Amicus Curiae Brief — United States v. Kokinda

No. 88-2031 pore e

In The

Supreme Court of the United States

October Term, 1988

UNITED STATES OF AMERICA,

Petitioners,

MARSHA B. KOKINDA AND KEVIN E. PEARL,

Respondents,

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF OF THE NATIONAL COMMITTEES OF THE

LIBERTARIAN PARTY AND THE NEW ALLIANCE PARTY,

AS AMICI CURIAE, IN SUPPORT OF RESPONDENTS

Frank M. Dunbaugh,

744 Holly Drive North

Annapolis, MD 21401,

(301) 974-0555,

Attorney for Amici Curiae.

Free State Press. inc. Annapolis, MO 21401

QUESTION PRESENTED

Whether the Court of Appeea!s

correctly decided thet the First Amendment

prohibits the Government from forbidding any

political advocacy on the access sidewalk in

front of the Bowie, Maryland, Post Office.

TABLE OF CONTENTS

Interest of Amici 0 n n 0 0 |

Argument. . ° 1 1 ; . 3

Conclusion 0 n 0 0 0 10

Appendices A and 8

TABLE OF AUTHORITIES

Cases:

r f Tex v. White, 415 U.S.

767. 39 . Ed. 20 744 (1974) n 0 5

Andersen v. Celebrezze, 460 U.S. 780,

L.Ed.20 547 (1983) a : . 3

— v. NLRB, 424 U.S. 507,

47 L.Ed. 20d 196 (1976) 0 ‘ . 7

. Fortson, 403 U.S. 431,

L. os 20 554 (1971) . n 0 5

blowd-Cere. Tanner. 407 U.S. S51.

L.Ed. 20 131 (1972) n 1 7

aterer v- Brown, 415 U.S. 724,

L. Ed. 20 714 (1974) 0 0 0 5

united-states v. Clark, 249 F. Supp.

„ 725-26 (S.0. Ala. 1965). : 10

Stetutes:

50 USCS Appx S$ 453 0 : 9 9

45 Fed. Reg. 45247 ' 9

See lists in Appendices A “end 8

No. 88-2031

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1988

UNITED STATES OF AMERICA,

Petitioners,

Vv.

MARSHA B. KOKINDA AND KEVIN E. PEARL,

Respondents,

On Writ of Certiorari to

the United States Court of Appeals

for the Fourth Circuit

Brief of the

LIBERTARIAN PARTY and the NEW ALLIANCE PARTY

as Amici Curiae

INTEREST OF THE AMICI

The amici are the national! committees of

two political parties, the Libertarian Party

end the New Alliance Party, which have sought

U

ballot access in both federe! and state

elections across the nation. In the 1988

presidential election, the Libertarian Party

obtained ballot position for its presidential

candidate in 46 states and the District of

Columbia and the New Alliance Party obtained

ballot position for its candidate in all 50

states and the District of Columbia. Both

parties have petitioned extensively for ballot

status and have petitioned at post offices.

The purpose of this brief is to alert the

Court to the impact of this case as it applies

to petitioning for ballot access and to urge

aff irmance. Reversal would tend to limit

further the access to areas in which effective

political petitioning is permitted so as to

infringe seriously on the First Amendment

right to participate meaningfully in the

political process.

ARGUMENT

The Amici urge the Court to adopt the

method of review articulated in Anderson v.

Celebrezze, 460 U.S. 780, 75 C Ed. 20 547

(1983), for judging constitutions! chal lenges

to laws alleged to impede political advocacy:

LA] court must resolve such a chal lenge by

an analytical process that parallels its

work in ordinary litigation. It must

first consider the character and magnitude

of the asserted injury to the rights

protected by the First and Fourteenth

Amendments that the plaintiff seeks to

vindicate. It then must identify and

evaluate the precise interests put forward

by the State as justifications for the

burden imposed by its rule. In passing

Judgment, the Court must not only

determine the legitimacy and strength of

each of those interests; it also must

consider the extent to which those

interests make it necessary to burden the

Plaintiff’s rights. Only after weighing

all these factors is the reviewing court

in @ position to decide whether the

challenged provision is unconstitutional.

(460 U.S. at 789, 75 L.Ed.2d at 558.)

It is clear that the Respondents were

prosecuted and convicted for engaging in acts

which can only be described as politica!

advocacy. The Government does not deny this,

3

but simply esserts that the protected activity

can be barred from the actess sidewalk leading

up to the post office from the parking erea

and be confined to the sidewalk next to the

public highway. Why? They ask this Court to

distinguish between the sidewalks by finding

that one (the sidewalk ealong State Highwey

197) is traditionally s “public forum” and

that the other is not. The amici urge the

Court to recognize the enormous value of the

free exercise of political advocacy and to

impose the highest standards to justify the

proposed government restrictions. [1]

This case should be analyzed in the

context of contemporary America. To hold that

the First Amendment protects only the right to

engege in political advocacy on the Village

Green would be s crue! erosion of our freedom.

l The amici would not oppose properly

tailored, and content neutral, time,

place and menner regulations on the

use of the access sidewalk.

4

We Americans today usually travel! by bus and

automobile. We shop in privately owned Melis.

If the post office has e parking area, we only

exit our cars to walk from the parking area to

the post office. Soon we may purchase stamps

at drive-in windows and with home computers.

Appropriate places available for face-to-face

political advocacy are rapidiy diminishing.

One might argue that in Twenty First

Century America, political advocacy wil! have

to be conducted through the media, much as

modern marketing advocacy is done. Yet this

Court continues to uphold state laws requiring

that independent candidates and new politica!

parties must demonstrate a “modicum of

support” by obtaining the signatures of

numerous voters. [2] Virtually eal! states

2 wenness 5 Fortson, 403 U.S. 431, 29

. Ed. 20 554 (1971); Storer v. Brown,

415 U.S. 724, 39 (. Cd. 20 714 (1974);

Amertcen Party _of Texas v. White,

415 U.S. 767, 39 L. KG. 2d 744 (1974).

5

have adopted such requirements. Iz] Mass

media techniques ere useless to obtain the

requisite

signatures for des ot eccess,.

because one must petition voters directly end

this requires

communication techniques,

bulletin boerds,

persone! contact. Modern

such es computer

telephone solicitations or

fax communications, can not be alternatives.

Face-to-face politica! aedvocacy is essentia!;

one must find and confront the voters on foot,

normally in public places. [4]

This Court hes held that ell owners can

petitioning in the modern market

prohibit

3 Appendix A ise

list for

4

list of the stetes

showing the election code references

anc the number of signatures thet

will be required in 1990 for «a4 new

party candidete for United States

Senetor. Appendix 8 is es similar

independent candidates for

United States Senator.

Door-to-door petitioning in many

areas is aifficult end may de

considered more intrusive to privecy

than confrontation in public.

place. 511651 if the government alsa can

pronibit petitioning on the Sidewalks used tu

gain access to the post offices (witty gte

that could be app! ied to otter

State arnt

federal! offices), where are ativocates «of

aiternative politics expected to geo? lo

sports and concert arenas? TO mass transit

depots? To community co! lege Camuises? les

church parking tots? Are these tradit tinal

Public fora? Will @ cross-section of tthe

community be found there? {7}

Should the Court choose to apr oat: this

cease es one requiring a determination «of

5 twdeens v. NLRB, 474 U.%. 0%, 4,

L.Ed. Za 196 (19/6); Lioyd Loty. ¥.

Tanner. 407 U.S. S51, 35 L.fa.7a 18)

(1972).

6 These “private” @qgor as wee

deve | oped with state tneent ives,

such es the Prince Georges County

Zoning Code Sec. 27-54%, et seu.,

which require a!!! new bulidings ta

have off-street parking.

7 Candidates for Mayor of Bowle wil!

find no arene nor mass transit depot.

7

whether or not the Respondents were exercising

their First Amendment rights in a “public

forum", the amici urge the Court to reject the

proposition thet a distinction can be made

between the various sidewalks in the vicinity

of the post office. [8) The post office, as @

federal symbo!, is, itself, a public forum end

the right to engage in politica! advocacy in

the vicinity of the post office should be

protected from undue interference. In the

free market place of ideas, the vendor should

be ae! lowed to select which part of the market

is best suited to her or his message. [9]

8 On 12/18/89 the author noted thet

the access sidewalk on which the

Respondents were arrested at the

Bowie post office had been shove! led

and saited, while the so-called

"public forum” sidewalk was stil!

covered with snow from the storm of

the preceding week.

9 Petitioning on the snow covered,

pedestrianiess “public forum"

sidewalk would be eas useless as

petitioning in a national! forest.

In most towns, the post office is the

only federal facility.

It represents federa!

presence and can be a logica! Foce point for

demonstrations for or

policies.

against federa!

{10) The post office has 8180

become a symbo! of federa! protection in some

contexts.

It is the place chosen by the FB!

to notify the community of the identity of

persons

Selma,

Alabama, in the

wanted by federa! sauthorities. In

mid-1960’s, the

presence of the federal! post office had

immeasurable symbolic significance. One wil!

never

know whether the long hes of voter

Tne Military Selective Service Act

(50 USCS Appx S 453) provides that

a!!! mate residents of the United

States between the ages of 18 and 26

must register at the post office (45

Fed. Reg. 45247). Anyone wishing to

reach these young potentia! voters

or to protest the selective service

system might find that the post

offices are effective places to

engage in politica! advocacy.

applicants outside the Del les County

APPENDIX A

1999 BALLOT ACCESS HURDLES FOR A NEW PARTY CAND FOR U S SENATE.

Courthouse thet cheracterized the politica! S2 SACO O08 SPE n .

2 222 nM 869

struggle of that era would have been possibie, 1 a 3

An SIMI) n 10

if the post office hed not been tloceted = dee. code 643006) (reg) * —

2 9 86S

nh reet. 11 Title 15, ane 300) ) om 145 05

directly scross the stree 1111 3 2. 2

— 180 mau Le

CONCLUSION * Tide 2, 11-42 4

: aoe 860 as

The judgment of the Court of Appeals for 1 re ee 187 606

a 1 N Oe

1 ö

the Fourth Circuit should be affirmed. Ky Title 10, see. 118.3152) Soo 35

8 > Sen (mg) @ 109000 6500

Respectfully submitted this 20th day of nas yr yy otm ta

> Chup. 5), see. 6 482 1.83

December, 1989, he — — ~~ 2

Me 2 140 0 00

Mo Tithe 9, see. 115.915 20 6 "

4 nn sl

— — 3, 23.17 42 32

FRANK N. DUNBAUGH wee. e 10, 13

Attorney for the Amici Curiae 41 ae — 8 —

NM 1428 24 2 ”

NY Chap. 17, sec. & 142 20 000 23

nc 163-9612) oe 1D

ND 16 1-11-30 7 00

a 3517.01 439M 69

a Tithe 26, anc. |. 109 “552 16

— Title 23, see. 249 72 =m 000 «61

A 282 * ary *

11 The Post Office in Setup. wien its 78 re —

federa! courthouse, 0 ce and 12-7-4 2.945 ”

Civil Rights Division office, stood 8 Napa 82

rect ly ecross the street from the u I oe

Dallas County Courthouse where Diack U Tide 17, ane. 240200) * 0

ve Mie om |) ©

citizens were required to — 1 — ~ Nui (pemery ves) oe ot *

to vote end which wes t head-

querters of the mounted posse of 2 2 i

arch segregationist Sheriff Clark. Lina) , ae.

„ 249 *

See, Vv.

Supe. 720. 725-26 (S.0. Ala. 1965). — . ———

pay — 92992 —— 2 — — —

10 1 63 r *

APPENDIX 6

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rr 1705 * 15

reer eee e

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a 1% of 1906 wom for US Semmse athe 9 *

W 44 Tike 15 eee SOO? = i= *

eee ee ne

rn Rae Ute

* 10% of pet wore, 1990 + 25 cage Tide 2 12.4.2 4) pet woes) ce DG «077

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= Mol i eb we Gaup 5) wee 6 180

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