Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

INITIATIVE AND REFERENDUM INSTITUTE v. U.S. POSTAL SERVICE

December 31, 2003.

INITIATIVE AND REFERENDUM INSTITUTE, et al., Plaintiffs,
v.
UNITED STATES POSTAL SERVICE, Defendant



The opinion of the court was delivered by: RICHARD ROBERTS, District Judge

MEMORANDUM OPINION

Plaintiffs challenge the constitutionality of a United States Postal Service ("USPS") regulation that prohibits people from soliciting signatures for petitions, polls or surveys on exterior USPS property. The parties' initial cross-motions for summary judgment were denied because there were insufficient facts in the record to entitle either party to judgment as a matter of law. Following discovery, the parties renewed their cross-motions for summary judgment. Because the record now establishes that this content-neutral regulation promotes a significant governmental interest and will leave open ample alternative channels of communication, defendant's motion will be granted and plaintiffs' motion will be denied.

BACKGROUND

  The relevant facts were set out in the Memorandum Opinion of August 31, 2000 in this case and will not be entirely repeated here. See Initiative and Referendum Inst. v. United States Postal Serv., 116 F. Supp.2d 65, 67-68 (D.D.C. 2000). Briefly, USPS regulations restrict certain conduct on postal property. Subsection 232.1(h)(1) of Title 39 of the Code of Federal Regulations provides:
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) (2002) (emphasis added). The emphasized language, added in 1998, gave rise to this suit. See Initiative and Referendum Inst., 116 F. Supp.2d at 67-68.

  Plaintiffs have moved for summary judgment 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 governmental interest. Plaintiffs further argue that the regulation is overbroad, is void for vagueness and is enforced in a discriminatory manner.

  Defendant has also moved for summary judgment arguing that exterior USPS property is a nonpublic forum and, therefore, § 232.1(h)(1) is valid because it is viewpoint-neutral and reasonable. Alternatively, defendant claims 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.

  DISCUSSION

  Summary judgment is appropriate where the record shows that "there is no genuine issue as to any material fact and that the moving party is entitled to a 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 (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) (quoting Celotex Corp., 477 U.S. at 323 (internal citation omitted)).

  Plaintiffs assert that the regulation is a content-based restriction on speech in a traditional public forum that fails the test of being narrowly tailored to serve a compelling governmental interest. Pls.' Mem. Supp. Summ. J. at 4-22; see Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983). They maintain that § 232.1(h)(1) is unconstitutional on its face and seek to enjoin the defendant from enforcing the regulation on any exterior post office property nationally. (Pls.' Mem. Supp. Summ. J. at 4-22; Am. Compl. at 22-23.) As was stated in the August 31, 2000 opinion, that relief would require proof that all exterior post office properties are traditional public fora. Initiative and Referendum Inst., 116 F. Supp.2d at 73. Traditional public forum analysis requires assessing the nature, use and character of each property involved to determine whether it has been held open to assembly and debate. Perry, 460 U.S. at 45. As approximately 34,000 postal installations exist (Def.'s Mem. Supp. Summ. J., Ex. A at ¶ 6 and Ex. B at ¶ 3), a proper forum analysis requiring an examination of aspects of each of those properties would be unwieldy. The record still lacks the specific historical information about each of the approximately 34,000 postal installations that would be essential to support an injunction applicable to all such locations. Such an effort would not be required, however, if the regulation passed constitutional muster under the most exacting scrutiny that would apply were all the properties deemed to be traditional public fora.

  The Supreme Court conducted a forum analysis regarding a post office sidewalk in United States v. Kokinda, 497 U.S. 720 (1990) (plurality opinion). That case involved a sidewalk outside a post office in Bowie, Maryland. See id. at 723. The plurality opinion in Kokinda, joined by four Justices, held that the Bowie post office sidewalk did "not have the characteristics of public sidewalks traditionally open to expressive activity." Id. at 727. 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, the plurality held that the post office sidewalk was not a public forum because it was "constructed solely to provide for the passage of individuals engaged in postal business." Id. at 727.

  Justice Kennedy, in concurrence, found that "there remains a powerful argument that, because of the wide range of activities that the Government permits to take place on this postal sidewalk, it is more than a nonpublic forum." Id. at 737 (Kennedy, J., concurring). He declined to decide the forum issue however, finding that even if the sidewalk was a traditional public forum, the regulation was permissible under the applicable time, place and manner rules. Id. at 738.

  Justice Kennedy's approach in Kokinda is instructive here. See generally id. at 737-39 (Kennedy, J., concurring). Assuming that the exterior postal properties here are indeed traditional public fora, the most exacting standard of scrutiny applicable to this regulation which has already been found to be content-neutral, see Initiative and Referendum Inst., 116 F. Supp.2d at 74, is whether the regulation is a reasonable time, place and manner restriction that is narrowly tailored to promote a significant government interest and leaves open ample alternative channels for communication. Perry, 460 U.S. at 45. "The crucial question [in assessing time, place and manner restrictions] is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time." Grayned v. City of Rockford, 408 U.S. 104, 116 (1972).

 I. SIGNIFICANT GOVERNMENTAL INTEREST

  According to defendant, § 232.1(h)(1) promotes the significant governmental interest of successfully carrying out postal business by making post offices and surrounding postal property attractive to customers whose payments fund USPS operations. (Def.'s Mot. Summ. J. at 30-33). Plaintiffs contend that defendant's stated governmental ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.