|Heffron v. International Society for Krishna Consciousness
299 N.W.2d 79, reversed and remanded.
[ White ]
[ Brennan ]
[ Blackmun ]
Heffron v. International Society for Krishna Consciousness
CERTIORARI TO THE SUPREME COURT OF MINNESOTA
JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE STEVENS join, concurring in part and dissenting in part.
As the Court recognizes, the issue in this case is whether Minnesota State Fair Rule 6.05 constitutes a reasonable time, place, and manner restriction on respondents' exercise of protected First Amendment rights. See Schad v. Mount Ephraim, ante at 74-76; Grayned v. City of Rockford, 408 U.S. 104, 115-116 (1972). In deciding this issue, the Court considers, inter alia, whether the regulation serves a significant governmental interest and whether that interest can be served by a less intrusive restriction. See ante at 649-650, 654. The Court errs, however, in failing to apply its analysis separately to each of the protected First Amendment activities restricted by Rule 6.05. Thus, the Court fails to recognize that some of the State's restrictions may be reasonable, while others may not.
Rule 6.05 restricts three types of protected First Amendment activity: distribution of literature, sale of literature, and solicitation of funds. See Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 632, 633 (1980); Murdock v. Pennsylvania, 319 U.S. 105, 108 (1943); Jamison v. Texas, 318 U.S. 413, 416 (1943); Schneider v. State, 308 U.S. 147, 160 (1939); Lovell v. Griffin, 303 U.S. 444, 452 (1938). No individual or group is permitted to engage in these activities at the Minnesota State Fair except from preassigned, rented booth locations. Violation of this Rule constitutes a misdemeanor, and violators are subject to arrest and expulsion from the fairgrounds.
The State advances three justifications for its booth Rule. The justification relied upon by the Court today is the State's [p657] interest in maintaining the orderly movement of the crowds at the fair. Ante at 649-650. The second justification, relied upon by the dissenting justices below, 299 N.W.2d 79, 87 (Minn.1980), is the State's interest in protecting its fairgoers from fraudulent, deceptive, and misleading solicitation practices. The third justification, based on the "captive audience" doctrine, is the State's interest in protecting its fairgoers from annoyance and harassment
I quite agree with the Court that the State has a significant interest in maintaining crowd control on its fairgrounds. See Grayned v. City of Rockford, supra, at 115-116; Cox v. New Hampshire, 312 U.S. 569, 574 (1941). I also have no doubt that the State has a significant interest in protecting its fairgoers from fraudulent or deceptive solicitation practices. See Schaumburg v. Citizens for a Better Environment, supra, at 636; Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 771-772 (1976). Indeed, because I believe on this record that this latter interest is substantially furthered by a Rule that restricts sales and solicitation activities to fixed booth locations, where the State will have the greatest opportunity to police and prevent possible deceptive practices, I would hold that Rule 6.05's restriction on those particular forms of First Amendment expression is justified as an antifraud measure. Accordingly, I join the judgment of the Court insofar as it upholds Rule 6.05's restriction on sales and solicitations. However, because I believe that the booth Rule is an overly intrusive means of achieving the State's interest in crowd control, and because I cannot accept the validity of the State's third asserted justification, [n1] I dissent from the Court's approval of Rule 6.05's restriction on the distribution of literature. [p658]
As our cases have long noted, once a governmental regulation is shown to impinge upon basic First Amendment rights, the burden falls on the government to show the validity of its asserted interest and the absence of less intrusive alternatives. See, e.g., Schneider v. State, supra. The challenged "regulation must be narrowly tailored to further the State's legitimate interest." Grayned v. City of Rockford, supra, at 116-117. Minnesota's Rule 6.05 does not meet this test.
The Minnesota State Fair is an annual 12-day festival of people and ideas. Located on permanent fairgrounds comprising approximately 125 acres, the fair attracts an average of 115,000 visitors on weekdays and 10,000 on Saturdays and Sundays. Once the fairgoers pay their admission fees, they are permitted to roam the fairgrounds at will, visiting booths, meeting friends, or just milling about. Significantly, each and every fairgoer, whether political candidate, concerned citizen, or member of a religious group, is free to give speeches, engage in face-to-face advocacy, campaign, or proselytize. No restrictions are placed on any fairgoer's right to speak at any time, at any place, or to any person. [n2] Thus, if, on a given day, 5,000 members of ISKCON came to the fair and paid their admission fees, all 5,000 would be permitted to wander throughout the fairgrounds, delivering speeches to [p659] whomever they wanted, about whatever they wanted. Moreover, because this right does not rest on Sankirtan or any other religious principle, [n3] it can be exercised by every political candidate, partisan advocate, and common citizen who has paid the price of admission. All share the identical [p660] right to move peripatetically and speak freely throughout the fairgrounds.
Because of Rule 6.05, however, as soon as a proselytizing member of ISKCON hands out a free copy of the Bhagavad-Gita to an interested listener, or a political candidate distributes his campaign brochure to a potential voter, he becomes subject to arrest and removal from the fairgrounds. This constitutes a significant restriction on First Amendment rights. By prohibiting distribution of literature outside the booths, the fair officials sharply limit the number of fairgoers to whom the proselytizers and candidates can communicate their messages. Only if a fairgoer affirmatively seeks out such information by approaching a booth does Rule 6.05 fully permit potential communicators to exercise their First Amendment rights.
In support of the crowd control justification, [n4] petitioners contend that, if fairgoers are permitted to distribute literature, large crowds will gather, blocking traffic lanes and causing safety problems. As counsel for petitioners asserted at oral argument:
[I]t seems to me that, if you had [distribution] activity going on with not just the Krishnas, but 10 or 20 or 30 representatives from perhaps 30 to 60 or 70 groups, that inevitably is going to draw more attention and going to cause or create more or less moving pockets or moving congested crowds. . . . [I]f, all of a sudden, the crowd becomes aware of the fact that dozens of people are walking around passing out materials, and they're going to [p661] inevitably be attracted by that. Whereas they wouldn't be if people were just talking.
Tr. of Oral Arg. 18-19. See also Brief for Petitioners 31.
But petitioners have failed to provide any support for these assertions. They have made no showing that relaxation of the booth Rule would create additional disorder in a fair that is already characterized by the robust and unrestrained participation of hundreds of thousands of wandering fairgoers. See International Society for Krishna Consciousness, Inc. v. Barber, 650 F.2d 430, 444, n. 22 (CA2 1981). If fairgoers can make speeches, engage in face-to-face proselytizing, and buttonhole prospective supporters, they can surely distribute literature to members of their audience without significantly adding to the State's asserted crowd control problem. Cf. Martin v. Struthers, 319 U.S. 141, 151 (1943) (Murphy, J., concurring) (invalidating ordinance that banned house-to-house distribution of handbills but did not ban house-to-house proselytizing). The record is devoid of any evidence that the 125-acre fairgrounds could not accommodate peripatetic distributors of literature just as easily as it now accommodates peripatetic speechmakers and proselytizers. [n5] [p662]
Relying on a general speculative fear of disorder, the State of Minnesota has placed a significant restriction on respondents' ability to exercise core First Amendment rights. This restriction is not narrowly drawn to advance the State's interests, and for that reason is unconstitutional. "[U]ndifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression." Tinker v. Des Moines School Dist., 393 U.S. 503, 508 (1969). If the State had a reasonable concern that distribution in certain parts of the fairgrounds -- for example, entrances and exits -- would cause disorder, it could have drafted its Rule to prohibit distribution of literature at those points. If the State felt it necessary to limit the number of persons distributing an organization's literature, it could, within reason, have done that as well. [n6] It had no right, however, to ban all distribution of literature outside the booths. [n7] State
may serve its legitimate interests, but it must do so by narrowly drawn regulations designed to serve those [p663] interests without unnecessarily interfering with First Amendment freedoms. . . . "Broad prophylactic rules in the area of free expression are suspect. Precision in regulation must be the touchstone. . . ." Schaumburg v. Citizens for a Better Environment, 444 U.S. at 637, quoting NAACP v. Button, 371 U.S. 415, 438 (1963).
Accord, Grayned v. City of Rockford, 408 U.S. at 116-117.
Because I believe that the State could have drafted a more narrowly drawn restriction on the right to distribute literature without undermining its interest in maintaining crowd control on the fairgrounds, I would affirm that part of the judgment below that strikes down Rule 6.05 as it applies to distribution of literature.
1. Because fairgoers are fully capable of saying "no" to persons seeking their attention and then walking away, they are not members of a captive audience. They have no general right to be free from being approached. See Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 638-639 (1980); Martin v. Struthers, 319 U.S. 141, 143-144 (1943).
2. A state fair is truly a marketplace of ideas and a public forum for the communication of ideas and information. As one court has stated, a
fair is, almost by definition, a congery of hawkers, vendors of wares and services, and purveyors of ideas, commercial, esthetic, and intellectual.
International Society for Krishna Consciousness v. State Fair of Texas, 461 F.Supp. 719, 721 (ND Tex.1978). See also International Society for Krishna Consciousness, Inc. v. Barber, 650 F.2d 430, 444, n. 21 (CA2 1981). Despite the Court's suggestion to the contrary, ante at 452 U.S. 651"]651, a fair is surely a "natural and proper plac[e] for the dissemination of information and opinion." Schneider v. State, 308 U.S. 147, 163 (1939). In no way could I agree that respondents' desired "‘manner of expression is basically incompatible with the normal activity'" of the fair. See Schad v. Mount Ephraim, ante at 75, quoting 651, a fair is surely a "natural and proper plac[e] for the dissemination of information and opinion." Schneider v. State, 308 U.S. 147, 163 (1939). In no way could I agree that respondents' desired "‘manner of expression is basically incompatible with the normal activity'" of the fair. See Schad v. Mount Ephraim, ante at 75, quoting Grayned v. City of Rockford, 408 U.S. 104, 116 (1972).
3. I am somewhat puzzled by the Court's treatment of the Sankirtan issue. Respondents' complaint, based on 42 U.S.C. § 1983 alleges that Rule 6.05, on its face and as applied, violates both the Free Exercise and the Free Speech Clauses. In their brief and in oral argument, however, respondents emphasize that they do not claim any special treatment because of Sankirtan, but are willing to rest their challenge wholly upon their general right to free speech, which they concede is identical to the right enjoyed by every other religious, political, or charitable group. Tr. of Oral Arg. 26; Brief for Respondents 19-20, 478. There is therefore no need for the Court to discuss Sankirtan.
Having chosen to discuss it, however, the Court does so in a manner that is seemingly inconsistent with prior case law. The parties have stipulated that members of ISKCON have a unique
duty to perform a religious ritual known as Sankirtan, which consists of going out into public places, to disseminate or sell religious literature and to solicit contributions to support the publishing, religious, and educational functions of Krishna Consciousness.
App. A-32. The Court, however, disparages the significance of this ritual, stating, without explanation or supporting authority:
[ISKCON] and its ritual of Sankirtan have no special claim to First Amendment protection as compared to that of other religions who also distribute literature and solicit funds. None of our cases suggests that the inclusion of peripatetic solicitation as part of a church ritual entitles church members to solicitation rights in a public forum superior to those of members of other religious groups that raise money, but do not purport to ritualize the process.
Ante at 652 (footnote omitted).
Our cases are clear that governmental regulations which interfere with the exercise of specific religious beliefs or principles should be scrutinized with particular care. See, e.g., Sherbert v. Verner, 374 U.S. 398, 402-403 (1963). As we stated in Wisconsin v. Yoder, 406 U.S. 205, 220 (1972),
there are areas of conduct protected by the Free Exercise Clause of the First Amendment, and thus beyond the power of the State to control, even under regulations of general applicability.
I read the Court as accepting these precedents, and merely holding that, even if Sankirtan is "conduct protected by the Free Exercise Clause," it is entitled to no greater protection than other forms of expression protected by the First Amendment that are burdened to the same extent by Rule 6.05.
4. Other than the "captive audience" justification, see n. 1, supra, the only interest seriously asserted by petitioners in support of the restriction on distribution of literature is the State's interest in crowd control. At oral argument, counsel for petitioners expressly declined to advance an antilittering objective, Tr. of Oral Arg. 16, and virtually conceded that the antifraud rationale would not apply unless the communicator sought to obtain money from the fairgoers. Id. at 14-16, 17-19. See also Brief for Petitioners 24-29.
5. Moreover, petitioners' expressed concerns are significantly undermined by three affidavits contained in the record which indicate that the State itself engages in the seemingly forbidden practice of leafletting. Thus, the affidavit of Thomas Kerr states:
2. On numerous occasions when I entered the [1977 Minnesota State Fair], the individual taking tickets would give to me a flier which stated that fairgoers might be approached by roving solicitors, that the fair neither licensed nor sanctioned them, and that complaints against them could be filed with the fair administration. On several occasions, I also noted individuals who appeared to be state fair employees handing out similar fliers at information booths and concession areas. On several occasions, I also noticed that individuals, who appeared to be state fair employees, would begin to distribute similar fliers to fairgoers in areas where I or my fellow ISKCON members were proselytizing or distributing literature.
App. A-40 (emphasis added). See also Affidavit of Joseph Beca, id. at A-38; Affidavit of David C. Ewert, id. at A-43. It is hard to believe the State is seriously concerned about the effects of leafletting when, apparently, it too engages in such activity at the State Fair.
6. Respondents recognize that some limitations may constitutionally be imposed upon their right to distribute literature. Stipulation of Fact #23 states:
ISKCON, while unwilling to confine its religious activities to a booth, has indicated its willingness to submit to the regulation of its members in their circulation throughout the fairgrounds to proselytize, distribute and sell literature, and solicit contributions.
Id. at A-36. In addition, paragraph 11 of respondents' complaint states:
ISKCON's devotees have tried to allay any fears Defendants might have that their religious activity might be disruptive to normal Fair activities by offering to wear identifying name tags at all times, to limit the number of devotees at the State Fair Grounds, to approach only consenting patrons, to refrain from engaging Fair patrons in conversation near entrances or exits to buildings or exhibits or in areas where there are lines or queues, and to identify themselves to Fair officials, including police officials.
Id. at A-6. See also Tr. of Oral Arg. 30, 34-35.
7. As the Minnesota Supreme Court concluded:
The state's interest can be adequately served by means less restrictive of First Amendment rights. Conduct that tends to create disorder on the fairgrounds may be specifically prohibited.