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August 31, 2000


The opinion of the court was delivered by: Roberts, District Judge.


Plaintiffs, individuals and associations gathering signatures to place initiatives on state ballots in upcoming elections, are challenging the constitutionality of a United States Postal Service ("USPS") regulation that prevents people from soliciting signatures for petitions, polls, or surveys on USPS property. The parties have filed and had a hearing on their cross-motions for summary judgment. Because I find that the factual record before me is insufficient to find that either side is entitled to a judgment as a matter of law, both motions must be denied.

I. Background

Soliciting alms and contributions, campaigning for election to any public office, collecting private debts, soliciting and vending for commercial purposes (including, but not limited to, the vending of newspapers and other publications), displaying or distributing commercial advertising, soliciting signatures on petitions, polls, or surveys (except as otherwise authorized by Postal Service regulations), and impeding ingress to or egress from post offices are prohibited.

39 C.F.R. § 232.1 (h)(1) (2000) ("§ 232.1(h)(1)") (emphasis added). The new regulation is almost identical to the old regulation with the exception of the addition of the emphasized language prohibiting solicitation of signatures. It is this added language that gives rise to this suit.

Nine association and sixteen individuals brought this suit to challenge the new prohibition. The leading plaintiff, the Initiative and Referendum Institute, is a national nonprofit organization dedicated to assisting citizens' ability to participate in government through initiatives and referenda. All of the other associations involved here are advocacy groups that have been proponents of a variety of initiatives in the past and plan to be proponents of initiatives in the future.*fn1 The individual plaintiffs all state that they have been involved in gathering signatures to support issues in the past and plan to continue such activity in the future. Each individual states that his or her ability to collect signatures is hampered by the USPS regulation at issue here.

Eight individual plaintiffs state in affidavits that after the amended § 232.1(h)(1) took effect, each was asked by a USPS employee to stop gathering petition signatures on postal property. (Pls.' Mot. Summ.J.Exs. 13, 15-21.) All eight say that the post offices where they were collecting signatures were divided from the public road by a parking lot and that each post office had a sidewalk or open cement area leading from the parking lot to the post office entrance. (Id.) These affiants all represent that they were standing on those sidewalks or open areas when they were asked to stop their solicitations. (Id.) They provide no additional information about the exact configuration of those locations or the actual physical attributes or historical use of any specific post office.

Plaintiffs have moved for summary judgment in their favor arguing that § 232.1(h)(1) is unconstitutional on its face and as applied to them because it is a content-based restriction on speech in a public forum. As such, they contend, the regulation cannot withstand the test of being narrowly tailored to serve a compelling state interest. Defendant has also moved for summary judgment on its behalf arguing, first, that exterior USPS property is a nonpublic forum and therefore § 232.1(h)(1) is valid because it is viewpoint-neutral and reasonable, and, second, that even if the property at issue here is considered a public forum, § 232.1(h)(1) is a valid regulation of time, place and manner of expression as it is content-neutral, narrowly tailored to serve a significant government interest and leaves open ample alternative channels of communication.

II. Standard of Review

A. Summary Judgment

Summary judgment is appropriate where the record shows that "there is no genuine issue as to any material fact and [] the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A party seeking summary judgment must provide the district court with a factual record sufficient to demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party may support its motion successfully if it "`inform[s] the district court of the basis for its motion, and identif[ies] those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.'" Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1032 (D.C.Cir. 1988) (citing Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 56(c))). In this case involving cross-motions for summary judgment, the Court must determine whether either party, as a movant, has supported its motion with sufficient evidence that no dispute exists concerning the facts that must be assessed to determine the constitutionality of section 232.1(h)(1).

B. First Amendment

Gathering signatures to place an initiative on a state ballot is core political speech protected by the First Amendment. See Meyer v. Grant, 486 U.S. 414, 421-22, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988). Plaintiffs' right to pursue this protected activity, however, depends on the character of the property to which they seek access. See Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 44, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983); see also Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., 473 U.S. 788, 801, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985) (stating that "in defining the forum [the Court has] focused on the access sought by the speaker"). Property that belongs to the United States government can be defined as a traditional public forum, a designated public forum, or a nonpublic forum. See Cornelius, 473 U.S. at 802, 105 S.Ct. 3439. First Amendment activity in a traditional public forum or a designated public forum is protected by heightened standards of review of restrictions on speech. See Perry, 460 U.S. at 45-46, 103 S.Ct. 948. Restrictions on speech in a nonpublic forum, on the other hand, will be upheld as long as they are not viewpoint-based and are reasonable. See id. at 46, 103 S.Ct. 948.

1. Traditional Public Forum — Definition

A public forum is property "which by long tradition or by government fiat ha[s] been devoted to assembly and debate . . . ." Perry, 460 U.S. at 45, 103 S.Ct. 948. The ability to freely exchange ideas is the hallmark of a public forum. See Cornelius, 473 U.S. at 800, 105 S.Ct. 3439. Public parks, streets and sidewalks are prototypical public fora because they have "`immemorially been held in trust for the use of the public, and, time out of mind, have been used for the purposes of assembly, communicating thoughts between citizens, and discussing public questions.'" Perry, 460 U.S. at 45, 103 S.Ct. 948 (quoting Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939)); see also United States v. Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983).

The extent to which property has been held open to the public is relevant to this issue but not determinative. See Grace, 461 U.S. at 177, 103 S.Ct. 1702. In Grace, for example, the fact that the Supreme Court building and grounds had not typically been held open to the public did not prevent the Court from finding that the sidewalks surrounding that building constituted a public forum. Id. at 178, 103 S.Ct. 1702. of particular importance in that case was the fact that the sidewalks at issue there were "indistinguishable from any other sidewalks in Washington, D.C." Id. at 179, 103 S.Ct. 1702. "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 180, 103 S.Ct. 1702. Thus, the lack of physical difference between normal public sidewalks, which are clearly public fora, and the sidewalks at issue in Grace weighed in favor of finding that the Court sidewalks also constituted a public forum. See also Community for Creative Non-Violence v. Turner, 893 F.2d 1387, 1391 (D.C.Cir. 1990) (finding that "[t]o the extent that [the property owned by the city transit system] is indistinguishable from the public sidewalks, it constitutes a public forum under Grace").

Conversely, the fact that the public may come and go freely through a particular area does not necessarily mean that such an area is a public forum. See Greer v. Spock, 424 U.S. 828, 836, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976). "[T]he First Amendment does not guarantee access to property simply because it is owned or controlled by the government." United States Postal Service v. Council of Greenburgh Civic Ass'ns, 453 U.S. 114, 129, 101 S.Ct. 2676, 69 L.Ed.2d 517 (1981). Government, as much an any other property owner, is allowed to manage its property in such a way as to best carry on its business. See Adderley v. Florida, 385 U.S. 39, 47, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966). In determining the extent to which the public may be guaranteed access to a particular location on government property, "the nature of the forum and the conflicting interests involved" remain important considerations. Lehman v. City of Shaker Heights, 418 U.S. 298, 302-03, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974).

Unfortunately, the most apposite Supreme Court case provides no definitive guidance. See United States v. Kokinda, 497 U.S. 720, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990). That case involved a sidewalk outside a post office in Bowie, Maryland. See id. at 723, 110 S.Ct. 3115. The plurality opinion in Kokinda, joined by four Justices, found that a post office sidewalk, much like those described by plaintiffs in this case, "does not have the characteristics of public sidewalks traditionally open to expressive activity." Id. at 727, 110 S.Ct. 3115. Stating that "the location and purpose of a publicly owned sidewalk is critical" in determining whether it is a public forum, id. at 728-29, 110 S.Ct. 3115 the plurality decided ...

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