Initiative and Referendum Institute v. U.S. Postal, CIV.A. 00-1246(RWR).

• Decision Date: 31 December 2003
• Docket Number: No. CIV.A. 00-1246(RWR).,CIV.A. 00-1246(RWR).
• Citation: 297 F.Supp.2d 143
• Parties: INITIATIVE AND REFERENDUM INSTITUTE, et al., Plaintiffs, v. UNITED STATES POSTAL SERVICE, Defendant.
• Court: U.S. District Court — District of Columbia

297 F.Supp.2d 143

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

No. CIV.A. 00-1246(RWR).

United States District Court, District of Columbia.

December 31, 2003.

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COPYRIGHT MATERIAL OMITTED

Christopher James Carney, Daniel Eric Cohen, David F. Klein, John R. Ferguson, Swidler, Berlin, Shereff & Friedman, L.L.P., Arthur B. Spitzer, Washington, DC, for Plaintiffs.

Marina Utgoff Braswell, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

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.

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, 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) (quoting Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548 (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, 103 S.Ct. 948, 74 L.Ed.2d 794 (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, 103 S.Ct. 948. 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, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990) (plurality opinion). 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, held that the Bowie post office sidewalk did "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 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, 110 S.Ct. 3115.

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, 110 S.Ct. 3115 (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, 110 S.Ct. 3115.

Justice Kennedy's approach in Kokinda is instructive here. See generally id. at 737-39, 110 S.Ct. 3115 (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, 103 S.Ct. 948. "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, 92 S.Ct. 2294, 33 L.Ed.2d 222 (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 interest is unpersuasive and not supported by the record. (Pls.' Mem. Opp. at 21-26.)

It is undisputed that "[USPS] operations are funded by customer fees paid by rate payers, and nearly all those who visit post offices do so in order to conduct postal business." (Def.'s Stmt. Fact Supp. Summ. J. at ¶ 2.) The USPS must compete with the private sector for business other than first class mail, in part, by making attractive to customers its postal locations where services are provided. (Id. at ¶ 3.) Because the "[g]overnment, as much as any other property owner, is allowed to manage its property in such a way as to best carry on its business," Initiative and Referendum Inst., 116 F.Supp.2d at 70 (citing Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966)), the significance of defendant's interest in controlling activity on USPS exterior property must be assessed in light of its business nature and function. See Heffron v. International Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 650-51, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981).

In promulgating the 1998 amendment to § 232.1(h)(1), defendant determined that a complete ban on gathering signatures on petitions, polls and surveys on USPS property was necessary "to minimize the disruption of postal business and to provide unimpeded ingress and egress of customers and employees to and from post...