United States v Kokinda

Notable Items:

Facts:

• Respondents (Marsha B. Kokinda and Kevin E. Pearl), members of a political advocacy group, set up a table on a sidewalk near the entrance to a United States Post Office to solicit contributions, sell books and subscriptions to the organization's (National Democratic Policy Committee) newspaper, and distribute literature on a variety of political issues.
• The sidewalk is the sole means by which customers may travel from the parking lot to the post office building and lies entirely on Postal Service property. (6710 Laurel Bowie Rd ?? Bowie, MD)
• When respondents refused to leave the premises, they were arrested and subsequently convicted ....
• Kokinda was fined $50 and sentenced to 10 days' imprisonment; respondent Pearl was fined $100 and received a 30-day suspended sentence under that provision.
• CFR § 232.1(h)(1) prohibits solicitation on postal premises.
• District court affirmed, holding that the postal sidewalk was not a public forum and that the ban on solicitation is reasonable.
• Court of Appeals reversed, finding that the sidewalk is a public forum and analyzing the regulation as a time, place, and manner restriction, it determined that the Government has no significant interest in banning solicitation and that the regulation is not narrowly tailored to accomplish the asserted governmental interest.
• Because the decision below conflicts with other decisions by the Courts of Appeals, see United States v. Belsky, 799 F.2d 1485 (CA11 1986); United States v. Bjerke, 796 F.2d 643 (CA3 1986), we granted certiorari. 493 U.S. 807 (1989).

Petitioner's Claim(s):

Issues:

Holding(s):

Rationale:

O'Connor majority opinion (Rehnquist, White, Scalia)

• Dedicated purpose sidewalk within Post Office property Gov't operating as a proprietor regarding the property.
• allowing some speech activities is not a waiver for all speech activities.
• solicitation is inherently disruptive of the postal service's business. Solicitation impedes the normal flow of traffic.
• The mere physical characteristics of the property cannot dictate forum analysis.
• Solicitation is a recognized form of speech protected by the First Amendment. See Schaumburg v. Citizens for a Better Environment, 444 U. S. 620, 444 U. S. 629 (1980); Riley v. National Federation of Blind of N.C., Inc., 487 U. S. 781, 487 U. S. 788-789 (1988).
• Under our First Amendment jurisprudence, we must determine the level of scrutiny that applies to the regulation of protected speech at issue.
• It is a long-settled principle that governmental actions are subject to a lower level of First Amendment scrutiny when "the governmental function operating . . . [is] not the power to regulate or license, as lawmaker, . . . but, rather, as proprietor, to manage [its] internal operation[s]. . . ."
• The Government, even when acting in its proprietary capacity, does not enjoy absolute freedom from First Amendment constraints, as does a private business, but its action is valid in these circumstances unless it is unreasonable, or, as was said in Lehman, "arbitrary, capricious, or invidious."
• Accordingly, the extent to which the Government can control access depends on the nature of the relevant forum." Cornelius v. NAACP Legal Defense and Educational Fund, 473 U. S. 788, 473 U. S. 800 (1985).
• Forum considerations:
• a tripartite framework: 1) governmental property that has been traditionally open to the public for expressive activity, such as public streets and parks, is examined under strict scrutiny.; 2) property that the Government has expressly dedicated to speech activity is also examined under strict scrutiny.; 3) where the Government has not dedicated its property to First Amendment activity is examined only for reasonableness.
• The mere physical characteristics of the property cannot dictate forum analysis.
• The postal sidewalk at issue does not have the characteristics of public sidewalks traditionally open to expressive activity. (characteristics not important, but here they are anyway)
• In Greer, we held that the power of the Fort's commanding officer summarily to exclude civilians (is determinative as not a public forum)
• a practice of allowing some speech activities on postal property do not add up to the dedication of postal property to speech activities.
• Thus, the regulation at issue must be analyzed under the standards set forth for nonpublic fora: it must be reasonable and "not an effort to suppress expression merely because public officials oppose the speaker's view."
• Solicitation considerations:
• solicitation is inherently disruptive of the postal service's business. Solicitation impedes the normal flow of traffic. See Heffron, 452 U.S. at 452 U. S. 653
• This description of the disruption and delay caused by solicitation (Blackmun in Heffron) rings of "common-sense," ibid., which is sufficient in this Court to uphold a regulation under reasonableness review.
• the Postal Service is only required to adopt reasonable regulations, not "the most reasonable or the only reasonable" regulation possible. Cornelius, 473 U.S. at 473 U. S. 808.

Kennedy concur in judgement

• Because my analysis differs in essential respects from that in Justice O'CONNOR's opinion, a separate statement of my views is required.
• not necessary to make a precise determination whether this sidewalk and others like it are public or nonpublic forums
• preventing solicitation is enough to make the regulation reasonable.
• Forum considerations:
• It is not necessary, however, to make a precise determination whether this sidewalk and others like it are public or nonpublic forums; in my view, the postal regulation at issue meets the traditional standards we have applied to time, place, and manner restrictions of protected expression. See Clark v. Community for Creative Non-Violence, 468 U. S. 288, 468 U. S. 293 (1984).
• Solicitation considerations:
• The regulation, in its only part challenged here, goes no further than to prohibit personal solicitations on postal property for the immediate payment of money.
• The regulation, as the United States concedes, expressly permits the respondents and all others to engage in political speech on topics of their choice and to distribute literature soliciting support, including money contributions, provided there is no in-person solicitation for payments on the premises.
• Government here has a significant interest in protecting the integrity of the purposes to which it has dedicated the property, that is, facilitating its customers' postal transactions.
• The solicitation of money is banned in the District of Columbia on the Mall and other parks under the control of the National Park Service. See 36 CFR § 7.96(h) (1989).

Brennan dissent (Marshall, Stevens, and Blackmun in part)

• I think it clear that the sidewalk in question is a "public forum," and that the Postal Service regulation does not qualify as a content-neutral time, place, or manner restriction.
• I believe that the distinction drawn by the postal regulation between solicitation and virtually all other kinds of speech is not a reasonable one.
• Forum considerations: Section I A
• three categories of forums on government property: (1) traditional, "quintessential public forums" such as "streets and parks"; (2) "limited-purpose" or state-created semi-public forums such as university meeting facilities or school board meetings; and (3) nonpublic forums or public property "which is not by tradition or designation a forum for public communication."
• Indeed, the Court's contemporary use of public forum doctrine has been roundly criticized by commentators. [Footnote 1]
• Public sidewalks, parks, and streets have been reserved for public use as forums for speech even though government has not constructed them for expressive purposes.
• ... and sidewalks are created with pedestrians in mind, not solicitors. Hence, why the sidewalk was built is not salient.
• The architectural idiosyncrasies of the Bowie Post Office are thus not determinative of the question whether the public area around it constitutes a public forum.
• citizens should not be left to wonder at which ones they will be permitted to speak and which ones not." 866 F.2d 699, 702 (CA4 1989). [Footnote 3] Vagueness
• Whatever the proper application of public forum doctrine to novel situations like fund-raising drives in the federal workplace, See Cornelius v. NAACP Legal & Educational Fund, Inc., 473 U. S. 788 (1985), or the internal mail systems of public schools, see Perry Education Assn. v. Perry Local Educators' Assn., 460 U. S. 37 (1983), we ought not unreflectively transfer principles of analysis developed in those specialized and difficult contexts to traditional forums such as streets, sidewalks, and parks. [Footnote 4]
• Forum considerations: Section I A
• If, however, the ban on solicitation were found to be an independent restriction on speech occurring in a limited public forum, it would be judged according to stricter scrutiny.
• if the exclusion of some speakers is evidence that the Government did not intend to create such a forum, . . . no speaker challenging denial of access will ever be able to prove that the forum is a limited public forum. Cornelius, 473 U.S. at 473 U. S. 825 (dissenting opinion).
• I would find that the postal sidewalk is a public forum, either of the "traditional" or "limited-purpose" variety.
• Interference / Obstruction considerations: Section I B
• There is no evidence that Kokinda and Pearl's solicitation obstructed or impeded postal customers. [Respondents] were not charged with obstructing post office entrances, disturbing postal employees in the performance of their duties, or impeding the public in the transaction of postal business. There is nothing to suggest that they harassed, threatened, or physically detained unwilling listeners." 866 F.2d, at 704 (Citation omitted).
• the postal regulation is invalid as applied in this case because it: prohibits all solicitation; It sweeps an entire category of expressive activity off a public forum solely in the interest of administrative convenience.; It does not attempt to limit nondisruptive solicitation to a time, place, and manner consistent with post office operations; and it does not require that evidence of disruption be shown."
• Content considerations:
• Justice KENNEDY contends: "Please support my political advocacy group," he cannot be punished. If he says, "Please contribute $10," he is subject to criminal prosecution. His punishment depends entirely on what he says.
• Any restriction on speech the application of which turns on the substance of the speech is content-based, no matter what the Government's interest may be. See Boos, 485 U.S. at 485 U. S. 335-338 (BRENNAN, J., concurring in part and concurring in judgment).
• time, place, or manner considerations:
• In addition, the postal regulation is not a permissible time, place, or manner rule because its prohibition on solicitation is absolute, and not "narrowly tailored,"
• The postal regulation is a "time, place, or manner" rule only in the novel sense that it permits no manner of solicitation at any time or at any place in the forum. [Footnote 7]
• The Postal Service has never found solicitation on exterior sidewalks to pose a danger to postal operations. [Footnote 8]
• Postal Service has already promulgated legitimate time, place, and manner regulations that fully protect its interests in preventing disruption of postal operations: prohibit individuals from obstructing post office entrances, disturbing postal employees in the performance of their duties, or impeding the public in the transaction of postal business.
• Solicitation considerations: Section II
• The Postal Service does not subject to the same categorical prohibition many other types of speech presenting the same risk of disruption as solicitation, such as soapbox oratory, pamphleteering, distributing literature for free, or even flag-burning. [Footnote 10]
• Under the regulation, a group may stage a political rally to call attention to the problem of drug abuse [Footnote 11] and draw hundreds or even thousands of persons ... the group would be unable to ask a single member of the public for a contribution to advance its cause.
• This inconsistent treatment renders the prohibition on solicitation unreasonable.
• the Postal Service permits other types of speech that demand an immediate response from the listener, such as inviting passers-by to sign a petition to place an initiative proposal on the ballot.
• application of the general disturbance and obstruction rules is "administrable" with respect to other types of speech, I fail to understand how a case-by-case inquiry suddenly becomes impracticable in the context of solicitation. [Footnote 14]
• Section III
• I respectfully dissent.