497 U.S. 720 (1990), 88-2031, United States v. Kokinda

Docket Nº:No. 88-2031
Citation:497 U.S. 720, 110 S.Ct. 3115, 111 L.Ed.2d 571, 58 U.S.L.W. 5013
Party Name:United States v. Kokinda
Case Date:June 27, 1990
Court:United States Supreme Court

Page 720

497 U.S. 720 (1990)

110 S.Ct. 3115, 111 L.Ed.2d 571, 58 U.S.L.W. 5013

United States



No. 88-2031

United States Supreme Court

June 27, 1990

Argued Feb. 26, 1990




Respondents, members of a political advocacy group, set up a table on a sidewalk near the entrance to a United States Post Office to solicit contributions, sell books and subscriptions to the organization's newspaper, and distribute literature on a variety of political issues. The sidewalk is the sole means by which customers may travel from the parking lot to the post office building and lies entirely on Postal Service property. When respondents refused to leave the premises, they were arrested and subsequently convicted by a Federal Magistrate of violating, inter alia, 39 CFR § 232.1(h)(1), which prohibits solicitation on postal premises. The District Court affirmed the convictions. It rejected respondents' argument that § 232.1(h)(1) violated the First Amendment, holding that the postal sidewalk was not a public forum and that the ban on solicitation is reasonable. The Court of Appeals reversed. Finding that the sidewalk is a public forum and analyzing the regulation as a time, place, and manner restriction, it determined that the Government has no significant interest in banning solicitation and that the regulation is not narrowly tailored to accomplish the asserted governmental interest.

Held: The judgment is reversed.

866 F.2d 699, (CA4 1989) reversed.

Justice O'CONNOR, joined by THE CHIEF JUSTICE, Justice WHITE, and Justice SCALIA, concluded that the regulation, as applied, does not violate the First Amendment.

(a) Although solicitation is a recognized form of speech protected by the First Amendment, the Government may regulate such activity on its property to an extent determined by the nature of the relevant forum. Speech activity on governmental property that has been traditionally open to the public for expressive activity or has been expressly dedicated by the Government to speech activity is subject to strict scrutiny. Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45. However, where the property is not a traditional public forum and the Government has not dedicated its property to First Amendment activity, such regulation is examined only for reasonableness. Id. at 46. Pp. 725-727.

Page 721

(b) Section 232.1(h)(1) must be analyzed under the standards applicable to nonpublic fora: it must be reasonable and "not an effort to suppress expression merely because public officials oppose the speaker's view." Ibid. The postal sidewalk is not a traditional public forum. The fact that the sidewalk resembles the municipal sidewalk across the parking lot from the post office is irrelevant to forum analysis. See Greer v. Spock, 424 U.S. 828. The sidewalk was constructed solely to provide for the passage of individuals engaged in postal business, not as a public passageway. Nor has the Postal Service expressly dedicated its sidewalk to any expressive activity. Postal property has only been dedicated to the posting of public notices on designated bulletin boards. A practice of allowing individuals and groups to leaflet, speak, and picket on postal premises and a regulation prohibiting disruptive conduct do not add up to such dedication. Even conceding that the forum has been dedicated to some First Amendment uses, and thus is not a purely nonpublic forum, regulation of the reserved nonpublic uses would still require application of the reasonableness test. Pp. 727-730.

[110 S.Ct. 3117] (c) It is reasonable for the Postal Service to prohibit solicitation where it has determined that the intrusion creates significant interference with Congress' mandate to ensure the most effective and efficient distribution of the mails. The categorical ban is based on the Service's long, real-world experience with solicitation, which has shown that, because of continual demands from a wide variety of groups, administering a program of permits and approvals had distracted postal facility managers from their primary jobs. Whether or not the Service permits other forms of speech, it is not unreasonable for it to prohibit solicitation on the ground that it inherently disrupts business by impeding the normal flow of traffic. See Heffron v. ISKCON, 452 U.S. 640, 653. Confrontation by a person asking for money disrupts passage and is more intrusive and intimidating than an encounter with a person giving out information. Even if more narrowly tailored regulations could be promulgated, the Service is only required to promulgate reasonable regulations, not the most reasonable or the only reasonable regulation possible. Clearly, the regulation does not discriminate on the basis of content or viewpoint. The Service's concern about losing customers because of the potentially unpleasant situation created by solicitation per se does not reveal an effort to discourage one viewpoint and advance another. Pp. 731-737.

Justice KENNEDY, agreeing that the regulation does not violate the First Amendment, concluded that it is unnecessary to determine whether the sidewalk is a nonpublic forum, since the regulation meets the traditional standards applied to time, place, and manner restrictions of protected expression. See Clark v. Community for Creative Non-Violence,

Page 722

468 U.S. 288, 293. The regulation expressly permits respondents and all others to engage in political speech on topics of their choice and to distribute literature soliciting support, including money contributions, provided there is no in-person solicitation for immediate payments on the premises. The Government has a significant interest in protecting the integrity of the purposes to which it has dedicated its property, that is, facilitating its customers' postal transactions. Given the Postal Service's past experience with expressive activity on its property, its judgment that in-person solicitation should be treated differently from alternative forms of solicitation and expression should not be rejected. Pp. 738-739.

O'CONNOR, J., announced the judgment of the Court and delivered an opinion, in which REHNQUIST, C.J., and WHITE and SCALIA, JJ., joined. KENNEDY, J., filed an opinion concurring in the judgment, post, p. 737. BRENNAN, J., filed a dissenting opinion, in which MARSHALL and STEVENS, JJ., joined, and in which BLACKMUN, J., joined as to Part I, post, p. 740.

O'CONNOR, J., lead opinion

Justice O'CONNOR announced the judgment of the Court and delivered an opinion in which THE CHIEF JUSTICE, Justice WHITE, and Justice SCALIA join.

We are called upon in this case to determine whether a United States Postal Service regulation that prohibits

Page 723

"[s]oliciting alms and contributions" on postal premises violates the First Amendment. We hold the regulation valid as applied.


The respondents in this case, Marsha B. Kokinda and Kevin E. Pearl, were volunteers for the National Democratic Policy Committee, who set up a table on the sidewalk near the entrance of the Bowie, Maryland, post office to solicit contributions, sell books and subscriptions to the organization's newspaper, and distribute literature addressing a [110 S.Ct. 3118] variety of political issues. The postal sidewalk provides the sole means by which customers of the post office may travel from the parking lot to the post office building, and lies entirely on Postal Service property. The District Court for the District of Maryland described the layout of the post office as follows:

[T]he Bowie post office is a freestanding building, with its own sidewalk and parking lot. It is located on a major highway, Route 197. A sidewalk runs along the edge of the highway, separating the post office property from the street. To enter the post office, cars enter a driveway that traverses the public sidewalk and enter a parking lot that surrounds the post office building. Another sidewalk runs adjacent to the building itself, separating the parking lot from the building. Postal patrons must use the sidewalk to enter the post office. The sidewalk belongs to the post office and is used for no other purpose.

App. to Pet. for Cert. 24a.

During the several hours that respondents were at the post office, postal employees received between 40 and 50 complaints regarding their presence. The record does not indicate the substance of the complaints, with one exception. One individual complained "because she knew the Girl Scouts were not allowed to sell cookies on federal property." 866 F.2d 699, 705 (CA4 1989). The Bowie postmaster asked respondents to leave, which they refused to do. Postal inspectors

Page 724

arrested respondents, seizing their table as well as their literature and other belongings.

Respondents were tried before a United States Magistrate in the District of Maryland and convicted of violating 39 CFR § 232.1(h)(1) (1989), which provides in relevant part:

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 are prohibited.

Respondent Kokinda was fined $50 and sentenced to 10 days' imprisonment; respondent Pearl was fined $100 and received a 30-day suspended sentence under that provision.

Respondents appealed their convictions to the District Court, asserting that application of § 232.1(h)(1) violated the First Amendment. The District Court affirmed their convictions, holding that the postal sidewalk was not a public forum and that the Postal Service's ban on solicitation is reasonable.

A divided panel of the United States Court of Appeals...

To continue reading