Initiative and Referendum v. US Postal Service

• Decision Date: 09 August 2005
• Docket Number: No. 04-5045.,04-5045.
• Citation: 417 F.3d 1299
• Parties: INITIATIVE AND REFERENDUM INSTITUTE, et al., Appellants v. UNITED STATES POSTAL SERVICE, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

417 F.3d 1299

INITIATIVE AND REFERENDUM INSTITUTE, et al., Appellants v. UNITED STATES POSTAL SERVICE, Appellee.

No. 04-5045.

United States Court of Appeals, District of Columbia Circuit.

Argued February 8, 2005.

Decided August 9, 2005.

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David F. Klein argued the cause for appellants. With him on the briefs were John R. Ferguson and Arthur B. Spitzer.

Marina Utgoff Braswell, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Kenneth L. Wainstein, U.S. Attorney, and Michael J. Ryan, Assistant U.S. Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.

Before: GINSBURG, Chief Judge, and HENDERSON and GARLAND, Circuit Judges.

Opinion for the court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge.

A United States Postal Service regulation bans "soliciting signatures on petitions, polls, or surveys" on "all real property under the charge and control of the Postal Service." The district court rejected the plaintiffs' First Amendment challenge to this regulation, concluding that even if all exterior postal properties are public forums, the regulation is a valid restriction on the time, place, or manner of speech. For the reasons set forth below, we reverse the judgment of the district court and remand the case for further proceedings.

I

The appellants are seven individuals and organizations that attempt to place initiatives on state ballots by collecting signatures on petitions. They contend that sidewalks and other exterior areas of post offices are particularly fertile locations for the procurement of such signatures.¹ Until relatively recently, Postal Service regulations were silent on the subject of soliciting petition signatures on postal premises, while a 1992 postal bulletin expressly permitted "issue-oriented petitioning and campaigning for a referendum or ballot initiative." See POSTAL BULLETIN 21814 (Apr. 30, 1992). In 1998, however, the Postal Service amended its regulation governing "conduct on postal property" to ban that activity. 39 C.F.R. § 232.1. The regulation now provides as follows, with the relevant change italicized:

Soliciting alms and contributions, campaigning for election to any public office, collecting private debts, soliciting and vending for commercial purposes ..., 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) (emphasis added). Section 232.1 applies "to all real property under the charge and control of the Postal Service." Id. § 232.1(a). The regulation stipulates that it must be posted "at a conspicuous place on all such property," id., and subjects violators to criminal penalties, including fines and imprisonment. See id. § 232.1(p).

In 2000, the appellants brought suit against the Postal Service in the United States District Court for the District of Columbia, contending that § 232.1(h)(1) violates the First Amendment. They argued that the regulation is unconstitutional on its face and as applied to their specific petitioning activities. Both sides moved for summary judgment.

The district court initially denied the motions, on the ground that there were insufficient facts in the record to entitle either party to judgment as a matter of law. See Initiative & Referendum Inst. v. U.S. Postal Serv., 116 F.Supp.2d 65, 67 (D.D.C.2000). The court recognized that the scope of the plaintiffs' First Amendment rights depends upon whether the property at issue is "defined as a traditional public forum, a designated public forum, or a nonpublic forum." Id. at 69. That determination, the court said, "turns on an analysis of the specific nature and characteristics of the actual property in question." Id. at 71. The court added that, in order to hold the regulation unconstitutional on its face, it "would have to decide whether all post office exterior property should be deemed a traditional public forum, a designated public forum or a nonpublic forum." Id. at 73. Lacking sufficient "facts about all actual post offices," the court concluded that it could not determine whether the regulation was "unconstitutional on its face or even as applied." Id.

The court did, however, find some issues resolvable on the record before it. First, it decided that § 232.1(h)(1) was content neutral "because it was not adopted based on a disagreement with the content of speech." Id. at 74. Second, the court stated that it did not need to further investigate whether any postal property was a designated public forum, because designated public forums may be closed by viewpoint- and content-neutral regulations. Id. Finally, the court decided that § 232.1(h)(1) "would withstand the minimal level of scrutiny applicable to regulations in a nonpublic forum." Id. at 75.

Following the district court's decision, the appellants filed an amended complaint identifying twelve postal properties on which they had sought "and in the future would seek to gather signatures on petitions." First Am. Compl. ¶ 52, at 14. The parties then engaged in discovery, and eventually cross-moved for summary judgment again. At a hearing on those motions, the Postal Service "announced ... in open court that it had changed its articulated position from the one it took early in this litigation to one more favorable to plaintiffs on whether certain alternative channels of communication on exterior postal properties would violate 39 C.F.R. § 232.1." Initiative & Referendum Inst. v. U.S. Postal Serv., No. 00-1246, Order at 1 (D.D.C. Sept. 26, 2002) ("Sept.2002 Order"). The change in position was twofold. The Postal Service said that: (1) it would not apply § 232.1(h)(1) to public perimeter sidewalks that are indistinguishable from their non-postal counterparts; and (2) where the regulation's ban on soliciting signatures remained applicable, it would limit the ban to the actual collection of signatures on postal property and not apply it where a petitioner merely asks people to sign at off-premises locations. See Motions Hr'g Tr. at 29, 32-34 (Sept. 24, 2002). The Postal Service "also expressed willingness to issue a bulletin to its postmasters directing them to adhere to this changed position." Sept. 2002 Order at 1. The district court directed the Postal Service to submit the text of such a proposed bulletin, and said that it "would be relying on that changed position in deciding upon the pending summary judgment motions." Id.

Thereafter, the Postal Service submitted a proposed bulletin, styled as a reminder to postmasters about their obligations in enforcing § 232.1(h)(1)'s regulation of "activities in support of ballot initiatives and public referenda." Def.'s Notice of Filing of Proposed U.S. Postal Service Postal Bulletin, Ex. 1. The postal bulletin in its published form — which largely resembles the version submitted to the district court — states that § 232.1(h)(1) does

not apply to municipal or other public perimeter sidewalks, even if the Postal Service's property line extends onto such a sidewalk.... The beginning of Postal Service-controlled space must be easily distinguishable to members of the public by means of some physical feature. For example, a Postal Service sidewalk that is perpendicular to the city sidewalk would indicate to members of the public that they are entering onto Postal Service property, as would stairs leading up to the entrance of a Post Office.

POSTAL BULLETIN 22119, at 19 (Jan. 8, 2004). The bulletin further confines the regulation's application

to efforts to have members of the public provide signatures on Postal Service premises, and not to communications that promote the signing of petitions, polls, and surveys somewhere other than on Postal Service premises.... Thus, if a petition circulator wishes to collect signatures for a petition, poll, or survey, he or she would not be prohibited from standing on exterior parts of Postal Service property that are open to the public and passing out informational leaflets, holding up a sign, or both. The leaflet or sign could provide relevant information about the petition, poll, or survey, and direct Postal Service customers to nearby non-Postal Service property, that is, property not under the Postal Service's charge and control, where they can sign the petition, poll, or survey, if they so desire.

Id.

On December 31, 2003, the district court granted the Postal Service's motion for summary judgment. The court stated that it could not hold § 232.1(h)(1) unconstitutional on its face unless the regulation was unconstitutional as to each of the approximately 34,000 postal installations in the country. Initiative & Referendum Inst. v. U.S. Postal Serv., 297 F.Supp.2d 143, 148 (D.D.C.2003). Because "proper forum analysis requires an examination of aspects of each of those properties," and because the record still lacked information "that would be essential to support an injunction applicable to all such locations," the court concluded that the only way it could declare the regulation facially unconstitutional was if "all exterior post office properties were traditional public forums" and the regulation failed to pass constitutional muster under the exacting scrutiny that applies to such forums. Id. Assuming for purposes of analysis that all the exterior properties were public forums, the court found that § 232.1(h)(1) was a valid time, place, or manner restriction because "this content-neutral regulation promotes a significant government interest and will leave open ample alternative channels of communication." Id. at 147. This appeal followed.

II

The First Amendment to the Constitution provides that "Congress shall make no law ... abridging the freedom of speech, ... or the right of the people ... to petition the Government for a redress...