INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS v. LEE 505 U.S. 672 (1992)

The Port Authority of New York and New Jersey, which owns and operates three major airports in the New York City area, adopted a regulation forbidding within the airport terminals the solicitation of money and the sale or distribution of any merchandise, "including … brochures, pamphlets, books or any other printed or written material." In a bewildering array of opinions, the Supreme Court upheld the ban on solicitation, but held that the ban on the sale or distribution of literature violates the first amendment.

Chief Justice william h. rehnquist delivered the opinion of the Court on the issue of solicitation. The Court explained that airport terminals are not public forums because they have not been used "time out of mind" for expressive purposes and have not "been intentionally opened by their operators to such activity." This being so, the Court held that the prohibition on solicitation "need only satisfy a requirement of reasonableness," a standard the Court held was easily met because of "the disruptive effect" that solicitation might have on "the normal flow of traffic" within the terminals.

In an opinion by Justice anthony m. kennedy, four Justices disagreed with the Court's conclusion that the terminals were not public forums, arguing that "in these days an airport is one of the few government-owned spaces where people have extended contact with other members of the public" and that "the recent history of airports" demonstrates that some "expressive activity is quite compatible with the uses of major airports."

On the issue of sale or distribution of literature, Justice sandra day o'connor concluded that, even though airport terminals are not public forums, the regulation was "unreasonable" because "leafleting does not necessarily entail the same kinds of problems presented by face-to-face solicitation." She therefore joined the four Justices who had argued that airport terminals are public forums to form a 5–4 majority to invalidate this part of the regulation.

Geoffrey R. Stone
(2000)