The Airport : a Questionable Marketplace?

Just a few days ago, as I arrived at Chicago Midway Airport, I noticed a sign at the baggage claim area: "Please Be Aware: Any Solicitation of Rides is Illegal at Chicago Midway Airport." This statement made me curious, as to why this would not be construed as unconstitutional under the First Amendment. Is there really a functional difference between taxi or limo drivers standing at taxi stands and welcome passengers into their cars, and a stranger standing inside the terminal welcoming you towards their car? To me, the answer seems to be "not that much", in which case the statute would no longer seem to be regulating the conduct of soliciting, but rather the substance implied in the actual soliciting itself - regulating based upon the content of the message.

However, based upon news reports of illegal soliciting at Chicago Airports [1], it seems that the government has a legitimate neoliberal reasoning for regulating the solicitation of rides at airports. These are twofold: economic, and safety. Firstly, because the private airport transportation system operates on a licensing system [2], the airport is losing revenue from the passengers that choose to take unlicensed vehicles. Secondly, numerous reports, such as the news article cited above, state the myriad of dangers that may befall passengers who unknowingly take unlicensed transportation at an airport. In a way, I consider the government's ban on illegal solicitation of rides as a functional form of prior restraint, even though it is in a form of a legislative statute.

As with all prior restraints, we must consider the following four conditions:
1) Serious
2) Imminent
3) Causation
4) Narrowly Tailoring

From the story in the Chicago Tribune, the dangers are definitely serious; passengers in unlicensed vehicles have gotten into physical violence and danger with the drivers after being charged exorbitant prices. The nature of solicitation makes it imminent, since as soon as a potential passenger acquiesces, the dangers immediately emerge. According to the news article, disagreements between the passengers and unlicensed drivers directly lead to conflicts, fulfilling the causation clause. Lastly, the statute seems to be narrowly tailoring: if you have a license, then you are exempt from this statute. Granted, I saw no sources which prove the usefulness of the licensing system, which would justify the application of the prior restraint statute on the solicitation of rides, but in my mind the reasoning seems sound enough. The judicial system seems to agree, since I could not find any cases regarding the constitutionality of the regulation on unlicensed solicitation of rides at airports.

Which is all and great for the safety of the passengers, but what about other types of solicitation at airports which do not lead to a clear-cut safety issue?

Let's take a look at the case Los Angeles vs. Jews for Jesus [3]. In this case, Snyder, a minister for the Gospel Jews for Jesus, was distributing free religious literature at the Los Angeles International Airport (LAX), and was notified that an LA resolution banning "all First Amendment Activities" at airports prohibited him from doing so. The Supreme Court ruled that the resolution was overbroad, and therefore unconstitutional. Along the way, the court also outlined three types of "forums of ideas":
1) Traditional Public Forum
2) Government-Designed public forum
3) Nonpublic Forum

The court placed the airport squarely in the "traditional public forum" category, which seems to make sense, since anybody could access the airport's public areas at any time. This ruling seems like a victory for the First Amendment.

Then, along came International Society for Krishna Consciousness of California (ISKCON) vs. City of Los Angeles [4]. On the surface, this case seems to be very similar to the Jews for Jesus case. There's a religious institution, ISKCON, at the exact same airport (LAX), doing almost the exact same solicitation of religious materials. The only difference: ISKCON was also soliciting funds in addition to spreading information about their religion. But somehow, this time the California Supreme Court ruled in favor of the regulation in question, saying that airports could regulate solicitation based on a time/place/manner ruling. Somehow, these two Supreme Court decisions do not seem to agree with each other.

We can first take a look at the nature of the regulation itself. The regulation in question for Jews for Jesus was considered overbroad, as it banned "all First Amendment Activities". The regulation on solicitation for ISKCON was much more narrowly tailored. It was defined by the case Los Angeles Alliance for Survival vs. City of Los Angeles, which laid down the following rules for solicitation: [5]:
1) No person shall solicit, ask or beg in an aggressive manner, in any public place
2) All soliciting prohibited at following locations:
a) Banks and ATMs
b) Motor Vehicles and Parking Lots
c) Public Transportation Vehicles and Stops
d) Restaurants

Now, if we were to apply the same prior restraint tests as in the case above for soliciting rides, it seems to fall short of being valid for this test. The term "aggressive manner" itself seems to be overbroad, as aggression is subjective from the viewpoint of the receiver. Though the rule attempts to define "aggression", the threshold for "fear" and "intimidation" is different for everyone. This would seem to create a chilling effect on the practice of solicitation, which otherwise would appear to be a valid contribution to the marketplace of ideas.

But even if we were to assume that the regulation itself were constitutional, the ruling by California's Supreme Court does not seem to make much sense. There is nothing in the discussion and majority opinions which address the first point of aggression in ISKCON's solicitation. As for the second point of the test, the airport does not fall under any one of the locations where solicitation is prohibited. The closest would be a "Public Transportation Stop", which is defined as "within ten feet of any designated or posted public vehicle stop." Therefore, I do not see why the regulation on solicitation even covers the actions of ISKCON. However, neither Justice Kennard or Justice Chin ever mention the problem of the jurisdiction of the regulation over ISKCON's actions. In their concurring opinions, they seem to take the regulation's validity as a given, while most of their opinions are devoted to whether or not an airport construes a "Public Forum".

In addition, neither of the opinions are very convincing, in my opinion. Justice Kennard, while arguing that an airport construes a Public Forum, ends his opinion by stating that "reasonable time, place, and manner restrictions on expressive activities in public forums are valid." This does seem too neoliberal and ad-hoc as to create a chilling effect - after all, who should get to decide what is "reasonable" or not? Justice Chin's opinion seems to state that, because the airport has the purpose to "facilitate, process and serve the traveling public in getting to and from airline flights and moving into and out of the airport terminal areas in a safe, secure, convenient, and efficient fashion," that an airport setting should be construed as a nonpublic forum. Therefore, according to his opinion, since interstate highways have the specific purpose of moving the population from one place to another safely and efficiently, should they also be construed as nonpublic forums? What about subway stations? Or escalators?

In my opinion, the ruling on ISKCON has no real basis. In the Supreme Court discussions, the justices agreed that ISKCON can solicit religious materials, but it cannot solicit for direct funding. Their argument was that ISKCON has "ample alternatives [that] remain [to search for funding]." One of these alternatives, as suggested by the justices, is to "distribute 'self-addressed stamped envelope[s]' in the areas of the airport open to the general public," in order to find funding. In my opinion, while the statement is true, it is certainly not a justification for banning ISKCON from seeking funding at the LAX airport. The suggested alternative entails spending money on purchasing stamped envelopes, so that they can be given out to people who may or may not send in money - in other words, certain expenditures in order to bring in uncertain revenues. A somewhat paradoxical plan, especially as solicitation is free, and any revenues will be immediate and certain.

In conclusion, while some airport regulations on solicitation seem to have valid grounds, such as for unlicensed rides, others do not seem to have much grounds, according to the First Amendment. Certainly, I don't think there is anything regarding the soliciting of funds at a public forum that would make the imposition of a functional prior restraint justified. Through the analysis of Jews for Jesus and ISKCON, I definitely agree with the Jews for Jesus ruling much more than that of ISKCON. I believe that the regulations stem from the fact that neither the solicitation of rides or funds are licensed, which is costing the airport revenue. This is simply speculation, of course...but if it were true, is the unconstitutional regulation really worth the extra revenue? I don't believe so.

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Bibliography
[1] http://mobile.chicagotribune.com/inf/infomo?view=top_stories_item&feed:a=chi_trib_1min&feed:c=topstories&feed:i=50785329&nopaging=1
[2] http://www.ohare.com/badging/Final7-15-05keep.pdf
[3] http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/jewsforjesus.html
[4] http://www.courtinfo.ca.gov/opinions/documents/S164272.PDF
[5] http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=9th&navby=case&no=9756742ov2&exact=1