Stanford Law School - Robert Crown Law Library

Filed 3/25/10

IN THE SUPREME COURT OF CALIFORNIA

INTERNATIONAL SOCIETY FOR
KRISHNA CONSCIOUSNESS OF
CALIFORNIA, INC., et al.,
Plaintiffs and Respondents,
S164272
v.
9th Cir. No. 01-56579
CITY OF LOS ANGELES et al.,
C.D. Cal. No.
CV-97-03616-CBM
Defendants and Appellants.
____________________________________)

In 1997, the City of Los Angeles enacted an ordinance prohibiting persons
from soliciting funds at Los Angeles International Airport. The International
Society for Krishna Consciousness of California, Inc. sought an injunction in
federal district court, which ruled that the ordinance violated the free speech
clause of the California Constitution. The city appealed and, following protracted
litigation, the Ninth Circuit Court of Appeals requested that this court decide the
following question: “Is Los Angeles International Airport a public forum under
the Liberty of Speech Clause of the California Constitution?” California Rules of
Court, rule 8.548 provides that this court may decide a question of California law
upon which there is no controlling precedent at the request of a federal court of
appeals if “[t]he decision could determine the outcome of a matter pending in the
requesting court.”
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We granted the Ninth Circuit‟s request and directed the parties to address
the following questions: “1) Is Los Angeles International Airport a public forum
under the Liberty of Speech Clause of the California Constitution? 2) If so, does
the ordinance at issue violate the California Constitution?” For the reasons that
follow, we conclude that whether or not Los Angeles International Airport is a
public forum for free expression under the California Constitution, the ordinance
is valid as a reasonable time, place, and manner restriction of expressive rights to
the extent that it prohibits soliciting the immediate receipt of funds. Accordingly,
we do not determine whether Los Angeles International Airport is a public forum
under the liberty of speech clause of the California Constitution, because the
resolution of that question could not determine the outcome of the present matter.
FACTS1
Former section 23.27(c) of the Los Angeles Administrative Code (hereafter
section 23.27(c)), which became effective on May 15, 1997, provided that “[n]o
person shall solicit and receive funds” “in a continuous or repetitive manner”
“inside the airport terminals” at Los Angeles International Airport (LAX), “in the
parking areas at the Airport,” or “on the sidewalks adjacent to the airport terminals
or the sidewalks adjacent to the parking areas at the Airport.”2 (Intern. Soc. for
Krishna v. City of Los Angeles (9th Cir. 2008) 530 F.3d 768, 770.)

1
These facts are based on the record provided to this court which, in minor
respects, varies from some published sources.
2
Section 23.27(c) provided, in relevant part: “(c)(1) No person shall solicit
and receive funds inside the airport terminals at the Airport. [¶] (2) No person
shall solicit and receive funds in the parking areas at the Airport. [¶] (3) No
person shall solicit and receive funds on the sidewalks adjacent to the airport
terminals or the sidewalks adjacent to the parking areas at the Airport. [¶] (4)
Subdivisions (c)(1), (c)(2), and (c)(3) apply only if the solicitation and receipt of
funds is conducted by a person to or with passers-by in a continuous or repetitive
(Footnote continued on next page.)
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LAX occupies 3,550 acres of land, approximately 93 acres of which is
occupied by nine passenger terminals that include 195,000 square feet of space for
concession and retail establishments for the benefit of travelers and their guests.
In 2005, LAX served nearly 60 million passengers, making it one of the largest
airports in the world. “The upper level of the airport contains commercial
concessions and amenities, including four duty free shops, five fast food
restaurants, five full service restaurants, 18 gift shops/newsstands, 19 cocktail
lounges, five cafeterias, eight snack bars, three coffee shops, two food courts, six
business centers, two bookstores, three postal facilities, and four specialty stores.
[¶] At LAX, there are areas open to the public where people may come and go
freely and engage in a variety of activities for which facilities are provided,
including those mentioned above.”
On May 13, 1997, the International Society for Krishna Consciousness of
California, Inc. and others (hereafter ISKCON) filed a complaint for declaratory

(Footnote continued from previous page.)

manner. Nothing herein is intended to prohibit the distribution of flyers,
brochures, pamphlets, books, or any other printed or written matter as long as such
distribution is not made with the intent of immediately receiving funds, as defined
in Subdivision (c)(5), at the locations referred to in (c)(1), (c)(2), or (c)(3). [¶] (5)
„Solicit and receive funds‟ means any written or oral request for [¶] (A) the
donation of money, alms, property or anything else of value, or, [¶] (B) the
pledge of a future donation of money, alms, property, or anything else of value, or,
[¶] (C) the sale or offering for sale of any property upon the representation,
express or implied, that the proceeds of such sale will be used for a charitable or
religious purpose.”
Effective June 19, 2000, section 23.27 was deleted and transferred without
change to section 171.02 of the Los Angeles Municipal Code. As do the parties
and the federal courts, we will continue to refer to the ordinance as section
23.27(c).
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and injunctive relief against the City of Los Angeles and others (hereafter City) in
the United States District Court for the Central District of California, alleging that
section 23.27(c) violates article I, section 2 of the California Constitution and the
First Amendment of the United States Constitution. ISKCON practices the
Krishna consciousness religion, a basic tenet of which involves an evangelical
activity known as sankirtan, which requires members of ISKCON to approach
people in public places in order to proselytize, solicit donations, sell and distribute
literature, and disseminate information about Krishna consciousness programs and
activities. Sankirtan has four purposes: to spread religious truth; to proselytize
and attract new members; to distribute Krishna consciousness literature; and to
generate funds.
On June 6, 1997, the district court issued a preliminary injunction enjoining
the City from enforcing section 23.27(c) against ISKCON. On May 27, 1998, the
district court granted summary judgment in favor of ISKCON, declaring section
23.27(c) unconstitutional and permanently enjoining the City from enforcing the
ordinance. The district court held “that solicitation is not basically incompatible
with the normal activity of the airport or the primary use of the airport, to facilitate
air travel. Any difficulties caused by solicitation can be addressed by the use of
less restrictive measures.” The court found “that „the Ordinance is inconsistent
with the Liberty of Speech Clause of the California Constitution‟ and that the
airport is a public forum in relation to solicitation.” The district court further held
that section 23.27(c) was a prohibited content-based regulation of speech because
it “regulates solicitation but not other equivalent forms of speech.” The court
noted, however, that “the California Supreme Court has never addressed whether
regulation directed solely at solicitation of money violates the California Liberty
of Speech Clause . . . .” The City appealed on June 26, 1998.
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While the appeal was pending, this court issued its decision in Los Angeles
Alliance for Survival v. City of Los Angeles (2000) 22 Cal.4th 352, 357, which
held that an ordinance “that is directed at activity involving public solicitation for
the immediate donation or payment of funds should not be considered content
based or constitutionally suspect under the California Constitution, and should be
evaluated under the intermediate scrutiny standard applicable to time, place, and
manner regulations, rather than under the strict scrutiny standard.” The Ninth
Circuit vacated the summary judgment and remanded this case back to the district
court for reconsideration in light of this decision.
On August 2, 2001, the district court again granted summary judgment in
favor of ISKCON on the grounds that LAX was a public forum under California
law and section 23.27(c) was not a reasonable time, place, and manner restriction
of the solicitation of funds at LAX. The court stated: “The Ordinance, in the
present case, bans all solicitation for the immediate receipt of funds in the LAX
terminals, parking lots and adjacent sidewalks. . . . [T]he court finds that the
Ordinance constitutes a content-neutral restriction on expressive activity.” The
court further found, however, “that LAX is a public forum for purposes of
California‟s Liberty of Speech clause,” and “[t]he Ordinance does not constitute a
reasonable restriction on the time, place and manner of solicitation activities,” in
part because the ordinance‟s “ban on all solicitation for the immediate receipt of
funds at all times — not just during peak hours or in overcrowded locations —
places a substantial burden on several forms of lawful solicitation, such as
solicitation of immediate donations for lawful charitable, religious, political and
protest activities.” The City again appealed, two weeks before the terrorist attacks
on September 11, 2001. (Intern. Soc. for Krishna v. City of Los Angeles, supra,
530 F.3d at p. 771.)
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While the present appeal was pending, the City enacted section 171.07 of
the Los Angeles Municipal Code, which became effective on December 16, 2002,
and permits organizations to apply for a permit to “solicit and receive funds” in
designated locations at LAX. This ordinance provides that: “ „Solicit and receive
funds‟ shall mean any oral or written request for funds conducted by a person to or
with passers-by in a continuous and repetitive manner where funds are
immediately received.” (Ibid.) This ordinance states that its provisions are
“temporary and provisional pending the outcome” of the present litigation. (Id.,
§ 171.07(G)(1); quoted in Intern. Soc. for Krishna v. City of Los Angeles, supra,
530 F.3d at p. 772.) ISKCON filed a suit challenging this new ordinance on
January 13, 2003. (C.D. Cal. No. CV 03-00293.)
On March 21, 2003, the Ninth Circuit announced in the present appeal that
it intended to ask this court to decide “[w]hether the Liberty of Speech Clause of
the California Constitution should be interpreted more expansively than the federal
First Amendment,” but first remanded the present case to the district court “for the
limited purpose of allowing the parties to supplement the record with post-9/11
evidence that would aid the California Supreme Court in its deliberations.”
(Intern. Soc. for Krishna v. City of Los Angeles, supra, 530 F.3d at p. 772.) The
parties informally agreed that the discovery then being conducted in the related
case challenging section 171.07 of the Los Angeles Municipal Code (C.D. Cal.
No. CV 03-00293) would be used in the present appeal as well.
Ultimately, the parties stipulated that 62 documents filed in the related case
be deemed to have been filed in the present appeal. These documents establish the
following. The nine passenger terminals in LAX are located on the outside ring of
a horseshoe-shaped, double-deck roadway. The upper level roadway serves the
departure areas, and the lower level roadway serves the arrival areas. Sidewalks
run the length of both the departure and arrival areas and total 154,604 square feet.
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The City does not regulate religious or charitable solicitation on the sidewalks and
does not prohibit persons in the publicly accessible areas of the terminals from
distributing literature and speaking with members of the traveling public about
their views and beliefs.
Following the September 11, 2001 terrorist attacks, the departure areas of
the passenger terminals at LAX were separated into prescreening areas that are
open to the public, and postscreening areas to which only ticketed passengers are
admitted. Consumer amenities such as stores and restaurants in most of the
terminal buildings are located in the postscreening areas to which only ticketed
passengers are admitted, but there are exceptions. In the international terminal,
most of the retail amenities and concessions, including a food court, are located in
the prescreening area that is open to the general public. Commercial amenities
and facilities are also located in areas open to the general public in three other
terminals. The prescreening area has become more congested due to the presence
of explosive detection system (EDS) and explosive trace device (ETD) equipment
that is used to scan each piece of baggage. Approximately 211,000 square feet of
the area of the terminals is open to the general public and the City has allocated
approximately 670 square feet for solicitation activities.
On September 18, 2006, in the related case (C.D. Cal. No. CV 03-00293),
the district court, having declined to exercise supplemental jurisdiction over
ISKCON‟s state law claim, granted summary judgment in favor of the City, ruling
that section 171.07 of the Los Angeles Municipal Code did not violate the First
Amendment of the United States Constitution. ISKCON appealed on November
16, 2006.
On June 9, 2008, the Ninth Circuit issued an order in the present appeal
requesting that this court decide the following question: “Is Los Angeles
International Airport a public forum under the Liberty of Speech Clause of the
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California Constitution?” (Intern. Soc. for Krishna v. City of Los Angeles, supra,
530 F.3d at p. 770.)3 The court added: “Our phrasing of the question should not
restrict the California Supreme Court‟s consideration of the issues involved.” (530
F.3d at p. 770.) The Ninth Circuit stated that the “answer will be determinative of
the appeal presently before us.” (Id. at p. 769.)
On August 13, 2008, this court granted the request and directed the parties
to address the following questions: “1) Is Los Angeles International Airport a
public forum under the Liberty of Speech Clause of the California Constitution?
2) If so, does the ordinance at issue violate the California Constitution?”4
DISCUSSION
“The constitutional right of free expression is an essential ingredient of our
democratic society. „It is designed and intended to remove governmental
restraints from the arena of public discussion, putting the decision as to what
views shall be voiced largely into the hands of each of us, in the hope that use of
such freedom will ultimately produce a more capable citizenry and more perfect
polity and in the belief that no other approach would comport with the premise of
individual dignity and choice upon which our political system rests.‟ [Citations.]
The airing of opposing views is fundamental to an informed electorate and,
through it, a free society.” (Spiritual Psychic Science Church v. City of Azusa

3
California Rules of Court, rule 8.548(a) states: “On request of the United
States Supreme Court, a United States Court of Appeals, or the court of last resort
of any state, territory, or commonwealth, the Supreme Court may decide a
question of California law if: [¶] (1) The decision could determine the outcome of
a matter pending in the requesting court; and [¶] (2) There is no controlling
precedent.”
4
California Rules of Court, rule 8.548(f)(5) states: “At any time, the
Supreme Court may restate the question . . . .”
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(1985) 39 Cal.3d 501, 511, disapproved on another ground in Kasky v. Nike, Inc.
(2002) 27 Cal.4th 939, 968.)
It is well established that public areas such as streets and parks are public
forums for free expression. As the high court has stated: “Wherever the title of
streets and parks may rest, they 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. Such
use of the streets and public places has, from ancient times, been a part of the
privileges, immunities, rights, and liberties of citizens. The privilege of a citizen
of the United States to use the streets and parks for communication of views on
national questions may be regulated in the interest of all; it is not absolute, but
relative, and must be exercised in subordination to the general comfort and
convenience, and in consonance with peace and good order; but it must not, in the
guise of regulation, be abridged or denied.” (Hague v. C. I. O. (1939) 307 U.S.
496, 515-516.) Even in a public forum, the right of free speech may be restricted
by reasonable restrictions on its time, place, or manner. (Ward v. Rock Against
Racism (1989) 491 U.S. 781, 791.)
The Ninth Circuit asked this court to determine whether LAX is a public
forum under the liberty of speech clause of the California Constitution. But our
court rules provide that we should resolve such an issue only if “[t]he decision
could determine the outcome of a matter pending in the requesting court.” (Cal.
Rules of Court, rule 8.548(a)(1).) Declaring whether LAX is a public forum
would not determine the outcome of the present case, because the ordinance is a
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valid time, place, and manner restriction of free expression even if LAX is a public
forum.5
Section 23.27(c) prohibits only solicitation of the immediate receipt of
funds and permits other forms of free expression, including soliciting future
donations.6 “Many forms of solicitation are constitutionally protected.” (People
v. Fogelson (1978) 21 Cal.3d 158, 165.) In Fogelson, we held unconstitutional on
its face an ordinance enacted by the City of Los Angeles that made it unlawful to
“ „seek, beg, or solicit . . . alms or donations‟ ” on city property without a permit.
(Id. at p. 161, fn. 1.) We concluded that the ordinance “lends itself to a substantial
number of unconstitutional applications,” (id. at p. 164) noting that it would
regulate several forms of protected solicitation including soliciting religious or
political contributions. (Id. at pp. 164-165, fn. omitted.) But we recognized that
“[t]he mere fact that the challenged ordinance attempts to regulate constitutionally

5
In reviewing the validity of a restriction on free expression on public
property, there is no need to wrestle with the sometimes difficult question of
whether the public property constitutes a public forum if the regulation qualifies as
a reasonable time, place, and manner restriction. If so, the regulation is valid
whether or not the area constitutes a public forum.
6
The district court stated that section 23.27(c) “prohibits any person from
soliciting and immediately receiving funds inside the LAX terminals, parking
areas and on the sidewalks adjacent to the parking areas or airport terminals.” The
City agrees with the district court that the ordinance prohibits only soliciting the
immediate receipt of funds, stating in its opening brief that Ҥ 23.27(c) only limits
solicitors in one respect: Solicitors may no longer actually immediately receive
funds in conjunction with their solicitation efforts . . . . They may receive funds
. . . in the mail, over the internet, and at other areas of LAX not covered by the
ordinance . . . .” The Ninth Circuit‟s certification order similarly describes the
ordinance as prohibiting “any person from soliciting and immediately receiving
funds.” (Intern. Soc. for Krishna v. City of Los Angeles, supra, 530 F.3d at p. 770,
italics added.) We accept for purposes of our analysis the interpretation of the
ordinance urged by the City and adopted by the district court and the Ninth
Circuit.
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protected speech and religious activity does not, of course, render it
unconstitutional. Speech and religious exercise are not wholly exempt from
controls. [Citation.] The state may, for example, reasonably regulate the time,
place and manner of engaging in solicitation in public places. [Citations.]” (Id. at
p. 165.) The flaw in the ordinance at issue in Fogelson was that it granted public
officials “ „wide or unbounded discretion in granting or denying permits,‟ ” which
permitted the officials to base their decisions “ „on the content of the ideas sought
to be expressed.‟ [Citations.]” (Id. at p. 166.) We struck down the ordinance,
stating it “contains absolutely no standards to guide licensing officials in
exercising their discretion to grant or deny applications to solicit on city property.
Thus, the ordinance gives officials unbridled power to prohibit constitutionally
protected forms of solicitation.” (Id. at p. 167, fn. omitted.)
In Los Angeles Alliance for Survival v. City of Los Angeles, supra, 22
Cal.4th 352, 357 (Los Angeles Alliance), we upheld an ordinance that banned
soliciting an “immediate donation” in certain public places and in all public places
if done in an aggressive manner. The ordinance enacted by the City of Los
Angeles prohibited “aggressive solicitation” in any public place (id. at p. 398) and
banned all solicitations in certain locations, such as near banks and automated
teller machines, in dining areas of restaurants, or directed at occupied vehicles.
(Id. at pp. 399-400.) The ordinance limited the term “solicit” to requests for “an
immediate donation of money or other thing of value.” (Id. at p. 399.) We
recognized that the ordinance “plainly implicates the liberty of speech clause of
the California Constitution,” but added that “[t]he circumstance that an ordinance
regulates protected conduct does not in itself, however, render the ordinance
invalid . . . . California decisions long have recognized that even with regard to
protected activity, a regulation may be enforceable if it survives the intermediate
scrutiny of time, place, and manner analysis.” (Id. at p. 364.) The ordinance will
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survive such intermediate scrutiny if “it is (i) narrowly tailored, (ii) serves a
significant government interest, and (iii) leaves open ample alternative avenues of
communication. [Citation.]” (Ibid., fn. omitted; Ward v. Rock Against Racism,
supra, 491 U.S. at p. 791 [“[E]ven 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.‟ [Citations.].”)
In order to qualify for intermediate scrutiny, a time, place, and manner
regulation of protected speech must be content neutral, in contrast to content-based
regulations, which are subjected to strict scrutiny. (Los Angeles Alliance, supra,
22 Cal.4th at pp. 364-365.) To be content neutral, a regulation must “be „justified‟
by legitimate concerns that are unrelated to any „disagreement with the message‟
conveyed by the speech. [Citation.]” (Id. at p. 368; Ward v. Rock Against Racism,
supra, 491 U.S. at p. 791 [“A regulation that serves purposes unrelated to the
content of expression is deemed neutral, even if it has an incidental effect on some
speakers or messages but not others.”].) Observing that “the regulation of
solicitation long has been recognized as being within the government‟s police
power,” we held that “regulations such as the Los Angeles ordinance here at issue,
that single out the public solicitation of funds for distinct treatment, should not be
viewed as content based or constitutionally suspect for purposes of analysis under
article I, section 2(a), of the California Constitution.” (Los Angeles Alliance,
supra, 22 Cal.4th at p. 378.)
Upon reconsideration in light of our decision in Los Angeles Alliance, the
district court concluded that the ordinance at issue here was content neutral, but
did not survive the intermediate scrutiny described in our decision in Los Angeles
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Alliance, which requires that the regulation be narrowly tailored, serve a
significant government interest, and leave open ample alternative avenues of
communication. The district court held that section 23.27(c) was not narrowly
tailored because the ordinance‟s “ban on all solicitation for the immediate receipt
of funds at all times — not just during peak hours or in overcrowded locations —
places a substantial burden on several forms of lawful solicitation, such as
solicitation of immediate donations for lawful charitable, religious, political and
protest activities.” The district court further ruled that the ordinance failed to
leave open ample alternate avenues of communication. Although the court
acknowledged that the ordinance does not ban all solicitation, including “speaking
with travelers about any subject or distributing literature,” it left “no ample venue”
for ISKCON to “solicit financial support for their charitable, religious or political
activities.” The district court again granted ISKCON‟s motion for summary
judgment.
The district court misapplied our decision in Los Angeles Alliance and the
concept of narrow tailoring that it incorporates. We relied in Los Angeles Alliance
on the Court of Appeal‟s decision in Savage v. Trammell Crow Co. (1990) 223
Cal.App.3d 1562, 1571, which held that a ban on distributing religious pamphlets
in the parking lot of a shopping center was a valid time, place, and manner
regulation. The ban on leafleting was narrowly drawn because it furthered the
shopping center‟s “interest in controlling litter and traffic.” (Id. at p. 1574.) The
court emphasized that “in determining whether a regulation is narrowly drawn, . . .
we must give some deference to the means chosen by responsible decisionmakers.
[Citation.]” (Ibid.) To be narrowly drawn, a regulation “ „need not be the least-
restrictive or least-intrusive means of doing so. Rather, the requirement of narrow
tailoring is satisfied “so long as the . . . regulation promotes a substantial
government interest that would be achieved less effectively absent the regulation.”
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[Citations.] . . . So long as the means chosen are not substantially broader than
necessary to achieve the government‟s interest, . . . the regulation will not be
invalid simply because a court concludes that the government‟s interest could be
adequately served by some less-speech-restrictive alternative. “The validity of
[time, place, or manner] regulations does not turn on a judge‟s agreement with the
responsible decisionmaker concerning the most appropriate method for promoting
significant government interests” or the degree to which those interests should be
promoted. [Citations.]‟ [Citations.]” (Id. at pp. 1574-1575; Ward v. Rock Against
Racism, supra, 491 U.S. at p. 797 [“[R]estrictions on the time, place, or manner of
protected speech are not invalid „simply because there is some imaginable
alternative that might be less burdensome on speech.‟ [Citation.].”)
Section 23.27(c) (as interpreted by the City, the district court, and the Ninth
Circuit Court of Appeals) prohibits only soliciting the immediate receipt of funds,
and permits other forms of communication, including soliciting funds to be sent at
a later time by mail or through a Web site, distributing literature, and speaking
with willing listeners. Prohibiting persons from soliciting the immediate receipt of
funds at LAX is a narrowly tailored regulation of expressive activity because it is
not substantially broader than necessary to addresses the particular problems
caused by requests for the immediate receipt of funds. We noted in Los Angeles
Alliance that the solicitation of the immediate receipt of funds is far more intrusive
than other forms of communication, such as distributing literature: “ „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. . . . In contrast, . . . sales and the collection of solicited
funds not only require the [person] to stop, but also “engender additional
confusion . . . because they involve acts of exchanging articles for money,
fumbling for and dropping money, making change, etc.” ‟ [Citation.]” (Los
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Angeles Alliance, supra, 22 Cal.4th at p. 369.) We observed that solicitation that
requests the physical exchange of 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. . . . [S]olicitation has been associated with coercive or fraudulent
conduct.‟ [Citation.]” (Id. at p. 371.) Finally, we added: “ „[R]equests for
immediate payment of money create a strong potential for fraud or undue pressure,
in part because of the lack of time for reflection. . . . [Q]uestionable practices
associated with solicitation can include the targeting of vulnerable and easily
coerced persons, misrepresentation of the solicitor‟s cause, and outright theft.”
(Id. at p. 372.)
Soliciting the immediate receipt of funds at a busy international airport like
LAX is particularly problematic. Although portions of the airport are open to the
general public, people usually come to the airport only to travel or to accompany a
traveler. Travelers often are in a hurry, and the airport often is crowded. The
problems posed by solicitations for the immediate receipt of funds that arise in any
public place would be exacerbated in the often crowded and hectic environment of
a large international airport. As the high court has observed: “ „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.‟ [Citations.]
Passengers who wish to avoid the solicitor may have to alter their paths, slowing
both themselves and those around them. The result is that the normal flow of
traffic is impeded. [Citation.] This is especially so in an airport, where „[a]ir
travelers, who are often weighted down by cumbersome baggage . . . may be
hurrying to catch a plane or to arrange ground transportation.‟ [Citation.] Delays
may be particularly costly in this setting, as a flight missed by only a few minutes
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can result in hours worth of subsequent inconvenience. [¶] 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. [Citation.] The unsavory solicitor can
also commit fraud through concealment of his affiliation or through deliberate
efforts to shortchange those who agree to purchase. [Citations.] 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.” (International Soc. for
Krishna Consciousness, Inc. v. Lee (1992) 505 U.S. 672, 683-684.)
We do not agree with the district court that the City was required to prohibit
such practices only “during peak hours or in overcrowded locations.” Peak
periods of congestion and overcrowded locations at LAX vary depending on the
arrival and departure schedule of flights. Under these circumstances, generally
prohibiting solicitation of the immediate receipts of funds at LAX is narrowly
tailored to avoid the particular problems caused by this form of free expression.
As noted above, the district court further ruled that the ordinance failed to
leave open ample alternate avenues of communication because it left “no ample
venue” for ISKCON to “solicit financial support for their charitable, religious or
political activities.” Again, we disagree. In Frisby v. Schultz (1988) 487 U.S.
474, 483, the high court upheld an ordinance prohibiting picketing in front of a
residence, concluding it was “virtually self-evident that ample alternatives
remain,” including going door-to-door and distributing literature in person or
through the mails. In the present case, ISKCON has ample alternative means of
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conveying its message. It can distribute literature and speak to willing travelers.
It can even seek financial support, as long as it does not request the immediate
exchange of funds. The City acknowledges that it would be permissible for
ISKCON to “ask for donations” and distribute “self-addressed stamped
envelope[s]” in the areas of the airport open to the general public.
CONCLUSION
In response to the Ninth Circuit Court of Appeals‟ request, we conclude
that even if those areas of Los Angeles International Airport that are open to the
general public are public forums under the free speech clause of the California
Constitution, section 23.27, subdivision (c) of the Los Angeles Administrative
Code is valid on its face as a reasonable, content-neutral regulation of the manner
of protected speech.
MORENO, J.
WE CONCUR: GEORGE, C. J.

BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
17

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CONCURRING OPINION BY KENNARD, J.

The court‟s opinion, authored by Justice Moreno, holds that a city
ordinance prohibiting the solicitation and receipt of funds in public areas of Los
Angeles International Airport does not violate the California Constitution‟s liberty
of speech clause (Cal. Const., art. I, § 2, subd. (a) [“A law may not restrain or
abridge liberty of speech or press.”]) but instead is a valid time, place, and manner
restriction on expressive activity.
I join in that holding, but I do so only under compulsion of this court‟s
decision in Los Angeles Alliance for Survival v. City of Los Angeles (2000) 22
Cal.4th 352. There, a majority of this court held that under the state Constitution‟s
liberty of speech clause, a city ordinance prohibiting, at specified locations, any
solicitation for the immediate donation of funds was not a content-based
regulation of speech and that such an ordinance was to be evaluated as a time,
place, and manner restriction on speech. (Los Angeles Alliance for Survival v. City
of Los Angeles, supra, at p. 357.) I disagreed, concluding that a solicitation ban is
based on the content of speech, and therefore its validity must be determined using
a standard of scrutiny more rigorous than the standard used to evaluate the validity
of time, place, and manner restrictions. (Id. at p. 383 (dis. opn. of Kennard, J.).)
Although my view on that question has not changed, I recognize that the
majority‟s holding in Los Angeles Alliance for Survival v. City of Los Angeles has
the force of precedent and that reiteration of dissenting views is rarely justified.
1

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(See People v. Stansbury (1993) 4 Cal.4th 1017, 1072-1073 (conc. opn. of
Kennard, J.).)
In this case, I would also decide an issue that the court‟s opinion does not
address. Although this case comes to this court upon a request of the Ninth Circuit
Court of Appeals for a decision on a question of California law, the court‟s
opinion here does not answer the particular question of California law that the
Ninth Circuit asked this court to decide. That question is whether Los Angeles
International Airport is a public forum for free expression under the California
Constitution‟s liberty of speech clause. More precisely, the question is whether
the areas of that airport that are accessible to the general public — excluding the
areas reserved for ticketed passengers who have passed through security screening
— are public forums. I would answer “yes” to that question.
My answer is based primarily on two of this court‟s decisions: In re
Hoffman (1967) 67 Cal.2d 845, holding that a railway station (Union Station in
Los Angeles) was a public forum, and Fashion Valley Mall, LLC v. National
Labor Relations Bd. (2007) 42 Cal.4th 850, holding that a privately owned
shopping mall was a public forum (see also Robins v. Pruneyard Shopping Center
(1979) 23 Cal.3d 899).
To determine whether particular areas are public forums for purposes of the
California Constitution‟s liberty of speech clause, this court has generally
proceeded by asking whether, in relevant ways, the area in question is similar or
dissimilar to areas that have already been determined to be public forums. (See,
e.g., Fashion Valley Mall, LLC v. National Labor Relations Bd., supra, 42 Cal.4th
850, 858 [stating that an area may be a public forum “if it is open to the public in a
manner similar to that of public streets and sidewalks”]; In re Hoffman, supra, 67
Cal.2d 845, 851 [comparing railway station with “a public street or park”].)
Applying that approach here, I conclude that the prescreening public areas of Los
2

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Angeles International Airport are public forums because, in relevant ways, they
are similar to shopping malls and railway stations.
Like railway stations and shopping malls, the prescreening areas of Los
Angeles International Airport are open to the public; they contain restaurants,
newsstands, shops, and seats or benches for waiting; and they are places where
people frequently have leisure for discussion and socializing. Therefore, in
answer to the Ninth Circuit‟s request, I would decide that the prescreening public
areas of Los Angeles International Airport are public forums.
In reaching this conclusion, I am aware of the United States Supreme
Court‟s holding that, for purposes of the free speech guarantee of the federal
Constitution‟s First Amendment, airports are not public forums. (International
Society for Krishna Consciousness, Inc. v. Lee (1992) 505 U.S. 672, 680.) But the
free speech guarantees of the federal and California Constitutions are not identical,
particularly as regards the concept of public forum. Thus, for example, although
the federal high court has held that privately owned shopping malls are not public
forums for free expression under the First Amendment (Lloyd Corp. v. Tanner
(1972) 407 U.S. 551), this court has not found that holding persuasive in
interpreting our state Constitution, which is “a document of independent force and
effect particularly in the area of individual liberties” (People v. Hannon (1977) 19
Cal.3d 588, 606, fn. 8). This court has recognized that our state Constitution‟s
free speech guarantee “differs from its counterpart in the federal Constitution both
in its language and its scope” (Fashion Valley Mall, LLC v. National Labor
Relations Bd., supra, 42 Cal.4th at p. 862; see also Gerawan Farming, Inc. v.
Lyons (2000) 24 Cal.4th 468, 486) and that those differences explain the broader
application of the public forum concept under our state Constitution (Fashion
Valley Mall, LLC v. National Labor Relations Bd., supra, at pp. 862-863).
3

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When an area has been determined to be a public forum for purposes of our
state Constitution‟s liberty of speech clause, that determination does not have the
effect of prohibiting all regulation of expressive activities at that location.
Reasonable time, place, and manner restrictions on expressive activities in public
forums are valid, as this court‟s conclusion here about the validity of the ordinance
prohibiting solicitation of funds amply demonstrates. Speech activities at airports
that interfere with the legitimate interests of the airport management, arriving or
departing passengers, security screeners, or airline or airport employees need not
be tolerated.
KENNARD, J.
4

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CONCURRING OPINION BY CHIN, J.

I agree with the majority that the challenged ordinance governing the Los
Angeles International Airport (LAX) does not violate the California Constitution.
But I would answer the question the Ninth Circuit Court of Appeals posed,
identify the legal standard applicable to that answer, and apply that standard to
determine whether the ordinance is valid.
The Ninth Circuit requested this court to answer this question: “Is Los
Angeles International Airport a public forum under the Liberty of Speech Clause
of the California Constitution?” (Cal. Const., art. I, § 2, subd. (a).) Consistent
with the United States Supreme Court‟s resolution of the same question under the
First Amendment to the United States Constitution, I would answer that LAX is
not a public forum for free speech purposes under the California Constitution.
(See International Soc. for Krishna Consciousness, Inc. v. Lee (1992) 505 U.S.
672 (Lee).) This answer does not mean free speech rights do not exist at LAX. It
just means that speech at LAX receives a lower level of protection than speech
receives at traditional free speech zones such as parks and public squares. LAX is
not the same as a park and should not be treated the same as a park.
1

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A. Whether Los Angeles International Airport Is a Public Forum
Under the California Constitution
The United States Supreme Court developed the public forum doctrine to
distinguish between public property subject to the highest free speech protection
under the First Amendment and public property subject to a lower level of free
speech protection. (See generally Clark v. Burleigh (1992) 4 Cal.4th 474, 482-
483.) The high court applied that law and concluded that airport terminals (in that
case the three major airports in the greater New York City area) are not public
forums. (Lee, supra, 505 U.S. at pp. 680-683.) I would reach the same conclusion
for LAX under the California Constitution.
First, I agree with what is implied in the Ninth Circuit‟s question and the
majority opinion: Public forum analysis applies under the California Constitution
as well as under the First Amendment even though the doctrine was developed in
First Amendment cases. It is a useful doctrine for deciding what level of
protection speech receives in a given context. (See Clark v. Burleigh, supra, 4
Cal.4th at pp. 482-483.)
Although this court sometimes interprets the California Constitution
differently than the First Amendment, no reason appears to do so here, and good
reason exists not to do so. The public, litigators, and government attorneys
advising their clients need a clear, consistent “public forum” doctrine in cases
arising on public property, not seemingly random fluctuations between state and
federal constitutional law. This is especially true of airports. After the events of
September 11, 2001, Congress enacted the Aviation and Transportation Security
Act of 2001, which created the Transportation Security Administration and gave it
broad authority to “oversee the implementation, and ensure the adequacy, of
security measures at airports” like LAX. (49 U.S.C. § 114(f)(11).) Federal and
other authorities overseeing security measures at international airports throughout
2

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the country should have one set of constitutional rules to contend with, not
multiple sets. Because of the need for interstate and international security
cooperation, it benefits no one to have different constitutional rules at California
airports than at other airports.
Airports are not traditional free speech zones like parks. This is true of the
prescreening areas open to the public as well as the postscreening areas. As the
majority aptly observes, “Although portions of the airport are open to the general
public, people usually come to the airport only to travel or to accompany a
traveler. Travelers often are in a hurry, and the airport often is crowded.” (Maj.
opn., ante, at p. 15; see also id. at pp. 15-16 [quoting Lee, supra, 505 U.S. at pp.
683-684].) People do not go to airports to relax or to socialize, to be entertained or
to spend time; they go to airports to get themselves or their friends and loved ones
safely and efficiently to their destination. The parties‟ stipulation of agreed facts
(as well as common experience) tells us that “[t]he „basic purpose‟ of LAX is 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.” LAX is not, and should not be declared to be, a
free speech public forum under either the United States or the California
Constitution.
In concluding that California constitutional law should differ from First
Amendment law regarding airports, Justice Kennard relies “primarily” on two
cases: Fashion Valley Mall, LLC v. National Labor Relations Bd. (2007) 42
Cal.4th 850 (Fashion Valley) and In re Hoffman (1967) 67 Cal.2d 845 (Hoffman).
(Conc. opn. of Kennard, J., ante, at p. 2.) Neither case addresses, much less
answers, this question.
Hoffman, supra, 67 Cal.2d 845, held that “First Amendment activities
[cannot] be prohibited [at train stations] solely because the property involved is
3

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not maintained primarily as a forum for such activities.” (Id. at p. 850.) For three
reasons, that opinion has nothing to do with the issue here. First, Hoffman cited
solely the First Amendment with no hint that the California Constitution should
diverge from First Amendment law in this area. Second, Hoffman concerned train
stations in the 1960‟s, not airports in the 21st century. As the Lee court — in an
opinion long predating September 11, 2001 — noted, there are major differences
between airports and other “ „transportation nodes.‟ ” (Lee, supra, 505 U.S. at p.
681.) “To blithely equate airports with other transportation centers, therefore,
would be a mistake.” (Id. at p. 682.) Finally, Hoffman simply did not address the
question whether a train station is a public forum under the First Amendment,
much less whether it is one under the California Constitution, which it never cites.
Hoffman held only that free speech rights exist at train stations, which is also true
of airports even under my conclusion that they are not public forums. (See pt. B.,
below.) But Hoffman conducted no public forum analysis, which is not surprising
given that the First Amendment public forum doctrine largely developed after that
opinion. It never considered what level of protection speech receives at train
stations: the highest level reserved for true public forums or the lower level given
nonpublic forums.1
Fashion Valley, supra, 42 Cal.4th 850, held that a shopping mall is a public
forum under the California Constitution.2 A shopping mall is entirely different

1
The Hoffman opinion does say that in one “respect, a railway station is like
a public street or park.” (Hoffman, supra, 67 Cal.2d at p. 851.) But saying that a
railway station is like a public street in one respect does not mean the court found
it to be a public forum under a later-developed doctrine that it never mentioned.
2
I dissented in Fashion Valley, supra, 42 Cal.4th 850, but only because the
shopping mall at issue there was private property. (Id. at pp. 870-882.) If the
shopping mall had been public property, I would have agreed that it was a public
(Footnote continued on next page.)
4

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from an airport for free speech purposes. As Fashion Valley noted, “in many
cities the public areas of the shopping mall are replacing the streets and sidewalks
of the central business district, which „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.‟ ” (Id. at p. 858.) None of this is remotely true of airports. To equate
an airport with a free speech zone is to ignore reality and, perhaps worse, trivialize
free speech interests at true public forums.
B. The Standard Applicable to a Nonpublic Forum
Declaring an area a nonpublic forum does not mean free speech rights do
not exist there. Free speech rights exist on public property open to the public
whether or not the property is considered a public forum. This is true under the
First Amendment and, I have no doubt, also true under the California Constitution.
My conclusion that an airport is not a public forum just means that restrictions on
speech at an airport are not subject to the same level of “highest scrutiny” that
applies to the “regulation of speech on government property that has traditionally
been available for public expression . . . .” (Lee, supra, 505 U.S. at p. 678.) As
the high court explained, designating property as a public forum would mean that
a restriction of speech on that property “could be sustained only if it was narrowly
tailored to support a compelling state interest.” (Id. at p. 676.) A restriction on
speech at a nonpublic forum such as an airport must still pass a constitutional test,
albeit a less rigorous one. “The challenged regulation need only be reasonable, as

(Footnote continued from previous page.)

forum. But LAX is public property. Accordingly, the disagreement between the
majority and dissent in Fashion Valley is irrelevant here.
5

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long as the regulation is not an effort to suppress the speaker‟s activity due to
disagreement with the speaker‟s view.” (Id. at p. 679.)
I would conclude that the ordinance at issue here passes this test for the
reasons the majority gives for concluding it would pass even the more rigorous
test reserved for public forums. Accordingly, I concur with the majority opinion.
CHIN, J.
WE CONCUR:
BAXTER, J.
CORRIGAN, J.
6

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion International Society for Krishna Consciousness of California v. City of Los Angeles
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding XXX (on certification pursuant to rule 8.548, Cal. Rules of Court)
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S164272
Date Filed: March 25, 2010
__________________________________________________________________________________

Court:

County:
Judge:

__________________________________________________________________________________

Attorneys for Appellant:

Rockard J. Delgadillo and Carmen A. Trutanich, City Attorneys, Kelly Martin, Managing City Attorney, D.
Timothy Dazé, Deputy City Attorney; Law Offices of John Werlich and John M. Werlich for Defendants
and Appellants.

Dennis J. Herrera, City Attorney (San Francisco), Danny Chou, Chief of Complex and Special Litigation,
Mara Rosales, Chief Airport Counsel, Burk E. Delventhal, Ellen Forman and Rafal Ofierski, Deputy City
Attorneys; Patricia B. Heilbron, Deputy Port Attorney (Oakland); and Breton Lobner for City and County
of San Francisco, League of California Cities, California State Association of Counties, Port of Oakland
and San Diego County Regional Airport Authority as Amici Curiae on behalf of Defendants and
Appellants.

Kent S. Scheidegger and Maritza B. Meskan for Criminal Justice Legal Foundation as Amicus Curiae on
behalf of Defendants and Appellants.

__________________________________________________________________________________

Attorneys for Respondent:

Law Offices of David M. Liberman, David M. Liberman; Law Offices of Robert C. Moest and Robert C.
Moest for Plaintiffs and Respondents.

Peter J. Eliasberg; Julia Harumi Mass, Alan L. Schlosser; and David Blair-Loy for American Civil
Liberties Union of Southern California, American Civil Liberties Union of Northern California and
American Civil Liberties Union of San Diego and Imperial Counties as Amici Curiae on behalf of Plaintiffs
and Respondents.

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Counsel who argued in Supreme Court (not intended for publication with opinion):

John M. Werlich
Law Offices of John Werlich
1563 Shadowglen Court
Westlake Village, CA 91361
(805) 236-1694

Danny Chou
Chief of Complex and Special Litigation
1390 Market Street, Seventh Floor
San Francisco, CA 94102-5408
(415) 554-3807

David M. Liberman
Law Offices of David M. Liberman
9709 Venice Boulevard, No. 4
Los Angeles, CA 90034
(424) 298-8648

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Request under California Rules of Court, rule 8.548, that this court decide questions of California law presented in a matter pending in the United States Court of Appeals for the Ninth Circuit. The questions presented, as restated by this court, are: "(1) Is Los Angeles International Airport a public forum under the Liberty of Speech Clause of the California Constitution? (2) If so, does the ordinance at issue violate the California Constitution?" (Cal. Rules of Court, rule 8.548(f)(5).)

Opinion Information

Date:	Citation:	Docket Number:	Category:	Status:	Cross Referenced Cases:
Thu, 03/25/2010	48 Cal. 4th 446, 227 P.3d 395, 106 Cal. Rptr. 3d 834	S164272	Question of Law - Civil	submitted/opinion due	Los Angeles Alliance for Survival v. City of Los Angeles, 22 Cal.4th 352 (2000). International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992).

Opinion Authors
Opinion	Justice Carlos R. Moreno
Concur	Justice Joyce L. Kennard, Justice Ming W. Chin

Dockets
Jun 12 2008	Request to answer question of state law filed   By United States Court of Appeals for the Ninth Circuit
Jun 12 2008	Received:   General Docket; 1 copy each of: Brief of Amici Curiae The City and County of San Francisco et al.; Brief of Amici Curiae Criminal Justice Legal Foundation; Appellees' Answering Brief; Appellants' Reply Brief; Appellees' Supplemental Brief; Appellants' Response to Appellees' Supplemental Brief; Appellants' Supplemental Excerpts of Record Relating to Post 9/11 Security Issues at LAX (5 volumes); Appellees' Supplemental Excerpts of Record (2 volumes); Appellants' Replacement Opening Brief on Appeal; Appellants' Replacement Reply Brief on Appeal.
Jun 30 2008	Received:   Letter dated June 28, 2008, from David M. Liberman, counsel for plaintiffs/appellants, International Society for Krishna Consciousness of California, Inc. and Emnil Beca.
Jul 11 2008	Received:   Reply Letter of the City of Los Angeles, and all other defendants and appellants, dated 7-9-2008 by John M. Werlich, counsel
Jul 23 2008	Received:   Letter dated July 22, 2008, from David M. Liberman, counsel for plaintiffs/appellants, in reply to July 9, 2008 letter by counsel for the City of Los Angeles, defendants/appellants.
Aug 13 2008	Letter sent to:   All parties enclosing a copy of this Court's order granting review, and the form for certification of interested entities or persons
Aug 13 2008	Request for certification granted   The request, made pursuant to California Rules of Court, rule 8.548, that this court decide a question of California law presented in a matter pending in the United States Court of Appeals for the Ninth Circuit is granted. For purposes of briefing and oral argument, defendants City of Los Angeles, et. al. are deemed petitioners in this court. The parties are directed to brief the following questions: 1) Is Los Angeles International Airport a public forum under the Liberty of Speech Clause of the California Constitution? 2) If so, does the ordinance at issue violate the California Constitution? (Cal. Rules of Court, rule 8.548(f)(5).) Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Aug 20 2008	Letter sent to:   The Office of the Attorney General with a copy of this court's order and copy of the request pursuant to rule 8.548(f)(4) of the California Rules of Court.
Aug 27 2008	Request for extension of time filed   to and including November 12, 2008, to file Petitioners' (City of Los Angeles et al.) Opening Brief on the Merits by John M. Werlich, retained counsel
Aug 28 2008	Extension of time granted   On application of petitioners City of Los Angeles, et al., and good cause appearing, it is ordered that the time to serve and file the petitioners' opening brief on the merits is extended to and including November 12, 2008.
Aug 29 2008	Certification of interested entities or persons filed   David W. Liberman, counsel for respondents (Society for Krishna Consciousness)
Oct 6 2008	Received:   Excerpts of record from counsel for appellant, The City of Los Angeles. by John M. Werlich, counsel
Nov 12 2008	Opening brief on the merits filed   City of Los Angeles, petitioners
Nov 26 2008	Request for extension of time filed   to and including February 3, 2009, to file the Answer Brief on the Merits of Plaintiffs and Appellants International Society for Krishna Conscouisness of California, Inc. et al. by David M. Liberman, counsel.
Dec 5 2008	Extension of time granted   On application of plaintiffs and appellants International Society for Krishna Consciousness of California, Inc., et al., and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including February 3, 2009.
Dec 31 2008	Request for extension of time filed   2nd Request for Extension of Time, 30 days to and including March 5, 2009, to file the Answer Brief of appellants International Society for Krishna Consciousness of California, Inc. et al. by David M. Liberman, counsel.
Jan 8 2009	Extension of time granted   On application of plaintiffs and appellants International Society for Krishna Consciousness of California, Inc. et al., and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including March 5, 2009. No further extension of time is contemplated.
Mar 4 2009	Request for extension of time filed   for a four-day extension to and including March 9, 2009, to file plaintiffs/appellants (Krishna Consciousness) answer brief on the merits. Robert C. Moest, counsel
Mar 5 2009	Extension of time granted   On application of appellants International Society of Krishna Consciousness of California, Inc. and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including March 9, 2009.
Mar 9 2009	Answer brief on the merits filed Plaintiff and Respondent: International Society for Krishna ConsciousnessAttorney: David Mark Liberman   Respondents' International Society for Krishna Consciousness of California, Inc., Attorney David M. Liberman
Mar 10 2009	Motion filed (non-AA)   To Augment the Record International Society for Krishna Consciousness of California, Inc. et al., plaintiffs and appellants by David M. Liberman, counsel
Mar 10 2009	Received:   "Copy of Federal District Court Decision Cited in Answering Brief of International Society for Krishna Consciousness of California, Inc." -- from David M. Liberman, counsel for plaintiffs/appellants International Society for Krishna Consciousness, Inc. et al.
Mar 12 2009	Filed:   Response of City of Los Angeles to Motion of International Society of Krishna Consciousness of California, Inc. to Augment Record by: John M. Werlich, counsel
Mar 16 2009	Application filed   to file appellants City of Los Angeles' reply brief on the merits in excess of length limit by John M. Werlich, counsel. (application only)
Mar 16 2009	Filed:   Notice of Errata and Request to Withdraw Motion to Augment Record by David M. Liberman, counsel
Mar 18 2009	Order filed   The request of Appellants' International Society for Krishna Consciousness of California, Inc. and Emil Beca to withdraw motion to augment record is hereby granted.
Mar 18 2009	Note:   Returned "original" Motion to Augment Record to counsel for appellants (International Society for Krishna Consciousness of California, Inc.)
Mar 18 2009	Order filed   The application of Appellants' City of Los Angeles, et al., to file a Reply Brief on the Merits in excess of length limit is hereby denied.
Mar 30 2009	Reply brief filed (case fully briefed) Defendant and Appellant: City of Los AngelesAttorney: John M. Werlich   Appellants, City of Los Angeles
Apr 2 2009	Filed:   Errata to CITY OF LOS ANGELES' Reply Brief ~ filed Mar 30, 2009
Apr 3 2009	Received:   Notice of nonavailability of John M. Werlich, counsel for appellant (City of Los Angeles)
Apr 29 2009	Application to file amicus curiae brief filed   City and County of San Francisco, League of California Cities, California State Association of Counties in support of defendants and appellants City of Los Angeles, et al.
May 7 2009	Permission to file amicus curiae brief granted   The application of City and County of San Francisco, League of California Cities, California State Association of Counties for permission to file an amici curiae brief in support of defendants and appellants City of Los Angeles et al. is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
May 7 2009	Amicus curiae brief filed Amicus curiae for appellant: City & County of San FranciscoAttorney: Danny Yeh Chou Amicus curiae for appellant: League of California CitiesAttorney: Danny Yeh Chou Amicus curiae for appellant: California State Association of CountiesAttorney: Danny Yeh Chou
Apr 30 2009	Application to file amicus curiae brief filed   ACLU of Southern California, ACLU of Northern California, and ACLU of San Diego and Imperial Counties in support of plaintiffs and appellants International Society of Krishna Consciousness of California
May 7 2009	Permission to file amicus curiae brief granted   The application of Amici Curiae American Civil Liberties Union of Southern California, American Civil Liberties Union of Northern Cailfornia, and American Civil Liberties Union of San Diego and Imperial Counties for permission to file an amici curiae brief in support of plaintiffs and appellants International Society for Krishna Consciousness of California, Inc. is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
May 7 2009	Amicus curiae brief filed Information only: ACLU Foundation of Southern California, Inc.Attorney: Peter J. Eliasberg Amicus curiae for appellant: ACLU Foundation of Northern California, Inc.Attorney: Alan L. Schlosser Attorney: Julia Harumi Mass Amicus curiae for appellant: ACLU Foundation of San Diego & Imperial Counties, Inc.Attorney: John David Blair-Loy   ACLU Southern California, ACLU Northern California, and ACLU San Diego and Imperial Counties in support of plaintiffs and appellants International Society for Krishna Consciousness of California, Inc.
May 14 2009	Request for extension of time filed   to and including 7-14-2009 to file Respondents' Response to the Amicus Curiae Brief of the City and County of Los Angeles. Law Offices of David M. Liberman and the Law Offices of Robert C. Moest, retained counsel.
May 22 2009	Request for extension of time filed   to and including June 16, 2009 to file Petitioners City of Los Angeles' response to the amicus brief filed by the ACLU of SouthernCalifornia, et al. (Pdf copy) John M. Werlich, counsel
May 26 2009	Extension of time granted   On application of respondents and good cause appearing, it is ordered that the time to serve and file the Respondents' Response to the Amicus Curiae Brief o the City and County of San Francisco et al. is extended to and including June 22, 2009.
May 26 2009	Extension of time granted   On application of Appellants City of Los Angeles, et al., and good cause appearing, it is ordered that the time to serve and file Appellants City of Los Angeles' Response to the Amicus Curiae Brief of the American Civil Liberties Union of Southern California, San Diego, and Imperial Counties is extended to and including June 19, 2009.
Jun 16 2009	Request for extension of time filed   to and including July 6, 2009, to file Respondent's Response to Amicus Curiae Brief by the City and County of San Francisco et al.
Jun 17 2009	Extension of time granted   On application of Appellants' International Society for Krishna Consciousness of California, Inc., and Emil Beca, and good cause appearing, it is ordered that the time to serve and file the Response to the Amicus Curiae Brief by the City and County of San Francisco et al. is extended to and including July 6, 2009.
Jun 18 2009	Request for extension of time filed
Jun 19 2009	Extension of time granted   On application appellants' of City of Los Angeles et al. and good cause appearing, it is ordered that the time to serve and file the reply to the amicus curiae brief of ACLU of Southern California is extended to and including July 6, 2009.
Jul 6 2009	Response to amicus curiae brief filed Defendant and Appellant: City of Los AngelesAttorney: John M. Werlich
Jul 6 2009	Response to amicus curiae brief filed Plaintiff and Respondent: International Society for Krishna ConsciousnessAttorney: David Mark Liberman   answering brief of City and County of San Francisco, et al.
Aug 31 2009	Received:   Notice of Non-availability of John M. Werlich, counsel for defendant and appellant City of Los Angeles, between September 20, 2009 and October 11, 2009.
Dec 2 2009	Case ordered on calendar   to be argued on January 6, 2010, at 9:00 a.m., in San Francisco.
Dec 10 2009	Application filed   Request to divide oral argument time filed by John Werlich, counsel for appellants City of Los Angeles et al., asking to share 10 minutes of argument time with amici curiae City and County of San Francisco et al.
Dec 14 2009	Order filed   The request of counsel for appellants City of Los Angeles et al. in the above-referenced cause to allow two counsel to argue on behalf of appellants at oral argument is hereby granted. The request of appellants City of Los Angeles et al. to allocate to amici curiae City and County of San Francisco et al. 10 minutes of appellants' 30-minute allotted time for oral argument is granted.
Jan 6 2010	Cause argued and submitted
Feb 22 2010	Received:   Letter dated 2-19-2010 from John M. Werlich enclosing a Notice of Change of Counsel for City of Los Angeles, per recent election of Carmen A. Trutanich as Los Angeles City Attorney.
Mar 24 2010	Notice of forthcoming opinion posted   To be filed on Thursday, March 25, 2010 at 10 a.m.

Briefs
Nov 12 2008	Opening brief on the merits filed
Mar 9 2009	Answer brief on the merits filed Plaintiff and Respondent: International Society for Krishna ConsciousnessAttorney: David Mark Liberman
Mar 30 2009	Reply brief filed (case fully briefed) Defendant and Appellant: City of Los AngelesAttorney: John M. Werlich
May 7 2009	Amicus curiae brief filed Amicus curiae for appellant: City & County of San FranciscoAttorney: Danny Yeh Chou Amicus curiae for appellant: League of California CitiesAttorney: Danny Yeh Chou Amicus curiae for appellant: California State Association of CountiesAttorney: Danny Yeh Chou
May 7 2009	Amicus curiae brief filed Information only: ACLU Foundation of Southern California, Inc.Attorney: Peter J. Eliasberg Amicus curiae for appellant: ACLU Foundation of Northern California, Inc.Attorney: Alan L. Schlosser Attorney: Julia Harumi Mass Amicus curiae for appellant: ACLU Foundation of San Diego & Imperial Counties, Inc.Attorney: John David Blair-Loy
Jul 6 2009	Response to amicus curiae brief filed Plaintiff and Respondent: International Society for Krishna ConsciousnessAttorney: David Mark Liberman
Jul 6 2009	Response to amicus curiae brief filed Defendant and Appellant: City of Los AngelesAttorney: John M. Werlich

Brief Downloads
9th Cir Order Certifying.pdf (41721 bytes) - 9th Circuit Order Certifying Determinative Question of Law to the California Supreme Court
ACLU-SC amicus.pdf (242721 bytes) - Amicus Brief of American Civil Liberties Union of Southern California, American Civil Liberties Union of Northern California, and American Civil Liberties Union of San Diego and Imperial Counties in Support of Plaintiffs-Respondents' Brief on the Merits
Amicus Brief of SF.pdf (1656119 bytes) - Brief of Amici Curiae City and County of San Francisco, et al., in Support of Petitioners City of Los Angeles, et al.

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May 4, 2010 Annotated by zpalitz

Facts: In 1997, the City of Los Angeles (the City) enacted an ordinance prohibiting people from soliciting donations at LA International Airport (LAX). The International Society for Krishna Consciousness of California, Inc. (ISKCON) challenged the ordinance and a federal district court ruled that it violated the free speech clause of the California Constitution. The City appealed to the Ninth Circuit Court of Appeals. Because there was no controlling California Supreme Court precedent on the issue, the Ninth Circuit certified the question to the California Supreme Court, asking: “Is Los Angeles International Airport a public forum under the Liberty of Speech Clause of the California Constitution?” On August 13, 2008, the Supreme Court agreed to hear the case. Note: you may be asking yourself why it took ten years for this case to make it to the Supreme Court. The procedural background of the case is a bit more complicated than the description above. For a fuller summary, see the “Facts” section of the Supreme Court’s opinion (pages 1-4). Issue: 1) Is Los Angeles International Airport a public forum under the Liberty of Speech Clause of the California Constitution? 2) If so, does the ordinance at issue violate the California Constitution? Key terms: Liberty of Speech Clause: California’s “Liberty of Speech Clause” (which is similar to the First Amendment of the U.S. Constitution) says: “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.” Public forum: Under both the California and U.S. Constitutions it has been long established that public areas, such as sidewalks and parks, are public forums for free expression. The government has less ability to regulate or prevent free speech in a public forum. Time, place, and manner restriction: Even in a public forum, the government is allowed to place reasonable restrictions on the time, place, or manner of speech. For example, the government could say that free speech may only occur between certain hours or in a specific location. Holding (Moreno, J.): The Supreme Court held that the ordinance is a reasonable time, place, and manner restriction of expressive rights. Therefore, the ordinance is constitutional whether or not LAX is considered a public forum. Since the Court did not need to decide whether LAX is a public forum to figure out whether the ordinance is constitutional, it did not answer that question. Reasoning: The Supreme Court began by noting that even in a public forum, the government may place reasonable restrictions on the time, place, or manner of speech. The Court found that the City’s ordinance was a reasonable time, place, or manner restriction because it was content-neutral, meaning that it would apply to all speakers the same way, regardless of their message, and was justified by some larger government purpose. Time, place, and manner restrictions are evaluated under an intermediate scrutiny standard, rather than the more rigorous strict scrutiny, which is reserved for complete bans on speech. The Court found that “[t]he ordinance will survive such intermediate scrutiny if “it is (i) narrowly tailored, (ii) serves a significant government interest, and (iii) leaves open ample alternative avenues of communication.” The Court looked directly at the anti-solicitation ordinance and found that, “[p]rohibiting persons from soliciting the immediate receipt of funds at LAX is a narrowly tailored regulation of expressive activity because it is not substantially broader than necessary to addresses the particular problems caused by requests for the immediate receipt of funds.” The Court reasoned that solicitation of donations “is far more intrusive” than other forms of expression, such as handing someone a leaflet with information. Solicitation of donations requires a person to stop, have a conversation, and then reach into her wallet for money if she chooses to donate. The Court noted that there is also a greater risk of fraud or undue pressure when a person is rushing to catch his plane and doesn’t have time for full reflection. The Court further considered the effect of solicitations on a busy international airport like LAX. Given the crowded, hectic atmosphere and the fact that travelers are often in a hurry, solicitations that impede the flow of traffic can be highly problematic. The Court concluded that the ordinance left ISKCON with ample alternative means of conveying its message. “It can distribute literature and speak to willing travelers. It can even seek financial support, as long as it does not request the immediate exchange of funds.” For these reasons, the Court found the ordinance to be a reasonable regulation surviving intermediate scrutiny. George, C.J., Baxter, J., Chin, J., Werdegar, J., Corrigan, J., concurred Concurrence by Kennard, J. Justice Kennard concurs with the majority only because she is compelled by California Supreme Court precedent, Los Angeles Alliance for Survival v. City of Los Angeles, 22 Cal.4th 352 (2000), an opinion from which she dissented. In that case, the majority found that a Los Angeles ordinance restricting solicitations was a reasonable content-neutral time, place, and manner regulation. Justice Kennard disagreed and would have subjected regulation of solicitations to the strict scrutiny standard required for content-based regulations. Justice Kennard also finds that LAX is a public forum. She relies primarily on two California Supreme Court cases, one of which found Los Angeles’ Union Station to be a public forum and the other found that a privately owned shopping mall was a public forum. Applying the reasoning from those cases, Justice Kennard finds “[l]ike railway stations and shopping malls, the prescreening areas of Los Angeles International Airport are open to the public; they contain restaurants, newsstands, shops, and seats or benches for waiting; and they are places where people frequently have leisure for discussion and socializing.” Concurrence by Chin, J. Justice Chin concurs with the majority, but would find that LAX is not a public forum for free speech purposes under the California Constitution. He begins by noting that the U.S. Supreme Court has found airports not to be public forums under the U.S. Constitution, International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992), and he doesn’t see any reason why the California Constitution should differ on this point. According to Justice Chin, airports are not “traditional free speech zones like parks.” Even through parts of LAX are open to the public, people don’t come there for entertainment or dining. People come to the airport to “get themselves or their friends and loved ones safely and efficiently to their destination.” Baxter, J., Corrigan, J., concurred.

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