Krishna v. Lee (p. 1485)

 Is a municipal airport terminal a public forum?

 Millions of people passing through; shops, restaurants, newsstands; the general public is invited (except for limited security areas).

The Krishnas wish to perform a religious ritual, known as sankirtan, which consists of going to public places, handing out religious literature, and soliciting funds to support religion. (p. 1485)

The Port Authority has adopted a regulation that forbids

                1)    sale or distribution of brochures, books, etc. 

        and 2)    solicitation and receipt of funds.  (P. 1485)

Notice that we have two different 5-4 decisions in this case:

                1)    One upholds the prohibition of solicitation (Rehnquist, White, Scalia, Thomas, and O’Connor) plus Kennedy

                2)    The other held that the ban on distribution of literature was invalid under the first amendment.  (O'Connor, Kennedy, Souter, Blackmun and Stevens).

 

   Was there a majority at least on the issue of whether a municipal airport is a public forum?

        **    Yes.  On this issue the Rehnquist majority (including Justice O’Connor) controls – a municipal airport terminal is not a public forum.  P. 1486-1487

Why not?

                1)    Not a traditional public forum because airports are a modern invention 

                2)    Not a designated public forum because the municipal government has not intentionally opened a nontraditional forum for public discourse (general invitation to public to visit is not enough to create a designated public forum). (p.1487)

                What do you think about this view?

                What is Justice Kennedy's view?  :   “The Court’s error lies in its conclusion that the public-forum status of public property depends on the government's defined purpose for the property, or on an explicit decision by the government to dedicate the property to expressive activity.  In my view, the inquiry must be an objective one, based on the actual, physical characteristics and uses of the property.”  (Edited from casebook) (505 U.S. at 695)

                Kennedy’s proposed objective test (edited from casebook)(505 U.S. at 698):       

                “If the objective, physical characteristics of the property at issue and the actual public access and uses which have been permitted by the government indicate that expressive activity would be appropriate and compatible with those uses, the property is a public forum.”

                What do you think?  What about 9/11?

                Again, the distinction is critical because the court applies a strict test for restrictions on speech in a public forum and a deferential reasonableness test for non-public forum (so long as no suppression of viewpoint is afoot). Rules: P. 1487

Justice O’Connor is the crucial 5th vote to strike down the ban on leafleting and distribution of literature.  She argues that it is “unreasonable” because “it is difficult to point to any problems intrinsic to the act of leafleting that would make it naturally incompatible with a large, multipurpose forum” (p. 1488)