Initiative & Referendum Institute v. United States Postal ServiceInitiative & Referendum Institute v. United States Postal Service
Case Information
*1 G ARLAND , Circuit Judges .
Opinion for the court filed by Circuit Judge G ARLAND . G ARLAND , Circuit Judge
: A United States Postal Service regulation bans “soliciting signatures on petitions, polls, or surveys” on “all real property under the charge and control of the Postal Service.” The district court rejected the plaintiffs’ First Amendment challenge to this regulation, concluding that even if all exterior postal properties are public forums, the regulation is a valid restriction on the time, place, or manner of speech. For the reasons set forth below, we reverse the judgment of the district court and remand the case for further proceedings.
I
The appellants are seven individuals and organizations that
attempt to place initiatives on state ballots by collecting
signatures on petitions. They contend that sidewalks and other
exterior areas of post offices are particularly fertile locations for
the procurement of such signatures.
[1]
Until relatively recently,
Postal Service regulations were silent on the subject of soliciting
petition signatures on postal premises, while a 1992 postal
bulletin expressly permitted “issue-oriented petitioning [and]
campaigning for a referendum or ballot initiative.”
See
P OSTAL
B ULLETIN 21814 (Apr. 30, 1992). In 1998, however, the Postal
Service amended its regulation governing “[c]onduct on postal
property” to ban that activity.
Soliciting alms and contributions, campaigning for election to any public office, collecting private debts, soliciting and vending for commercial purposes . . . , displaying or distributing commercial advertising, soliciting signatures on petitions, polls, or surveys (except as otherwise authorized by Postal Service regulations) , and impeding ingress to or egress from post offices are prohibited.
In 2000, the appellants brought suit against the Postal
Service in the United States District Court for the District of
Columbia, contending that
The district court initially denied the motions, on the ground
that there were insufficient facts in the record to entitle either
party to judgment as a matter of law.
See Initiative &
Referendum Inst. v. U.S. Postal Serv.
,
The court did, however, find some issues resolvable on the
record before it. First, it decided that
Following the district court’s decision, the appellants filed
an amended complaint identifying twelve postal properties on
which they had sought “and in the future would seek to gather
signatures on petitions.” First Am. Compl. ¶ 52, at 14. The
parties then engaged in discovery, and eventually cross-moved
for summary judgment again. At a hearing on those motions,
the Postal Service “announced . . . in open court that it ha[d]
changed its articulated position from the one it took early in this
litigation to one more favorable to plaintiffs on whether certain
alternative channels of communication on exterior postal
properties would violate
Thereafter, the Postal Service submitted a proposed bulletin,
styled as a reminder to postmasters about their obligations in
enforcing
not apply to municipal or other public perimeter sidewalks, even if the Postal Service’s property line extends onto such a sidewalk . . . . The beginning of Postal Service-controlled space must be easily distinguishable to members of the public by means of some physical feature. For example, a Postal Service sidewalk that is perpendicular to the city sidewalk would indicate to members of the public that they are entering onto Postal Service property, as would stairs leading up to the entrance of a Post Office.
P OSTAL B ULLETIN 22119, at 19 (Jan. 8, 2004). The bulletin further confines the regulation’s application
to efforts to have members of the public provide signatures on Postal Service premises, and not to communications that promote the signing of petitions, polls, and surveys somewhere other than on Postal S[e]rvice premises. . . . Thus, if a petition circulator wishes to collect signatures for a petition, poll, or survey, he or she would not be prohibited from standing on exterior parts of Postal Service property that are open to the public and passing out informational leaflets, holding up a sign, or both. The leaflet or sign could provide relevant information about the petition, poll, or survey, and direct Postal Service customers to nearby non-Postal Service property, that is, property not under the Postal Service’s charge and control, where they can sign the petition, poll, or survey, if they so desire.
Id.
On December 31, 2003, the district court granted the Postal
Service’s motion for summary judgment. The court stated that
it could not hold
II
The First Amendment to the Constitution provides that “Congress shall make no law . . . abridging the freedom of speech, . . . or the right of the people . . . to petition the Government for a redress of grievances.” There is no question that “the solicitation of signatures for a petition involves protected speech.” Meyer v. Grant , 486 U.S. 414, 422 n.5 (1988). Indeed, this kind of speech “is at the core of our electoral process and of the First Amendment freedoms -- an area of public policy where protection of robust discussion is at its zenith.” Id. at 425 (citation and internal quotation marks omitted).
The fact that petitioning constitutes protected speech,
however, “merely begins [the] inquiry.”
Cornelius v. NAACP
Legal Def. & Educ. Fund, Inc.
,
Three forum categories have emerged. The first is referred to as the “traditional” public forum. The analysis applicable to this category is as follows:
“[P]ublic places” historically associated with the free exercise of expressive activities, such as streets, sidewalks, and parks, are considered, without more, to be “public forums.” In such places, the government’s ability to permissibly restrict expressive conduct is very limited: the government may enforce reasonable time, place, and manner regulations as long as the restrictions “are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.” Additional restrictions such as an absolute prohibition on a particular type of expression will be upheld only if narrowly drawn to accomplish a compelling governmental interest.
United States v. Grace
, 461 U.S. 171, 177 (1983) (citations
omitted) (quoting
Perry Education Ass’n v. Perry Local
Educators’ Ass’n
,
In considering the appellants’ facial challenge to the Postal
Service regulation,
the district court made
three key
determinations. First, it held that even if all postal properties
were public forums, the ban on soliciting signatures contained
in
The court’s second key determination was that the appellants’ facial challenge could succeed only by showing that the regulation was unconstitutional in all of its applications. For the reasons discussed in Part IV.A, we also disagree with that determination.
Finally, the district court decided to conduct its inquiry as
though
III
The facial constitutionality of
As noted above, “the government may enforce reasonable time, place, and manner regulations” restricting expression in a public forum “as long as the restrictions ‘are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.’” Grace , 461 U.S. at 177 (citations omitted) (quoting Perry
10
Education Ass’n
,
A
The Postal Service has advanced a significant, content-
neutral interest in support of its ban on the solicitation of
signatures on petitions. In explaining its rationale for amending
But while the government’s interest is sufficient,
The Postal Service “does not suggest that all signature- gatherers engage in harassment of postal customers.” Appellee’s Br. at 46. It contends only “that the potential exists and, in fact, occasionally does occur.” (emphasis added). As the government explained in its memorandum to the district court, the Postal Service argues that the “restrictions target precisely the conduct that impinges on the significant government interests sought to be advanced, i.e. , signature- gathering activities that interfere with customer satisfaction by being, at times , disruptive, that occasionally give the appearance of bias or partiality on the part of [the Postal Service], and that at times require postal employees to spend too much of their time on nonpostal business.” Def.’s Stmt. Mat. Facts at 36 (emphasis added). “There is no evidence,” the government insists, that the “regulation restricting signature-gathering activities on exterior postal property does not serve these legitimate interests.” Id.
We agree that the regulation serves the government’s
legitimate interests. But it surely does not, in the government’s
words, “target” those interests “precisely.” To the contrary,
since the problems the government identifies arise only
“occasionally” and “at times,” the across-the-board ban on
signature solicitation necessarily bars much solicitation that is
not disruptive, does not give the appearance of partiality on the
part of the Postal Service, and does not require excessive postal
worker time. Thus, a “substantial portion of the burden on
speech does not serve to advance” the government’s content-
neutral goals.
American Library Ass’n v. Reno
,
This lack of narrow tailoring was precisely the problem that led the Supreme Court, in United States v. Grace , to rule unconstitutional a statutory ban on the display of flags or banners on the sidewalk in front of the Court’s own building. As the Court said:
We do not denigrate the necessity to protect persons and property or to maintain proper order and decorum within the Supreme Court grounds, but we do question whether a total ban on carrying a flag, banner or device on the public sidewalks substantially serves these purposes. There is no suggestion, for example, that appellees’ activities [one appellee had distributed leaflets; the other had displayed a sign with the text of the First Amendment] in any way obstructed the sidewalks or access to the Building . . . or in any way interfered with the orderly administration . . . of the grounds.
Grace , 461 U.S. at 182. Similarly, in Ward v. Rock Against Racism , the Court explained why a total prohibition of handbilling would be unconstitutional:
A ban on handbilling, of course, would suppress a great quantity of speech that does not cause the evils that it seeks to eliminate, whether they be fraud, crime, litter, traffic congestion, or noise. For that reason, a complete ban on handbilling would be substantially broader than necessary to achieve the interests justifying it.
13
Rock Against Racism
, 491 U.S. at 799 n.7 (citation omitted).
Further evidence that
Both the Supreme Court and this court have considered the
availability of other means when evaluating a restriction’s
tailoring. In
Members of City Council v. Taxpayers for Vincent
,
the Court noted that “ordinances that absolutely prohibit[]
handbilling on the streets [are] invalid” because cities can
“adequately protect the esthetic interest in avoiding litter
without abridging protected expression merely by penalizing
those who actually litter.” 466 U.S. 789, 808-09 (1984);
see
City of Ladue v. Gilleo
,
Finally, the Postal Service disputes the suggestion that
prohibitions targeted at disturbances and impediments fully
accomplish its purposes, since “people who come to post offices
to engage in postal business may well be irritated by even the
nicest circulator, however brief the interruption may be, because
they are being interrupted in what they set out to do, questioned
about something plainly personal . . . , and asked to think about
an issue that presumably was not on their minds when they set
out to engage in postal business.” Appellee’s Br. at 46-47. But
the “ability of government, consonant with the Constitution, to
shut off discourse solely to protect others from hearing it is . . .
dependent upon a showing that substantial privacy interests are
being invaded in an essentially intolerable manner.”
Erznoznik
v. City of Jacksonville
,
B
The Postal Service contends that it nonetheless satisfies this element because the appellants “may seek to gather signatures on their initiatives and referenda in numerous other places on non-postal property.” Appellee’s Br. at 52. We put to one side the fact that the Service has not shown that there are such other places anywhere near postal property, [5] because it is in any event not enough that petitioners may solicit signatures at other locations. The Supreme Court has stressed the importance of providing access “within the forum in question.” Heffron v. International Soc’y for Krishna Consciousness, Inc. , 452 U.S. 640, 655 (1981). “[O]ne is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it
17
may be exercised in some other place.” Reno v. ACLU , 521 U.S. 844, 880 (1997) (quoting Schneider v. New Jersey , 308 U.S. 147, 163 (1939)).
Indeed, the United States made the same argument, to no avail, in Grace . There, the government asserted that “the inquiry should not be confined to the Supreme Court grounds but should focus on ‘the vicinity of the Supreme Court’ or ‘the public places of Washington D.C.’” Grace , 461 U.S. at 180. “Viewed in this light,” the government contended, there were “sufficient alternative areas within the relevant forum, such as the streets around the Court or the sidewalks across those streets[,] to permit [the statute] to be considered a reasonable ‘place’ restriction.” The Court rejected the argument, holding that the statutory ban on displaying flags or banners on the Supreme Court’s perimeter sidewalk was unconstitutional. See id. at 181. In Community for Creative Non-Violence v. Turner , this court likewise held that a Washington Metropolitan Area Transit Authority (WMATA) regulation, which required permits for organized free speech activities at Metro stations, failed the ample alternatives prong because there were “no WMATA areas not covered by the permit requirement” and hence “no intra-forum alternative[s].” 893 F.2d 1387, 1393 (D.C. Cir. 1990).
18
The Postal Service also maintains that its total ban on signature solicitation is saved by the fact that other forms of communication, including leafleting and talking about the issue raised by the petition, may take place on postal property. But in Grace , the statutory prohibition on the display of a “flag, banner, or device” was not saved by the fact that the statute did “not prohibit all expressive conduct.” 461 U.S. at 181 n.10. Instead, the Court emphasized that exacting scrutiny should be applied to an “absolute prohibition on a particular type of expression.” Id. at 177 (emphasis added); see id. at 181 (noting that the statute “totally bans the specific communicative activity on the public sidewalks around the Court grounds” (emphasis added)). Similarly, in City of Ladue , the Court rejected a city’s claim that its ban against signs on residential property satisfied the time, place, or manner test because residents “remain[ed] free to convey their desired messages by other means, such as hand-held signs, letters, [and] handbills.” City of Ladue , 512 U.S. at 56 (internal quotation marks omitted). The Court noted that expression via residential signs is a “means of communication that is both unique and important,” id. at 54, and that its “prior decisions have voiced particular concern with laws that foreclose an entire medium of expression.” at 55.
Moreover, although in the context of bans on soliciting funds it is possible to separate the protected speech involved in the solicitation from the related conduct of actually collecting funds, [8] “the circulation of a petition involves the type of interactiv e communication concerning political change that is appropriately described as ‘core political speech.’” Meyer , 486 U.S. at 421-22 (emphasis added). That interactive communication comprises both the request for the signature and the signature itself, because the circulation of an initiative petition not only involves the “expression of a desire for political change,” id. at 421, but also is a means of “plac[ing] the matter on the ballot, [and thus making] the matter the focus of statewide discussion,” id. at 423. Indeed, the circulation of a petition involves an element of speech beyond leafleting or sign- holding, because the collection of signatures -- particularly for an initiative or referendum ballot -- is essential to accomplishing the circulator’s purpose.
The Supreme Court has held that restrictions on petition circulation can impermissibly impede protected speech even if they do not ban signature collection outright. In Meyer v. Grant , the Court struck down a state law regulating the initiative process that made it a felony to pay petition circulators. Id. at 416. As the Postal Service does here, the state argued there that, “even if the statute imposes some limitation on First Amendment expression, the burden is permissible because other avenues of expression remain open to” the plaintiffs. at 424. Rejecting this argument, the Court held: Amendment contemplates the right to raise money, but rather because the act of solicitation contains a communicative element.”); see also ISKCON v. Lee , 505 U.S. at 704-05 (Kennedy, J., concurring in the judgments) (stating that, although a ban on “all speech that requested the contribution of funds” would be unconstitutional, a prohibition that reached “only personal solicitations for immediate payment of money” was permissible because it was “directed only at the physical exchange of money, which is an element of conduct interwoven with otherwise expressive solicitation”).
That appellees remain free to employ other means to disseminate their ideas does not take their speech through petition circulators outside the bounds of First Amendment protection. [The] prohibition of paid petition circulators restricts access to the most effective, fundamental, and perhaps economical avenue of political discourse, direct one-on-one communication. That it leaves open “more burdensome” avenues of communication, does not relieve its burden on First Amendment expression.
Id.
Like the state law in
Meyer
, the Postal Service’s prohibition
of signature solicitation “limits the size of the audience” the
appellants can reach and “makes it less likely that [they] will
garner the number of signatures necessary to place the matter on
the ballot.” at 423.
In sum, the Postal Service’s ban on soliciting signatures neither is narrowly tailored nor ensures ample alternative channels of communication. It therefore cannot be upheld as a time, place, or manner restriction of speech if applied in a public forum.
IV
The conclusion that
A
Given our conclusion that
Certain kinds of postal sidewalks present hard questions
regarding their forum status. In
United States v. Kokinda
, four
Justices concluded that a particular postal sidewalk -- one
“constructed solely to provide for the passage of individuals
engaged in postal business” and that “le[d] only from the
parking area to the front door of the post office” -- was not a
public forum. 497 U.S. 720, 727 (1990) (O’Connor, J.,
announcing the judgment of the Court and joined by three
Justices). Those four also concluded that a ban on “soliciting
alms and contributions” (a separate clause of the same
regulation at issue here) was “reasonable as applied” to that
sidewalk.
Id.
at 737. Four other Justices, however, found that
“the sidewalk in question” was a public forum, and that the
restriction was not a permissible time, place, or manner
restriction.
Id.
at 740 (Brennan, J., joined by three Justices,
dissenting). Justice Kennedy, writing separately, agreed there
was a “powerful argument” that “this postal sidewalk . . . is
more than a nonpublic forum,”
id.
at 737 (Kennedy, J.,
concurring in the judgment), but concluded that it was
unnecessary to decide the question because even if the sidewalk
was a public forum, “the postal regulation me[t] the traditional
standards we have applied to time, place, and manner
restrictions of protected expression.” at 738. As the district
court noted and the Postal Service agrees, the split nature of the
decision in
Kokinda
“provides no definitive guidance” on the
forum status of postal sidewalks. Appellee’s Br. at 17 (quoting
Initiative & Referendum Institute
,
But while a sidewalk like that in
Kokinda
may be hard to
categorize, the Supreme Court has made categorization of
another kind of sidewalk straightforward. In
Grace
, the Court
held that it could “discern no reason why” the “sidewalks
comprising the outer boundaries of the Court grounds” --
sidewalks that are “indistinguishable from any other sidewalks
in Washington, D.C.” -- should not be treated as traditional
public forums.
Sidewalks, of course, are among those areas of public property that traditionally have been held open to the public for expressive activities and are clearly within those areas of public property that may be considered, generally without further inquiry, to be public forum property. . . . There is no separation, no fence, and no indication whatever to persons stepping from the street to the curb and sidewalks that serve as the perimeter of the Court grounds that they have entered some special type of enclave. . . . Traditional public forum property . . . will not lose its historically recognized character for the reason that it abuts government property that has been dedicated to a use other than as a forum for public expression. at 179-80. Given that the “public sidewalks forming the
perimeter of the Supreme Court grounds” are public forums,
id.
at 180, there can be no doubt that similar sidewalks abutting post
offices qualify as well. “The mere fact that a sidewalk abuts
property dedicated to purposes other than free speech is not
enough to strip it of public forum status.”
Henderson v. Lujan
,
It is uncontested that some postal properties contain what we will hereinafter refer to as Grace sidewalks. For example, on the list of twelve postal facilities assembled by the appellants in support of their as-applied challenge is the Georgetown Post Office in Washington, D.C., which directly abuts a sidewalk that is indistinguishable from the municipal sidewalk. See Appellants’ Br. at 55. At oral argument, the Postal Service conceded that this sidewalk, which the Postal Service owns, constitutes a Grace sidewalk and hence a public forum. See Oral Arg. Tape at 37:43-39:18. The appellants contend that their evidentiary “exhibits show[] that the pedestrian sidewalks” at the other urban post offices on the list also are “indistinguishable from the types of public sidewalks that courts have always described as ‘quintessential public forums.’” Appellants’ Br. at 54. The Postal Service does not deny this contention.
Not all post offices, of course, have Grace sidewalks. Although it seems likely that many urban post offices do, and that the regulation’s restraint on protected speech is thus substantial, the district court did not consider the question because it wrongly believed that a facial challenge requires proof that all exterior postal properties constitute public forums. See Initiative & Referendum Inst. , 297 F. Supp. 2d at 148. Accordingly, on remand the district court will have to determine whether the Postal Service’s regulation “abridges protected speech . . . in a good number of cases.” Ruggiero v. FCC , 317 F.3d 239, 248 (D.C. Cir. 2003) (Randolph, J., concurring).
B
But
It is clear that a broadscale prohibition against asking postal
patrons to sign petitions at other locations, whether such
requests are made verbally or in distributed pamphlets, is
unconstitutional even if all postal properties are nonpublic
forums. Although restrictions on speech in such forums are
permissible, they still must be “reasonable.”
Perry Education
Ass’n
,
None of the government interests previously identified --
against disturbing postal patrons, impeding their access, or
invading their privacy -- reasonably justifies an across-the-board
prohibition of pure solicitation on postal sidewalks. Although
simply asking for a signature might in some circumstances
create one or another of those problems, it is doubtful that it
would do so in many. Nor is there any reason to believe that
requesting signatures is any more disruptive, or invasive, than is
approaching (or talking to) a postal patron in the course of
“[l]eafleting, distributing
literature, picketing, and
demonstrating,” which the postal regulations do not prohibit on
exterior postal property.
To do so would appear to be an impossible task in light of
Supreme Court precedent. In
Watchtower Bible
, for example,
the Court found facially unconstitutional a municipal ordinance
that required a permit before one could go on
private
property
to engage in advocacy of a political cause.
Watchtower Bible &
Tract Soc’y of N.Y., Inc. v. Village of Stratton
,
28
constitutional, one that prohibited “all speech that solicits funds” would be unconstitutional (emphasis added)).
The Postal Service has marshaled no stronger interest than
those rejected in
Watchtower
and
ISKCON v. Lee
in defense of
the regulation, as construed
to ban pure solicitation.
Accordingly, we conclude that this most straightforward
construction of
V
A limiting construction that is “fairly” possible can save a
regulation from facial invalidation.
Jews for Jesus
, 482 U.S. at
575;
see New York v. Ferber
,
Although the ordinary meaning of “solicit” is merely to ask, we cannot say that it would be unreasonable to read a ban on “soliciting signatures on petitions” as the Postal Service does: to apply only “to efforts to have members of the public provide signatures on Postal Service premises, and not to communications that promote the signing of petitions, polls, and surveys somewhere other than on Postal Service premises.” P OSTAL B ULLETIN 22119, at 19. In his separate opinion in Kokinda , for example, Justice Kennedy accepted the government’s representation that the Postal Service’s ban on “[s]oliciting alms and contributions” permitted the respondents “to distribute literature soliciting support, including money contributions, provided there is no in-person solicitation for payments on the premises.” 497 U.S. at 739 (Kennedy, J., concurring in the judgment). Similarly, in her plurality opinion, Justice O’Connor observed that “the act of soliciting alms or contributions usually has as its objective an immediate act of charity.” at 733 (O’Connor, J., joined by three other Justices) (emphasis added). Accordingly, we regard the Postal Service’s construction of “soliciting” as adequate to cure the problem identified in Part IV.B.
The Bulletin’s statement
regarding
the
regulation’s
application to
Grace
sidewalks, however, is another matter.
Although a “statute must be construed, if fairly possible, so as
to avoid . . . the conclusion that it is unconstitutional, . . .
avoidance of a difficulty will not be pressed to the point of
disingenuous evasion.”
George Moore Ice Cream Co. v. Rose
,
Of course, it is perfectly permissible for the Postal Service
to change its enforcement policies or regulations in order to
eliminate the basis for a constitutional challenge. The problem
with the change at issue here is its format. It is “published”
solely in the form of an internal bulletin: it is not published in
the Federal Register, is not contained in the Code of Federal
Regulations, and is not posted for public examination in post
offices. By contrast, all of these things are true of
The contrast
in
format, coupled with
the
facial
inconsistency between the regulation and the Bulletin, is
decisive. Citizens interested in circulating petitions have no way
of knowing that the Bulletin, rather than the regulation, states
the Postal Service’s current policy. Were they to go to a post
office and examine its public announcements board, they would
find only the posted regulation. The same would be true were
they to check the relevant Code section. Indeed, even if a
citizen were to become aware of the existence of the Bulletin, he
or she could not confidently rely on it.
As a consequence, the Postal Bulletin cannot alone temper
the regulation’s chill of First Amendment rights. That is
particularly so because the regulation makes its violation
punishable by criminal fine and imprisonment.
See
We will therefore remand this case to the district court with
instructions to determine whether, by its application to
Grace
sidewalks,
VI
For the foregoing reasons, the judgment of the district court is reversed, and the case is remanded for further proceedings consistent with this opinion.
So ordered.
[1] The appellants do not claim a right to collect signatures inside post offices, an activity that is also constrained by regulation. See39 C.F.R. § 232.1(a) , (h)(1).
Notes
[2] See Grace , 461 U.S. at 181-82 & n.10 (ban on picketing and leafleting on the Supreme Court’s sidewalks “to protect persons and property” and “to maintain proper order and decorum”); Heffron v. Int’l Soc’y for Krishna Consciousness, Inc. , 452 U.S. 640, 648-50 (1981) (ban on selling and distributing materials outside fixed locations on state fairgrounds to “maintain the orderly movement of the crowd”); Members of City Council v. Taxpayers for Vincent , 466 U.S. 789, 805-06 (1984) (ban on posting signs on public property to “eliminat[e] clutter and visual blight”); see also Ward v. Rock Against Racism , 491 U.S. 781, 791 (1989) (“Government regulation of expressive activity is content neutral so long as it is justified without reference to the content of the regulated speech.” (internal quotation marks omitted) (emphasis added)).
[3] This court has found the same problem in other government
efforts to restrict speech in public forums. In
Community for Creative
Non-Violence v. Turner
, for example, we held invalid a regulation,
promulgated by the Washington Metropolitan Area Transit Authority
(WMATA), that required permits for organized free speech activities
at above-ground areas of WMATA stations. The requirement was not
narrowly tailored, we said, because “[w]hile the Regulation arguably
eliminates the ‘sources of evil’ that allegedly threaten WMATA’s
ability to provide a safe and efficient transportation system, it does so
at too high a cost, namely, by significantly restricting a substantial
quantity of speech that does not impede WMATA’s permissible
goals.” 893 F.2d 1387, 1392 (D.C. Cir. 1990). Likewise, in
Lederman v. United States
, we declared unconstitutional a ban on
demonstrations on the sidewalk on the U.S. Capitol’s East Front. 291
F.3d 36, 39 (D.C. Cir. 2002). Although we recognized that the ban
accomplished the legitimate purpose of reducing pedestrian traffic and
decreasing security risks, we concluded that “[s]ome banned
activities,” such as “a single leafleteer standing on the East Front
sidewalk,” were “no more likely [to] block traffic or threaten security”
than were ordinary pedestrians.
Id.
at 45. “[T]he Constitution does
not tolerate,” we said, “regulations that, while serving their purported
aims, prohibit a wide range of activities that do not interfere with the
Government’s objectives.” at 44 (quoting
Community for Creative
Non-Violence v. Kerrigan
,
[4]
See
[5] See Clark v. Community for Creative Non-Violence , 468 U.S. 288, 293 n.5 (1984) (noting that “it is common to place the burden upon the Government to justify impingements on First Amendment interests”); United States v. Doe , 968 F.2d 86, 87 (D.C. Cir. 1992) (holding that the government has the “burden of showing that [a] regulation is ‘narrowly tailored’ to further the government’s interest . . . in . . . an acknowledged public forum”).
[6] See Rock Against Racism , 491 U.S. at 802 (finding that New York City’s sound-amplification guideline for use of the Central Park bandshell left open ample alternatives because it “continue[d] to permit expressive activity in the bandshell ” (emphasis added)); cf. International Soc’y for Krishna Consciousness v. Lee [ ISKCON v. Lee ], 505 U.S. 672, 684-85 (1992) (upholding a ban on soliciting contributions inside nonpublic-forum airport terminals, in part because solicitation was permitted on exterior terminal sidewalks and thus “the resulting access of those who would solicit the general public [was] quite complete”).
[7] See Frisby , 487 U.S. at 486 (recognizing that certain “means of communication” -- including handbilling, solicitation, and marching -- may “not be completely banned” in residential areas).
[8] See Friends of the Vietnam Veterans Memorial v. Kennedy , 116 F.3d 495, 497 (D.C. Cir. 1997) (“The cases protecting the right to solicit contributions in a public forum do so not because the First
[9] See, e.g. , People v. Mason , 642 P.2d 8, 13 (Colo. 1982) (en banc) (“The offense of soliciting is complete when the offender solicits another for prostitution . . . . The prostitute’s subsequent decision to engage or not to engage in a sexual act with her customer is not essential to th[is] crime[].”); People v. Burt , 288 P.2d 503, 505 (Cal. 1955) (“[Solicitation of a felony,] unlike conspiracy, does not require the commission of any overt act. It is complete when the solic itation is made, and it is immaterial that the object of the solicitation is never consummated, or that no steps are taken toward its consummation.”).
[10] See Lee v. International Soc’y for Krishna Consciousness, Inc. [ Lee v. ISKCON ], 505 U.S. 830 (1992) (holding unconstitutional a ban on leafleting in airport terminals); Jews for Jesus , 482 U.S. at 575-76 (holding unconstitutional a ban that effectively prohibited, within an airport terminal, “talking” or “the wearing of campaign buttons or symbolic clothing” that was not “airport related,” noting that “no conceivable governmental interest would justify such an absolute prohibition of speech”).
[11] See Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Village of Stratton , 536 U.S. 150, 160 (2002) (noting that “[f]or over 50 years, the Court has invalidated restrictions on door-to-door canvassing and pamphleteering”).
[12] The Court’s per curiam opinion in
Lee v. ISKCON
invalidated
the leafleting ban “[f]or the reasons expressed in the opinions of
Justice O’Connor, Justice Kennedy, and Justice Souter” in
ISKCON
v. Lee
,
[13] See also Kokinda , 497 U.S. at 733 (O’Connor, J., joined by three Justices) (finding a ban on “soliciting alms and contributions” on postal premises reasonable because, “[s]ince the act of soliciting alms or contributions usually has as its objective an immediate act of charity, it has the potentiality for evoking highly personal and subjective reactions” and thus is “inherently disruptive” (emphasis added)); Jews for Jesus , 482 U.S. at 574 (holding unconstitutional a ban on First Amendment activities in an airport because it “does not merely regulate expressive activity . . . that might create problems such as congestion or the disruption of the activities of those who use” the terminal).
[14] See P OSTAL B ULLETIN 22119, at 19 (stating that the regulation “extends only to efforts to have members of the public provide signatures on Postal Service premises, and not to communications that promote the signing of petitions, polls, and surveys somewhere other than on Postal Service premises”).
[15] See P OSTAL B ULLETIN 22119, at 19 (stating that the regulation does “not apply to . . . public perimeter sidewalks, even if the Postal Service’s property line extends onto such a sidewalk,” and that it does not apply to exterior Postal Service property unless the “beginning of Postal Service-controlled space [is] easily distinguishable to members of the public by means of some physical feature”).