Cornelius v. Naacp Legal Defense and Educational Fund, Inc

Decision Date02 July 1985
Docket NumberNo. 84-312,84-312
PartiesLoretta CORNELIUS, Acting Director, Office of Personnel Management, Petitioner v. NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., et al
CourtU.S. Supreme Court

By Executive Order, participation in the Combined Federal Campaign (CFC), a charity drive aimed at federal employees, is limited to voluntary, tax-exempt, nonprofit charitable agencies that provide direct health and welfare services to individuals or their families, and legal defense and political advocacy organizations are specifically excluded. Participating organizations confine their fundraising activities to a 30-word statement submitted for inclusion in the CFC literature disseminated to federal employees. Undesignated contributions are distributed on a local level to certain participating organizations, and designated funds are paid directly to the specified recipient. Respondent legal defense and political advocacy organizations brought an action in Federal District Court challenging their exclusion under the Executive Order on the grounds, inter alia, that the denial of the right to seek designated funds violated their First Amendment right to solicit charitable contributions. The District Court granted summary judgment in respondents' favor and enjoined the denial of their pending or future applications to participate in the solicitation of designated contributions. The Court of Appeals affirmed on the ground that the Government restrictions in question were not reasonable.


1. Solicitation in the context of the CFC is speech protected by the First Amendment. The brief statements in the CFC literature directly advance the speaker's interest in informing readers about its existence and goals. Moreover, an employee's contribution in response to a request for funds functions as a general expression of support for the recipient and its views. Although the CFC does not entail direct discourse between the solicitor and the donor, the CFC literature facilitates the dissemination of views and ideas by directing employees to the soliciting agency to obtain more extensive information. And without the funds obtained from solicitation in various fora, the soliciting organization's continuing ability to communicate ideas and goals may be jeopardized. Pp. 797-799.

2. The CFC, rather than the federal workplace, is the relevant forum. Although as an initial matter a speaker must seek access to public property or to private property devoted to public use to evoke First Amend- ment concerns, forum analysis is not completed merely by identifying the Government property at issue. Rather, in defining the forum, the focus should be on the access sought by the speaker. Here, respondents seek access to a particular means of communication, the CFC. And the CFC is a nonpublic forum. This conclusion is supported both by the Government's policy in creating the CFC to minimize the disturbance of federal employees while on duty formerly resulting from unlimited ad hoc solicitation activities and by the Government's practice of limiting access to the CFC to those organizations considered appropriate. Pp. 799-806.

3. The Government's reasons for excluding respondents from the CFC appear, at least facially, to satisfy the reasonableness standard. The Government's decision to restrict access to a nonpublic forum need only be reasonable, and the reasonableness must be assessed in the light of the purpose of the forum and all surrounding circumstances. Here, the President could reasonably conclude that a dollar directly spent on providing food and shelter to the needy is more beneficial than a dollar spent on litigation that might or might not result in aid to the needy. Moreover, avoiding the appearance of political favoritism is a valid justification for limiting speech in a nonpublic forum. Respondents' tax-exempt status does not determine the reasonableness of the Government's excluding them from the CFC. And the record supports an inference that respondents' participation in the CFC would be detrimental to the CFC and disruptive of the federal workplace. The First Amendment does not forbid a viewpoint-neutral exclusion of speakers who would disrupt a nonpublic forum and hinder its effectiveness for its intended purpose. Pp. 806-811.

4. Where the issue whether the Government impermissibly excluded respondents from the CFC because it disagreed with their viewpoints was neither decided below nor fully briefed before this Court, the issue will not be decided by this Court in the first instance, but respondents are free to pursue the issue on remand. Pp. 811-813.

234 U.S.App.D.C. 148, 727 F.2d 1247 (1984), reversed and remanded.

Sol. General Rex E. Lee, Washington, D.C., for petitioner.

Charles Stephen Ralston, New York City, for respondents.

Justice O'CONNOR delivered the opinion of the Court.

This case requires us to decide whether the Federal Government violates the First Amendment when it excludes legal defense and political advocacy organizations from participation in the Combined Federal Campaign (CFC or Campaign), a charity drive aimed at federal employees. The United States District Court for the District of Columbia held that the respondent organizations could not be excluded from the CFC, and the Court of Appeals affirmed. 234 U.S.App.D.C. 148, 727 F.2d 1247 (1984). We granted certiorari, 469 U.S. 929, 105 S.Ct. 322, 83 L.Ed.2d 259 (1984), and we now reverse.


The CFC is an annual charitable fund-raising drive conducted in the federal workplace during working hours largely through the voluntary efforts of federal employees. At all times relevant to this litigation, participating organizations confined their fundraising activities to a 30-word statement submitted by them for inclusion in the Campaign literature.1 Volunteer federal employees distribute to their co-workers literature describing the Campaign and the participants along with pledge cards. 5 CFR §§ 950.521(c) and (e) (1983). Contributions may take the form of either a payroll deduction or a lump-sum payment made to a designated agency or to the general Campaign fund. § 950.523. Undesignated contributions are distributed on the local level by a private umbrella organization to certain participating organizations. § 950.509(c)(5). Designated funds are paid directly to the specified recipient. Through the CFC, the Government employees contribute in excess of $100 million to charitable organizations each year. Brief for Petitioner 3.

The CFC is a relatively recent development. Prior to 1957, charitable solicitation in the federal workplace occurred on an ad hoc basis. Federal managers received requests from dozens of organizations seeking endorsements and the right to solicit contributions from federal employees at their worksites. U.S. Civil Service Commission, Manual on Fund-Raising Within the Federal Service for Voluntary Health and Welfare Agencies § 1.1 (1977) (Manual on Fund-Raising). In facilities where solicitation was permitted, weekly campaigns were commonplace. Executive Orders 12353 and 12404 As They Regulate the Combined Federal Campaign (Part 1), Hearing before the House Committee on Government Operations, 98th Cong., 1st Sess., 67-68 (1983). Because no systemwide regulations were in place to provide for orderly procedure, fundraising frequently consisted of passing an empty coffee can from employee to employee. Id., at 68. Eventually, the increasing number of entities seeking access to federal buildings and the multiplicity of appeals disrupted the work environment and confused employees who were unfamiliar with the groups seeking contributions. Ibid.

In 1957, President Eisenhower established the forerunner of the Combined Federal Campaign to bring order to the solicitation process and to ensure truly voluntary giving by federal employees. Exec. Order No. 10728, 3 CFR 387 (1954-1958 Comp.). The Order established an advisory committee and set forth general procedures and standards for a uniform fund-raising program. It permitted no more than three charitable solicitations annually and established a system requiring prior approval by a committee on fundraising for participation by "voluntary health and welfare" agencies. Id., §§ 1(c) and 3(d). One of the principal goals of the plan was to minimize the disturbance of federal employees while on duty. Id., § 1(d).

Four years after this initial effort, President Kennedy abolished the advisory committee and ordered the Chairman of the Civil Service Commission to oversee fund-raising by "national voluntary health and welfare agencies and such other national voluntary agencies as may be appropriate" in the solicitation of contributions from all federal employees. Exec. Order No. 10927, 3 CFR 454 (1959-1963 Comp.). From 1963 until 1982, the CFC was implemented by guidelines set forth in the Civil Service Commission's Manual on Fund-Raising. Only tax-exempt, nonprofit charitable organizations that were supported by contributions from the public and that provided direct health and welfare services to individuals were eligible to participate in the CFC. Manual on Fund-Raising § 5.21 (1977).

Respondents in this case are the NAACP Legal Defense and Educational Fund, Inc., the Sierra Club Legal Defense Fund, the Puerto Rican Legal Defense and Education Fund, the Federally Employed Women Legal Defense and Education Fund, the Indian Law Resource Center, the Lawyers' Committee for Civil Rights under Law, and the Natural Resources Defense Council. Each of the respondents attempts to influence public policy through one or more of the following means: political activity, advocacy, lobbying, or litigation on behalf of others. In 1980, two of the respondents—the NAACP Legal Defense and Educational Fund, Inc., and the Puerto Rican Legal Defense and Education Fund (the Legal Defense Funds)—joined by the NAACP Special Contribution Fund, for the first time sought...

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