LAX Solicitation Ban Stands; Battle With Hare Krishnas Over? - U.S. Ninth Circuit
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LAX Solicitation Ban Stands; Battle With Hare Krishnas Over?

This was a ruling nearly 20 years in the making, but is the battle actually over?

Back in 1997, a Hare Krishna group challenged a new panhandling ordinance at the Los Angeles International Airport (LAX). The ordinance prohibits in-person solicitation or sales in the name of religion or charity, but leaves open the door to distributing envelopes for mail-in or online donations at a later time. The new ordinance followed from a ban on all free speech activity, struck down by the U.S. Supreme Court in 1987.

Even the 1997 ban seemed to be on shaky ground for a while -- an injunction blocked its enforcement until 2010, when the California Supreme Court, responding to a certified question from the Ninth Circuit, ruled that the ban did not violate the "liberty of speech" clause of the state constitution. That ruling, plus last week's ruling on the First Amendment issue, mean the ban has now survived all of the legal challenges before it... unless the Hari Krishnas reach out to the highest (legal) power -- the U.S. Supreme Court, which upheld a near-identical ban 12 years ago.

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Pedestrian Congestion

The ban stands, largely, on the basis of a 1992 U.S. Supreme Court opinion (Lee I), where the Court stated that while solicitation of funds "is a form of speech protected under the First Amendment," it is traditionally less protected than other forms. The Court then upheld an airport solicitation ban that was functionally identical to the ban here, citing pedestrian congestion and instances of fraud as justification.

With regard to pedestrian congestion, the Court stated:

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. 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.

As for this case, at LAX, "Appellees have provided ample, unrefuted testimony indicating that LAX is a venue whose inherent crowdedness solicitors only exacerbate," Judge John Noonan wrote for the unanimous panel.

Instances of Fraud

The other justification used by the U.S. Supreme Court in Lee I was fraud -- there were numerous reported instances of solicitors posing as airport employees or officials, and providing assistance to travelers, before unveiling their true purpose and soliciting funds. Here, Judge Noonan noted:

For example, Laponda Fitchpatrick, an airport police captain, declared that solicitors often run a familiar scheme: they will pose as 'Airport Ambassadors,' purport to provide information (correct, or not) to travelers, reveal later that they are also soliciting funds for a particular cause, and collect money from the travelers who typically "feel obligated to provide the solicitor with a donation because of the circumstances" [...] Myriad other examples of solicitor fraud dot the record: solicitors using badges to deceive travelers; solicitors pretending to work for disaster relief organizations; and solicitors posing as City employees to bilk travelers. According to eyewitness declarations, ISKCON solicitors are themselves not exempt from practicing chicanery.

The holding, then, was simple, especially in light of Lee I: "We therefore find that section 23.27(c) reasonably furthers Appellees' legitimate interests in reducing congestion and fraud at LAX. Under the deferential standard we apply to content-neutral restrictions in nonpublic fora, Appellees prevail."

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