# Amicus Curiae Brief — United States v. Kokinda

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0514%3A14

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1990
- **Citation:** 497 U.S. 720

## Text

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

1990 BALLOT ACCESS FOR AN INDEPENDENT CANDIDATE FOR US SENATE
Nr „ oe *
nnr W. un e *
A= ta — as 15.25. 160 en E
1% of 1968 pres wour ie MIE 11.770 6
rr 1705 * 15
reer eee e
„„ 4 * es
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
W * oe *
t ember aed & ie & @ a ©) Nowe *
* r U herr i=
— ener aut eo Tile 4 ee 45 | * —
„ ») = x
„ 2 „„ „ rr * 25
Le mt pay $600 oe pete eee Tie 1 ee Oe 0 *
— == „ Tie 2) ee OS = 4
een An Die 48 e
= Mol i eb we Gaup 5) wee 6 180
— 1% of 19% — 68 590% 2) 23.953 -~
= „„ ou * lowe *
„ qeber eed & ee DSis * —
Me Sof i —— Tile 9 eee. 115.20) — he "1
_ „ 2 N 18
„ „ L= mu
Nev FR of 1908 weer coe Tie 4 ace. 29) DOO 2
„ Tie 4 ame 6554) * -
nr 1114 * 02
SM SS of 1906 eb we 145 19.2 i}
„ ow Gm I ae +e) * 23
NC Pe of emg women oe of Apel (a8 12 =e iff
SD „„ r * x
2 „„ „ iin * *
a 7 rr 0 *
— 1 —— rr n
W — — Tite 25 eee. DP) = home —
1 „„ 17-467 * is
rr 5 0 *
Dr 12.74 ass „
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Te Set ek we See cot 4) Mame “a
u - 2 * = —
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ung „

eit COMMUm CAT ee

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