U.S. v. Kokinda, 497 U.S. 720

JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE STEVENS join and with whom JUSTICE BLACKMUN joins as to Part I, Dissenting.

(Citations, footnotes omitted)

Today the Court holds that a United States Postal Service regulation prohibiting persons from "soliciting alms and contributions" on postal premises does not violate the First Amendment as applied to members of a political advocacy group who solicited contributions from a sidewalk outside the entrance to a post office. A plurality finds that the sidewalk is not a public forum and that the Postal Service regulation is valid because it is "reasonable." JUSTICE KENNEDY concludes that although the sidewalk might well be a public forum, the regulation is permissible as applied because it is a content-neutral time, place, or manner restriction on protected speech.

Neither of these Conclusions is justified. 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. Moreover, even if I did not regard the sidewalk in question as a public forum, I could not subscribe to the plurality's position that respondents can validly be excluded from the sidewalk, because I believe that the distinction drawn by the postal regulation between solicitation and virtually all other kinds of speech is not a reasonable one. For these reasons, I respectfully Dissent.

I

A

The plurality begins its analysis with the determination that the sidewalk in question is not a "public forum." ... Our decisions in recent years have identified three categories of forums in which expression might take place on government property: (1) traditional, "quintessential public forums" -- "places which by long tradition or by government flat have been devoted to assembly and debate," such as "streets and parks"; (2) "limited-purpose" or state-created semipublic forums opened "for use by the public as a place for expressive activity," 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." ... Ironically, these public forum categories -- originally conceived of as a way of preserving First Amendment rights -- have been used in some of our recent decisions as a means of upholding restrictions on speech. ... I have questioned whether public forum analysis, as the Court has employed it in recent cases, serves to obfuscate rather than clarify the issues at hand. ... Indeed, the Court's contemporary use of public forum doctrine has been roundly criticized by commentators.

Today's decision confirms my doubts about the manner in which we have been using public forum analysis. Although the plurality recognizes that public sidewalks are, as a general matter, public forums, ... the plurality insists, with logic that is both strained and formalistic, that the specific sidewalk at issue is not a public forum. This conclusion is unsupportable. "streets, sidewalks, and parks, are considered, without more, to be 'public forums.'" "Traditional public forum property occupies a special position in terms of First Amendment protection and will not lose its historically recognized character for the reason that it abuts government property that has been dedicated to a use other than as a forum for public expression." .... It is only common sense that a public sidewalk adjacent to a public building to which citizens are freely admitted is a natural location for speech to occur, whether that speech is critical of government generally, aimed at the particular governmental agency housed in the building, or focused upon issues unrelated to the government. No doctrinal pigeonholing, complex formula, or multipart test can obscure this evident conclusion.

1

The plurality maintains that the postal sidewalk is not a traditional public forum because it "was constructed solely to provide for the passage of individuals engaged in postal business" and "leads only from the parking area to the front door of the post office." ...This reasoning is flawed.

Quintessential examples of a "public forum" are those open spaces -- streets, parks, and sidewalks -- to which the public generally has unconditional access and which "have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." ... Public parks, streets, and sidewalks are public forums because open access by all members of the public is integral to their function as central gathering places and arteries of transportation. Public access is not a matter of grace by government officials but rather is inherent in the open nature of the locations. As a result, expressive activity is compatible with the normal use of a public forum and can be accommodated simply by applying the communication-neutral rules used to regulate other, non-speech-related conduct on the premises. ... "The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time". For the most part, on streets and sidewalks, including the single-purpose sidewalk at issue here, communication between citizens can be permitted according to the principle that "one who is rightfully on a street which the state has left open to the public carries with him there as elsewhere the constitutional right to express his views in an orderly fashion."

The wooden distinctions drawn today by the plurality have no basis in our prior cases and, furthermore, are in apparent contradiction to the plurality's admission that "the mere physical characteristics of the property cannot dictate forum analysis." ... It is irrelevant that the sidewalk at issue may have been constructed only to provide access to the Bowie Post Office. 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. Parks are usually constructed to beautify a city and to provide opportunities for recreation, rather than to afford a forum for soapbox orators or leafleteers; streets are built to facilitate transportation, not to enable protesters to conduct marches; and sidewalks are created with pedestrians in mind, not solicitors. Hence, why the sidewalk was built is not salient.

Nor is it important that the sidewalk runs only between the parking lot and post office entrance. The existence of a public forum does not turn on a particularized factual inquiry into whether a sidewalk serves one building or many or whether a street is a dead end or a major thoroughfare. In Boos v. Barry, for example, JUSTICE O'CONNOR concluded that the public sidewalks within 500 feet of the embassies of the Governments of the Soviet Union and Nicaragua in Washington, D.C. are public forums without considering the factors found in today's opinion. ... In Frisby v. Schultz, JUSTICE O'CONNOR acknowledged that "'time out of mind' public streets and sidewalks have been used for public assembly and debate, the hallmarks of a traditional public forum." ... She explained that "our decisions identifying public streets and sidewalks as traditional public fora are not accidental invocations of a 'cliche' but recognition that 'herever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public.' No particularized inquiry into the precise nature of a specific street is necessary; all public streets are held in the public trust and are properly considered traditional public fora." ... JUSTICE O'CONNOR further wrote that "a public street does not lose its status as a traditional public forum simply because it runs through a residential neighborhood" or because it is "physically narrow." ...

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. Rather, that the walkway at issue is a sidewalk open and accessible to the general public is alone sufficient to identify it as a public forum. As the Court of Appeals observed: "It ill behooves us to undertake too intricate a task of designation, holding this sidewalk public and that one not. . . . such labeling loses sight of the fact that most sidewalks are designed as outdoor public thoroughfares and that citizens should not be left to wonder at which ones they will be permitted to speak and which ones not."...

The cases that formed the foundation of public forum doctrine did not engage in the type of fact-specific inquiry undertaken by the plurality today. In Cox v. Louisiana... (1965), for example, we reversed a civil rights leader's conviction for obstructing a public passage after he organized a protest on a municipal sidewalk across the street from the Baton Rouge courthouse. We did not consider whether the sidewalk was constructed to facilitate protests (an unlikely possibility), or whether the sidewalk was a "public thoroughfare" rather than one providing access to only a limited number of locations. Similarly, in Edwards v. South Carolina ... (1963), we reversed the convictions of civil rights demonstrators who had assembled on the grounds of the South Carolina State House, "an area of two city blocks open to the general public," ... without inquiring whether the State had dedicated the statehouse grounds for such expressive activities. In Shuttlesworth v. Birmingham ... (1969), we did not suggest that our constitutional analysis hinged on whether the sidewalk march had occurred on Main Street or on a dead-end street leading only to a single public building. ...

Whatever the proper application of public forum doctrine to novel situations like fund-raising drives in the federal workplace ..., or the internal mail systems of public schools, ... we ought not unreflectively transfer principles of analysis developed in those specialized and difficult contexts to traditional forums such as streets, sidewalks, and parks. ... . In doing so, the plurality dilutes the very core of the public forum doctrine. As JUSTICE KENNEDY notes, "the demand for recognition of heightened First Amendment protection has more force here than in those instances where the Government created a nontraditional forum to accommodate speech for a special purpose, as was thought true with teachers' mail boxes in Perry Education Assn. ..., or the Combined Federal Campaign in Cornelius." ... We have never applied a "reasonableness" test to speech in a place where government property was open to the public. Indeed, even in regulated environments where a public right of access nevertheless exists, we have applied a higher level of scrutiny to restrictions on speech than the plurality does today. ...

2

Even if I did not believe that the postal sidewalk is a "traditional" public forum within the meaning of our cases, I would find that it is a "limited-purpose" forum from which respondents may not be excluded absent a showing of a compelling interest to which any exclusion is narrowly tailored. We have recognized that even where a forum would not exist but for the decision of government to create it, the government's power to enforce exclusions from the forum is narrowly circumscribed if the government permits a wide range of expression to occur. ... In a limited-purpose forum, "the Government must permit wider access to the forum than it has otherwise intended."

The plurality acknowledges both that "the forum here has been dedicated to some First Amendment uses and thus is not a purely nonpublic forum," ... and that "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." ... These observations support a finding that the sidewalk is a limited-purpose forum, especially in light of the wide range of expressive activities that are permitted. The postal regulation forbids persons only from "soliciting alms and contributions, campaigning for election to any public office, collecting private debts, commercial soliciting and vending, and displaying or distributing commercial advertising on postal premises." ... The Government thus invites labor picketing, soapbox oratory, distributing literature, holding political rallies, playing music, circulating petitions, or any other form of speech not specifically mentioned in the regulation.

The plurality concludes that the sidewalk is not a limited-purpose forum only by ignoring its earlier observations. The plurality maintains that "a practice of allowing some speech activities on postal property do not add up to the dedication of postal property to speech activities," ... and concludes that the Postal Service may close off postal premises to solicitors even though it has opened the forum to virtually every other type of speech. The plurality's conclusion is unsound.

The plurality has collapsed the distinction between exclusions that help define the contours of the forum and those that are imposed after the forum is defined. Because the plurality finds that the prohibition on solicitation is part of the definition of the forum, it does not view the regulation as operating on a public forum and hence subjects the postal regulation to only a "reasonableness" inquiry. 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. ... The plurality's approach highlights the fact that there is only a semantic distinction between the two ways in which exclusions from a limited-purpose forum can be characterized, although the two options carry with them different standards of review. The plurality's logic, as JUSTICE BLACKMUN has noted in a previous case, would make restrictions on access to limited public forums self-justifying:

"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, . . . 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." Cornelius, 473 U.S., at 825 (dissenting opinion).

The plurality does not, and cannot, explain in the instant case why the postal regulation establishes a policy of "'elective access,'" ... rather than constituting a separate restriction on speech in a limited public forum. Nor can the plurality explain how its reasoning is consistent with our past cases. In Carey v. Brown..., Grayned v. Rockford, and Police Department of Chicago v. Mosley, for example, we held that bans on picketing were invalid because they contained impermissible exemptions for labor picketing. We did not hold, as the plurality's position might suggest, that the bans were valid because the labor exemption was part of the forum's definition. Similarly, the restrictions at issue in Southeastern Promotions, Ltd. v. Conrad, ... and Widmar v. Vincent, ... could have been -- but were not -- used to show that the municipal theater and university meeting rooms, respectively, were not public forums because they practiced a policy of selective access. ...

I would find that the postal sidewalk is a public forum, either of the "traditional" or "limited-purpose" variety.

B

Content-based restrictions on speech occurring in either a public forum or in a limited-purpose public forum are invalid unless they are narrowly drawn to serve a compelling interest. ...Government "may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." ... I do not think the postal regulation can pass muster under either standard. Although I agree that the Government has an interest in preventing the obstruction of post office entrances and the disruption of postal functions, there is no indication that respondents interfered with postal business in any way. The Court of Appeals found:

"The record in this case reveals no evidence of a significant government interest best served by the ban on solicitation in a public forum. There is no evidence that Kokinda and Pearl's solicitation obstructed or impeded postal customers. 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." ...

I agree with the Court of Appeals that the postal regulation is invalid as applied in this case because it "prohibits all solicitation anywhere on postal service property. 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." ....

JUSTICE KENNEDY contends that the postal regulation may be upheld as a content-neutral time, place, or manner regulation. But the regulation is not content neutral; indeed, it is tied explicitly to the content of speech. If a person on postal premises says to members of the public, "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.

The plurality suggests that the regulation is not based on the content of speech, regardless of the terms of the restriction, because the proffered governmental interest is unrelated to the communicative impact of expression....( "the Service's concern about losing customers because of the potentially unpleasant situation created by solicitation"). This reasoning is flawed. 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. ... In any event, the Government interest in this case is related to the suppression of expression because the evil at which the postal regulation is aimed -- by the admission of both the Postal Service, ... and the plurality, ... -- is the danger that solicitors might annoy postal customers and discourage them from patronizing postal offices. But solicitors do not purportedly irk customers by speaking unusually loudly or uncomfortably close to their subjects. Rather, the fear is that solicitation is bothersome because of its content : The Post Office is concerned that being asked for money may be embarrassing or annoying to some people, particularly when the speaker is a member of a disfavored or unpopular political advocacy group. For example, the Government makes much of the 40 or 50 customer complaints received at the Bowie Post Office while respondents solicited the public. ... But the record does not demonstrate that the complaints related to any difficulty in obtaining access to the post office. "For all we know, the complaints may have been generated by the hearers' disagreement with the message of the National Democratic Policy Committee or their disapproval of the appearance or affiliation of the speakers." ... Although the Service's paternalism may be well intended, it is axiomatic that a listener's reaction to speech is not a content-neutral basis for regulation. ...

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," ... to the Government's interest in avoiding disruption. Rather, the regulation is based on the Postal Service's generalized judgment that solicitation is more likely to be disruptive than are other types of speech. 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. ... It is conceivable that in some instances solicitation might cause a crowd to form and block a post office entrance because an individual who decides to respond must "reach for a wallet, search it for money, write a check, or produce a credit card," ... but the Postal Service has failed to document that this in fact has ever occurred, let alone that it would be more than an occasional problem. The record in the instant case demonstrates that solicitation certainly does not invariably disrupt postal functions. The plurality's trumpeting of Postal Service "real-world experience" as a valid basis for the regulation, ante, at 735, is entirely unjustified, given that the Service's experience is limited to solicitation in postal lobbies. The Postal Service has never found solicitation on exterior sidewalks to pose a danger to postal operations.

When government seeks to prohibit categorically an entire class of expression, it bears, at the very least, a heavy burden of justification. The "exclusion of a broad category of protected expression" demands heightened scrutiny and evidence supporting the need for complete exclusion). ... I find that the Postal Service has not met this burden and that the postal regulation prohibiting an entire category of expression based on a broad assessment of its likely effects cannot qualify as a valid time, place, or manner regulation because such a prohibition "burden substantially more speech than is necessary to further the government's legitimate interests." ..."'A complete ban can be narrowly tailored, but only if each activity within the proscription's scope is an appropriately targeted evil.'" ... In other contexts we have stressed that problems associated with solicitation must be addressed through "measures less intrusive than a direct prohibition on solicitation." ... Thus, in Heffron v. International Society for Krishna Consciousness, Inc. ... (1981), we upheld as a valid time, place, or manner regulation a rule requiring that solicitation in a public fairground take place only at assigned booths. We rejected the claim that the rule was a "total ban" because we found that it permitted groups "to solicit funds and distribute and sell literature from within the fairgrounds, albeit from a fixed location." ... The postal regulation, by contrast, prohibits solicitation altogether.

In short, the Postal Service has made no attempt to justify its complete exclusion of solicitation from all locations on postal property, including exterior sidewalks. The plurality's conclusion that a complete ban on solicitation is warranted rests on speculation regarding the possibility of disruption that is both inappropriate and unsupported. As I have commented previously, "No doubt a plausible argument could be made that the political gatherings of some parties are more likely than others to attract large crowds causing congestion, that picketing for certain causes is more likely than other picketing to cause visual clutter, or that speakers delivering a particular message are more likely than others to attract an unruly audience. . . . governments regulate based on actual congestion, visual clutter, or violence rather than based on predictions that speech with a certain content will induce these effects."... The First Amendment demands that the Postal Service prohibit solicitation only when it actually threatens legitimate government interests; "Broad prophylactic rules in the area of free expression are suspect. . . . Precision of regulation must be the touchstone." ...

Indeed, a great irony of this case is that the Postal Service has already promulgated legitimate time, place, and manner regulations that fully protect its interests in preventing disruption of postal operations. The postal regulations governing conduct on postal premises are codified in Part 232 of the Code of Federal Regulations (Conduct on Postal Property). Postal Service rules 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. Section 232.1(e), for example, provides that:

"Disorderly conduct, or conduct which creates loud and unusual noise, or which obstructs the usual use of entrances, foyers, corridors, offices, elevators, stairways, and parking lots, or which otherwise tends to impede or disturb the public employees in the performance of their duties, or which otherwise impedes or disturbs the general public in transacting business or obtaining the services provided on property, is prohibited." 39 CFR § 232.1(e) (1989).

Similarly, § 232.1(k)(2) forbids "the blocking of entrances, driveways, walks, loading platforms, or fire hydrants in or on property." See also § 232.1(c) (prohibition on "creating any hazard to persons or things"). Thus, although the postal regulation at issue here -- § 232.1(h)(1) -- bans solicitation altogether, postal regulations restrict other forms of expression only when they actually disrupt postal operations. There is no reason why the rules prohibiting disruptive conduct cannot be used to address the governmental interest in this case, and hence there is no need for a categorical exclusion of solicitation from sidewalks on postal property.

II

Even if I did not believe that the sidewalk outside the Bowie Post Office was a public forum, I nevertheless could not agree with the plurality that the postal regulation at issue today is reasonable as applied to respondents. 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. ... A solicitor who asks for funds and offers literature for sale outside the entrance to a post office is no more likely to block access than is a leafleteer who stands in the same place or a speaker who sets up his soapbox there. In fact, solicitors may be quite unlikely to attract much of an audience, because public requests for money are often ignored. Certainly, solicitors are less likely to draw a crowd, and thus to disrupt postal functions, than are eloquent orators or persons distributing popular magazines for free. Under the regulation, a group may stage a political rally to call attention to the problem of drug abuse ... and draw hundreds or even thousands of persons to the area just outside the entrance to the post office, because there is no general prohibition on large gatherings on postal premises. ... But since there is a categorical ban on solicitation, 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 undeniably has a legitimate interest in avoiding disruption of its postal facilities and ensuring that its buildings remain accessible to the public. But the Government interest in preventing disruption of post office business or harassment of postal patrons is addressed by the direct prohibitions on such conduct in existing postal rules, ... and the Service has not explained satisfactorily why these provisions are inadequate to deal with any disruption caused by solicitation.

The plurality suggests that the irksome nature of solicitation supports the reasonableness of the postal regulation. Even were the Postal Service's desire to prevent the annoyance of customers a legitimate basis for regulation, ... such an interest could not justify the blanket ban on solicitation alone. Many expressive activities permitted by § 232.1(h)(1) likely would trigger the same reactions in the audience. Pamphleteers might distribute embarrassing or disturbing handbills, and soapbox orators might shout caustic invectives at postal patrons as they walk past, yet those activities are not subject to a categorical prohibition. Indeed, the Postal Service permits other types of speech that demand an immediate response from the listener, such as inviting passersby to sign a petition to place an initiative proposal on the ballot. ... The notion that solicitation is "inherently" more invasive of the public's peace of mind is untenable.

The Government contends that any attempt to regulate solicitation on a case-by-case basis according to the general "disruption" regulation would be "unadministrable" because the Service "lacks the resources to enforce such regulation in the tens of thousands of post offices throughout the nation." 43 Fed. Reg. 38824 (1978). But the Government's interest in bright-line rules is hardly creditable, given that the Postal Service has chosen to adopt categorical restrictions on speech only with respect to solicitation. If such application of the general disturbance and obstruction rules contained in §§ 232.1(e) and 232.1(k)(2) 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.

Moreover, even were the Postal Service's administrability concerns real, the Service could quite easily design categorical rules governing solicitation that would both obviate the need for administrative discretion and yet fall far short of a total ban. The Service could formulate, for example, reasonable restrictions on the size and placement of tables, on solicitation during peak postal hours, on the use of parking spaces by nonpostal customers, or on the number of persons who may engage in solicitation at the same time and place. Although the Government would not be required to choose the least restrictive alternative were the plurality correct in its view that the sidewalk is a nonpublic forum, these other approaches to the problem of disruption are so obvious that the no-solicitation regulation can scarcely be considered a reasonable way of addressing the Service's asserted interest in avoiding case-by-case determinations.

III

Some postal patrons may thank the Court for sparing them the inconvenience of having to encounter solicitors with whose views they do not agree. And postal officials can rest assured in the knowledge that they can silence an entire category of expression without having to apply the existing postal regulations governing disruptive conduct or having to craft more narrow time, place, or manner rules. Perhaps only three groups of people will be saddened by today's decision. The first includes solicitors, who, in a farce of the public forum doctrine, will henceforth be permitted at postal locations to solicit the public only from such inhospitable locations as the busy four-lane highway that runs in front of the Bowie Post Office. The next to be disappointed will be those members of the public who would prefer not to be deprived of the views of solicitors at postal locations. The last group, unfortunately, includes all of us who are conscious of the importance of the First Amendment.

I respectfully Dissent.