U.S. v. Belsky

• Decision Date: 22 September 1986
• Docket Number: No. 85-8689,85-8689
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gerald Henry BELSKY, Marsha Brawner, Susan Klebe, James Carr and Connie Carr, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1485

799 F.2d 1485

UNITED STATES of America, Plaintiff-Appellee, v. Gerald Henry BELSKY, Marsha Brawner, Susan Klebe, James Carr and Connie Carr, Defendants-Appellants.

No. 85-8689.

United States Court of Appeals, Eleventh Circuit.

Sept. 22, 1986.

Rehearing and Rehearing En Banc Denied Oct. 27, 1986.

Reid W. Kennedy, Marietta, Ga., for defendants-appellants.

Julie Carnes, Asst. U.S. Atty., Atlanta, Ga., and Norman D. Menegat, U.S. Postal Service, Washington, D.C., for plaintiff-appellee.

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

Before TJOFLAT and KRAVITCH, Circuit Judges, and DUMBAULD ^*, Senior District Judge.

TJOFLAT, Circuit Judge:

Appellants were convicted of violating the federal regulation prohibiting solicitation of contributions on postal premises and of failing to comply with signs of a prohibitory nature or with the directions of postal authorities that they cease from soliciting on postal property. Appellants admitted the essential elements of the offenses, but contended that the regulations were invalid under the first amendment. The district court rejected appellants' first amendment challenge to the regulations and, following a bench trial, entered verdicts of guilty as to each defendant. We affirm.

I.

Appellants are members of the National Democratic Policy Committee. They set up card tables on several different postal properties and attempted to solicit contributions from, or sell memberships to, passersby. ¹ The post offices in question were all set back from the public road and were designed so that patrons could drive from the city street, park in the postal parking lot, and walk from the parking lot to the building on a connecting walkway. These ingress and egress walkways were on postal property. Appellants set up their card tables on these walkways, in front of or to the side of the main entrance of the buildings.

At issue in this case is the federal regulation prohibiting solicitation on postal property. The regulation provides in pertinent part:

(h) Soliciting, electioneering, collecting debts, vending, and advertising. (1) Soliciting alms and contributions, campaigning for election to any public office, collecting private debts, commercial soliciting and vending, and displaying or distributing commercial advertising on postal premises are prohibited.

39 C.F.R. Sec. 232.1(h)(1) (1985). This regulation was posted inside the postal facilities in question. Another regulation requires that "[a]ll persons in and on [postal] property shall comply with official signs of a prohibitory or directory nature, and with the directions of security force personnel or other authorized individuals." 39 C.F.R. Sec. 232.1(d) (1985). Appellants were informed by postal authorities that they were violating the regulation prohibiting solicitation, but they refused to terminate their activity. ²

A twenty-six count information was returned against the appellants in the United States District Court for the Northern District of Georgia. In each odd-numbered count, two of the five appellants were charged with soliciting contributions on postal property, in violation of 39 C.F.R. Sec. 232.1(h)(1). The even-numbered counts charged a failure to comply with signs of a prohibitory nature or with the directions of postal authorities to cease solicitation activities, in violation of 39 C.F.R. Sec. 232.1(d). The district court adjudged the appellants guilty as charged as to twenty-five of the twenty-six counts, and imposed a fine for each violation. ³ On appeal, appellants press their first amendment defense, contending that the regulation prohibiting solicitation of contributions on postal property is invalid under the Constitution. ⁴

II.

It is clear that the solicitation of funds is an activity that may receive first amendment protection. See Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 647, 101 S.Ct. 2559, 2563, 69 L.Ed.2d 298 (1981). It is also undisputed that, under appropriate circumstances, the government may, consistent with the Constitution, limit the exercise of first amendment rights on public property. "[T]he First Amendment does not guarantee access to property simply because it is owned or controlled by the government." United States Postal Service v. Council of Greenburgh Civic Associations, 453 U.S. 114, 129, 101 S.Ct. 2676, 2685, 69 L.Ed.2d 517 (1981). The question in this case is whether the restriction prohibiting solicitation of funds on postal property is a permissible one.

The Supreme Court has established that the ability of the government to restrict first amendment activity on public property depends upon the type of forum involved. See Cornelius v. NAACP Legal Defense & Educational Fund, --- U.S. ----, ----, 105 S.Ct. 3439, 3448, 87 L.Ed.2d 567 (1985); Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37, 44-46, 103 S.Ct. 948, 954-55, 74 L.Ed.2d 794 (1983). As to traditional public forums, such as streets and parks, the government may enforce content-based exclusions only if "necessary to serve a compelling state interest and [if] narrowly drawn to achieve that end," and may enforce content-neutral, time, place, and manner regulations only where they "are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." Perry Education Association, 460 U.S. at 45, 103 S.Ct. at 955. A similar standard applies to property that is not a traditional public forum, but which has been opened by the government as a place for expressive conduct. Id. at 45-46, 103 S.Ct. at 955. ⁵ Finally, for nonpublic forums, the government may enforce restrictions on first amendment conduct as long as they are "reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view." Id. at 46, 103 S.Ct. at 955; see Cornelius, --- U.S. at ----, 105 S.Ct. at 3448.

A public forum is one that "by long tradition or by government fiat [has] been devoted to assembly and debate." Perry Education Association, 460 U.S. at 45, 103 S.Ct. at 954. Streets and parks, as we have noted, are the prime examples. In United States v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983), the Supreme Court held that the public, municipal sidewalks surrounding the Supreme Court Building fit within the public forum category. The Court stated that these sidewalks were indistinguishable from other sidewalks in the city and should be treated as such. Id. at 179, 103 S.Ct. at 1708. Like the streets, sidewalks have been traditionally open for expressive activities. See id. ⁶ The Court expressly limited its holding to the public sidewalks surrounding the perimeter of the building and declined to express a view as to the building itself, or the rest of the grounds, which, although publicly owned, have "not been traditionally held open for the use of the public for expressive activities." Id. at 178-83, 103 S.Ct. at 1707-10.

We conclude that, under applicable Supreme Court precedent, the ingress and egress walkways to the post office buildings are a nonpublic forum. ⁷ These walkways are intended to accommodate traffic to and from the post office for the conduct of postal business and have not traditionally been sites for expressive conduct. ⁸ These walkways are distinguishable from the public sidewalks surrounding the buildings, which remain open for expressive conduct.

Because the postal walkways are a nonpublic forum, the regulation restricting solicitation must be reasonable and viewpoint neutral. Cornelius, --- U.S. at ----, 105 S.Ct. at 3451. In this case, all parties agree that the regulation is viewpoint neutral; it bans all solicitation without regard to viewpoint. Thus, we must assess whether the regulation is reasonable in light of the purpose the property is intended to serve. It need not be "the most reasonable or the only reasonable limitation," nor must it be narrowly tailored or serve a compelling government interest. Id. at ----, 105 S.Ct. at 3453.

The regulation in question easily passes muster under this standard. It is reasonable to conclude that permitting solicitation activities would disrupt the flow of traffic into and out of postal facilities. Such activities could contribute to parking congestion, make access into the postal buildings difficult, and generally impede the use of the properties for their intended purpose, which is to provide postal services. If solicitation were permitted on postal grounds, it is unlikely that appellants' group would be the only organization to take advantage of it; the result could be considerable disruption of...