9th Cir. No. 01-56579 C.D. Cal. No. CV-97-03616-CBM.
The opinion of the court was delivered by: Moreno, J.
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."
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.
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."*fn2 (Intern. Soc. for Krishna v. City of Los Angeles (9th Cir. 2008) 530 F.3d 768, 770.)
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 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.
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.)
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. 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 California Constitution?" (Intern. Soc. for Krishna v. City of Los Angeles, supra, 530 F.3d at p. 770.)*fn3 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?"*fn4
"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 ...