505 U.S. 672 (1992), argued 25 Mar. 1992, decided 26 June 1992 by vote of 6 to 3; Rehnquist for the Court, Souter in dissent, joined by Blackmun and Stevens.
The First Amendment historically protected various kinds of “speech,” including the charitable solicitation of money and the distribution of literature. The Hare Krishna movement, which requires that its members solicit money and distribute literature, had routinely turned to airports as one place to beg and proselytize simultaneously. Travelers making their way through the airports were likely to be confronted not just by Krishna groups but by a host of other individuals either seeking funds or pressing a spiritual agenda or both. The Port Authority of New York and New Jersey beginning in the 1970s attempted to ban these activities. The Krishnas, however, had been successful in defending themselves in every other federal jurisdiction save the federal Court of Appeals for the Second Circuit in Manhattan, whose judges had sustained the Port Authority's ban on begging but overturned another provision that prohibited the distribution of literature as a violation of the First Amendment.
The key issues before the Supreme Court involved the question of whether an airport could be construed as a public forum under the First Amendment. The Court's precedents in this area held that such a forum, like a park or a street corner, had greater protection from government interference than did a so-called nonpublic forum. If an area was designated a public forum, then government had to prove a compelling state interest in order to regulate speech there; if the area was a nonpublic forum, then government could regulate speech as long as its actions were reasonable.
Chief Justice William H. Rehnquist's opinion for the majority of the Court held that airports were not public forums. Airports were subject to special security requirements and their terminals were meant to serve travelers and employees, not the public at large. Therefore, the Port Authority had the power to make whatever reasonable regulations it thought necessary to avoid congestion and disruption to passengers seeking to board planes, claim luggage, or purchase tickets.
The dissenters, led by Justice David H. Souter, argued that an airport was undeniably a public facility and that solicitations could not be banned inside or outside of it. Souter argued that the airport lounge was the modern-day equivalent of a city park and that his colleagues should treat it as such.
At the same time, in an unsigned opinion, the justices did strike down by a 5-to-4 vote the Port Authority's ban on the distribution of literature. In this instance, Justice Sandra Day O’Connor agreed that airports were not public forums but that a ban on the distribution of literature failed to meet the minimal test of reasonableness. Chief Justice Rehnquist led the dissenters in asserting that O’Connor had made a distinction without a difference. There was no practical difference, Rehnquist argued, for a weary traveler whether a person was attempting to avoid a delay caused by someone soliciting money as opposed to someone foisting literature on him or her.