In the News:
Calif. High Court Justices Push Past Krishnas' Airport Appeal

by Mike McKee, The Recorder, January 08, 2010

Posted January 14, 2010

David Liberman had a simple answer Wednesday when California Supreme Court Chief Justice Ronald George asked why it was important that Hare Krishnas be allowed to solicit money at Los Angeles International Airport.

Hare Krishna's a "small, minority, controversial religion," the Los Angeles lawyer said, so face-to-face interaction is "critical" to its mission.

But when Liberman added later that the Krishnas' solicitation rights could extend beyond the airport's metal detectors to the departure gates and even onto the planes themselves -- if the individual Krishnas had tickets -- George and Justice Ming Chin seemed flabbergasted.

"And the airlines would have nothing to say about it?" Chin spat out.

Liberman was clearly on the losing end Wednesday during oral arguments in the California Supreme Court over a 13-year-old Los Angeles policy that lets members of the International Society for Krishna Consciousness distribute literature and speak to travelers in LAX's pre-screening open areas, but not solicit money.

At least five of the seven justices weren't buying his arguments. Justices Kathryn Mickle Werdegar and Carlos Moreno were hard to read.

Los Angeles adopted its solicitation policy in 1997. But in 1998 and on remand in 2001, two L.A. federal judges held that it violated the California Constitution's Liberty of Speech clause, which offers broader free-speech protections than the U.S. Constitution. On appeal, the 9th U.S. Circuit Court of Appeals in 2008 punted to California's highest court.

Cities statewide are watching the case closely, because the court's decision could affect all California airports and seaports, as well as ferry and bus terminals and train depots. The city of San Francisco participated in oral arguments as an amicus curiae.

Much of the argument concerned whether LAX is a public forum under the state Constitution. The U.S. Supreme Court in 1992's International Society for Krishna Consciousness v. Lee, 505 U.S. 672 , upheld a "reasonable" ban on solicitation after ruling that airports are nonpublic forums under the federal Constitution.

"Why should we disagree with the U.S. Supreme Court?" Chin asked Liberman at one point.

In response, Liberman cited 1979's Robins v. Pruneyard Shopping Center, 23 Cal.3d 899, and 2007's Fashion Valley Mall v. National Labor Relations Board (Graphic Communications International Union, Local 432-M), 42 Cal.4th 850 , in which the California Supreme Court upheld free-speech rights in privately owned shopping centers and malls.

"Our citizens would have more rights on private property than on public property," Liberman said. "That's a paradox."

Chin pressed further by asking Liberman if there are any privately owned airports in California.

"Burbank was," Liberman said before Chin cut him off by asking, "Are there any now?"

"Not that I'm aware of," Liberman said.

Westlake Village lawyer John Werlich, representing the city of L.A., and Deputy San Francisco City Attorney Danny Chou fared better.

Werlich stressed that L.A.'s policy passed the reasonableness test in that it had a very narrow purpose -- ensuring security in a crowded potential terror target -- and was limited to time, place and manner.

He also told Moreno that In re Hoffman, 67 Cal.2d 845, a 1967 state Supreme Court ruling that said a privately owned train station constitutes a public forum under the First Amendment, is nothing more than a "historical viewpoint" issued in the "halcyon days of the '60s" when terrorism was unknown.

Both Werlich and Chou pointed out that security is foremost at airports in the wake of the 9/11 attacks.

Liberman downplayed any security problems caused by the Krishnas, noting that other groups often seek signatures for ballot initiatives at airports.

"How is that really, in a meaningful way, different than a donation?" he asked.

But when Liberman argued that LAX's open spaces aren't so crowded that the Krishnas could possibly cause a major security concern, Justice Carol Corrigan jumped in.

"I want to fly in and out of the same airport you do," she said. "If you think there isn't congestion -- especially at L.A. International -- at a ticket counter, we are flying at very different times and in very different places."

A ruling in International Society for Krishna Consciousness of California v. City of Los Angeles, S164272, is due within 90 days.

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