Board of Airport Commissioners of the City of Los Angeles v. Jews for Jesus, Inc.

PETITIONER:Board of Airport Commissioners of the City of Los Angeles
RESPONDENT:Jews for Jesus, Inc.
LOCATION:Craig, Colorado

DOCKET NO.: 86-104
DECIDED BY: Rehnquist Court (1986-1987)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 482 US 569 (1987)
ARGUED: Mar 03, 1987
DECIDED: Jun 15, 1987

ADVOCATES:
James R. Kapel – Argued the cause for the petitioners
Jay Alan Sekulow – Argued the cause pro hac vice for the respondents

Facts of the case

The Board of Airport Commissioners of Los Angeles adopted an ordinance which prohibited all “First Amendment activities” in the Los Angeles International Airport (LAX). Alan Snyder, a minister with Jews for Jesus, was instructed by an airport officer to refrain from distributing free religious literature on a walkway in the central terminal of LAX.

Question

Did the Los Angeles ordinance violate the First and Fourteenth Amendments of the Constitution?

William H. Rehnquist:

We will hear arguments first this morning in No. 86-104, Board of Airport Commissioners of the City of Los Angeles versus Jews for Jesus and others.

Mr. Kapel, you may proceed whenever you’re ready.

James R. Kapel:

Mr. Chief Justice, and may it please the Court:

This case involves whether the Board of Airport Commissioners legally have restricted the uses of their terminal facilities to their intended airport related purposes only, or whether they must allow the Jews for Jesus and others to use those facilities for their own particular non-airport-related activities.

The determinative issues in this case is whether the interiors of the terminal facilities at the Los Angeles International Airport are public forums or nonpublic forums.

That issue is determinative because it defines the standard that should be applied when reviewing the Board’s policy limiting the uses of the terminal facilities.

Sandra Day O’Connor:

Mr. Kapel, may I ask a preliminary question or two?

There was a resolution passed by the airport board, whatever it’s called.

James R. Kapel:

Yes, the Board of Airport Commissioners.

Sandra Day O’Connor:

Was that resolution binding without city council approval?

James R. Kapel:

It is binding without city council approval.

It does not have a criminal penalty associated with it without the city council approval.

So it is a rule–

Sandra Day O’Connor:

Has the city council ever approved it in fact?

James R. Kapel:

–No, it has not been presented to the city council.

The Board of Airport Commissioners has the power and ability to adopt rules and regulations regarding the use of the airport.

They cannot adopt criminal penalties.

Sandra Day O’Connor:

And in another preliminary inquiry, would the airport be a public forum under California constitutional law?

James R. Kapel:

No, I don’t believe so.

Under California constitutional law, I believe it tracks very closely the federal law in this case.

There are some distinctions.

Sandra Day O’Connor:

How about the Hoffman case making a railroad terminal a public forum?

James R. Kapel:

In that case there was no indication that the owner of the property ever attempted to restrict the uses of the terminal facilities.

In addition, as a–

Sandra Day O’Connor:

Was the state law point argued in the courts below?

James R. Kapel:

–Yes, it was argued.

Neither court addressed those issues.

Sandra Day O’Connor:

Thank you.

Lewis F. Powell, Jr.:

May I ask a question before you proceed, Mr. Kapel?

Has this ordinance ever been enforced against anyone?

James R. Kapel:

Yes.

Lewis F. Powell, Jr.:

Specifically?

James R. Kapel:

Yes.

It has been enforced from the standpoint that police officers have informed people and requested people to leave, and people have left.

The police officers have escorted people out of the buildings and onto the sidewalks.

Lewis F. Powell, Jr.:

When people have not left, have they been prosecuted?

James R. Kapel:

They have not been prosecuted.

The challenge to this case, and the district court hearing, because of that, the Board continued enforcing its policy; however until the constitutionality was decided, the city attorney’s office has not taken injunctive action against the people that violated the policy.

Lewis F. Powell, Jr.:

So this is a facial challenge?

James R. Kapel:

Yes, it is.

Antonin Scalia:

That means, I take it, that if we disagree with you that it is a public… if we disagree with you that it’s a public forum, what result should accrue?

James R. Kapel:

I believe that the determinative issue is the public forum issue.

Antonin Scalia:

Suppose we’re worried about the allegations of unequal enforcement of it?

James R. Kapel:

Excuse me, I’m sorry?

Antonin Scalia:

Suppose we’re worried about the allegations of unequal enforcement, the Christian Science reading room, for example, and the advertisement about environmental matters that are alleged to have been in the airport.

That issue is not before us?

James R. Kapel:

I don’t believe that issue is before you, because I believe both of those matters are airport-related matters, or matters the Board could determine were airport related.

The Christian Science reading room sounds very bad.

However, the issue with regard to our resolution is not the name of the tenant, but the purpose or the activity they’re conducting within the terminal buildings.

If the Christian Science reading room were merely a religious activity and did not provide an airport related activity, it would not be permitted.

If United Airlines wished to conduct a non-airport-related activity, it would not be permitted.

Antonin Scalia:

What I’m asking is, do we have to reach that?

Suppose we find, as you want us to find, that this is not… that this is not a public forum, but suppose we’re also concerned that the rules against First Amendment activity have not been applied even-handedly.

What should our disposition be?

James R. Kapel:

If you find that there has been viewpoint discrimination, where the Board has picked improperly and decided that an activity is airport related when it fact it isn’t, then I believe our resolution should not be enforced until we remedied that situation.

Antonin Scalia:

And we can make that determination here.

James R. Kapel:

Yes, I believe you can.

Antonin Scalia:

Did the lower court base its decision in part on that?

James R. Kapel:

No.

The lower district court found that the airport terminal facilities were public forums.

James R. Kapel:

They did not specifically indicate traditional or otherwise.

The Ninth Circuit–

Antonin Scalia:

So we wouldn’t have to… and the Ninth Circuit did the same?

James R. Kapel:

–That’s correct.

They found that it was a traditional public forum.

Antonin Scalia:

So if we’re worried about these other matters, we could remand and let them decide whether there’s been unequal enforcement, couldn’t we?

James R. Kapel:

Yes, you could.

Harry A. Blackmun:

Counsel, is your position one of all or nothing, that it either is a traditional public forum or it is not?

Do you have any room at all for what the Court has recognized in some cases, a limited public forum status?

James R. Kapel:

There is room for that in this case.

However, I believe that it is not necessary to reach that.

I believe the non-public-forum issue is determinative.

There is no question that speech occurs within the terminal.

And there is no question that there are information boards and things like that.

Again, those activities, whether they be speech or nonspeech, are airport related and necessary for the operation of the airport.

To allow information, so long as the Board limits it to that information that is needed by the travelling public in their travels, I believe it’s airport related and permissible in a nonpublic forum.

Harry A. Blackmun:

Of course, you have presented nothing by way of evidence to counter-balance the thing.

It seems to me you’re taking an all or nothing position here.

And if you lose, maybe we can’t take an intermediate way out, as we have done in some cases.

James R. Kapel:

That’s true.

John Paul Stevens:

May I ask, you said airport related, and you said, things needed by the traveller.

You don’t define airport related in terms of necessity, that everything there is absolutely necessary for the traveller.

You don’t need a Christian Science reading room.

Maybe it helps, but… is that your test?

James R. Kapel:

The test is airport related, and it is what the Board has determined aids the travelling public in their travels.

The Board has–

John Paul Stevens:

But not necessary for the traveller?

James R. Kapel:

–Not absolutely necessary.

Clearly it would be possible to operate an airline terminal without food.

John Paul Stevens:

And without a Christian Science reading room.

James R. Kapel:

It is not necessary to board an airplane.

John Paul Stevens:

However, if it’s something like the reading room that provides a place to sit while you’re waiting for planes, and maybe to obtain peace of mind before you get up in the storm, or something like that, why wouldn’t the literature that is passed out by these people perhaps serve some airport related function?

James R. Kapel:

The reading room provides a waiting area that is the same as any other waiting area in the terminal facilities.

It’s in a little different location, and someone other than the airport is paying for it.

People read magazines in that reading room just as they do in any of the waiting rooms.

John Paul Stevens:

Well, but they read newspapers, which is something to pass the time and occupy the traveller and perhaps give him peace of mind.

James R. Kapel:

Absolutely.

John Paul Stevens:

Why wouldn’t reading the literature that these people pass out be airport related in the same sense as reading a newspaper is?

James R. Kapel:

I believe reading the literature would be.

However, the activity of passing it out–

John Paul Stevens:

Well, why is that any different than passing… than offering it for sale by the news vendor?

James R. Kapel:

–I think it is different, because the Board of Airport Commissioners has determined that a certain amount of space within the terminal should be devoted to loading gates; a certain amount to newstands; a certain amount to–

John Paul Stevens:

Well, but could they then, just as they have… and consistently with the general policy decide, this is good health literature that will help the passenger be comfortable if there’s a thunderstorm or something; we ought to set aside an area of 10 square feet and let them have a booth to pass it out, just like the Christian Science people can pass out Mary Baker Eddy’s writings?

James R. Kapel:

–Well, the Board of Airport Commissioners does not decide what literature is made available within the terminals.

That is up to the concessionaire, or to any lessee that is in the terminal who has leased space for that purpose.

John Paul Stevens:

No, I understand.

But wouldn’t it be consistent with the policy, couldn’t they have come… I’m not suggesting they must… but could they consistently with the policy have said, we think this is good literature that would be helpful for the passengers to read instead of Time Magazine or Science and Health or whatever else it might be?

James R. Kapel:

Clearly they could come to us and do that.

And clearly they could lease space just like the Christian Science reading room has, if they were willing to provide a waiting area, and were not just there to hand out their pamphlets.

If they were providing an airport related service, a waiting area, they could have leased space like anyone else; they could easily–

John Paul Stevens:

Yes, but you keep going to the waiting area.

But isn’t the reading activity that the newspaper offered, isn’t that also airport related in the same sense, that it’s something the traveller wants to do.

James R. Kapel:

–That’s correct.

John Paul Stevens:

Why isn’t it equally conceivable that travellers might want to read the literature of the Jews for Jesus?

James R. Kapel:

They may well wish to read it, and they’re welcome to bring that in the terminals and read it in the terminals or anywhere in the airport.

Byron R. White:

Are the news people allowed to hawk their newspapers by walking around in the terminal selling them?

James R. Kapel:

Absolutely not.

The news and gift concession is from fixed locations which the Board has decided were appropriate.

Antonin Scalia:

But that isn’t how your ordinance reads.

I mean, that isn’t the limitation.

Antonin Scalia:

The limitation isn’t for the conduct of First Amendment activities by walking around the terminal, is it?

James R. Kapel:

No, it is not.

Antonin Scalia:

What specifically is prohibited?

James R. Kapel:

Non-airport-related activities.

Antonin Scalia:

So I’m a Congressman flying from Washington to Hawaii, and I have to transfer planes in Los Angeles.

I make an appointment with an aide to talk over some national issues, and I say, let’s meet inside the airport, and we want to talk over the pros and cons of some national issues.

That’s in violation of the ordinance?

James R. Kapel:

Absolutely not.

Conversation is not prohibited.

The activities conducted within the terminal facilities is what the Board is trying to prohibit.

The Board does not have a limitation on a person’s speech saying that the only speech–

Antonin Scalia:

Speech is not an activity?

What is an activity?

Suppose that the representatives of Jews for Jesus just stand there and they do nothing but speak, they don’t even pass out anything; they just speak, just the way I would be speaking to the Congressman?

James R. Kapel:

–I don’t believe there would be any problem with that.

Antonin Scalia:

Oh really?

It’s only the passing out of the literature that’s the problem?

James R. Kapel:

I believe conversations are not a problem.

If someone were to hold a rally in there with 200 people, I believe that would be an activity that would not be airport related, and would be in violation.

Antonin Scalia:

I couldn’t give the Congressman a piece of paper.

I could talk to him if he came?

James R. Kapel:

No, I believe you could give the Congressman a piece of paper.

William H. Rehnquist:

Well, isn’t the ordinance designed in part to prevent obstruction of the passage of people along the concourses on the way to the planes, and coming out from the planes?

James R. Kapel:

Of course.

The ordinance here was adopted because the Board of Airport Commissioners had a choice as to how they operate their facility, assuming it’s not a traditional public forum.

They could limit it to the official business of the airport, or they could open the facility for all types of activities, and adopt a time, place and manner restriction.

They chose the former option, to limit it to the official business of the airport.

Granted, activities occur within the facility between individuals which are not directly airport related.

But those activities occur in every building.

And if the mere fact that those activities did it, every building would be a public forum; every government building.

Thurgood Marshall:

Is there anything in the record to show exactly what they do?

Like grab hold of your arm and don’t let you walk, and stand in front of you and not move?

Is that in the record?

James R. Kapel:

It is in the record from the standpoint that the city has stipulated that the Jews for Jesus, the individual who brought this lawsuit, was not interfering with the travelling public, and was not grabbing onto anybody.

However, the offensiveness of his activity I don’t believe is the issue here.

The real issue here is, can the Board exercise its option to reserve the facility to only those activities that directly aid the travelling public in their travel.

Thurgood Marshall:

— do.

James R. Kapel:

Excuse me?

Thurgood Marshall:

What is wrong with what these people do?

James R. Kapel:

Nothing is wrong with what they do.

Thurgood Marshall:

Well, how can you prohibit something that doesn’t do anything wrong?

James R. Kapel:

Because we are trying to control the uses of the interiors of the terminal facilities.

The mere fact that it is not wrong does not mean that it is airport related and is the best use of the terminal facilities.

Thurgood Marshall:

Well, what right do you have to stop it?

James R. Kapel:

I believe the Board has the right to limit the use of its facilities to their intended, dedicated purposes.

Thurgood Marshall:

Could it stop all red-headed people from using it?

James R. Kapel:

Absolutely not.

Thurgood Marshall:

Why not?

James R. Kapel:

Because I believe that would be discriminatory.

The people–

Thurgood Marshall:

Well, why isn’t this discriminatory?

You’re singling out one group of people.

James R. Kapel:

–No, I don’t believe we have singled out one group of people.

What we have tried to do is define–

Thurgood Marshall:

You have singled out people that you don’t want to use your facilities?

James R. Kapel:

–Absolutely not.

The Jews for Jesus are welcome to use our facilities for their travel purposes.

They’re welcome to be a passenger; they’re welcome to come in and lease space, so long as the activity they wish to do–

0 xxx.

James R. Kapel:

–I’m sorry?

Thurgood Marshall:

Are they welcome to come in and visit and just stand there?

James R. Kapel:

Yes.

We do not have–

Thurgood Marshall:

Well, what are they doing other than that?

James R. Kapel:

–They are conducting literature distribution.

They are not just generally coming into the airport.

They are conducting an activity.

Thurgood Marshall:

If they’re just standing there holding up their book and saying nothing else, is that prohibited?

James R. Kapel:

I don’t know if that would be prohibited or not.

The Board–

Thurgood Marshall:

Well, what are they doing other than that?

James R. Kapel:

–They are conducting a literature distribution activity within the terminal.

It is not just an occasional occurrence.

It’s not somebody passing through the terminal in their travels, handing somebody another piece of paper.

They are not there for an airport purpose.

They’re not there just to generally sight-see.

They are conducting a non-airport-related activity.

They’re trying to achieve their particular objective.

And we, the Board, has tried to limit the airport–

John Paul Stevens:

Mr. Kapel, may I go back for a second?

The resolution itself uses the term, prohibits First Amendment activities.

James R. Kapel:

–That is correct.

John Paul Stevens:

And it doesn’t use the term, airport related activities, does it?

Or am I wrong on that?

James R. Kapel:

I believe earlier in the resolution, in the whereas clauses–

John Paul Stevens:

I see.

James R. Kapel:

–it refers to accommodating air commerce and air navigational–

John Paul Stevens:

But what is prohibited by the resolution is, quote, First Amendment activities, unquote, I think; isn’t that right?

James R. Kapel:

–By the resolution.

John Paul Stevens:

The resolution.

James R. Kapel:

However, the resolution is not something new.

The resolution came about in order to address the interaction between protected activities and the Board’s longstanding policies of limiting the airport to its intended purposes.

The airport had a number of requests from a wide variety of people.

The people that ignored the Board’s policy were claiming the right to ignore that policy because of the First Amendment.

Therefore the resolution was directly to address that.

And it reaffirmed the policy.

John Paul Stevens:

Correct.

But the conduct that is prohibited by the resolution is, quote, First Amendment activities, unquote, as I read it.

Of any individual or any… engages in First Amendment activities and so forth, he’s directed… the city attorney to institute appropriate litigation.

But does the ordinance define the term… or the resolution define the term, First Amendment activities?

James R. Kapel:

No, it does not.

John Paul Stevens:

Does that mean that if, for example, one of these people wore… carried a sign, say they were a sandwich, you know, one of these wooden signs, that said, Jews for Jesus, whatever their message might be.

Would that… that would violate it, I suppose?

James R. Kapel:

I believe it would violate it.

John Paul Stevens:

And I take it if a political candidate came in and said, vote for Joe Smith, carried a banner or something like that, that would violate it?

James R. Kapel:

The Board has denied that before, yes.

John Paul Stevens:

So that would… and what if he just spoke out loud and went around shaking hands with people?

That would be against the resolution… a candidate?

James R. Kapel:

I believe that’s a closer question.

But yes, I believe the Board would find that if he was campaigning there, it would violate–

John Paul Stevens:

So basically, whatever the First Amendment protects, the resolution prohibits?

It’s how it reads.

What I turn to the person next to me and say, good morning, how are you?

James R. Kapel:

–I don’t believe that would violate–

Antonin Scalia:

I don’t have a First Amendment right to turn to the person next to me and say, good morning, how are you?

James R. Kapel:

–You do have a First Amendment right.

The resolution doesn’t focus on First Amendment as prohibiting it.

The resolution allows First Amendment activities on the sidewalk area.

Non-airport-related commercial activities would not be permitted on the sidewalk areas, the exteriors.

The Board addressed the interaction of the First Amendment protected activities with its policy by allowing those activities to occur on the sidewalks.

James R. Kapel:

Other non-airport-related activities are not permitted to occur on the sidewalk.

John Paul Stevens:

Now let me just be sure I understand.

The sidewalk you refer to is the external sidewalk.

If you want from United to American outside, where you take the bus, that’s okay.

James R. Kapel:

Outside of the terminal facilities.

John Paul Stevens:

But if you walk on your internal, where you walk about half a mile down these alleys, that’s prohibited in there, isn’t it?

James R. Kapel:

Yes, it is.

John Paul Stevens:

That’s not part of the sidewalk.

Antonin Scalia:

You know I guess what we’re talking about is overbreadth problems.

That’s not the basis on which the court below went.

But don’t you see some problems of overbreadth here, just banning all First Amendment activity?

James R. Kapel:

If there are any problems with overbreadth, the problems would come up in terms of determining what First Amendment activities would be allowed on the sidewalk areas, or would not… would be permitted on the sidewalk areas.

I don’t believe there are any overbreadth problems with regard to airport-related activities.

Sandra Day O’Connor:

Well, clearly there are.

I mean, the language of the resolution is very simple.

It says that the central terminal area is not open for First Amendment activities by any individual or entity.

And that covers the good morning to the person next to you, under the literal terms of it.

There is absolutely no attempt to define it in this resolution, is there?

James R. Kapel:

There is not an attempt to define First Amendment activities within the resolution.

There is an attempt to define airport-related activities.

The Board of Airport Commissioners has not prohibited speech within the terminals.

I think it’s impractical to think they could.

Byron R. White:

0 (xxx)

I mean, the resolution says it.

I don’t–

James R. Kapel:

I believe the resolution says that the interiors of the airport should be limited to airport purposes only.

Byron R. White:

–Well, in your answers to questions, you’ve identified some First Amendment activities that are forbidden; some that are not forbidden, as you interpret the ordinance.

James R. Kapel:

Yes, I have identified some activities that have been protected–

Byron R. White:

Some First Amendment activities are and some First Amendment activities that aren’t.

James R. Kapel:

–That’s correct.

James R. Kapel:

Speech is a protected activity.

Speech happens, occurs, in every public building there is.

I don’t believe the fact that speech occurs or that people read newspapers within a building requires the government to open that building to all types of expressive activities.

Antonin Scalia:

But you haven’t banned… you haven’t banned just some types.

I mean, that’s the problem.

If you read it, you’ve banned all types.

But again, maybe your point is that that’s not what’s before us.

That that’s an overbreadth problem, and all we have before us is a decision below that says that this is a public forum, and you have to allow all types.

And that even if it weren’t overbroad it would be no good.

Is that–

James R. Kapel:

That is correct.

Antonin Scalia:

–That’s what I thought.

James R. Kapel:

I think the public forum, nonpublic forum, issue is definitely the issue before you.

The Ninth Circuit Court of Appeals and the respondents have claimed that the interiors are traditional public forums, and therefore, all types of speech can only be restricted by a time, place and manner restriction.

They’ve cited among other things there’s unrestricted public access into the terminals, and the fact that people read or converse in the terminals.

They also claim that there is some sort of preferential treatment for commercial activities because commercial speech, in a limited context, has been permitted in the terminals.

These arguments, I believe, fail to recognize the nature and purpose of LAX, that is, its airport-related purposes; and also fails to recognize that the government has the right to reserve their facilities under their control to their official business.

The commercial activities and the commercial speech that occurs within the terminals are all airport related.

John Paul Stevens:

May I ask you one other question?

Some airports, out in front of the airport, they do have a covered area, so you’re sheltered from the rain, and there may even be kind of like a tunnel where you drive in.

Supposing the airport decided to make its sidewalks outside part of the airport by appropriate constructive devices, and decided to extend the ban to the outside sidewalks… what are now outside sidewalks as well?

I suppose your theory would be the same, that they could do that, couldn’t they?

James R. Kapel:

Although that’s not the issue here, I think there are… I think the Board would have a right to do so.

I think there is precedent for that.

John Paul Stevens:

And they could probably include the parking lot, too.

It’s a big area.

It’s all devoted to airport function, and the driveways up to it.

Everything inside the sign that says, you are now entering Los Angeles Airport or whatever it is.

James R. Kapel:

I believe certain cases like Greef v. Spock and so forth would support that.

The Board has not done that.

James R. Kapel:

I believe they’ve attempted to show a sensitivity to First Amendment activities by permitting them within the airport.

John Paul Stevens:

You mean outside the airport.

By permitting it outside the airport?

James R. Kapel:

Excuse me, on the sidewalk areas outside the interiors.

I would like to save a few minutes.

Thurgood Marshall:

Well, I still don’t understand how you keep saying that the airport permitted you to do it outside.

They haven’t a blame thing to do with outside.

They’re not doing any great favor by letting you do it someplace else.

Am I right or wrong?

James R. Kapel:

I believe there’s an argument that could be made that the airport is not integrated into the open streets and parks of a municipality; that the sidewalk areas inside the terminal areas, even though they are exterior sidewalks, are not identical to those that were involved in U.S. v. Grace.

So therefore I believe the Board would have the power–

Thurgood Marshall:

Do you have any ordinance to protect you on that?

You’re just taking that right out your–

James R. Kapel:

–I don’t believe so.

I believe the Board’s policy–

Thurgood Marshall:

–Well, the Board’s policy is limited by the statute; am I right?

Does the statute give them the right to legislate as to the sidewalks: yes or no?

James R. Kapel:

–Yes.

With regard to all airport property, they have the right to adopt rules and regulations.

Thurgood Marshall:

Well, is the sidewalk, quote, airport property?

James R. Kapel:

Absolutely, everything surrounding those terminals.

Thurgood Marshall:

Is that in this record?

James R. Kapel:

Yes.

Thurgood Marshall:

It says so in this record?

James R. Kapel:

Yes, I believe in the stipulated facts, approximately number 8 or 9.

Thurgood Marshall:

Thank you.

James R. Kapel:

I would like to reserve a few minutes, if I may.

William H. Rehnquist:

Thank you, Mr. Kapel.

We’ll hear now from you, Mr. Sekulow.

Jay Alan Sekulow:

Mr. Chief Justice, and may it please the Court:

Jay Alan Sekulow:

Local governments have important responsibilities concerning their efficient operation of airports under their control.

However, the record in this case is clear.

There is no justification for a sweeping ban on First Amendment activities which would subordinate cherished First Amendment freedoms.

In fact, four circuit courts and numerous district courts have determined that airport terminals are public fora.

The petitioners, throughout their argument–

Byron R. White:

You mean just generally that any airport… any airport that’s open to the public is a public forum?

Jay Alan Sekulow:

–Your Honor, we have couched our argument that… a major airport terminal.

The designation “major” is not really regarding the amount of people that would seek access.

Byron R. White:

And you would say that nothing that the city could do could… could close it, or to… or to put it in a category other than a public forum?

Jay Alan Sekulow:

Our position is twofold.

That by tradition, if you will, that a public forum has been created.

Byron R. White:

So it’s like a sidewalk, they just can’t–

Jay Alan Sekulow:

Yes, a sidewalk or a street or a park.

William H. Rehnquist:

–How has it been created by tradition if airport authorities close them?

Jay Alan Sekulow:

Well, the tradition, Your Honor–

William H. Rehnquist:

I mean what is the tradition with respect to major airports?

Jay Alan Sekulow:

–Major airports as we know them are a major… a recent phenomenon.

Their history is limited.

William H. Rehnquist:

So there is no tradition with respect to major airports; is that true or false?

Jay Alan Sekulow:

I think there is a tradition, Your Honor.

William H. Rehnquist:

What is it?

Jay Alan Sekulow:

I think it’s twofold.

The first part of the tradition analysis could be that in a limited history… there is a history, though… First Amendment activities in the central terminal area at LAX have taken place.

Jews for Jesus has been distributing religious literature for over 12 years now.

And the other history–

William H. Rehnquist:

So that is the tradition, what’s happened in the past 12 years?

Jay Alan Sekulow:

–Considering the length of the history of the airport itself, that period of time is substantial.

We would further argue for a history in this case one looking at transportation centers generally.

City gates… we’ve argued this in our brief… the city gates, from the period of scripture, have been places where people have come to hear ideas.

It later moved to railroads, the waterfront, and now airport terminals.

Jay Alan Sekulow:

Our position is that–

Antonin Scalia:

I thought about that city gates thing.

Is it… do you really think that the analog is the city gate?

Or wouldn’t the analog be, to go back to the time of the Constitution, wouldn’t it be the inn at which the coach would stop to pick up passengers.

And they’d all assemble there and sit down in the dining room and eat a piece of mutton or something.

Were… were Jews for Jesus allowed inside these inns?

Do you think so?

They were private operations, weren’t they?

Jay Alan Sekulow:

–Well, Your Honor, I think in the spectrum of history, if you will, starting from… if you want to start from the Constitution, our position would be, not being there, of course, that Jews for Jesus would have had the right if in fact it was not a private enterprise.

We’re not saying that all places are public forums.

Everybody can go everywhere for First Amendment activities.

Antonin Scalia:

No, but come back to a place where travellers gather to use transportation.

Why has that been historically the place, like city gates, where there’s classic First Amendment proselytizing and argumentative activity?

I don’t know.

Jay Alan Sekulow:

The places such as an inn or a bus terminal or a rail station have been the places where people have gathered.

They have become, if you will, the town squares.

Antonin Scalia:

The innkeeper couldn’t throw somebody out, saying I don’t want to have any… you know, no politics, no religion in my inn.

We want happy people.

Jay Alan Sekulow:

The innkeeper could throw someone out if the innkeeper wasn’t a government sponsored organization like the Los Angeles International Airport.

I think your analogy is very good.

But the difference–

Antonin Scalia:

But he traditionally was a private operation, that’s the point.

And the railroad station traditionally was a private operation, wasn’t it?

Jay Alan Sekulow:

–No, I think that from a historic standpoint, it was the access issue there.

I don’t think the case in this particular… our particular case, I think we’re looking at the use of those facilities as places where people have congregated.

William H. Rehnquist:

But what’s your answer as to the private versus public ownership of a railroad terminal in this tradition?

Jay Alan Sekulow:

A different situation as far as the actual private ownership.

What we were seeking to show vis-a-vis the analogy of scripture, ancient… the city gates, going forward to the airport, was, these were places where people congregated.

William H. Rehnquist:

In the railroad terminals?

Jay Alan Sekulow:

Yes, I mean it was–

William H. Rehnquist:

And yet there’s no question that people could have been thrown out of there by the owners of the terminals.

Jay Alan Sekulow:

–That’s correct, Your Honor.

In a private terminal, that would be correct.

William H. Rehnquist:

And weren’t almost all of the railroad terminals privately owned?

Jay Alan Sekulow:

I’m not an expert in that area, and I don’t know if in fact all of them were privately owned.

However–

Thurgood Marshall:

Have you ever seen a station where people stand around in groups and discuss things?

Jay Alan Sekulow:

–Excuse me, Your Honor?

Thurgood Marshall:

Have you ever seen a station or an airport where people stand around and discuss problems at all?

Jay Alan Sekulow:

Absolutely.

Thurgood Marshall:

You have?

Jay Alan Sekulow:

I have, Your Honor.

Where people have stood around–

Thurgood Marshall:

Well, you get in Grand Central Station around 5:00 o’clock, and you’ll get run over.

Jay Alan Sekulow:

–Your Honor, the fact that there are a lot of people in the particular forum is more evidence of the importance of those particular places being available for public access for the dissemination of, in this case, religious literature.

It is that concentration of people that, I think, is evidence of the need.

Thurgood Marshall:

xxx home to dinner, not on religion.

Jay Alan Sekulow:

Your Honor, if we were to phrase the issue as it has been phrased, is that the airports are traditional public forum, as we have phrased the issue, our position would be, that access that you’re talking about, that mass of people is exactly the reason why First Amendment activities should be allowed inside the central terminal area at LAX as they have been for over 12 years.

Antonin Scalia:

Because there are a lot of people?

Jay Alan Sekulow:

Are there a lot of… yes, Your Honor, there is.

Antonin Scalia:

I mean, that’s the reason: Because there are a lot of people?

Jay Alan Sekulow:

No, it’s… we would… we would… in reviewing the issue or making a determination of whether a particular area was a public forum, we would utilize what this Court has long held as a compatibility.

When you have a general access open to the public, and the speech taking place in the forum is compatible–

Lewis F. Powell, Jr.:

Counsel?

Jay Alan Sekulow:

–Yes, Your Honor.

Lewis F. Powell, Jr.:

Excuse me for interrupting you.

You agree, of course, that the airport authority could adopt reasonable time, place and manner regulations?

Jay Alan Sekulow:

Yes, Your Honor, a reasonable time, place and manner regulation would be appropriate.

Lewis F. Powell, Jr.:

Yes, right.

Jay Alan Sekulow:

Could be appropriate.

Lewis F. Powell, Jr.:

Now, the facts in this… facts in this case, as I recall them are, that a minister of Jews for Jesus was physically handing out literature.

Jay Alan Sekulow:

That’s correct.

Lewis F. Powell, Jr.:

That’s correct?

Assume for the moment that the airport adopted a resolution that permitted that type of literature, or any type of literature, for example, to be disseminated from the equivalent of a newsstand.

Would that be satisfactory?

That resolution, as a manner restriction?

Jay Alan Sekulow:

Depending on the particular forum, a booth limitation could be appropriate–

Lewis F. Powell, Jr.:

Analogous to distributing newspapers.

Jay Alan Sekulow:

–It could be appropriate.

We would say, of course, that an analysis of what time, place and manner regulation would be appropriate would be an analysis of that particular forum.

There may be situations where limiting it to a booth… I’m not talking about a rental space, for instance, but a booth, storefront type of situation… might be appropriate in a given forum.

In this particular case, however, the record is totally devoid of any evidence of harrassment.

Missionaries with Jews for Jesus had been distributing gospel literature at the airport for over 12 years.

There is nothing in the record showing any type of harrassment, annoyance, or even a complaint being filed.

Antonin Scalia:

Can you think of any place where it wouldn’t be compatible?

Let’s say the Capitol, right across the lawn there.

Couldn’t you set up little booths for various groups that want to pass out literature to the tourists coming?

Would that interrupt the–

Jay Alan Sekulow:

That’s a factual analysis.

But there conceivably are places–

Antonin Scalia:

–Oh, I think it wouldn’t, but Congress just says, we don’t want it here.

This is not what the building is for.

We don’t want it.

We could live with it, but we don’t want it.

Why can’t the airport say that?

Jay Alan Sekulow:

–Well, the airport has taken… of course, have taken the position that they have said that.

However, it is that the accommodating purpose, the contemplation of being able to hand out or distribute religious literature in this case, where it does not at all interfere with the efficient operation of that facility.

If in fact the outside of the Capitol area was appropriate for distributing literature, as with the situation with the sidewalks in front of this Court’s facility, it would be appropriate–

Antonin Scalia:

That’s your test.

If it’s, number one, a public area; and number two, it wouldn’t interfere with the public purpose–

Jay Alan Sekulow:

–Substantially interfere.

Antonin Scalia:

–substantially, the activity must be allowed?

Jay Alan Sekulow:

Your Honor, it would be a balancing test.

If the compatibility is there, yes.

We would assert that if, in fact, the First Amendment activity is compatible with the forums used, that… and there is a general open access… that in fact a public forum has been created.

Antonin Scalia:

Well, that’s a vast extension of the public forum doctrine to date, it seems to me.

Jay Alan Sekulow:

Your Honor, our position is that it’s really not.

In the line of cases that this Court has determined, that compatibility has been the threshold.

Without the compatibility, there is obvious problems.

Our position is that LAX is both a traditional public forum and one that has been open.

Antonin Scalia:

I thought the rule was that when it is a public forum, you must allow those activities to the extent they’re compatible with the other things occurring in that public forum.

But you’re converting that to a rule that if there is a compatible activity, it’s a public forum?

Jay Alan Sekulow:

Your Honor, our position is that the compatibility is, does the First Amendment activity substantially interfere with the primary purpose of the public forum.

Streets’ primary purposes are not the distribution–

Antonin Scalia:

You have to establish that it’s a public forum first.

I agree with the proposition you just stated.

Does the activity interfere with the primary purpose of the public forum?

But you have to establish first that it is a public forum, and that’s what I thought we were discussing here.

Jay Alan Sekulow:

–And the public forum, to look at the public forum, we have to look at it as a multitude of factors.

Important factors would be that open access, general access to the public, which is clear here.

Anyone, as the record shows, can enter into LAX for purposes other than travel-relatedness.

So you could go to the airport for any reason.

Not only that, the city has made much of limitations contained in their charter.

However, a careful reading of that charter shows that the facility is not limited just to airport related activities, whatever that means, which there’s no definition for.

Leases can be entered into for reasons other than airport related activities.

In fact, revocable permits can be issued for any and all purposes that, again, do not interfere with the efficient operation of the facility.

Harry A. Blackmun:

You mentioned the sidewalk in front of this building.

What about the plaza out in front?

Jay Alan Sekulow:

Your Honor, that is something obviously I pondered as I walked up.

That brings up an interesting point.

Jay Alan Sekulow:

Our position would be, or certainly my position would be, that there is a line where the public forum analogy stops.

However, I’m not convinced that the plaza level is that appropriate place.

Clearly, the sidewalks, as this Court has held, are public forum.

I say there are arguments once you enter into this facility that negate towards a public forum concept.

However, the plaza, I think arguments could be made that is an area of public access, and certainly one that could constitute a public forum.

Whether in fact that–

Antonin Scalia:

xxx test you’re applying?

Jay Alan Sekulow:

–I’m applying–

Antonin Scalia:

You just look at the sky and say it is?

Jay Alan Sekulow:

–Absolutely–

Antonin Scalia:

I thought it depends on tradition, essentially.

Jay Alan Sekulow:

–Your Honor, it goes… it’s both tradition, and it is of course those that have been open.

Let’s spend a moment on the tradition.

The tradition is the tradition of access for communication purposes.

Communicating activities have taken place at LAX since at least 1974.

Antonin Scalia:

What about the plaza in front of this courthouse?

Jay Alan Sekulow:

Well, based on my knowledge of the plaza of the courthouse, I think communication… communicating activities have not taken place because there has been a presumption that it is not an area open.

Which brings up–

Antonin Scalia:

But that doesn’t trouble you?

Jay Alan Sekulow:

–How can you bring up… how can you have a history, Your Honor, when a government authority says no?

William H. Rehnquist:

That’s how you get a history.

Under your theory, if the government from day one had banned discussion on the streets, there would be no tradition of public discussion on the streets, and therefore the streets would fail your test.

Jay Alan Sekulow:

No, Your Honor, it’s precisely contrary to that.

That history existed because people did it.

People distributed literature on the streets and sidewalks.

William H. Rehnquist:

Well, but we don’t know about the hypothesis, whether they would have done it or not, if the government had banned it.

Jay Alan Sekulow:

Your Honor, there were laws in 1789, the Seditions Act, which said, basically, don’t distribute literature.

Those were challenged.

I would take the position, Your Honor, that in this–

William H. Rehnquist:

Well, tell me a little bit about those laws that were challenged in 1789.

Jay Alan Sekulow:

–Again, not specifying the date, the handing out–

William H. Rehnquist:

Well, pin it down to within 40 or 50 years, will you?

Jay Alan Sekulow:

–Well, I’ll do my best.

Activities that were, quote… it’s even more recent than that… activities that were against government policy, and activities took place where those activities were published by criminal activities.

William H. Rehnquist:

Where was this?

Jay Alan Sekulow:

I don’t recall the exact place, Your Honor.

I know–

William H. Rehnquist:

Somewhere in the United States?

Jay Alan Sekulow:

–Yes, absolutely.

The point I’m making is that that history exists in this case, and in fact, the Los Angeles International Airport has opened the facility up.

The charter doesn’t prohibit it, and the facts in the case show it has in fact happened.

First Amendment activities have taken place at LAX.

The petitioners even today conceded that there is a place for limited public forum.

That’s completely contrary to the position they’ve taken thus far.

Sandra Day O’Connor:

Mr. Sekulow–

Jay Alan Sekulow:

Yes, Your Honor.

Sandra Day O’Connor:

–suppose that we disagree with the court below and think that this is not a traditional public forum, did… did you argue below that in any event under the California constitution it would be a public forum, and must be open?

Jay Alan Sekulow:

Yes, Your Honor.

In the district court, arguments regarding the California law on the liberty of free speech was argued extensively.

Sandra Day O’Connor:

But the courts below never reached the state law question?

Jay Alan Sekulow:

That’s correct, Your Honor.

They dealt with it on a federal–

Sandra Day O’Connor:

And if we decided the federal constitutional issue here against you, would it be your position that the state law might nevertheless require it to be open?

Jay Alan Sekulow:

–Our position would be that in re Hoffman, as Your Honor cited earlier, would stand for the proposition that First Amendment activities would be appropriate.

However, we would also assert that under the federal Constitution of course these activities–

Sandra Day O’Connor:

Well, suppose we decide against you on the federal Constitution?

I’m trying to inquire whether you think it then is still open to you and your client to raise the state constitutional issue?

Jay Alan Sekulow:

–Yes, Your Honor, we would take the position it has.

We’ve not limited–

Sandra Day O’Connor:

Why then shouldn’t the court below have decided the state issue first?

Jay Alan Sekulow:

–We’ve pointed that out in our brief.

Inexplicably, there is nothing in the state… the district court’s opinion here, U.S. district court’s opinion, regarding the California constitution.

It was argued.

It was in the briefs.

The opinion did not contain any response to it.

It merely found that the airport terminal, in line with other cases in the district, was–

Sandra Day O’Connor:

Let me ask one other question, too.

Did you argue overbreadth of the statute below?

Jay Alan Sekulow:

–Yes, Your Honor.

Our argument was not just on the public forum issue.

We argued overbreadth; vagueness.

We also got into the content-based, viewpoint-based discrimination analysis, as well as a prior restraint.

The prior restraint analysis that we utilize is, as the petitioners have again stated today and they’ve said throughout their brief, there is this airport related exception, if you will.

The resolution on its face bans all First Amendment activities.

That’s what it does on its face.

However, there is this airport related exception that they determine, as they’ve stated, they determine whether something’s airport related or not.

There’s no standards.

There’s no guidelines.

It’s merely something the Board in its discretion decides.

I think the argument certainly could be made that… we could go so far as to say that it is absolutely and capricious, the determination made by the Board here.

They have no guidelines.

They’ve also pointed out–

Antonin Scalia:

That’s not before us, though, right?

Jay Alan Sekulow:

–It’s not before you… before this Court–

Antonin Scalia:

So we should decide this case as though the question is, could LAX like the Capitol promulgate a nicely, narrowly crafted rule that says, no religious proselytizing on these grounds, right, and that’s the issue?

Could LAX do that?

If it’s a public forum, it couldn’t.

If it’s not a public forum, presumably it could.

Jay Alan Sekulow:

–Your Honor, the Court has before it facts which have been stipulated by the parties showing exactly what’s taken place in LAX, the activities that have taken place.

In our briefs, and in the trial court briefs, we have argued these other points.

Jay Alan Sekulow:

I… we would take the position that this Court could reach these other issues.

Viewpoint discrimination, regardless–

John Paul Stevens:

Putting it more precisely, you’re asking us to affirm the judgment on other grounds than the ones relied on by the Ninth Circuit, which we do all the time?

Jay Alan Sekulow:

–Your Honor, I’m also asking that the Court affirm, of course, that it is a traditional public forum.

John Paul Stevens:

Yes, but I mean you have not abandoned your overbreadth arguments.

Jay Alan Sekulow:

Absolutely not, Your Honor.

John Paul Stevens:

And if we think it’s overbroad, we have to affirm, don’t we?

Jay Alan Sekulow:

Overbroad, vagueness, and again, the content-based discrimination.

Thurgood Marshall:

Mr. Sekulow–

Jay Alan Sekulow:

Yes, sir.

Thurgood Marshall:

–suppose your group stood in the… with the permission of the newsstand and handed it out inside of the newsstand.

Would that be prohibited?

Jay Alan Sekulow:

Under the resolution, there wouldn’t be a newsstand to stand in at.

Because the resolution on its face would ban the newspapers being sold as well.

It bans all First Amendment activities.

Whether someone… Justice Scalia earlier said, if he said hello to someone, if he wrote it on a piece of paper, under this resolution he would be… the resolution would not allow him to do that.

It wouldn’t be airport related.

Thurgood Marshall:

Assuming that they don’t close the newsstand.

Jay Alan Sekulow:

Yes, Your Honor.

Thurgood Marshall:

Could he stand in the middle of that with the permission of the newsstand and hand out these pamphlets?

Jay Alan Sekulow:

The question then would be, would that activity substantially interfere with the flow of traffic?

That’s a legitimate concern.

Our position would be that if in fact there is a situation where traffic is impeded, that a reasonable regulation of time, place and manner could handle that.

Our position would be, if the newspaper stand officer… operator said yes, that we could do it, that we could distribute the literature; that it’s a protected activity under the First Amendment.

And this resolution is unconstitutional on its face.

When you get into weighing whether something is… affects its usage overall, that’s a different… a different situation.

The important… another important aspect of this case is the existence of other First Amendment activities in the central terminal area of LAX.

There is a Christian Science reading room.

We do not accept the position that the Christian Science reading room is just there for a waiting room.

The record doesn’t say how many seats are there, or how many seats could be put in that amount of space.

Jay Alan Sekulow:

The record does say, however, that the material available at the Christian Science reading room regards the Christian Science faith.

Sandra Day O’Connor:

Well, Mr. Sekulow, they lease space.

Has Jews for Jesus leased space?

Jay Alan Sekulow:

No, your Honor, it has not.

Sandra Day O’Connor:

Well, then, they’re not the same situation.

Jay Alan Sekulow:

Your Honor, we would take the position–

Sandra Day O’Connor:

They’re paying a lease.

And presumably, you could lease space, as well.

Jay Alan Sekulow:

–Your Honor, our position is that a First Amendment activity is not something we would have to pay for; that one of the purposes of the public forum doctrine is giving groups that may have less popular messages and not the… not through that cost.

Sandra Day O’Connor:

I understand that.

But it does not avail you to argue about the Christian Science reading room because they have leased space.

So it just doesn’t support your argument, at least in my view.

I don’t see how it does.

Jay Alan Sekulow:

Your Honor, in this context.

The material that is being disseminated at the Christian Science reading room is regarding the Christian Science faith only.

Effectively, if we took… looking at an establishment clause analysis, that activity is allowed to exist… I’m not saying that that’s not… and you know, that there’s not a technical establishment problem there.

We’re not saying that the existence of the reading room causes an establishment problem.

Our position is that the existence of that reading room, and denying Jews for Jesus its right to distribute literature, would be a violation of our First Amendment rights.

William H. Rehnquist:

Well, that’s like saying that the Methodist Church, which owns the property on which the church is located, because they preach religious doctrine in there, somebody else who doesn’t own a church should be able on the street outside to hold their church service.

No case his ever held that.

Jay Alan Sekulow:

Well, the courts have dealt with that.

When you’re dealing with an assemblage of people, again, the reasonable time, place and manner restrictions would come in, Your Honor.

However, if Jews for Jesus was outside of a Methodist Church distributing literatures to passersby, certainly that would be constitutionally protected, even though the Methodist Church owns the facility.

If we’re on the sidewalk, public property, distributing literature… I’m not talking about a church service–

William H. Rehnquist:

Yes, but what you’re saying is if… anything the Christian Science people can do by leasing, you want to be able to do without leasing.

And no case has ever held that.

–Your Honor, we’re not taking it that far.

Well, I hope not.

Jay Alan Sekulow:

We’re saying that the distribution of literature by the Christian Science… in the Christian Science reading room, allowing that activity to take place, and denying Jews for Jesus the right to disseminate its religious literature inside the central terminal area, those messages for First Amendment purposes are the same.

The fact that one leases the space and one does not, it would be our position that that would be basically irrelevant in a publicly owned facility.

Jay Alan Sekulow:

What we have here is, in our opinion, a viewpoint discrimination.

The other issue that exists in this thing is, one that walks into the airport terminal and is made aware of this resolution, doesn’t even know what the resolution says.

It says, all First Amendment activity is banned.

There’s an exception somewhere in the recitals, as Mr. Kapel pointed out.

That exception creates a whole list of problems.

Who decides if something’s airport related or not?

The Board.

How do they decide it?

They decide it.

There’s no standards, again, no guidelines set forth wherein they can make this determination.

Another position that we’ve taken in this situation is the existence of a limited or open public forum.

The activities of Jews for Jesus and other religious, political, social organizations have taken place at the central terminal area of LAX.

They’ve taken place for at least 12 years.

The petitioners have made much of the fact that some groups have been denied access.

First off, we would say, some groups may have been denied access, but other groups have done First Activities there.

Furthermore, there is nothing in the record showing why these groups were denied access.

For all we know, the reason they were denied could be one of legitimate concerns.

The activities that were going to take place would be inappropriate in an airport facility.

So that is not a dispositive… in our opinion, that is not a dispositive issue.

Antonin Scalia:

Well, we don’t know that either.

We could certainly leave that to the lower court to figure out if there was some problem there.

Jay Alan Sekulow:

That was the point I was making Your Honor, is, there’s nothing in the record which shows why they were denied it, so saying some people have been denied it, when effectively people have exercised First Amendment activities inside the central terminal area, in our opinion shows that they are, again, compatible.

Antonin Scalia:

Mr. Sekulow, would you explain to me, because I really don’t understand this from your argument, what is it that makes a public forum special as opposed to any public building?

Because as I understand your argument, I think what it boils down to saying is, that any public building must be allowed to be used for free speech activities to the extent that such activities are not incompatible with the other uses of the building.

Now, if you adopt that as a principle, why do you need a public forum doctrine?

You don’t need it.

Doesn’t it totally gobble up the concept that there are some buildings where you cannot… you don’t even have to have reasonable time, place and manner restrictions?

Jay Alan Sekulow:

Your Honor, one important element of our analysis on this compatibility issue is that there’s general access open to the public.

And if… let’s take an office building as a good example… you have an office building, narrow quarters.

There is an… an argument can be made that the activities taking place inside an office building may not be compatible… may not be compatible… with the efficient operation of that particular facility.

Jay Alan Sekulow:

But it’s that general public access, coupled with the compatibility.

Antonin Scalia:

But even in a public forum, you are allowed to place such restrictions as are necessary to make the speech compatible with whatever else is going on.

Jay Alan Sekulow:

That’s correct.

Antonin Scalia:

In a park, and so forth.

So then what difference is there between a public forum and a nonpublic forum, in your view of the world?

Jay Alan Sekulow:

A nonpublic forum… and arguments have been made regarding a nonpublic forum concerning the internal mail school systems.

It’s that public access was lacking, Your Honor, in that particular situation, and many others.

There are also cases like Greer v. Spock.

There are special functions of facilities, military bases, where that special constitutional function is what this Court determined that special constitutional function justifies… the concern for national security… justifies… and national defense… the regulation or elimination in some cases of First Amendment activities from taking place.

We’re not saying that all facilities are public forums open to everyone.

What we are saying is, when you have that compatibility and general public access, that is what we’re saying is part of the key.

That compatibility and access.

That’s a balancing.

The public forum issue is on a spectrum.

Our position is that LAX on the spectrum of public forum is closer to a street, a sidewalk or a park than it is to a military base or a prison.

Thurgood Marshall:

Could you… could LAX pass a rule that you people cannot go beyond the metal detector, and only those who are riding go beyond a metal… would that be a good rule?

Jay Alan Sekulow:

If in fact the general public was not allowed access past a security point–

Thurgood Marshall:

I said nobody but riders.

Jay Alan Sekulow:

–I think, Your Honor, an argument can be made that the First Amendment activities should, if you will… that should be the line of demarcation; that should be the stopping point.

Thurgood Marshall:

Could be made or would be made?

You say, could be made.

You know, you can argue that the building’s a cat.

But I mean, would be made.

Jay Alan Sekulow:

Well, Your Honor, I would say that there is a line.

And that would be an appropriate place–

Thurgood Marshall:

I want to know just how far you go.

Jay Alan Sekulow:

–You have to add a factor to that, Your Honor, and that is, are there other activities taking place past that security point?

Are there restaurants and shops?

Many times in airports, there’s not.

If it’s just a cutoff, only ticketed passengers only, I would say the security concerns outweigh it.

Thurgood Marshall:

Restrict your answer to my question.

Jay Alan Sekulow:

Okay, Your Honor, in that particular case–

Thurgood Marshall:

And not add to it.

Jay Alan Sekulow:

–I would say that a reasonable time, place and manner regulation, eliminating that area from First Amendment activities could be appropriate, in the event that it was a secured area only, yes, based on that proposition.

Thurgood Marshall:

Thank you.

Jay Alan Sekulow:

Thank you, Your Honor.

The position that the respondents have made concerning the openness of the forum–

John Paul Stevens:

May I just follow up on Justice Marshall?

Suppose… what about a particular congested area, like ticket lines and that sort of thing?

Could they also perhaps restrict them from there?

Jay Alan Sekulow:

–I think there are legitimate reasons to restrict access to ticketing areas, baggage pickup areas, where that high concentration… these… utilizing, rather than a broad, sweeping, no First Amendment activities, a reasonable time, place and manner regulation.

We’re not taking the proposition that all buildings are public forums.

We are weighing that.

And we are weighing that compatibility.

And part of that compatibility would be a security issue, and part of that compatibility certainly could be ticketing and baggage and things such as this.

Antonin Scalia:

You are taking the position that they’re all public forums if there is general public access.

The only inquiry you would make, once you’ve determined that there is general public access to the building, is whether free speech activities are compatible.

Jay Alan Sekulow:

If there is general public access and compatibility, our position would be that a public forum should exist, subject to special concerns, such as a military base or a prison if there was an area that was general access.

The Court’s decisions regarding… in Greer v. Spock, although the military base was open, there are special constitutional functions there.

And we would… we would–

Antonin Scalia:

And the question of whether it’s appropriate isn’t necessarily the same as the question whether it’s compatible.

I mean, take my hypothetical about the Capitol.

It’s compatible, in the sense that they can run their business over there with booths passing out religious literature and political literature.

They could run their business anyway.

But it’s just never been done.

This is not the place for it.

They have just said, it’s not the place for it.

You would not allow that to be said, would you?

Jay Alan Sekulow:

–Your Honor, the position of something not be the place for the activity is something that we think is exactly why we think airports would be a traditional public forum.

I don’t take the position that the grace of government is the determining factor of what constitutes a public forum.

Jay Alan Sekulow:

Nor do I take the position that a mere chance of history, if you will, would create the public forum; or increased mobility of society; or for that matter, new architectural designs.

An excellent point was raised with, what if the airport extended its central terminal area out to the sidewalks and covered it?

Well, is that now banned?

And that’s the position we’re taking.

The compatibility is an important factor.

The public access is an important factor.

The accommodation of it, we would take the position that it’s an analysis that has to draw a balancing.

There has to be a balancing there.

The balancing would take into consideration these other positions.

Byron R. White:

Could I… do you stand by all the stipulations of fact that are in the record?

Jay Alan Sekulow:

Yes, Your Honor.

William H. Rehnquist:

Thank you, Mr. Sekulow.

Mr. Kapel, you have two minutes remaining.

James R. Kapel:

Thank you.

Much has been made of the presence of solicitors here within the terminals for ten years or so.

The only thing that shows is that the Board has not had the appropriate tools to keep these people out and to enforce its policy.

They have had–

William H. Rehnquist:

Like a good ordinance drafter?

James R. Kapel:

–Yes.

Part of the problem is that many of the laws, criminal laws, were drafted to cover many pieces of property within Los Angeles.

Here it is the Board that people charged with operating the airport that are making the determinations of what rules should apply with regard to that.

This Court has repeatedly stated that a government entity has the power to preserve the property under its control to the uses for which they’re lawfully dedicated.

This Board has attempted to do just that, what you have said is constitutionally permissible.

And we request that you find that the airport is not a traditional public forum, or has not been opened as a public forum.

Thank you.

William H. Rehnquist:

Thank you, Mr. Kapel.

The case is submitted.