Regulations Affecting the Exercise of First Amendment Activities at Airports (2015)

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3 REGULATIONS AFFECTING THE EXERCISE OF FIRST AMENDMENT ACTIVITIES AT AIRPORTS By Jodi L. Howick, Durham Jones and Pinegar INTRODUCTION The United States Constitution, Amendment I, states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the gov- ernment for a redress of grievances.”1 This simple text imposes a variety of complex restrictions on government actions. Airport proprietors in par- ticular may face diverse First Amendment chal- lenges when addressing the needs of their gov- ernment-owned property, and those challenges can prove costly and disruptive. This digest provides an overview of common First Amendment issues that can affect airport proprietors. The digest begins by reviewing the basic concepts that apply when members of the public (speakers) request access to an airport for expressive activity. It notes an early Supreme Court decision that airport proprietors cannot ban all First Amendment activities in their facilities. It then introduces the Court’s method for review- ing speech issues on government-owned property: forum analysis. The digest then continues by dis- cussing International Society for Krishna Con- sciousness, Inc. v. Lee, the Supreme Court case that applied forum analysis to airport terminals. That decision determined that airport terminals are nonpublic forums for First Amendment pur- poses, and, under the applicable test, considered whether one large airport’s specific practices were reasonable and viewpoint-neutral.2 After Lee, lower courts applied the nonpublic forum test when examining many other airport circumstances. The digest thus reviews significant cases that examined whether First Amendment restrictions were reasonable at a given airport, 1 The First Amendment applies to state and local governments through the Fourteenth Amendment to the Constitution. 2 See Int’l Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 112 S. Ct. 2701, 120 L. Ed. 2d 541 (1992) (Supreme Court case applying forum analysis to airport terminals). including the use of First Amendment zones or booths and restrictions on sidewalks, parking garages, and airspace. It also discusses the impor- tance of a given airport’s individual characteris- tics in a forum analysis, such as whether the air- port is large or small, how facilities are used, and the impact of security measures at the airport. The digest also explains viewpoint neutrality requirements, another component of the nonpub- lic forum test. After discussing requests for nonprofit access to an airport, the digest considers access requests for commercial speech. The Supreme Court has determined that the Constitution provides less protection for commercial speech, but the First Amendment still limits what restrictions the gov- ernment can impose. The digest thus reviews the Supreme Court tests that apply to commercial speech restrictions, whether they are imposed by general laws, the proprietor, or through private parties. It then considers how the law applies to commercial advertising at airports and to other commercial relationships. The digest then considers a few areas of specific concern. It provides a brief overview of how the First Amendment can affect picketing and labor expression at airports, security functions, news- racks and other press activity, employment, pub- lic meetings, speech by the government entity it- self, and requests affecting Internet access. These areas generally raise speech concerns and may involve association or religion rights under the First Amendment as well. The digest also briefly reviews concerns that can arise when drafting airport regulations and common types of chal- lenges to a regulation. The digest then reviews First Amendment con- cerns for religion under the Free Exercise Clause and the Establishment Clause. It summarizes Su- preme Court tests in these areas, and it considers significant airport cases that can affect proprie- tors as they administer airport chapels and medi- tation rooms, holiday displays, and other issues. Finally, every state constitution contains clauses similar to those found in the First Amendment (as summarized in the table in