|United States v. Kokinda (88-2031), 497 U.S. 720 (1990)|
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337.
UNITED STATES v. KOKINDA, et al.
certiorari to the united states court of appeals for the fourth circuit
Respondents, 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 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. When respondents refused to leave the premises, they were arrested and subsequently convicted by a Federal Magistrate of violating, inter alia, 39 CFR 232.1(h)(1), which prohibits solicitation on postal premises. The District Court affirmed the convictions. It rejected respondents' argument that 232.1(h)(1) violated the First Amendment, holding that the postal sidewalk was not a public forum and that the ban on solicitation is reasonable. The 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.
Held: The judgment is reversed.
866 F. 2d 699, reversed.
Justice O'Connor, joined by The Chief Justice, Justice White, and Justice Scalia, concluded that the regulation, as applied, does not violate the First Amendment. Pp. 3-15.
(a) Although solicitation is a recognized form of speech protected by the First Amendment, the Government may regulate such activity on its property to an extent determined by the nature of the relevant forum. Speech activity on governmental property that has been traditionally open to the public for expressive activity or has been expressly dedicated by the Government to speech activity is subject to strict scrutiny. Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45. However, where the property is not a traditional public forum and the Government has not dedicated its property to First Amendment activity, such regulation is examined only for reasonableness. Id., at 46. Pp. 3-5.
(b) Section 232.1(h)(1) must be analyzed under the standards applicable to nonpublic fora: it must be reasonable and "not an effort to suppress expression merely because public officials oppose the speaker's view." Ibid. The postal sidewalk is not a traditional public forum. The fact that the sidewalk resembles the municipal sidewalk across the parking lot from the post-office is irrelevant to forum analysis. See Greer v. Spock, 424 U.S. 828. The sidewalk was constructed solely to provide for the passage of individuals engaged in postal business, not as a public passageway. Nor has the Postal Service expressly dedicated its sidewalk to any expressive activity. Postal property has only been dedicated to the posting of public notices on designated bulletin boards. A practice of allowing individuals and groups to leaflet, speak, and picket on postal premises and a regulation prohibiting disruptive conduct do not add up to such dedication. Even conceding that the forum has been dedicated to some First Amendment uses, and thus is not a purely nonpublic forum, regulation of the reserved nonpublic uses would still require application of the reasonableness test. Pp. 5-9.
(c) It is reasonable for the Postal Service to prohibit solicitation where it has determined that the intrusion creates significant interference with Congress' mandate to ensure the most effective and efficient distribution of the mails. The categorical ban is based on the Service's long, real-world experience with solicitation, which has shown that, because of continual demands from a wide variety of groups, administering a program of permits and approvals had distracted postal facility managers from their primary jobs. Whether or not the Service permits other forms of speech, it is not unreasonable for it to prohibit solicitation on the ground that it inherently disrupts business by impeding the normal flow of traffic. See Heffron v. ISKCON, 452 U.S. 640, 653. Confrontation by a person asking for money disrupts passage and is more intrusive and intimidating than an encounter with a person giving out information. Even if more narrowly tailored regulations could be promulgated, the Service is only required to promulgate reasonable regulations, not the most reasonable or the only reasonable regulation possible. Clearly, the regulation does not discriminate on the basis of content or viewpoint. The Service's concern about losing customers because of the potentially unpleasant situation created by solicitation per se does not reveal an effort to discourage one viewpoint and advance another. Pp. 9-15.
Justice Kennedy, agreeing that the regulation does not violate the First Amendment, concluded that it is unnecessary to determine whether the sidewalk is a nonpublic forum, since the regulation meets the traditional standards applied to time, place, and manner restrictions of protected expression. See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293. The regulation expressly permits 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 immediate payments on the premises. The Government has a significant interest in protecting the integrity of the purposes to which it has dedicated its property, that is, facilitating its customers' postal transactions. Given the Postal Service's past experience with expressive activity on its property, its judgment that in-person solicitation should be treated differently from alternative forms of solicitation and expression should not be rejected. Pp. 2-3.
O'Connor, J., announced the judgment of the Court and delivered an opinion, in which Rehnquist, C.J., and White and Scalia, JJ., joined. Kennedy, J., filed an opinion concurring in the judgment. Brennan, J., filed a dissenting opinion, in which Marshall and Stevens, JJ., joined, and in which Blackmun, J., joined as to Part I.