Court Upholds LAX Solicitation Ban, Ducks "Public Forum" Issue

In ISKCON v. City of Los Angeles (here), the California Supreme Court held that a ban on "Immediate solicitation" (i.e., soliciting an immediate contribution) in the public areas of Los Angeles Airport was a reasonable time, place and manner restriction, regardless of whether these areas constituted a "public forum" under the "liberty of speech" clause of the California Constitution (art. I, sec. 2(a)). The Court's earlier decision in Los Angeles Alliance for Survival v. City of Los Angeles, 22 Cal. 4th 352 (2000), had held that a ban on solicitation was not content-based. As a result, the solicitation ban at issue in ISKCON only had to satisfy the less exacting standards applicable to content-neutral time, place and manner restrictions--i.e., that they be narrowly tailored, serve a significant governmental interest and leave open ample alternative means of communication.

The Court first held that the narrow tailoring requirement does not incorporate a "less drastic alternative" standard--i.e., the government need not prove that no less speech-restricting alternative would further the same interest. Instead, it requires only that the challenged law promote a substantial governmental interest that would be achieved less effectively absent the regulation. The solicitation ban met this requirement (it's hard to imagine an ordinance that wouldn't) in light of the special intrusiveness of requests for an immediate donation of funds and the "often crowded and hectic environment of a large international airport." Moreover, solicitation of funds creates problems of duress and fraud that other speech does not. The Court rejected the district court's finding that these interests could only justify a ban on solicitation during peak hours or in busy locations, because these times and locations vary. Finally, the court held that the ban left open ample alternative means of communication; the plaintiff could solicit funds elsewhere and could even solicit in the airport as long as they did not ask for an immediate donation of money.

Justice Kennard concurred. She dissented in Los Angeles Alliance for Survival v. City of Los Angeles, and continued to believe that a solicitation ban was content-based. But, given that decision, she concurred that the solicitation ban met the time, place and manner standard. Indeed, she said so forcefully, stating that "[s]peech activities at airports that interfere with the legitimate interests of the airport management, arriving or departing passengers, or airline or airport employees need not be tolerated." She also indicated, somewhat contradictorily, that she viewed the public areas of LAX as a public forum. So, despite her strong language, it's not clear how she would have voted had she not been compelled to follow Los Angeles Alliance for Survival.

Justices Chin, Baxter and Corrigan also concurred, taking the opposite tack from Justice Kennard. They would have held that the common areas of LAX are not a public forum. Accordingly, they had no problem upholding the no-solicitation ban.

This opinion conforms California law to federal law in analyzing time, place and manner restrictions. Accordingly, it may have a broad impact outside the somewhat special context of airport speech.