Monterey County Democratic Cent. Committee v. U.S. Postal Service

• Decision Date: 17 March 1987
• Docket Number: No. 85-1685,85-1685
• Parties: MONTEREY COUNTY DEMOCRATIC CENTRAL COMMITTEE; Alice Ellis; and Dorothy Lund, Plaintiffs-Appellants, v. UNITED STATES POSTAL SERVICE; William F. Bolger, Postmaster General; Joseph R. Caraveo, Regional Postmaster; Manuel Subia, District Manager; and Terry Williams, Postmaster, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1194

812 F.2d 1194

MONTEREY COUNTY DEMOCRATIC CENTRAL COMMITTEE; Alice Ellis; and Dorothy Lund, Plaintiffs-Appellants, v. UNITED STATES POSTAL SERVICE; William F. Bolger, Postmaster

General; Joseph R. Caraveo, Regional Postmaster;

Manuel Subia, District Manager; and

Terry Williams, Postmaster,

Defendants-Appellees.

No. 85-1685.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 12, 1985.

Decided March 17, 1987.

Douglas R. Young, San Francisco, Cal., for plaintiffs-appellants.

Edward R. Cohen, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before TANG and BRUNETTI, Circuit Judges, and CURTIS, District Judge. ^*

BRUNETTI, Circuit Judge:

The Monterey County Democratic Central Committee and two of its members (the Committee) challenge a district court order denying the Committee's request for an injunction of a United States Postal Service guideline prohibiting voter registration by partisan groups on postal premises. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In December 1983 the United States Postal Service (Postal Service) promulgated a guideline permitting voter registration on postal premises under certain conditions and only by certain groups. Postal Bulletin 21434, 12-1-83 at 9, reproduced in Appendix A, infra. Section (A)(1) of the guideline defines permissible registrars as "government agencies or non-profit civic leagues or organizations that operate for the promotion of social welfare but do not participate or intervene in any political campaign on behalf of any candidate for any public office."

In July 1984 the Committee sought permission to register voters at the Post Office in Carmel Valley, California (Post Office). The Committee proposed to seat its members at tables located on a covered walkway adjacent to the Post Office. The walkway is separated from municipal sidewalks by the Post Office parking area. Photographs reproduced in Appendix B, infra. Terry Williams, Postmaster of the Carmel office, denied the Committee's request, finding that the Committee was a partisan group not authorized to conduct voter registration under section (A)(1).

The district court preliminarily enjoined enforcement of the guideline but later granted summary judgment in favor of the Postal Service. We review an order of summary judgment de novo. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir.1986).

DISCUSSION

The Committee contends that by excluding partisan groups from voter registration activities on Post Office property, the guideline deprives them of their first amendment right of free expression and fifth amendment equal protection guarantees.

A. The Public Forum Doctrine and the First Amendment

The parties do not dispute that voter registration is speech protected by the first amendment to the United States Constitution. This protection, however, is not in all cases absolute. See Heffron v. Int'l Society for Krishna Consciousness, Inc., 452 U.S. 640, 647, 101 S.Ct. 2559, 2564, 69 L.Ed.2d 298 (1981) ("the First Amendment does not guarantee the right to communicate one's views at all times and places or in any manner that may be desired"). See also Adderley v. Florida, 385 U.S. 39, 47-48, 87 S.Ct. 242, 247-48, 17 L.Ed.2d 149 (1966). The values embodied in the first amendment are expressed through rules that balance tenets of free expression--principles constituting the hallmark of free societies--with practical assessments of the suitability of the forum. The nature of the forum selected by the speaker determines which rule governs.

Fora are grouped into three categories. The first includes places which "by long tradition or government fiat" have been utilized for assembly and debate. Perry Education Assoc. v. Perry Local Educators' Assoc., 460 U.S. 37, 45, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983). Public fora typically include streets, sidewalks and parks. Id. Government authority to regulate speech in these "quintessential" public fora is greatly limited. Id. In such places, communication may not be entirely prohibited. Content-based exclusions are impermissible unless justified by a compelling state interest narrowly tailored to achieve that end. Id. The government may enforce content-neutral regulations concerning time, place and manner of expression which are narrowly drawn to serve "a significant government interest, and leave open ample alternative channels of communication." Id.

A second category of forum includes public property opened and designated by the state for the public as a place of expressive activity. Id. The government does not create a public forum through unconscious, unspoken practices or by permitting limited discourse, but "only by intentionally opening a non-traditional forum for public discourse." Cornelius v. NAACP Legal Defense and Education Fund, Inc., 473 U.S. 788, 105 S.Ct. 3439, 3449, 87 L.Ed.2d 567 (1985). Courts refer to such fora as "limited" public fora, Perry, 460 U.S. at 48, 103 S.Ct. at 956, or public fora "by designation." Cornelius, 105 S.Ct. at 3450. First amendment questions involving these places are controlled by the rules applicable to traditional public fora.

Public fora by designation often will be narrowly defined. Thus, when limited discourse is permitted by select groups, a public forum open to indiscriminate use by all is not created. Cornelius, 105 S.Ct. at 3449. In such instances a limited public forum results, extended only to the original recipients of the government's permission and to entities similar in character. Perry, 460 U.S. at 47-48, 103 S.Ct. at 956-57. Once opened, a limited public forum is not guaranteed an indefinite existence; the government may choose to close it and devote the property exclusively to its preexisting purposes. 460 U.S. at 46, 103 S.Ct. at 955.

The third category consists of nonpublic fora. In describing the government's powers to regulate these places, the Supreme Court has stated: "the State may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely It is the Committee's position that the walkway is a traditional public forum. The guideline, they argue, furthers no compelling government interest and thus cannot withstand the heightened scrutiny applied to regulations of public fora. We disagree.

                because public officials oppose the speaker's view."    Id
                

Public places of outdoor pedestrian traffic--sidewalks--long have been representative of areas held open to the public for expressive activities. United States v. Grace, 461 U.S. 171, 179, 103 S.Ct. 1702, 1708, 75 L.Ed.2d 736 (1983). That a sidewalk is situated on publicly owned property without more, however, is insufficient to accord it public forum status. "The state, no less than a private owner of property, has power to preserve property under its control for the use to which it is lawfully dedicated." Adderley v. Florida, 385 U.S. 39, 47, 87 S.Ct. 242, 247, 17 L.Ed.2d 149 (1966).

We are aided in our analysis by the Supreme Court's opinion in Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976), and the Court's more recent comments on that case. In Greer, several political candidates initiated court proceedings in an effort to gain access to the sidewalks and streets within the Fort Dix Military Reservation to discuss campaign issues with service personnel and their families and to distribute related literature. Although the streets and sidewalks in question were separate from municipal roads and sidewalks, they were open to civilian vehicular and pedestrian traffic. At the unguarded entrance to the fifty-five-square-mile installation, a sign was displayed welcoming visitors. Nonetheless, because the premises were devoted to military training--an activity incompatible with the maintenance of a public forum--the Supreme Court upheld regulations prohibiting expressive activities by the public. Id. at 836-38, 96 S.Ct. at 1216-18. In a subsequent case, United States v. Grace, the Court drew authority from Greer to construct a rule stressing the separateness of the military's walkways from the municipal ones in Greer : the rule allows the government to overcome the presumption that sidewalks are public fora when the federally owned sidewalk obviously is separate from municipal sidewalks, apprising those who approach of the difference. 461 U.S. at 180, 103 S.Ct. at 1708.

The Court in Grace, was asked to strike down a statute prohibiting certain expressive activities on the Supreme Court grounds and the sidewalk forming the perimeter. The Court distinguished Greer, finding that the sidewalks surrounding the grounds retained their public forum status because no apparent separation existed to indicate to persons stepping from the street to the curb "that they have entered some special type of enclave." Id. The Court stated that "[t]he sidewalks comprising the outer boundaries of the Court grounds are indistinguishable from any other sidewalks in Washington, D.C., and we can discern no reason why they should be treated any differently." Id.

This distinction is pivotal in the instant case. The Carmel Post Office walkway is separated from the municipal sidewalks by the Post Office parking area. The isolated nature of the building and the surrounding walkway indicate to all who approach that the walkway services postal patrons entering the building and that it is not a thoroughfare for passersby intent on other errands. This fact is sufficient to overcome the presumption of public forum status otherwise accorded sidewalks. Accordingly, we find the postal walkway analogous to the sidewalk at issue in Greer and conclude that it is not a traditional public forum.

The Committee argues that even if the walkway is not a traditional public forum, government attempts to regulate its use for expressive activities still must be...