Opposition Brief — United States v. Kokinda

No. 88-2031

In The

Supreme Court of the United States

October Term, 1988

=

UNITED STATES OF AMERICA,

Petitioner,

MARSHA B. KOKINDA AND KEVIN E. PEARL,

Respondents.

—o—

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE POURTH CIRCUIT

—@>—

RESPONDENTS’ BRIEF IN OPPOSITION TO

THE PETITION FOR A WRIT OF CERTIORARI

+

Jay ALAN SeKkULow

THomas Parrick MONAGHAN

(Counsel of Record)

Eric ALAN Day

James M. Henperson, Se.

520 Rhodes-Haverty Building

134 Peachtree Street, N.W.

Atlanta, Georgia 30303

(404) 584-8040

Counsel for Respondents

COERLE LAW BRIDT PRINTING (1) OD) 225 oon4

OF CALL COLLECT 02) 4)

QUESTIONS PRESENTED

Whether sidewalks adjacent to United States Post

Office Buildings constitute Public Forums?

Whether 39 C.F.R. § 232.1(h), which prohibits solicita-

tion on the sidewalks of United States post offices, is

an unconstitutional restriction on the freedom of

speech?

Page

WRERS GP Gees cccccccccscdeccceqsaauueens ii

TABLE OF AUTROORITIOS ..... ... 22... ccccecccceess iii

STATEMENT OF THE CASE... ........ «005.0000. 1

REASONS FOR DENYING THE WRIT............. 4

1. The United States Court of for the

Fourth Circuit correctly held the Post

Office sidewalk constitutes a public forum and

that the Postal Regulation prohibiting solicita-

tion is an unconstitutional infringement on

freedom of speech ........... 66.66 c cc cc nn nns 4

a. Sidewalks are public forums ............. +

b. Absolute bans are not reasonable regula-

GROED. « cccccccccccceccescecoeseeseosessocs |

2. The postal service regulation is overbroad.... 13

Tho copie emene the ems ae

G8 GHP GRUREIEG,. «cc cccccccccccescsccssseces 14

ili

TABLE OF AUTHORITIES

Page

Cases

Adderly v. Florida, 385 U.S. 39, 47 (1966)............. 11

Board of Airport Commissioners v. Jews for Jesus, 482

eee cnc inescédebbebeveneccssee: 12, 14

Boos v. Barry, 108 S. Ct. 1157 (1988)................ 5, 6

Brown v. Louisiana, 393 U.S. 131 (1966)............... 7

Cornelius v. NAACP Legal Defense and Education

Pemee, GO UB. FED CIPGED .w 2 cc cccccccccccccccees 11

Edwards v. South Carolina, 372 U.S. 229 (1963) ........ 7

E.1]. du Pont de Nemeurs & Co. v. Trains, 430 US.

i ccnctsoeneceecosesscocccescese 16

Frisby v. Schultz, 108 S.Ct. 2495 (1988).............. 5, 6

Gitlow v. New York, 268 U.S. 652 (1925)............... 9

Grayned v. Rockford, 408 U.S. 104, 119 (1972)......... 14

Greer v. Spock, 424 U.S. 828 (1976)............6.055. 9, 10

Hague v. C.1.0., 307 U.S. 496, 515-516 (1939)........ 5, 6

Heffron v. International Society for Krishna Con-

sciousness, 452 U.S. 640 (1981)............ 06 ce eee ee. 7

Kokinda v. United States, 866 F.2d 699 (4th Cir.

tet heeeddaechesecosceceosoncss 2, 4, 7, 8, 11

Members of City Council v. Taxpayers for Vincent, 466

i <ce.ccceskevsesureséoncceseses 11

NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 307

DP eaRsGEEEGhEeeeeeescenccsccccescececceses 14

National op ng gaa Inc. v. Bolger, 737 F.2d

i ies e cies oucenesssceccesecece 15, 16

iv

TABLE OF AUTHORITIES - Continued

Page

Perry Education Association v. Perry Local Educators

Association, 460 U.S. 37 (1983)..........6.60000e 11, 12

Stromberg v. California, 283 U.S. 359 (1931)............ 9

Terminiello v. Chicago, 337 U.S. 1, 4-5 (1949) ......... 12

Tinker v. Des Moines Independent Community School

District, 393 U.S. 503 (1969)... 0.0... . ccc e eee ee ee 7

United States v. Belsky, 799 F.2d 1485 (11th Cir.

SUES cn eccvesapsccacpssucepersenvavesenenceesacct 15

United States v. Bjerke, 796 F.2d 643 (3d Cir. 1986). .8, 15

United States v. Grace, 461 U.S. 171, 177 (1983) 5, 13, 16

United States Postal Service v. Greenburgh Civic

Ass'n, 453 U.S. 114, 133 (1981)... 0... cece ec eee 8

Village of Schaumburg v. Citizens for a Better Envi-

ronment, 444 U.S. 620, 632 (1980).......5......005. 13

CONSTITUTIONAL PROVISIONS AND STATUTES

Se Bh GR, GUNES Bsc vccicccndcvccécesscccass 3, 8, 12

BP Ges OP CO vce dccccosndececdvecveccsncsees 10

Be Ges OP I cs cnccccesvescccccctssvestecesess 10

Be Gey OP Ee accccvcccescccecesessneccoccesenss 3

Be Geet SII cc ccccccccecceosccesoces 10, 14

ON II. gc occccoccdcnccucusocevebxsebets 10

TABLE OF AUTHORITIES - Continued

Page

BP SE © BRE cvivcvescccccvvccscscesseccvens 10

GD FO TR Fee coc cccssccsscecsccccvecesoececes 16

OrrHeR AUTHORITIES

“Everybody's Office: Bainbridge Post Office Is

Key To Town's Activities,” Postat Lire MAGAZINE

(March/April 1980)............00cc cece eee ee eeees 10

Kalven, The Concept of Public Forum: Cox v. Louisi-

GR, TE Oe Ge BE Bo ccscccccscccsccssevetevesoes 7

Margolis, “In Rural American the Post Office

Remains A Mecca,” SmitHsONiAN 63-66 (July,

SUSU US dS Vedeteschisbbecuscsnesdesedeesesenss 10

No. 88-2031

—o-

In The

Supreme Court of the United States

October Term, 1988

>—

UNITED STATES OF AMERICA,

Petitioner,

Vv.

MARSHA B. KOKINDA AND KEVIN E. PEARL,

Respondents.

~—

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

POR THE FOURTH CIRCUIT

ss

RESPONDENTS’ BRIEF IN OPPOSITION TO

THE PETITION FOR A WRIT OF CERTIORARI

oo!

STATEMENT OF THE CASE

Respondents, Marsha Kokinda and Kevin Pearl, are

volunteers for the National Democratic Policy Committee

(NDPC). The NDPC is a political advocacy group which

seeks to inform the public about political, cultural and

scientific ideas. These ideas include human welfare con-

cerns such as eliminating Acquired Immune Deficiency

Syndrome (“AIDS”) and drug abuse from our society.

On August 6, 1986, Respondents set up a table on the

sidewalk in front of the Bowie, Maryland post office.

They distributed NDPC literature and solicited contribu-

tions to their organization. The Court of Appeals

described the geography of the Bowie, Maryland post

office as follows:

The sidewalk on which [respondents] set up their

— is me ane seven wide and is located

fy ay —— runs in front

ft patrons —- _

this ane © to enter 9 A post

parking lot is contiguous to siding A os and both

the ry lot and ie post office itself are

k from a public road. A municipal sidewalk

ath the public ond, runs in front of the se lot,

and is parallel to the post office sidewalk

Kokinda v. United States, 866 F.2d 699, 700 (4th Cir. 1989).

The table on the sidewalk was approximately five to six

feet from the main entrance to the building.

Petitioner alleged at trial before the United States

District Court, that the Bowie, Maryland Post Office

received between 40 and 50 complaints from postal

patrons about respondents’ activities. Petition for Writ of

Certiorari at 4. The court of appeals, however, discounted

these so-called complaints.

The record reveals that postal employees received

‘forty to fifty’ complaints concerning Pearl and

Kokinda. [Postal Patron] Wyatt testified that, because

she knew the Girl Scouts were not allowed to sell

cookies on federal property, she asked a clerk if

Kokinda and Pearl's activities were not also illegal

The record is completely silent as to the nature or focus of

the other thirty-nine to forty-nine complaints. For all we

know, the complaints a have been generated by the

hearers’ disagreement with the message of the National

3

Democratic Policy Committee or their disapproval of the

appearance or lation of the speakers.

Id. at 705 (emphasis added).

There was no evidence submitted to the United States

District Court showing that Respondents or their mate-

rials were blocking, obstructing or interfering with the

entranceway to the building. Nevertheless, on August 6,

1986, a criminal complaint was filed against Respondents.

The complaint stated that on August 6, 1986, Respon-

dents solicited signatures and publications for the NDPC

on the property of the United States Postal Service

(“Postal Service”) at Bowie, Maryland in violation of 39

C.F.R. § 232.1(h).

Respondents were convicted at trial before a magis-

trate and thereafter appealed their conviction to the dis-

trict court. Respondents asserted before the district court

that the prohibition against solicitation as set forth in 39

C.F.R. § 232.1(h) violated their free speech rights as pro-

tected by the First Amendment to the Constitution. The

district court, however, affirmed Respondents’

convictions.

Thereafter, Respondents appealed their convictions

to the United States Court of Appeals for the Fourth

Circuit. The court of appeals reversed Respondents’ con-

victions, holding that

[blecause we believe that the post office sidewalk

constitutes a public forum and that the postal regula-

tion is neither a reasonable manner restrictinn nor

narrowly tailored to protect First Amendment values,

we 39 C.F.R. § 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 there-

fore reversed.

866 F.2d at 700. Petitioner filed a Petition for Rehearing

with Suggestion for Rehearing In Banc, which was denied

on April 14, 1989. On June 13, 1989, Petitioner filed its

Petition for Writ of Certiorari with this Court.

~—

REASONS FOR DENYING THE WRIT

1. The United States Court of Appeals for the

Fourth Circuit correctly held that the Post

Office sidewalk constitutes a public forum and

that the Postal Regulation prohibiting solicita-

tion is an unconstitutional infringement on

freedom of speech.

a. Sidewalks are public forums.

The United States Court of Appeals for the Fourth

Circuit correctly concluded that “the post office sidewalk

constitutes a public forum and that the postal regulation

[prohibiting solicitation] is neither a reasonable manner

restriction nor narrowly tailored to protect First Amend-

ment values.” Kokinda, 866 F.2d at 700. The Fourth Cir-

cuit’s decision is in accord with well-established

precedents of this Court.’

1 Respondents call the disputed subject property “side-

walks” as did the Fourth Circuit. Petitioner has studiously

avoided using this word in its Petition, preferring the term

(Continued on following page)

5

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

the 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, immu-

nities, rights, and liberties of citizens.

Hague v. C.1.0., 307 U.S. 496, 515-516 (1939) (opinion of

Roberts, J.).

The principle enunciated by Justice Roberts in Hague

includes sidewalks: “streets, sidewalks, and parks, are con-

sidered, without more, to be ‘public forums’ [sic].” United

States v. Grace, 461 U.S. 171, 177 (1983) (emphasis added);

see also Boos v. Barry, 108 S. Ct. 1157 (1988) and Frisby v.

Schultz, 108 S.Ct. 2495 (1988).

(Continued from previous page)

“walkway.” Whether a “walkway” or a “sidewalk,” however,

the disputed subject property is indisputedly a concrete struc-

ture extending from the post office building to the post office

parking lot. Further, this concrete structure, which Respon-

dents and the Fourth Circuit panel below deemed a “side-

walk,” was constructed to facilitate pedestrian traffic just like a

municipal sidewalk.

Underlying this merely semantic distinction between the

parties is Petitioner’s apparent fear that by referring to the

disputed subject property as a “sidewalk,” the well-established

Hague formulation for traditional public forum analysis might

be unintentionally invoked. Such a development would cer-

tainly envelop post office sidewalks in constitutional protec-

tions and prevent further absolute bans. Respondents

respectfully submit that by granting certiorari, this Court may

encourage governmental wordsmiths to fashion new obfusca-

tions with which to frustrate the clear mandates of the

Constitution.

In two recent decisions, this Court continued its rea-

soned application of Justice Roberts’ Hague formulation.

First, in Boos v. Barry, 108 S.Ct. 1157 (1988), this Court

applied a most exacting standard of scrutiny to a provi-

sion of the District of Columbia Code that prohibited

certain First Amendment activities on public streets and

sidewalks near foreign embassies. Id. at 1164. Further, a

majority of the Court assented to the plurality opinion’s

explicit determination that the code provision was appli-

cable to streets and sidewalks - property considered to be

traditional public forums even though in the environs of

foreign embassies.

Second, in Frisby v. Schultz, 108 S.Ct. 2495 (1988), this

Court rejected arguments that it disregard “the cliches”

about the public forum status of streets, parks and side-

walks in resolving a dispute over speech activities on

residential streets. Id. at 2499-2500. Although dissenting

from the ultimate result in Frisby, Justice Brennan nev-

ertheless found the “cliche” argument to be a rogue argu-

ment and he wholeheartedly agreed with that portion of

the majority opinion which found residential streets to be

traditional public forums. Id. at 2506 n.1. Indeed Frisby

and this Court's other

decisions identifying public streets and sidewalks as _

traditional public fora are not accidental invocations

of a “cliche,” but recognition that “[w]herever the

title of streets and parks may rest, they have imme-

morially been held in trust for the use of the public.”

Hague v. C.1.0., 307 U.S., at 515, 59 S.Ct., at 964.

Frisby at 2500. The Frisby opinion demonsirates the utility

of the Hague formulation:

7

No particularized inquiry into the precise nature of a

specific street is necessary; all public streets are held

in the public trust and are properly considered tradi-

tional public fora.

Id.

Streets, sidewalks and parks are not the only tradi-

tional public forum properties. State capitol grounds are

public fora for the exercise of free speech. Edwards v.

South Carolina, 372 U.S. 229 (1963). Similarly, this Court

has recognized other, limited public fora, including state

fairs, Heffron v. International Society for Krishna Conscious-

ness, 452 U.S. 640 (1981), school grounds, Tinker v. Des

Moines Independent Community School District, 393 U.S. 503

(1969), and public libraries, Brown v. Louisiana, 393 U.S.

131 (1966). The “concept of public forum,” to use Pro-

fessor Kalven’s phrase, by its nature can be neither mono-

lithic nor static. Kalven, The Concept of Public Forum: Cox

v. Louisiana, 1965 S. Cr. Rev. 1.

Petitioner conceded in the Court below that the

municipal sidewalk, which abuts the parking lot in front

of the Bowie Post Office building, is a public forum.

Petitioner asserted in the Court below and in its Petition

to this Court, however, that the sidewalk adjacent to the

post office building is not a public forum because it is

“set back from the street and plainly dedicated to Post

Office use.” Petitioner at 11. The Fourth Circuit properly

rejected Petitioner’s assertion. “[T]he fact that the walk-

way at issue here happens to be located on property

owned by the federal postal service does not alone

change its public forum character.” Kokinda, 866 F.2d at

700.

The holding of the Fourth Circuit Court of Appeals

was again based on well-established precedents of this

Court. “[T]he government [may not] transform the char-

acter of [public forum] property by the expedient of

including it within the statutory definition of what might

be considered a nonpublic forum parcel of property.”

Grace, 461 U.S. at 180. See also United States Postal Service

v. Greenburgh Civic Ass'n, 453 U.S. 114, 133 (1981). Nor

should the First Amendment be “consigned to the mer-

cies of architectural chicanery.” Kokinda, 866 F.2d at 703.

The government seeks this Court’s approbation of a pre-

viously unrecognized executive power. For if an interven-

ing parking lot, separating a municipal sidewalk from a

post office sidewalk, relegates protected First Amend-

ment activity to the protections afforded by the standard

of review used for speech restrictions in a nonpublic

forum, the Government will have obtained by the ink of

an architect’s pen what the ink of the Founders’ quills

denied to it: the power to create speech free zones at

will.?

2 Discussing United States v. Bjerke, 796 F.2d 643 (3d Cir.

1986), Petitioner summarized that Third Circuit holding as a

rejection of a challenge similar to that of Respondents’ below

on the ground that the walkways abutting the post office,

which were located “a good distance removed from the

street, [and] could not be confused with municipal side-

walks” (796 F.2d at 649), were not traditional public

forums “dedicated to serve the traditional functions of

streets and parks.”

Petition at 14.

The First Amendment provides: “Congress shall make no

law .. . abridging the freedom of speech .. . ” U.S. Const.

(Continued on following page)

Petitioner’s reliance on this Court’s holding in Greer

v. Spock, 424 U.S. 828 (1976) is misplaced. The subject

property at dispute in Greer, streets and sidewalks aboard

a military base, is readily distinguishable from the open

sidewalks at issue herein. Aboard Fort Dix, “[mlilitary

police regularly patrol[led] the roads within the reserva-

tion, and they occasionally stop[ped] civilians and

ask[ed] them the reason for their presence.” Greer, 424

U.S. at 830. In the instant case, however, there is abso-

lutely no evidence that the sidewalks of the Bowie, Mary-

land, Post Office are patrolled by postmen or other

federal officers or that patrons or others found thereon

are interrogated as to the purpose of their presence on the

sidewalk. Further, persons driving aboard Fort Dix were

warned in advance, by sign postings, that they were

subject to search while on the post. Id. There is no evi-

dence that such is the case for persons entering the park-

ing lot at the Bowie Post Office. Finally, the main

(Continued from previous page)

amend. I. Under this Court’s precedents, that proscription

binds the executive and judicial branches of the federal gov-

ernment and not merely the legislative. Indeed, it is only since

adoption of the fourteenth amendment and this Court's later

jurisprudence thereunder (Gitlow v. New York, 268 U.S. 652, 656

(1925); Stromberg v. California, 283 U.S. 359 (1931)), that the

States have found themselves under the strictures of the first

amendment. Petitioner would except from first amendment

protection sidewalks otherwise indistinguishable from those of

the surrounding municipality on the chimerical basis that fed-

eral ownership places the post office sidewalk beyond the

reach of the first amendment or, at least make public forum

analysis unsuitable. In so doing, Petitioner exalts neither the

spirit nor the letter of the first amendment; rather, the govern-

ment trammels both by its inattentiveness to the mandates of

that provision.

10

entrances to Fort Dix were guarded at least occasionally.

Id. Petitioner does not assert that it posts guards at the

entrances to its parking lots or at the ends of its

sidewalks.

Beside the factual differences between Greer and the

instant case, this Court in Greer emphasized the “special

constitutional function of the military in our national life,

a function both explicit and indispensable.” Id. at 837.

Petitioner strains to find such similar special constitu-

tional functions on which to posit a special rule for post

office sidewalks otherwise indistinguishable from the

sidewalks of the surrounding municipality. In fact, com-

mentators have noted that post offices in many parts of

the country function as the nerve center of the commu-

nity where everyone meets to socialize and find out what

is happening. “Everybody’s Office: Bainbridge Post

Office Is Key To Towns Activities.” Postat Lire MAGAZINE

(March/April 1980); Margolis, “In Rural America The

Post Office Remains A Mecca,” SmITHSONIAN 63-66 (July

1983). Unlike most military posts, the general public has

access to postal property including post office sidewalks,

39 C.ER. § 232.1(b). Furthermore, the general public has

access to bulletin boards inside postal buildings to post

notices of public concern, such as announcements of pub-

lic assemblies, elections and judicial sales. 39 C.F.R.

§§ 243.2(a), 232.1(h)(1 (ii).

Finally, postal services performed at post offices go

far beyond “mail services.” United States Savings Bonds,

postal money orders and nonpostal stamps are sold at

post offices. 39 C.F.R. § 111.5(i)(4). The Postal Service also

conducts Housing Vacancy Surveys for the Federal Home

Loan Bank Board. 39 C.F.R. 259.1(d)(1). The federal gov-

ernment has chosen to rely entirely on post office lobby

11

distribution in order to disseminate draft registration

program materials. Many post offices make federal and

state income tax forms available during tax preparation

season. ,

Markedly different from Post Office sidewalks, which

are open to the public, are such non-public fora as gov-

ernment fund drives, Cornelius v. NAACP Legal Defense

and Education Fund, 473 U.S. 788 (1988), utility poles,

Members of City Council v. Taxpayers for Vincent, 466 U.S.

789, 815 (1984), interschool mail systems, Perry Education

Association v. Perry Local Educators Association, 460 U.S. 37

(1983), and the curtilage of jail houses, Adderly v. Florida,

385 U.S. 39, 47 (1966).

b. Absolute bans are not reasonable regulations.

In its effort to posit a basis for certiorari, Petitioner

asserts that the post office “walkways are subject to con-

gestion; permitting solicitation at such locations can

inconvenience patrons and interfere with the business

being conducted in the building itself.” Petition at 8

(emphasis added). Again, Judge Wilkinson, writing for

the majority in Kokinda, recognized that the “First

Amendment requires that society tolerate some inconve-

nience in public forums to protect the values of expres-

sion.” Kokinda, 866 F.2d at 702. This Court has established

that

The vitality of civil and political institutions in

our society depends on free discussion. As Chief

Justice Hughes wrote in De Jonge v. State, 299 US.

353, 365 [1931], it is only through free debate and free

exchange of ideas that government remains respon-

sive to the will of the people and peaceful change is

12

effected. The right to speak freely and to promote

diversity of ideas and programs is therefore one of

the chief distinctions that sets us apart from total-

itarian regimes.

Accordingly a function of free speech under our

system of government is to invite dispute. It may

indeed best serve its high purpose when it induces a

condition of unrest, creates dissatisfaction with con-

ditions as they are, or even stirs people to anger.

Speech is often provocative and challenging. It may

strike at prejudices and preconceptions and have pro-

found unsettling effects as it presses for acceptance

of an idea. That is why freedom of speech, though

not absolute, is nevertheless protected against cen-

sorship or punishment, unless shown likely to produce a

clear and present danger of a serious substantive evil that

rises far above public inconvenience, annoyance, or

unrest. There is no room under our Constitution for a

more restrictive view. For the alternative would lead to

standardization of ideas either by legislatures, courts,

or dominant political or community groups.

Terminiello v. Chicago, 337 U.S. 1, 4-5 (1949) (emphasis

added). Standardization of ideas by the postal service is

no less to be feared.

Governmental concerns over congestion are properly

dealt with by enacting reasonable time, place and manner

restrictions. Perry Education Association v. Perry Local Edu-

cators’ Association, 460 U. S. 37, 45 (1983). Petitioner’s

absolute prohibition of protected First Amendment activ-

ities is not a reasonable time, place and manner

restriction.

Sweeping prohibitions of First Amendment activities

have consistently been held unconstitutional by this

Court. In Board of Airport Commissioners v. Jews for Jesus,

13

482 U.S. 569 (1987), this Court unanimously held that an

airport regulation prohibiting all First Amendment activ-

ity from taking place in an airport terminal was a “sweep-

ing ban” and could not be justified even in a nonpublic

forum because no conceivable governmental interest

would justify such an absolute prohibition of speech. See,

e.g., Grace, 461 U.S. at 182-83 (1983) (a total ban of flags,

banners or devices on the sidewalk of the Supreme Court

building is not justified to preserve decorum).

Similarly, this Court has recognized that “solicitation

is characteristically intertwined with informative and

perhaps persuasive speech seeking support for particular

causes or for particular views on economic, political, or

social issues, and . . . without solicitation the flow of such

information and advocacy would likely cease.” Village of

Schaumburg v. Citizens for a Better Environment, 444 U.S.

620, 632 (1980). The Postal Service can institute “measures

less intrusive than a direct prohibition on solicitation” in

order to meet its concerns. Id. at 637. Petitioner’s con-

cerns over traffic congestion and inconvenience are not a

sound basis for this Court to grant the Petition for a Writ

of Certiorari. The United States Court of Appeals for the

Fourth Circuit properly applied this Court’s precedents

to the facts before it.

2. The postal service regulation is overbroad.

In its Petition for Writ of Certiorari, the government

has not raised unresolved questions of national impor-

tance. In fact, this Court could avoid addressing the

public forum question and still affirm the opinion of the

14

Court below based on the overbreadth doctrine. The pro-

hibition of solicitation of contributions on all postal prop-

erty is substantially overbroad and cannot be tolerated by

our system of freedom of expression. Board of Airport

Commissioners v. Jews for Jesus, 482 U.S. 569 (1987).

In this case, the overbreadth arises from the nature of

the Regulation: it imposes a blanket ban. All solicitation

is prohibited, even that embodied in merely spoken

words or free pamphlets. One postal patron is prohibited

from asking another for 25 cents to use a pay phone. No

free pamphlets containing membership forms or donation

forms may be distributed. Indeed, 39 C.F.R. 232.1(h)(1)(ii)

would prevent postal workers from raising money to

send flowers and a card saying “GET WELL CHARLIE -

OUR POSTAL TEAM NEEDS YOU” to an ailing fellow

employee. Moreover, solicitation on all post office side-

walks is prohibited, no matter how spacious, uncon-

gested, and otherwise suitable they may be. Solicitation

may occur at no time, at no place and in no manner. The

disputed Regulation does not take into account the

nuances of individual post offices and it does not permit

decisioins to be made as to the capacity of each facility to

accommodate solicitation “on an individualized basis,

given the particular fact situation.” Grayned v. Rockford,

408 U.S. 104, 119 (1972). Rather, the Regulation, in classic

fashion, “sweeps unnecessarily broadly and thereby

invade[s] the area of protected freedoms.” NAACP v.

Alabama ex rel. Flowers, 377 U.S. 288, 307 (1964).

3. The Conflict Among the courts of appeals has

not fully matured.

Petitioner asserts that “the conflict among the circuits

is as clear-cut as it could be.” Petition at 16. Yet, a careful

r

15

analysis of the opinions among the circuits indicates that

the significant issues have not fully matured. The United

States Courts of Appeal for the First, Second, Fifth, Sixth,

Eighth, Tenth and D.C. Circuits have not addressed either

the constitutionality of the Postal Service Regulation or

the public forum status of post office sidewalks. Only the

United States Courts of Appeal for the Third and Elev-

enth Circuits have squarely faced the public forum issue

as it relates to the enforcement of the challenged regula-

tion against speech activities on post office sidewalks.

The United States Courts of Appeal for the Third and

Eleventh Circuits have held that post office sidewalks

were nonpublic forums. United States v. Bjerke, 796 F.2d

643 (3d. Cir. 1986); United States v. Belsky, 799 F.2d 1485

(11th Cir. 1986). In his well-reasoned dissent in Bjerke,

however, Judge Higginbotham noted that the majority

failed to explain how a mere architectural separation of

two sections of sidewalk by a parking lot could avert

First Amendment analysis. Bjerke, 796 F.2d at 654-55 (Hig-

ginbotham, J., dissenting).

The United States Court of Appeals for the Seventh

Circuit, in National Anti-Drug Coalition, Inc. v. Bolger, 737

F.2d 717 (7th Cir. 1984), upheld the postal service regula-

tion while avoiding the public forum issue. National Anti-

Drug Coalition arose when a nonprofit corporation sought

to solicit literature on the sidewalk outside a post office.

Saying that it would not decide the public forum issue,

the Seventh Circuit panel nevertheless held that the Reg-

ulation was a valid time, place and manner restriction. A

review of the Postal Service’s Regulations, however,

establishes that “prohibition was preferable to any

attempt to permit solicitation under regulation as to time,

16

place and manner.” 43 Fed. Reg. at 38,824. The Postal

Service has stated that its Regulation is not a time, place

and manner restriction.

In National Anti-Drug Coalition, Inc., Judge Wood dis-

sented strenuously, citing United States v. Grace, 461 U.S.

at 177, and asserting that the Regulation could not be

applied constitutionaily to outdoor public sidewalks at

post offices such sidewalks are as much a public forum as

the public sidewalks around the Supreme Court building.

The law concerning the constitutionality of the Regu-

lation as it relates to postal sidewalks is still emerging.

“This litigation exemplifies the wisdom of allowing diffi-

cult issues to mature through full consideration by the

Court of Appeals.” E.IJ. du Pont de Nemeurs & Co. v. Trains,

430 U.S. 112, 135 n.26 (1977). The issues raised in the

Government’s Petition for Writ of Certiorari have not

fully matured and their Petition should be denied.

—o-

17

CONCLUSION

This Court should refuse to grant a Writ of Certiorari

to the United States Court of Appeals for the Fourth

Circuit.

Dated: July 11th, 1989.

Respectfully submitted,

Jay ALAN SEKULOW

THOMAS PATRICK MONAGHAN

(Counsel of Record)

Eric ALAN DALy

James M. HeNperRSON, SR.

520 Rhodes-Haverty Building

134 Peachtree Street, N.W.

Atlanta, Georgia 30303

(404) 584-8040

Counsel for Respondents