Initiative & Referendum Inst. v. U.S. Postal Serv.

685 F.3d 1066

INITIATIVE AND REFERENDUM INSTITUTE, et al., Appellants

v.UNITED STATES POSTAL SERVICE, Appellee.

No. 10–5337.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 9, 2011.

Decided July 13, 2012.

Rehearing En Banc Denied Sept. 10, 2012.

Appeal from the United States District Court for the District of Columbia (No. 1:00–cv–01246).

David F. Klein argued the cause for appellants. With him on the briefs were Mark S. Davies, Matthew G. Jeweler, and Arthur B. Spitzer.

Alice Neff Lucan and René P. Milam were on the brief for amici curiae Newspaper Association of America, et al. in support of appellants.

Marina Utgoff Braswell, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Ronald C. Machen, Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Before: HENDERSON, BROWN, and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

Concurring opinion filed by Circuit Judge BROWN.

GRIFFITH, Circuit Judge:

This appeal is the latest step in a long-running controversy over the use of post office sidewalks to gather signatures on petitions. Originally a dispute over a ban on soliciting signatures on all post office property, the issues in the case have changed in response to a decision of ours and subsequent revisions to Postal Service regulations. Before us now is a facial challenge to a ban on collecting signatures on post office sidewalks that do not run along public streets. We agree with the district court that the ban does not violate the First Amendment.

I

In 1998, the Postal Service banned “soliciting signatures on petitions” on “all real property under the charge and control of the Postal Service.” 39 C.F.R. § 232.1(a), (h)(1) (2002). Violations are punishable by a criminal fine and imprisonment. Id. § 232.1(p)(2).

The appellants use sidewalks on postal property to circulate petitions aimed at placing initiatives and referenda on state and local election ballots. In 2000, they brought a facial challenge to the 1998 ban, arguing it violated the First Amendment. Following discovery, both parties moved for summary judgment. At a hearing on those dueling motions, the Postal Service announced that the ban would not extend to sidewalks that form the perimeter of post office property and are indistinguishable from adjacent public sidewalks, ¹ and that the regulation would be enforced only against the collecting of signatures, not the mere asking for them. See Mots. Hr'g Tr. 29, 32–34, Sept. 24, 2002. The Postal Service also said it would “issue a bulletin to its postmasters directing them to adhere to this changed position.” Initiative & Referendum Inst. v. U.S. Postal Serv., No. 00–1246, Order at 1 (D.D.C. Sept. 26, 2002).

The district court granted summary judgment for the Postal Service, holding that the regulation, as narrowed by the newly announced enforcement policy, was a reasonable time, place, or manner restriction that would pass constitutional muster even on sidewalks that were public forums. Initiative & Referendum Inst. v. U.S. Postal Serv., 297 F.Supp.2d 143, 154 (D.D.C.2003). Reaching that conclusion, the district court did not need to decide if they were.

We reversed the district court, holding that the ban would be an impermissible restriction on expressive activity if postal sidewalks were public forums because it was not narrowly tailored to target disruptive activity and did not allow for petitioning anywhere on postal property. Initiative & Referendum Inst. v. U.S. Postal Serv., 417 F.3d 1299, 1306–07 (D.C.Cir.2005). We remanded the case for the district court to determine whether the ban reached “a substantial number” of public forums.²Id. at 1313. To guide the district court, we noted that interior postal sidewalks “may be hard to categorize” but that Grace sidewalks are surely public forums where the regulation may not be enforced. Id. at 1313–14. Contrary to the argument of the Postal Service that its new enforcement policy corrected the regulation's defect as to Grace sidewalks, we held that placing them beyond its reach was not a plausible construction of a regulation whose express terms still applied to all postal property. Id. at 1317–18. We also identified a different problem with the regulation: Even in nonpublic forums restrictions must be reasonable, and a ban on merely asking for signatures would not be. Id. at 1314–16. The Postal Service's new enforcement policy, however, remedied that infirmity by plausibly construing the ban to bar only the actual collection of signatures. Id. at 1317.

While the matter was before the district court on remand, the Postal Service amended its regulations to account for our discussion of the new enforcement policy. The 2010 regulations prohibit “collecting” signatures, but not “soliciting” them, on all postal property other than Grace sidewalks. 39 C.F.R. § 232.1(a), (h)(1) (2010) (prohibiting “collecting signatures on petitions” on all postal property except “sidewalks along the street frontage of postal property ... that are not physically distinguishable from adjacent municipal or other public sidewalks”).

Which brings us to the present controversy: The appellants argue that § 232.1(h)(1) is still unconstitutional on its face because the sidewalks to which it applies are public forums. In response to the district court's request for a more complete factual record, the parties sent a questionnaire to selected postmasters asking about the nature and frequency of expressive activity on various types of postal sidewalks. The appellants argued that the survey results showed that many interior sidewalks at post offices are public forums and moved for summary judgment on that ground. And even if they were not, the appellants claim the regulation still violates the First Amendment because it is unreasonable. The appellants also asked the district court to enjoin enforcement of the regulation on Grace sidewalks. The Postal Service countered with its own motion for summary judgment, arguing that the regulated sidewalks are not public forums and the regulation is reasonable. The district court sided with the Postal Service and also held that the express exemption of Grace sidewalks from the regulation mooted the request for injunctive relief. Initiative & Referendum Inst. v. U.S. Postal Serv., 741 F.Supp.2d 27, 35, 41 (D.D.C.2010). This appeal followed. We exercise jurisdiction pursuant to 28 U.S.C. § 1291.

II

The first question we must decide is whether interior postal sidewalks are public forums. It is hard to imagine many activities more central to the purpose of the First Amendment than collecting signatures on a petition with the goal of placing an issue before the electorate. Yet even such a worthwhile endeavor is not altogether free of government regulation when it takes place on government property dedicated to other types of public business.

We analyze restrictions on expressive activity on government property for compliance with the First Amendment under the public forum doctrine. This approach divides government property into three categories, and the category determines what types of restrictions will be permissible. The “traditional public forum” category consists of property that has “by long tradition or by government fiat ... been devoted to assembly and debate.” Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). Quintessential examples are streets and parks, which “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.” Id. (quoting Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 83 L.Ed. 1423 (1939)) (internal quotation marks omitted). In such a forum we subject content-based restrictions on speech to strict scrutiny, but use the less demanding time, place, or manner test to assess content-neutral restrictions. Id. A “designated public forum” is property that “the State has opened for use by the public as a place for expressive activity.” Id. Expressive activity there may be restricted to particular groups or subjects. Id. at 46 n. 7, 103 S.Ct. 948. A “nonpublic forum” is “not by tradition or designation a forum for public communication.” Id. at 46, 103 S.Ct. 948. In these places the government 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 because public officials oppose the speaker's view.” Id.

In United States v. Kokinda, 497 U.S. 720, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990), the Supreme Court addressed but did not resolve the question before us: whether interior sidewalks at post offices are public forums. At issue was a Postal Service regulation that prohibited “[s]oliciting alms and contributions” on a sidewalk that led from the parking lot to the front door of the post office building. Id. at 722–23, 110 S.Ct. 3115 (plurality opinion). Writing for a plurality, Justice O'Connor explained that the forum analysis turns on more than whether the government property is a sidewalk: “the location and purpose of a publicly owned sidewalk” are key. Id. at 727–29, 110 S.Ct. 3115. The plurality concluded that this sidewalk was not a public forum because “it [led] only from the parking area to the front door of the post office” and “was constructed solely to provide for the passage of individuals engaged in postal business.” Id. at 727, 110 S.Ct. 3115. Unlike other sidewalks, it was not a “public passageway” meant “to facilitate the daily commerce and life of the neighborhood or city.” Id. at 727–28, 110 S.Ct. 3115. Justice Kennedy concurred in the judgment upholding the regulation but would not join the plurality's conclusion that the sidewalk was not a public forum. Noting there was “a powerful argument”...