United States v. Kokinda

497 U.S. 720, 110 S. Ct. 3115 (1990)

 

RULE:

The Postal Service has not expressly dedicated its sidewalks to any expressive activity. Indeed, postal property is expressly dedicated to only one means of communication: the posting of public notices on designated bulletin boards. 39 C.F.R. § 232.1(o) (1989). No Postal Service regulation opens postal sidewalks to any First Amendment activity. To be sure, individuals or groups have been permitted to leaflet, speak, and picket on postal premises, but a regulation prohibiting disruption, 39 C.F.R. § 232(1)(e) (1989), and practice of allowing some speech activities on postal property do not add up to the dedication of postal property to speech activities. The government does not create a public forum by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse. Selective access does not transform government property into a public forum.

FACTS:

Appellee volunteers set up table on sidewalk near local post office entrance to solicit contributions, sell books and subscriptions to organizational newspapers, and distribute political literature. The postal sidewalk lies entirely on Postal Service Department property, providing sole means for customers to travel from the parking lot to the post office building. When the postmaster asked them to leave, appellees refused. Appellees were convicted of violating 39 C.F.R. § 232.1(h)(1) (1989), which prohibits solicitation on postal premises. Appellant United States challenged the appellate court’s judgment reversing the district court's convictions, finding the postal sidewalk was traditional public forum, the government had no significant interest in banning solicitation, and the regulation was not narrowly tailored to accomplish asserted governmental interest. The Supreme Court of the United States reversed the appellate court’s judgment.

ISSUE:

Was the appellate court correct in finding that the postal sidewalk was a traditional public forum and that the government had no significant interest in banning solicitation?

ANSWER:

No.

CONCLUSION:

The postal sidewalk did not have the characteristics of public sidewalks that were traditionally open to expressive activity, nor had the postal sidewalk been expressly dedicated to any such activity, and therefore--even if the sidewalk had been dedicated to some First Amendment uses and thus was not a purely nonpublic forum--regulation of the sidewalk's reserved nonpublic uses required application of the reasonableness test. The ban on solicitation on the postal sidewalk was reasonable, because (a) solicitation was inherently disruptive of the Postal Service's business; (b) the Postal Service had concluded, after long experience, that a case-by-case approach to regulation of solicitation was unworkable; and (c) the regulation did not discriminate on the basis of content or viewpoint. Therefore, the ban on solicitation, as applied, did not violate the First Amendment.

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