Adapted from Respondent's Brief, Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992).
Since the 1974 decision in Lehman v. City of Shaker Heights, 418 U.S. 298 (1974), this Court has relied upon public forum analysis to decide cases in which persons have sought to use government property for expressive activity in violation of rules which restrict or prohibit such activity. See United States v. Kokinda, 497 U.S. 720, 725 (1990).
This Court has held that a site owned by the government is a traditional public forum only if it is among "those places which 'by long tradition or by government fiat have been devoted to assembly and debate."' Cornelius, 473 U.S. at 802, quoting, Perry Educ. Ass'n, 460 U.S. at 45. This description hearkens back to the often-quoted passage from Hague v. CIO, 307 U.S. 496 (1939):
Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.
Id. at 515.
The Port Authority airports' sole purpose of facilitating air travel is reflected in all of their characteristics - planning, operation, design, usage, financing, lack of integration with neighboring communities, presence of captive audiences, and unique congestion and security problems. These characteristics both attest to the special purpose of the Port Authority air terminals and distinguish them from traditional public fora. In previous cases, this Court has examined the nature of alleged public fora to determine their public forum status. See, e.g., Kokinda, 497 U.S. 720; Greer, 424 U.S. 824; Lehman, 418 U.S. 298 .
4. Captive Audiences
The presence of captive audiences in air terminals distinguish such terminals from the traditional public fora of streets and parks. Captive audiences exist throughout the air terminals at enplaning and deplaning points, at ticket counters, security checkpoints, baggage conveyor belts, and car rental and other ground transportation counters. At all of these locations, travelers tend to remain in place in order to complete travel-related tasks (Superintendent's Statement at 58-60 (JA 458); Anderson Affidavit at 9 (JA 488)). See Doughty, supra note 13, at 7. As noted by Justice Douglas with regard to the patrons of public transportation vehicles, the rights of such captive audiences "to be free from forced intrusions on their privacy" would be violated if they were forced to be the object of uninvited persuasion. Lehman, 418 U.S. at 307 (1974) (Douglas, J., concurring); cf. Consolidated Edison Co. of N.Y. v. Public Serv. Comm'n, 447 U.S. 530, 542 (1980).
This Court has explicitly stated that a public forum does not exist merely because persons are freely permitted to enter a government owned site. Indeed, the Court has ". . . expressly rejected the suggestion that 'whenever members of the public are permitted freely to visit a place owned or operated by the Government, then that place becomes a "public forum" for purposes of the First Amendment.'" United States v. Albertini, 472 U.S. 675, 686 (1985) (quoting Greer, 424 U.S. at 836); see also United States v. Grace, 461 U.S. 171, 177 (1983).
Finally, it is equally clear that the usefulness of government property as a site for expressive activity does not make such property a traditional public forum under applicable Supreme Court precedent. In Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984), which held that lampposts are not public fora for the posting of signs, this Court rejected in unequivocal terms the proposition that a publicly-owned facility is a public forum because it would be a useful place for the communication of ideas: "Lampposts can of course be used as signposts, but the mere fact that government property can be used as a vehicle for communication does not mean that the Constitution requires such uses to be permitted. Cf. United States Postal Serv. v. Greenburgh Civic Ass'ns, 453 U.S. at 131." Id. at 814 (footnote omitted); see also Albertini, 472 U.S. at 686; Greer, 424 U.S. at 838 n.10.
Plaintiffs' reference to the alleged decline of downtown street life by the development of skyways and other street alternatives in city centers is clearly irrelevant to the issue at bar. The merits or demerits of such developments should be debated by planning commissions or zoning boards who determine the nature of our cities. See, e.g., William H. Whyte, City 193-221 (1988). Any perceived failure of responsible planning bodies to foster the development of urban streetscapes provides no basis for holding that the Port Authority air terminals are public fora.
Second, the alleged role of rail terminals as public fora is irrelevant because rail terminals, unlike Port Authority air terminals, are located in the center of a city. If the concourse of Grand Central Station or the waiting room of a small town rail depot served as a meeting place for people going about their daily business, it was because the rest of the community was a sidewalk's width away. See H. Roger Grant & Charles H. Bohi, The Country Railroad Station in America 8-9 (1978); William D. Middleton, Grand Central 109 (1978). Clearly, the same is not true of the Port Authority's air terminals. Although two people in Midtown Manhattan might agree to meet "under the golden clock" of Grand Central Terminal whether or not they were going to take a train, see William D. Middleton, Grand Central 109 (1978), it is highly unlikely that two people who had no intention of taking air flights would agree to meet at any of the Port Authority airports.
Moreover, contrary to Plaintiff's assertions, as an historical matter, it is far from clear that rail stations and terminals served as public fora in the First Amendment sense. Plaintiffs fail to document that solicitation and distribution of literature actually occurred at railroad terminals. Plaintiffs also ignore the fact that railroad terminals were privately owned, and, therefore, any solicitation or distribution of literature which took place was at the pleasure of the private entities which owned the terminals. See generally United Transp. Union v. Long Island R.R., 455 U.S. 678, 686 (1982); H. Roger Grant & Charles H. Bohi, The Country Railroad Station in America 11-15 (1978).(22)
The distribution of literature has similar effects on pedestrian flow. Air passengers must alter their path to avoid the distributor, or pause to take literature and perhaps stop to read it or to throw it in a wastebin. Significantly, Plaintiff's themselves concede that "literature distribution . . . might well be as disruptive to a traveller 'hurrying to catch a plane or to arrange ground transportation' as a request for a voluntary donation." Petition for Writ of Certiorari at 22 (citation omitted). And, of course, if Plaintiffs were entitled to engage in such activity, others would have the right to do so as well. As noted by this Court in Heffron v. ISKCON, "The inquiry must not only involve ISKCON, but all other organizations that would be entitled to distribute, sell or solicit if the . . . rule may not be enforced with respect to ISKCON." 452 U.S. 640, 654 (1981); accord Clark v. Community for Creative Non-Violence, 468 U.S. 288, 296-97 (1984).
It is well established that even in a public forum, the
government is not powerless to regulate First Amendment activity. Although it
is true that all communication may not be excluded from a public forum, content-neutral
regulations may be enforced if they are reasonable and narrowly tailored to
serve significant governmental interests, and leave open ample alternative channels
of communication. E.g.,
Perry Educ. Ass'n v. Perry Local Educators'
Ass'n, 460 U.S. at 46; Clark,
468 U.S. at 293. The Port Authority's restriction of solicitation and distribution
of literature to sidewalks adjacent to air terminal buildings satisfies this
Adapted from Children of Bedford, Inc. v. Petromelis, 77 N.Y.2d 713, 726-727, 573 N.E.2d 541, 553, 570 N.Y.S.2d 453, 464 (1991), vacated, 112 S.Ct. 859 (1991).
If the only purpose of section 632-a was to compensate victims, however, petitioners' contention that the State's needs could be met by other, less burdensome means would be more persuasive. Manifestly, article 22 and the general civil procedures address that need. Section 632-a provides not only a method for victims to obtain compensation, however, it also meets other compelling governmental interests. First, it preserves the victim's equitable right to assets earned by a criminal as a result of the victimization. Compare Executive Law 631 with 632-a. If there is no victim a necessary requirement for implementation of the statute is lacking, section 632-a does not apply and the criminal may discuss the crime without restraint. E.g., compare Halmi v. Crime Victims Bd., N.Y. L.J., June 5, 1986, at 12 (N.Y. Sup. Ct. June 4 1986), aff'd, 128 A.D.2d 411 (prostitution is victimless crime) and St. Martins Press v. Zweibel, N.Y. L.J., Feb. 26, 1990, at 25 (N.Y. Sup. Ct. Feb. 24, 1990) (securities fraud based on leaking market information) with Simon & Schuster v. Fischetti, 916 F.2d 777 (2d. Cir. 1991) and this case. But if there are victims and the criminal profits from reenactment or depiction of the crime, then the victims who have been injured by the criminal act, and the State, which has been called upon to render aid to those victims, should have the first claim to that money. They should be compensated before the criminal.
Adapted from McCann v. Scaduto, 71 N.Y.2d 164, 182-183, 519 N.E.2d 309, 326, 524 N.Y.S.2d 398, 416-417 (1987).
We reject the above arguments for the Secretary's exercise of an interim rate authority essentially for the same reasons that the court below rejected them. The Natural Gas Act, like most modern ratemaking statutes, provides for a plenary ratemaking authority and vests in it one body, there, the Federal Power Commission. As the Supreme Court held in Tennessee Gas, an interim authority follows naturally from a plenary authority under the usual "necessary and proper" clause. What the government has failed to understand in urging upon us a similar argument in the present case is that such a holding necessarily depends upon the existence of a plenary authority. In this case the rate developer has none; the scheme set out in section 5 of the Flood Control Act of 1944 divides rate authority and vests it in two separate branches of the government. The government's suggested approach assumes the validity of their conclusion even before the process of deduction has begun. But see Montana Power Co. v. Edwards, 531 F. Supp. 8 (D. Or. 1981) (adopting the approach attacked in this paragraph); Pacific Power & Light Co. v. Duncan, 499 F. Supp. 672 (D. Or. 1980) (same); cf. Colorado River Energy Distribs. Ass'n v. Lewis, 516 F. Supp. 926 (D.D.C. 1981) (correctly relying on Tennessee Gas in hydroelectric ratemaking case under section 9(c) of the Reclamation Project Act of 1939, 43 U.S.C. § 485h(c) (1976), which gives the Secretary plenary authority). To resolve this case, we are forced to examine the substantive provisions of the Flood Control and DOE Acts, which we have done in the first three Parts of this opinion.
Adapted from Respondent's Brief, United States v. Navajo Nation, No. 01-1375 (Oct. 9, 2002)
A. The Ideal of Tribal Self-Determination Does Not Dilute Trust Duties.
In the space of 20 pages, the Government's brief transforms the modern federal policy favoring tribal self-determination from a supposed "focus" of IMLA to its "central aim." See Pet. Br. 18, 19, 20, 38. Contra Kerr-McGee, 471 U.S. at 200. It repeatedly offers, never with any citation to authority, that the historic requirement of federal approval of Indian land transactions is merely to give "backstop protection" to the tribes, whatever that might be. E.g., Pet. Br. 18, 43, 49. Contra Tuscarora, 362 U.S. at 118-19; Sunderland, 266 U.S. at 234. The Government unsuccessfully asserted in Mitchell II that the federal policy favoring Indian self-determination compromises trust duties. See Brief for the United States, No. 81-1748, at 35. That argument has gained no force in the intervening 20 years.