The California Supreme Court Upholds Ban on Immediate Solicitation of Funds at LAX

By Amy Greyson

On March 25, 2010, the California Supreme Court upheld the constitutionality of a Los Angeles City ordinance that prohibits solicitation for the immediate receipt of funds at the Los Angeles International Airport (LAX), including inside the terminals, in the airport parking areas, and on the adjacent sidewalks. International Society For Krishna Consciousness of California, Inc. v. City of Los Angeles, 48 Cal.4th 446 (2010) (ISKCON). The Court held that the City's ordinance was a valid "time, place and manner" regulation of solicitation that did not violate the Liberty of Speech Clause of the California Constitution.

The Court found the ordinance was narrowly tailored to accomplish the City's goals of eliminating problems caused by requests for the immediate receipt of funds at a busy municipal airport. These include interference with travelers hurrying to make flights, the crowded and hectic environment of the airport, the risk of fraud and duress, and the likelihood that travelers in a hurry will not stop to complain about solicitors. The Court also ruled that the ordinance left open ample channels of communication, because it did not prohibit distribution of literature and requests for financial support, such as by distributing self-addressed stamped envelopes in areas open to the general public.

What is the impact of ISKCON?

The direct impact of the ISKCON decision is narrow, in that it only addressed the validity of a solicitation ordinance directed at a municipal airport. However, the decision may be helpful to anticipate how the California Supreme Court may evaluate other types of solicitation ordinances directed towards public property or facilities that do not fall within traditional public fora such as streets, sidewalks and parks.

Cities often seek to prohibit or restrict the solicitation of funds in public places to achieve a variety of goals. These goals include eliminating unsightly litter, preventing interference with vehicular or pedestrian traffic along public rights-of-way or with the conduct of the government's business, preserving the safety or security of governmental officials, facilities or the general public, and preventing fraud. Groups and individuals solicit funds for a variety of purposes, including religious, charitable, and political causes, as well as for commercial purposes. Consequently, solicitation ordinances directly impact the communication of information, dissemination of differing viewpoints, and advocacy of causes.

Accordingly, the federal and state courts require careful scrutiny of such ordinances because they impact the exercise of constitutional rights of freedom of speech and expression protected by the First Amendment of the United States Constitution and the Liberty of Speech Clause contained in Article I, Section 1 of the California Constitution. These provisions are integral to our system of government. Due to the importance of charitable, religious and political expression in American constitutional law, legal challenges to solicitation ordinances are frequent, and the federal and state courts have wrestled with how to balance the governmental interests against the right of Americans to engage in the free exchange of ideas.

Evolving Judicial Views of Speech in Public Places

Court decisions have held that a "public forum" – such as streets, sidewalks and public parks – is a traditional area for expression of religious, political and charitable ideas and viewpoints, and receive the most protection. The courts apply "strict scrutiny" to regulations restricting speech and expression in these traditional public fora. The regulations must be "content-neutral" – they cannot discriminate against a particular viewpoint. However, courts will uphold regulation of solicitation in a public forum if it is a "reasonable time, place and manner" regulation. Under this test, the ordinance must be narrowly tailored, serve a significant governmental interest, and leave open ample alternative means of communication.

Over time, the courts have struggled with how to apply free speech principles to public property that is not a traditional public forum, such as shopping centers, railroad stations, and airports. The United States Supreme Court ruled that an airport is not a public forum under the First Amendment. [International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 680 (1992).] However, the California Supreme Court has not yet ruled whether a municipal airport is a public forum under the Liberty of Speech Clause of the California Constitution.

The ISKCON decision arose after the Ninth Circuit Court of Appeals, in a separate federal lawsuit, asked the California Supreme Court to decide whether LAX is a public forum under California's Liberty of Speech Clause. In the federal case, International Soc. for Krishna Consciousness of California Inc. v. City of Los Angeles, 530 F.3d 768 (9th Cir. 2008), the Ninth Circuit was asked to reverse a federal district court decision that ruled the airport solicitation ordinance violated the California Constitution because LAX is a public forum under California's Liberty of Speech Clause, and the ordinance was not a reasonable time, place, and manner restriction on the solicitation of funds at LAX. The Ninth Circuit, before issuing its own decision, referred the case to the California Supreme Court to decide whether the airport constitutes a public forum under the California Constitution.

The California Supreme Court refused to issue a ruling on whether LAX is a public forum. Instead, the Court held that regardless whether LAX is a public forum, the ordinance was a valid time, place and manner restriction. The ISKCON decision included two concurring opinions. One concurring justice concluded that LAX is a public forum, but agreed the ordinance was a valid time, place and manner regulation even under a strict scrutiny analysis. Three justices joined in a second concurring opinion that concluded an airport is not a public forum. Those justices found that airports are not like shopping malls, which have replaced the streets and sidewalks of the central business district as a forum for purposes of assembly, communicating thoughts between citizens, and discussing public questions.

Conclusion

Because the California Supreme Court declined to decide the issue whether LAX is a public forum in ISKCON, it is not clear at this time whether there is a majority view among the present justices of the California Supreme Court whether an airport is a public forum, or how the California Supreme Court may treat public property that does not fall within the scope of a traditional public forum. However, the majority opinion suggests that the Court will attempt to find ways to uphold an ordinance if its regulations are narrowly drawn to address a problematic form of solicitation when local government is able to demonstrate that the method it selected is a reasonable means to accomplish its goals. The decision emphasized that the courts should not second-guess local legislators' decisions regarding the method to accomplish the city's goals, even if there may be a less-speech restrictive alternative available. This decision is thus encouraging for cities seeking to balance the right of persons to advocate ideas while at the same time protecting recipients from intrusive conduct or interference with their personal or business activities.

FOR ADVICE FROM RW&G ON FREE SPEECH ISSUES, PLEASE CONTACT AMY GREYSON OR ANY OF THE ATTORNEYS IN THE FIRM'S PUBLIC LAW DEPARTMENT

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