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Free Speech at LAX Is More Than a 1st Amendment Issue

May 04, 1997|Barry A. Fisher | Barry A. Fisher, an attorney specializing in constitutional law, opened LAX to free speech in 1974

In 1974, the Los Angeles International Airport was, under a California Supreme Court injunction, brought under the umbrella of 1st Amendment protection, including solicitation of contributions. Twenty-three years later, on April 1, the City Council ended the protection, making it a crime for nonprofit groups--political, religious or charitable--to solicit financial support or distribute literature for donation or sale. The ordinance will restart the legal fight over the concept of "public forum"--places where people are free to go to express their views and seek support for their causes. But the battle also will spotlight a little-noticed issue of land-use policy.

In recent decades, land-use planning has taken into account questions of environment, race and social inequality. Now, such planning must address free speech, because the ordinance, in effect, diminishes public "free-speech space," which is critical to democracy's survival.

Privatization of public space, coupled with the eclipse of old-fashioned downtowns, threaten to choke off traditional places where speech is allowed. Robust free speech requires the oxygen of pedestrian flow in public spaces. Today, more value is placed on private space that appears to be public. In other words, the local mall.

Since ancient times, transportation centers have been places for the exchange of ideas. In the United States, ports and railroad stations served this purpose well into this century. Today, airports are the prime access points for people wanting to communicate with a wide variety of nationalities and cultures, or from whom they seek support for their ideas.

Paralleling this postwar development has been the accelerating disappearance of usable public space. Downtown Los Angeles, for example, has long since ceased to function as the area identified with the city itself. Nowadays, downtown is little more than another local label; downtown "business" is dispersed throughout the region. Even within downtown, newer constructions are known as "centers" or "plazas."

Outlying shopping centers gradually siphoned off downtown's pedestrian life; whole artificial "cities" and "streets"--Century City, CityWalk, Via Rodeo, San Diego's Horton Plaza and so forth--virtually depleted civic centers. The result is a vacuum of public space. The U.S. Supreme Court's anointment, in 1939, of "streets and parks" as the protected places for "communicating thoughts between citizens" nowadays looks positively quaint, for these are not the places where people can be found.

When it comes to space still owned by the public, airports are now the place offering the all-too-rare opportunity to meet and talk, one to one, with people of all backgrounds and walks of life.

The ascendancy of airports as centers of public communication intersects with the decline in the ability and willingness of governments to pay for public health, safety and welfare. The private, nonprofit sector has been urged to pick up some of these responsibilities, and it has responded best as it can. But to function effectively, it needs constant financial support. Yet, many grass-roots organizations cannot afford expensive fund-raising techniques like telephone solicitors, direct mail, radio and television, or billboards. Instead, whether from principle or practicality, they do it the old-fashioned way--going in person into public places to seek support directly from individuals.

The courts have wavered in their willingness to recognize the importance of speakers' rights to go where the people are. In 1946, the Supreme Court held that a company town could not bar religious solicitors from its sidewalks, contending that "the more an owner opens up his property" to the public, the more he must respect the public's interest." In the late 1960s, the court extended this thinking to shopping centers. By the 1970s, though, it had retreated to a sharp public-private line, concluding that private owners generally had no responsibility to allow speech at their publicly used facilities, although some state courts, including California's, have, to varying degrees, mitigated this result.

For public property, too, the Supreme Court first embraced, then turned away from a flexible, speech-maximizing approach. Accordingly, it has adopted a set of rigid, legal categories that pay little attention to the realities of where audiences are.

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