New York City Unemployed and Welfare Council v. Brezenoff, 1484

• Decision Date: 20 August 1984
• Docket Number: No. 1484,D,1484
• Citation: 742 F.2d 718
• Court: U.S. Court of Appeals — Second Circuit
• Parties: NEW YORK CITY UNEMPLOYED AND WELFARE COUNCIL, Alma Brooks, James Scott and Phyllis Bolding, Plaintiffs-Appellants, v. Stanley BREZENOFF, as Administrator/Commissioner of the New York City Human Resources Administration and Commissioner of New York City Department of Social Services; Barbara Blum, as Commissioner of the New York State Department of Social Services; Herbert Rosenzweig, as Deputy Administrator of Income Maintenance Programs of the New York City Human Resources Administration; Burt Chevers, as Director of the Income Maintenance Client Advisory Section; and the Client Advisory Committees of New York City's Income Maintenance Programs, Defendants-Appellees. ocket 84-7031.

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742 F.2d 718

NEW YORK CITY UNEMPLOYED AND WELFARE COUNCIL, Alma Brooks, James Scott and Phyllis Bolding, Plaintiffs-Appellants, v. Stanley BREZENOFF, as Administrator/Commissioner of the New

York City Human Resources Administration and Commissioner of

New York City Department of Social Services; Barbara Blum,

as Commissioner of the New York State Department of Social

Services; Herbert Rosenzweig, as Deputy Administrator of

Income Maintenance Programs of the New York City Human

Resources Administration; Burt Chevers, as Director of the

Income Maintenance Client Advisory Section; and the Client

Advisory Committees of New York City's Income Maintenance

Programs, Defendants-Appellees.

No. 1484, Docket 84-7031.

United States Court of Appeals, Second Circuit.

Argued June 21, 1984.

Decided Aug. 20, 1984.

Harry Kresky, New York City, for plaintiffs-appellants.

Trudi Mara Schleifer, New York City (Frederick A.O. Schwarz, Jr., Corporation Counsel, Francis F. Caputo, New York City, of counsel), for defendants-appellees.

Before MESKILL, CARDAMONE and ROSENN, ^* Circuit Judges.

MESKILL, Circuit Judge:

The New York City Unemployed and Welfare Council (the Council) and three of its members appeal from orders of the United States District Court for the Southern District of New York, Owen, J. On remand from this Court, Judge Owen dismissed the remaining portions of the Council's complaint seeking the right to solicit dues in New York City welfare offices; in his earlier decision, he denied the Council's claim for attorney's fees. We affirm.

BACKGROUND

The facts were previously reported in our first opinion in this case. New York City Unemployed and Welfare Council v. Brezenoff, 677 F.2d 232 (2d Cir.1982) (Brezenoff I ). Some familiarity with them will be assumed.

The Council is an organization of about 10,000 welfare recipients and is funded largely by dues and donations. It charges one dollar per year to its members, although some members pay no dues. Its primary purposes are apparently to educate welfare recipients as to their legal rights, improve conditions at welfare offices and fight poverty.

The primary focus of the Council's activities is the approximately forty New York City welfare offices, also known as Income Maintenance Centers (IMCs). Welfare applicants and recipients, collectively referred to as "clients," go to the IMCs to receive emergency welfare checks and food stamps, obtain information about eligibility requirements, receive assistance with applications or finances and in general to talk with welfare workers. The IMCs are open to the public.

The New York City Human Resources Administration (HRA), a city agency that administers the city's welfare program, promulgated regulations which restricted the activity of outside organizations within the IMCs. Those restrictions included limits on the locations within the IMCs where organization representatives could speak with welfare clients and distribute literature, and a total ban on the solicitation of membership fees or contributions from welfare clients within the IMCs. Plaintiffs-appellants initially brought this action to challenge the regulations and other HRA practices The district court denied all of the relief sought by the Council, except that it ordered one minor modification in the regulations. With respect to the issue on this appeal, the district court held that the solicitation ban was reasonable as a means of preventing fraud or misrepresentation. Specifically, it accepted HRA Administrator Martin Burdick's testimony "that welfare clients, on being solicited, are likely to be misled into believing that the [Council representatives] are employed by the HRA or that payment of a fee [to the Council] is a prerequisite to the receipt of welfare benefits." Brezenoff I, 677 F.2d at 239. We affirmed the district court judgment in large part, but vacated and remanded the court's holding regarding the solicitation ban. We remanded because we were "unable to conclude that the district court properly applied [First Amendment] principles ... since there [was] no indication that the court gave any consideration to whether the total ban is the least restrictive means of preventing the false impressions that defendants fear." Id. at 239. Our remand thus directed the district court to consider whether the total ban on solicitation was the least restrictive means of achieving the HRA's ends, with the burden of proof on the HRA. Id. at 240-41.

and sought injunctive relief and damages.

On remand, the district court took further testimony and subsequently issued an order dismissing the remainder of the complaint. It considered other alternatives, but concluded that the solicitation ban was the least restrictive means of effectively guarding against fraud or misrepresentation. It also considered for the first time the HRA's contention that the ban was necessary to prevent theft in the IMCs and dismissed the remainder of the complaint on this alternate ground as well. Plaintiffs appeal.

DISCUSSION

Charitable solicitations that are used to support speech and the dissemination of information are clearly within the First Amendment's protection of speech. See, e.g., Secretary of State of Maryland v. Joseph H. Munson Co., --- U.S. ----, ---- - ----, 104 S.Ct. 2839, 2847-49, 81 L.Ed.2d 786 (1984); Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980). This does not mean, however, that charitable solicitations may not be regulated or even prohibited in appropriate circumstances. "[T]he 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." Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 647, 101 S.Ct. 2559, 2563, 69 L.Ed.2d 298 (1981). We are here asked for the second time to decide whether the First Amendment guarantees an organization of welfare recipients the right to solicit contributions in lobbies of welfare offices. We hold that it does not.

In Brezenoff I, we held that a welfare office is to be treated as a public forum for the purposes of speech pertaining to welfare issues. However, " '[a] welfare office is not to be equated with a public street.' " Albany Welfare Rights Organization v. Wyman, 493 F.2d 1319, 1323 (2d Cir.), cert. denied, 419 U.S. 838, 95 S.Ct. 66, 42 L.Ed.2d 64 (1974) (quoting Massachusetts Welfare Rights Organization v. Ott, 421 F.2d 525, 527 n. 4 (1st Cir.1969)). Because a welfare office is government property that is not traditionally or by designation a public forum, see Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37, 42-46, 103 S.Ct. 948, 953-55, 74 L.Ed.2d 794 (1983), the government entity operating it is entitled to preserve it for its intended use. Id. at 46, 103 S.Ct. at 955 (quoting Adderley v. Florida, 385 U.S. 39, 48, 87 S.Ct. 242, 247, 17 L.Ed.2d 149 (1966)). Where the type of speech in question is " 'basically incompatible' " with the intended use of the government property, the government "may impose reasonable time, place or manner restrictions on its exercise or may, in cases of unavoidable incompatibility, bar speech altogether." Eastern Connecticut Citizens Action Group v. Powers, 723 F.2d 1050, 1054 (2d Cir.1983) (quoting in part Grayned v. City of Rockford, 408 U.S. 104, 116, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222 (1972)). Content-neutral time, place or manner restrictions unrelated to the suppression of free expression are valid if "they are narrowly tailored to serve a significant governmental interest and ... leave open ample alternative channels for communication." Clark v. Community for Creative Non-Violence, --- U.S. ----, ----, 104 S.Ct. 3065, 3068, 82 L.Ed.2d 221 (1984); see, e.g., Members of the City Council of Los Angeles v. Taxpayers for Vincent, --- U.S. ----, ---- - ----, 104 S.Ct. 2118, 2129-30, 80 L.Ed.2d 772 (1984).

A blanket prohibition of a particular type of speech in a public forum may sometimes be a reasonable time, place or manner restriction. For example, in Clark v. Community for Creative Non-Violence, --- U.S. ----, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984), the Supreme Court held that "symbolic sleep" in a Lafayette Park tent city that was intended to demonstrate the plight of the homeless could be banned altogether. It reached this conclusion even though demonstrations could not be generally banned in the park because it is a traditional public forum, see, e.g., United States v. Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 1706, 75 L.Ed.2d 736 (1983); Perry Education Association, 460 U.S. at 42, 103 S.Ct. at 953. The relevant content-neutral restrictions prohibiting camping were valid because they were narrowly drawn to serve the important governmental interest of conserving park property and because there were other areas where the campers could engage in "symbolic sleep." ¹ --- U.S. at ---- - ----, 104 S.Ct. at 3069-72. The regulations could therefore be constitutionally applied to a group of individuals that intended to use camping in Lafayette Park as a mode of expression.

In the case at bar, the HRA regulation prohibiting solicitation in IMCs is certainly content-neutral; it does not discriminate in favor of or against solicitation used to support any particular viewpoint. Brezenoff I, 677 F.2d at 239. The governmental interest used to justify the solicitation ban, prevention of fraud, is a substantial one. Id. We must therefore consider whether the solicitation prohibition is no broader than necessary to serve the HRA's interest, and whether its implementation would leave open adequate alternative channels of communication.

In the remand decision that is the subject of this appeal, the district court found that there were no reasonable means short of a complete ban on solicitation to further the HRA's interest in preventing fraud. It held:

I do note that a statement could...