Friday, July 13, 2012
A three-judge panel of the D.C. Circuit ruled in Initiative and Referendum Institute v. U.S. Postal Service that postal regulations prohibiting "collecting" signatures, but not "soliciting" then, on interior postal sidewalks did not violate the First Amendment. With the ruling, the D.C. Circuit answers a question addressed but not resolved in United States v. Kokinda and joins the five other circuits that have addressed the issue in holding that interior sidewalks at post offices are not public forums. (The Fourth Circuit ruled in 1989 that interior sidewalks were public forums, but the Supreme Court reversed in Kokinda.)
The case in just the latest chapter in an ongoing back-and-forth between the appellants and the Postal Service. The reg at issue here, 39 CFR Section 232.1(h)(1), tailored by the Postal Service after the last round in the courts, prohibits "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." (These latter sidewalks are called "Grace sidewalks," after United States v. Grace, holding that "sidewalks forming the perimeter of the Supreme Court grounds" are traditional public forums, because they are "indistinguishable from any other sidewalks in Washington, D.C." In reaction to earlier rulings, the Postal Service revised its reg to exempt speech on Grace sidewalks.)
The court, using a functional approach, ruled that interior postal sidewalks are nonpublic forums, because of their limited purpose and use--to get into the Post Office. This doesn't seem terribly surprising, but part of the court's methodology may be: It relied on a district court-ordered survey of postmasters as to how their interior sidewalks are used. ("358 postmasters said that exterior spaces have been used for expressive activities and 4,736 said they have not." Op. at 10.)
Applying the test for the nonpublic forum, the court held the prohibition was reasonable because signature collectors block the flow of traffic into the building and because the Postal Service seeks to avoid the appearance of endorsing the group collecting signatures.
Still: Why treat solicitation differently than collection? The court said that this distinction is based on its own jurisprudence, following the plurality and Justice Kennedy in Kokinda. That is,
different consequences are likely to follow from merely asking postal customers for their signatures and actually collecting them. Collecting contributions involves the type of immediate response the Kokinda plurality thought could be reasonably banned because it would cause postal customers to stop, transact the business requested, and thus disrupt the flow of traffic at the post office.
Op. at 12. Not so for mere solicitation.