Regulations Affecting the Exercise of First Amendment Activities at Airports (2015) / Chapter Skim
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4 Appendix A)
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5 questions."6 The Supreme Court has determined that the government's ability to restrict speech in a public forum is largely limited, and it uses a "strict scrutiny" test to determine whether a restriction on expression is valid in this type of forum if the restriction is based on the content of the expression. Strict scrutiny requires government to show that the restriction is "necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end."7 If, however, restrictions in this type of forum only govern the time, place, and manner for expression, courts will consider those restrictions under an "intermediate scrutiny test" in which regulations must be "narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication."8 A designated public forum is a venue that the government creates "by intentionally opening a non-traditional forum for public discourse," not by inaction.9 Courts thus must first decide whether a designated public forum exists.
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6 tions are reasonable measures to preserve the property's functions and are viewpoint-neutral.15 The courts determine whether a restriction is reasonable "in light of the purpose of the [nonpublic] forum and all the surrounding circumstances."16 The Supreme Court has noted that a neutral access restriction "need only be reasonable; it need not be the most reasonable or the only reasonable limitation." When considering restrictions, there also need not be "a finding of strict incompatibility between the nature of the speech or the identity of the speaker [being restricted]
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7 expression in airport terminals, and the proprietor cannot sanction arbitrary restrictions.
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8 tor's restrictions on speech were constitutional. The proprietor banned repetitive, face-to-face, nonprofit solicitations for the immediate receipt of funds in the airport's terminals (whether solicited through sales or otherwise)
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9 in general because he believed that framework essentially allowed the government to restrict speech on its property just by articulating a nonspeech purpose for the property. He believed that government property should always be evaluated objectively based on its actual physical characteristics 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.
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10 port. It created clarity that has allowed airport proprietors to more effectively manage their facilities.
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11 forum."59 The court then determined that the proprietor's location restrictions had to be "reasonably related to maintaining the multipurpose environment that the Port Authority had deliberately created."60 Despite this multipurpose environment, the court determined that the airport's primary purpose was "to facilitate commercial air travel."61 It noted that, although the proprietor offered a variety of amenities in its terminal, "most are consistent with the purpose of the Airport to facilitate air travel and to accommodate customers while they wait for flights." The court also examined the proprietor's statements of purpose and intent contained in the regulation, which stated that speech restrictions were intended to ensure security, operational efficiency, and aesthetics; ensure adequate nearby police presence to protect speakers; protect airport patrons from harassment, intimidation, and unlawful 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 proprietor's property, the court then considered whether the proprietor's speech locations were reasonable restrictions to preserve the forum for its intended purposes.
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12 The court then applied the nonpublic forum test. In Lee, the Supreme Court had cited sidewalk speech locations as one of the factors that had led the Court to uphold that airport's ban on solicitations in the terminals.
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13 Lee's analysis supplies the basis for making decisions about First Amendment access at individual airports. The courts rely on Lee's determination that airport terminals by nature are a nonpublic forum and address any forum-specific challenges to a forum type.
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14 account for impacts to low-budget, controversial newspapers.83 An airport's own changed circumstances may also serve as a basis for examining whether different speech restrictions are reasonable. For example, in Springfield v.
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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 pursuing that expression.
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16 all the more blatant…. 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 restriction."96 A speech restriction must be "justified without reference to the content of the regulated speech"; in other words, restrictions must be justified based on the purposes and limitations of the forum.97 When speech regulations consider the contents of a message, they are "presumptively unconstitutional" 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 "fighting words" in a message, but modern decisions have tended to limit the scope of those areas.99 C
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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)
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18 ality of speech restrictions imposed by the government owner on persons desiring access to the owner's property. Whether the speech was "pure" or "commercial" was only one factor to consider.114 The court then conducted its evaluation using Lee's nonpublic forum test and examined the regulation's reasonableness in light of the purposes of the forum.
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19 state actor.123 If a private party's acts meet the requirements for state action, the same acts also qualify as actions taken "under color of state law" for purposes of a claim under 42 U.S.C. § 1983.124 For example, in Wickersham v.
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20 The court found these facts to be direct evidence of a joint enterprise, constituting a symbiotic relationship between the concessionaire and the proprietor under the court's test for state action. It also found that, factually, both parties had acted to reject the advertising, and "both parties have an admitted interest and a stated hostility to the proposed message."130 Regardless of these facts, however, the court also stated that it would have found state action solely on the basis of the proprietor's admitted discretion to accept or reject advertisements.131 The court thus found state action, and under that doctrine both the concessionaire and the proprietor were responsible for the concessionaire's action.
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21 The proprietor argued that the court should consider whether this advertising (union criticism of an airline tenant) would undermine other commercial interests at the airport, such as those of the tenant.
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22 that the proprietor pursued under its unwritten policy, promoting a family-friendly environment and a positive image of the city, constituted viewpoint discrimination. The case also questioned elements of the Supreme Court's forum analysis framework.
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23 4. Contractual Restrictions on Speech Restrictions on speech that are required by contract can also result in First Amendment claims.
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24 project stabilization agreement between an airport 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 arbitrate 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.
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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.
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26 that basis was not consistent with the First Amendment even in an airport.174 In George v. Rehiel, the Third Circuit considered First Amendment implications when a passenger 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 antiAmerican book)
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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.
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28 present in this particular small airport made the ban in question reasonable.192 A series of cases involving the Hartsfield Atlanta 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.
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29 its employees."200 The courts first determine "whether the employee spoke as a citizen on a matter of public concern," and if so, "whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public."201 When employees are speaking as citizens about matters of public concern, "they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively."202 The Supreme Court observed that this test acknowledges the need for informed, vibrant dialogue in society and that repressing such a dialogue comes at a cost. If public employees could not speak about their employers' operations, "the community would be deprived of informed opinions on important public issues.
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30 as formal community meetings to discuss expansion plans. The courts are split as to the appropriate test for analyzing First Amendment access rights in connection with public meetings.
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31 ing. The court also noted that First Amendment rights "do not entail any government obligation to listen," and do not "grant to members of the public generally a right to be heard by public bodies making decisions of policy."219 Both of these tests also allowed the public body to prohibit videotaping by the public at a meeting (despite allowing the press to record meetings)
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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.
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33 for private speech just by placing limited hyperlinks on its Web page, the "public 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 hyperlinks chosen by the Town."238 The court believed that the town had met the elements of the government 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 commercial context, sometimes through contracts and bidding documents as well.
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34 ing.245 The Court noted that the ordinance also contained other safeguards, such as requiring the government to process applications within a specified number of days, requiring a clear explanation of the reasons for a denial, and providing an administrative appeal process before judicial review. Thus the ordinance did not "leave the decision ‘to the whim of the administrator.'"246 In City of Littleton, Colo.
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35 these issues did not render the policy facially invalid.257 In another example, a speaker in Fort WayneAllen County challenged permit requirements under which the speaker had to provide identifying information, identify the subject matter of the proposed message (but not the viewpoint) , state the number of participants, and obtain a permit in advance.
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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 "unconstitutionally overbroad because it sweeps a substantial amount of protected expression into its regulatory ambit."266 The court, however, determined that in a nonpublic forum, "the relevant question is whether the policy is reasonable in light of the forum's primary purpose.
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37 detailed policy "clearly spells out what a person must do before engaging in free speech activities" and was "not a regulation that ‘traps the innocent' by not providing fair warning."276 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 "will" do when considering a permit request, and the speaker claimed that this allowed the proprietor to exercise unfettered discretion.
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38 a denial or some other adverse decision. The challenge then examines the constitutionality of the proprietor's decision.
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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.
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40 dentally burden religious conduct."296 If burdening religion is "not the object" of a law but "merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended."297 Thus different tests will apply depending on the nature of the law in question. A law that is neutral and of general applicability need not be justified by a compelling governmental interest [under the Free Exercise Clause]
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41 observance demonstrated a pattern that denigrated or proselytized (such as by chastising dissenters 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 audience for the observance indicated government coercion to "support or participate in any religion or its exercise."305 The Court noted that "an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views," and the "Constitution does not guarantee citizens a right entirely to avoid ideas with which they disagree."306 The Court thus departed from the Lemon test in Town of Greece, but it did not expressly reject that test while continuing to refine First Amendment analysis under the Establishment Clause.
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42 because under the circumstances, the lease did not violate the Establishment Clause. The court determined that benefits to religion "are improper only if they are other than ‘incidental.'" 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 proprietor's purpose in renting was to obtain rent; the proprietor had little interaction with this tenant; airports commonly rent commercial space; citizens typically do not think of airports as symbols of government authority; and nothing suggested that similarly situated tenants were denied the opportunity to rent.
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43 5. Other Issues A variety of other matters can implicate the First Amendment's clauses concerning rights of belief.
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44 lenged whether a private shopping mall owner could prohibit leafleting on its commercial property. Initially, the Supreme Court found that a private mall owner must comply with federal constitutional requirements in this setting.
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45 tions. Based on that state decision, the Ninth Circuit then dissolved the injunction against the Los Angeles airport and remanded the case.331 The district court then entered summary judgment against the airport proprietor and permanently enjoined enforcement of its solicitation ban.
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46 Oregon Supreme Court, Karuk Tribe of California v. Tri-County Metropolitan Transp.
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