[PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                              FOR THE ELEVENTH CIRCUIT

                                 ________________________
                                                                           FILED
                                        No. 97-5304                U.S. COURT OF APPEALS
                                 ________________________            ELEVENTH CIRCUIT
                                                                             2/18/03
                              D. C. Docket No. 96-28-CIV-WMH            THOMAS K. KAHN
                                                                            CLERK

ISKCON MIAMI, INC., a Florida nonprofit
religious corporation, VERNE MEIS, an individual,
                                                                          Plaintiffs-Appellants,

       versus

METROPOLITAN DADE COUNTY, FLORIDA,
GARY DELLAPA, Aviation Director of Miami
International Airport,
                                                                         Defendants-Appellees.

                                 ________________________

                         Appeal from the United States District Court
                             for the Southern District of Florida
                               _________________________

                                        (July 27, 1998)


Before EDMONDSON and BARKETT, Circuit Judges, and ALARCÓN*, Senior Circuit Judge.




____________________
      *Honorable Arthur L. Alarcón, Senior U.S. Circuit Judge for the Ninth Circuit, sitting by
      designation.
BARKETT, Circuit Judge:
        Appellants ISKCON Miami, Inc. and Verne Meis (collectively, “ISKCON”)1 appeal from

an adverse summary judgment order rejecting ISKCON’s First Amendment challenge to Dade

County regulations prohibiting solicitation of funds and the sale of literature at Miami

International Airport (“MIA”) and restricting the areas where people may distribute free

literature at the airport. In addition to arguing that the bans on solicitation and sale of literature

are unconstitutional restrictions on speech, ISKCON argues that the areas within MIA where

ISKCON may distribute free literature are inadequate and that County regulations impermissibly

grant the Director of MIA unfettered discretion to select the areas for such First Amendment

activity.

                                          BACKGROUND

        In June 1995, Dade County amended its regulations regarding First Amendment activity

at MIA. Section 25-2.2(a) of the Code, the principal regulation challenged here, provides:

                No person shall solicit alms or contributions of money or other
                articles of value, for religious, charitable, or other purpose, and
                receive money or other articles of value, whether in the form of
                cash, checks, credit or debit vouchers or any other form of
                negotiable instruments in the public areas of the Terminal.

Metropolitan Dade County, Fla., Code, ch. 25, § 25-2.2(a) (1995). ISKCON also challenges §

25-2.2(c) of the Code, which gives the Director of MIA

                the authority to prescribe from time to time restrictions applicable
                to First Amendment activities at the Airport. Such restrictions . . .
                may include, but not be limited to, identifying specific locations of
                First Amendment zones in the Terminal Building and other Airport
                facilities, limiting the number of persons permitted in such zones,


   1
   “ISKCON” is an acronym for the International Society for Krishna Consciousness. Verne
Meis is a member of ISKCON.

                                                   2
               and providing a method for resolving conflicting requests for such
               zones.

Under § 25-2.2(d), these restrictions “shall be reasonable and appropriate, and made only after a

finding by the Director that the restrictions are necessary to avoid injury, to persons or property,

or to assure the safe and orderly use of the Airport facilities by the public.”

       Members of ISKCON espouse the theological and missionary views of the Krishna

consciousness religion. In accordance with the importance of scripture to the Krishna religion,

Krishna adherents are required to venture into public places to distribute religious literature and

solicit support for the religion, a practice known as sankirtan. ISKCON has been practicing

sankirtan at MIA since 1974. Shortly after the new regulations were passed, ISKCON filed this

action. ISKCON argues that the regulations unconstitutionally prohibit solicitation of funds for

the Krishna religion and the sale of religious literature throughout MIA, including the sidewalks

and parking lots outside the terminal buildings. ISKCON also argues that the Director has

unreasonably restricted ISKCON’s ability to engage in the free distribution of literature and

other First Amendment activities at MIA by limiting the places where ISKCON may conduct

such activities to eight areas interspersed along the second level of MIA – where the ticketing,

security, arrival and departure gates, and waiting areas are located. The district court decided

this case on cross-motions for summary judgment, upholding the regulations against ISKCON’s

First Amendment challenge. We affirm.

                                           DISCUSSION

       In determining whether the regulations at MIA withstand constitutional scrutiny, we are

guided by the Supreme Court’s decisions in International Society for Krishna Consciousness,

Inc. v. Lee, 

(1992), and Lee v. International Society for Krishna Consciousness,

                                                  3
Inc., 

(1992) (per curiam) (collectively, “Lee”).2 In Lee, the Supreme Court

considered a challenge brought by ISKCON to restrictions on the sale and distribution of

literature and solicitation of contributions in New York’s airports.

       In an opinion authored by Chief Justice Rehnquist, a majority of the Court found the

solicitation ban constitutional. Because the plaintiffs in Lee sought access to government

property to engage in protected speech, the Court analyzed the constitutionality of the regulation

under the public forum doctrine. Under this doctrine, regulations on speech in traditionally

public fora such as municipal sidewalks and parks are subject to strict scrutiny, as are regulations

in fora designated by the government to be used for expressive activities. 

Cornelius v.

NAACP Legal Defense & Educ. Fund, 

, 800 (1985); Perry Educ. Ass’n v. Perry

Local Educators’ Ass’n, 

, 45 (1983). All other government property is nonpublic,

and the government may restrict speech in nonpublic fora as long as the restrictions are

reasonable and viewpoint-neutral. 

. The Court in Lee concluded that the

airport terminals at issue were nonpublic fora, reasoning that airport terminals could not qualify

as public fora, because, “given the lateness with which the modern air terminal has made its

appearance, it hardly qualifies for the description of having ‘immemorially . . . time out of mind’

been held in the public trust and used for purposes of expressive activity.” 

(quoting Hague v. Committee for Indus. Org., 

, 515 (1939)). “[I]t cannot fairly be

said that an airport terminal has as a principal purpose promoting ‘the free exchange of ideas.’

To the contrary, . . . Port Authority management considers the purpose of the terminals to be the


   2
    The several opinions which comprise the Court’s decisions in the two Lee cases are reported
separately in the official Supreme Court reporters. For the sake of convenience, we refer to all
of these opinions collectively as “Lee.”

                                                 4
facilitation of passenger air travel, not the promotion of expression.” 

(quoting

).

       Although restrictions on speech in nonpublic fora are not subject to strict scrutiny, “[t]he

Government, even when acting in its proprietary capacity, does not enjoy absolute freedom from

First Amendment constraints.” United States v. Kokinda, 

, 725 (1990) (plurality

opinion). Restrictions must still be reasonable and “not an effort to suppress the speaker’s

activity due to disagreement with the speaker’s view.” 

. At the same time,

“[t]he restriction ‘need only be reasonable; it need not be the most reasonable or the only

reasonable limitation.’” 

(quoting 

(plurality opinion)).

       Having determined that the airports are nonpublic fora, the majority then upheld the ban

on solicitation. Noting the “disruptive effect that solicitation may have on business,” 

found the ban to be reasonable. “Passengers who wish to avoid the solicitor may have to

alter their paths, slowing both themselves and those around them. The result is that the normal

flow of traffic is impeded.” 

-84. The Court also found that:

       face-to-face solicitation presents risks of duress that are an appropriate target of
       regulation. The skillful, and unprincipled, solicitor can target the most vulnerable,
       including those accompanying children or those suffering physical impairment and who
       cannot easily avoid the solicitation. . . . The unsavory solicitor can also commit fraud
       through concealment of his affiliation or through deliberate efforts to shortchange those
       who agree to purchase. . . . [T]he targets of such activities frequently are on tight
       schedules . . . . mak[ing] such visitors unlikely to stop and formally complain to airport
       authorities.

Because of the risks and disruptions created by solicitation, the Court in Lee

concluded that although solicitation is a form of speech protected by the First Amendment, the

Port Authority’s prohibition on solicitation inside the airport terminals was reasonable.




                                                 5
       In contrast, a separate majority of the Court in Lee found the ban on distribution of

literature at the airports unconstitutional. Five Justices concurred in the Court’s judgment with

respect to the distribution ban, albeit for different reasons. Justices Kennedy, Souter, Blackmun

and Stevens treated the airport terminals as public fora, and found the distribution ban invalid

under the strict scrutiny test. Writing separately, Justice O’Connor agreed with the majority in

the first Lee decision that airports are not public fora, but she concluded that the ban on

distribution was an unreasonable restriction on speech.

       While the regulations in question in Lee were phrased to prohibit both the sale and the

distribution of literature,3 no majority of the court directly addressed the ban on the sale of

literature. The per curiam opinion in Lee stated only that it was affirming “the judgment of the

Court of Appeals holding that the ban on distribution of literature in the Port Authority airport

terminals is invalid under the First Amendment.” 

.4 Although in his


   3
    The regulations stated:

       1. The following conduct is prohibited within the interior areas of buildings or structures
       at an air terminal if conducted by a person to or with passers-by in a continuous or
       repetitive manner:

       (a) The sale or distribution of any merchandise, including but not limited to jewelry, food
       stuffs, candles, flowers, badges and clothing.

       (b) The sale or distribution of flyers, brochures, pamphlets, books or any other printed or
       written material.

       (c) The solicitation and receipt of funds.

(citation omitted).
   4
    Similarly, in its opinion in Lee, the Court of Appeals for the Second Circuit mentioned only
the ban on distribution, not sales. International Soc’y for Krishna Consciousness v. Lee, 

, 582 (2d Cir. 1991) (“We therefore hold that the Port Authority must provide

                                                    6
separate concurrence Justice Kennedy specifically distinguished the ban on solicitation (which

he found permissible) from the ban on the sale of literature (which he declared impermissible),

(Kennedy, J., concurring), no other Justice joined this portion of Justice Kennedy’s

opinion. Justice O’Connor, the only Justice who found the distribution ban unconstitutional

under the majority’s nonpublic forum analysis, discussed only distribution, emphasizing that the

problems of disruption associated with solicitation were not present in the case of distribution.

See 

(O’Connor, J., concurring). Thus, the precise holding of Lee as to the ban on

the sale of literature is unclear.

        Notwithstanding the ambiguous nature of this aspect of the Court’s holding, we conclude,

based on the various opinions and statements in Lee and in other Supreme Court decisions, that

the same problems that justify a governmental restriction on solicitation in a nonpublic forum

may render a similar prohibition on the sale of literature reasonable. In upholding restrictions on

solicitation, the Court has focused on the inconvenience, disruption, and intrusion associated

with the act of engaging in the immediate exchange of money with passersby, in contrast to

merely handing them literature:

        Solicitation requires action by those who would respond: The individual solicited must
        decide whether or not to contribute (which itself might involve reading the solicitor’s
        literature or hearing his pitch), and then, having decided to do so, reach for a wallet,
        search it for money, write a check, or produce a credit card. . . . As residents of
        metropolitan areas know from daily experience, confrontation by a person asking for
        money disrupts passage and is more intrusive and intimidating than an encounter with a
        person giving out information. One need not ponder the contents of a leaflet or pamphlet
        in order mechanically to take it out of someone’s hand, but one must listen, comprehend,
        decide, and act in order to respond to a solicitation.




reasonable access to the terminals for the distribution of literature.”).

                                                  7


(plurality opinion); Lee, 505 at 683 (quoting Kokinda). The sale of

literature similarly requires that the person asked to buy stop, listen to the sales pitch,

contemplate the item offered for sale, and then act to make the purchase. See Heffron v.

International Soc’y for Krishna Consciousness, Inc., 

, 665 (1981) (Blackmun, J.,

concurring in part and dissenting in part) (“[C]ommon-sense differences between literature

distribution, on the one hand, and solicitation and sales, on the other, suggest that the latter

activities present greater crowd control problems than the former.”) (emphasis added). This

description of the problems associated with the sale of literature in a busily traversed airport

“rings of ‘common sense,’ which is sufficient . . . to uphold a regulation under reasonableness

review.” 

(plurality opinion) (internal citation omitted) (quoting

(Blackmun, J., concurring in part and dissenting in part)).

       In accordance with the reasoning set forth in Lee, we conclude that the regulations

prohibiting solicitation and sale of literature at MIA are reasonable restrictions on speech that

withstand appellants’ constitutional challenge.5 First, Lee establishes that MIA is a nonpublic

forum. Although MIA might serve a number of commercial and other purposes, see 

89 (O’Connor, J., concurring), the main or primary purpose of the airport is to facilitate air



   5
    At the outset, we reject ISKCON’s argument that the ban on solicitation and sale of literature
at MIA is an impermissible content-based regulation. According to ISKCON, the regulation is
content-based because it singles out a particular type of speech--specifically, speech that
includes a request for funds. We note that in a nonpublic forum, in contrast to a traditional or
designated public forum, the government may draw distinctions based upon content in order to
preserve government property for its intended uses. See 

; 

. Of course, viewpoint discrimination is still impermissible. See 

.
In any event, the Court has held that this type of prohibition, aimed at the abusive practices
associated with solicitation,does not discriminate based upon either content or viewpoint. See

(Kennedy, J., concurring); 

(plurality opinion).

                                                   8
travel, 

(majority opinion). Contrary to ISKCON’s assertion that MIA differs from the

New York airports in ways that render MIA a public forum, Lee’s determination that airports are

not public fora was not limited to the particular airports at issue, but constituted a categorical

determination about airport terminals generally. See Jacobsen v. City of Rapid City, S.D., 

, 662 (8th Cir. 1997); Air Line Pilots Ass’n, Int’l v. Department of Aviation , 

, 1156 (7th Cir. 1995); Multimedia Publ’g Co. of S.C. v. Greensville-Spartansburg Airport

Dist., 

, 158-59 (4th Cir. 1993). ISKCON has failed to point to any unique feature

of MIA that distinguishes it from other airports in general.

       Second, the ban on solicitation and sale of literature for the immediate receipt of funds at

MIA is a reasonable response to the County’s concerns regarding the risks associated with these

activities.6 In this case, Dade County asserts that the ban on solicitation and sale of literature

throughout MIA was implemented to address repeated instances of abusive conduct and

misrepresentations on the part of ISKCON members engaged in solicitation and the sale of

literature at MIA.7 The Court in Lee recognized the potential for fraud and coercion as valid

reasons for banning solicitation in airports. 

(“[F]ace-to-face solicitation

presents risks of duress that are an appropriate target of regulation.”); 

(O’Connor,



   6
    ISKCON contends that, on its face, § 25-2.2 is not limited to solicitation for the immediate
receipt of funds. However, Dade County interprets the regulation to apply only to solicitation
for the immediate receipt of funds, and we use the County’s interpretation for purposes of our
constitutional analysis. See Ward v. Rock Against Racism, 

, 795-96 (1989).
   7
    ISKCON argues that its past misconduct at MIA does not justify the ban, and suggests that
the ban here operates as a prior restraint. This argument is inapposite, and, in any event, lacks
merit. The County amended its regulations to address the risks of fraud and harassment that
generally accompany solicitation and sales; the past history of coercion in solicitation and sales
at MIA merely strengthens Dade County’s argument that the ban is a reasonable one.

                                                  9
J., concurring). Moreover, as the Court in Lee explained, solicitation is in many ways inherently

incompatible with the primary purpose of an airport--the facilitation of air travel. Solicitation

causes delays and disruptions to travelers, who are often heavily laden with baggage and running

on tight schedules, and, therefore, is significantly more intrusive than the mere handing out of

literature. See 

id at 689 (O’Connor, concurring). As discussed above, these same

concerns apply with equal force to the sale of literature in airport thoroughfares. For the reasons

set forth in Lee, we conclude that the prohibition on solicitation and sale of literature at MIA is a

reasonable restriction on speech.

       ISKCON offers a number of arguments that, it contends, distinguish the ban at issue here

from the ban upheld in Lee and support its assertion that the prohibitions at MIA are

unconstitutional. For example, ISKCON argues that congestion was the dispositive factor in

Lee, whereas in this case Dade County’s decision to implement the ban on solicitation and sales

was motivated by concerns about fraud and misrepresentation. We reject ISKCON’s argument

that Lee turned solely on the issue of congestion. Lee upheld the solicitation ban for a number of

reasons, including problems posed by solicitation in a congested airport terminal. But Lee did

not rest on this ground alone; it also emphasized the coercive aspects of face-to-face solicitation

that make regulation appropriate. As Chief Justice Rehnquist noted for the Court, “[t]he

unsavory solicitor can also commit fraud through concealment of his affiliation or through

deliberate efforts to shortchange those who agree to purchase. . . . [T]he targets of such activity

frequently are on tight schedules . . . . mak[ing] such visitors unlikely to stop and formally

complain to airport authorities.” 

Thus, even if congestion was not a motivating factor

behind the County’s decision to amend its regulations, we conclude that the County acted


                                                 10
reasonably in implementing the bans on solicitation and sales based upon the other problems

associated with these activities, as described by the Court in Lee.

       ISKCON further argues that any problems associated with solicitation or sale of literature

can be addressed by regulating these activities, rather than banning them outright. We reject

ISKCON’s contention that the ban on solicitation is unreasonable because of the possibility of

less restrictive alternatives. As Court has repeatedly noted, a restriction on speech in a nonpublic

forum will be upheld as long as it is reasonable; “it need not be the most reasonable or the only

reasonable limitation.” 

(plurality opinion).

       ISKCON also argues that the MIA regulations are invalid even under the holding in Lee

because the ban on solicitation and sale of literature extends to the sidewalks and parking lots

surrounding the MIA terminal buildings. ISKCON correctly points out that the ban at issue here

is broader than the one in Lee since the ban is not limited to the terminal buildings. In Lee, the

Court noted that, because solicitation was still allowed on the much-traversed sidewalks

surrounding the airport terminals, “the resulting access of those who would solicit the general

public is quite complete.” 

It is true that both the Supreme Court in Lee and this

court have considered the availability of nearby places open for expressive activity as a factor

weighing in favor of the reasonableness of restrictions on speech in a nonpublic forum. See 

Daniel v. City of Tampa, Fla., 

, 550 (11th Cir. 1994) (footnote omitted)

(noting, in upholding ban on distribution of literature at public housing complex, that plaintiff

“has unlimited access to the City-owned streets and sidewalks adjacent to the housing complex,

allowing him an alternative means for distributing information to residents”); United States v.

Gilbert, 

, 886 (11th Cir. 1991) (noting that a factor bearing on the reasonableness of


                                                 11
a restriction “is the availability of alternative channels of communication”); United States v.

Belsky, 

, 1489 n.9 (11th Cir. 1986) (upholding ban on solicitation on postal

sidewalks, noting that “the municipal sidewalks and streets adjoining the postal buildings remain

open as public forums for expressive activity”).

       The presence of nearby physical space available for expressive activity, however, is

merely one factor among many in assessing the reasonableness of speech restrictions in

nonpublic fora, and we conclude that in this case, the regulations prohibiting solicitation and

sales anywhere on airport property constitute a reasonable restriction in the context of the

particular nature and purpose of MIA. In Kokinda, the Supreme Court upheld a Postal Service

regulation that banned solicitation anywhere on postal property, including the post office

buildings and the nonpublic sidewalks surrounding the post offices. 

(plurality opinion). Like the sidewalks adjoining the post office at issue in Kokinda, the

sidewalks and parking lots adjacent to the Miami airport terminals are nonpublic fora; the

sidewalks and parking lots are intended by the County to be used for air travel-related purposes,

“not to facilitate the daily commerce and life of the neighborhood or city.” 

(plurality opinion). The County maintains that the incompatibility between solicitation and

sales and the purposes of the airport reaches its zenith on the sidewalks outside the terminal:

       The sidewalks are narrow and extremely congested areas where passengers check their
       baggage at fixed booths, skycaps wheel carts full of luggage, conveyor belts are used to
       move baggage and packages, and taxis, vans, and private vehicles drop off and pick up
       passengers. Due to the layout of the Airport, even a brief delay of persons in these areas
       can lead to extreme congestion and danger of an accident.




                                                12
Affidavit of Winona (Dickie) K. Davis, R-1-19-Exh. 1 ¶ 14. It is certainly reasonable for the

County to conclude that solicitation and sales of literature would be inconsistent with the

particularly hectic nature of the airport sidewalks at MIA.

       ISKCON recognizes the problems associated with permitting solicitation and sales of

literature on the sidewalks surrounding the terminal buildings, but argues that the County’s

regulations must permit solicitation somewhere at MIA to pass constitutional muster. As noted

above, this contention is contradicted by the Court’s opinion in Kokinda, which upheld a total

ban on solicitation in the nonpublic fora of post office buildings and sidewalks. Likewise, other

courts have upheld regulations that completely ban a particular type of expressive conduct from

a nonpublic forum as a reasonable exercise of governmental authority to preserve the forum for

its intended uses. See General Media Communications, Inc. v. Cohen, 

, 284-85 (2d

Cir. 1997) (upholding constitutionality of congressional act prohibiting the sale of sexually

explicit materials at military exchanges), cert denied, 

(1998); 

(finding injunction prohibiting personal protest inside courthouse and in adjoining portico

constitutional). Moreover, the ban in this case does not totally prohibit solicitation or sales of

literature. Instead, the regulation only bans solicitation and sales followed by the immediate

receipt of funds. Thus, ISKCON is still free both to solicit funds in the airport by

pamphleteering and asking travelers to mail in their contributions, and to offer their literature for

sale through mail order or in other locations. While these alternatives may be less effective than

ISKCON would prefer, ISKCON’s ability to seek contributions, for example, by distributing

“preaddressed envelopes along with a plea to contribute money,” 

(Kennedy,

J., concurring), strengthens our conviction that the ban on solicitation and sales of literature is


                                                  13
constitutional. Accord 

(“The First Amendment does not demand

unrestricted access to a nonpublic forum merely because use of that forum may be the most

efficient means of delivering the speaker’s message.”).

       Unlike the regulations in Lee, the regulations challenged here do permit the distribution

of free literature in MIA; however, persons wishing to distribute literature are limited to eight

areas in the airport designated by the Airport Director as “First Amendment zones.” The eight

First Amendment zones are placed throughout the airport terminal, away from ticket lines, metal

detectors, and exits and entrances, but adjacent to the flow of passenger traffic. ISKCON argues

that these zones are insufficient and inadequate. As a general matter, as Dade County notes,

airports may limit First Amendment activities to particular zones in the terminal buildings. See

(O’Connor, J., concurring); see also 

(upholding regulation restricting sale or distribution of literature on fair grounds to certain fixed

locations). Such regulations are valid place restrictions on speech. See 

(O’Connor, J., concurring). In support of its argument that MIA’s First Amendment zones are

insufficient, ISKCON introduced expert testimony that the current zones are not the best zones

for the promotion of expressive activities. As Dade County points out, however, absent more

concrete evidence showing that the areas for speech activities at MIA are insufficient, questions

concerning the allocation of space for speech activities in the airport are for the Director of MIA.

See 

(“‘The validity of [time, place, or manner] regulations does not turn

on a judge's agreement with the responsible decisionmaker concerning the most appropriate

method for promoting significant government interests’ or the degree to which those interests

should be promoted.”) (alteration in original) (quoting United States v. Albertini, 

,


                                                 14
689 (1985)); Clark v. Community for Creative Non-Violence, 

, 299 (1984) (noting

that the First Amendment does not give the judiciary “the authority to replace the Park Service as

the manager of the Nation’s parks or endow the judiciary with the competence to judge how

much protection of park lands is wise”).

       Finally, ISKCON argues that § 25-2.2(d) impermissibly grants the Director of MIA

unfettered discretion to select the areas within MIA where First Amendment activities are

allowed. As noted above, airport authorities may legitimately set time, place, and manner

restrictions on the exercise of First Amendment activities. However, the discretion to set such

restrictions cannot be so broad that it “becom[es] a means of suppressing a particular point of

view.” 

. Because the challenged provisions concern the ability of the

Director to restrict the areas in which distribution activities may take place, not the ability of the

Director to exclude certain persons from those areas, we reject ISKCON’s argument that the

authority granted to the Director by the regulations is facially unconstitutional. See 

n.5 (rejecting argument that city sound-amplification guideline operated as a prior

restraint on speech, because guideline “grants no authority to forbid speech, but merely permits

the city to regulate volume to the extent necessary to avoid excessive noise”).

       Accordingly, the judgment of the district court is AFFIRMED.




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