Expressive conduct at International Airport

Answer

It sounds like you would like to advertise your company in person at the airport.  This probably would be considered commercial speech, which, while still afforded First Amendment protection, is held to lower standards than speech that is considered non-commercial in nature. See Central Hudson Gas & Electric Corp. v. Public Service Commission of N.Y., 447 U.S. 557 (1980). 

Commercial speech refers to “speech that does no more than propose a commercial transaction.” Hunt v. City of Los Angeles, 638 F.3d 703, 715 (9th Cir. 2011) (quoting United States v. United Foods, Inc., 533 U.S. 405, 409 (2001)).  Examples of commercial speech include “advertisements, speech referring to a particular product, and speech where the speaker has an economic motivation.”  Hunt, 638 F.3d at 715. 

In Central Hudson, the Supreme Court set forth a four-part test to assess the constitutionality of restrictions on commercial speech:

If the communication is neither misleading nor related to unlawful activity, then it merits First Amendment scrutiny as a threshold matter; in order for the restriction to withstand such scrutiny,
The State must assert a substantial interest to be achieved by restrictions on commercial speech
The restriction must directly advance the state interest involved
It must not be more extensive than is necessary to serve that interest.

Metro Lights, LLC v. City of Los Angeles, 551 F.3d 898, 903 (9th Cir. 2009) (quoting Central Hudson, 447 U.S. at 564-66).  In 2011, the Ninth Circuit Court of Appeals applied this test in upholding as constitutional a vending ordinance that regulated vendors on the boardwalk.  The Court found that the ordinance was a restriction on commercial speech and that the Central Hudson test was met because the ordinance was directed to addressing stated concerns (i.e., to control crowds and alleviate noise) and was a “reasonable fit” with that stated purpose.  See Hunt, 638 F.3d at 718.

Even if your speech could be considered non-commercial, the airport may still be able to justify the restriction as a content-neutral time, place and manner restriction.

For example, if there are restrictions on speech that are applied evenly and without regard to the content of the speech, then the government may impose reasonable time, place and manner restrictions on the speech provided it demonstrate the restriction is (i) narrowly tailored, (ii) serves a significant government interest, and (iii) leaves open ample alternative avenues of communication. Prigmore v. City of Redding, 211 Cal. App. 4th 1322, 1341 (2012).

In a case similar to yours, Int’l Soc’y for Krishna Consciousness of California, Inc. v. City of Los Angeles, the California Court of Appeals held that a rule prohibiting solicitation of the immediate receipt of funds at LAX was a valid time, place, and manner restriction, and found that generally prohibiting solicitation was narrowly tailored at LAX, as peak periods of congestion vary.  48 Cal. 4th 446, 458 (2010).

The Court of Appeals also found that plaintiffs had ample alternative means of conveying their message, and that the airport had a legitimate interest in assuring that travelers are not interfered with. Id. at 459.  To the extent this case applies to your scenario, the airport would have a strong argument in justifying its denial of the permit.

You might want to look into the International Airport’s ordinances related to commercial and non-commercial speech on airport grounds, to see whether there are any broad prohibitions against certain types of commercial activities, and consider whether this may have been the reason your permit application was rejected.  From there, you can further determine whether your speech was unfairly targeted, or if the airport authority was applying a prohibition against, for example, in-person commercial speech/advertising on airport grounds.

Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.