Chief Justice Rehnquist delivered the opinion of the Court.
In this case we consider whether an airport terminal operated by a public authority is a public forum and whether a regulation prohibiting solicitation in the interior of an airport terminal violates the First Amendment.
The relevant facts in this case are not in dispute. Petitioner International Society for Krishna Consciousness, Inc. (ISKCON), is a not-for-profit religious corporation whose members perform a ritual known as sankirtan. The ritual consists of "`going into public places, disseminating religious
Respondent Walter Lee, now deceased, was the police superintendent of the Port Authority of New York and New Jersey and was charged with enforcing the regulation at issue. The Port Authority owns and operates three major airports in the greater New York City area: John F. Kennedy International Airport (Kennedy), La Guardia Airport (La Guardia), and Newark International Airport (Newark). The three airports collectively form one of the world's busiest metropolitan airport complexes. They serve approximately 8% of this country's domestic airline market and more than 50% of the trans-Atlantic market. By decade's end they are expected to serve at least 110 million passengers annually. Id., at 578.
The airports are funded by user fees and operated to make a regulated profit. Id., at 581. Most space at the three airports is leased to commercial airlines, which bear primary responsibility for the leasehold. The Port Authority retains control over unleased portions, including La Guardia's Central Terminal Building, portions of Kennedy's International Arrivals Building, and Newark's North Terminal Building (we refer to these areas collectively as the "terminals"). The terminals are generally accessible to the general public and contain various commercial establishments such as restaurants, snack stands, bars, newsstands, and stores of various types. Id., at 578. Virtually all who visit the terminals do so for purposes related to air travel. These visitors principally include passengers, those meeting or seeing off passengers, flight crews, and terminal employees. Ibid.
The Port Authority has adopted a regulation forbidding within the terminals the repetitive solicitation of money or distribution of literature. The regulation states:
The regulation governs only the terminals; the Port Authority permits solicitation and distribution on the sidewalks outside the terminal buildings. The regulation effectively prohibits ISKCON from performing sankirtan in the terminals. As a result, ISKCON brought suit seeking declaratory and injunctive relief under 42 U. S. C. § 1983, alleging that the regulation worked to deprive its members of rights guaranteed under the First Amendment.
The Court of Appeals affirmed in part and reversed in part. 925 F.2d 576 (1991). Relying on our recent decision in United States v. Kokinda, 497 U.S. 720 (1990), a divided panel concluded that the terminals are not public for a. As a result, the restrictions were required only to satisfy a standard of reasonableness. The Court of Appeals then concluded that, presented with the issue, this Court would find that the ban on solicitation was reasonable, but the ban on distribution was not. ISKCON and one of its members, also a petitioner here, sought certiorari respecting the Court of Appeals' decision that the terminals are not public for a and upholding the solicitation ban. Respondent cross-petitioned respecting the court's holding striking down the distribution ban. We granted both petitions, 502 U.S. 1022 (1992), to resolve whether airport terminals are public for a, a question on which the Circuits have split
It is uncontested that the solicitation at issue in this case is a form of speech protected under the First Amendment.
Heffron v. International Soc. for Krishna Consciousness, Inc., 452 U.S. 640 (1981); Kokinda, supra, at 725 (citing
These cases reflect, either implicitly or explicitly, a "forum based" approach for assessing restrictions that the government seeks to place on the use of its property. Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 800 (1985). Under this approach, regulation of speech on government property that has traditionally been available for public expression is subject to the highest scrutiny. Such regulations survive only if they are narrowly drawn to achieve a compelling state interest. Perry, 460 U. S., at 45. The second category of public property is the designated public forum, whether of a limited or unlimited character— property that the State has opened for expressive activity by part or all of the public. Ibid. Regulation of such property is subject to the same limitations as that governing a traditional public forum. Id., at 46. Finally, there is all remaining
The parties do not disagree that this is the proper framework. Rather, they disagree whether the airport terminals are public for a or nonpublic for a. They also disagree whether the regulation survives the "reasonableness" review governing nonpublic for a, should that prove the appropriate category.
The suggestion that the government has a high burden in justifying speech restrictions relating to traditional public for a made its first appearance in Hague v. Committee for Industrial Organization, 307 U.S. 496, 515, 516 (1939). Justice Roberts, concluding that individuals have a right to use "streets and parks for communication of views," reasoned that such a right flowed from the fact that "streets and parks. . . have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." We confirmed this observation in Frisby v. Schultz, 487 U.S. 474, 481 (1988), where we held that a residential street was a public forum.
Our recent cases provide additional guidance on the characteristics of a public forum. In Cornelius we noted that a traditional public forum is property that has as "a principal purpose . . . the free exchange of ideas." 473 U. S., at 800. Moreover, consistent with the notion that the government— like other property owners—"has power to preserve the
These precedents foreclose the conclusion that airport terminals are public for a. Reflecting the general growth of the air travel industry, airport terminals have only recently achieved their contemporary size and character. See H. Hubbard, M. McClintock, & F. Williams, Airports: Their Location, Administration and Legal Basis 8 (1930) (noting that the United States had only 807 airports in 1930). But given the lateness with which the modern air terminal has made its appearance, it hardly qualifies for the description of having "immemorially . . . time out of mind" been held in the public trust and used for purposes of expressive activity. Hague, supra, at 515. Moreover, even within the rather short history of air transport, it is only "[i]n recent years [that] it has become a common practice for various religious and nonprofit organizations to use commercial airports as a forum for the distribution of literature, the solicitation of funds, the proselytizing of new members, and other similar activities." 45 Fed. Reg. 35314 (1980). Thus, the tradition of airport activity does not demonstrate that airports have historically been made available for speech activity. Nor can we say that these particular terminals, or airport terminals generally, have been intentionally opened by their operators to such activity; the frequent and continuing litigation evidencing
Petitioners attempt to circumvent the history and practice governing airport activity by pointing our attention to the variety of speech activity that they claim historically occurred at various "transportation nodes" such as rail stations, bus stations, wharves, and Ellis Island. Even if we were inclined to accept petitioners' historical account describing speech activity at these locations, an account respondent contests, we think that such evidence is of little import for two reasons. First, much of the evidence is irrelevant to public for a analysis, because sites such as bus and rail terminals traditionally have had private ownership. See United Transportation Union v. Long Island R. Co., 455 U.S. 678, 687 (1982); H. Grant & C. Bohi, The Country Railroad Station in America 11-15 (1978); U. S. Dept. of Transportation, The Intercity Bus Terminal Study 31 (Dec. 1984). The development of privately owned parks that ban speech activity would not change the public for a status of publicly held parks. But the reverse is also true. The practices of privately held transportation centers do not bear on the government's regulatory authority over a publicly owned airport.
Second, the relevant unit for our inquiry is an airport, not "transportation nodes" generally. When new methods of transportation develop, new methods for accommodating that transportation are also likely to be needed. And with each new step, it therefore will be a new inquiry whether the transportation necessities are compatible with various kinds of expressive activity. To make a category of "transportation nodes," therefore, would unjustifiably elide what may prove to be critical differences of which we should rightfully take account. The "security magnet," for example, is
The differences among such facilities are unsurprising since, as the Court of Appeals noted, airports are commercial establishments funded by users fees and designed to make a regulated profit, 925 F. 2d, at 581, and where nearly all who visit do so for some travel related purpose, id., at 578. As commercial enterprises, airports must provide services attractive to the marketplace. In light of this, it cannot fairly be said that an airport terminal has as a principal purpose promoting "the free exchange of ideas." Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 800 (1985). To the contrary, the record demonstrates that Port Authority management considers the purpose of the terminals to be the facilitation of passenger air travel, not the promotion of expression. Sloane Affidavit, ¶ 11, App. 464; Defendant's Civil Rule 3(g) Statement, ¶ 39, App. 453. Even if we look beyond the intent of the Port Authority to the manner in which the terminals have been operated, the terminals have never been dedicated (except under the threat of court order) to expression in the form sought to be exercised here: i. e., the solicitation of contributions and the distribution of literature.
The terminals here are far from atypical. Airport builders and managers focus their efforts on providing terminals that will contribute to efficient air travel. See, e. g., R. Horonjeff & F. McKelvey, Planning and Design of Airports 326 (3d ed. 1983) ("The terminal is used to process passengers
The restrictions here challenged, therefore, need only satisfy a requirement of reasonableness. We reiterate what we stated in Kokinda: The restriction "`need only be reasonable; it need not be the most reasonable or the only reasonable limitation.'" 497 U. S., at 730 (plurality opinion) (quoting Cornelius, supra, at 808). We have no doubt that under this standard the prohibition on solicitation passes muster.
We have on many prior occasions noted the disruptive effect that solicitation may have on business. "Solicitation requires action by those who would respond: The individual solicited must decide whether or not to contribute (which itself might involve reading the solicitor's literature or hearing his pitch), and then, having decided to do so, reach for a wallet, search it for money, write a check, or produce a credit card." Kokinda, supra, at 734; see Heffron, 452 U. S., at 663 (Blackmun, J., concurring in part and dissenting in part). Passengers who wish to avoid the solicitor may have to alter their paths, slowing both themselves and those around them.
In addition, face-to-face solicitation presents risks of duress that are an appropriate target of regulation. The skillful, and unprincipled, solicitor can target the most vulnerable, including those accompanying children or those suffering physical impairment and who cannot easily avoid the solicitation. See, e. g., International Soc. for Krishna Consciousness, Inc. v. Barber, 506 F.Supp. 147, 159-163 (NDNY 1980), rev'd on other grounds, 650 F.2d 430 (CA2 1981). The unsavory solicitor can also commit fraud through concealment of his affiliation or through deliberate efforts to shortchange those who agree to purchase. 506 F.Supp. 159-163. See 45 Fed. Reg. 35314-35315 (1980). Compounding this problem is the fact that, in an airport, the targets of such activity frequently are on tight schedules. This in turn makes such visitors unlikely to stop and formally complain to airport authorities. As a result, the airport faces considerable difficulty in achieving its legitimate interest in monitoring solicitation activity to assure that travelers are not interfered with unduly.
The Port Authority has concluded that its interest in monitoring the activities can best be accomplished by limiting solicitation and distribution to the sidewalk areas outside the terminals. Sloane Supp. Affidavit, ¶ 11, App. 514. This sidewalk area is frequented by an overwhelming percentage of airport users, see id., at ¶ 14, App. 515-516 (noting that no more than 3% of air travelers passing through the terminals are doing so on intraterminal flights, i. e., transferring planes). Thus the resulting access of those who would solicit
The inconveniences to passengers and the burdens on Port Authority officials flowing from solicitation activity may seem small, but viewed against the fact that "pedestrian congestion is one of the greatest problems facing the three terminals," 925 F. 2d, at 582, the Port Authority could reasonably worry that even such incremental effects would prove quite disruptive.
For the foregoing reasons, the judgment of the Court of Appeals sustaining the ban on solicitation in Port Authority terminals is
Affirmed. Justice O'Connor, concurring in No. 91-155 and concurring in the judgment in No. 91-339, post, p. 830.
In the decision below, the Court of Appeals upheld a ban on solicitation of funds within the airport terminals operated by the Port Authority of New York and New Jersey, but struck down a ban on the repetitive distribution of printed
I concur in the Court's opinion in No. 91-155 and agree that publicly owned airports are not public for a. Unlike public streets and parks, both of which our First Amendment jurisprudence has identified as "traditional public for a," airports do not count among their purposes the "free exchange of ideas," Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 800 (1985); they have not "by long tradition or by government fiat . . . been devoted to assembly and debate," Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45 (1983); nor have they "time out of mind, . . . been used for purposes of . . . communicating thoughts between citizens, and discussing public questions," Hague v. Committee for Industrial Organization, 307 U.S. 496, 515 (1939). Although most airports do not ordinarily restrict public access, "[p]ublicly owned or operated property does not become a `public forum' simply because members of the public are permitted to come and go at will." United States v. Grace, 461 U.S. 171, 177 (1983); see also Greer v. Spock, 424 U.S. 828, 836 (1976). "[W]hen government property is not dedicated to open communication the government may— without further justification—restrict use to those who participate in the forum's official business." Perry, supra, at 53. There is little doubt that airports are among those publicly owned facilities that could be closed to all except those who have legitimate business there. See Grace, supra, at 178. Public access to airports is thus not "inherent in the open nature of the locations," as it is for most streets and parks, but is rather a "matter of grace by government officials." United States v. Kokinda, 497 U.S. 720, 743 (1990) (Brennan, J., dissenting). I also agree with the Court that the Port Authority has not expressly opened its airports to the types of expression at issue here, see ante, at 680-681, and therefore has not created a "limited" or "designated" public forum relevant to this case.
"The reasonableness of the Government's restriction [on speech in a nonpublic forum] must be assessed in light of the purpose of the forum and all the surrounding circumstances." Cornelius, supra, at 809. "`[C]onsideration of a forum's special attributes is relevant to the constitutionality of a regulation since the significance of the governmental interest must be assessed in light of the characteristic nature and function of the particular forum involved.' " Kokinda, supra, at 732, quoting Heffron v. International Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 650-651 (1981).
We have said that a restriction on speech in a nonpublic forum is "reasonable" when it is "consistent with the [government's] legitimate interest in `preserv[ing] the property. . . for the use to which it is lawfully dedicated.' " Perry, supra, at 50-51, quoting Postal Service v. Council of Greenburgh Civic Assns., 453 U.S. 114, 129-130 (1981) (internal quotation marks omitted). Ordinarily, this inquiry is relatively straightforward, because we have almost always been confronted with cases where the for a at issue were discrete, single-purpose facilities. See, e. g., Kokinda, supra (dedicated sidewalk between parking lot and post office); Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788 (1985) (literature for charity drive); City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984) (utility poles); Perry, supra (inter school mail system); Postal Service v. Council of Greenburgh Civic Assns., supra (household mail boxes); Adderley v. Florida, 385 U.S. 39 (1966) (curtilage of jail house). The Port Authority urges that this case is no different and contends that it, too, has dedicated its airports to a single purpose—facilitating air travel—and that the speech it seeks to prohibit is not consistent with that purpose. But the wide range of activities promoted by the
Applying that standard, I agree with the Court in No. 91-155 that the ban on solicitation is reasonable. Face-to-face solicitation is incompatible with the airport's functioning in a way that the other, permitted activities are not. We have previously observed that "[s]olicitation impedes the normal flow of traffic [because it] requires action by those who would respond: The individual solicited must decide whether or not to contribute (which itself might involve reading the solicitor's literature or hearing his pitch), and then, having decided to do so, reach for a wallet, search it for money, write a check, or produce a credit card. . . . As residents of metropolitan areas know from daily experience, confrontation by a person asking for money disrupts passage and is more intrusive and intimidating than an encounter with a person giving out information." Kokinda, 497 U. S., at 733-734 (plurality opinion) (citations omitted); id., at 739 (Kennedy, J., concurring in judgment) (accepting Postal Service's judgment that, given its past experience, "in-person solicitation deserves different treatment from alternative forms of solicitation and expression"); Heffron, supra, at 657 (Brennan, J., concurring in part and dissenting in part) (upholding partial restriction on solicitation at fairgrounds because of state interest "in protecting its fairgoers from fraudulent, deceptive, and misleading
In my view, however, the regulation banning leafletting— or, in the Port Authority's words, the "continuous or repetitive . . . distribution of . . . printed or written material"— cannot be upheld as reasonable on this record. I therefore concur in the judgment in No. 91-339, post, p. 830, striking down that prohibition. While the difficulties posed by solicitation in a nonpublic forum are sufficiently obvious that its regulation may "rin[g] of common-sense," Kokinda, 497 U. S., at 734 (internal quotation marks and citation omitted), the same is not necessarily true of leafletting. To the contrary, we have expressly noted that leafletting does not entail the same kinds of problems presented by face-to-face solicitation. Specifically, "[o]ne need not ponder the contents of a leaflet or pamphlet in order mechanically to take it out of someone's hand . . . . `The distribution of literature does not require that the recipient stop in order to receive the message the speaker wishes to convey; instead the recipient is free to read the message at a later time.' " Ibid. (plurality opinion), quoting Heffron, supra, at 665 (Blackmun, J., concurring in part and dissenting in part). With the possible exception of avoiding litter, see Schneider v. State (Town of Irvington), 308 U.S. 147, 162 (1939), it is difficult to point to any problems intrinsic to the act of leafletting that would make it naturally incompatible with a large, multipurpose forum such as those at issue here.
Moreover, the Port Authority has not offered any justifications or record evidence to support its ban on the distribution of pamphlets alone. Its argument is focused instead on the problems created when literature is distributed in conjunction with a solicitation plea. Although we do not "requir[e] that . . . proof be present to justify the denial of access to a nonpublic forum on grounds that the proposed use may disrupt the property's intended function," Perry, 460 U. S., at 52, n. 12, we have required some explanation as to why
Of course, it is still open for the Port Authority to promulgate regulations of the time, place, and manner of leafletting which are "content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." Perry, supra, at 45; Postal Service, 453 U. S., at 132. For example, during the many years that this litigation has been in progress, the Port Authority has not banned sankirtan completely from JFK International Airport, but has restricted it to a relatively uncongested part of the airport terminals, the same part that houses the airport chapel. Tr. of Oral Arg. 5-6, 46-47. In my view, that regulation meets the standards we have applied to time, place, and manner restrictions of protected
I would affirm the judgment of the Court of Appeals in both No. 91-155 and No. 91-339.
Justice Kennedy, with whom Justice Blackmun, Justice Stevens, and Justice Souter join as to Part I, concurring in the judgments.
While I concur in the judgments affirming in these cases, my analysis differs in substantial respects from that of the Court. In my view the airport corridors and shopping areas outside of the passenger security zones, areas operated by the Port Authority, are public forums, and speech in those places is entitled to protection against all government regulation inconsistent with public forum principles. The Port Authority's blanket prohibition on the distribution or sale of literature cannot meet those stringent standards, and I agree it is invalid under the First and Fourteenth Amendments. The Port Authority's rule disallowing in-person solicitation of money for immediate payment, however, is in my view a narrow and valid regulation of the time, place, and manner of protected speech in this forum, or else is a valid regulation of the nonspeech element of expressive conduct. I would sustain the Port Authority's ban on solicitation and receipt of funds.
An earlier opinion expressed my concern that "[i]f our public forum jurisprudence is to retain vitality, we must recognize that certain objective characteristics of Government property and its customary use by the public may control" the status of the property. United States v. Kokinda, 497 U.S. 720, 737 (1990) (Kennedy, J., concurring in judgment). The cases before us do not heed that principle. Our public
Our public forum analysis has its origins in Justice Roberts' rather sweeping dictum in Hague v. Committee for Industrial Organization, 307 U.S. 496, 515 (1939); see also ante, at 679. The doctrine was not stated with much precision or elaboration, though, until our more recent decisions in Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U.S. 37 (1983), and Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788 (1985). These cases describe a three-part analysis to designate government-owned property as either a traditional public forum, a designated public forum, or a nonpublic forum. Perry, supra, at 45-46; ante, at 678-679. The Court today holds that traditional public forums are limited to public property which have as "`a principal purpose . . . the free exchange of ideas,' " ante, at 679 (quoting Cornelius, supra, at 800); ante, at 686 (O'Connor, J., concurring in No. 91-155 and concurring in judgment in No. 91-339 (hereinafter opinion of O'Connor, J.)); and that this purpose must be evidenced by a longstanding historical practice of permitting speech, ante, at 679; ante, at 686 (opinion of O'Connor, J.). The Court also holds that designated forums consist of property which the government intends to open for public discourse. Ante, at 680, citing Cornelius, supra, at 802; ante, at 686 (opinion of O'Connor, J.). All other types of property are, in the Court's view, nonpublic forums (in other words, not public forums), and governmentimposed restrictions of speech in these places will be upheld so long as reasonable and viewpoint neutral. Under this categorical view the application of public forum analysis to airport terminals seems easy. Airports are of course public spaces of recent vintage, and so there can be no time-honored
This analysis is flawed at its very beginning. It leaves the government with almost unlimited authority to restrict speech on its property by doing nothing more than articulating a non-speech-related purpose for the area, and it leaves almost no scope for the development of new public forums absent the rare approval of the government. 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. The fact that in our public forum cases we discuss and analyze these precise characteristics tends to support my position. Perry, supra, at 46-48; Cornelius, supra, at 804-806; Kokinda, supra, at 727-729 (plurality opinion).
The First Amendment is a limitation on government, not a grant of power. Its design is to prevent the government from controlling speech. Yet under the Court's view the authority of the government to control speech on its property is paramount, for in almost all cases the critical step in the Court's analysis is a classification of the property that turns on the government's own definition or decision, unconstrained by an independent duty to respect the speech its citizens can voice there. The Court acknowledges as much, by reintroducing today into our First Amendment law a strict doctrinal line between the proprietary and regulatory functions of government which I thought had been abandoned long ago. Ante, at 678; compare Davis v. Massachusetts, 167 U.S. 43 (1897), with Hague, supra, at 515; Schnei-
The Court's approach is contrary to the underlying purposes of the public forum doctrine. The liberties protected by our doctrine derive from the Assembly, as well as the Speech and Press Clauses of the First Amendment, and are essential to a functioning democracy. See Kalven, The Concept of the Public Forum: Cox v. Louisiana, 1965 S. Ct. Rev. 1, 14, 19. Public places are of necessity the locus for discussion of public issues, as well as protest against arbitrary government action. At the heart of our jurisprudence lies the principle that in a free nation citizens must have the right to gather and speak with other persons in public places. The recognition that certain government-owned property is a public forum provides open notice to citizens that their freedoms may be exercised there without fear of a censorial government, adding tangible reinforcement to the idea that we are a free people.
A fundamental tenet of our Constitution is that the government is subject to constraints which private persons are not. The public forum doctrine vindicates that principle by recognizing limits on the government's control over speech activities on property suitable for free expression. The doctrine focuses on the physical characteristics of the property because government ownership is the source of its purported authority to regulate speech. The right of speech protected by the doctrine, however, comes not from a Supreme Court dictum but from the constitutional recognition that the government cannot impose silence on a free people.
The Court's analysis rests on an inaccurate view of history. The notion that traditional public forums are properties that have public discourse as their principal purpose is a most doubtful fiction. The types of property that we have recognized as the quintessential public forums are streets, parks, and sidewalks. Cornelius, 473 U. S., at 802; Frisby v. Schultz, 487 U.S. 474, 480-481 (1988). It would seem apparent that the principal purpose of streets and sidewalks, like
The effect of the Court's narrow view of the first category of public forums is compounded by its description of the second purported category, the so-called "designated" forum. The requirements for such a designation are so stringent that I cannot be certain whether the category has any content left at all. In any event, it seems evident that under the Court's analysis today few, if any, types of property other than those already recognized as public forums will be accorded that status.
The Court's answer to these objections appears to be a recourse to history as justifying its recognition of streets, parks, and sidewalks, but apparently no other types of government property, as traditional public forums. Ante, at 681. The Court ignores the fact that the purpose of the public forum doctrine is to give effect to the broad command of the First Amendment to protect speech from governmental interference. The jurisprudence is rooted in historic practice, but it is not tied to a narrow textual command limiting the recognition of new forums. In my view the policies underlying the doctrine cannot be given effect unless we recognize that open, public spaces and thoroughfares that are suitable for discourse may be public forums, whatever their historical pedigree and without concern for a precise classification of the property. There is support in our precedents for such a view. See Lehman v. Shaker Heights, 418 U.S. 298, 303 (1974) (plurality opinion); Hague, 307 U. S., at 515 (speaking of "streets and public places" as forums). Without this recognition our forum doctrine retains no relevance in times of fast-changing technology and increasing insularity. In a country where most citizens travel by automobile, and
One of the places left in our mobile society that is suitable for discourse is a metropolitan airport. It is of particular importance to recognize that such spaces are public forums because in these days an airport is one of the few government-owned spaces where many persons have extensive contact with other members of the public. Given that private spaces of similar character are not subject to the dictates of the First Amendment, see Hudgens v. NLRB, 424 U.S. 507 (1976), it is critical that we preserve these areas for protected speech. In my view, our public forum doctrine must recognize this reality, and allow the creation of public forums that do not fit within the narrow tradition of streets, sidewalks, and parks. We have allowed flexibility in our doctrine to meet changing technologies in other areas of constitutional interpretation, see, e. g., Katz v. United States, 389 U.S. 347 (1967), and I believe we must do the same with the First Amendment.
I agree with the Court that government property of a type which by history and tradition has been available for speech activity must continue to be recognized as a public forum. Ante, at 679. In my view, however, constitutional protection is not confined to these properties alone. Under the proper circumstances I would accord public forum status to other forms of property, regardless of their ancient or contemporary origins and whether or not they fit within a narrow historic tradition. If the objective, physical characteristics of the property at issue and the actual public access and uses that have been permitted by the government indicate that expressive activity would be appropriate and compatible with those uses, the property is a public forum. The most important considerations in this analysis are whether the
The second category of the Court's jurisprudence, the socalled designated forum, provides little, if any, additional protection for speech. Where government property does not satisfy the criteria of a public forum, the government retains the power to dedicate the property for speech, whether for all expressive activity or for limited purposes only. See ante, at 678; Perry, 460 U. S., at 45-46; Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975). I do not quarrel with the fact that speech must often be restricted on property of this kind to retain the purpose for which it has been designated. And I recognize that when property has been designated for a particular expressive use, the government may choose to eliminate that designation. But this increases the need to protect speech in other places, where discourse may occur free of such restrictions. In some sense the government always retains authority to close a public forum, by selling the property, changing its physical character, or changing its principal use. Otherwise the
Under this analysis, it is evident that the public spaces of the Port Authority's airports are public forums. First, the District Court made detailed findings regarding the physical similarities between the Port Authority's airports and public streets. 721 F.Supp. 572, 576-577 (SDNY 1989). These findings show that the public spaces in the airports are broad, public thoroughfares full of people and lined with stores and other commercial activities. An airport corridor is of course not a street, but that is not the proper inquiry. The question is one of physical similarities, sufficient to suggest that the airport corridor should be a public forum for the same reasons that streets and sidewalks have been treated as public forums by the people who use them.
Second, the airport areas involved here are open to the public without restriction. Ibid. Plaintiffs do not seek access to the secured areas of the airports, nor do I suggest that these areas would be public forums. And while most people who come to the Port Authority's airports do so for a reason related to air travel, either because they are passengers or because they are picking up or dropping off passengers, this does not distinguish an airport from streets or sidewalks, which most people use for travel. See supra, at 696-697. Further, the group visiting the airports encompasses a vast portion of the public: In 1986 the Authority's three airports served over 78 million passengers. It is the very breadth and extent of the public's use of airports that makes it imperative to protect speech rights there. Of course, airport operators retain authority to restrict public
Third, and perhaps most important, it is apparent from the record, and from the recent history of airports, that when adequate time, place, and manner regulations are in place, expressive activity is quite compatible with the uses of major airports. The Port Authority's primary argument to the contrary is that the problem of congestion in its airports' corridors makes expressive activity inconsistent with the airports' primary purpose, which is to facilitate air travel. The First Amendment is often inconvenient. But that is beside the point. Inconvenience does not absolve the government of its obligation to tolerate speech. The Authority makes no showing that any real impediments to the smooth functioning of the airports cannot be cured with reasonable time, place, and manner regulations. In fact, the history of the Authority's own airports, as well as other major airports in this country, leaves little doubt that such a solution is quite feasible. The Authority has for many years permitted expressive activities by petitioners and others, without any apparent interference with its ability to meet its transportation purposes. App. 462, 469-470; see also ante, at 691-692 (opinion of O'Connor, J.). The Federal Aviation Administration, in its operation of the airports of the Nation's capital, has issued rules which allow regulated expressive activity within specified areas, without any suggestion that the speech would be incompatible with the airports' business. 14 CFR §§ 159.93, 159.94 (1992). And, in fact, expressive activity has been a commonplace feature of our Nation's major airports for many years, in part because of the wide consensus among the Courts of Appeals, prior to the decision in
The danger of allowing the government to suppress speech is shown in the cases now before us. A grant of plenary power allows the government to tilt the dialog heard by the public, to exclude many, more marginal, voices. The first challenged Port Authority regulation establishes a flat prohibition on "[t]he sale or distribution of flyers, brochures, pamphlets, books or any other printed or written material," if conducted within the airport terminal, "in a continuous or repetitive manner." We have long recognized that the right to distribute flyers and literature lies at the heart of the liberties
It is my view, however, that the Port Authority's ban on the "solicitation and receipt of funds" within its airport terminals should be upheld under the standards applicable to speech regulations in public forums. The regulation may be upheld as either a reasonable time, place, and manner restriction, or as a regulation directed at the nonspeech element of expressive conduct. The two standards have considerable overlap in a case like this one.
It is well settled that "even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions `are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.'"
I am in full agreement with the statement of the Court that solicitation is a form of protected speech. Ante, at 677; see also Riley v. National Federation of Blind of N. C., Inc., 487 U.S. 781, 788-789 (1988); Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 629 (1980); Murdock v. Pennsylvania, supra. If the Port Authority's solicitation regulation prohibited all speech that requested the contribution of funds, I would conclude that it was a direct, contentbased restriction of speech in clear violation of the First Amendment. The Authority's regulation does not prohibit all solicitation, however; it prohibits the "solicitation and receipt of funds." I do not understand this regulation to prohibit all speech that solicits funds. It reaches only personal solicitations for immediate payment of money. Otherwise, the "receipt of funds" phrase would be written out of the provision. The regulation does not cover, for example, the distribution of preaddressed envelopes along with a plea to contribute money to the distributor or his organization. As
So viewed, I believe the Port Authority's rule survives our test for speech restrictions in the public forum. In-person solicitation of funds, when combined with immediate receipt of that money, creates a risk of fraud and duress that is well recognized, and that is different in kind from other forms of expression or conduct. Travelers who are unfamiliar with the airport, perhaps even unfamiliar with this country, its customs, and its language, are an easy prey for the money solicitor. I agree in full with the Court's discussion of these dangers in No. 91-155. Ante, at 683-684; ante, at 689-690 (opinion of O'Connor, J.). I would add that our precedents, as well as the actions of coordinate branches of Government, support this conclusion. We have in the past recognized that in-person solicitation has been associated with coercive or fraudulent conduct. Cantwell v. Connecticut, 310 U.S. 296, 306 (1940); Riley, supra, at 800; Heffron v. International Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 657 (1981) (Brennan, J., concurring in part and dissenting in part); Schaumburg, supra, at 636-638. In addition, the Federal Government has adopted regulations which acknowledge and respond to the serious problems associated with solicitation. The National Park Service has enacted a flat ban on the direct solicitation of money in the parks of the Nation's capital within its control. 36 CFR § 7.96(h) (1991); see also United States v. Kokinda, 497 U. S., at 739 (Kennedy, J., concurring in judgment). Also, the Federal Aviation Administration, in its administration of the airports of Washington, D. C., even while permitting the solicitation of funds has adopted special rules to prevent coercive, harassing, or repetitious behavior. 14 CFR § 159.94(e)-(h) (1992). And
Because the Port Authority's solicitation ban is directed at these abusive practices and not at any particular message, idea, or form of speech, the regulation is a content-neutral rule serving a significant government interest. We have held that the content neutrality of a rule must be assessed based on whether it is "`justified without reference to the content of the regulated speech.'" Ward, 491 U. S., at 791 (quoting Clark, 468 U. S., at 293) (emphasis in original). It is apparent that the justification for the solicitation ban is unrelated to the content of speech or the identity of the speaker. There can also be no doubt that the prevention of fraud and duress is a significant government interest. The government cannot, of course, prohibit speech for the sole reason that it is concerned the speech may be fraudulent. Schaumburg, 444 U. S., at 637. But the Port Authority's regulation does not do this. It recognizes that the risk of fraud and duress is intensified by particular conduct, the immediate exchange of money; and it addresses only that conduct. We have recognized that such narrowly drawn regulations are in fact the proper means for addressing
To survive scrutiny, the regulation must be drawn in narrow terms to accomplish its end and leave open ample alternative channels for communication. Regarding the former requirement, we have held that to be narrowly tailored a regulation need not be the least restrictive or least intrusive means of achieving an end. The regulation must be reasonable, and must not burden substantially more speech than necessary. Ward, supra, at 798-800. Under this standard the solicitation ban survives with ease, because it prohibits only solicitation of money for immediate receipt. The regulation does not burden any broader category of speech or expressive conduct than is the source of the evil sought to be avoided. And in fact, the regulation is even more narrow because it only prohibits such behavior if conducted in a continuous or repetitive manner. The Port Authority has made a reasonable judgment that this type of conduct raises the most serious concerns, and it is entitled to deference. My conclusion is not altered by the fact that other means, for example, the regulations adopted by the Federal Aviation Administration to govern its airports, may be available to address the problems associated with solicitation, because the existence of less intrusive means is not decisive. Our cases do not so limit the government's regulatory flexibility. See Ward, supra, at 800.
I have little difficulty in deciding that the Port Authority has left open ample alternative channels for the communication of the message which is an aspect of solicitation. As already discussed, see supra, at 704, the Authority's rule does not prohibit all solicitation of funds: It restricts only the manner of the solicitation, or the conduct associated with solicitation, to prohibit immediate receipt of the solicited money. Requests for money continue to be permitted, and in the course of requesting money solicitors may explain their cause, or the purposes of their organization, without
Much of what I have said about the solicitation of funds may seem to apply to the sale of literature, but the differences between the two activities are of sufficient significance to require they be distinguished for constitutional purposes. The Port Authority's flat ban on the distribution or sale of printed material must, in my view, fall in its entirety. See supra, at 703. The application of our time, place, and manner test to the ban on sales leads to a result quite different from the solicitation ban. For one, the government interest in regulating the sales of literature is not as powerful as in the case of solicitation. The danger of a fraud arising from such sales is much more limited than from pure solicitation, because in the case of a sale the nature of the exchange tends to be clearer to both parties. Also, the Port Authority's sale regulation is not as narrowly drawn as the solicitation rule, since it does not specify the receipt of money as a critical element of a violation. And perhaps most important, the flat ban on sales of literature leaves open fewer alternative channels of communication than the Port Authority's more limited prohibition on the solicitation and receipt of funds. Given the practicalities and ad hoc nature of much expressive activity in the public forum, sales of literature must be completed in one transaction to be workable. Attempting to collect money at another time or place is a far less plausible option in the context of a sale than when soliciting donations, because the literature sought to be sold will under normal circumstances be distributed within the forum. These distinctions have been recognized by the National Park Service, which permits the sale or distribution of literature, while prohibiting solicitation. Supra, at 705; 36 CFR § 7.96(j)(2) (1991). Thus the Port Authority's regulation allows no practical
Against all of this must be balanced the great need, recognized by our precedents, to give the sale of literature full First Amendment protection. We have long recognized that to prohibit distribution of literature for the mere reason that it is sold would leave organizations seeking to spread their message without funds to operate. "It should be remembered that the pamphlets of Thomas Paine were not distributed free of charge." Murdock, 319 U. S., at 111; see also Schaumburg, supra, at 628-635 (discussing cases). The effect of a rule of law distinguishing between sales and distribution would be to close the marketplace of ideas to less affluent organizations and speakers, leaving speech as the preserve of those who are able to fund themselves. One of the primary purposes of the public forum is to provide persons who lack access to more sophisticated media the opportunity to speak. A prohibition on sales forecloses that opportunity for the very persons who need it most. And while the same arguments might be made regarding solicitation of funds, the answer is that the Port Authority has not prohibited all solicitation, but only a narrow class of conduct associated with a particular manner of solicitation.
For these reasons I agree that the Court of Appeals should be affirmed in full in finding the Port Authority's ban on the distribution or sale of literature unconstitutional, but upholding the prohibition on solicitation and immediate receipt of funds.
Justice Souter, with whom Justice Blackmun and Justice Stevens join, concurring in the judgment in No. 91-339, post, p. 830, and dissenting in No. 91-155.
I join in Part I of Justice Kennedy's opinion and the judgment of affirmance in No. 91-339. I agree with Justice
Nor is that a Scylla without Charybdis. Public forum analysis is stultified not only by treating its archetypes as closed categories, but by treating its candidates so categorically as to defeat their identification with the archetypes. We need not say that all "transportation nodes" or all airports are public forums in order to find that certain metropolitan airports are. Thus, the enquiry may and must relate to the particular property at issue and not necessarily to the "precise classification of the property." See ante, at 697 (Kennedy, J., concurring in judgment). It is true that property of some types will invariably be public forums. "No particularized inquiry into the precise nature of a specific street is necessary; all public streets are held in the public trust and are properly considered traditional public for a." Frisby, supra, at 481. But to find one example of a certain property type (e. g., airports, post offices, etc.) that is not a public forum is not to rule out all properties of that sort.
I also agree with Justice Kennedy's statement of the public forum principle: We should classify as a public forum any piece of public property that is "suitable for discourse" in its physical character, where expressive activity is "compatible" with the use to which it has actually been put. See ante, at 698 (opinion concurring in judgment); see also Grayned v. Rockford, 408 U.S. 104, 116 (1972) ("The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time"); ante, at 692 (O'Connor, J., concurring in No. 91-155 and concurring in judgment in No. 91-339) (finding that the ban on the sale or distribution of leaflets here must be struck down "[b]ecause I cannot see how peaceful pamphleteering is incompatible with the multipurpose environment of the Port Authority airports," and concluding that regulations of leafletting may thus only be upheld if they pass scrutiny under our test for restrictions on time, place, or manner of speech). Applying this test, I have no difficulty concluding that the unleased public areas at airports like the metropolitan New York airports at issue in these cases are public forums.
From the Court's conclusion in No. 91-155, however, sustaining the total ban on solicitation of money for immediate payment, I respectfully dissent. "We have held the solicitation of money by charities to be fully protected as the dissemination of ideas. See [Riley v. National Federation of
Even if I assume, arguendo, that the ban on the petitioners' activity at issue here is both content neutral and merely a restriction on the manner of communication, the regulation must be struck down for its failure to satisfy the requirements of narrow tailoring to further a significant state interest, see, e. g., Clark v. Community for Creative NonViolence, 468 U.S. 288, 293 (1984), and availability of "ample alternative channels for communication," Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771 (1976).
As Justice Kennedy's opinion indicates, respondent comes closest to justifying the restriction as one furthering the government's interest in preventing coercion and fraud.
As for fraud, our cases do not provide government with plenary authority to ban solicitation just because it could be fraudulent. "Broad prophylactic rules in the area of free expression are suspect," NAACP v. Button, 371 U.S. 415, 438 (1963), and more than a laudable intent to prevent fraud is required to sustain the present ban. See, e. g., Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 636-638 (1980) ("The Village, consistently with the First Amendment, may not label such groups `fraudulent' and bar them from canvassing on the streets and house to house"); Riley, supra, at 800. The evidence of fraudulent conduct here is virtually nonexistent. It consists of one affidavit describing eight
Even assuming a governmental interest adequate to justify some regulation, the present ban would fall when subjected to the requirement of narrow tailoring. See Riley, supra, at 800; Schaumburg, supra, at 637 ("The Village may serve its legitimate interests, but it must do so by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Amendment freedoms"). "Precision of regulation must be the touchstone . . . ." Button, supra, at 438. Thus, in Schaumburg we said:
Similarly, in Riley we required the State to cure its perceived fraud problem by more narrowly tailored means than compelling disclosure by professional fundraisers of the amount of collected funds that were actually turned over to charity during the previous year:
Finally, I do not think the Port Authority's solicitation ban leaves open the "ample" channels of communication required of a valid content-neutral time, place, and manner restriction. A distribution of preaddressed envelopes is unlikely to be much of an alternative. The practical reality of the regulation, which this Court can never ignore, is that it shuts off a uniquely powerful avenue of communication for organizations like the International Society for Krishna Consciousness, and may, in effect, completely prohibit unpopular and poorly funded groups from receiving funds in response to protected solicitation. Cf. Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 93 (1977) ("Although in theory sellers remain free to employ a number of different alternatives, in practice realty is not marketed through leaflets, sound trucks, demonstrations, or the like").