International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 24 (1992)

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Cite as: 505 U. S. 672 (1992)

Kennedy, J., concurring in judgments

tradition associated with airports of permitting free speech. Ante, at 680. And because governments have often attempted to restrict speech within airports, it follows a fortiori under the Court's analysis that they cannot be so-called "designated" forums. Ante, at 680-681. So, the Court concludes, airports must be nonpublic forums, subject to minimal First Amendment protection.

This analysis is flawed at its very beginning. It leaves the government with almost unlimited authority to restrict speech on its property by doing nothing more than articulating a non-speech-related purpose for the area, and it leaves almost no scope for the development of new public forums absent the rare approval of the government. The Court's error lies in its conclusion that the public forum status of public property depends on the government's defined purpose for the property, or on an explicit decision by the government to dedicate the property to expressive activity. In my view, the inquiry must be an objective one, based on the actual, physical characteristics and uses of the property. The fact that in our public forum cases we discuss and analyze these precise characteristics tends to support my position. Perry, supra, at 46-48; Cornelius, supra, at 804-806; Kokinda, supra, at 727-729 (plurality opinion).

The First Amendment is a limitation on government, not a grant of power. Its design is to prevent the government from controlling speech. Yet under the Court's view the authority of the government to control speech on its property is paramount, for in almost all cases the critical step in the Court's analysis is a classification of the property that turns on the government's own definition or decision, unconstrained by an independent duty to respect the speech its citizens can voice there. The Court acknowledges as much, by reintroducing today into our First Amendment law a strict doctrinal line between the proprietary and regulatory functions of government which I thought had been abandoned long ago. Ante, at 678; compare Davis v. Massachusetts, 167 U. S. 43 (1897), with Hague, supra, at 515; Schnei-

695

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