Ninth Circuit Upholds Reasonable Restrictions on Solicitation of Funds at LAX

Last week, the Ninth Circuit decided the final piece of a decades-old solicitation case, International Society for Krishna Consciousness of California, Inc. v. City of Los Angeles, 2014 WL 4086794. The religious society, referred to as “ISKCON” by the Court, had challenged, under both the First Amendment and the California Constitution, the Los Angeles airport’s ban on the continuous or repetitive requests for the immediate receipt of funds in the airport terminals, parking lots, and on the sidewalks adjacent to both areas. The Ninth Circuit affirmed the lower court’s ruling that the ordinance in question was a reasonable, viewpoint-neutral restriction on expressive activity at LAX under the First Amendment. Key to the Court’s finding was the fact that the parties agreed that the forum at issue was a nonpublic forum. ISKCON likely did not challenge the classification of the forum given the Supreme Court’s decision in International Society for Krishna Consciousness v. Lee (1992) 505 U.S. 672, in which the Court found that airport terminal buildings were a nonpublic forum.   

This case provides some useful discussion of the reasonableness of restrictions on repetitive solicitation for the immediate receipt of funds in a nonpublic forum, but may be somewhat limited in its application because of the unusually large numbers of travelers passing through LAX (approximately 60 million per year). Therefore, even for other nonpublic forums, public agencies should still assess the reasonableness of their regulation of protected activity based on issues particular to those forums.

This case has a long and tortuous history, and in 2010, the Ninth Circuit requested that the California Supreme Court answer a question of California law related to ISKCON’s claim under the California Constitution, specifically, whether LAX was a public forum under the California liberty of speech clause. The California Supreme Court declined to answer this question, finding that whether or not LAX was a public forum, the ordinance was valid as a reasonable time, place and manner restriction under the liberty of speech clause (and thus would pass muster under the less stringent nonpublic forum analysis as well). (International Society for Krishna Consciousness of California, Inc. v. City of Los Angeles(2010) 48 Cal.4th 446).

The most recent appeal in the ISKCON case came to the Ninth Circuit based on the district court’s grant of summary judgment for the City on its federal claim. To survive First Amendment analysis, restrictions in a nonpublic forum must be “reasonable in light of the purpose served by the forum” and “viewpoint neutral.” Given the parties’ agreement that LAX was a nonpublic forum (and that the regulations were viewpoint neutral) the Ninth Circuit moved directly to an analysis under the more deferential reasonableness standard. (The forum classification of the airport for purposes of the California Constitution is still undetermined.)    

Focusing on two concerns – congestion and fraud – the Court found that the ordinance reasonably promotes the airport’s legitimate interest in reducing both. The City interprets (and the Court construed) its ordinance to prohibit only solicitation for the immediate receipt of funds. Citing to several U.S. Supreme Court opinions, the Court noted that this type of expressive activity “is inherently more disruptive than . . . other speech activities.” Solicitation can contribute to congestion in pedestrian traffic flows because it requires action from those being solicited, including making a decision whether to donate and then finding a method of payment. The Court also acknowledged a “well-recognized” risk of fraud inherent in face-to-face solicitation of funds. Some people in the airport population may be especially vulnerable in that they may be in a hurry or may not speak the language of the solicitor well. The Court also found important other facts relating specifically to LAX, including a 95% reduction in space available to the general public since 9/11, and unrebutted evidence of fraudulent schemes occurring on airport property designed to bilk money from travelers.

This case provides some guidance when crafting regulations on the solicitation for the immediate receipt of funds, although, again, the holding is limited to nonpublic forums, many of which will not share LAX’s characteristics.