Families Achieving Independence & Respect v. Nebraska Department of Social Services

MAGILL, Before HEANEY and MURPHY, Circuit Judges.

HEANEY, Judge. Circuit grass-roots, A rights organization brought this §§ action under 42 U.S.C. gain and 1988 to of a state-operated, welfare office for purpose distributing written materials to dis- cussing issues with welfare recipients. The district court held state’s exclusion of the did not violate the First or Fourteenth Amendment. We range of services welfare provides a broad to decide employed The reverse. agency explained, “Our recipients. As Wusk permitted are persons [providing] in mainte- only involved arbitrary is not en- subject to vague and lobby is and stamps and AFDC ... like food nance reason, group’s ex- the For this forcement. Medicaid, complete service also are a but we First Amendment. violates clusion protec- adult welfare and has child office that you if menagerie, whole tive and services I. BACKGROUND Id. at will, programs....” of Social Services essentially undis- are this case of The facts 132:13-23). Tr. (quoting and trial bench consolidated After a puted. on the injunc- is located of NDSS local office preliminary The request for hearing aon building owned findings of a commercial floor made second tion, detailed district court The company. by private managed of Rule Civil and to Federal pursuant fact of FAIR or will not allow Achieving building management 52(a). Inde- Families Procedure in the materials Dep’t any group distribute Respect v. Nebraska & pendence of building. Within (“FAIR”), F.Supp. 860 areas of common Social Servs. waiting large, enclosed below local NDSS office (D.Neb.1995). We summarize (hereinafter “lobby”). reception area our decision. relevant those facts of the local high-traffic area lobby is a The and Re- Independence Achieving Families busy especially dur- It is Id. NDSS office. (FAIR) loosely-organized group is a spect days month when of the ing the first five providing recipients current welfare past and 1,920 to over stamps food agency issues persons. low-income support for educational recep- the counter” households “over fully more “to goals, FAIR seeks Among its month, the Throughout the tion area. debate public discussion inform the receive waiting to by people is used reform.’” “welfare system’ and the “welfare waiting to by clients well as stamps as food Ex. Pis.’ FAIR, (quoting F.Supp. at 862 adjoining in- in personnel with meet NDSS l).1 3, Funding Proposal at rooms. terview Department Social Ser- The Nebraska dealing for agency policy has no provides (NDSS) agency that is a state vices groups to distrib- outside requests from with fam- individuals to low-income assistance engage or otherwise information ute office and a local both maintains ilies. NDSS Wusk property. activity on NDSS speech Lincoln, Daryl Nebraska. office a central policy to handle developed unwritten has local NDSS of the administrator is the Wusk Ac- NDSS office. the local requests at such office local NDSS Lincoln. office in Women, Demo- Nebraska ganization and the membership not per list se has no 1. FAIR Women_” Dissenting Op., organization’s two staff mem- infra cratic incorporated. The was Stippel, bers, FAIR Sheryl Vicki Walker and As found is a case. Each went to appellants lobbyist in this this case registered when other named anot who, briefly her on behalf recipient FAIR, work 862. FAIR trial. salary. "scholarships” of a lieu lobby- receives as a of Nebraska the State registered with its finances at 863. FAIR 39:13-14), caution,’’ (Tr. "an out of excess ist organi- grant from a charitable under activities registra- application for its withdrew soon Center of the Nebraska The director zation. Legal determining, with after assistance tion Legal (a Aid project of the special Services Com- Accountability Disclosure staff mission, Omaha) grant and Society, oversees Inc. of (Tr. lobbyist 39:19- not a was that FAIR respect conditions with advises Moreover, affilia- 40:22). of FAIR'S the extent strategy. long-term organizational grant and co-spon- organizations was political with tion is that on the primary funds limitation The money rally capital. The rally at the state sorship aof political purposes. used for not be day provid- care sponsored various also result, engage in activities FAIR does As a certainly ers; providers were day care those lobby- the direct partisan politics related mere political groups their into transformed 42:4-17.) (Tr. ing of officials. elected event, any our rally. association present Nonetheless, attempts to the dissent policy used turns on decision reg- organization both highly political FAIR as ap- organizations distinguish between office ... and “allied lobbyist with the state istered as facilities, exact not on the pealing to use including the Nebras- organizations, with various leanings. Network, of FAIR'S Or- nature National Political ka Women’s Wusk, cording open he declines to church-affiliated designed world”; rather, lobby “up for the he tries “to activities), children with constructive “Jour- (a groups’ ney” ‘minimize the numbers allowed Native American rights orga- health nization), possible.’” access ‘as “Right-To-Life” much as Id. at group, and vari- 120:21-22, 150:15-151:3). (quoting University Tr. ous groups. Wusk Nebraska research explained necessary that restrictions are Id. to prevent difficulties, administrative such as To entity making determine whether an congestion, and to ensure that his clients are request to lobby use the advocacy is an dignity treated with and not forced en- group thus excludable —Wusk ex- —and counter promoting individuals a particular plained that either a would group self-identi- political agenda. Id. at 866. Specifically, fy advocacy as group an or he would review (1) parts: Wusk’s only consists two group’s the subjective literature to make a that a “direct benefit” associ- determination about the nature of the ated with the “basic needs” of recipi- welfare (Tr. group’s 137:1-144:6.) work. Despite (2) ents are allowed access to lobby, the and efforts, her best counsel for FAIR could not “advocacy groups” are never allowed access pin down on Wusk clear definitions of either

regardless message position the advo- “advocacy group” or a recipient’s welfare group. cated the “basic needs.” respect former, With to the Wusk testified advocacy that an years, group

Over the Wusk has received numer- “promotes (Tr. one that an requests issue.” ous 137:21- groups seeking from access to 24.) As to needs, welfare lobby. clients’ granted the basic Wusk has requests explained Wusk (1) food, that groups: clothing, four and volunteers who assisted wel- certainly qualify; shelter recipients in the same fare sen- preparation of state and tence, however, he asserted that (2) even returns, federal tax income representa- Lincoln Children’s Museum “addresses a tives Program of the Head Start regis- who psychological need” agen- consistent with his tered children recipients of welfare for the cy’s commitment to “deal with child (3) preschool program, representatives of a trying and promote healthy some fami- food program and nutrition who distributed (Tr. 141:9-17.) lies.” Wusk also stated that (4) recipes, literature and persons and who permit he would not the Red Cross to use registered recipients and GED lobby to distribute information on CPR English-as-a-second-language courses a lo- because his “customers can long live cal community college.2 Wusk specifically healthy (Tr. [lives] without training.” CPR requests turned down for access to lobby 135:22-136:14.) by groups and institutions including a Wes- leyan University class, social work the Lin- January 1995, Stippel telephoned Suzy Commerce, (a coln School Skinner, “Mad Dads” assistant, Wusk’s requested that, Stippel testified Q. addition to the possible listed Is it somebody that could have set groups, she had using lobby seen Girl Scouts up [a table] in the office area at sometime (Tr. of the 81:7.) past. local NDSS office in the 80:23- your knowledge? without court, however, The district credited possible. A. That testimony whereby Wuslt's "specifically he de- Q. you Had known that Girl Scouts want- allowing nied the Girl Scouts access [lob- premises ed to come on the and access clients by] to hand out materials.” purpose soliciting membership, n. 4. testimony Wusk’s actual illustrates you happen? would have allowed matter, poor his memory of this but some also a A. No. problems enforcing inherent in like (Tr. 124:16-125:4.) Wusk’s: Although the district might court have been more A. probably [Wusk:] We have had Girl Scouts accurate had it having characterized Wusk as premises, on the they— but Xdon't believe that denied that giving he remembered ac- up that I recall ever set sign up a table to cess, we do not disturb the finding court’s factual do things. those kinds of We have that the Girl permitted Scouts were never come in bring once in a while and us or come membership distribute materials or solicit in to see the office and do little mini tours and lobby. things, they may but way, have come that but I don’t remember came in and did a table. Thus, lobby was forum. mem- or two FAIR to have one permission activity prohibit- during FAIR’S could be lobby a table in sit at bers repre- lobby February. violating First days ed in the without first three recipi- long as as the talk to welfare Amendment wanted to sentatives suppress and not an effort The written reasonable materials. distribute ents (1) expression opposition a brochure ex- included: materials is, goals, speaker’s group’s views. The court concluded what FAIR plains address; (2) prohibition seeks to the NDSS was reasonable be- policy issues FAIR sought announcing upcoming cause it to maintain the as Valentine’s a flier “Stop dispensed rally capítol place Day the state where social services co-sponsored by opposed place for discussion debate on Poor Children” War (3) FAIR; postcard designed public policy appeals. for wel- on FAIR issues. We repre- recipients to to their elected reverse. fare send of their children names

sentatives II. DISCUSSION fami- to assist urging support measures reviewing getting off After welfare. lies challenge Appellants do not the dis materials, she indicated that did Skinner Rather, findings trict court’s of fact. FAIR any problem be would not think that there challenges legal the district court’s conclu to the matter that would have discuss but she from the sion that FAIR’S exclusion welfare Wusk 890 864-65. with Wusk. lobby Although office was constitutional. we denied the materials and then reviewed findings review the district court’s factual lobby. Wusk request to use the FAIR’S error, 52(a), only for clear Fed.R.Civ.P. provide FAIR not direct that did stated present mixed where the constitutional issues Id. at to clients. benefit NDSS fact, questions of is de law and our review City Angeles, Los 994 novo. Gerritsen v. 1, 1995, despite February Wusk’s deci- of On (9th Cir.) (noting F.2d that review sion, to representatives from FAIR came questions is de novo be First Amendment and to lobby recipients to welfare talk they present questions law mixed cause again in- information. Skinner distribute requiring appellate ap court to and fact permitted it was group that not formed jurispru ply principles of First Amendment conversation, lobby. During this to use the case), specific facts cert. dence announce- FAIR’S Skinner asked whether denied, rally could upcoming be ment about (1993). L.Ed.2d lobby. board in the placed on the bulletin Skinner, subsequently Wusk, through Id. holding that NDSS’s exclusion it allowed to informed FAIR would be lobby con FAIR from welfare office was on the display the announcement bulletin stitutional, heavily relied on the district court provide it a direct did board because office lob that determination After be- recipients. benefit to welfare FAIR, 890 not a forum. ing would not be allowed informed Having F.Supp. at 871. made determi lobby, of the in the all members to remain nation, remaining disposed of the the court causing a voluntarily without dis- left prohibition questions—whether the was rea turbance. suppress and not an effort sonable activity disagreement rights speakers’ due brought pur- civil action this relatively short order. their views—in alleging §§ to 42 U.S.C. 1983 and suant however, constitutionality case, this their First violated the defendants office from the welfare speech and FAIR’S exclusion rights to free free Amendment labeling but on turns not their Fourteenth Amendment association and policy. hold that analysis We protection denying them right equal the First Amend policy on its face violates groups had where other access to least-exacting reason activity. under even the in similar ment engage been allowed nonpublie fo applicable to in ableness standard hearing, decided After a the district court Perry Local Perry Educ. Ass’n v. held that rums. of the defendants. court favor Ass’n, 37, 45-46, Educators’ gives them the tools to par- understand and 948, 954-55, (1983) (de 74 L.Ed.2d 794 ticipate legislative process per- as it lineating categories three property tains to welfare reform. Both category’s each corresponding standard benefit to recipients, and both are review). The welfare office is un motivated a desire to improve the basic reasonable because it permits state officials living conditions of privileged the least in our apply impermissibly vague criteria to dis society. Moreover, both are arguably advo- tinguish persons between seeking cacy groups in “promote both issues.” engage activity lobby. application We discuss to other Legal See NAACP & Educ. Fund v. Defense groups not to imply that Wusk committed (D.D.C. Campbell, any particular error, but highlight instead to 1981) (holding requirement that a that a that the necessarily requires arbitrary charity provide “direct vague services” is too drawing line yields inconsistent results. a basis on which distinguish between governmental If a policy restricts participation in a federally-spon protected expressive conduct, will with sored, fund-raising campaign). Therefore, scrutiny only stand constitutional if it is clear we reverse court engag without and consistently applied. Legal NAACP De ing in an analysis exhaustive forum and leave & Educ. Fund Campbell, fense question of whether welfare office F.Supp. at particular policies Two un public ais forum for day. another vagueness (1) derlie this doctrine: the need Airport Jesus, Comm’rs v. Jews For 482 U.S. for notice informing subject those policy to a 569, 573-74, 2568, 107 2571-72, S.Ct. 96 (2) meaning, and providing officials (1987) L.Ed.2d 500 (holding it unnecessary to explicit guidelines to arbitrary avoid public reach question forum where discriminatory enforcement. Id. The state prohibiting all First Amendment activities in policy fails on both counts. The fails airport facially unconstitutional under give adequate notice and confers a virtual doctrine); overbreadth Lebron v. National ly power unrestrained on authorities to de R.R. Passenger Corp. (AMTRAK), 74 F.3d cide whether a group provides 371, (2d a benefit Cir.1995) (C.J. 372 Newman, dissent recipients. welfare Airport (“[N]o ing) Comm’rs v. matter what the scope of Cf. Jesus, Jews For 482 U.S. at S.Ct. at governmental entity violates the (“The opportunity abuse, especially First Amendment it when bars display of where a statute has political virtually received a open- messages pursuant to a ‘policy’that interpretation, self-evident.”) (cita ended is vague, unwritten, [is] unclear to those who tions it, must administer and inconsistently ap plied.”), denying reh’g and amending, Le dangers The vague standard are all AMTRAK, (2d bron v. Cir.1995). 69 F.3d 650 heightened where, the more here, a group essential, engage The seeks expressive in core interrelated terms of conduct protected benefit,” by the First needs,” “basic Amendment. —“direct “advocacy Supreme group” recently Court neither self-defining observed that —are nor “handing out policy. defined On leaflets contrary, advocacy of a politically terms are elastic. As controversial viewpoint demonstrated is [] Wusk’s testimony, own is essence of difficult First expression.” Amendment define — nearly impossible McIntyre terms Comm’n, v. apply Ohio Elections them consistently. -, -, disagree U.S. 1511, 1519, We with the S.Ct. dissent’s (1995); contention that Wusk’s L.Ed.2d 426 see Albany has also Welfare been consistently Rights interpreted Org. and applied, Wyman, (2nd 493 F.2d 1319 Dissenting Op., Cir.), denied, example, 838, For cert. 66, U.S. infra we see bright-line no basis for a (1974) distinction L.Ed.2d 64 (holding that blanket between Head Start —a provides that denial to rights organization welfare request- preschool education and oppor- ing socialization to hand out leaflets at welfare office poor tunities for children —and Amendment). FAIR —a violated First FAIR is a group that educates recipients grass-roots organization designed to empow- arbitrary dis- potential in- substantial their facilitate recipients and er It follows that end, criminatory application. To reform. in welfare volvement First Amendment policy cannot withstand to wel- information FAIR wants Therefore, reverse the decision we scrutiny. welfare- current about the recipients fare court. impacts possible about debate reform It is well changes. legislative proposed MAGILL, dissenting. Judge, Circuit that: established I conclude Because respectfully dissent. [djiseussion ... inte [is] issues of Social Ser- Department system Nebraska operation gral (NDSS) County local office’s Constitu vices’ Lancaster our established government by outside activities policy on Amendment affords First tion. The unconstitutionally vague, and ex to such protection broadest correctly determined district court unfet that the [the] “to assure in order pression (1) office is not a bringing the NDSS for the interchange of ideas tered (2) expres- forum; regulation of NDSS’s changes de social political and about of reasonable; and in the office is v. United sive conduct Roth people.” sired (3) Families Achiev- prohibition on the NDSS States, S.Ct. [77 (FAIR) (1957). Respect’s ef- Although ing Independence and 1498] 1 L.Ed.2d captive position their advocate protections are forts to First Amendment by opposition to ideas,” motivated was not Win exposition audience to “the confined affirm the district York, viewpoint, I would [68 their New ters v. (1948), “there court. 840] 92 L.Ed. agreement practically universal I. towas the Amendment major purpose governmen discussion protect the free month, days of each During first five the Alabama, 384 Mills tal affairs....” Nebraska, Lincoln, in office the NDSS 214, 218 [86 U.S. stamps are busy food “especially (1966). than This no more 484] L.Ed.2d coun 1,920 ‘over the to households issued ” national commit “profound our reflects Dep’t Social FAIR v. Nebraska ter.’ debate on principle the ment to (D.Neb.1995). Servs., robust, uninhibited, be should issues high-traffic in a congestion such To limit “ Sullivan, Times v. New York wide-open.” recipients] with [welfare to ‘treat area and L.Ed.2d 84 S.Ct. customers NDSS not force dignity and (1964). particular promoting individuals encounter — in order to obtain of view point at-, McIntyre, Trial life,” (quoting at 866 id. necessities of the state’s vagueness The at 1518-19. Wusk, administra 119-20), Daryl atTr. in problematic view particularly policy is “general office, created tor of the NDSS prevent policy used was the fact that area waiting/reception keeping the policy of speech. engaging core FAIR from Id. at 865. closed.” office] NDSS [of the by the used By rejecting approach provided that policy This its access to to control NDSS office local (a) regardless “advocacy groups,” restrictions preclude all lobby, do not we with disagreed agreed or Wusk whether lobby. The office its welfare the use of allowed never were message, group’s all forms permit need not government for waiting/reception area to the access or controls. it owns property that speech on (b) only groups purposes; and advocacy right, well as Certainly agency has benefit” associated a “direct provided fraud, from its duty, protect clients of our customers” needs the “basic Safety harassment, annoyance. undue waiting/recep- to the access allowed were legitimate present over-crowding also tion area. poli- Although the concerns. administrative omitted; (citations to record well-intended, Id. at 865-66 may be cy under consideration applied A similar note vague creates standards its boards bulletin located the office. speaker’s viewpoint, see id. at 877. id. at 866-67. court, The district finding that “neither the unwritten nature that, district court found nor the sub- “[o]ver the stance years, four itself groups had Wusk or been afforded allowed anyone overly else waiting/reeeption access broad discretion in area in order viola- Amendment,” tion of to hand out the First materials to welfare id. at 875 n. recipients.” Id. at groups provided These held that plaintiffs’ neither nutrition First information, registration equal Amendment protection GED nor rights and ESL had courses, adult registration education been violated. Id. at in Head 877-78. Start prekindergarten classes, and volunteer assistance with state and federal tax forms.3 II. contrast, By groups, such as social case, In this classes, court

work served as right-to-life groups, and “Mad fact, the finder of (a and this group Dads” Court reviews which belonged Wusk to and findings only these for clear supported) otherwise error. See Fed. consistently were de- 52(a). Throughout R.Civ.P. opinion, nied to the office. how- ever, the majority second-guesses the facts In January sought access to found attempts the office to upcoming advertise an rally at draw its own factual conclusions from the eapitol. Nebraska state record in this case initially without finding registered had lobbyist been a State clear error. For example, in describing Nebraska and had allied itself with various Start, Head organizations one of the allowed organizations, including the Nebraska Wom- office, use Majority de- Network, en’s Political Organi- National clares: Women, zation of and the Nebraska Demo- Women, cratic we see bright-line no basis sponsoring rally distinction strong, unified, “show between grassroots Head group Start —a pro- opposition preschool vides destruction of our education and safety nation’s social socialization opportunities net.” poor Pl.Ex. 5. FAIR was denied children —and access to group FAIR —a NDSS office’s lobby and bulletin educates welfare re- boards cipients gives because it was an advocacy them the tools to which did under- stand and participate offer a direct legislative pro- benefit associated with a pertains basic as it recipients. of welfare cess need welfare reform. Both provide a benefit to welfare recipients, and brought an initial action in the dis- both are by motivated a improve desire to trict court for temporary injunctive relief, the living basic conditions of the priv- least denied, which was action, and the instant ileged society. our Moreover, both are seeking damages and permanent injunctive arguably advocacy groups in that both Following relief. hearing, a the district court “promote issues.” denied relief. thoughtful and well- written opinion, memorandum the Maj.Op. district at 1080. I frankly am by confused that, court determined under several compet- majority’s inability to distinguish be- ing Supreme tests, Court the NDSS office a tween advocacy organization and a was not a FAIR, forum. See preschool class: the first attempts to secure Because of this political goals crucial de- by campaigning and outreach termination, the policy limiting expressive efforts, while the other teaches infants their conduct in the upheld office could be if it was majority ABCs. The assumes that FAIR “reasonable,” see id. at if policy and provides a benefit to recipients, but was effort an on discriminate the basis the district court did not make finding this 3. The bulletin boards contained re- memberships Museum, information to the Lincoln Children’s nutrition, garding health, housing, Head Start “Tele-Care,” and enrollment in a service offered registration, assistance, volunteer “parent's tax a by Hospital the Lincoln partic- General to ensure YWCA, center" at employment employ- and ipants’ well-being daily on a basis. Def. Ex. training ment opportunities, free stoves from a company, rent-to-own free family admissions or III. trial assertion Beyond a witness’s fact. “educational,” see were efforts FAIR’S that declining to address whether majority, The Walker) (“[i]f (Testimony of Trial Tr. at not, is, a office or is lobby of the NDSS recipients] notify [welfare them did not we the office’s unwritten declares it”), can I about rally, they not know facially vague, to be and therefore support such a in the record nothing find “essential, unconstitutional, in- mo- majority assigns similar The conclusion. bene- terms FAIR, terrelated yet this and to Head Start tivations —‘direct needs,’ ‘advocacy group’ fit,’ goals is ‘basic found of Head Start’s description —are poli- record; self-defining defined I must assume nor neither nowhere (from (describ- judicial notice taking also id. majority cy.” Maj.Op. at 1080. See uncertain) source, “elastic”). facts which disagree.4 I am I ing what terms as these The dis- trial. at the not in evidence were policy is unwrit office’s the NDSS While comparison court, considering FAIR’S trict ten, is not committed fact that “[t]he allowed of itself First writing not of itself constitute does “fac- office, comparison such a found violation,” v. National Lebron Amendment unfounded,” F.Supp. at 872. tually (AMTRAK), F.3d Corp. Passenger R.R. “argu- finding and majority ignores this (2d Cir.1995), amended on opinion is, like Start ably” concludes Head reh’g, Lebron II, so 74 F.3d at denial There is not advocacy group. an “by explicit ‘well- policy is support long made record scintilla of evidence City however, accordingly practice.’” (quoting conclusion, established this Co., Publishing v. Plain Dealer reject it. Lakewood 750, 770, addition, states majority (1988)). As noted L.Ed.2d organization an analysis of whether Wusk’s court, “subjective advocacy group was an was Maj.Op. at 1078. Whether determination.” practical reason little or no was there subjective or on decisions based his Wusk defendants) (or write the other Wusk fact, and question is a objective criteria clear regulation since the was majority was finding made generally the forum was simple: In addition district court. made recipients.... except to welfare closed dis- fact-finding function of the usurping the an policy contained the extent that [T]o assertion majority this makes trict exception groups, the for outside exception Wusk testified evidentiary support. without limited, too was clear quite was usually based that his determination a “di- provided simple: advocacy as an group’s self-identification “basic with the associated benefit” rect clearly Tr. group, see Trial ac- allowed customers” were of our needs attempted Wusk objective criteria. When forum. cess to the objective of “advoca- definition an him, and attorney interrupted cy,” FAIR’S FAIR, n. 14. F.Supp. 875 890 at people. stated, care about “I don’t vague- that, survive “[t]o held advocacy We have you define how to know want give must policy] challenge, [or a statute ness Id. group.” undisseminated, unwritten, un- vague, is to be this concluding policy the case that In it, and administer must dissenting opin to those who clear majority the vague, relied on the applied. inconsistently Passenger Corp. National R.R. in Lebron v. ion (AMTRAK), case, that, added). Cir.1995) no 371, (2d (emphasis I note this 372-73 74 F.3d the C.J., findings, with (Newman, these dissenting), de has (Lebrón II) of facts made cert. finder 1675, policy unwritten. -U.S.-, was nied, exception 134 that L.Ed.2d sole Indeed, 116 S.Ct. argu- rejected FAIR’S (1996), argued court that: 778 which FAIR, ambiguous, see was that the ment scope what no matter 14, that F.Supp. and found instead 875 n. 890 entity the First Amend- governmental violates simple.” See also Id. clear and messages "was political display of it bars ment when applications (describing only consistent by a id. at 866 'policy' has been pursuant that found policy). evidentiary support, fact-finder, with abundant 1084 person ordinary intelligence give a reason adequate high notice that standards of opportunity prohibited

able to know what is required”). conduct are provide explicit standards for those who Under principles these of common sense apply the statute.” United States v. Dinwid interpretation practice, and well-established die, (8th Cir.1996) (quoting 76 F.3d 924 NDSS office’s meets the standard Webster, Dealers Video Ass’n Software set forth in Dinwiddie. The definition of an (8th Cir.1992)). examining F.2d “advocacy Wusk, group” provided vagueness, the terms of a rule for the Su issue,” “promotes which Trial Tr. preme Court has noted that Wusk), (Testimony of states the common English there are limitations in the lan- sense, lay See, understanding of the term. respect being guage specific both e.g., Webster’s II University New Riverside brief, manageably and it seems to us (1984) Dictionary (defining “advocacy” as although prohibitions [here] support, cause”); “[a]ctive as of a Webster’s satisfy finding those on intent fault at (1986) Ninth New Collegiate Dictionary 59 cost, any are set out terms that the (defining “advocacy” process as “the act or ordinary person exercising ordinary com- advocating: support”).5 phrase That this is sufficiently mon sense can understand and sufficiently concise demonstrated with, comply without sacrifice to the consistency with which it interpreted: was interest. there no presented any evidence Carriers, 548, 578-79, CSC v. Letter 413 U.S. allowed to use the NDSS office 2880, 2897, (1973) 93 S.Ct. 37 L.Ed.2d 796 attempted promote causes, just issues or (upholding employees’ restrictions federal as there was no credible evidence that FAIR activities). political See also Cornerstone Bi- anything intended to do else.6 City ble Church v. Hastings, 948 F.2d (8th Cir.1991) (rejecting 473-74 argument noted, As the district court impermissibly ordinance was vague simple.” is “clear and failing “church,” club,” “private define benefit,” 875 n. 14. A “direct under the activity”); Caudell, “economic Tindle v. parameters policy, requires that a cf. (8th Cir.1995) (“the F.3d ability to good service, concrete or including education- hypothetical conceive of problematic applica- al or employment opportunities, go directly tions does not render susceptible the rules recipients welfare and their families. Un- an over-breadth challenge”) (noting that der practice, only consistent precisely rules did “not define offering what goods, such tangible educational or would impermissible constitute conduct” employment opportunities, or volunteer ser- were vague “they nevertheless not directly vices recipients to or their addition, Legal Cornelius v. NAACP & Educ. registered lobbyist, FAIR has been a Defense Fund, 788, 811-12, has major political allied itself with one of the 3453-54, (1985), Supreme L.Ed.2d 567 parties, self-proclaims purpose of its difficulty Court had no comprehending "give existence is to pro- low-income families a meaning parameters phrase. or of this The active pro- voice in Nebraska’s Welfare Reform Court, considering argument that “a decision gram,” sought Pl.Ex. post- to distribute advocacy groups, exclude regardless all cards for NDSS clients to send to Nebraska orientation, philosophical defini- legislators. at 862-63. neutral," viewpoint tion accept that "we stated postcards specific political contained re- validity justifica- reasonableness quests reform, regarding including government] tions offered excluding [the "Please —no limit lifetime that will add to home- advocacy groups." (remanding for a factual orphanages just lessness. Please—no because viewpoint determination of whether discrimina- poor. we are baby penalties Please—no new place). point tion had taken noAt did the Su- (family caps). punish Don't us because we are preme "advocacy Court declare the group” term parents (em- poor.” bom and our are Pl.Ex. 6 vague to be or overbroad. phasis original). compare political in To FAIR'S majority 6. The does not contend that FAIR was advocacy "with expressive activity intended to advocacy group, an not and under a common provide preparation on meal information the definition, sense FAIR be must considered as like," FAIR, 872, is, by at as noted argument, such. At oral acknowledged FAIR court, "factually unfounded.” changes that it legislation. advocated for in not separately, are phrases, taken These lob- to access the have been allowed families con- they are even so when vague, less by.7 whole, purpose of light in as a sidered vagueness or no perceive Finally, I can in context of a welfare policy and the the “basic needs.” phrase in the ambiguity office neither “formulates The NDSS office. testimony the materi- Wusk, through his public policy,” or debates board, pro- bulletin for the approved als he range of provides “a broad rather but needs: of these basic examples specific vided pur- recipients,” id. The welfare services to shelter, nutrition, edu- clothing, employment, the num- policy was to minimize assistance, pose of “the adults, tax children and cation for the [to office] access allowed bers appliances. Rather household and essential (quotations poli- possible,” as id. at misapplied the as much arguing that NDSS than omitted), in order to that FAIR to record suggesting and citations ease or cy in this need, major- basic and to ensure any comparable congestion limit meets applica- in erred clients ity implies dignified Wusk treatment of NDSS considering oppor- policy encounter “forc[ing] tions customers to Lincoln Children’s by the provided particular political promoting tunities individuals in meeting a basic need and as Museum the necessi- in point of order obtain view that, example, hypothetical concluding as a life,” circum- these id. at 866. Under ties 1079. Maj.Op. training not. See did CPR stances, are suffi- clauses Wusk, assistance a welfare I believe well-defined, ciently as is demonstrated decades over two provider with service policy has consistency with which notion of may have a better well experience, Supreme must echo been applied. Nebraska need” for a “basic constitutes what concluding provisions Court panel of feder- does a recipients than “may satisfy those policy, while this (Testimony of Tr. at 133 judges. Trial See al cost, they any finding fault at intent on Wusk) muse- visiting children’s (stating that ordinary person out in terms set some of to deal with “allows families um ordinary sense can suffi- common exercising on, in- and low maybe going that is stress with, without comply ciently understand opportu- very, very few [have] families come Letter Car- interest.” sacrifice to advantage some to take nities sometimes riers, at 2897. way things, and this is the cultural of those it”). City Unem New York that we do Cf. ployed & IV. Council Brezenoff Welfare Cir.1984) (Welfare (2d agency F.2d vague, it is policy is not the NDSS Because managing wel- experience much more “has whether, applied, necessary to determine and must be courts have offices than the fare agree IWhile unconstitutional. determining what given some discretion majority that court with the district them.”). further best to are and how interests con- engage FAIR wished event, whether disagreement over any First protected generally duct children allowing impoverished begins Amendment, this determination psychologi- a basic museum meets children’s Amendment analysis the First of whether hardly renders need cal or educational policy.8 office's by the NDSS was violated policy vague. scrutiny heightened contrast, suggest that a standard any not wish to By did FAIR apply to NDSS’s recipi- should products to the welfare of services or sort ents, Maj.Op. speech.” See engage in "core employees. wished to them as to hire nor did wish however, not involve McIntyre, did Rather, supply at 1080-81. these FAIR wished forum, nonpublic speech regulation of in a opinions, political and with recipients with anonymous lobbying general prohibition on second-party but rather opportunity to act as McIntyre,-U.S. advertisements. arm of FAIR. n. 3 115 S.Ct. at 1514-15 n. at- - - statute). "core nonpublic In a (quoting declining analyze in- Although the forum prohibited, so regulated, case, speech" be citing majority, McIn- volved in this and view Comm'n,-U.S.-, regulation long is reasonable as the 115 tyre v. Ohio Elections See, Spock, 424 U.S. e.g., (1995), Greer 1511, point to neutral. 426 seems 131 L.Ed.2d S.Ct. 1086

It that the speakers is fundamental “existence of a cannot be excluded without a com- interest.”). right public property pelling governmental to access and the by upon standard limitations which such a category fora, The third nonpublic right depending must be evaluated differ on forum, consists of all public property. property the character of the at issue.” Per- Lee, 678-79, 505 at U.S. 112 S.Ct. ry Perry Educ. Ass’n v. Local Educators’ 2705-06. “Public property by which is not Ass’n, 37, 44, 948, 954, 460 U.S. 103 S.Ct. 74 designation tradition or public a forum for (1983). Perry, L.Ed.2d 794 In Supreme governed by communication is different stan- categories public Court described three Perry, 46, dards.” 460 U.S. at 103 S.Ct. at fora, public fora. In traditional such 955. These recognition as standards reflect the parks, expressive rights streets and receive protection: greatest degree the First guarantee Amendment does not property simply access to because it is places by long by which tradition or owned or government. controlled government fiat have been devoted to as- time, In addition place, and manner debate, sembly rights of the State regulations, State.may reserve the fo- expressive activity sharply limit are cir- rum for its purposes, intended communica- forums, public cumscribed.... [In] otherwise, long tive or regulation as the government may prohibit all communi- speech on is reasonable and not an effort activity. cative For the State to enforce a suppress expression merely because content-based exclusion it must show that public oppose speaker’s officials view. necessary to serve a com- occasions, As we have stated on several pelling state interest and that it is narrow- State, no private less than a owner of ly drawn to achieve that end. The State property, power preserve has prop- regulations time, also enforce erty under its control for the use which place, expression and manner of which are lawfully it is dedicated. content-neutral, narrowly tailored to 46, Id. at (quotations S.Ct. at 955 significant government interest, serve a omitted). Cornelius, citations See also open ample and leave alternative channels 799-800, U.S. at 105 S.Ct. at (“Nothing of communication. requires the Constitution the Government freely grant (citations

Id. at to all who 103 S.Ct. at wish to 954-55 omit ted). right exercise speech their every free Soc’y See also International Krish type property of Government Consciousness, regard Lee, na without Inc. v. 505 U.S. property nature of the 678-79, or to 2705-06, the dis- 120 L.Ed.2d ruption that (1992) might speak- be caused fora). (describing categories of activities.”); er’s Spock, Greer v. category fora, The second designated 828, 836, 1211, 1216-17, 96 S.Ct. L.Ed.2d public public “consists of property (1976) (“The guarantees of the First opened the State has for use Amendment have people never public meant place as a activity.” propagandize who want to protests or views Perry, U.S. 103 S.Ct. at 955. So right have constitutional to do so whenever long as the state maintains a forum that is and however please.”) wherever generally open public, it is “bound (quotations and citation the same apply standards as in a traditional forum,” public distinguishing id. at S.Ct. at between a traditional public prohibition designated fora, public “content-based must be narrow Court ly explained drawn to Lee compelling effectuate a that a state traditional interest,” Cornelius, id. forum has See also (“[W]hen 105 S.Ct. at 3448 immemorially the Govern been held in trust for the intentionally ment designated has place public and, mind, use time out of means of communication as a forum been purposes [has] used for assembly, 828, 838, 1211, 1217, right 47 L.Ed.2d 505 speeches to make or distribute

(1976) (there generalized forum). is “no nonpublic constitutional leaflets at” a

1087 forum”), citizens, public agree. a traditional and I thoughts communicating between questions.... presented discussing public [A] There was no evidence and property that public forum is traditionally traditional for NDSS office has been used purpose ... the free principal and, a public expression having has as rather than as exchange of ideas. principal purpose exchange a the free of ideas, the NDSS office is used distribute 679, 112 (quotations at 2706 505 U.S. at S.Ct. range recipi- “a of services to welfare contrast, broad desig By a citations FAIR, F.Supp. at 863. ents.” 890 public property where public nated forum intentionally dis government allows Nor office been has NDSS intentional- The Lee Court explained that course. ly opened public discourse. There was no govern- notion that the consistent with the presented evidence that the office has NDSS property owners —has ment —like a of free for activi- property under its power preserve Rather, ties. as found the district lawfully to which it is control for the use “policy opening NDSS’s was to resist dedicated, create government does not waiting/reception ‘up for the area world.’ public by inaction. Nor is a public forum fact, Tr. at was to [Trial 120.] whenever members forum created groups’ ‘minimize the allowed numbers place permitted freely to visit a public are possible.’ access ‘as much as Tr. at [Trial operated the Government. owned or FAIR, F.Supp. at 871. FAIR 150-51.]” public forum must The decision to create contends, however, allowing groups by intentionally opening a be made instead Head to distribute materials at the like Start public dis- nontraditional forum office, necessarily designat- created a NDSS property ... also [T]he course. location public disagree. forum. I ed separation from ac- bearing because has to indi- knowledged public areas serve practice allowing speech some ac “[A] spe- separated property is a cate that the [government] property do[es] tivities on enclave, subject greater restriction. cial up [government] add to the dedication (citations 679-80, 112 Id. at 2706 S.Ct. activities.” United States property speech omitted).9 quotations Kokinda, 3115, 720, 497 U.S. (1990) (plurality opin 111 L.Ed.2d 571 contend that the NDSS FAIR does not ion). only groups access to the forum, allowed see public Appel- is a traditional office office, NDSS, “tj]ust provided like ... agree (“plaintiffs Br. lant’s at 31 recipients.” County services to welfare lobby Office of the basic social of the Lancaster FAIR, F.Supp. “govern- at 871.10 Where Department of Public Services Nebraska MBTA, 42 airport e.g., Mass. v. is not a tradition- AIDS Action Comm. 9. Lee held that a (1st Cir.1994) (describing designated public upheld a ban "the relative al or F.3d 683, 685, doctrine”); ly murky on solicitation. See 505 U.S. at forum status of the Soc’y Serv., Lee v. International S.Ct. at 2709. In F.2d v. United States Postal Jacobsen Consciousness, Inc., that, (9th 1992) (noting Krishna n. 2 Cir. 2709, 2710, decisions, L.Ed.2d 669 juris the Lee and Lee II "the result of prudence II), (1992) curiam) (Lee companion (per case muddied”). quite I in this area is now Lee, that a ban on the distribu- the Court held believe, however, duplica that the district court’s airport of literature in the was nevertheless tion unconstitutional, unnecessary. Chief Justice tion of effort was relied reference on vari- Lee, clearly Rehnquist's opinion set out Lee, dissenting opinions concurring ous analysis, commanded the mechanics forum majority's disagreed forum which had Court, way majority Lee in no II analysis. this, companion case. Because overruled case, the instant the district court undertook majority only apply test from Lee. will analysis enunciat- of the forum under tests testimony While at trial there was some principle by majority in Lee as well as the ed concurrence, before, had, years group Girl Scouts several that the result—that and concluded in a NDSS office when it was housed used the nonpublic office was a the NDSS local (Testimony budding, Tr. at 82 different see Trial both. See forum—was the same under Stippel), court that "Wusk found of specifically agree at 868-74. I with the allowing the Girl Scouts ac- denied achieve the identical court that either test would result, waiting/reception to hand out area cess to agree could have and I that the Court See, 4. The at 866 n. materials.” its directives in this area. been clearer in 1088 Kokinda, 730, property open is not dedicated to com-

ment U.S. at 110 S.Ct. at 3121- omitted; (quotations empha- may and citations government munication —without original). Perry, in sis See also at justification use to those further —restrict 49, (“Implicit concept at 957 in participate who in the forum’s official busi- nonpublic right of the forum is the to make Perry, at ness.” 460 U.S. 103 S.Ct. at subject distinctions access on the basis of (note omitted).11 “providers Because the speaker identity. matter and These distinc- of information on nutrition and the like were impermissible public tions in a be forum agreement participating with the of welfare inescapable pro- but are inherent officials in the welfare official busi- office’s limiting nonpublic cess forum to activi- provision ness—the of basic social services to compatible ties purpose with the intended recipients ... property the use of the property. evaluating The touchstone for by county agen- such as the extension these distinctions is whether are reason- cy providing nutritional information does not light purpose able of the which the forum property public transform the into a forum.” serves.”). “[cjonsider- addition, at issue In at 872. I must therefore special ation of a forum’s attributes is rele- agree with the district court that the NDSS constitutionality vant regulation of a designated public not a office was forum. significance governmental since the of the light interest must be assessed in of the par- characteristic nature and function of the V. Kokinda, ticular forum involved.” 497 U.S. Because the NDSS office was neither (quotations 110 S.Ct. at 3122 public designated traditional forum nor a citations forum,

public A. analyzed issue must be under the standards nonpublie set forth for NDSS office’s this ease is fora: It must be reasonable and not an clearly reasonable. The official business of suppress expression merely effort to be- provide the NDSS office is to services to public oppose speaker’s cause officials recipients. Indeed, view. control over access to a light business, at 872. In of this official it is nonpublie subject forum can be based on reasonable NDSS to allow access to the speaker identity long matter and so as the office to which direct benefits distinctions drawn light are reasonable in needs, recipients’ meet welfare basic purpose served the forum and because this allows to fulfill its mis viewpoint neutral. The Government’s sion. It is also reasonable for NDSS to nonpublic decision to restrict access to prohibit groups, all other reasonable; only forum need be it need not Lee, prevents congestion. this Cf. be the most 683-84, (restriction reasonable or the reason- 112 S.Ct. at 2708 on able limitation. solicitation it reasonable because limits dis- majority, criticizing while speakers see The fact that other civilian and enter- Maj.Op. at 1078 n. fails to appear discern clear error tainers had sometimes been invited to finding. government in this Because “[t]he does at Fort Dix did itself serve to convert public not create a forum inaction or upon Fort Dix into a forum or to confer permitting discourse, only by limited but inten- candidates a First or Fifth Amend- tionally opening pub- a nontraditional forum for right campaigns ment to conduct their there. discourse,” Cornelius, lic 473 U.S. at military The decision of the authorities that a alleged presence S.Ct. at abuse, of the Girl drug religious civilian lecture on ser- largely analysis. Scouts is irrelevant to this by visiting preacher chapel, vice at the base supportive or a rock musical concert would be Greer, Supreme military Court that a surely held mili- mission of Fort Dix did tary designated public base was not a powerless not leave the authorities thereafter prohibition political campaigning that a prevent any on entering on civilian from Fort Dix reaching the base sion, speak any subject was reasonable. this deci- whatever. explained: the Court 424 U.S. at 838 n. 96 S.Ct. at 1217 n. 10. expres- pitiful captive most audiences in our coun- Similarly, prohibition ruption).12 try. by advocacy groups is also activities sive individuals —some of whom need

reasonable; govern- These “position as a NDSS’s protective im- services because of mental facility, financed ment controlled pairments, all of whom need state people, daily by ma[kes] thousands of used assistance for some or all of the necessities avoid the criticism and highly advisable to peculiarly susceptible of life —are to coer- allowing any display of embarrassments overt, cion, regarding, whether subtle or Lebrón, seeming any political view.” to favor among things, public-policy other issues. (upholding AMTRAK’s re- F.3d at 658 This is of the welfare true both because political advertisements as rea- striction on recipients’ in unfortunate stations life and sonable).13 Finally, prohibition on NDSS’s captive nature of their at- advocacy groups also reasonable as an is at office. tendance the welfare dignity clients with effort to treat NDSS FAIR, F.Supp. (quotations at 873-74 coercion. As found prevent their Brezenoff, 742 citation See also court, (welfare “may recipients F.2d at 722 well be case, waiting/reception area In this susceptible misrepresen- peculiarly to verbal underprivi- filled with some of the most is tations, noisy whether because society seeking from leged in benefits our atmosphere [a office] crowded of welfare lob- of for the most basic necessities the state barriers, misperceived by, language or even waiting/reception areas [T]hese life.... anything necessary to need to do ensure public but receipt or limited forums or to lessen the are of welfare cheeks office]”).14 are, indeed, in holding [the stations for the wait but Stippel engaged testified that when she the conditions of the NDSS 12. Wusk described office, activity proposed expressive congestion: [FAIR’s] on the the concerns over building sidewalk in front of the where NDSS people large groups differ- have at We also situated, “problems” she encountered during the month. The first five ent times somebody gave when “we the information usually working days very In the are hectic. side,” agree in turn that didn’t with our which instance, working days, for first March, three "heavy [Trial 89.] Tr. at caused discussions.” issued to about we over-the-counter provision It that the of infor- is inconceivable 1,920 one households. That's for sure at least recipes, to fill out tax form mation about how individual, just by many people but don’t come 1040-EZ, register prekinder- for a or how to children, [themjselves. they They come with "prob- garten program cause a or GED would other, they may may significant come with a "heavy involving lem” discussion.” 1,920 grandparent and so the come with really magnified by many oth- [households are] Also, days' people. we do business on those er preserve regarding the need to 14.Wusk testified business, quarterly meaning that we do ... dignity of clients: NDSS reviews, reviews, reviews, yearly de- six-month Department of program you’re come to the pending in and how When customers on what apply or ongoing for ADC food you're basis, up. Social Services set These continue on Medicaid, County, stamps in Lancaster plus applicants or we have new that walk least, they We are the wanting apply no other choice. daily for food have on a basis types of services. programs, office that offers those stamps or one of the other or ADC area, very applications few external high we have We do becomes a traffic so so it come, they really those folks [local office]. So when and said we are not want- taken a look really captive believe that up audience. We ing open for the world. dignily them with and treat we need to treat at 120. Trial Tr. require, respect, within and I can them with that, and, fact, office, my I totally my to do engage staff in a different 13. FAIR intended exception mandatory. is no activity practiced make it There 1ype than that come, they they When believe the NDSS office. that. allowed access to —that court, expectations type have our customers the district “one As found through large group go pub- have to persuade should not speech intended to on issues is wanting give people [sitting] them informa- convey policy, while the other is intended to lic very spe- they usually totally come tion because on basic human needs factual information food, I need I need reasons in mind. public policy.” cific shelter, unrelated to medical, clothing, I need types speech I need different could at 872. These have, put large groups other when we start to different as noted offering and those literature in there impacts office: on the NDSS speech legitimate, of NDSS’s we have observed reasonableness between, hand, supported because there are “sub- further distinction on the one con- discrimination, stantial alternative channels remain permis- tent be message. open” to FAIR to disseminate its preserves purposes sible if it of that Perry, 460 U.S. at 103 S.Ct. forum, and, hand, limited on the other FAIR has access to the sidewalks outside of discrimination, pre- viewpoint which is office, building housing the NDSS see impermissible sumed when directed as well against speech within the fo- otherwise Although FAIR fora. would undoubt- rum’s limitations. edly prefer opportunities presented by a Rosenberger v. Rector & Visitors Univ. office, captive “[t]he audience —Va., -, -, First Amendment does not demand unre- (1995). 2517, 132 L.Ed.2d 700 nonpublic merely stricted access to forum policy The NDSS allowed activ- of that because use forum be the most provided meeting ities which a direct benefit delivering speaker’s efficient means recipients’ basic needs. The content Cornelius, message.” at message political advocacy of FAIR’S —a S.Ct. type speech policy. not allowed NDSS’s viewpoint Because FAIR’S was irrelevant to B. the decision to disallow its access to the There is no clear in error the district office, viewpoint no NDSS there was discrim- finding court’s NDSS’s “is not an ination. Because the NDSS is other- suppress activity speaker’s effort to due reasonable, wise does not violate disagreement speaker’s to with the view.” the First Amendment.15 Lee, (quoting 2705). U.S. at S.Ct. at As noted VI. court, the district Because has no First Amendment The evidence establishes without contra- office, right equal access the NDSS diction that Wusk enforced the protection argument fail must unless FAIR regard agreed without to whether he similarly can show that it is situated those disagreed message speaker. with the Perry, allowed access. See fact, Tr. at [Trial 134.] the evidence at 959-60. Because 54 — regula- establishes that Wusk enforced the advocacy group FAIR is an which does not against belonged tion he to and provide a direct benefit which meets welfare supported. Tr. at [Trial 140.] needs, recipients’ similarly basic it is not policy’s prohibition Id. While the situated to those allowed access access to the NDSS office outside advoca- the NDSS office. NDSS has therefore cy groups distinguish does on the basis right equal protection violated FAIR’S content, message synonymous this is not this case. viewpoint Supreme discrimination. Court has held that VII. determining acting whether the State preserve nonpublic the limits of the forum it has Because the NDSS office is so that the policy regulating expressive

created exclusion of a class of and the things, easy infringe my entirely kinds of it's on most devoted to social-service notices. rights. (Ex. 1, customers’ Hr’g (photos)). Consequently, Prelim. Trial Tr. at 119-20. they request, if honored Plaintiffs’ Defendants undoubtedly [NDSS] would be confronted with Similarly, NDSS’s restrictions on FAIR’Sac- requests by advocacy groups, similar re- cess to the NDSS office's bulletin boards was favoritism, sulting lurking ... doubts about court, reasonable. As found the district sticky problems parcel- administrative space The fact is that on the bulletin boards is ing space eager politicians. out limited quite limited as [Trial are small. Tr. at (quotations at 876 & citation Indeed, photos 132.] introduced into evidence, space appears the bulletin-board al- reasonable, office is activities in the NDSS viewpoint, vague, and not I

not based reversing affirm the district court.

would court, majority usurped has fact-finding function of the district law, opened nonpublic

misapplied the large. world at dissent.

forum the STOEBNER, R. Trustee of the

John Morgan,

Bankruptcy Estate of T.G.

Inc., Plaintiff-Appellant,

PARRY, MURRAY, MOXLEY, WARD &

formerly Parry, Murray, known as Ward Cannon, Defendant-Appellee.

&

No. 95-2662. Appeals, Court of

United States

Eighth Circuit. Feb.

Submitted July

Decided

Case Details

Case Name: Families Achieving Independence & Respect v. Nebraska Department of Social Services

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jul 31, 1996

Citation: 91 F.3d 1076

Docket Number: 95-2891

Court Abbreviation: 8th Cir.