Starry Decisis: LAX Confidential
In the days before 9/11, the biggest hassle in airport travel was having to turn down the pleas of the old women in nurses costumes standing by the escalators. Now, after 9/11, the fake nurses are still there, but they move down the long security lines that line the curbs. In this age of strict airport regulation, it’s surprising that airport solicitors and proselytizers didn’t get the steel-toed boot a long time ago. Instead, they remain protected by the First Amendment, if they can find a place to stand.
LAX was the site of a First Amendment showdown between the airport overlords and its terminal underlings. In 1983, the airport’s Board of Commissioners attempted to ban all begging, preaching, soapboxing and proselytizing going on in the terminals. It issued a regulation forbidding any “First Amendment activities” in the terminal area.
The first group to challenge the regulation wasn’t the poor nurses – they’re mute, don’t forget. Instead it was the Jews for Jesus. One of the group’s ministers had been shooed away by the airport police because he was passing out religious literature in the terminal. The J4J sued on the grounds that the law violated the First Amendment, discriminated against them, and was unconstitutionally vague. In 1987, the Supreme Court heard the case and issued an opinion so short, at eight measly pages, that it seems like the case shouldn't have even made it that far.
Rather than get into the messiness of the first two issues, the Court chose the easy, and most obvious way out. The regulation was unconstitionally vague. Under it, as Justice Sandra Day O'Connor explained, every traveler would have been an LAX sinner:
On its face, the resolution at issue... purports to create a virtual "First Amendment Free Zone" at LAX. The resolution prohibits even talking and reading, or the wearing of campaign buttons or symbolic clothing. Under such a sweeping ban, virtually every individual who enters LAX may be found to violate the resolution by engaging in some "First Amendment activity."
In many situations, the Supreme Court looks for "magic words" that create an invisible forcefield around any potentially unconstitutional law. For example, any time Congress makes a law, it has to make some reference to interstate commerce, or another so-called "jurisdictional hook." State legislatures, too, must use special language in certain cases, like when they waive their own sovereign immunity to suit. Show dogs aren't the only ones who have to jump through hoops in this country. Lawmakers must say the right words in order to cast the right spell on the Court.
Here, the best language the LAXecutives managed to muster was that the law banned only "non-airport-related" speech. About as magical as a ton of bricks. In fact, the only truly magical aspect of this case was that the Commissioners thought that they weren't violating the First Amendment by banning all "First Amendment activities."
These days, the LAX police have more important things to investigate, like your tennis shoes or the underwire of your bra. Terminevangelists can't even get in the sliding doors without a boarding pass. The white zone has become the last place where people can unload after all.