Petitioner Board of Airport Commissioners of Los Angeles adopted
a resolution banning all "First Amendment activities" within the
"Central Terminal Area" at Los Angeles International Airport.
Respondents, a nonprofit religious corporation and a minister for
that organization, filed an action in Federal District Court
challenging the resolution's constitutionality, after the minister
had stopped distributing free religious literature in the airport's
Central Terminal Area when warned against doing so by an airport
officer. The court held that the Central Terminal Area was a
traditional public forum under federal law, and that the resolution
was facially unconstitutional under the Federal Constitution. The
Court of Appeals affirmed.
Held: The resolution violates the First Amendment. It
is facially unconstitutional under the First Amendment overbreadth
doctrine regardless of whether the forum involved is a public or
nonpublic forum (which need not be decided here). The resolution's
facial overbreadth is substantial, since it prohibits all protected
expression and does not merely regulate expressive activity that
might create problems such as congestion or the disruption of
airport users' activities. Under such a sweeping ban, virtually
every individual who enters the airport may be found to violate the
resolution by engaging in some "First Amendment activit[y]." The
ban would be unconstitutional even if the airport were a nonpublic
forum, because no conceivable governmental interest would justify
such an absolute prohibition of speech. Moreover, the resolution's
words leave no room for a narrowing, saving construction by state
courts.
Cf. Baggett v. Bullitt, 377 U.
S. 360. The suggestion that the resolution is not
substantially overbroad because it is intended to reach only
expressive activity unrelated to airport-related purposes is
unpersuasive. Much nondisruptive speech may not be airport related,
but is still protected speech even in a nonpublic forum. Moreover,
the vagueness of the suggested construction -- which would result
in giving airport officials the power to decide in the first
instance whether a given activity is airport-related -- presents
serious constitutional difficulty. Pp.
482 U. S.
572-577.
785 F.2d 791, affirmed.
Page 482 U. S. 570
O'CONNOR, J., delivered the opinion for a unanimous Court.
WHITE, J., filed a concurring opinion, in which REHNQUIST, C.J.,
joined,
post, p.
482 U. S.
577.
JUSTICE O'CONNOR delivered the opinion of the Court.
The issue presented in this case is whether a resolution banning
all "First Amendment activities" at Los Angeles International
Airport (LAX) violates the First Amendment.
I
On July 13, 1983, the Board of Airport Commissioners (Board)
adopted Resolution No. 13787, which provides, in pertinent
part:
"NOW, THEREFORE, BE IT RESOLVED by the Board of Airport
Commissioners that the Central Terminal Area at Los Angeles
International Airport is not
Page 482 U. S. 571
open for First Amendment activities by any individual and/or
entity;"
"
* * * *"
"BE IT FURTHER RESOLVED that after the effective date of this
Resolution, if any individual and/or entity seeks to engage in
First Amendment activities within the Central Terminal Area at Los
Angeles International Airport, said individual and/or entity shall
be deemed to be acting in contravention of the stated policy of the
Board of Airport Commissioners in reference to the uses permitted
within the Central Terminal Area at Los Angeles International
Airport; and"
"BE IT FURTHER RESOLVED that, if any individual or entity
engages in First Amendment activities within the Central Terminal
Area at Los Angeles International Airport, the City Attorney of the
City of Los Angeles is directed to institute appropriate litigation
against such individual and/or entity to ensure compliance with
this Policy statement of the Board of Airport Commissioners. . .
."
App. 4a-5a.
Respondent Jews for Jesus, Inc., is a nonprofit religious
corporation. On July 6, 1984, Alan Howard Snyder, a minister of the
Gospel for Jews for Jesus, was stopped by a Department of Airports
peace officer while distributing free religious literature on a
pedestrian walkway in the Central Terminal Area at LAX. The officer
showed Snyder a copy of the resolution, explained that Snyder's
activities violated the resolution, and requested that Snyder leave
LAX. The officer warned Snyder that the city would take legal
action against him if he refused to leave as requested.
Id. at 19a-20a. Snyder stopped distributing the leaflets
and left the airport terminal.
Id. at 20a.
Jews for Jesus and Snyder then filed this action in the District
Court for the Central District of California, challenging
Page 482 U. S. 572
the constitutionality of the resolution under both the
California and Federal Constitutions. First, respondents contended
that the resolution was facially unconstitutional under Art. I,
§ 2, of the California Constitution and the First Amendment to
the United States Constitution because it bans all speech in a
public forum. Second, they alleged that the resolution had been
applied to Jews for Jesus in a discriminatory manner. Finally,
respondents urged that the resolution was unconstitutionally vague
and overbroad.
When the case came before the District Court for trial, the
parties orally stipulated to the facts, and the District Court
treated the trial briefs as cross-motions for summary judgment. The
District Court held that the Central Terminal Area was a
traditional public forum under federal law, and that the resolution
was facially unconstitutional under the United States Constitution.
The District Court declined to reach the other issues raised by
Jews for Jesus, and did not address the constitutionality of the
resolution under the California Constitution. The Court of Appeals
for the Ninth Circuit affirmed. 785 F.2d 791 (1986). Relying on
Rosen v. Port of Portland, 641 F.2d 1243 (CA9 1981), and
Kuszynski v. Oakland, 479 F.2d 1130 (CA9 1973), the Court
of Appeals concluded that "an airport complex is a traditional
public forum," 785 F.2d at 795, and held that the resolution was
unconstitutional on its face under the Federal Constitution. We
granted certiorari, 479 U.S. 812 (1986), and now affirm, but on
different grounds.
II
In balancing the government's interest in limiting the use of
its property against the interests of those who wish to use the
property for expressive activity, the Court has identified three
types of fora: the traditional public forum, the public forum
created by government designation, and the nonpublic forum.
Perry Ed. Assn. v. Perry Local Educators' Assn.,
460 U. S. 37,
460 U. S. 45-46
(1983). The proper First Amendment analysis differs depending on
whether the area in question
Page 482 U. S. 573
falls in one category rather than another. In a traditional
public forum or a public forum by government designation, we have
held that First Amendment protections are subject to heightened
scrutiny:
"In these quintessential public forums, the government may not
prohibit all communicative activity. For the State to enforce a
content-based exclusion, it must show that its regulation is
necessary to serve a compelling state interest and that it is
narrowly drawn to achieve that end. . . . The State may also
enforce regulations of the time, place, and manner of expression
which are content-neutral, are narrowly tailored to serve a
significant government interest, and leave open ample alternative
channels of communication."
Id. at
460 U. S. 45. We
have further held, however, that access to a nonpublic forum may be
restricted by government regulation as long as the regulation "is
reasonable and not an effort to suppress expression merely because
officials oppose the speaker's view."
Id. at
460 U. S.
46.
The petitioners contend that LAX is neither a traditional public
forum nor a public forum by government designation, and accordingly
argue that the latter standard governing access to a nonpublic
forum is appropriate. The respondents, in turn, argue that LAX is a
public forum subject only to reasonable time, place, or manner
restrictions. Moreover, at least one commentator contends that
Perry does not control a case such as this, in which the
respondents already have access to the airport, and therefore
concludes that this case is analogous to
Tinker v. Des Moines
School Dist., 393 U. S. 503
(1969).
See Laycock, Equal Access and Moments of Silence:
The Equal Status of Religious Speech by Private Speakers, 81
Nw.U.L.Rev. 1, 48 (1986). Because we conclude that the resolution
is facially unconstitutional under the the First Amendment
overbreadth doctrine, regardless of the proper standard, we need
not decide whether LAX is indeed
Page 482 U. S. 574
a public forum, or whether the
Perry standard is
applicable when access to a nonpublic forum is not restricted.
Under the First Amendment overbreadth doctrine, an individual
whose own speech or conduct may be prohibited is permitted to
challenge a statute on its face
"because it also threatens others not before the court -- those
who desire to engage in legally protected expression but who may
refrain from doing so rather than risk prosecution or undertake to
have the law declared partially invalid."
Brockett v. Spokane Arcades, Inc., 472 U.
S. 491,
472 U. S. 503
(1985). A statute may be invalidated on its face, however, only if
the overbreadth is "substantial."
Houston v. Hill, ante at
482 U. S.
458-459;
New York v. Ferber, 458 U.
S. 747,
458 U. S. 769
(1982);
Broadrick v. Oklahoma, 413 U.
S. 601,
413 U. S. 615
(1973). The requirement that the overbreadth be substantial arose
from our recognition that application of the overbreadth doctrine
is, "manifestly, strong medicine,"
Broadrick v. Oklahoma,
supra, at
413 U. S. 613,
and that
"there must be a realistic danger that the statute itself will
significantly compromise recognized First Amendment protections of
parties not before the Court for it to be facially challenged on
overbreadth grounds."
City Council of Los Angeles v. Taxpayers for Vincent,
466 U. S. 789,
466 U. S. 801
(1984).
On its face, the resolution at issue in this case reaches the
universe of expressive activity, and, by prohibiting all protected
expression, purports to create a virtual "First Amendment Free
Zone" at LAX. The resolution does not merely regulate expressive
activity in the Central Terminal Area that might create problems
such as congestion or the disruption of the activities of those who
use LAX. Instead, the resolution expansively states that LAX "is
not open for First Amendment activities by any individual and/or
entity," and that
"any individual and/or entity [who] seeks to engage in First
Amendment activities within the Central Terminal Area . . . shall
be deemed to be acting in contravention of the stated policy of the
Board of Airport Commissioners."
App. 4a-5a. The resolution therefore does not merely reach
the
Page 482 U. S. 575
activity of respondents at LAX; it prohibits even talking and
reading, or the wearing of campaign buttons or symbolic clothing.
Under such a sweeping ban, virtually every individual who enters
LAX may be found to violate the resolution by engaging in some
"First Amendment activit[y]." We think it obvious that such a ban
cannot be justified even if LAX were a nonpublic forum, because no
conceivable governmental interest would justify such an absolute
prohibition of speech.
Additionally, we find no apparent saving construction of the
resolution. The resolution expressly applies to all "First
Amendment activities," and the words of the resolution simply leave
no room for a narrowing construction. In the past, the Court
sometimes has used either abstention or certification when, as
here, the state courts have not had the opportunity to give the
statute under challenge a definite construction.
See, e.g.,
Babbitt v. Farm Workers, 442 U. S. 289
(1979). Neither option, however, is appropriate in this case,
because California has no certification procedure, and the
resolution is not "fairly subject to an interpretation which will
render unnecessary or substantially modify the federal
constitutional question."
Harmon v. Forssenius,
380 U. S. 528,
380 U. S. 535
(1965). The difficulties in adopting a limiting construction of the
resolution are not unlike those found in
Baggett v.
Bullitt, 377 U. S. 360
(1964). At issue in
Baggett was the constitutionality of
several statutes requiring loyalty oaths. The
Baggett
Court concluded that abstention would serve no purpose, given the
lack of any limiting construction, and held the statutes
unconstitutional on their face under the First Amendment
overbreadth doctrine. We observed that the challenged loyalty oath
was not "open to one or a few interpretations, but to an indefinite
number," and concluded that
"[i]t is fictional to believe that anything less than extensive
adjudications, under the impact of a variety of factual situations,
would bring the oath within the bounds of permissible
constitutional certainty."
Id. at
377 U. S. 378.
Here too, it is
Page 482 U. S. 576
difficult to imagine that the resolution could be limited by
anything less than a series of adjudications, and the chilling
effect of the resolution on protected speech in the meantime would
make such a case-by-case adjudication intolerable.
The petitioners suggest that the resolution is not substantially
overbroad, because it is intended to reach only expressive activity
unrelated to airport-related purposes. Such a limiting
construction, however, is of little assistance in substantially
reducing the overbreadth of the resolution. Much nondisruptive
speech -- such as the wearing of a T-shirt or button that contains
a political message -- may not be "airport-related," but is still
protected speech even in a nonpublic forum.
See Cohen v.
California, 403 U. S. 15
(1971). Moreover, the vagueness of this suggested construction
itself presents serious constitutional difficulty. The line between
airport-related speech and non-airport-related speech is, at best,
murky. The petitioners, for example, suggest that an individual who
reads a newspaper or converses with a neighbor at LAX is engaged in
permitted "airport-related" activity because reading or conversing
permits the traveling public to "pass the time." Reply Brief for
Petitioners 12. We presume, however, that petitioners would not so
categorize the activities of a member of a religious or political
organization who decides to "pass the time" by distributing
leaflets to fellow travelers. In essence, the result of this vague
limiting construction would be to give LAX officials alone the
power to decide in the first instance whether a given activity is
airport-related. Such a law that "confers on police a virtually
unrestrained power to arrest and charge persons with a violation"
of the resolution is unconstitutional because "[t]he opportunity
for abuse, especially where a statute has received a virtually
open-ended interpretation, is self-evident."
Lewis v. City of
New Orleans, 415 U. S. 130,
135-136 (1974) (POWELL, J., concurring);
see also Houston v.
Hill, ante at
482 U. S. 465;
Kolender v. Lawson, 461 U. S. 352,
461 U. S. 358
(1983).
Page 482 U. S. 577
We conclude that the resolution is substantially overbroad, and
is not fairly subject to a limiting construction. Accordingly, we
hold that the resolution violates the First Amendment. The judgment
of the Court of Appeals is
Affirmed.
JUSTICE WHITE, with whom THE CHIEF JUSTICE joins,
concurring.
I join the Court's opinion, but suggest that it should not be
taken as indicating that a majority of the Court considers the Los
Angeles International Airport to be a traditional public forum.
That issue was one of the questions on which we granted certiorari,
and we should not have postponed it for another day.
