The First
Amendment at
Airports
By Breton K. Lobner
General Counsel
April 2015
The First Amendment at Airports
 U.S. CONSTITUTION. Amend. 1:
“Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a
redress of grievances.”
 CALIFORNIA CONSTITUTION. Art. 1, Sec. 2:
“(a) Every person may freely speak, write and publish his or her
sentiments on all subjects, being responsible for the abuse of this
right. A law may not restrain or abridge liberty of speech or
press.”
The First Amendment Issues at Airports
 Regulations and Restrictions on:
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Soliciting
Distributing leaflets
Surveys
News racks in terminals
Access to the press
Protests, parades, demonstrations and marches
Union strikes, secondary boycotts and employee demonstrations
Employee use of airport web pages, Facebook, Twitter accounts and email
Photography and videotaping
Commercial advertising
Employee speech
 Permitting Uses in Airport Terminals:
 Holiday and religious decorations or displays
 Chapels, meditation rooms, and religious reading rooms
First Amendment –
Freedom of Speech
 The right to freedom of speech allows individuals to express
themselves without interference or constraint by the
government. Under the First Amendment, the Supreme Court
has held:
 Airports must provide substantial justification when they attempt to
interfere with the right of free speech or to regulate the content of the
speech, but airports have wider latitude when their legislation or
regulation is content-neutral.
 Airports may prohibit some speech that may cause a breach of the
peace or violence.
 Airports must recognize that free speech includes other mediums of
expression that communicate a message.
 The level of protection speech receives depends on the forum in which
it takes place.
International Society for Krishna Consciousness of California
(“ISKCON”) v. City of Los Angeles
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ISKCON brought action against Los Angeles in 1997 alleging the airport’s ordinance
prohibiting repetitive, in-person solicitation and immediate receipt of funds violated its
rights under the US and CA Constitutions.
In 1998, the District Court enjoined
enforcement and granted Summary Judgment for ISKCON. This order was vacated in
2000.
Numerous decisions thereafter as I will point out.
In 2014, 9th Circuit Court of Appeals finally holds that the ordinance was a reasonable
restriction on protected speech in a non-public forum under First Amendment.
Ordinance was viewpoint neutral, was reasonably related to city's interests of reducing
congestion and fraud at the airport, and permitted solicitation of future donations online or
via pre-addressed envelopes and distribution of literature.
Airport in a public forum may impose reasonable, content-neutral restrictions on time,
place, or manner of protected speech so long as those limits are narrowly tailored to serve
significant governmental interest and leave open ample alternative channels for
communication of information.
September 10, 1992 - Airports Plan New Try to Bar Soliciting :
Transit: The proposal, based on a recent Supreme Court ruling,
would affect terminals at LAX and Ontario. (Los Angeles Times)
Armed with a favorable U.S. Supreme Court decision and itching to eradicate an 18-year-old
nuisance, the Los Angeles Department of Airports is preparing once more to try to kick
beggars out of its terminals.
The Board of Airport Commissioners today is scheduled to consider a proposal to forbid
soliciting or accepting money in the terminals of Los Angeles International and Ontario
airports. Violators could be liable for civil sanctions and arrest. The proposed resolution,
which is based on a June Supreme Court ruling that upheld a New York solicitation ban, would
let the airport seek civil injunctions against people soliciting inside terminals--a move that
would allow airport police to eject them.
"The benefit is that you get (solicitors) away from the stream of traffic in the terminal," said
Senior Assistant City Atty. Gary R. Netzer, the Department of Airport's legal adviser.
Fights over airport soliciting have spread in the intervening years to cities from San Juan,
Puerto Rico, to Anchorage, Alaska. Lower courts have maintained that people were free to
solicit and proselytize in airport terminals because they are public places. But in June, on a 6-3
vote, the Supreme Court finally ruled against Fisher and his Hare Krishna clients. Upholding a
New York ban, the high court said that soliciting in airports infringes on the basic function of
the facilities--getting passengers to planes.
In a separate 5-4 decision, the high court affirmed the right to collect petition signatures,
distribute flyers, sign up members and conduct other free-speech activities inside terminals.
May 30, 1998 - L.A. Loses Court Battle Over Soliciting at LAX
(Los Angeles Times)
The city of Los Angeles lost another round Friday in its 24-year legal battle to prevent
charitable and religious groups from soliciting donations at Los Angeles International Airport.
U.S. District Judge John G. Davies ruled that the city ordinance banning such solicitations is
illegal under the California Constitution.
Since 1974, the city has adopted a number of regulations and ordinances to banish the
solicitors from the airport's terminals, sidewalks and parking lots. Each time, civil liberties
lawyers have challenged the city's crackdown, and each time the city has eventually lost,
including one case before the California Supreme Court and another before the U.S. Supreme
Court.
The legal challenge that led to Friday's ruling was brought by the International Society for
Krishna Consciousness, which obtained a temporary restraining order blocking enforcement a
day before the law was to have gone into effect last year. (portions omitted0
Under California law, the judge said, the government may impose "time, place and manner
restrictions" on free speech in public places, but only "without regard to content." By banning
only one form of free speech--the solicitation of donations--and permitting other forms, he
ruled, the city ordinance discriminates on the basis of content.
March 25, 2010 - Court upholds ban on Hare Krishna soliciting in
LAX airport
(The Christian Science Monitor)
The California Supreme Court ruled Thursday that an LAX airport ban on solicitation in its
terminals – challenged by a Hare Krishna group – is legal. It's the latest legal setback for the
group.
The California Supreme Court today upheld a Los Angeles International Airport ordinance
barring Hare Krishnas from soliciting donations inside airport terminals.
This ruling is apparently the final defeat in 13-year legal effort by the International Society for
Krishna Consciousness (ISKCON) to secure the right to solicit in LAX airport under the First
Amendment. But after two decades of legal challenges against similar measures in other
airports nationwide, it also points to the religious organizations' narrowing legal options.
The California Supreme Court ruled unanimously that the LAX restriction on solicitation is
constitutional. The Hare Krishnas' lawyer, David Liberman, told the Associated Press that this
may be the end of the legal line.
“It’s pretty conclusive, and it doesn’t look like there are any loopholes,” Mr. Liberman said. “As
far as I can tell, it’s over.”
The Hare Krishnas' legal trail has stretched back over two decades.
July 9, 2010 – No More Soliciting at LAX
(AOL Travel)
Travelers at Los Angeles International Airport won't have to deal with solicitors anymore.
A decision by the 9th U.S. Circuit Court of Appeals has upheld a ruling that allows police to
enforce a city ordinance prohibiting solicitation at LAX.
The ruling covers not only the airport's terminals but also parking areas and sidewalks.
The Los Angeles City Council banned solicitation at the airport in 1997, in response to
complaints from travelers and employees who said they were being approached for donations
from various charity organizations.
The International Society for Krishna Consciousness of California sued to prevent enforcement
of the law, citing free-speech rights at public facilities. The Krishnas and others were allowed to
continue soliciting pending court action.
In May, the California Supreme Court affirmed the ban. Airport officials returned to court to
allow police to begin enforcing the law.
"This is a huge step forward in ensuring the comfort and safety of the traveling public at LAX,"
says Los Angeles World Airports' Executive Director Gina Marie Lindsey in a statement. "From
now on the traveling public will not have to worry about solicitors asking for money."
December 31, 2012 - Judge upholds LAX begging ban
(San Gabriel Valley Tribune)
A federal judge has upheld an ordinance that bans people from soliciting money inside
terminals, parking areas and sidewalks at Los Angeles International Airport.
U.S. District Judge Consuelo Marshall ruled that the city of Los Angeles' ordinance is
constitutional because, among other factors, LAX is not a public forum as defined under the
First Amendment, the rule is "viewpoint neutral," and any restrictions placed on freedom of
expression at LAX are reasonable under the circumstances.
The city and the Hare Krishnas have been battling over the issue in court since the Los
Angeles City Council adopted the rule in 1997.
The International Society of Krishna Consciousness filed suit more than 15 years ago
challenging the law banning the solicitation of contributions at LAX and its other airports.
The Hare Krishnas claimed that nonsecure areas, such as ticketing lobbies, should be treated
as public gathering spots, the same as city streets.
The case has been argued before the U.S. 9th Circuit Court of Appeals and the California
Supreme Court.
August 21, 2014 - Begging Ban At LAX Affirmed By Federal
Appeals Court
(Santa Monica Mirror)
A federal appeals panel on Wednesday upheld a city ordinance that bans begging for funds
inside the terminals, parking areas or sidewalks at Los Angeles International Airport.
The City and the Hare Krishnas have been battling over the issue in court since the Los
Angeles City Council adopted the ordinance in 1997.
In its opinion, a three-judge panel of the U.S. 9th Circuit Court of Appeals in Pasadena
determined that because the law is limited in nature and leaves open alternative channels for
the Krishnas to raise money, the ordinance acts as "a reasonable restriction on protected
speech" under the First Amendment.
The decision follows the appeal of a 2012 ruling by a Los Angeles federal judge which found
the law to be constitutional because, among other things, LAX is not a public forum as defined
under the First Amendment; the ordinance was "viewpoint neutral"; and any restrictions placed
on freedom of expression at LAX were reasonable under the circumstances.
Case History
ISKCON V. City of Los Angeles
(1997-2015)
1.
International Society for Krishna Consciousness of California, Inc. v. City of Los Angeles (C.D. Cal. Jun. 9, 1997) 966
F. Supp. 956 [CV 97-03616 JGD(VAPx)]
2. International Society for Krishna Consciousness of California, Inc. v. City of Los Angeles (C.D. Cal. Aug 02, 2001)
2001 WL 1804795 [CV 97-03616 JGD(VAPx)]
3. International Society for Krishna Consciousness of California Inc. v. City of Los Angeles, 59 Fed. Appx. 974 (9th
Cir.(Cal.) Mar 21, 2003) (Not selected for publication in the Federal Reporter, No. 01-56579) [CV 97-03616
JGD(VAPx)]
4. International Society for Krishna Consciousness of California Inc. v. City of Los Angeles, 74 Fed. Appx. 811 (9th
Cir.(Cal.) Sept. 10, 2003) (Not selected for publication in the Federal Reporter, No. 03-055908) [CV-03-00293-CBM]
5. International Soc. for Krishna Consciousness of California Inc. v. City of Los Angeles (9th Cir.(Cal.) Jun 09, 2008)
530 F.3d 768, 08 Cal. Daily Op. Serv. 6975, 2008 Daily Journal D.A.R. 8372 (No. 01-56579)
6. International Society for Krishna Consciousness of California, Inc. v. City of Los Angeles (Cal. Mar 25, 2010) 48
Cal.4th 446, 227 P.3d 395, 106 Cal.Rptr.3d 834, 10 Cal. Daily Op. Serv. 3716, 2010 Daily Journal D.A.R. 4443 (No.
S164272)
7. International Society for Krishna Consciousness of California Inc. v. City of Los Angeles (9th Cir. (Cal.) Jul 07, 2010)
386 Fed. Appx. 669 (Not selected for publication in the Federal Reporter, NO. 01-56579)
8. International Society for Krishna Consciousness of California Inc. v. City of Los Angeles (9th Cir.(Cal.) Jul 07, 2010)
567 Fed. Appx. 500 (Not selected for publication in the Federal Reporter, NO. 01-56579) (No. 06-56660)
9. International Society for Krishna Consciousness of California Inc. v. City of Los Angeles (9th Cir.(Cal.) Apr 16, 2014)
571 Fed. Appx. 519 (Not selected for publication in the Federal Reporter, NO. 01-56579) (No. 06-56660)
10. International Society for Krishna Consciousness of California, Inc. v. City of Los Angeles (9th Cir.(Cal.) Aug 20,
2014) 764 F.3d 1044, 14 Cal. Daily Op. Serv. 9678, 2014 Daily Journal D.A.R. 11,416 (NO. 12-56621)
11. International Society for Krishna Consciousness of California Inc. v. City of Los Angeles (9th Cir.(Cal.) Feb 13, 2015)
592 Fed. Appx. 626 (Not selected for publication in the Federal Reporter, NO. 01-56579) (No. 06-56660)
Free Speech and Advertising
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Advertising concession contracts are common at airports
Most airports have an advertising policy
Most airport concessionaires also have ad policies.
San Diego’s Policy reads:
 “Advertising displays shall be in good taste, non-controversial, and
maintained in such manner as not to interfere with ordinary Airport
operations and to be as informational as possible.”
 San Diego’s advertising concessionaire (JCDecaux) said it had
an advertising policy which was privileged, but it turned out it
did not have one in writing after all.
 You can probably see where this is headed…….
PETA v. San Diego County Regional Airport and JCDecaux NA
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PETA contacts Authority’s advertising concessionaire (JCDecaux) asking to run an ad in
the airport’s terminal concerning Seaworld.
JC Decaux rejects the ad saying it does not conform to JCDecaux’s internal ad policies.
The main reason: Ad was disparging and demeaning of Seaworld. (Airport is not
informed.)
When asked for a copy, JCDecaux’s legal counsel tells PETA its ad policies are “internal”.
PETA writes JCDecaux and Authority saying the refusal is unconstitutional in violation of
the 1st Amendment.
PETA points out past ads used from Earth Justice, Girl Scouts, Rotary Club, World Wildlife
Fund, Nature Conservancy, some with political messages.
PETA refuses to run PETA’s ad.
ACLU representing PETA sues in federal court for declarative & injunctive relief alleging
violations of the U.S. Const., 1st Amendment (via 14th Amd.) and Cal. Const. Art. I, Sec. 2 &
7 and seeking damages under 42 U.S.C. §1983.
 Alleges discrimination on the basis of content or viewpoint.
Authority tenders its defense to JCDecaux per the concession contract indemnity clause.
JCDecaux accepts the tender.
Authority informs JCDecaux it has no problem with the ad.
Settlement discussions result in JCDecaux agreeing to run the ad.
Case settled for unspecified amount and ultimately dismissed.
Lessons Learned
• Have a well written defensible advertising policy.
• Require an indemnity clause in your concession contract.
• Be careful when accepting advertising copy as it may set a
precedent regarding future ads in your forum.
• Don’t expect your advertising manager via your concession
contract to necessarily insulate your airport from lawsuits and
liability over advertising.
No.1
A passenger at your TSA Airport passenger screening checkpoint
calmly disrobes to protest being searched. He claims his 4TH
Amendment rights have been violated. On his bare chest is
written “AMENDMENT 4. THE RIGHT OF THE PEOPLE TO BE
SECURE AGAINST UNREASONABLE SEARCHES AND SEIZURES
SHALL NOT BE VIOLATED.” TSA wants him arrested and calls
the police. What should you advise the police to do?
Aaron Tobey – 2010
Richmond Airport
No. 2
At your large airport, your local newspaper contacts airport staff
and requests permission to place news racks in the airport’s
terminals free of charge. What should you advise?
No. 3
A local union has a minor disagreement with an airport contractor.
The union calls airport staff and asks permission for its members
to stand in front of your terminal with a banner which identifies the
contractor but also says, “THIS DISPUTE IS WITH THE AIRPORT.”
The union workers are not airport employees. Should the banner
be permitted?
Unite Here, Local 30
No. 4
One of your airport employees uses your airport internal business
internet email for sending out emails concerning union business.
Can you prohibit such use?
No. 5
Your airport has an employee who does not get along with her
supervisor. The employee is writing uncomplimentary false
comments about her boss on Facebook. Can the airport require
the employee to provide access to her Facebook account
concerning what she posted as a condition to continued
employment?
No. 6
An airport taxicab has an advertising sign on its roof which says
“DON’T PARK AT THE AIRPORT - PARK AT XYZ’S OFF-AIRPORT
PARKING LOT AND SAVE MONEY”. Can your airport require the
taxicab operator to remove the sign as a condition to him
obtaining a permit to serve the airport?
No. 7
A passenger at the TSA checkpoint at your airport is taking
photographs. TSA is complaining and calls the police. Should
your airport police stop the activity?
No. 8
A protestor at your airport wants to hand out flyers in the terminal
just prior to the entrance to the TSA checkpoint area which says
“IMPEACH GOVERNOR BROWN FOR HIS WATER POLICIES”.
Should your airport police allow this activity?
QUESTIONS