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ISKCON v. Lee – the opinions

ISKCON v. Lee – the opinions. Rehnquist, White, Scalia, Thomas, O’Connor – airport is a non-public forum because officials have not intentionally opened it for expressive purposes R, W, S, T – restrictions on solicitation/leafleting are reasonable & VP neutral

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ISKCON v. Lee – the opinions

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  1. ISKCON v. Lee – the opinions • Rehnquist, White, Scalia, Thomas, O’Connor – airport is a non-public forum because officials have not intentionally opened it for expressive purposes • R, W, S, T – restrictions on solicitation/leafleting are reasonable & VP neutral • O’C – restrictions on solicitation reasonable/leafleting unreasonable • Kennedy, Blackmun, Stevens, Souter – airport is a limited public forum • K – restrictions on solicitation survive TPM scrutiny; restrictions on leafleting don’t • S,B,S – restrictions on solicitation & leafleting unconstitutional under TP&M analysis

  2. Rehnquist vs. Kennedy and forum issues • Rehnquist: airport is a non-public forum. Not a limited public forum because government did not intentionally open it for purposes of public discourse. • Issue: If others are allowed in for a variety of purposes why shouldn’t we say speech should be included. Why is there an extra burden on speakers to show INTENT to open to them? • Justice Kennedy took a different approach: If the objective, physical characteristics of the property & the actual public access/uses permitted by the government indicate that expressive activity would be appropriate and compatible with those uses, the property is a designated public forum. Most important considerations are: • Does property share physical similarities w/ more traditional public forums; • Has government permitted/acquiesced in broad public access to the property; • Would expressive activity (in general) tend to interfere in a significant way with the uses to which the government has actually dedicated the property • Are reasonable time, place, and manner restrictions available as an alternative to wholesale bans on access • What are the advantages or implications of Kennedy’s approach?

  3. Back to the traditional public forum – is it always what it seems? • After Kokinda/Summum (p. 200) – is SCT signaling that a traditional public forum isn’t always a traditional public forum? Under what circumstances would/should that be the case? • Kokinda:when sidewalk isn’t really used as a public passageway • Summum:when the speech isn’t a typical transitory protest/entertainment that doesn’t interfere with the other traditional function of the property (driving, walking, park) – unlike a permanent monument • Should a park be a different forum for different kinds of speech? Dangers?

  4. Comparing parks • Are national parks (Boardley) different from municipal parks so that the former should be deemed as non-public fora? Why? • Does Boardley’s reasoning re what makes a public forum concern you? • Are “free speech zones” within national parks (or traditional public fora) a reasonable alternative to free access to the park/traditional forum? • What about national monuments as in Oberwetter? They are often outdoors and run by NPS and have been the sites of important rallies and protests. • Are they more akin to traditional or non-public forum? • Is public protest or public expression necessarily inconsistent with the purpose of a monument? Does the decision’s reasoning suggest reason for concern?

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