Thursday, August 21, 2014
Ninth Circuit Upholds City’s Ban on Soliciting Donations at LAX
By KENNETH OFGANG, Staff Writer
A ban on soliciting donations at Los Angeles International Airport does not violate the First Amendment, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The panel, ruling after nearly two decades of litigation between the city and the Hare Krishna movement, held that the ordinance forbidding the immediate solicitation of money at LAX—including the terminals, parking lots, and adjacent sidewalks—is reasonably tailored to protect airport visitors from having their movements impeded and from fraud.
The law bans “the sale or offering for sale of any property upon the representation, express or implied, that the proceeds of such sale will be used for a charitable or religious purpose,” if such solicitation is made “in a continuous or repetitive manner.”
Senior Judge John T. Noonan, writing for the court, noted that the number of passengers passing through the terminals has grown to 60 million per year, while the amount of space accessible to the public has been substantially diminished since Sept. 11, 2001.
The International Society for Krishna Consciousness of California, or ISKCON, challenged the ordinance in the U.S. District Court for the Central District of California soon after its enactment in 1997—it replaced a regulation banning all forms of free-speech activity in the airport, struck down in Board of Airport Commrs. of Los Angeles v. Jews for Jesus, Inc., 482 U. S. 569 (1987)—and obtained a preliminary injunction blocking its enforcement.
That injunction remained in effect until 2010, when the Ninth Circuit lifted the injunction after the California Supreme Court, in response to a certified question, ruled that the ban did not violate the “liberty of speech” clause of the state Constitution. That provision had been the basis for earlier rulings in favor of the plaintiff.
Following the state high court ruling, the Ninth Circuit sent the case back to Senior District Judge Consuelo B. Marshall. Marshall ruled for the city on the First Amendment issue, leading to the appeal ruled on yesterday.
In challenging the law, ISKCON said its members are required to evangelize, distribute religious literature, and solicit donations, a practice known as sankirtan. It said that practicing sankirtan at LAX is “particularly vital” to the religious aim of proselytizing to “people from all over the world.”
Supreme Court Ruling
Noonan cited a 1992 U.S. Supreme Court case upholding a similar ban at the airports run by the Port Authority of New York and New Jersey. The high court said solicitation often causes pedestrian congestion, an especially acute problem in busy airports when a short delay may cause a passenger to miss their flight, but ISKCON had argued that the Los Angeles ordinance goes further than the enactment the Supreme Court upheld.
Noonan said the city “provided ample, unrefuted testimony indicating that LAX is a venue whose inherent crowdedness solicitors only exacerbate.”
He also found the fraud argument compelling, citing the testimony of an airport police captain who said that solicitors often pose as having some official connection to the airport, provide travelers with purported information, and then reveal themselves to be solicitors in order to take advantage of the travelers’ feelings of obligation.
“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,” Noonan wrote. “According to eyewitness declarations, ISKCON solicitors are themselves not exempt from practicing chicanery.”
Simply enforcing existing laws on fraudulent solicitation, as suggested by the plaintiffs, will not solve the problem, the judge said, because many travelers may not speak fluent English, and may not have the time to make a formal complaint, particularly if they live far away. Most of the reported problems, he noted, occur at the Tom Bradley International Terminal.
The ordinance, he added, does allow alternative means of soliciting funds, such as by handing out preaddressed envelopes or seeking donations online.
ISKCON argued that subsisting on donations via preaddressed envelopes is not a feasible alternative because only about 10 percent of those solicited follow through with the donation.
But “while ISKCON might justifiably prefer to obtain money from travelers on the spot, nothing prevents the group from raising money in countless other ways at countless other venues,” Noonan wrote. “In this case, the First Amendment demands no more,” he said, joined by Judge Kim M. Wardlaw and Senior District Judge Roslyn O. Silver of the District of Arizona.
Attorneys on appeal were David Liberman and Robert C. Moest for the plaintiffs and John M. Werlich for the city
The case is International Society for Krishna Consciousness of California, Inc. v. City of Los Angeles, 12-56621.
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