Analysis of the legal challenge to airport regulation restricting assembly
Airport Authorities in the United States have always been engaged in legal disputes with citizens over the use of the airport facilities and the conflict such regulations pose with the rights of citizens. The analysis of the Bruce Rocker case attempts to grapple with this never ending conflict and the underlying legal issues usually at hand. The regulation by the Baltimore International Airport in this instance of restricting the assembly of more than 30 people if their business is not travel-related lays bare a number of issues that touch fundamentally on the rights of the citizens. In addition, there arise several ramifications not only on the legal cases and the rights of individuals, but also on the future of businesses engaged in similar trade.
Indeed, the Rocker case raises salient legal issues that touch on the fundamental freedom of speech, freedom of assembly, right of publicity and the determination of whether airports are public forums or non-public forums. More so, it seeks to define the scope of government, if any, in limiting these fundamental freedoms, and the validity of such legislation.
In this case analysis, an American rock singer, Bruce Rocker, fresh from a year long humanitarian trip in South America plans to return home at Maryland with a plan to launch his political career. His ardent fans back home want to show his support by converging at the Baltimore International Airport where he is set to address them for 15 minutes on his political plans. Being an international airport of repute, Baltimore Airport enjoys serving several airlines and is lined with numerous gates, grassy knolls and parking lots. The planned gathering is expected to be graced by 200 of his supporters, which runs afoul of the regulation set by the airport authority. The airport, owned and operated by the State of Maryland Department of Transportation, has in place Regulation B which forbids "any gathering of more than 30 people anywhere in the airport unless travel related”. This is in a bid, the regulation avers, to avoid congestion and promote the smooth operation of the airport operations. The penalty set for the violation of this regulation is a fine of $1000 or a 6 months jail term. These fans have sought permission from the authority to hold the function which has been denied. The authority, in refusing the request by Rocker’s fans, predicated their decision primarily and solely on Regulation B. The fans are now aggrieved and are now seeking relief from the courts by way of an invalidation of Regulation B to enable the performance of the function.
A plethora of legal issues are at issue in this case. Firstly, by restricting the right to hold a gathering, the now impugned regulation flies in the face of the First Amendment rights of freedom of assembly and speech. The freedom of speech as envisaged in the Speech and Press Clauses of the First Amendment are being impinged on by this legislation. Another issue that presents itself in this legal challenge is the classification of the airport as either a public forum or a non-public forum, for purposes of determining whether there should be any restriction on such rights. Equally important is the issue whether an airport is a transportation node similar to the streets and railways to fit it within the class of public fora. Even where it is found to be a non-public forum, is the restriction on the fundamental freedoms reasonable? In addition, the case arouses the question whether the right of publicity, as enshrined in the First Amendment of the US Constitution, of Mr. Rocker as well as his fans has been infringed. In the event that the court finds that the airport is a non-public forum, it is then imperative to explain if the restriction as set out by Regulation B is reasonable and does not concern itself with the neutrality of the content of the anticipated gathering.
In the case of Rocker, as outlined hereabove, several salient legal issues will come for consideration before the courts. The first issue of consideration is the question whether the freedom of speech of the plaintiffs in this case and Mr. Rocker as embodied in the First Amendment has been trampled upon. It is not in contention that the plaintiffs have been denied the chance to converge and exercise their freedom of speech and assembly. They also seek to exercise their political rights to support their preferred candidate. It is axiomatic that the plaintiffs will predicate their claim on the infringement of this right, inter alia, other grounds. Was the airport authority justified in denying the request of Mr. Rocker’s fans based on the provisions of Regulation B? Better still, is Regulation B that proscribes the convergence of more than 30 people inconsistent with the First Amendment of the Constitution to warrant being struck down by the courts for invalidity? While determining this question, it is imperative to note that even the First Amendment rights are not absolute. They are not rights without limitation. They can be limited in some circumstances.
However the right of expressive activity as embedded therein is not limited in the case of a public forum in contrast to a non-public forum. This takes us into the second dilemma that faces the courts. Before determining the first issue on the freedom of speech and assembly, it then becomes necessary to explore the point whether the airport is a public forum or not. The Baltimore Airport is owned and operated by the State of Maryland Department of Transport, and is such a government entity the question then becomes: is the airport premises where Mr. Rocker and his fans wanted to hold a meeting a traditional public forum, a designated public forum or a non-public forum. In answering this query, I examine the classification as done by the courts which owes its origins in Justice Roberts' sweeping dictum in Hague v Committee for Industrial Organization. However, it is in the later decided cases like that of Cornelius v. NAACP Legal Defense & Ed. Fund, Inc. where the classification doctrine as set out by Justice Roberts’ was explained with clarity. It describes a three-part analysis to designate property owned by the government, as is the case in this instance, as either traditional public forum, designated public forum or a non-public forum. The court has held a traditional public forum to be a public property whose principal purpose is the free exchange of ideas.
On close scrutiny, the Baltimore airport is definitely not within this ambit. The principal purpose of its existence is air travel and therefore does not make the cut of a traditional public property. That being the case, we examine the second class. The Court stated that a designated public forum involves those property which the government has intentions of opening for public discourse. Using this classification, it appears that the government did not intend the opening of the airport for public discourse and hence the regulation in place. That pushes us to the last classification of a non-public forum. The court has previously made the point that any property that does not fall in any of the two classes explained here above are non-public forums. It may therefore be safe to assume, using this analysis, that the Baltimore airport in this case is a non-public forum. This leads us to the next consideration. The court also has been of the view that non-public forums are subject to minimal First Amendment protection. In this respect, it follows a fortiori that the rights of freedom of speech, assembly among others are subject to limitation by the government as long as it is reasonable and viewpoint neutral. It has been held in the case of United States v Kolinda that the restriction by the government need only be reasonable and not onerous.
This is because the Authority could in turn argue that the same would open the floodgates for similar persons to make their demands and hence make the whole program unsustainable and untenable. Regulation B is also discriminative in the sense that it places a caveat on assembly of more than 30 people if they are not in a travel-related business. This presents an interesting twist to the case in that the plaintiffs could seek to prove to the court that their assembly would not cause congestion as argued by the authority the same away passengers in excess of the number would not cause the congestion. Basing their claim on the blanket prohibition of Regulation B to non-travelers, the plaintiffs could proffer that the same is discriminatory and amounts a blatant violation of the First Amendment rights without cause. Indeed, in the case of Board of Airport Comm'rs of Los Angeles v. Jews for Jesus, Inc ,the court struck down a legislation prohibiting all First Amendment rights in Los Angeles International airport without even going into the trouble of determining whether it was a public forum or not. This supports the contention that the courts will not countenance a curtailment of the rights of individuals by the government, whatever the class of government property. Since the content of the agenda of the person who is restricted by a regulation should have no bearing on the decision made by the authority, the political activities of Mr. Rocker do not affect the case.however, it would have had a profound effect if the authority based its rejection of the plaintiff’s request on his political involvement since it would have taken into account of extraneous effect. Such a move would essentially negate the decision which would incline the courts to invalidate such a decision.
Having exhausted the issues of First Amendment rights and the classification of the airports, I now turn onto the third issue-that of airports as transportation nodes similar to that of railways and streets. This argument would be propagated by the plaintiffs with the sole aim of convincing the court that airports fall in the same class as streets and railways and are thus public forums. This would have the effect of fundamentally shifting the case and ensuring that First Amendment rights are not limited. This would mean that the purported limitation posed by Regulation B on freedom of speech and assembly is a nullity. Can an airport be equated to a transportation node like railways or streets? The answer would probably be in the negative for three principal reasons. One, the security check normally done at the airports is absent at bus terminals and train stations.
Secondly, public access to air terminals like Baltimore is frequently restricted by the relevant authority unlike other transportation centers. More so, airports are commercial establishments funded by travelers funds, which this regulation seeks to ensure are catered for well. It is the contention that being commercial enterprises they need to give their clients the best service for their money and as such differs fundamentally from railways and road terminals. For these reasons it is likely that the courts will find that airports are not in the same class as bus terminals and railways as transportation nodes and thus not a public forum. This could be supported by the decision in the case of International Society for Krishna Consciousness, Inc v Lee, which held that traditionally, roads and railway terminals were privately owned.
Analysis of current and future implications of case
The decision of the court on whether an airport is a public forum or not, and whether the right of expression, assembly and right of publicity is unabridged has far reaching ramifications not only in the legal world but also in the business world. In the event that the airport is deemed a non-public forum and thus subject to limitation of the First Amendment rights, there would possibly arise the need by other airports to enact similar legislation so as to eschew the disturbance that would otherwise be caused by unwelcome intruders like the plaintiffs. It is likely that airport authorities would issue instructions and notices banning most of the rights anchored in the First Amendment of the US Constitution and rather focusing on the welfare of its clients in order to accrue better returns. In the legal circles, similar decisions would likely be influenced in a similar way following the doctrine of judicial precedence. As a matter of fact, individual rights would suffer a great deal. There would be notable absence of meetings and assembly by non-travelers around airport facilities for fear of sanctions of the law as set by the relevant regulation.
In the long-term, there would be a shift in the returns made by businesses. Air travelers would get preferential treatment from airport authorities since they would not be in competition with non-travelers.On the other hand, the same intruders would be notable in other for a regarded as public forums by the law.
Personal opinion on the case.
The Rocker case would probably also turn on other considerations. It is my submission that the classification adopted by the courts in its determining whether government property is a public forum or not, is flawed. I am of the view that the public forum analysis as propounded by the courts is incompatible with underlying principles of the First Amendment to the Constitution. It leaves the government with the unbridled power to restrict the freedom of speech on its property by merely declaring it non-speech related in purposes.Yet; it need be borne in mind that the First Amendment is a limitation on government rather than a grant of power on the state. This means that the law is designed to restrain the government from arbitral acts of controlling speech. Contrary to these very tenets critical for democracy, the public forum doctrine employed by the courts has the effect of giving government to the power to restrict speech by fiat.
The courts should in turn accord public forum status to other forms of property-their tradition, history and origin; notwithstanding.
This should be done where the physical characteristics of the property and public access and uses allowed by government indicate that the freedom of expression would be compatible and appropriate with such uses. In our case here, the grassy knoll would provide a venue for such public access and use. Similarly, it is crucial to test whether the right of speech would tend to interfere with the business of the airport. Based on the present lawn and the fact that Regulation B does not prohibit non-travelers, indicate that the assembly and speech are not disruptive of its core activity. The fact that these physical characteristics and uses are always considered in a vast majority of cases (see Cornelius case, supra and Kokinda case, supra) supports my proposition. On this footing, Baltimore airport and other similar facilities should be held as public forums and therefore the right to speech, assembly and publicity only limited in exceptional circumstances.
As outlined in this analysis, the doctrine used by courts needs a review to cure its fallacies. The traditional public forum for instance, defined as those whose principal purpose is public discourse, is flawed. A case in point is Schneider v State which recognized the main purpose of streets and sidewalks as facilitating transportation. Ironically, streets and sidewalks have been held to be traditional public forums thereby contradicting the very precept set by the courts. In the same breath, recreational public parks are used for both beauty and public discourse, again failing to meet the test laid down in Cornelius v. NAACP Legal Defense & Ed. Fund, Inc. Of equal importance, is that a shift of this approach would bring with it a whole different application of fundamental rights as enshrined in the First Amendment, in the airports.
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