International Society for Krishna Consciousness of California, Inc. v. City of Los Angeles

KENNARD, J., Concurring.

The court’s opinion, authored by Justice Moreno, holds that a city ordinance prohibiting the solicitation and receipt of funds in public areas of Los Angeles International Airport does not violate the California Constitution’s liberty of speech clause (Cal. Const., art. I, § 2, subd. (a) [“A law may not restrain or abridge liberty of speech or press.”]) but instead is a valid time, place, and manner restriction on expressive activity.

I join in that holding, but I do so only under compulsion of this court’s decision in Los Angeles Alliance for Survival v. City of Los Angeles (2000) 22 Cal.4th 352 [93 Cal.Rptr.2d 1, 993 P.2d 334]. There, a majority of this court held that under the state Constitution’s liberty of speech clause, a city *461ordinance prohibiting, at specified locations, any solicitation for the immediate donation of funds was not a content-based regulation of speech and that such an ordinance was to be evaluated as a time, place, and manner restriction on speech. (Los Angeles Alliance for Survival v. City of Los Angeles, supra, at p. 357.) I disagreed, concluding that a solicitation ban is based on the content of speech, and therefore its validity must be determined using a standard of scrutiny more rigorous than the standard used to evaluate the validity of time, place, and manner restrictions. (Id. at p. 383 (dis. opn. of Kennard, J.).) Although my view on that question has not changed, I recognize that the majority’s holding in Los Angeles Alliance for Survival v. City of Los Angeles has the force of precedent and that reiteration of dissenting views is rarely justified. (See People v. Stansbury (1993) 4 Cal.4th 1017, 1072-1073 [17 Cal.Rptr.2d 174, 846 P.2d 756] (cone. opn. of Kennard, J.).)

In this case, I would also decide an issue that the court’s opinion does not address. Although this case comes to this court upon a request of the Ninth Circuit Court of Appeals for a decision on a question of California law, the court’s opinion here does not answer the particular question of California law that the Ninth Circuit asked this court to decide. That question is whether Los Angeles International Airport is a public forum for free expression under the California Constitution’s liberty of speech clause. More precisely, the question is whether the areas of that airport that are accessible to the general public—excluding the areas reserved for ticketed passengers who have passed through security screening—are public forums. I would answer “yes” to that question.

My answer is based primarily on two of this court’s decisions; In re Hoffman (1967) 67 Cal.2d 845 [64 Cal.Rptr. 97, 434 P.2d 353], holding that a railway station (Union Station in Los Angeles) was a public forum, and Fashion Valley Mall, LLC v. National Labor Relations Bd. (2007) 42 Cal.4th 850 [69 Cal.Rptr.3d 288, 172 P.3d 742], holding that a privately owned shopping mall was a public forum (see also Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899 [153 Cal.Rptr. 854, 592 P.2d 341]).

To determine whether particular areas are public forums for purposes of the California Constitution’s liberty of speech clause, this court has generally proceeded by asking whether, in relevant ways, the area in question is similar or dissimilar to areas that have already been determined to be public forums. (See, e.g., Fashion Valley Mall, LLC v. National Labor Relations Bd., supra, 42 Cal.4th 850, 858 [stating that an area may be a public forum “if it is open to the public in a manner similar to that of public streets and sidewalks”]; In re Hoffman, supra, 67 Cal.2d 845, 851 [comparing railway station with “a public street or park”].) Applying that approach here, I conclude that the *462prescreening public areas of Los Angeles International Airport are public forums because, in relevant ways, they are similar to shopping malls and railway stations.

Like railway stations and shopping malls, the prescreening areas of Los Angeles International Airport are open to the public; they contain restaurants, newsstands, shops, and seats or benches for waiting; and they are places where people frequently have leisure for discussion and socializing. Therefore, in answer to the Ninth Circuit’s request, I would decide that the prescreening public areas of Los Angeles International Airport are public forums.

In reaching this conclusion, I am aware of the United States Supreme Court’s holding that, for purposes of the free speech guarantee of the federal Constitution’s First Amendment, airports are not public forums. (International Soc. for Krishna Consciousness, Inc. v. Lee (1992) 505 U.S. 672, 680 [120 L.Ed.2d 541, 112 S.Ct. 2701].) But the free speech guarantees of the federal and California Constitutions are not identical, particularly as regards the concept of public forum. Thus, for example, although the federal high court has held that privately owned shopping malls are not public forums for free expression under the First Amendment (Lloyd Corp. v. Tanner (1972) 407 U.S. 551 [33 L.Ed.2d 131, 92 S.Ct. 2219]), this court has not found that holding persuasive in interpreting our state Constitution, which is “a document of independent force and effect particularly in the area of individual liberties” (People v. Hannon (1977) 19 Cal.3d 588, 606-607, fn. 8 [138 Cal.Rptr. 885, 564 P.2d 1203]). This court has recognized that our state Constitution’s free speech guarantee “differs from its counterpart in the federal Constitution both in its language and its scope” (Fashion Valley Mall, LLC v. National Labor Relations Bd., supra, 42 Cal.4th at p. 862; see also Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 486 [101 Cal.Rptr.2d 470, 12 P.3d 720]) and that those differences explain the broader application of the public forum concept under our state Constitution (Fashion Valley Mall, LLC v. National Labor Relations Bd., supra, at pp. 862-863).

When an area has been determined to be a public forum for purposes of our state Constitution’s liberty of speech clause, that determination does not have the effect of prohibiting all regulation of expressive activities at that location. Reasonable time, place, and manner restrictions on expressive activities in public forums are valid, as this court’s conclusion here about the validity of the ordinance prohibiting solicitation of funds amply demonstrates. Speech activities at airports that interfere with the legitimate interests of the airport management, arriving or departing passengers, security screeners, or airline or airport employees need not be tolerated.