Can Christians Hand out Gospel Tracts in Airports?

An evangelistic organization called Jews for Jesus distributes tracts that are remarkable for their wit and their frank presentation of the gospel. Inside the terminals at Los Angeles International Airport, the tracts have been remarkably controversial as well.

In two lower court challenges, Jews for Jesus was affirmed in its right to hand out literature inside the airport terminals. Last month, attorneys for the Board of Airport Commissioners appealed the lower court decisions to the U.S. Supreme Court in lively oral arguments.

Testing Free Speech

The case is a crucial test of free speech. A central question before the high court involves whether an airport is a “public forum” where First Amendment rights—including free speech and religious expression—can be exercised.

Attorneys for the airport are defending a 1983 resolution that banned all First Amendment activities inside the Los Angeles airport terminals. The resolution was passed by the airport commissioners, who decided that terminals are to be used only “for the promotion and accommodation” of air travel. People desiring to distribute literature or discuss issues with airline passengers were to be restricted to outdoor sidewalks in front of the ticketing buildings.

Two lower courts held that the resolution is unconstitutional, because airports are public forums. The U.S. Appeals Court for the Ninth Circuit noted in its ruling that the Supreme Court regards places as public forums if “by long tradition or by government fiat [those places] have been devoted to assembly and debate.” According to the appeals court, airport terminals, in terms of their accessibility to the public, resemble public sidewalks or parks—places where the government cannot restrict constitutionally protected free speech.

James R. Kapel, who represented the airport commissioners before the Supreme Court, sought to dispute the lower court findings. He pointed out that numerous lower court decisions conflict with one another regarding the use of public buildings for activities other than their intended uses. In a brief submitted to the Court, Kapel argued, “The interiors of airport terminal facilities are not held in trust to be used by the public for assembly and debate. Rather, they are intended, designed and dedicated to their airport-related purposes.”

Kapel sparred with several Supreme Court justices over his definitions of which activities are “airport-related” and which are not. The existence of a Christian Science reading room inside the Los Angeles airport was raised as an example of free speech that apparently was not barred by the resolution. Kapel argued that the reading room provides people with a place to wait. Justice John Paul Stevens queried Kapel about the potential usefulness of Jews for Jesus literature, saying it might serve the purpose of helping “make people comfortable in case of a thunderstorm.”

The Court’s newest associate justice, Antonin Scalia, prodded Kapel to say, flatly, that “non-airport related activities” would be prohibited under the resolution. Scalia asked if it would be impermissible for a congressman, flying through the airport, to arrange a meeting there with an aide. Kapel responded that such a meeting would be permitted. Justice Thurgood Marshall inquired, “What is wrong with what these [Jews for Jesus] people do? What right do you have to stop it?” Then he chastised Kapel, saying “These are people you don’t like.”

The Jews For Jesus View

Arguing on behalf of Jews for Jesus, attorney Jay Alan Sekulow compared today’s airports with other traditional gathering places, such as “city gates” or inns where travelers would congregate, saying they are “places people come for ideas.” Sekulow rejected Kapel’s all-or-nothing approach, and said some restrictions on free speech activities could be permissible in a setting like the Los Angeles airport. Some airport areas would not be appropriate for literature distribution, he said, including places where baggage handling or ticketing is taking place. He pointed out that Jews for Jesus missionaries do not solicit money at airports, and they do not attempt to detain passengers.

Sekulow rejected the airport’s right to regulate what goes on inside its terminals as long as the activity in question is “compatible” with the airport’s purposes. “Distribution of literature does not interfere with the operation of the airport,” he said. “If the First Amendment activity is compatible with the place where it is conducted, then an open forum is created.”

On this basis, and the basis of transportation centers being traditional gathering places, he said the airport is irrefutably a public forum. He was challenged on this point by Scalia, who said the reverse is the traditional understanding: that if there is a public forum, then any activity taking place in it must be compatible. Either way, Sekulow admitted that compatibility is a factor that would need to be weighed on a case-by-case basis.

After the courtroom session, Sekulow told reporters, “The real question is, ‘How free is speech going to be?’ If an airport is not a public forum, then what is?”

Anticipating A Ruling

Jews for Jesus executive director Moishe Rosen said he is concerned that the Court may partially affirm the lower courts’ rulings, but will allow restrictions to be placed on free speech activities at places such as Los Angeles International Airport. “One by one, we are losing our freedoms,” Rosen said following the oral arguments. He said members of his organization were “stunned” when the Supreme Court agreed to hear the case, since they believed the issue had been settled adequately by lower courts. A high court ruling is expected by July.

Numerous Christian organizations filed friend-of-the-court briefs on behalf of Jews for Jesus, including the National Association of Evangelicals, Christian Legal Society, the Rutherford Institute, and Jesus People USA. At the same time, Rosen said many Christians misunderstood the point of the case. “We’ve received letters complaining that we were suing the government,” Rosen said, when in fact Jews for Jesus is the defendant.

Rosen said the organization’s primary task is evangelism, and tract distribution in public places is a way to involve “ordinary people” in the Great Commission. “The notion abounds that it is fruitless,” he told members of the press. “That’s not so.” Jhan Moskowitz, a Jews for Jesus representative, said the organization distributes literature at airports in New York, Chicago, San Francisco, Toronto, and Boston. He added that they encounter “a hodgepodge of rules and regulations.”

Attempts by Jews for Jesus to hand out tracts at Washington, D.C., airports were thwarted when officials said permits were required. And in front of the Supreme Court, on the day oral arguments were heard, a policeman told Moskowitz he could not hand out tracts on the sidewalk. Moskowitz talked to the officer’s supervisor and obtained permission to continue.

Sekulow said repeated challenges to the freedom to distribute literature in public has led to the formation of a new organization called Christian Advocates Serving Evangelism. It will work to defend the rights of street evangelists to have access to public forums.

Sekulow noted, “What we were able to accomplish—win, lose, or draw—was that the Court heard about the right of free speech and also heard about the gospel. That was just as important as the case itself.” When he is asked whether tract distribution is related to airport purposes, Sekulow says he takes the opportunity to explain what the gospel means: “It is a travel-related message, especially if you consider where your final destination is going to be.”

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