|United States v. Kokinda (88-2031), 497 U.S. 720 (1990)|
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
Justice O'Connor announced the judgment of the Court and delivered an opinion in which The Chief Justice, Justice White, and Justice Scalia join.
We are called upon in this case to determine whether a United States Postal Service regulation that prohibits "[s]oliciting alms and contributions" on postal premises violates the First Amendment. We hold the regulation valid as applied.
The respondents in this case, Marsha B. Kokinda and Kevin E. Pearl, were volunteers for the National Democratic Policy Committee, who set up a table on the sidewalk near the entrance of the Bowie, Maryland, post-office to solicit contributions, sell books and subscriptions to the organization's newspaper, and distribute literature addressing a variety of political issues. The postal sidewalk provides the sole means by which customers of the post-office may travel from the parking lot to the post-office building and lies entirely on Postal Service property. The District Court for the District of Maryland described the layout of the post-office as follows:
"[T]he Bowie post-office is a freestanding building, with its own sidewalk and parking lot. It is located on a major highway, Route 197. A sidewalk runs along the edge of the highway, separating the post-office property from the street. To enter the post-office, cars enter a driveway that traverses the public sidewalk and enter a parking lot that surrounds the post-office building. Another sidewalk runs adjacent to the building itself, separating the parking lot from the building. Postal patrons must use the sidewalk to enter the post-office. The sidewalk belongs to the post-office and is used for no other purpose." App. to Pet. for Cert. 24a.
During the several hours that respondents were at the post-office, postal employees received between 40 and 50 complaints regarding their presence. The record does not in dicate the substance of the complaints with one exception. One individual complained "because she knew the Girl Scouts were not allowed to sell cookies on federal property." 866 F. 2d 699, 705 (CA4 1989). The Bowie postmaster asked respondents to leave, which they refused to do. Postal inspectors arrested respondents, seizing their table as well as their literature and other belongings.
Respondents were tried before a United States Magistrate in the District of Maryland and convicted of violating 39 CFR 232.1(h)(1) (1989), which provides in relevant part:
"Soliciting alms and contributions, campaigning for election to any public office, collecting private debts, commercial soliciting and vending, and displaying or dis tributing commercial advertising on postal premises are prohibited."
Respondent 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.
Respondents appealed their convictions to the District Court, asserting that application of 232.1(h)(1) violated the First Amendment. The District Court affirmed their convictions, holding that the postal sidewalk was not a public forum and that the Postal Service's ban on solicitation is reasonable.
A divided panel of the United States Court of Appeals for the Fourth Circuit reversed. 866 F. 2d 699 (1989). The Court of Appeals held that the postal sidewalk is a traditional public forum and analyzed the regulation as a time, place, and manner regulation. The Court 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.
The United States' petition for rehearing and a suggestion for rehearing en banc were denied. 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. (1989).
Solicitation is a recognized form of speech protected by the First Amendment. See Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 629 (1980); Riley v. National Federation of Blind of N.C., Inc., 487 U.S. 781, 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.
The Government's ownership of property does not automatically open that property to the public. United States Postal Service v. Council of Greenburgh Civic Assns., 453 U.S. 114, 129 (1981). 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] ...." Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 896 (1961). That distinction was reflected in the plurality opinion in Lehman v. City of Shaker Heights, 418 U.S. 298 (1974), which upheld a ban on political advertisements in city transit vehicles:
"Here, we have no open spaces, no meeting hall, park, street corner, or other public thoroughfare. Instead, the city is engaged in commerce. . . . The car card space, although incidental to the provision of public transportation, is a part of the commercial venture. In much the same way that a newspaper or periodical, or even a radio or television station, need not accept every proffer of advertising from the general public, a city transit system has discretion to develop and make reasonable choices concerning the type of advertising that may be displayed in its vehicles." Id., at 303.
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." Ibid. In Lehman, the plurality concluded that the ban on political advertisements (combined with the allowance of other advertisements) was permissible under this standard:
"Users [of the transit system] would be subjected to the blare of political propaganda. There could be lurking doubts about favoritism, and sticky administrative problems might arise in parceling out limited space to eager politicians. In these circumstances, the managerial decision to limit car card space to innocuous and less con troversial commercial and service oriented advertising does not rise to the dignity of a First Amendment violation. Were we to hold to the contrary, display cases in public hospitals, libraries, office buildings, military compounds, and other public facilities immediately would become Hyde Parks open to every would-be pamphleteer and politician. This the Constitution does not require." Id., at 304.
Since Lehman, "the Court has adopted a forum analysis as a means of determining when the Government's interest in limiting the use of its property to its intended purpose outweighs the interest of those wishing to use the property for other purposes. 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, 800 (1985). In Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37 (1983), the Court announced a tripartite framework for determining how First Amendment interests are to be analyzed with respect to Government property. Regulation of speech activity on governmental property that has been traditionally open to the public for expressive activity, such as public streets and parks, is examined under strict scrutiny. Id., at 45. Regulation of speech on property that the Government has expressly dedicated to speech activity is also examined under strict scrutiny. Ibid. But regulation of speech activity where the Government has not dedicated its property to First Amendment activity is examined only for reasonableness. Id., at 46.
Respondents contend that although the sidewalk is on postal service property, because it is not distinguishable from the municipal sidewalk across the parking lot from the post-office's entrance, it must be a traditional public forum and therefore subject to strict scrutiny. This argument is unpersuasive. The mere physical characteristics of the property cannot dictate forum analysis. If they did, then Greer v. Spock, 424 U.S. 828 (1976), would have been decided differ ently. In that case, we held that even though a military base permitted free civilian access to certain unrestricted areas, the base was a nonpublic forum. The presence of sidewalks and streets within the base did not require a finding that it was a public forum. Id., at 835-837.
The postal sidewalk at issue does not have the characteristics of public sidewalks traditionally open to expressive activity. The municipal sidewalk that runs parallel to the road in this case is a public passageway. The Postal Service's sidewalk is not such a thoroughfare. Rather, it leads only from the parking area to the front door of the post-office. Unlike the public street described in Heffron v. Int'l Soc. for Krishna Consciousness, Inc., 452 U.S. 640 (1981), which was "continually open, often uncongested, and constitute[d] not only a necessary conduit in the daily affairs of a locality's citizens, but also a place where people [could] enjoy the open air or the company of friends and neighbors in a relaxed environment," id., at 651, the postal sidewalk was constructed solely to provide for the passage of individuals engaged in postal business. The sidewalk leading to the entry of the post-office is not the traditional public forum sidewalk referred to in Perry.
Nor is the right of access under consideration in this case the quintessential public sidewalk which we addressed in Frisby v. Schultz, 487 U.S. 474 (1988) (residential sidewalk). The postal sidewalk was constructed solely to assist postal patrons to negotiate the space between the parking lot and the front door of the post-office, not to facilitate the daily commerce and life of the neighborhood or city. The dissent would designate all sidewalks open to the public as public fora. See post, at 6 ("[T]hat the walkway at issue is a public sidewalk is alone sufficient to identify it as a public forum"). That, however, is not our settled doctrine. In United States v. Grace, 461 U.S. 171 (1983), we did not merely identify the area of land covered by the regulation as a sidewalk open to the public and therefore conclude that it was a public forum:
"The sidewalks comprising the outer boundaries of the Court grounds are indistinguishable from any other sidewalks in Washington, D.C., and we can discern no reason why they should be treated any differently. Sidewalks, of course, are among those areas of public property that traditionally have been held open to the public for expressive activities and are clearly within those areas of public property that may be considered, generally without further inquiry, to be public forum property. In this respect, the present case differs from Greer v. Spock .... In Greer, the streets and sidewalks at issue were located within an enclosed military reservation, Fort Dix, N.J., and were thus separated from the streets and sidewalks of any municipality. That is not true of the sidewalks surrounding the Court. There is no separation, no fence, and no indication whatever to persons stepping from the street to the curb and sidewalks that serve as the perimeter of the Court grounds that they have entered some special type of enclave." Id., at 179180 (footnote omitted).
Grace instructs that the dissent is simply incorrect in asserting that every "public sidewalk" is a public forum. Post, at 67. As we recognized in Grace, the location and purpose of a publicly-owned sidewalk is critical to determining whether such a sidewalk constitutes a public forum.
The dissent's attempt to distinguish Greer is also unpersuasive. The dissent finds Greer "readily distinguishable, because the sidewalk in that case was not truly 'open' to the public." Post, at 9, n.5. This assertion is surprising in light of Justice Brennan's description of the public access permitted in Greer:
"No entrance to the Fort is manned by a sentry or blocked by any barrier. The reservation is crossed by 10 paved roads, including a major state highway. Civilians without any prior authorization are regular visitors to unrestricted areas of the Fort or regular pass through it, either by foot or by auto, at all times of the day and night. Civilians are welcome to visit soldiers and are welcome to visit the Fort as tourists. They eat at the base and freely talk with recruits in unrestricted areas. Public service buses, carrying both civilian and military passengers, regularly serve the base. A 1970 traffic survey indicated that 66,000 civilian and military vehicles per day entered and exited the Fort. Indeed, the reservation is so open as to create a danger of muggings after payday and a problem with prostitution." 424 U.S., at 851 (dissenting opinion).
In Greer we held that the power of the Fort's commanding officer summarily to exclude civilians from the area of his command demonstrated that "[t]he notion that federal military reservations, like municipal streets and parks, have traditionally served as a place for free public assembly and communication of thoughts by private citizens is ... historically and constitutionally false." Id., at 838. It is the latter inquiry that has animated our traditional public forum analysis, and that we apply today. Postal entryways, like the walkways at issue in Greer, may be open to the public, but that fact alone does not establish that such areas must be treated as traditional public fora under the First Amendment.
The Postal Service has not expressly dedicated its sidewalks to any expressive activity. Indeed, postal property is expressly dedicated to only one means of communication: the posting of public notices on designated bulletin boards. See 39 CFR 232.1(o) (1989). No postal service regulation opens postal sidewalks to any First Amendment activity. To be sure, individuals or groups have been permitted to leaflet, speak, and picket on postal premises, see Reply Brief for United States 12; 43 Fed. Reg. 38824 (1978), but a regulation prohibiting disruption, 39 CFR 232(1)(e) (1989), and a practice of allowing some speech activities on postal property do not add up to the dedication of postal property to speech activities. We have held that "[t]he government does not create a public forum by ... permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse." Cornelius, supra, at 802 (emphasis added); see also Perry, supra, at 47 ("[S]elective access does not transform government property into a public forum"). Even conceding that the forum here has been dedicated to some First Amendment uses, and thus is not a purely nonpublic forum, under Perry, regulation of the reserved nonpublic uses would still require application of the reasonableness test. See Cornelius, supra, at 804-806.
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." Perry, supra, at 46. Indeed, "[c]ontrol over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral." Cornelius, supra, at 806. "The Government's decision to restrict access to a nonpublic forum need only be reasonable; it need not be the most reasonable or the only reasonable limitation." Id., at 808.
The history of regulation of solicitation in post-offices demonstrates the reasonableness of the provision here at issue. The Postal Service has been regulating solicitation at least since 1958. Before enactment of the 1970 Postal Reorga nization Act, Pub. L. 91375, 84 Stat. 720, 39 U.S.C. 201 et seq., the Post-Office Department's internal guidelines "strictly prohibited" the "[s]oliciting [of] subscriptions, canvassing for the sale of any article, or making collections ... in buildings operated by the Post-Office Department, or on the grounds or sidewalks within the lot lines" of postal prem ises. Postal Service Manual, Facilities Transmittal Letter 8, Buildings Operation: Buildings Operated by the Post-Office Department 622.8 (July 1958). The Service prohibited all forms of solicitation until 1963, at which time it created an exception to its categorical ban on solicitation to enable certain "established national health, welfare, and veterans' organizations" to conduct fund drives "at or within" postal premises with the local postmaster's permission, and at his discretion. See Facilities Transmittal letter 53, Buildings Operation: Buildings Operated by the Post-Office Department 622.8 (July 1963). The general prohibition on solici tation was enlarged in 1972 to include "[s]oliciting alms and contributions or collecting private debts on postal premises." 37 Fed. Reg. 24347 (1972), codified at 39 CFR 232.6(h)(1) (1973).
Soon after the 1972 amendment to the regulation, the Service expanded the exemption to encompass "[n]ational organizations which are wholly nonprofit in nature and which are devoted to charitable or philanthropic purposes" and "[l]ocal charitable and other nonprofit organizations," 39 CFR 232.6(h)(2), (3) (1974), and to permit these organizations to "request use of lobby space for annual or special fund raising campaigns, providing they do not interfere with the transaction of postal business or require expenditures by the Postal Services or the use of its employees or equipment." 38 Fed. Reg. 2782427825 (1973), codified at 39 CFR 232.16(h)(2) (1974). Finally, in 1978, the Service promulgated the regulation at issue here. After 15 years of pro viding various exceptions to its rule against solicitation, the Service concluded that a categorical ban on solicitation was necessary, because the "Postal Service lacks the resources to enforce such regulation in the tens of thousands of post-offices throughout the nation. In addition, such regulation would be, of necessity, so restrictive as to be tantamount to prohibition, and so complex as to be unadministrable." 43 Fed. Reg. 38824 (1978).
"[C]onsideration of a forum's special attributes is relevant to the constitutionality of a regulation since the significance of the governmental interest must be assessed in light of the characteristic nature and function of the particular forum involved." Heffron, supra, at 650651. The purpose of the forum in this case is to accomplish the most efficient and effective postal delivery system. See 39 U.S.C. 403(a); 403(b)(1); H.R. Rep. No.911104, pp.1, 5, 1112, 17, 19 (1970). Congress has made clear that "it wished the Postal Service to be run more like a business than had its predecessor, the Post-Office Department." Franchise Tax Board of California v. United States Postal Service, 467 U.S. 512, 519520, and n.13 (1984). Congress has directed the Service to become a self-sustaining service industry and to "seek out the needs and desires of its present and potential cus tomersthe American public" and to provide services in a manner "responsive" to the "needs of the American people." H.R. Rep. No.911104, supra, at 1920. The Postal Service has been entrusted with this mission at a time when the mail service market is becoming much more competitive. It is with this mission in mind that we must examine the regulation at issue.
The Government asserts that it is reasonable to restrict access of postal premises to solicitation, because solicitation is inherently disruptive of the postal service's business. We agree. "Since the act of soliciting alms or contributions usually has as its objective an immediate act of charity, it has the potentiality for evoking highly personal and subjective reactions. Reflection usually is not encouraged, and the person solicited often must make a hasty decision whether to share his resources with an unfamiliar organization while under the eager gaze of the solicitor." 43 Fed. Reg. 38824 (1978).
The dissent avoids determining whether the sidewalk is a public forum because it believes the regulation, 39 CFR 232.1(h) (1989), does not pass muster even under the rea sonableness standard applicable to nonpublic fora. In concluding that 232.1(h) is unreasonable, the dissent relies heavily on the fact that the Service permits other types of potentially disruptive speech on a case-by-case basis. The dissent's criticism in this regard seems to be that solicitation is not receiving the same treatment by the Postal Service that other forms of speech receive. See post, at 21 (criticizing "inconsistent treatment"). That claim, however, is more properly addressed under the equal protection component of the Fifth Amendment. In any event, it is anomalous that the Service's allowance of some avenues of speech would be relied upon as evidence that it is impermissibly suppressing other speech. If anything, the Service's generous accommodation of some types of speech testifies to its willingness to provide as broad a forum as possible, consistent with its postal mission. The dissent would create, in the name of the First Amendment, a disincentive for the Government to dedicate its property to any speech activities at all. In the end, its approach permits it to sidestep the single issue before us: Is the Government's prohibition of solicitation on postal sidewalks unreasonable?
Whether or not the Service permits other forms of speech, which may or may not be disruptive, it is not unreasonable to prohibit solicitation on the ground that it is unquestionably a particular form of speech that is disruptive of business. Solicitation impedes the normal flow of traffic. See Heffron, supra, at 653. Solicitation requires action by those who would respond: the individual solicited must decide whether or not to contribute (which itself might involve reading the solicitor's literature or hearing his pitch), and then, having decided to do so, reach for a wallet, search it for money, write a check, or produce a credit card. See Record, Exh. 5 (credit card receipt); see also United States v. Belsky, 799 F.2d 1485 (CA11 1986) ("Soliciting funds is an inherently more intrusive and complicated activity than is distributing literature"). As residents of metropolitan areas know from daily experience, confrontation by a person asking for money disrupts passage and is more intrusive and intimidating than an encounter with a person giving out information. One need not ponder the contents of a leaflet or pamphlet in order mechanically to take it out of someone's hand, but one must listen, comprehend, decide and act in order to respond to a solicitation. Solicitors can achieve their goal only by "stopping [passersby] momentarily or for longer periods as money is given or exchanged for literature" or other items. Heffron, supra, at 653 (upholding stringent restrictions on the location of sales and solicitation activity). Justice Blackmun noted this distinction in his opinion concurring in part and dissenting in part to Heffron:
"The distribution of literature does not require that the recipient stop in order to receive the message the speaker wishes to convey; instead, the recipient is free to read the message at a later time. . . . [S]ales and the the collection of solicited funds not only require the fairgoer to stop, but also 'engender additional confusion ... because they involve acts of exchanging articles for money, fumbling for and dropping money, making change, etc." 452 U.S., at 665 (citation omitted).
This description of the disruption and delay caused by solicitation rings of "common-sense," ibid., which is sufficient in this Court to uphold a regulation under reasonableness review.
The Postal Service's judgment is based on its long experience with solicitation. It has learned from this experience that because of a continual demand from a wide range of groups for permission to conduct fundraising or vending on postal premises, postal facility managers were distracted from their primary jobs by the need to expend considerable time and energy fielding competing demands for space and administering a program of permits and approvals. See Tr. of Oral Arg. 9 ("The Postal Service concluded after an experience with limited solicitation that there wasn't enough room for everybody who wanted to solicit on postal property and further concluded that allowing limited solicitation carried with it more problems than it was worth"). Thus, the Service found that "even the limited activities permitted by [its] program . . . produced highly unsatisfactory results." 42 Fed. Reg. 63911 (1977). It is on the basis of this real-world experience that the Postal Service enacted the regulation at issue in this case. The Service also enacted regulations barring deposit or display of written materials except on authorized bulletin boards "to regain space for the effective display of postal materials and the efficient transaction of postal business, eliminate safety hazards, reduce main tenance costs, and improve the appearance of exterior and public-use areas on postal premises." 43 Fed. Reg. 38824 (1978); see 39 CFR 232.1(o) (1989). In short, the Postal Service has prohibited the use of its property and resources where the intrusion creates significant interference with Congress' mandate to ensure the most effective and efficient distribution of the mails. This is hardly unreasonable.
The dissent concludes that the Service's administrative concerns are unreasonable, largely because of the existence of less restrictive alternatives to the regulations at issue. See post, at 2223. Even if more narrowly tailored regulations could be promulgated, however, 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 808.
The dissent also would strike the regulation on the ground that the Postal Service enacted it because solicitation "would be likely to produce hostile reactions and to cause people to avoid post-offices." 43 Fed. Reg. 38824 (1978). The dissent reads into the Postal Service's realistic concern with losing postal business because of the uncomfortable atmosphere created by aggressive solicitation an intent to suppress certain views. See post, at 15. But the Postal Service has never intimated that it intends to suppress the views of any "disfavored or unpopular political advocacy group." Ibid. It is the inherent nature of solicitation itself, a content-neutral ground, that the Service justifiably relies upon when it concludes that solicitation is disruptive of its business. The regulation is premised on the Service's long experience, on the fact that solicitation is inherently more disruptive than the other speech activities it permits, and on the Service's empirically based conclusion that a case-by-case approach to regulation of solicitation is unworkable.
Clearly, the regulation does not discriminate on the basis of content or viewpoint. Indeed, "[n]othing suggests the Postal Service intended to discourage one viewpoint and advance another.... By excluding all ... groups from engaging in [solicitation] the Postal Service is not granting to 'one side of a debatable public question ... a monopoly in expressing its views.'" Monterey County Democratic Central Committee v. United States Postal Service, 812 F. 2d 1194, 11981199 (CA9 1987) (citation omitted). The Service's concern about losing customers because of the potentially unpleasant situation created by solicitation per se does not reveal "an effort to suppress expression merely because public officials oppose the speaker's view." Perry, 460 U.S., at 45-46.
It is clear that this regulation passes constitutional muster under the Court's usual test for reasonableness. See Lehman, 418 U.S., at 303; Cornelius, 473 U.S., at 808. Accordingly, we conclude, as have the Courts of Appeals for the Third and Eleventh Circuits, that the Postal Service's regu lation of solicitation is reasonable as applied. See United States v. Belsky, 799 F. 2d 1485 (CA11 1986); United States v. Bjerke, 796 F. 2d 643 (CA3 1986).
The judgment of the court of appeals is