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.
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
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.
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
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 ...