Tuesday, December 3, 2002
Ninth Circuit Panelists Question Federal Jurisdiction in Challenge to Los Angeles Airport Solicitation Law
By KENNETH OFGANG, Staff Writer/Appellate Courts
A lawsuit challenging the constitutionality of the City of Los Angeles ordinance restricting solicitation of contributions at Los Angeles International Airport may not belong in federal court, two appeals judges suggested yesterday.
“Why shouldn’t this [suit] be dismissed?” Judge Alex Kozinski asked David Liberman, a Century City attorney representing the International Society for Krishna Consciousness and the Committee for Human Rights in Iran.
Liberman said the case raised substantial questions of federal and state constitutional law, although it was the state law issue that Chief U.S. District Judge Consuelo Marshall of the Central District of California found dispositive.
Kozinski was not mollified. The case involves a “little federal question wagging the [tail of the] big state law dog,” the conservative jurist suggested.
Kozinski seemed to get a measure of support from Judge Kim Wardlaw, who suggested that little harm would occur if the court certified the state constitutional issues to the California Supreme Court.
The third panelist, Senior Judge James Browning, did not comment.
At issue in the case is the validity of the 1997 ordinance, which prohibits solicitation of funds “in a continuous or repetitive manner—with the intent of immediately receiving funds” in the airport terminal or the adjacent sidewalks.
The ordinance—which 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)—has never been enforced.
U.S. District Judge John Davies granted a preliminary injunction before the ordinance could take effect. The case was assigned to Marshall after Davies retired, and the chief judge granted summary judgment last year.
Los Angeles Deputy City Attorney Claudia McGee Henry argued that the panel could reverse on either jurisdictional grounds or on the merits. The ordinance, she argued, is a reasonable regulation of the time, place, and manner of speech.
“You’re [making] your most difficult argument,” Wardlaw responded, questioning how a 24 hour a day, seven-day-a-week prohibition on soliciting and receiving funds could possibly meet the requirement that regulations of speech be “narrowly tailored” to meet the legitimate government interest behind them.
Henry emphasized that only the solicitation for “immediate” payment of funds was prohibited. Solicitors can give away brochures, self-addressed envelopes, or cards asking patrons to send in donations, she said.
“[The demand for] money changes everything,” making solicitations more aggressive and placing undue pressure on the person who is asked to contribute, Henry said.
But Liberman argued that the ban violates both the U.S. Constitution and the California Constitution.
He took issue with Kozinski, who said the answer to the federal question was easy. “You lose,” he told Liberman, based on 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 Los Angeles ordinance goes further than the enactment the high court upheld, he said. It was the state question that was easy to answer, he said, because California law gives broad protection to free speech in areas where the public congregates, including transportation terminals.
Kozinski, undaunted, said it should be left to the California courts to determine whether the cases relied on by the district judges, notably a 1967 ruling allowing anti-war protestors to gather at Union Station, can be applied to airports.
Copyright 2002, Metropolitan News Company