High court hears arguments on solicitors' rights in airports

March 26, 1992|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- Is an airport more like a country store, a town square, or a shopping boutique -- or is it more like a no-nonsense branch of the air travel industry?

The Supreme Court had its first chance yesterday to pick one or more of those, as it delved into the right of anyone to ask for money and pass out literature at airports.

The issue finally reached the court in an appeal by the Hare Krishna religious sect, whose austere agents often are seen gently practicing their faith among the hurrying denizens of the concourse.

The justices pressed two lawyers aggressively to offer the court fundamental theories on how it could tell whether terminal corridors had to be opened to religious fund-raisers, political leafleteers, and a whole host of lost-cause advocates.

By the end of the hearing, however, the justices themselves had given little hint of their leanings on a test case that is likely to have some practical effect on virtually everybody who visits an airport -- as a traveler, "a greeter or a meeter," as one lawyer put it.

At one point, however, after an airport lawyer had argued against "annoyances" to the traveling public, Justice Anthony M. Kennedy did observe that "what the First Amendment [free speech clause] is for is to bother people."

Justice Sandra Day O'Connor expressed doubt that it would "bother" those who pass through the terminal to be approached by someone with aleaflet, since "you can say, 'No thanks,' and keep walking."

Justice Antonin Scalia appeared to be the most active defender of airport operators' option of keeping out leafleteers and fund-raisers, but at times joined in expressing skepticism that the airport lawyer had shown how to justify doing so.

For years, the court had stayed away from the issue over open terminals, but lower courts had ruled, repeatedly, that the Constitution required those forums to be open to members of the public.

Earlier last year, however, a federal appeals court in New York City broke ranks and ruled that while the Constitution does require the public areas of airport lounges to be open for distribution of literature, they need not be open for in-person requests for money.

The court then finally stepped into the constitutional controversy.

The appeals court ruling the justices are examining came in the case of the Hare Krishna movement, which follows a religious teaching that puts heavy emphasis upon spreading the faith.

The New York Port Authority, which runs the three major airports in the New York City area, wants to keep not only money-raisers, but leafleteers out of its terminals.

Those are the world's busiest airports, serving 90 million passengers a year. Their lawyer, Arthur P. Berg of New York City, urged the court to lay down the rule that airport operators could ban everyone from the terminal except air travelers and their companions -- so long as the rules were "reasonable" in scope.

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