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?

Media for United States v. Kokinda

Audio Transcription for Oral Argument - February 26, 1990 in United States v. Kokinda

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.