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