|Cornelius v. NAACP Legal Defense and Educational Fund, Inc.
234 U.S.App.D.C. 148, 727 F.2d 1247, reversed and remanded.
[ O'Connor ]
[ Blackmun ]
[ Stevens ]
Cornelius v. NAACP Legal Defense and Educational Fund, Inc.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
JUSTICE BLACKMUN, with whom JUSTICE BRENNAN joins, dissenting.
I agree with the Court that the Combined Federal Campaign (CFC) is not a traditional public forum. I also agree with the Court that our precedents indicate that the Government may create a "forum by designation" (or, to use the term our cases have adopted, [n1] a "limited public forum") by allowing public property that traditionally has not been available for assembly and debate to be used as a place for expressive activity by certain speakers or about certain subjects. I cannot accept, however, the Court's circular reasoning that the CFC is not a limited public forum because the [p814] Government intended to limit the forum to a particular class of speakers. Nor can I agree with the Court's conclusion that distinctions the Government makes between speakers in defining the limits of a forum need not be narrowly tailored and necessary to achieve a compelling governmental interest. Finally, I would hold that the exclusion of the several respondents from the CFC was, on its face, viewpoint-based discrimination. Accordingly, I dissent.
The Court recognizes that its decisions regarding the right of a citizen to engage in expressive activity on public property generally have divided public property into three categories -- public forums, limited public forums, and nonpublic forums. The Court also concedes, as it must, that
a public forum . . . created by government designation of a place or channel of communication for use by the public at large for assembly and speech, for use by certain speakers, or for the discussion of certain subjects
is a limited public forum. Ante at 802 (emphasis added). It nevertheless goes on to find that the CFC is not a limited public forum precisely because the "Government's consistent policy has been to limit participation in the CFC" to certain speakers. Ante at 804. Because the Government intended to exclude some speakers from the CFC, the Court continues, the Government may exclude any speaker from the CFC on any "reasonable" ground, except viewpoint discrimination. In essence, the Court today holds that the First Amendment's guarantee of free speech and assembly, a "fundamental principle of the American government," Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring), reduces to this: when the Government acts as the holder of public property other than streets, parks, and similar places, the Government may do whatever it reasonably intends to do, so long as it does not intend to suppress a particular viewpoint. [p815]
The Court's analysis transforms the First Amendment into a mere ban on viewpoint censorship, ignores the principles underlying the public forum doctrine, flies in the face of the decisions in which the Court has identified property as a limited public forum, and empties the limited-public-forum concept of all its meaning.
The public forum doctrine arose out of the Court's efforts to address the recurring and troublesome issue of when the First Amendment gives an individual or group the right to engage in expressive activity on government property. See, e.g., Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37 (1983); Widmar v. Vincent, 454 U.S. 263 (1981); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975); Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969); Brown v. Louisiana, 383 U.S. 131 (1966); Hague v. CIO, 307 U.S. 496 (1939).
Access to government property can be crucially important to those who wish to exercise their First Amendment rights. Government property often provides the only space suitable for large gatherings, and it often attracts audiences that are otherwise difficult to reach. Access to government property permits the use of the less costly means of communication so "essential to the poorly financed causes of little people," Martin v. Struthers, 319 U.S. 141, 146 (1943), and "allow[s] challenge to governmental action at its locus." Cass, First Amendment Access to Government Facilities, 65 Va.L.Rev. 1287, 1288 (1979).
In addition to furthering the First Amendment rights of individuals, the use of government property for expressive activity helps further the interests that freedom of speech serves for society as a whole: it allows the "uninhibited, robust, and wide-open" debate about matters of public importance that secures an informed citizenry, New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964); it permits "the [p816] continued building of our politics and culture," Police Department of Chicago v. Mosley, 408 U.S. 92, 95-96 (1972); it facilitates political and societal changes through peaceful and lawful means, see Carey v. Brown, 447 U.S. 455, 467 (1980); and it helps to ensure that government is "responsive to the will of the people," Stromberg v. California, 283 U.S. 359, 369 (1931).
At the same time, however, expressive activity on government property may interfere with other important activities for which the property is used. Accordingly, in answering the question whether a person has a right to engage in expressive activity on government property, the Court has recognized that the person's right to speak and the interests that such speech serves for society as a whole must be balanced against the "other interests inhering in the uses to which the public property is normally put." Adderley v. Florida, 385 U.S. 39, 54 (1966) (dissenting opinion); see also Carey v. Brown, 447 U.S. at 470; Cox v. New Hampshire, 312 U.S. 569, 574 (1941).
The result of such balancing will depend, of course, upon the nature and strength of the various interests, which in turn depend upon such factors as the nature of the property, the relationship between the property and the message the speaker wishes to convey, and any special features of the forum that make it especially desirable or undesirable for the particular expressive activity. Broad generalizations about the proper balance are, for the most part, impossible. The Court has stated one firm guideline, however: the First Amendment does not guarantee that one may engage in expressive activity on government property when the expressive activity would be incompatible with important purposes of the property. Grayned v. City of Rockford, 408 U.S. 104, 116-117 (1972); see also United States Postal Service v. Greenburgh Civic Assns., 453 U.S. 114, 130, n. 6 (1981); Carey v. Brown, 447 U.S. at 470; Greer v. Spock, 424 U.S. 828, 843 (1976) (POWELL, J., concurring). [p817]
In applying that principle, the Court has found that public places generally may be divided into three categories. The first, the "quintessential public forums," includes those places "which by long tradition or by government fiat, have been devoted to assembly and debate," such as parks, streets, and sidewalks. Perry, 460 U.S. at 45; see also United States v. Grace, 461 U.S. 171, 177 (1983). In those places, expressive activity will rarely be incompatible with the intended use of the property, as is evident from the facts that they are "natural and proper places for dissemination of information and opinion," Schneider v. State, 308 U.S. 147, 163 (1939), and from "time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Hague v. CIO, 307 U.S. at 515.
The second category, which we have referred to as "limited public forums," consists primarily of government property which the government has opened for use as a place for expressive activity for a limited amount of time, Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 655 (1981), or for a limited class of speakers, Widmar v. Vincent, supra, or for a limited number of topics, Madison Joint School District v. Wisconsin Employment Relations Comm'n, 429 U.S. 167, 175, n. 8 (1976). See Perry, 460 U.S. at 45-46, and n. 7. In a limited public forum, it is not history or tradition, but the government's own acquiescence in the use of the property as a forum for expressive activity, that tells us that such activity is compatible with the uses to which the place is normally put.
In both public and limited public forums, because at least some types of expressive activity obviously are compatible with the normal uses of the property, the Court has recognized that people generally have a First Amendment right to engage in expressive activity upon the property. As noted above, however, the Court has observed that the right to engage in expressive activity on public property is not absolute, [p818] and must be balanced against interests served by the other uses to which the property is put. Accordingly, the Court has held that the government may regulate the time, place, and manner of the expressive activity in order to accommodate the "interest of all" members of the public to enjoy the use of the public space, Hague v. CIO, 307 U.S. at 516, and in order to treat fairly all those who have an equal right to speak on the property. Cox v. New Hampshire, 312 U.S. at 574. Such restrictions must be "justified without reference to the content of the regulated speech," be "narrowly tailored to serve a significant governmental interest," and "leave open ample alternative channels for communication." Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984); United States v. Grace, 461 U.S. at 177; Perry, 460 U.S. at 45; Heffron, 452 U.S. at 647-648.
The Court has held that regulations other than time, place, and manner restrictions must be necessary to serve a compelling governmental interest, and must be narrowly tailored to achieve that purpose. Perry, 460 U.S. at 45; see also Carey v. Brown, 447 U.S. at 465; Police Department of Chicago v. Mosley, 408 U.S. at 96-97. Again, however, because First Amendment rights must be "applied in light of the special characteristics of the . . . environment," Tinker, 393 U.S. at 506, the Court has recognized that a regulation that would not survive scrutiny if applied in the context of a public forum sometimes will be allowed in the context of a limited public forum. Restrictions based on the subject matter of the speech, for example, will almost never be justified in a public forum such as a park, but will more often be justified as necessary to reserve the limited public forum to expressive activity compatible with the property. See, e.g., Madison Joint School District, 429 U.S. at 175, n. 8. In a traditional public forum, the government rarely could offer as a compelling interest the need to reserve the property for its normal uses, because expressive activity of all types traditionally has been a normal use of the property. [p819] In a limited public forum, on the other hand, the need to confine expressive activity on the property to that which is compatible with the intended uses of the property will be a compelling interest that may justify distinctions made between speakers.
The third category, nonpublic forums, consists of property that is not compatible with general expressive activity. In those places, the government is not required to allow expressive activity. Of course, there often will be some such activity on the property by persons other than those, such as the government's own employees, who "belong" there. Some "outsiders" may be participants "in the forum's official business," and therefore may be allowed to use the property for expressive activity that furthers that business. See Perry, 460 U.S. at 53. Others may be provided access to the property by the government because it believes they will further the goals the government uses the property to serve. See, e.g., Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119, 133 (1977). Distinctions between those speakers allowed access and those not allowed access must be viewpoint-neutral, just as if the property were a traditional or limited public forum. Perry, 460 U.S. at 46. The Court has recognized, however, that reasonable and viewpoint-neutral distinctions between speakers that "relate to the special purpose for which the property is used" generally
are inherent and inescapable in the process of limiting the nonpublic forum to activities compatible with the intended purpose of the property.
Id. at 45, 49.
The line between limited public forums and nonpublic forums "may blur at the edges," and is really more in the nature of a continuum than a definite demarcation. Cf. United States Postal Service v. Greenburgh Civic Assns., 453 U.S. at 132 (the line between defining the forum and regulating the time, place, and manner of expressive activity in the forum blurs at the edges). The government may invite speakers to a nonpublic forum to an extent that the forum [p820] comes to be a limited public forum because it becomes obvious that some types of expressive activity are not incompatible with the forum. For example, the fact that the Government occasionally may invite a speaker to a military base to lecture on drug abuse does not support the inference that it would be compatible with the purposes of the base to provide a forum for all speakers, or even for all those who wish to speak on drug abuse. Greer v. Spock, 424 U.S. 828 (1976). But if the base sponsored a drug abuse prevention day, and invited many organizations to set up displays or information booths, the claim of a similar, uninvited group that the Government had established a limited public forum would be on much firmer ground.
Further, the three categories are not exclusive. There are instances in which property has not traditionally been used for a particular form of expressive activity, and the government has not acquiesced, but the Court's examination of the nature of the forum and the nature of the expressive activity led it to conclude that the activity was compatible with normal uses of the property, and was to be allowed. See, e.g., Brown v. Louisiana, 383 U.S. 131, 142 (1966) (plurality opinion); id. at 148 (BRENNAN, J., concurring in judgment); id. at 150 (WHITE, J., concurring in result).
Thus, the public forum, limited-public-forum, and nonpublic forum categories are but analytical shorthand for the principles that have guided the Court's decisions regarding claims to access to public property for expressive activity. The interests served by the expressive activity must be balanced against the interests served by the uses for which the property was intended and the interests of all citizens to enjoy the property. Where an examination of all the relevant interests indicates that certain expressive activity is not compatible with the normal uses of the property, the First Amendment does not require the government to allow that activity.
The Court's analysis, it seems to me, turns these principles on end. Rather than recognize that a nonpublic forum is a [p821] place where expressive activity would be incompatible with the purposes the property is intended to serve, the Court states that a nonpublic forum is a place where we need not even be concerned about whether expressive activity is incompatible with the purposes of the property. Rather than taking the nature of the property into account in balancing the First Amendment interests of the speaker and society's interests in freedom of speech against the interests served by reserving the property to its normal use, the Court simply labels the property and dispenses with the balancing.
The Court, of course, has recognized that the
First Amendment prohibits Congress from "abridging freedom of speech, or of the press," and its ramifications are not confined to the "public forum."
United States Postal Service v. Greenburgh Civic Assns., 453 U.S. at 131, n. 7. Nevertheless, it holds today that outside the "public forum," into which it collapses the limited-public-forum category, see infra, at 825, the constraint imposed upon the Government is nothing more than a rational basis requirement. The Court offers no explanation why attaching the label "nonpublic forum" to particular property frees the Government of the more stringent constraints imposed by the First Amendment in other contexts. The Government's interests in being able to use the property for the purposes for which it was intended obviously are important; that is why a compatibility requirement is imposed. But the Government's interests as property holder are hardly more important than its interests as the keeper of our military forces, as guardian of our federal elections, as administrator of our prisons, as educator, or as employer. When the Government acts in those capacities, we closely scrutinize its justifications for infringements upon expressive activity. See, e.g., Wayte v. United States, 470 U.S. 598, 611 (1985); Buckley v. Valeo, 424 U.S. 1, 25 (1976); Procunier v. Martinez, 416 U.S. 396, 413-414 (1974); Healy v. James, 408 U.S. 169 (1972); Pickering v. Board of Education, 391 U.S. 563 [p822] (1968); United States v. O'Brien, 391 U.S. 367, 377 (1968). Similarly, the mere fact that the Government acts as property owner should not exempt it from the First Amendment.
Nor should tradition or governmental "designation" be completely determinative of the rights of a citizen to speak on public property. Many places that are natural sites for expressive activity have no long tradition of use for expressive activity. Airports, for example, are a relatively recent phenomenon, as are government-sponsored shopping centers. Other public places may have no history of expressive activity because only recently have they become associated with the issue that citizens wish to use the property to discuss. It is likely that the library in Brown v. Louisiana, supra, historically had not been used for demonstrations for the obvious reason that its association with the subject of segregation became a topic of public protest only during the civil rights movement. [n2] Another reason a particular parcel of property may have little history of expressive use is that the Government has excluded expressive activity from the property unjustifiably. Cf. United States v. Grace, 461 U.S. at 180.
The guarantees of the First Amendment should not turn entirely on either an accident of history or the grace of the Government. Thus, the fact that the Government "owns" the property to which a citizen seeks access for expressive activity does not dispose of the First Amendment claim; it requires that we balance the First Amendment interests of those who seek access for expressive activity against the interests of the other users of the property and the interests served by reserving the property for its intended uses. The Court's analysis forsakes that balancing, and abandons the compatibility test that always has served as a threshold indicator of the proper balance. [p823]
Not only does the Court err in labeling the CFC a nonpublic forum without first engaging in a compatibility inquiry, but it errs as well in reasoning that the CFC is not a limited public forum because the Government permitted only "limited discourse," rather than "intentionally opening" the CFC for "public discourse." Ante at 802. That reasoning is at odds with the cases in which the Court has found public property to be a limited public forum. Just as the Government's
consistent policy has been to limit participation in the CFC to "appropriate" voluntary agencies and to require agencies seeking admission to obtain permission
from the relevant officials, ante at 804, the theater in Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975), limited the use of its facilities to "clean, healthful entertainment which will make for the upbuilding of a better citizenship" and required productions wishing to use the theater to obtain permission of the relevant officials. See id. at 549, n. 4. Under the Court's reasoning, therefore, the theater in Southeastern Promotions would not have been a limited public forum. Similarly, the university meeting rooms in Widmar v. Vincent, 454 U.S. 263 (1981), despite the Court's disclaimer, ante at 802-803, would not have been a limited public forum by the Court's reasoning, because the University had a policy of "selective access" whereby only registered nonreligious student groups, not religious student groups or the public at large, were allowed to meet in the rooms. [n3] [p824]
Nor does the Court's reasoning find support in those cases where the Court has rejected the claim that a particular property was a limited public forum. In Perry, for example, the Court assumed, arguendo, that by allowing groups such as the Cub Scouts to use its mail system, the school might have created a limited public forum for such organizations, even though the school clearly had no intent to open up the mail system for general "public discourse." 460 U.S. at 48. In Greer v. Spock, the Court stated that the fact that the military base had decided that lectures on drug abuse would be
supportive of the military mission . . . did not leave the authorities powerless thereafter to prevent any civilian from entering Fort Dix to speak on any subject whatever.
424 U.S. at 838, n. 10. In his concurring opinion in that case, JUSTICE POWELL made clear that this conclusion followed from the principle that the Court had to examine whether there was a "functional and symbolic incompatibility" between the particular expressive activity at issue and the "‘specialized society separate from civilian society' . . . that has its home on the base." Id. at 844, quoting Parker v. Levy, 417 U.S. 733, 743 (1974).
Finally, in Jones v. North Carolina Prisoners' Labor Union, in rejecting the claim that the grant of access to the Jaycees and Alcoholics Anonymous transformed a prison into a public forum, the Court again did not look merely to whether that grant of access indicated an intent to open the prison "for public discourse." Instead, it engaged in an explicit balancing of the various interests involved, and, relying particularly on the special deference due the informed discretion of prison officials, concluded that
[t]here is nothing in the Constitution which requires prison officials to treat all inmate groups alike where differentiation [between those [p825] allowed access and those denied access] is necessary to avoid an imminent threat of institutional disruption or violence.
433 U.S. at 136.
The Court's analysis empties the limited-public-forum concept of meaning and collapses the three categories of public forum, limited public forum, and nonpublic forum into two. The Court makes it virtually impossible to prove that a forum restricted to a particular class of speakers is a limited public forum. If the Government does not create a limited public forum unless it intends to provide an "open forum" for expressive activity, and if the exclusion of some speakers is evidence that the Government did not intend to create such a forum, ante at 804-805, no speaker challenging denial of access will ever be able to prove that the forum is a limited public forum. The very fact that the Government denied access to the speaker indicates that the Government did not intend to provide an open forum for expressive activity, and under the Court's analysis, that fact alone would demonstrate that the forum is not a limited public forum.
Further, the Court today explicitly redefines a limited public forum as a place which the Government intentionally opens "for public discourse." Ante at 802. But traditional public forums are "places which, by long tradition or by government fiat, have been devoted to assembly and debate." Perry, 460 U.S. at 45 (emphasis added). I fail to see how the Court's new definition of limited public forums distinguishes them from public forums.
The Court's strained efforts to avoid recognizing that the CFC is a limited public forum obscure the real issue in this case: what constraint does the First Amendment impose upon the Government's efforts to define the boundaries of a limited public forum? While I do not agree with the Court [p826] that the Government's consistent policy has been to limit access to the CFC to "traditional" charities through "extensive" eligibility criteria, the Government did indeed adopt eligibility criteria in 1983 specifically designed to exclude respondents. Exec.Order No. 12404, 3 CFR 151 (1984). Accordingly, the central question presented is whether those criteria need be anything more than rational.
The Court has said that access to a limited public forum extends only to "other entities of similar character." Perry, 460 U.S. at 48. It never has indicated, however, that the First Amendment imposes no limits on the government's power to define which speakers are of "similar character" to those already allowed access. Obviously, if the government's ability to define the boundaries of a limited public forum is unconstrained, the limited-public-forum concept is meaningless. Under that reasoning, the defendants in Widmar v. Vincent, 454 U.S. 263 (1981), would have been allowed to define the University's meeting places as limited to speakers of similar character to "nonreligious" groups; the defendants in Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975), would have been allowed to define their theater as limited to plays of similar character to "clean, healthful entertainment"; and the school board in Madison Joint School District v. Wisconsin Employment Relations Comm'n, 429 U.S. 167 (1976), would have been allowed to limit discussion of labor matters to persons similar in character to union representatives.
The constraints the First Amendment imposes upon the government's definition of the boundaries of a limited public forum follow from the principles underlying the public and limited-public-forum doctrine. As noted, the government's acquiescence in the use of property for expressive activity indicates that at least some expressive activity is compatible with the intended uses of the public property. If the government draws the boundaries of the forum to exclude expressive activity that is incompatible with the property, and to [p827] include that which is compatible, the boundaries will reflect precisely the balancing of interests the public forum doctrine was meant to encapsulate. If the government draws the line at a point which excludes speech that would be compatible with the intended uses of the property, however, then the government must explain how its exclusion of compatible speech is necessary to serve, and is narrowly tailored to serve, some compelling governmental interest other than preserving the property for its intended uses.
Petitioner does not even argue that the Government's exclusion of respondents from the CFC served any compelling governmental interest; she argues merely that the exclusion was "reasonable." The Court also implicitly concedes that the justifications petitioner offers would not meet anything more than the minimal "reasonable basis" scrutiny. Ante at 808-809. I agree that petitioner's justifications for excluding respondents neither reserve the CFC for expressive activity compatible with the property nor serve any other compelling governmental interest.
The Court would point to three "justifications" for the exclusion of respondents. First, the Court states that
the President could reasonably conclude that a dollar directly spent on providing food or shelter to the needy is more beneficial than a dollar spent on litigation that might or might not result in aid to the needy.
Ante at 809. I fail to see how the President's view of the relative benefits obtained by various charitable activities translates into a compelling governmental interest. The Government may have a compelling interest in increasing charitable contributions because charities provide services that the Government otherwise would have to provide. But that interest does not justify the exclusion of respondents, for respondents work to enforce the rights of minorities, women, and others through litigation, a task that various Government agencies otherwise might be called upon to undertake. [p828]
In any event, the fact that the President or his advisers may believe the money is best "directly spent on providing food or shelter to the needy" starkly fails to explain why respondents are excluded from the CFC while other groups that do not spend money to provide food or shelter directly to the needy are allowed to be included. [n4] Of the 237 groups included in the 1981-1982 CFC for the National Capital Area, only 61, or 26%, provide food, shelter, residential care, or information and referral services related to food or housing, according to the descriptions contained in the Contributor's Leaflet. Indeed, in the past few years, the CFC for the National Capital Area has included many groups that have absolutely nothing to do with the provision of food or shelter or other basic needs. [n5] [p829]
The Court next states that "avoiding the appearance of political favoritism is a valid justification for limiting speech in a nonpublic forum." Ante at 809. The Court, however, flatly has rejected that justification in the context of limited public forums. Widmar v. Vincent, 454 U.S. at 274. In addition, petitioner's proffered justification again fails to explain why respondents are excluded, when other groups, such as the National Right to Life Educational Trust Fund and Planned Parenthood, at least one of which the Government presumably would wish to avoid the appearance of supporting, are allowed to participate. And petitioner offers no explanation why a simple disclaimer in the brochure would not suffice to achieve the Government's interest in avoiding the appearance of support.
Nor is the Government's "interest in avoiding controversy" a compelling state interest that would justify the exclusion of respondents. The managers of the theater in Southeastern Promotions no doubt thought the exclusion of the rock musical Hair was necessary to avoid controversy, see 420 U.S. at 563-564 (Douglas, J., dissenting in part and concurring in result in part); and the school officials in Tinker thought their exclusion of students protesting the activities of the United States in Vietnam was necessary to avoid controversy, see 393 U.S. at 509-510. Yet in those cases, both of which involved limited public forums, the Court did not accept the mere avoidance of controversy as a compelling governmental interest. Rather, the Court in Tinker held that, in order to justify the exclusion of particular expressive activity, the government
must be able to show that its action was caused by something more than a mere desire to avoid the discomfort [p830] and unpleasantness that always accompany an unpopular viewpoint.
393 U.S. at 509. The government instead must show that the excluded speech would "‘materially and substantially interfere'" with the other activities for which the public property was intended. Ibid., quoting Burnside v. Byars, 363 F.2d 744, 749 (CA5 1966); see also Cox v. Louisiana, 379 U.S. 536, 551 (1965); Terminiello v. Chicago, 337 U.S. 1, 4 (1949).
No such showing has been made here. As the Court of Appeals noted, the record completely fails to support any assertion that the "controversy" threatened to interfere with the purposes of the federal workplace. The Court admits that the avoidance of controversy in the forum itself is not a valid ground for restricting speech in a public forum, ante at 811, and the same rule governs limited public forums. The fact that the CFC is limited to a particular class of speakers does not mean that it is not dedicated to "the free exchange of ideas." Ibid. A central purpose of the CFC obviously is to give federal employees the opportunity to choose among the charities that meet legitimate eligibility criteria, and the free exchange of ideas about which of those causes one should support is not to be infringed merely because a vocal minority does not wish to devote their charitable dollars to a particular charity.
Further, even if the avoidance of controversy in the forum itself could ever serve as a legitimate governmental purpose, the record here does not support a finding that the inclusion of respondents in the CFC threatened a material and substantial disruption. In fact, the evidence shows that contributions to the CFC increased during each of the years respondents participated in the Campaign. See Brief for Respondents 34 and sources cited therein. The "hundreds" of phone calls and letters expressing a preference that groups other than "traditional" charities be excluded from the CFC reflect nothing more than the discomfort that can be expected whenever a change is made, and whenever any opinion [p831] is expressed on a topic of concern to the huge force in 1983 of some 2.7 million civilian federal employees. [n6] The letters objecting to the inclusion of respondents in the Campaign must be considered against the fact that many federal employees obviously supported their inclusion in the CFC, as is evidenced by the substantial contributions respondents received through the Campaign.
It is true that unions organized boycotts of the CFC in some areas because of their opposition to the participation in the CFC of the National Right to Work Legal Defense and Education Fund, and that, in those areas, contributions sometimes declined. But the evidence also showed that, after some initial confusion regarding whether the organization the unions found objectionable was receiving undesignated contributions, the major unions urged their members simply to designate their contributions so that none went to that group. Further, apparently recognizing that its exclusion of all respondents merely because they share one characteristic with the organization that generated controversy is hardly a narrowly tailored exclusion, petitioner steadfastly maintains that the Government does not claim a right to exclude individual groups in "response to objections from federal employees"; petitioner claims instead that the Government has a right to
differentiate among broad categories of organizations, based on various reasons, including the belief that inclusion of organizations in one category is more likely to engender controversy among federal employees and to jeopardize the success of the Campaign because of the nature of the activities of those organizations.
Reply Brief for Petitioner 14, n. 11. Tinker made clear that the exclusion of expressive activity must be based on more than such "undifferentiated fear or apprehension of disturbance." 393 U.S. at 508. [p832]
Even if I were to agree with the Court's determination that the CFC is a nonpublic forum, or even if I thought that the Government's exclusion of respondents from the CFC was necessary and narrowly tailored to serve a compelling governmental interest, I still would disagree with the Court's disposition, because I think the eligibility criteria, which exclude charities that "seek to influence . . . the determination of public policy," Executive Order No. 12404, 3 CFR 152 (1984), is, on its face, viewpoint-based. Petitioner contends that the criteria are viewpoint-neutral because they apply equally to all "advocacy" groups regardless of their "political or philosophical leanings." Brief for Petitioner 30. The relevant comparison, however, is not between the individual organizations that make up the group excluded, but between those organizations allowed access to the CFC and those denied such access.
By devoting its resources to a particular activity, a charity expresses a view about the manner in which charitable goals can best be achieved. Charities working toward the same broad goal, such as "improved health," may have a variety of views about the path to that goal. Some of the "health services" charities participating in the 1982 National Capital Area CFC, for example, obviously believe that they can best achieve "improved health care" through medical research; others obviously believe that their resources are better spent on public education; others focus their energies on detection programs; and still others believe the goal is best achieved through direct care for the sick. Those of the respondents concerned with the goal of improved health, on the other hand, obviously think that the best way to achieve that goal is by changing social policy, creating new rights for various groups in society, or enforcing existing rights through litigation, lobbying, and political activism. That view cannot be communicated through the CFC, according to the Government's [p833] eligibility criteria. Instead, Government employees may hear only from those charities that think that charitable goals can best be achieved within the confines of existing social policy and the status quo. The distinction is blatantly viewpoint-based, so I see no reason to remand for a determination of whether the eligibility criteria are a "facade" for viewpoint-based discrimination.
I would affirm the judgment of the Court of Appeals.
1. See, e.g., Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 48 (1983); Heron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 655 (1981).
2. See generally Note, A Unitary Approach to Claims of First Amendment Access to Publicly Owned Property, 35 Stan.L.Rev. 121, 137 (1982).
3. Other cases in which this Court has found that the First Amendment prohibited regulations restricting expressive activity in a public place also are inexplicable under the Court's analysis. By the Court's reasoning, there would have been no basis for the holding in Tinker v. De Moines Independent Community School District, 393 U.S. 503 (1969), that the First Amendment protects the right of high school students to wear armbands protesting the "hostilities in Vietnam." Id. at 504. Schools have never been identified as "quintessential public forums" like parks, and they practice a policy of selective access, because they are not open to students and nonstudents alike. Under the Court's analysis, it would follow that
a finding of strict incompatibility between the nature of the speech or the identity of the speaker and the functioning of the nonpublic forum is not mandated.
Ante at 808. But Tinker required precisely such a showing of incompatibility. 393 U.S. at 509.
4. Nor does petitioner's argument that money is best spent on providing food and shelter directly to those in need explain why groups that provide legal aid services that are not limited to a particular "kind of cause, claim, or defense," see 5 CFR § 950.101(a)(1)(i)(H) (1984), are admitted, while respondents are not, or why groups that provide assistance related to custody disputes and related legal problems, see 1981 Contributor's Leaflet (description of International Social Service, American Branch), are admitted, while respondents are not.
5. During the 1981-1982 Campaign year, groups allowed to participate in the CFC for the National Capital Area included Close-up, "An alternative means of political education structured to teach high school students about government while providing opportunities for involvement to aid in deciding political futures"; The Rep, Incorporated, which "Provides a forum for training and educating writers, actors, theatrical directors and other theatre craftsmen"; African Heritage Dancers and Drummers, "A community arts organization designed to give students and area residents a greater appreciation of traditional African arts, dance and music"; D.C. Striders, "An organization of promising high school athletes which provides structured programs for field and track competitors"; the District of Columbia Music Center, which "Provides the opportunity for understanding and appreciation of the Fine Arts through study and performance", and the Howard Theatre Foundation, which "Preserves the cultural legacy of the Howard Theatre." Those groups may well provide most worthwhile services, but their inclusion in the CFC is difficult to square with the Government's purported conclusion that charitable contributions are best spent providing food or shelter to the needy. Petitioner would explain all these inconsistencies by saying that, at times, the Government may have misapplied its own eligibility criteria. Brief for Petitioner 49. If the Government is truly concerned that money be spent directly on food and shelter for the needy, it is strange that it could have misapplied its criteria almost 75% of the time.
6. Bureau of the Census, Statistical Abstract of the United States 322 (1985).