United States v. Kokinda

PETITIONER:United States
RESPONDENT:Kokinda
LOCATION:Buie Residence

DOCKET NO.: 88-2031
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: United States Court of Appeals for the Fourth Circuit

CITATION: 497 US 720 (1990)
ARGUED: Feb 26, 1990
DECIDED: Jun 27, 1990

ADVOCATES:
John G. Roberts, Jr. – for petitioner
Jay Alan Sekulow – Argued the case for the respondents

Facts of the case

Marsha Kokinda and Kevin Pearl were volunteers for the National Democratic Policy Committee. They set up a table on a sidewalk near a post office to solicit contributions and sell political literature. After post office employees received a large number of complaints, Kokinda and Pearl were asked to leave. They refused, at which point postal inspectors arrested them. They were charged and convicted of violating 39 CFR 232.1(h)(1)(1989), which prohibits “soliciting alms and contributions … on postal premises.” They appealed the convictions, arguing that they violated the Free Speech clause of the First Amendment. The District Court, ruling that the sidewalk in question (which was entirely on Postal Service property and was intended only for traffic to and from the Post Office) was not a public forum, found that the restrictions were reasonable and therefore did not violate the First Amendment. On appeal, however, a divided panel of the Fourth Circuit Court of Appeals ruled that the sidewalk was a traditional public forum and that the government’s regulations were therefore subject to strict scrutiny. Because the government had no significant interest in banning solicitation, the convictions were unconstitutional.

Question

Is a sidewalk that is entirely contained by Postal Service property and intended only for traffic to and from Postal Service buildings a public forum? If it is a public forum, does a prohibition of solicitation pass strict scrutiny? If it is not a public forum, does it pass a “reasonableness” test?

William H. Rehnquist:

We’ll hear argument next in No. 88-2031, United States against Marsha B. Kokinda.

John G. Roberts, Jr.:

Mr. Chief Justice, and may it please the Court:

This case is here on certiorari to the United States Court of Appeals for the Fourth Circuit.

A divided panel of that court held that the Postal Service regulation prohibiting solicitation on postal premises, in effect in its current form since 1978, was unconstitutional.

This decision was contrary to decisions from the Third, Seventh, Ninth and Eleventh Circuits.

It is wrong and should be reversed.

On August 6, 1986, the respondents set up a table five to six feet from the entrance to the Bowie Post Office on the concrete apron that surrounds the post office building and runs between the building and the post office parking lot.

The building is a freestanding building, and this concrete apron which functions as the access walkway to the building is set back at all points more than 75 feet from the city sidewalk and the public highway that form the front boundary of the postal property.

There is a canopy over the walkway in the front entrance area.

The walkway is entirely on postal property.

It serves only the post office building and is not connected to the city sidewalk some 75 feet away.

Sandra Day O’Connor:

Now, Mr. Roberts, will you tell us’ exactly what this regulation covers?

I take it the Post Office regulation does permit leafletting, for example.

John G. Roberts, Jr.:

Yes, Your Honor.

It–

Sandra Day O’Connor:

Would it permit handing out a leaflet that said we hope you’ll contribute to our cause?

John G. Roberts, Jr.:

–The Postal Service has construed the regulation to allow that.

What is prohibited is–

Sandra Day O’Connor:

Is what?

John G. Roberts, Jr.:

–speech or conduct that solicits an immediate donation of charity on the premises.

Sandra Day O’Connor:

A collection on the spot.

John G. Roberts, Jr.:

On the spot.

The reason that that type of activity is prohibited while the other examples that you mentioned are not is that in the Post… Postal Service’s experience it was that direct solicitation, seeking an immediate act of charity on the spot, that led to the problems it experienced.

Sandra Day O’Connor:

Do you think it’s more bothersome than the leafletting?

I mean, is that demonstrable?

John G. Roberts, Jr.:

I… I think it is, Your Honor, and I think it follows from common sense, as Justice Blackmun noted in his separate opinion in the Heffron case.

If you’re walking down the street and you look ahead and see someone passing out leaflets, you know that you can take the leaflet and stick it in your pocket or read it later or toss in the nearest trash can.

By the same token, picketing, which is permitted on postal property, if you look ahead and you see someone carrying a picket sign, you know that when you get there you can read the sign if you wish, react to it if you wish or just keep walking.

A solicitor, however, seeks to engage the passerby in an immediate face-to-face confrontation that has as its objective an immediate act of financial charity.

That type of conduct is, as the Postal Service found, inherently more aggressive than leafletting or picketing or discussion, and it was that type of conduct that the Postal Service found created congestion, impeding patrons in their transaction of postal business, and distracted postmasters and clerks from their duties.

John Paul Stevens:

Mr. Roberts, what about asking a passerby to sign a petition?

John G. Roberts, Jr.:

That is not prohibited.

The regulations prohibit campaigning for public office; but, assuming that’s not the sort of petition we’re talking about, that’s not prohibited.

Now, I will agree that that type of conduct has many of the same burdens associated with soliciting charity, but, in fact, the Postal Service had not found any problem with that sort of activity on postal premises.

There are people who want to leaflet on postal premises, who want to picket and who want to seek signatures for petitions.

It’s when you let them ask for money that the crowds come out and that the problems are experienced.

So in 1978 the Postal Service narrowly targeted that type of expressive activity that was causing the problem and prohibited only that.

Byron R. White:

What were these problems?

John G. Roberts, Jr.:

The problems were congestion at postal entryways, the distraction of the postmasters and their clerks from their duties.

This case is a very good example.

On the day in question, the postmaster and his clerks were compelled to field 40 to 50 complaints from customers concerning respondents’ activities.

Sandra Day O’Connor:

Are these problems that could be addressed by time, place and manner requirements, by making the location of such a booth or a table more out of the way and prohibiting it on peak… at peak hours or peak days or something of that sort?

John G. Roberts, Jr.:

The Service expressly considered that alternative in 1978.

It determined, given the fact that we’re talking about more than 35,000 separate facilities around the country with various different architectural configurations and surrounding environments, that it would be an administrative and logistic nightmare to attempt to draw time, place and manner restrictions for each of those 35,000 facilities.

It further determined that it would be very difficult, if not impossible, to enforce those sorts of restrictions.

Most postal facilities do not have security forces, and it would be impossible to monitor compliance with the time, place and manner restrictions.

Finally, it concluded that such a system, which would leave considerable discretion with local postmasters either in… in implementation or enforcement, was undesirable given the far-flung nature of the commercial enterprise because they were concerned that the postmasters would discriminate on the basis of viewpoint or content.

Sandra Day O’Connor:

Well, Mr. Roberts, I would assume that if the post offices are permitting petition gathering, signature gathering, that some of those could be conducted in a very aggressive manner, and very likely the Post Office is willing to have some kind of restrictions or regulations that it’s willing to enforce to make sure that patrons aren’t subjected to abusive tactics.

John G. Roberts, Jr.:

Well, it is true that, as I indicated in response to Justice Stevens’ question, that petition gathering can have many of the same problems as… as solicitation; but given the Postal Service’s experience, it wasn’t creating serious problems.

There was–

Sandra Day O’Connor:

Does it have no reasonable time, place and manner restrictions on the picketing and the leafletting and the petition gathering?

John G. Roberts, Jr.:

–There is a prohibition on creating… I think it’s creating a disturbance, hindering, blocking the entryway.

There is, in fact, that sort of restriction.

Sandra Day O’Connor:

Could that sort of restriction not be applied to this type of activity?

John G. Roberts, Jr.:

It could be applied to the activity if it fell within the restriction.

The reason the Postal Service did not want to rely on such ad hoc prohibitions is because solicitation was causing a broader problem that couldn’t be addressed on a case-by-case basis.

The problems we’ve talked about inhibiting postal patrons, giving rise to complaints by the postal patrons, taking up the postmaster’s time accompanies solicitation that is not disruptive.

It does not necessarily block the entrance.

The Postal Service concluded after an experience with limited solicitation that there wasn’t enough room for everybody who wanted to solicit on postal property and further concluded that allowing limited solicitation carried with it more problems than it was worth.

Harry A. Blackmun:

Mr. Roberts, this is based on a regulation, isn’t it?

John G. Roberts, Jr.:

Yes, sir.

Harry A. Blackmun:

Is there any significance in not… that it is a regulation rather than a statute?

John G. Roberts, Jr.:

I think not, Your Honor.

It is a regulation duly issued pursuant to authority given by Congress to the Postal Service, and deference is owed to the Service in its interpretation of the regulation, but I don’t think it carries any less weight than would a statute regulating these activities.

Harry A. Blackmun:

You don’t cite the… the authority under which the regulations are issued, do you?

John G. Roberts, Jr.:

I believe we do.

It’s the act that transformed the old Post Office Department into the Postal Service in 1970, and when the Postal Service enacted these regulations the objective was to reduce and… and to the extent possible eliminate what they called nonmission-related burdens.

The direction from Congress when it passed the Postal Service statute was to run the Post Office as to the extent possible like a business, and so it began looking at what was permitted and started to eliminate the nonmission-related duties that were distracting it from its really quite awesome commercial endeavor.

The… the respondents rely before this Court on what is essentially a syllogism.

They say that this access walkway immediately adjacent to the post office building, set well back from the sidewalk, is just like a city sidewalk.

City sidewalks are traditional public forums, and, therefore, this access walkway must be a traditional public forum.

But this walkway, this concrete apron surrounding the building, is not just like a city sidewalk.

It’s entirely on postal property, set well back from the sidewalk and the street, serves only one building and is not connected to the sidewalk or any other pedestrian or vehicle thoroughfare.

Harry A. Blackmun:

Are many postal facilities like this one?

If we decide this case, does it apply to Bowie, period?

John G. Roberts, Jr.:

Well, the Bowie Post Office facility is the pattern that’s used by the Service in suburban settings.

As I mentioned, there are 35,000 facilities nationwide, so it’s difficult to generalize.

This is a very common pattern.

It’s the same type, for example, that was at issue in the Third Circuit case, in the Seventh Circuit case, the Ninth and the Eleventh.

It’s a suburban post office, which is why you have to put the building well back from the street.

It’s a busy highway.

It’s not a city street.

That’s why people get there in their cars rather than on foot, which is why you need parking.

The majority below mentioned that First Amendment values could not be subject to architectural chicanery, but that’s not what’s involved here.

These buildings are designed this way to fulfill the Postal Service’s needs, and one of the consequences of that is that you’re set well back from the traditional forum city sidewalk.

Now–

Sandra Day O’Connor:

Well, Mr. Roberts, is it clear that public forum analysis even applies here?

Have we ever applied it in situations where the public clearly has access, or have we only applied that where what is sought is some sort of access to the facility?

John G. Roberts, Jr.:

–Your Honor, the Court has applied forum access to areas in which the public was given general access.

Greer, I suppose, is the clearest case.

John G. Roberts, Jr.:

It involved Fort Dix in New Jersey, but the streets and the sidewalks were open to the public.

And the Court in several of its cases, I believe Cornelius most… perhaps most recently mentioned that the fact that the public is given a right of general access does not transform the property into a public forum.

Sandra Day O’Connor:

Do you think it’s a satisfactory sort of analysis?

Is it working out satisfactorily from a legal standpoint, in your view?

John G. Roberts, Jr.:

Yes, Your Honor.

Sandra Day O’Connor:

There’s been a lot of criticism of it, and there certainly is… are suggestions in some of the briefs in this case that we should get off that tack and onto something else in these cases.

John G. Roberts, Jr.:

Yes, Your Honor.

The… the amici, all of whom have an interest in using the government’s property for their own purposes, don’t like the idea that is at the base of forum analysis that the government, like a private owner of property, has the right to reserve its property for the purposes to which it is lawfully dedicated.

That’s the core of forum analysis, and I think that has been working out quite well.

The suggestion that the analysis should be… be junked and replaced with sort of a general “why not” approach, why can’t we do this, shifts the burden completely.

It… it takes away the notion underlying the landmark Adderley decision that the government has rights with respect to its property and shifts the burden to the government to justify why it’s imposing a restriction.

The government restricts the access to the extent in the activities involved once you have access here because this property is dedicated to the Postal Service’s use, not as a forum for expressive activity.

Now if, in fact, this–

Harry A. Blackmun:

Do you… do you think the government’s position would be the same or would have been the same had this been a Red Cross solicitation?

John G. Roberts, Jr.:

–Absolutely, Your Honor.

This is not in any way a viewpoint-based restriction.

It applies equally to the Red Cross as to the respondents–

Harry A. Blackmun:

Well, it may… maybe it would apply, but you started off by mentioning Mr. LaRouche, and–

John G. Roberts, Jr.:

–Well, I don’t–

Harry A. Blackmun:

–I wondered.

John G. Roberts, Jr.:

–I don’t… I did not, actually, I don’t think, mention who the respondents were.

Anthony M. Kennedy:

You mentioned there were 50 complaints.

Do you think there would have been 50 complaints if it were the Red Cross?

John G. Roberts, Jr.:

I… I can’t say that there would be.

Probably… probably not.

I readily admit that some of the complaints were probably based on exactly what it was the respondents were saying, but there’s no indication that any of them in fact were based on that.

In fact, the one complaint we know about, the woman said she thought it wasn’t fair because they don’t let them sell Girl Scout cookies there, which indicates at least in Bowie that the solicitation ban is being enforced without regard… without regard to content.

It is, in fact, Your Honor, the problem that you allude to that perhaps they would bend the rules for the sort of organizations that are more popular, that was one of the reasons the Service didn’t want to allow limited solicitation, because they thought they couldn’t police that effectively throughout the nation.

That’s one reason they adopted the general ban.

Byron R. White:

Well, let’s… let’s assume that… that the Service, the Postal Service would have authority to forbid all of this kind of communications that you now permit.

John G. Roberts, Jr.:

Yes, sir.

Byron R. White:

Does that… can’t you still hold this particular regulation invalid under the First Amendment even if you have that broader authority?

What kind of a burden have you got to… to sustain this targeting of a particular kind of communication?

John G. Roberts, Jr.:

The burden under the nonpublic forum is to show that the regulation is a reasonable one.

Byron R. White:

How do you show that?

John G. Roberts, Jr.:

The Postal Service when it adopted this ban on solicitation, it noted in the Federal Register announcement it was expressly allowing these other activities, leafletting and picketing, and it explained what the difference was between solicitation and those other forms of activities.

Solicitation first and foremost was the activity that was causing problems.

The other types of activities were not causing problems, so they didn’t see a reason to prohibit them.

Solicitation is a more intrusive, more aggressive form of speech.

As I’ve mentioned, the solicitor tries to stop you and get an answer from you right there on the spot.

Byron R. White:

Well, you… you had a… you had a chance to convince the lower courts of this, I suppose?

John G. Roberts, Jr.:

And we’ve been successful in the, as I’ve indicated, Third, Seventh, Ninth, Eleventh Circuits, and we persuaded Judge Widener below.

Byron R. White:

But not the majority?

John G. Roberts, Jr.:

But not… not the two judges in the majority.

Byron R. White:

Who thought that… that… that this was just really just a minor bother for you.

John G. Roberts, Jr.:

Well, their analysis, first of all, was that this… the concrete apron, the access walkway, was a public forum, and once they reached that conclusion, of course, that’s a much heavier burden for the Postal Service to carry.

I would note that the Seventh Circuit concluded that the Service could carry the burden even if this walkway were… this type of walkway were a public forum.

The conclusion, though, that it is a public forum is inconsistent with this Court’s decisions.

If this type of property were a traditional public forum, one, in Justice Roberts’ words, that was immemorially or time out of mind set aside for expressive activities, we would expect at least a few decisions from this Court so holding.

But in fact, all of the decisions of this Court with one arguable exception concerning activities on sidewalks, streets, involved sidewalks or streets on the perimeter of the government property forming the boundary.

Byron R. White:

Yes, but let’s… let’s just assume that the… that the court below was wrong in saying that this was a… that this sidewalk was a public forum, a general public forum like all other sidewalks.

Does that… does that really win the case for you?

John G. Roberts, Jr.:

Well, if it is a nonpublic forum, the Service need only show that its regulation is viewpoint neutral–

Byron R. White:

Yes.

John G. Roberts, Jr.:

–which it clearly is, and a reasonable one.

Byron R. White:

Yes.

Now, what is your… I’ve asked you what was your burden?

How do you satisfy that burden?

John G. Roberts, Jr.:

To show that it’s reasonable, the first thing they have to do, I suppose, is show why solicitation is different from these other activities.

They allow leafletting and picketing.

John G. Roberts, Jr.:

Why not allow solicitation?

And the reason is based on experience.

This isn’t speculation.

They allowed solicitation prior to 1978, very limited and subject to discretion; but they allowed it.

And the experience was, as they said, highly unsatisfactory.

Too many people wanted to use postal facilities.

Postmasters were distracted from their duties in administering a system of selective access.

John Paul Stevens:

Mr. Roberts, didn’t they allow solicitation inside the Post Office at that time?

John G. Roberts, Jr.:

Both… both inside and outside.

John Paul Stevens:

And wasn’t that the problem of deciding whether to let the Red Cross… you know, you had your content discrimination then.

Isn’t that… wasn’t that part of the problem of deciding who could solicit?

John G. Roberts, Jr.:

It’s certainly true that the most serious problem was within the postal lobbies, but the regulation is not limited in that respect.

It applies by its terms to all real property under the charge and control of the Post Office.

John Paul Stevens:

Which one might argue that perhaps it’s overbroad for that reason, that it responds more broadly than the problem that it’s addressed to.

John G. Roberts, Jr.:

I don’t think there’s any functional significance… difference.

John Paul Stevens:

Well, is there a history of a problem outside the Post Office?

John G. Roberts, Jr.:

It’s not referred to in the Federal Register notice.

The Federal Register notice does concern the postal lobbies.

It also mentions, though… I’m not sure if it’s in the proposal or in the final enactment… entranceways.

And this is the sort… this access walkway as far as the danger for disruption and congestion is not different from the postal lobby, and, in fact, there may be more room in the lobby once you get past the entryway through which all the patrons must pass.

This is a covered walkway right at the front through which all patrons going in the building have to pass.

Solicitation–

John Paul Stevens:

My memory is that lines are usually a little more… they fill up the lobby pretty often.

The inside is often fairly crowded in these post offices, a busy post office.

John G. Roberts, Jr.:

–It depends on the configuration of the lobby; and, of course, I suppose that solicitation would be off to a side away from the lines.

But the solicitors in this case picked this spot because it’s where they could get everybody going in and get them going out.

Byron R. White:

Well, yes, but you… but the regulation cover… would cover solicitation anywhere on that sidewalk.

John G. Roberts, Jr.:

Yes, Your Honor.

Byron R. White:

And/or anywhere else–

John G. Roberts, Jr.:

In the parking lot.

–outside the building.

John G. Roberts, Jr.:

Yes, and it’s not overbroad for that reason because we’re dealing–

Well, why isn’t it overbroad for that reason?

John G. Roberts, Jr.:

–Because for the reason the Postal Service stated when it adopted these, is that it would be impossible to craft time, place and manner restrictions for every single one of the 35,000 post offices around the country; and, therefore–

Sandra Day O’Connor:

Well, I suppose they could give the postmaster for each facility some authority to tailor the requirements to the configuration of that particular premises.

John G. Roberts, Jr.:

–A possibility, Your Honor, and one that they considered and expressly rejected because they did not want to have the postmasters having that discretion for, I think, largely the reason Justice Blackmun referred to.

The pressure on the postmaster to allow the Red Cross and the Girl Scouts to solicit–

Byron R. White:

Why couldn’t you just say within 30 yards or 20 yards or 30 feet of any entrance?

John G. Roberts, Jr.:

–Well, some entrances may not stretch that far, and there is no requirement on the Postal Service that it adopt narrowly tailored time, place and manner restrictions.

Sandra Day O’Connor:

Well, if this… if you apply forum analysis, can it be said this is a limited public forum?

You keep talking about nonpublic forums.

Certainly some public access and usage have been allowed, as we explored earlier and are allowed.

So perhaps it’s a limited public forum.

How would that affect the analysis, do you suppose?

John G. Roberts, Jr.:

Well, it’s a limited public forum in the sense that the Postal Service doesn’t prohibit leafletting, picketing, other activities, but it has not expressly opened up the sidewalk to those activities.

There may be a difference there.

Sandra Day O’Connor:

Well, suppose we think in effect it’s been opened up to these other uses.

That’s the proper interpretation, and it’s a limited public forum.

Now what’s the analysis?

John G. Roberts, Jr.:

The analysis is no different, Your Honor, as–

Sandra Day O’Connor:

Still just reason?

John G. Roberts, Jr.:

–Still just reasonable because solicitation is not one of the activities as to which the Postal Service has opened up the forum.

Antonin Scalia:

Mr. Roberts, I guess I don’t understand this.

You mean even… is the government conceding that even when it’s a nonpublic forum, the government cannot say we just don’t want any expressive activity, this is our property, we don’t want any?

John G. Roberts, Jr.:

Oh, no.

Antonin Scalia:

It has to have a good reason?

I mean, there’s an apron around this Court in addition to the sidewalk.

It goes right under the Justices’ windows.

Now, could the… can the Court not say we just don’t want people there?

We don’t care if they’re quiet.

Antonin Scalia:

We don’t care if they’re passing out things or soliciting or whatever.

We just don’t want people there, period.

Do we need a good reason?

John G. Roberts, Jr.:

Well, you’ve given a good reason, because it passes right under the Justices’ window.

Antonin Scalia:

No, but that… I mean, I don’t see them, they don’t make any noise.

John G. Roberts, Jr.:

It’s a nonpublic forum.

Antonin Scalia:

If that is a good reason or not a good reason, we just say we don’t want it.

John G. Roberts, Jr.:

I… I think not.

I think–

Antonin Scalia:

We can’t do that.

Every piece of property the government opened… that the government has must be open to speech unless there’s a good reason to exclude it.

Is that the principle the government accepts?

John G. Roberts, Jr.:

–The test for a nonpublic forum is, first of all, that it must be viewpoint neutral, and, second of all, that the regulation must be reasonable, yes, and the government does accept that test.

Now it doesn’t, as was pointed out in the Cornelius opinion, it just has to be a reasonable regulation.

It doesn’t have to be the most reasonable one.

It doesn’t have to be, for example, specifically tailored time, place and manner restrictions.

John Paul Stevens:

Mr. Roberts, what is your view, supposing this regulation did prohibit leafletting and picketing?

Would it be valid, in your view?

John G. Roberts, Jr.:

Yes, Your Honor, because it’s a nonpublic forum assuming the Service came up with a reason for limiting leafletting and picketing.

In its experience, those–

John Paul Stevens:

Well, they give the same reason it gives here.

You just don’t want a lot of people crowding the front door.

That’s basically–

John G. Roberts, Jr.:

–Well, if that has been the experience.

That has not been the experience.

They have indicated in 1978 that that’s not a problem, so we’re not going to prohibit it.

John Paul Stevens:

–Yeah, but how do you know it won’t be a problem tomorrow?

John G. Roberts, Jr.:

If it does become a problem–

John Paul Stevens:

You could stop.

John G. Roberts, Jr.:

–we’re free to eliminate it, and–

John Paul Stevens:

And how serious does the problem have to be?

I’m a little puzzled.

We have 3,500 post offices.

Maybe three or four of them get very crowded.

Can you ban picketing all over the country?

John G. Roberts, Jr.:

–Well, no.

I wouldn’t say three or four, but I think, as the courts mentioned, the Service is entitled to… to enact its regulations with the generality of the cases in mind.

If it becomes a serious problem, I think they have the authority on this nonpublic forum to respond.

William H. Rehnquist:

Mr. Roberts, supposing that the Justice Department wants to promulgate a regulation saying we don’t want anybody coming in here and giving speeches in… in the Department during… in the halls and so–

Now you’re saying there has… that… that’s a regulation that has to be reasonable?

John G. Roberts, Jr.:

Well, I think that’s… that sort of regulation clearly is reasonable.

William H. Rehnquist:

But at any rate, it would be subject to review in any court, challenge in any court, and if you satisfy the court it wasn’t reasonable, then the court would say, well, go ahead and give speeches in the Justice Department?

John G. Roberts, Jr.:

That’s right, Your Honor, because the… even in a nonpublic forum–

William H. Rehnquist:

What case supports that proposition?

John G. Roberts, Jr.:

–Well, the cases that establish the standard for a nonpublic forum.

Perry states that in a nonpublic forum the restriction must be viewpoint neutral and reasonable.

And again, it’s not the most reasonable regulation you can imagine.

There’s no least restrictive alternative approach, but you have to come up with a reason for restricting the expressive–

William H. Rehnquist:

Is it a kind of a rational basis type of thing?

John G. Roberts, Jr.:

–I think it’s very close to that, yes, Your Honor.

Antonin Scalia:

Maybe you have to have a reason for discriminating between different types of… of… of speech.

I mean, I can understand perhaps the government having to justify why you can pass out flyers but you can’t solicit, but if the government just decides we don’t want anybody on the property but those who are here to do business, it has to give a reason for that.

Whatever the government owns is subject to people coming in and saying I want to talk, it’s your burden to show that it is unreasonable for me to talk.

That’s really the position the government accepts?

John G. Roberts, Jr.:

The government is… is satisfied with the public forum doctrine as it’s been established, which requires that the regulation–

Antonin Scalia:

Well, I didn’t understand it that way.

John G. Roberts, Jr.:

–We’d be happy with… with one that didn’t have… that we didn’t have to give a reason at all, but certainly in this case the reasons that have been given by the Postal Service–

John Paul Stevens:

Well, but even in Justice Scalia’s example, I suppose the reason is we own the property, and as a property owner we have control and so forth.

John G. Roberts, Jr.:

–That’s right, and you can restrict as… as any business can access to the premises–

William H. Rehnquist:

But that changes the doctrine entirely.

William H. Rehnquist:

If it’s a sufficient reason to say we own the property, then you’re not saying any regulation has to be reasonable if it’s on a property that you own, if it’s enough to say we own the property.

John G. Roberts, Jr.:

–Well, I think there has to be some connection between the restriction and what’s going on.

if it’s a place of government business, I think that’s enough of a reason to restrict access to those who don’t have business there.

If I could reserve the remainder of my time.

William H. Rehnquist:

Very well, Mr. Roberts.

Mr. Sekulow.

Jay Alan Sekulow:

Mr. Chief Justice, and may it please the Court:

Time, place and manner restrictions are the means whereby the balance is struck between expressive activity and public convenience.

Yet, rather than enacting reasonable time, place and manner restrictions, the Postal Service determined that it would be more efficient, if you will, to eliminate a protected form of free speech rather than to regulate it.

There are existing regulations that the Postal Service currently has which prohibits obstruction, interference with postal patrons, interference with postal employees in the performance of their duties.

What has happened in this particular case is that a classic form of political speech, as Judge Wilkinson referred to it, was eliminated strictly because the government in its discretion said it would be too complicated to regulate it; and it is the elimination of free speech that these people were convicted for, if you will.

Byron R. White:

So do you disagree with… with the test that this regulation is valid if it’s reasonable?

Jay Alan Sekulow:

I think that–

Byron R. White:

And is it your… you just agree with the Fourth Circuit that it’s unreasonable; is that it?

Jay Alan Sekulow:

–Well, we agree with the Fourth Circuit in this context, Justice White, and that is, that this activity took place on a traditional public forum, and the reason set forth by the Postal Service for enforcing this prohibition did not reach the level of, in this particular case, compelling interest.

But we would also say it would not reach a reasonable–

Byron R. White:

I take it… I take it that you would… you would say the lobby of the Post Office is a traditional public forum?

Jay Alan Sekulow:

–No, I would not say it was a traditional public forum.

And in fact–

Byron R. White:

Well, didn’t the Fourth Circuit say it was?

Jay Alan Sekulow:

–No, they did not, Your Honor.

Byron R. White:

What did they say?

Jay Alan Sekulow:

The Fourth Circuit determined that the regulation, as applied to the sidewalk, now called an apron, is in fact a traditional public forum, and that the prohibition was not narrowly tailored, not that it was not justified by compelling interest.

Byron R. White:

Would you say the regulation is valid inside the… inside the lobby?

Jay Alan Sekulow:

A complete prohibition?

Byron R. White:

No, no.

This regulation the way it is.

Jay Alan Sekulow:

I think that a line could be drawn; however, I don’t think that it would be–

Byron R. White:

Well, answer the question.

Jay Alan Sekulow:

–I think, yes, a complete ban on–

Byron R. White:

No, no.

No.

Jay Alan Sekulow:

–On the solicitation–

Byron R. White:

Yes.

Jay Alan Sekulow:

–inside the lobby can be justified–

Byron R. White:

Even though the other things are permitted?

Jay Alan Sekulow:

–Well, that’s–

Byron R. White:

That’s what I want to know.

Jay Alan Sekulow:

–Yes.

Not with the recent announcement that automatic teller machines can now be placed inside all these postal lobbies.

Byron R. White:

Well, that isn’t… that isn’t our case.

It isn’t our case.

Now–

Jay Alan Sekulow:

I think that… I think a blind can be drawn at that point–

Byron R. White:

–Suppose… suppose the people involved here who were arrested had been soliciting inside the post office, inside the building, and this case then came up to the Fourth Circuit, and it was decided the same way.

Should we reverse… would we reverse that?

Jay Alan Sekulow:

–No.

I think this Court can still affirm the opinion of the court below both on the forum ground and, as well, on vagueness grounds as we asserted in our brief; that is, that what is solicitation, as Justice O’Connor alluded to earlier in the argument, is a question.

What is it?

Is it the immediate solicitation and donation of funds that is on postal premises?

Is it requesting it?

Is it exhorting the benefits of one’s organization?

And in comparing that test and the government now stating that, well, what we’re really talking about in solicitation is a request for an immediate exchange of money to take place on the postal premises may not be what happened in the district court and may not have been the type of solicitation that was taking place.

But we find and we feel that the sidewalk surrounding this particular postal facility is functionally indistinguishable from any other sidewalk.

That is–

Anthony M. Kennedy:

Well, just before you… you get on to that, let’s assume that we rejected your argument on vagueness.

Could you and would you argument… argue that this is a content-based regulation that’s insupportable?

Jay Alan Sekulow:

–Yes, I would… I would… we would argue that even inside the lobby it would be of course content based, that is, the words being uttered by the particular individuals, the defendants in the lower court, and, of course, the respondents here.

The determination of whether there’s been a violation of this particular regulation is based entirely upon the content of what they state.

Sandra Day O’Connor:

Well, but on the other hand, it applies equally to the Girl Scouts and the Salvation Army and your client.

Jay Alan Sekulow:

It’s… it’s… in effect, it is a–

Sandra Day O’Connor:

It… it is directed toward the asking for money on the premises.

Jay Alan Sekulow:

–That’s the way–

Sandra Day O’Connor:

So it’s hard to say that’s content based.

Jay Alan Sekulow:

–We would take it one step further, Your Honor, and that is the compelling interest test would still have to apply here because a particular type of expression, as Justice White said in the Grace case, has been eliminated from this particular forum, and that is, there does have to be a line drawn if you will where the activities should not take place.

And what we’re dealing with here, again, as I stated, was the sidewalk.

William H. Rehnquist:

Well, are you saying that the regulation is not content neutral?

Jay Alan Sekulow:

I think it’s… it’s content neutral in… to the extent that it is being applied across the board.

However, they’re prohibit… it’s the statement on the speech is not… the way the government is interpreting solicitation under the regulation is not content neutral because they are making a determination based on the words uttered whether, in fact, an illegal solicitation has taken place or a legal solicitation has taken place.

And that is, if there’s an immediate request for funds right now, in the government’s view, a illegal solicitation has taken… but if I say I would like you to donate to my organization and you can see my friend on the sidewalk around the corner or the municipal sidewalk or mail it in, that now under the government’s interpretation–

Antonin Scalia:

But your… but your vaguest point, that’s your vagueness point.

That’s… that’s… that’s not your content base point.

Your content base point requires you to say that you cannot distinguish at all between asking for money, whether you’re asking for it right now or whether you’re asking to mail it in three weeks from now.

You cannot select out asking for money.

That’s… that’s a type of content, you’re saying.

Jay Alan Sekulow:

–Yes, that is, and that is our position, and that is what one would have to look at.

It’s to the type of speech taking place, the content of those words as to whether in fact a solicitation has taken place.

And in this context of this case, I wanted to briefly mention the… what was alluded to by Mr. Roberts, the 40 or 50 complaints.

As the court below stated, those complaints might well have been related to the viewpoint of these particular respondents.

There’s nothing in the record other than the statement from postal patron Wyatt about the Girl Scouts as to what the nature of these particular complaints were.

And in fact, implementing a reasonable time, place and manner restriction rather than eliminating the speech for a forum would prove to be a workable and constitutionally required method to control this public convenience and government ownership situation.

Sandra Day O’Connor:

Well, now Mr. Sekulow, do you… do you take the position that the government could not simply say that on postal premises we will have no activity of any kind by anybody unless it’s addressed to post office business?

Jay Alan Sekulow:

I think the–

Sandra Day O’Connor:

There won’t be leafletting; there won’t be picketing; there won’t be soliciting; there won’t be anything.

You can come and go for postal business, and that’s it.

Jay Alan Sekulow:

–Yes.

I think the government… the Postal Service could create a quasi-military enclave, if you will.

However, they have not chosen to do so–

Sandra Day O’Connor:

Well, if they can do that, why can’t they do something less than that?

Jay Alan Sekulow:

–Because the Postal Service as now operating in the Bowie, Maryland Post Office, Justice O’Connor, is allowing a vast array of activities.

Jay Alan Sekulow:

The invitation to conduct postal business is not… the invitation to come onto the premises is not for just postal business.

It has not created this enclave–

Sandra Day O’Connor:

Yes, but if… if once you accept the fact that the Post Office could exclude every use other than the postal use, it seems to me that you have to accept the fact that they could permit some lesser restriction.

Jay Alan Sekulow:

–What I was referring to, Justice O’Connor, was the function as to how the Post Office operates.

The way they operate now, the Postal System operates now, it is not an enclave immune from the First Amendment.

There is, in addition to the utilization of… of distributing literature and the peaceful picketing, there are other activities that take place at the Postal Service, and it is a public thoroughfare.

This sidewalk, it can be referred to as a concrete apron or a walkway, but it is a public thoroughfare to get someone from one point to another point.

William H. Rehnquist:

It’s a public thoroughfare only from the parking lot to the post office, isn’t it?

Jay Alan Sekulow:

Yes–

William H. Rehnquist:

Access to the post office.

So I don’t see… unless you mean no more than that, I don’t know why you call it a public thoroughfare.

Jay Alan Sekulow:

–Well, it’s a public thoroughfare, Chief Justice, no different than any other municipal sidewalk; and that is that it’s to a public thoroughfare for people to move to get to a location.

The fact that one–

Antonin Scalia:

Other sidewalks get people between locations.

Yes.

I mean, I go from one building to another.

That’s what the public sidewalk is.

This is… I mean, in this sense my doorway is a public thoroughfare.

The public comes in to my house when they come in.

Do we call that a public thoroughfare?

No, because it leads only to my house.

Jay Alan Sekulow:

–Yes–

Antonin Scalia:

And it’s the same thing with this sidewalk.

It leads only to the post office, right?

Jay Alan Sekulow:

–Oh, yes, but the post office–

Antonin Scalia:

It becomes a public thoroughfare because the public walks on it.

Is that your principle?

Jay Alan Sekulow:

–Oh, I think that’s absolutely part of the… the analysis.

Antonin Scalia:

Then my house is a public thoroughfare because members of the public come up to my door all the time.

Jay Alan Sekulow:

Your house, Justice Scalia, I assume is privately owned, and you have that right to exclude.

Antonin Scalia:

Well, this is privately owned, too.

I mean, the government has a property right–

–The government has a right to exclude, too.

Jay Alan Sekulow:

The government has a right to exclude.

However, general public access is not even really at issue in this case, Chief Justice.

What is at issue is the general public has the right to be there.

There’s no question that they can be there for postal business or for nonpostal business.

The invitation to come to the postal… post office in Bowie, Maryland is no more limited to those on postal business really than was the invitation to come to the Los Angeles International Airport limited to those on airport-related business.

It is a general public asset situation, and since that access exists the government would have to put forth a compelling interest, is our position, justifying the exclusion.

William H. Rehnquist:

You mean so long as the government allows the public access to a government building, it has to show a compelling reason why there shouldn’t be speech in the building?

Jay Alan Sekulow:

Not in the building, Your Honor.

Outside on a public sidewalk open to the general public.

There is–

William H. Rehnquist:

Well, the post office is open to the general public, too.

Why should there be a different rule for the sidewalk outside than the post office inside?

Jay Alan Sekulow:

–The Postal Service themselves, in adopting the regulation prohibiting the solicitation of funds, specifically addressed itself to the problems that are associated inside the lobbies, the cramped areas, and that is a compatibility factor.

That the activity taking place inside the public forum, inside the post office, would not be compatible with its… the efficient operation of that particular facility.

William H. Rehnquist:

So you… you say the compelling interest standards governs inside the post office, but it’s been met here?

Jay Alan Sekulow:

I think that argument could be made that in fact the public… that a compelling interest keeping solicitation outside of the busy areas of the postal office inside, yes, could be met, but that would not apply to the outside areas open to the general public for any purpose or for no purpose at all, for postal-related business or nonpostal related.

Yes, a different set of… a different situation exists inside versus outside.

William H. Rehnquist:

But it would just be a question of what the… what the walk was used for, then.

I suppose if the walk became terribly congested and it was shown people couldn’t really get into the post office because of the solicitation, then you could ban it outside.

Jay Alan Sekulow:

Oh, even then, Chief Justice, I don’t think it could be banned.

But implementing a reasonable time, place and manner restriction prohibiting maybe that activity from taking place at the peak hours or during congestion–

William H. Rehnquist:

Why… why wouldn’t you say the same thing about the inside of the post office, then, that all you could have would be a time, place and manner regulation?

Jay Alan Sekulow:

–Perhaps a booth rule would suffice inside the post office on a first come, first served basis.

The experience that the Postal Service had, obviously I’m not trying to argue their point, is that inside the postal facility they were having sufficient congestion problems where the operation of the forum was being affected.

That does not exist outside–

William H. Rehnquist:

Well, the operation of the post office, not the forum.

Jay Alan Sekulow:

–Yes, excuse me, the post office.

Jay Alan Sekulow:

But in this particular situation there is no evidence that the solicitation of funds outside the… on the postal sidewalk is prohibiting the operation of the facility for postal purposes.

The test cannot be met, either a compelling interest or even a significant interest.

In fact, we would go one step further, as the Court had alluded to, that even a reasonable… requirement of a reasonable regulation here would not be met because there is no evidence that outside the particular sidewalk in these particular post office that there is this problem of such huge proportion justifying the elimination of this protected activity taking place here.

Again, the complaints that were made might well, as the court below stated, be dealing specifically with viewpoint of the particular… respondents’ particular political views.

But yet it was classic political speech that was being exercised outside.

The aspect I think that’s important to draw the distinction… and I think the Postal Service really did this… is that they were concerned with solicitation taking place really inside the lobbies.

That was where the experience was a problem.

The prohibition outside the… outside the interior of the Postal Service onto the public access sidewalk here was more of a ad hoc decision, in our opinion, than–

William H. Rehnquist:

Is the post office not allowed to make that sort of an ad hoc decision if things are very bad inside that post office, they might not be quite as bad outside but were bad enough to regulate?

Jay Alan Sekulow:

–I think they could, and if they could justify the prohibition outside and meet the compelling interest test, then–

William H. Rehnquist:

Why… why do you need to meet the compelling interest test?

Jay Alan Sekulow:

–Because a particular type of speech, Chief Justice, has been eliminated from a public forum, and that–

William H. Rehnquist:

Well, what… are you… I don’t understand why you say this is a public forum.

Under our cases, government property, Adderley, Greer against Spock, the government can reserve the use of its property for the conduct of its business, and it’s not a public forum.

Jay Alan Sekulow:

–We believe this case is distinguishable from Greer and from Adderley.

In Greer it was the special constitutional function of the military that was the primary concern when this Court said the free speech activities could not take place inside the military enclave.

In Adderley, in that particular situation the charge that the individuals were charged with here was a trespass charge, and they were deemed to have blocked an area not open to the public for general use.

That is not what exists at the Bowie Post Office–

William H. Rehnquist:

Well, that certainly wasn’t the reasoning of the Court in Adderley.

The Court in Adderley said when the government runs a jail it can set a jail aside, and you don’t have to have speech around a jail.

Jay Alan Sekulow:

–And that was because of the security concerns of the jail, and it was speech taking place, Chief Justice, in areas that were not open to the general public.

And here, there has not been this reservation of use.

Rather, the Postal Service has invited the public in for postal services and nonpostal services, for the distribution of literature, for peaceful picketing, for petitioning for signatures.

Yet they’ve singled out solicitation outside.

William H. Rehnquist:

You said a moment ago in response to Justice O’Connor’s question the post office could ban all of these things and say we’re just running post office business here and all of you get out.

Jay Alan Sekulow:

Oh, they could ban it if in fact they operated as this quasi-military enclave, but they do not, Chief Justice.

William H. Rehnquist:

Well, but I take it it would be permissible for them to do so, in your view?

Jay Alan Sekulow:

They would have to show the constitutional requirement being met, that the Postal Service was so important to national interest, as the military was, to justify it.

The argument might well be made, but the Postal Service is not at that point of being a quasi-military enclave.

They have not reached that point.

Jay Alan Sekulow:

In fact, they’re increasing their invitation rather than limiting their invitation.

They’re not limiting it to Postal Service business–

Antonin Scalia:

How about us?

Are we a quasi-military enclave?

Do we have to allow pamphleteering and… and people quite silently carrying posters right outside in the anteroom here?

Jay Alan Sekulow:

–I think the compatibility factor that would justify a prohibition of that.

We’re not saying that one who is rightfully in a place can distribute his literature anywhere just because he has that invitation.

There is that compatibility factor that this Court looked at in Grayned.

Is that particular speech compatible with what’s taking place, in this particular case, inside the forum?

But certainly, those distributing–

Antonin Scalia:

Eminently so.

Posters protesting that what… you know, court decisions.

Why is that incompatible?

Jay Alan Sekulow:

–Well, I think if it was… I think it would be incompatible in the sense of the judicial decorum and the courtroom decorum that takes place in the chambers and inside of this courtroom, but that is not the case where you’ve got general public access unlimited for any business at all.

One is not invited to the Supreme Court building other than of course tours and whatnot for just any business.

It’s a courtroom dedicated to a specific function and is operating more distinct, if you will.

However, free speech activities outside on the sidewalks around this Court were protected and were deemed to be areas within First Amendment protection.

Antonin Scalia:

The sidewalk right under the window, too?

You think we would have to let people… you know, there’s a sidewalk that goes–

Jay Alan Sekulow:

That’s correct.

Antonin Scalia:

–quite close to the building in addition to the sidewalk next to the street that you use to get from this building to other buildings.

We would have to let people right next to the window, too, right?

Jay Alan Sekulow:

I think, yes, you would, but for this condition.

I want to draw a distinction–

Sandra Day O’Connor:

Don’t you think we have a case dealing with the plaza area?

Wasn’t that issue decided–

Jay Alan Sekulow:

–In Grace–

Sandra Day O’Connor:

–and decided against you?

Jay Alan Sekulow:

–In Grace, the… the Court did indicate that the plaza… it was not… I don’t think it was a complete decision on that point… was maybe not open to the forum like the sidewalks, but I think–

Sandra Day O’Connor:

Precisely.

Sandra Day O’Connor:

The sidewalk, the public sidewalk was open.

And isn’t the public invited, in effect, to come to this building for any purpose to see it, to stand around, whatever?

Jay Alan Sekulow:

–And in Grace–

Sandra Day O’Connor:

Aren’t they welcome to come and do that?

Jay Alan Sekulow:

–Yes, they are.

Absolutely.

Sandra Day O’Connor:

Yes.

And do you think that we have to then permit the sort of activity that was involved here?

Jay Alan Sekulow:

On the plaza level, I think the argument can be made that you draw the line there and don’t have to, but there’s a distinction between this Court’s physical setup, if you will, and that of the post office, and here’s the point.

That is, one who is entering into this building must use the municipal sidewalk to enter into the building.

That is, to come into this building as a public visitor, one must use the sidewalk surrounding it.

At the Bowie Post Office, most people drive in, and it is that access sidewalk is the only means whereby people are going to get out of their car for the most part and walk on into the facility.

Antonin Scalia:

Right.

Now that’s a very different argument.

Now you’re saying this is just not an apron; this is a public sidewalk in the sense that… in the sense that because of a change in circumstances the old public sidewalk is no longer used for getting from one building to another, and this… this has become the public sidewalk.

But that’s quite a different argument from what you’ve been talking about up until now.

Jay Alan Sekulow:

I… I wouldn’t think so, Justice Scalia, in this context, again.

That is, the design was… it was an intentional design by the Post Office to set the area back from the main street mostly because of the concerns with traffic on these main streets, so setting it back allowing parking, a parking lot to be a place between the municipal sidewalk, which the Fourth Circuit said is not a reasonable alternative means of communication, and the public access sidewalk.

And that… our position is that sidewalk… the intervening parking lot does not create… create a First Amendment moat, if you will, which all of a sudden announces to someone that they’re on a special enclave and free speech activities stop as if to have one’s constitutional rights shed as they walked out of their car and onto the only sidewalk to get in and out of that building.

Antonin Scalia:

xxx would you make the same argument that the… the apron… I agree, that’s a loaded word… the sidewalk, the private sidewalk around the bank… the bank has a parking lot, and it’s set back.

Would you say that the bank now has to allow protests on that section?

Jay Alan Sekulow:

Absolutely not.

It’s a completely different situation.

The United States is subject to the mandates and the protections of the First Amendment.

A bank, in private capacity, would not be, and I think that’s the distinction.

Antonin Scalia:

Oh, but… but we’re talking about whether a sidewalk is a sidewalk.

You wouldn’t be arguing that that is the functional equivalent of the public sidewalk, would you?

Jay Alan Sekulow:

I would be arguing that in that particular case it is not governmentally owned, although I wouldn’t be arguing that if I was up here on that case, obviously, but if it’s not governmentally owned.

And that is the difference.

And that is the First Amendment mandates are to the state action sufficient–

Antonin Scalia:

It is not a difference for this argument.

You… you engaged in a discussion with… with Justice O’Connor, and Justice O’Connor said the mall outside is government owned but you’re not allowed to go on it, and your argument was but the mall is not a sidewalk.

And this is a sidewalk.

Yes, it’s set back from the street, but it’s still a sidewalk.

And now I give you a case where it’s also a sidewalk from the bank, and you say but no, it’s not a sidewalk.

Jay Alan Sekulow:

–It’s a… it’s a privately owned piece of sidewalk, if you will.

It is privately owned.

The mandates and the protections of the First Amendment, this Court has not required those to exist onto private property owners.

While a government can treat its property as a private owner of that property, it has not chosen to do so here, and that is, it’s publicly owned, the general public is invited, and their… their invitation, as I stated earlier, was not limited to postal business only.

That is not the situation–

Antonin Scalia:

Now… now under your argument, I suppose, the post office would also have to permit panhandlers on the premises; is that right?

Jay Alan Sekulow:

–I think yes, that that activity, the district court in New York recently addressed that and said that that was a protected form of speech, again, though, subject to time, place and manner restrictions.

And what the government has chosen to do in this particular case is eliminate the speech for efficiency reasons rather than narrowly tailoring time, place and manner restrictions.

And–

Anthony M. Kennedy:

Do you think you can narrowly tailor time, place and manner… manner restrictions to all post offices in the United States with one regulation, or are you advocating that we have to have an office-by-office regulation?

Jay Alan Sekulow:

–I think that there are, from what we understand, two basic designs to post offices, and some exist immediately adjacent to municipal sidewalks, which, of course, the government concedes would be protected speech, and others that are set back.

And I think a reasonable time, place and manner restriction could be uniformly adopted, and that is what I think the Constitution requires, and that’s–

John Paul Stevens:

Can I ask you, you can you could… that your argument applies to panhandling.

Does it apply to all commercial solicitation, selling magazine subscriptions and shoes and everything?

Jay Alan Sekulow:

–Well, I don’t–

John Paul Stevens:

In other words, is commercial speech covered by your theory?

Jay Alan Sekulow:

–I don’t think necessarily commercial speech would be, and the Court–

John Paul Stevens:

Do you think panhandling is commercial speech, or is it like your speech?

Jay Alan Sekulow:

–The court in New York, the district court, said it was in fact charity.

It was an individual solicitation for a very personal charity but a charity nonetheless, and they held it to be a… a charitable solicitation no different than what our respondents were… entered into.

I haven’t digested how far we take that argument, obviously, but that is what the court in the district said, that that personal solicitation for their personal interest was a form of charity indistinguishable than any other charitable contribution.

Antonin Scalia:

On that theory, every thief is Robin Hood.

Jay Alan Sekulow:

Well, I… that’s correct, Chief… Justice Scalia.

John Paul Stevens:

Let me ask one other question, if I may.

Jay Alan Sekulow:

Yes, Your Honor.

John Paul Stevens:

If we focus on access to the building, I know… I realize you’re making a facial attack on the regulation, but you really think you have a right to put a table up in front of the door?

Jay Alan Sekulow:

Well, we had… we had the right in this… in this sense.

John Paul Stevens:

Because you think the regulation is invalid.

Jay Alan Sekulow:

Yes, but… but clearly I think a booth rule, as Justice O’Connor alluded to, would be constitutionally sufficient, which could eliminate the table and any potential blocking problems.

But that’s not what the government has chosen to do here.

What they’ve chosen to do instead was to eliminate entirely this speech from this sidewalk, the sidewalk which is the only way into this building.

It is the access way.

There is no mall separation in the context of someone coming off the municipal sidewalk onto the mall.

I think that’s a distinction here, and that is basically the way to get into the post office.

The way this particular facility was designed was that the entranceway in is that public sidewalk.

You exit your car, come out to your car and get onto the sidewalk to get into the building for postal reasons, as I said, or for nonpostal reasons.

The situation that exists at Bowie, Maryland, and these respondents were convicted and sentenced to jail for doing something that they would be entitled to if it was abutting a municipal sidewalk.

And what we’re saying is that the First Amendment cannot… a moat cannot be created by this intervening parking lot to eliminate First Amendment activities.

John Paul Stevens:

Well, you don’t think they could put up a table on the municipal sidewalk, do you?

Jay Alan Sekulow:

There are regulations in some municipalities that prohibit tables because of the obstruction.

And again, those regulations are in existence which could prohibit obstructing the pedestrian flow of traffic.

But these defendant… respondents were not charged with that.

They were charged with soliciting.

What our position is is that the right to solicit, what’s been referred to by the court below as classic political speech, is not subject to the grace of government, to an architectural design or to a fluke of history.

Thank you.

William H. Rehnquist:

Thank you, Mr. Sekulow.

Mr. Roberts, you have two minutes remaining.

John G. Roberts, Jr.:

Thank you, Your Honor.

First of all, Justice Blackmun, the cite for the authority to issue these regulations is 39 U.S.C., Section 401, subsection 2 in the Postal Service Act.

The distinction between the interior and the exterior is one that the Postal Service did not adopt in issuing these regulations.

Permitting solicitation on the outside carries many of the same administrative problems that would accompany permitting solicitation in the postal lobbies.

Certainly where you’re talking about solicitation as in this case where the people go, which is the entranceway, it carries at least the same degree of problems.

And as the Court articulated in the Cornelius case, the government doesn’t have to wait until havoc is wreaked to act in restricting access with respect to a nonpublic forum.

I understood my brother to concede that if the Postal Service eliminated all extraneous activities and barred all sorts of expression, there would be no constitutional objection.

I take that concession to be somewhat inconsistent with an argument that this is a traditional public forum, and I take it to mean that what we’re talking about is a limited public forum.

John G. Roberts, Jr.:

But again, as the Court has made clear, in a limited public forum selective access does not mean that everyone has the right to come and go and do whatever activities they wish.

The government can preserve the property under its control for the purposes to which it is dedicated.

Thank you.

William H. Rehnquist:

Thank you, Mr. Roberts.