Jacobsen v. U.S. Postal Service

• Decision Date: 30 April 1993
• Docket Number: No. 89-16054,89-16054
• Citation: 993 F.2d 649
• Parties: Harlan L. JACOBSEN, Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 649

993 F.2d 649

Harlan L. JACOBSEN, Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE, Defendant-Appellee.

No. 89-16054.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 10, 1992.

Decided July 7, 1992.

As Amended April 30, 1993.

Harlan L. Jacobsen, pro se.

Michael R. Arkfeld, Asst. U.S. Atty., Phoenix, AZ, for defendant-appellee.

Appeal from the United States District Court for the District of Arizona.

Before: WISDOM, ^* BEEZER and TROTT, Circuit Judges.

TROTT, Circuit Judge:

Harlan Jacobsen placed newsracks containing his newspapers Single Scene or Solo RFD at three locations outside federal buildings housing United States Post Offices. He won a preliminary injunction in the Ninth Circuit against governmental removal of his newsracks located on perimeter sidewalks, which are public fora. The Court of Appeals, however, remanded to the district court the question of whether ingress-egress walkways were public fora. The district court, on remand, issued the injunction as ordered, but found the newsracks were, in fact, located on ingress-egress walks, which it held to be nonpublic fora. The removal of those racks was found not to violate the scope of injunction contemplated by the Court of Appeals. The district court also found the Randolph-Sheppard Act, which requires a percentage of receipts of vendors on federal property be given to the blind, did not violate the First Amendment. We affirm.

I

Harlan Jacobsen publishes singles newspapers in Arizona. The events surrounding this appeal have to do with Jacobsen's placement of newspaper vending machines at United States Post Offices at three locations.

In Lincoln, Nebraska, Jacobsen placed his rack on the post office walkway that lies between the post office and its parking lot. Apparently, some customers complained about the nature of the publication. Jacobsen claims that as a result, his paper stand was removed by the government, and shortly after, all the newspapers for sale in racks on this walkway were moved to the perimeter city sidewalk.

In the Aberdeen, South Dakota, General Services Administration Building, Jacobsen again wished to vend his newspapers near a post office. The physical make-up of the exterior of that building is such that a municipal sidewalk runs in front of the terrace of the building. There are steps that lead from the sidewalk to the terrace, which the district court found were "intended to accommodate traffic to and from the post office for the conduct of postal business." Jacobsen was told by government officials that in order to leave his newspaper rack on the raised terrace, he would have to be licensed under the Randolph-Sheppard Act. Under 41 C.F.R. § 101-20.308 (1991), commercial vending is prohibited with the exception of operating stands conducted by the blind pursuant to the Randolph-Sheppard Act. See 20 U.S.C. § 107 (1988).

On September 16, 1985, Jacobsen placed his newsrack at the bottom of the stairs of the terrace. On September 27, 1985, Jacobsen was called to remove the newsrack for safety reasons. The newsrack was then moved by Jacobsen to a location approximately ten or fifteen feet away from the raised terrace on the municipal sidewalk where it is currently chained to a pole. Other newspapers on the raised terrace, not published by Jacobsen, have permits in compliance with the Randolph-Sheppard Act.

In Fargo, North Dakota, the building at issue is also a General Services Administration owned building. This building has two entrances, and each entrance is immediately adjacent to a sidewalk. The entrances themselves are surrounded by a marble or granite slab rising ten inches above the sidewalk. Jacobsen's newsracks were placed, at different times, on the granite/marble part of the building and fastened to a railing next to the lobby entrance. However, at other times, they were set on concrete, partially on the federally owned part of the sidewalk. Originally, Jacobsen's rack was placed along side the Minneapolis Tribune rack. After the government forced Jacobsen to move his rack, the government removed all the other racks from the front of the post office building. All newsracks are now entirely on the municipal sidewalk.

The preliminary injunction is confined to the three locations described above. However, in his brief to this court, Jacobsen also mentions five other post office locations where he maintains newsracks--Des Moines, Iowa; Sioux Falls, South Dakota; Rapid City, South Dakota; Deadwood, South Dakota; and Atchison, Kansas. It is evident that he mentions these other locations not in an effort to be granted relief in this appeal, but simply to show examples of how a ruling against him would affect other locations.

Because of these events, Jacobsen sought an injunction against the government's removal of his newsracks at Aberdeen, Lincoln, and Fargo. On January 6, 1986, the district court denied a preliminary injunction and temporary restraining order sought by Jacobsen against the United States Post Office. The Ninth Circuit overturned this ruling and directed the district court to "issue a preliminary injunction ordering the government not to remove any newspaper rack of the appellant which does not obstruct access or endanger pedestrians and which is placed on any perimeter sidewalk owned by the government adjacent to a post office." Jacobsen v. United States Postal Serv., 812 F.2d 1151, 1154 (9th Cir.1987). However, the Ninth Circuit remanded to the district court the issue of whether ingress-egress walkways should also be subject to the preliminary injunction. Id.

The preliminary injunction was issued on May 27, 1987, and on June 15, 1987, Jacobsen filed a motion for contempt against the Postal Service for the removal of one of the newsracks, in seeming violation of the injunction. A hearing on the injunction and contempt motion was held on November 19, 1987. A second contempt motion was served on February 17, 1988, and the government answered on March 1, 1988. The motion was finally filed on March 4, 1988. On June 12, 1989, the district court permanently enjoined the government from removing the newsracks from the perimeter sidewalks, but denied injunctive relief for the ingress-egress walkways. With respect to the first contempt motion concerning the Lincoln Post Office sidewalk, the district court concluded that the walkway was an ingress-egress way and the government did not violate the preliminary injunction by removing the newsracks. The second contempt motion was not addressed.

With respect to the three locations at issue in this appeal, the district court found the location of Jacobsen's newsrack in Fargo was a safety hazard, was partly on the federal building, and was not a public forum. In Aberdeen, the location of his newsrack on the sidewalk in front of the stairs was found to be a safety hazard, the terrace was found to be nonpublic, and the Randolph-Sheppard Act was found not violative of the First Amendment. In Lincoln, the location of the newsrack was found to be on an ingress-egress walkway--a nonpublic forum.

Jacobsen appeals the lifting of the injunction with respect to the placement of the newsracks that the district court found were placed in ingress-egress locations. Jacobsen also appeals a second motion for contempt that he filed regarding the location of a newsrack at Sioux Falls. However, this motion was not ruled on by the district court.

II

"When a district court holds a restriction on speech constitutional, we conduct an independent, de novo examination of the facts." Daily Herald Co. v. Munro, 838 F.2d 380, 383 (9th Cir.1988) (citation omitted). "We conduct an independent review of the record to be sure that the speech in question actually falls within the protected category, and to determine whether the constitutional factors have properly been applied." Gaudiya Vaishnava Soc'y v. City of San Francisco, 952 F.2d 1059, 1062 (9th Cir.1991) (quotation omitted). The instant case requires us "to apply principles of First Amendment jurisprudence to the specific facts of this case." ACORN v. City of Phoenix, 798 F.2d 1260, 1263 (9th Cir.1986) (quotation omitted).

III

A

Jacobsen argues that "the local post office in communities across the country are [sic] looked on as dedicated to communication among people. In each community these public owned sidewalks leading to U.S. Post Offices should be open to First Amendment activities as much as are the sidewalks in front of the U.S. Supreme Court building." At least a plurality of the Supreme Court disagrees: "The sidewalk leading to the entry of the post office is not the traditional public forum sidewalk referred to in Perry [Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983) ]." United States v. Kokinda, 497 U.S. 720, 727, 110 S.Ct. 3115, 3120, 111 L.Ed.2d 571 (1990) (plurality). "The Government's ownership of property does not automatically open that property to the public." Id. 497 U.S. at 725, at 3119 (citing United States Postal Serv. v. Council of Greenburgh Civic Ass'ns, 453 U.S. 114, 129, 101 S.Ct. 2676, 2685, 69 L.Ed.2d 517 (1981)). Moreover, there is a lower level of scrutiny when the government function is not one of regulation, lawmaking, or licensing, but as a proprietary owner. Id. (citing Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 896, 81 S.Ct. 1743, 1749, 6 L.Ed.2d 1230 (1961)).

The Supreme Court has defined three types of fora: "the traditional public forum, the public forum created by government designation, and the nonpublic forum." Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 802, 105 S.Ct. 3439, 3449, 87 L.Ed.2d 567 (1985). Traditional public fora are "those places which by long tradition or by government fiat have been devoted to assembly and debate." Id. (quotation omitted). The government may create fora, but "[t]he government does not create a public forum by inaction or by permitting...