U.S. v. Kokinda

• Decision Date: 14 April 1989
• Docket Number: No. 87-5107,87-5107
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marsha B. KOKINDA and Kevin E. Pearl, Defendants-Appellants, Christian Advocates Serving Evangelism; Project for Public Spaces, Inc., Amicus Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 699

866 F.2d 699

57 USLW 2461

UNITED STATES of America, Plaintiff-Appellee, v. Marsha B. KOKINDA and Kevin E. Pearl, Defendants-Appellants, Christian Advocates Serving Evangelism; Project for Public

Spaces, Inc., Amicus Curiae.

No. 87-5107.

United States Court of Appeals, Fourth Circuit.

Argued March 7, 1988.

Decided Jan. 31, 1989.

Rehearing and Rehearing In Banc Denied April 14, 1989.

Jay Alan Sekulow (Mary W. Ebel, on brief), for appellants.

Hollis Raphael Weisman, Asst. U.S. Atty. (Breckinridge L. Willcox, U.S. Atty., Washington, D.C., on brief), for appellee.

(R. David Pembroke, Baltimore, Md., David Sondheimer, on brief) for amici curiae.

Before WIDENER, MURNAGHAN and WILKINSON, Circuit Judges.

WILKINSON, Circuit Judge:

Marsha Kokinda and Kevin Pearl appeal their convictions for soliciting contributions on the sidewalk in front of the Bowie, Maryland post office in violation of postal service regulation 39 C.F.R. Sec. 232.1(h) (1986). Because we believe that the post office sidewalk constitutes a public forum and that the postal regulation is neither a reasonable manner restriction nor narrowly tailored to protect First Amendment values, we hold 39 C.F.R. Sec. 232.1(h) an unconstitutional infringement upon defendants' rights. No significant government interest has been demonstrated that would be narrowly accommodated by eliminating an entire category of political speech from this public forum. The convictions of these defendants are therefore reversed.

I.

Marsha Kokinda and Kevin Pearl are volunteers for the National Democratic Policy Committee. On August 6, 1986, they set up a table on the sidewalk in front of the Bowie, Maryland post office. There they solicited contributions and distributed literature addressing a variety of political issues.

During the course of the day, Kokinda and Pearl attempted to speak with post office patrons. They distributed National Democratic Policy Committee literature, solicited contributions to their political organization, and solicited subscriptions to its newspaper, New Solidarity. They placed posters around the table and set their literature on top of it. The literature included pamphlets, books, and magazines discussing such issues as the "AIDS cover-up" and the testing of "Congress for Cocaine."

The sidewalk on which appellants set up their table is approximately seven feet wide and is located on postal service property. The sidewalk runs in front of the Bowie post office and postal patrons must use this walkway to enter the building. A post office parking lot is contiguous to the sidewalk and both the parking lot and post office building itself are set back from a public road. A municipal sidewalk abuts the public road, runs in front of the parking lot, and is parallel to the post office sidewalk.

After seeing defendants' table and their literature and receiving complaints from postal customers, Postmaster Larry Poe of the Bowie post office asked Kokinda and Pearl to leave postal property. When they refused, the Postmaster returned with Postal Inspector Julius Cochran. Defendants again refused to leave and were arrested; their table and its contents were seized.

Kokinda and Pearl were charged with solicitation of contributions on postal service property, 39 C.F.R. Sec. 232.1(h); refusal to comply with the lawful directions of postal authorities to leave postal service property, 39 C.F.R. Sec. 232.1(d); and refusal to leave the grounds of a public building, Md.Code Ann. Art. 27, Sec. 577A (1987) and 18 U.S.C. Secs. 7 & 13. Appellants were convicted on the first two counts before a magistrate. Kokinda received ten days imprisonment and a $50.00 fine; Pearl thirty days and a $100.00 fine. Pearl's sentence was suspended and he was placed on nine months probation. Appellants appealed their convictions to the United States District Court for the District of Maryland. There they challenged, inter alia, the constitutionality of the federal regulation prohibiting solicitation on postal service property. This regulation provides in relevant part:

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 is prohibited.

39 C.F.R. Sec. 232.1(h) (1986). The district court rejected the First Amendment challenge to the regulation and affirmed the convictions. Kokinda and Pearl appeal.

II.

Nearly a half century ago, Justice Roberts, writing in Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939) (opinion of Roberts, J.), recognized the venerable role that public streets and parks had come to play in the dissemination of ideas.

Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.

Id. at 515-16, 59 S.Ct. at 964.

Sidewalks too are presumptively public forums. The peaceful expression of protest on the streets and sidewalks of this country have effectively brought issues of social import to public attention. The sidewalks have hosted groups which were pro-life and pro-choice, sloganeers on Contra aid and South African apartheid, and those who would bring the issues of drug abuse or POW's, acid rain or SDI into public view. What the debate has lacked in decorum, it has supplied in vitality, and it is important to the dialogue of a democratic system. Without the streets and sidewalks, there might have been no civil rights movement, and it is no coincidence that the expressions of that era focused upon public buildings where the spectacle of official lawlessness was most in evidence. The First Amendment precedent of that time reflects the number, variety, visibility, and effectiveness of those demonstrations and the protection to which sidewalk speech is entitled. See, e.g., Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963) (civil rights march and demonstration by 187 black students on state house grounds); Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965) (march by 2,000 black students on public sidewalks to courthouse and demonstration on sidewalk opposite courthouse); Shuttlesworth v. Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969) (march by 52 black citizens on public sidewalks to protest denials of civil rights); Police Dep't of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972) (peaceful picketing to protest race discrimination on sidewalk adjoining school).

This case, of course, is a far cry from those of the 1960's. It presents a calmer time, a less disadvantaged class of defendants, more reasonable actions on the part of those in authority, and a public edifice of little symbolic import. Yet there remains a price to be paid for declaring sidewalks off bounds to political solicitation and speech. Today the sidewalk may harbor the religious dissenter, the cultural iconoclast, the political maverick; tomorrow it may stage a movement of social protest whose message no one can foresee. Thus, sidewalks should remain available for speakers whose access to the public's ear and pursestring would otherwise be incomplete.

Kokinda and Pearl solicited subscriptions to the National Democratic Policy Committee's newspaper, New Solidarity. They also had available literature warning of an economic "blow out," calling for an end to the "AIDS cover-up," and discussing the problems of drug abuse in government. Theirs was classic political speech pursued peacefully in a place that "traditionally ha[s] been held open to the public for expressive activities and [is] clearly within those areas of public property that may be considered, generally without further inquiry, to be public forum property." United States v. Grace, 461 U.S. 171, 179, 103 S.Ct. 1702, 1708, 75 L.Ed.2d 736 (1983); see Boos v. Barry, --- U.S. ----, ----, 108 S.Ct. 1157, 1162, 99 L.Ed.2d 333 (1988).

III.

Whatever the general properties of sidewalks, the government contends that this particular sidewalk is not a public forum. We do not find its characterization of this sidewalk persuasive.

The walkways in front of the Bowie post office, like those surrounding foreign embassies, Boos, 108 S.Ct. at 1161; the Supreme Court, Grace, 461 U.S. at 173, 103 S.Ct. at 1705; or state capital grounds, Edwards, 372 U.S. at 235, 83 S.Ct. at 683; serve the primary function of safely accommodating pedestrian traffic. These sidewalks may, however, accommodate other uses simultaneously, including use as a forum for the peaceful expression of political views. See Cass, First Amendment Access to Government Facilities, 65 Va.L.Rev. 1287, 1338-39 (1979). It ill behooves us to undertake too intricate a task of designation, holding this sidewalk public and that one not. We recognize that other circuit courts have held that non-municipal post office sidewalks do not constitute public fora. Monterey County Democratic Central Committee v. United States, 812 F.2d 1194 (9th Cir.1987); United States v. Belsky, 799 F.2d 1485 (11th Cir.1986); United States v. Bjerke, 796 F.2d 643 (3d Cir.1986). But such labeling loses sight of the fact that most sidewalks are designed as outdoor public thoroughfares and that citizens should not be left to wonder at which ones they...