Or. 1992) (analyzing habeus corpus rights under the Oregon Constitution). 340 See id. at 546. 341 See id. at 543, citing State v. Robertson, 649 P.2d 569 (Or. 1982) (case developing Oregonâs test when ap- plying state constitutional speech rights). tion created greater speech rights, and under the Oregon Constitutionâs test, the court rejected the transit agencyâs advertising restriction. The transit agency further argued that failing to take government proprietorship into account essentially violated federal constitutional re- quirements. It argued that there was a âfunda- mental inconsistencyâ between the stateâs âânon- contentâ approach and âforum analysis,ââ and that it did not make sense to ask government proprie- tors to find a historical exception for speech restrictions when a forum was previously closed to speech. The court, however, summarily found these arguments unpersuasive in light of its tra- ditional state analysis, and it found that by reject- ing a political advertisement, the agency had impermissibly regulated based on content under the state constitution. The transit agency at- tempted to argue that government proprietorship was a historic exception under the state constitu- tion, but the court found that this argument had not been preserved.342 On appeal, the Oregon Su- preme Court only stated that it affirmed the lower courts by an equally divided court.343 Thus by not considering the purpose and function of the public property where speech was proposed, these courts did not consider factors such as how the nature of the publicâs interest might change in different lo- cations or how speech activities might disrupt a proprietorâs ability to conduct its public functions. These state constitution cases point out the complexities that can arise, procedurally and sub- stantively, when state constitutions address in a different manner the rights contained in the First Amendment. The U.S. Supreme Court has deter- mined that states may create more expansive rights than those contained in the First Amend- ment, but differing rights can impose more expan- sive restrictions on a government proprietorâs ability to conduct its public function. An airport proprietor thus must be aware of any state obliga- tions, in addition to its obligations under the First Amendment, and consider how those obligations interact. 342 See id. at 778â79. The state appellate courts never considered the transit agencyâs First Amendment argument, having resolved the case on state constitu- tional grounds; the state district court rejected the transit agency under the state constitution and also found that its policy was not viewpoint-neutral under the First Amendment. See id. at 544. 343 See Karuk Tribe of Cal. v. Tri-County Metro. Transp. Dist. of Or., 323 P.3d 947 (Or. 2014) (affirming lower courts by an equally divided court).